Is the Party Wall etc. Act 1996 effective?
Updated: Jan 12, 2021
1.1 A brief overview of the Act
1.2 The Background to the Problem
1.3 Article Aims and Objectives
1.5 Rationale for article
2.0 Literature Review 2.1 Introduction 2.2 Definition of ‘effective’ 2.3 What was the intention of the Act? 2.4 Critical Examination of the Effectiveness of the Act 2.5 Cases brought before the Courts 2.6 Ambiguity of the Act 2.7 Professional bodies 2.8 An Assessment of Section 10(1)(b) 2.9 Identification of the reasons that make the Act effective 2.10 Discussion of the factors that inhibit the effectiveness of the Act 2.11 The conduct of Surveyors 2.12 Appropriate engagement of the Act 2.13 Recommendations to improve the Act 2.14 Ambiguity of the Act – an Amended Act? 2.15 The ineffectiveness of Section 10(1)(b) – a solution? 2.16 Education 2.17 Summary 3.0 Conclusion and Recommendations 3.1 Introduction 3.2 Has the Hypothesis been Sufficiently Tested? 3.3 Review of Objectives 3.4 Conclusion 3.5 Limitations of this article 3.6 Recommendations for Future Research 3.7 Final Summary References List of Cases Abstract Title: Is the Party Wall etc. Act 1996 effective? This article looks at whether the Party Wall etc. Act 1996 is effective. Lord Lytton introduced the Act to the House of Lords in 1996 and remarked that the Act was to be a ‘safety net and not a fiery hoop’. The Act succeeds in resolving disputes and provides a good framework by which such disputes can be expeditiously concluded. There are stringent procedures to be followed, with binding time frames to ensure that matters do not stagnate. The process is designed to allow the work to commence, subject to reasonable conditions designed to safeguard the Adjoining Owner’s interests.
Many commentators laud the Act as a successful piece of legislation that reduced litigation, keeping disputes away from the Courts and ensuring that they are resolved in a timely and cost-effective manner. The Act is widely described as an ‘Enabling’ Act and the machinery of the Act ensures that it is effective.
A number of failures within the Act are identified, such as the low uptake of ‘Agreed Surveyor’ appointments; the questionable conduct of some Party Wall Surveyors; and the increase in cases being brought before the Courts.
The article concludes that the Act is effective, but there is a climate of change. Litigation is increasing, and there are louder calls for amendments to the Act. In practice, it may be easy to criticise the Act, but providing workable solutions is very difficult.
1.0 Introduction This article will demonstrate that the Act is an effective piece of legislation, though not without its difficulties. It is increasingly being questioned by those connected to or affected by the Act, and there are growing calls for an amended Act to be passed. Those who administer the Act play a vital role in determining its success.
1.1 A brief overview of the Act The Act came into force in England and Wales in 1997 and is concerned with settling disputes. The Act regulates work that may affect a neighbour, for example the insertion of steel beams into a shared wall; building on the boundary and; excavation within three metres of a neighbouring building / structure depending on the depth of the proposed foundations. Sections 1, 2 and 6 of the Act set out the work to which the Act applies. The Act gives rights to the Building Owner and the Adjoining Owner, whilst also often placing obligations to both parties. If there is a dispute relating to the works, a Surveyor (or Surveyors as the case may be) is appointed and a legal document is served which settles the dispute and allows the work to take place. Section 10 of the Act provides the framework by which such disputes are to be settled.
1.2 The Background to the Problem The Party Wall Act is a relatively unknown piece of legislation that often comes as a shock to homeowners wishing to undertake work in pursuance of the Act. There is a distinct lack of knowledge with regards to obligations and rights that are set out in the Act, and this lack of knowledge affects homeowners wishing to undertake work, contractors who undertake the work and the surveyors who administer the Act. Thousands of party wall awards are made each year and only a tiny minority lead to litigation. This is because surveyors discharge their duties in a sensible and pragmatic manner and rarely adopt a technical or legalistic approach. Their objective is to ensure that works are carried out efficiently and economically and with adequate safeguards. This approach has no doubt spared many property owners from the consequences of litigation which might otherwise have arisen (Smith 2010). There are many incidences whereby work subject to the Act has commenced prior to serving the requisite notices and thus in breach of the Act. This has come about either by lack of knowledge or flagrant disregard of the obligations that are set out in the Act. Excessive fees and the conduct of Party Wall Surveyors can give the Act a bad name, and yet, at its best, the Act successfully settles disputes, maintains neighbourly relations and spares property owners from litigation.
