Although, surveyors cannot be appointed under the Act in the normal way where notice has not been served, it is possible for the parties to come to an alternative legal agreement whereby disputes can be dealt with as if notices had been served. Once the agreement is made, the parties can appoint a surveyor, (or two surveyors) to make an award to resolve a dispute between them.
Basically, any award that is deemed to be retrospective with regards to the completed notifiable works is not legally binding under the Act. If such an award has been agreed by both parties, it is no more than a binding contract and is not enforceable as an award.
In Shah v Power, Mr. Justice Eyre determined that in order for a dispute to arise and/or a surveyor to be appointed under the provisions of section 10 of the Act and the Party Wall etc. Act 1996 (PWA 1996) had to be triggered.
The PWA 1996 provides that an award may be issued by a surveyor to determine a right to execute works after a statutory notice has been served. A Party Wall surveyor does not have the jurisdiction to make an award and/or determine any matter if a party wall notice has not been served and/or work has already been completed without a notice ever being served.
By definition, Party Wall Notices are prepared prior to the commencement of works so as to notify the adjoining owner (or owners) of the building owners’ intention to undertake notifiable works. Included in the Party Wall Notice is a requirement for the inclusion of specific notice periods relating to those works. The service of a Party Wall Notice is critical to that purpose because the timing of the notice allowed the works to be agreed in advance. If the notifiable works have already been undertaken, it is not possible to meet those notice period requirements.
It follows therefore, that is not possible to serve a valid notice after the notifiable works have begun. The dispute resolution process under the PWA 1996 cannot be triggered unilaterally by an adjoining owner and the PWA 1996 cannot be invoked retrospectively once an adjoining owner has decided that they have suffered loss or damage.
When the statutory process under the PWA 1996 is available but is not followed, both the building owner and the adjoining owner are deprived of rights that they would have been able to exercise if the PWA 1996 had been brought into play. If the statutory procedures under section 2 and section 3 of the PWA 1996 are not followed then the common law rights of both parties continue to apply.
However, it might be possible to serve notice and make an award (if required) if some of the notifiable works are outstanding. In previous cases (Rodriques v Sokal 2008), the courts have confirmed that work can be authorised retrospectively but only if the surveyors feel that it is capable of being authorised, that is, done to a good standard. The surveyors should inspect the notifiable works and confirm they had not caused any damage. If all or part of the notifiable works are hidden, then the surveyors should be able to obtain independent verification from say a Building Control Officer or an inspecting structural engineer etc. of the work that was now concealed. This would suggest that the work was capable of being authorised retrospectively by an Award. The Building Owner would have to take the initiative and a detailed assessment of the completed work would have to be conducted, often involving site inspections and documentation.
This certainly wouldn’t be the case if the building owners’ works have caused damage to the adjoining owners’ property. The only remedy an adjoining owner has when a building owner fails to fulfil their statutory obligations under the PWA 1996 is to seek injunctive and/or compensatory relief from the court; namely the right to bring claims in trespass, nuisance and negligence, and the right, if appropriate, to seek an injunction. Also, Louis v Sadiq confirms that an Award cannot relieve a Building Owner from liability at common law for works undertaken prior to the service of a notice.
Ormiston-Kilsby v Fatahi was a case where the building owner's contractors commenced work that included notifiable works; the owner had agreed in the building contract to take responsibility for serving the requisite notices but had not done so and damage was caused as a result. The court concluded that the defendant was liable both in trespass and nuisance, and awarded the claimant a mandatory injunction, requiring the building owner to remove their extension and pay damages.
If the building owner has already completed the notifiable part of their work, it will be a matter of dealing with any consequences – such as damage to the adjoining owner’s property – by relying on the protections provided by common law rights. Although these common law rights aren’t as protective as rights obtained under the PWA 1996, they should give them the same benefits in having the matter dealt with as it would be dealt with under the Party Wall etc Act 1996.
One key benefit of a legal retrospective agreement is the legal clarity it provides. It helps prevent potential disputes by clearly defining the scope of the work and the responsibilities of all parties involved. A retrospective agreement would include details of the work carried out and the measures to be taken to rectify any damage. It would ensure that all works, even post-completion, would comply with the legalities set by the PWA 1996. It would minimise the potential for disputes by providing a clear framework and documentation of the works carried out. Although the formalities of section 10 of the Act are usually adopted when such agreements are drawn up, such agreements are not believed to be enforceable under the PWA 1996. However, it may be enforceable and actionable under the civil law of contract.
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