1.3 Article Aims and Objectives This article has three clear objectives: Objective 1- Critically examine the effectiveness of the Act.
Objective 2 – Identify the reasons that make the Act effective and the factors that inhibit its effectiveness.
Objective 3 – To review current legislation and recommend ways in which the Act can be improved.
1.4 Hypothesis “The Party Wall etc. Act 1996 is effective, though it’s effectiveness is diminished by abuse of process and a lack of teeth”. Party wall surveyors do not always act appropriately or within their scope of competency. Some surveyors use their knowledge of the Act to prolong the process and maximise their profits. The Act has a ‘lack of teeth’ in that there is very little provision for dealing with failures to instigate the Act or breaches. It is likely that improvements can be made that could increase the effectiveness of the Act.
1.5 Rationale for article A cursory look on the internet by a practicing Surveyor, Michael White (2018), attributed the following comments to people’s experience of the Party Wall Act: ‘They have you by the balls I’m afraid. It really stinks how this recent legislation affects neighbour’s rights’ ‘The vultures have descended and, as I and previous posters know, you will be the prey / loser’ ‘The party wall act has been designed by party wall surveyors for party wall surveyors. It is actually fairly corrupt.’ (White 2018) There are many more comments that allude to a poor public perception of party wall surveyors. The following is particularly poignant: ‘(name removed) is making our family suffer for a simple party wall agreement. He probably has no idea how much this impact on our daily life. What for? to make money? I wish people would help each other instead of creating unnecessary issues." A Party Wall Surveyor is a person who specialises in resolving disputes" unfortunately not for (name removed), I wish I could understand why people can be so awful... just devastated’ There are even reviews where people have simply not gone ahead with their proposed work, based on complications associated with the Act. The Act was introduced by Lord Lytton as a ‘safety net and not a fiery hoop’. The reviews above indicate that for many, the Act is everything Lord Lytton intended it not to be.
2.0 Literature Review 2.1 Introduction This section looks at the current literature in relation to the Party Wall etc. Act 1996. The remainder of the chapter will focus on case law and journals. Firstly, a definition of ‘effective’ is given, as this report aims to establish whether the Act is ‘effective’. The intention of the Act is explored, and the best place to establish this is to go back to Lord Lytton’s introduction of the Act to the House of Lords in January 1996.
2.2 Definition of ‘effective’ To establish if the Act is ‘effective’ it is important to define the word ‘effective’. The Oxford Dictionary 2017 defines ‘effective’ as ‘successful in producing a desired or intended result’.
2.3 What was the intention of the Act? On January 31st 1996 the Earl of Lytton introduced the Party Wall Bill to the House of Lords and he set out how he wanted the Act to work: ‘The aims of the Bill are to extend the tried and tested provisions of the London Building Acts to England and Wales. It rests upon a principle of voluntary agreement between parties wherever possible; it provides for notice to be given where works are proposed; there is an opportunity to respond and comment; it sets out to protect existing structures; there is a clear liability for damage and making good; there is provision for the resolution of disputes, other than by going to law; it sets out how costs of works and fees arising from them shall be dealt with; and clarifies the extent of rights over common structures... so the Bill is a safety net and not a fiery hoop’. (Lytton 1996) The Act is primarily designed to avoid recourse to the courts (Frame 2010) so the effectiveness of the Act is often measured by the number of cases being heard at court. This view is reinforced by the Judge in Onigbanjo v Pearson 2005 who stated: “The purpose of the Act is to provide a mechanism for dispute resolution which avoids recourse to the Courts.”
To assess whether the Act is effective, it is imperative that the purpose of the Act is understood, and that the mechanisms in place for dispute resolution are critically evaluated. Lastly, if it is possible, the success of the Act can be measured by the number of cases being brought before the courts.
2.4 Critical Examination of the Effectiveness of the Act There are several ways in which the effectiveness of the Act can be examined. Reading through the literature, there are a couple of points that stick out as relevant. There is significant commentary on case law, and the lack of case law is often lauded as a sign that the Act is working effectively. Furthermore, the Act intended to resolve disputes by way of ‘Agreed Surveyor’, though literature tends to indicate that such an appointment is not frequently happening. These are two significant indications of the effectiveness of the Act, though there are more; and these will be covered in the following sections titled ‘Discussion of the factors that inhibit its effectiveness’ and ‘Recommendations to improve the Act’.
2.5 Cases brought before the Courts Nicholas Isaac points to the lack of case law concerning the Party Wall Act as a sign of its success. As noted by the Judge in Etherton LJ in Blake v Reeves the Act is a ‘means of dispute resolution which avoids recourse to the courts.’
Lord Lytton intended that the Act be used for the resolution of disputes, thus avoiding court action. Where there is recourse to the courts, it is often the result of unreasonable professionals or owners who produce a situation where litigation is either very likely or inevitable. The Act, though often criticised, works (Isaac 2014).
The Third Edition of ‘The Party Wall Act Explained’ published in 2016 gave Lord Lytton an opportunity to reflect on the success of the Act, twenty years after he introduced the Bill to the House of Lords. Lord Lytton takes the opportunity to highlight what he terms as a ‘remarkable achievement’ of the Act, in that since the Act was introduced, there have been very few cases that have come to court, and there have been no serious challenges to the principles enshrined in the legislation (Lytton 2016).
2.6 Ambiguity of the Act In his book ‘A Practitioner’s Approach and Interpretation of The Party Wall etc. Act 1996’ Philip Antino points to the ambiguity of the Act and those who administer it ‘my education in Party Wall matters was further complicated by the fact the Act has been written in such a way that it is ambiguous and open to misinterpretation’ (Antino 2012).
The Party Wall Act is ambiguous and this can give rise to misunderstandings and conflicting interpretations (Chynoweth 2002). There is confusion and there are disputes amongst surveyors that increase the likelihood of litigation. Mr Antino agrees stating: ‘in the absence of clarity, it is easy to understand why disputes are increasing and why the surveyors are failing to resolve the disputes’ (Antino 2012) These views are in stark contrast to the positivity exhibited by Lord Lytton and Nicholas Isaac. Lord Lytton is understandably sympathetic to the Act, it was he, who introduced it to The House of Lords after working very hard to bring it to fruition.
2.7 Professional bodies Mr Antino points to what he feels is a culture of secrecy and bullying that affects party wall surveyors. This prevents the Act from being administered fairly. In perhaps a veiled dig at the Pyramus and Thisbie Club, Mr Antino takes exception to the fact that surveyors meet up to discuss the implementation of the Act and that such meetings are only available to those in the ‘inner-circle’. To join the Pyramus and Thisbie Club an applicant must be recommended by at least two current members. The exclusiveness of the Club does give some credit to Mr Antino’s assertion that the party wall community is fractured (Antino 2012). Perhaps ironically, the Club’s motto is borrowed from William Shakespeare’s ‘A Midsummer Night’s Dream’ and the motto is: ‘The wall is down that parted their fathers’. (Shakespeare 1595) This has a conciliatory tone and suggests inclusion amongst fellow peers, though Mr Antino suggests the Club is divisive. He alludes to two different types of party wall surveyors, one type who are backward, dislike change and ‘set in their ways’ and another type who interpret the Act pragmatically and embrace change (Antino 2012). There are a growing number of professional bodies, from P&T, RICS, The Faculty of Party Wall Surveyors, The Party Wall Academy and The Institute of Party Wall Surveyors. This suggests disagreement and dissatisfaction by practitioners regarding their professional bodies. It is also possible to be a member or a director of more than one professional body which doesn’t instil confidence that one professional body is sufficient.
2.8 An Assessment of Section 10(1)(b) ‘It was the government’s intention that an Agreed Surveyor should be used whenever possible’ (Frame 2010).
The resolution of a dispute under the Party Wall Act requires the parties to the dispute to appoint a surveyor and this can be either an ‘agreed surveyor’ or each party can appoint his own surveyor. The uptake of Agreed Surveyors is relatively low, and it is surely a failure of the effectiveness of the Act that such appointments are not more common. In the end, regardless of whether one surveyor is appointed or two surveyors are appointed, an Award is served upon the parties to the dispute. Having two surveyors agree an Award can be excessive and burdensome, particularly for the Building Owner who ordinarily foots the bill (Bickford-Smith et al 2017). Section 20 of the Act defines a Surveyor as: “surveyor” means any person not being a party to the matter appointed or selected under section 10 to determine disputes in accordance with the procedures set out in this Act. On 31st January 1996 Lord Lytton, in introducing the Party Wall Act Bill to the House of Lords stated: ‘Clause 10 deals with the resolution of disputes. In this particular instance both parties can agree on the appointment of one surveyor. That is a step to be recommended most strongly, particularly for householders carrying out small works.’ Lord Lytton’s intentions are clear, in that he expected the Party Wall process to be ‘a safety net and not a fiery hoop’.
An agreed surveyor is referred to in section 10(1)(a) of the act: Section 10 (1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act relates either— (a) both parties shall concur in the appointment of one surveyor (in this section referred to as an “agreed surveyor”); Alternatively, if both parties cannot concur in the appointment of one surveyor, each party shall appoint a surveyor as per section 10(1)(b): (b) each party shall appoint a surveyor and the two surveyors so appointed shall forthwith select a third surveyor (all of whom are in this section referred to as “the three surveyors”) The Adjoining Owner therefore has options with regards to appointing a Surveyor. Whilst the parties can concur in the appointment of a single surveyor ‘this is unusual and normally the next subsection is followed’ (Bickford-Smith et Al 2017). ‘Far more common is the three-surveyor tribunal provided for under section 10(1)(b)’ (Isaac 2014).
The reason why the Adjoining Owner often does not concur in the appointment of one surveyor to resolve the dispute often comes down to trust and the perception of impartiality, or lack thereof. There can be a misguided belief that there is a conflict of interest and they view such an appointment ‘with suspicion, wrongly believing that the Agreed Surveyor will not protect their interest and rights under the Act’ (Antino 2012). Interestingly, it is the Agreed Surveyor who is required to retain the highest degree of impartiality, and this is in contrary to the obligations of a party-appointed Surveyor under Section 10(1)(b): ‘party-appointed surveyors are primarily responsible to their own appointing owners. Unlike the agreed surveyor and the third surveyor they do not therefore appear, as individuals, to be subject to an obligation to act impartially between the parties’ (Chynoweth 2001) It should be noted, in theory at least, that the Agreed Surveyor is required to Act more impartially than a Surveyor who is appointed under Section 10(1)(b). This is because the responsibility of the Agreed Surveyor is greater, in that he is acting on behalf of both parties. It can be understandable why in some cases, an Adjoining Owner does not wish to concur in the appointment of one surveyor. An example of this could be where the surveyor is the Building Owner’s architect, and whilst the Act allows such an appointment and many Architects administer the Act competently, there can be a perceived conflict of interest in the sense that the Architect may be motivated to enable the work to the detriment of the Adjoining Owner. The Act therefore protects the Adjoining Owner in this respect, allowing him to appoint a Surveyor of his choosing to act on his behalf.
Appointments cannot be rescinded, and there is the loss of a tribunal if the parties proceed by way of a single surveyor. They lose the disadvantage of having the safety net of a Third Surveyor, and they have nowhere to go if they are unhappy with the Agreed Surveyor’s conduct. The Act does provide some safety mechanisms for the parties to the dispute, for example, Section 10(3)(a) allows the proceedings for settling the dispute to begin de novo if the Surveyor refuses to Act. Unfortunately, knowledge of the Act is required to understand these rights, and the parties to the dispute may not know that these rights exist.
2.9 Identification of the reasons that make the Act effective The primary reason why the Act is effective is due to the machinery of Section 10 which sets the framework for settling disputes. There is little case law so this reflects well on the Act and indicates that it is working (Hearsum 2016).
The reason the Act is working is because Surveyors take a pragmatic view and settle disputes in a sensible manner (Ainsworth 2000).
The Third Surveyor acts as a safety net and adjudicates on points of disagreement between two Surveyors. This mechanism is key as to why the Act is working effectively (Frame 2010). The professional bodies and advice available to Party Wall Surveyors is a unique benefit to this profession and aides the successful working of the Act (White 2018).
2.10 Discussion of the factors that inhibit the effectiveness of the Act There are several factors that have been identified that inhibit the effectiveness of the Act. The conduct of Surveyors is often cited as a reason why the Act fails. Furthermore, but less widely acknowledged, is the unnecessary engagement of the Act when simple written consent would free the Building Owner of having to serve a Notice.
2.11 The conduct of Surveyors The Act literally allows anyone to be a Party Wall Surveyor and Section 20 only excludes ‘the party to the matter’. There may also be a conflict of interest, making an appointment unsuitable. As the Act has such a far-reaching definition of a Surveyor, the quality of the Party Wall Surveyor can vary significantly. Surveyors can act in various ways to reduce the effectiveness of the Act. They can create disputes and subsequently charge inflated fees (White 2018); they can abuse their statutory role by charging unnecessarily high fees (Isaac 2014) and; they can scour planning portals for details of upcoming projects and then send letters to encourage disputes (Frame 2010). This behaviour tarnishes the reputation of the profession (White 2018).
2.12 Appropriate engagement of the Act The Act is described as a ‘straitjacket’ and ‘burdensome’ by Bickford-Smith in Party Walls Law and Practice (2017). It is acknowledged that consent can be given outside of the Act, however, in the absence of a Notice, the Act simply does not apply: ‘NO NOTICE – NO ACT’ (Faculty of Party Wall Surveyors 2017) The case of Bennett v Harrod’s Stores Limited contradicts this widely held view, and it is this section of the article in particular, that challenges long held views of the Act. Furthermore, if such views were cast aside, the Act could include more people who are currently and perhaps needlessly excluded from it. It would ensure that more Building Owners were steered away from the ‘burdensome’ Act. There are disagreements in relation to Section 3(3)(a) of the Act that encourage the needless invoking of the Act.
Section 3 of the Act states: (3) Nothing in this section shall— (a) prevent a building owner from exercising with the consent in writing of the adjoining owners and of the adjoining occupiers any right conferred on him by section 2; or (b) require a building owner to serve any party structure notice before complying with any notice served under any statutory provisions relating to dangerous or neglected structures Section 3(3)(a) authorises a building owner to exercise any right conferred by Section 2 with the consent in writing of the adjoining owners and occupiers. This is confirmed in Bennett v Harrod’s Stores Limited, though it should be noted that the consent needs to be in writing. In the case of Seef v Ho, verbal consent was found to be insufficient.
It is not a criminal offence for the building owner to proceed with work subject to the Act without having served any statutory notice (Bickford-Smith et al 2017). At common law level, there is nothing to prevent an owner of land consenting to trespass and nuisance (Isaac 2014).
There are advantages and disadvantages by proceeding without serving a notice. One advantage is that there is no requirement to give two months’ notice to undertake the work subject to Section 2, so with written consent to proceed from the adjoining owner, the building owner can simply get on with it. Lastly, there is no risk of serving an invalid notice, for example, simply forgetting to date the notice may render it invalid (Bennett v Howell).
There are many surveyors who believe that proceeding outside of the Act means that you are essentially ‘locked out’ out of the Act, and you lose the benefits that the Act can confer. There is a common saying amongst surveyors: ‘No notice, no Act’ (Frame 2010) and it is held that if a building owner has not served a notice upon an adjoining owner, access to the Act is not possible. Surveyors generally agree that if a notice is served, and the adjoining owner consents to the work, there may be a future dispute that arises, for example, an allegation of damage that cannot be resolved between the parties. If a dispute arises, resolution of such a dispute can be achieved through the Act. However, the majority of Surveyors argue that if the building owner failed to serve a notice, and a dispute arises, as the Act has not been ‘invoked’, there is no access to the Act itself. This is not an approach in keeping with the intention of the Act, which is to avoid litigation.
The Act is there to settle disputes with regards to work undertaken in pursuance of the Act. The work is defined in Sections 1, 2 and 6. There is generally the requirement to serve a Notice, but as mentioned previously, Sections 3(3)(a) and (b) allow the building owner to proceed with work in pursuance of the Act without serving a notice.
The fact that the Act explicitly provides these two exceptions is very telling. It indicates that there is an intention to confer upon these exceptions, the full benefits of the Act. When a building owner undertakes work in pursuance of the Act, using the benefits of 3(3)(a) for example, the work, as it is connected to the Act, satisfies Section 10(1) which reminds us that a dispute can ‘arise’ in respect of ‘any matter connected with any work to which the Act relates’. Section 3(3)(a) allows a building owner to ‘exercise any right conferred on him by Section 2’ and Section 2 outlines work to which the Act relates.
The aim of the Act is to reduce litigation (Frame 2010). Many commentators praise the effectiveness of the Act and measure its success by the lack of cases reaching the Courts. It is therefore contradictory that a Surveyor may give advice that essentially encourages litigation i.e. that there is no access to the benefits of the Act without the service of a valid notice. The arguments put forward that the Act is only invoked by serving a notice have been unconvincing. One such argument was the case of Kaye V Lawrence (2010) where Judge Ramsey stated: ‘The 1996 Act provides that the building owner must give notice if he wishes to carry out work under sections 1, 2 and 6. If the matter is not agreed between the parties, the matter has to be resolved by an award of the surveyors or the third surveyor. Unless and until that happens, the building owner cannot carry out the work and then can only carry out the work in accordance with the agreement or the award.’
The case of Kaye v Lawrence was primarily concerned with security for expenses but it did also deal with the idea that the common law rights of the adjoining owner were ‘supplanted and substituted by the provisions of the Act’. When referring to the requirement to serve notices, it is reasonable to expect that Judges will not always refer to the exceptions under 3(3)(a) and (b) and that the context by which such comments are made are set in a context not as relevant to this issue. The aforementioned cases of Bennett v Harrod’s Stores limited and Seef V Ho are more relevant to the issue of consent and the subsequent requirement to serve notice.
Going back to the point that Section 3(3)(a) allows a building owner to ‘exercise any right conferred on him by Section 2’, it should be noted that Section 2(2) outlines the building owner’s rights, for example 2(2)(a) to underpin, thicken or raise a party structure, or even 2(2)(j) which rather intrusively allows the building owner to cut into the adjoining owner’s building in order to insert flashing. Sections 2(3), 2(4), 2(5), 2(6) and 2(7) place restrictions on the building owner, for example, with regards to 2(2)(j) where a building owner exercises his right to cut into the adjoining owner’s building to insert flashing, Section 2(6) states: The right falling within subsection (2)(j) is exercisable subject to making good all damage occasioned by the work to the wall of the adjoining owner’s building.
So, a building owner who has received written consent in line with Section 3(3)(a), and exercises his right under section 2(2)(j) by cutting into the adjoining owner’s building to insert flashing, still has an obligation under Section 2(6) to make good all damage occasioned by the work. It is understandable that when undertaking work, disputes can arise. This can happen regardless of whether a notice has been served. There is yet to be a convincing argument put forward that successfully excludes a building owner from the Act if he has not served a notice.
Despite obtaining written consent under 3(3)(a), the building owner is still referred to as ‘the building owner’ and the Act defines a building owner as follows: “building owner” means an owner of land who is desirous of exercising rights under this Act. If there is an acknowledgement that the building owner is exercising his rights under the Act, it would make sense that he has access to the machinery of the Act, in the event of a dispute arising. Despite not serving a notice, the building owner can still undertake work in pursuance of the Act, and Section 3(3)(a) provides for a legitimate course of action whereby the building owner can obtain the consent, in writing, of the adjoining owner to undertake work in pursuance of the Act.
By taking this course of action, the building owner and the adjoining owner are not waiving their rights under the Act. They are merely agreeing that the work can go ahead though this is on the basis that if a dispute arises, it can be resolved by appointing surveyors to deal with it under Section 10 of the Act. It would be illogical if a well-meaning adjoining owner was put at a disadvantage just because he wished to consent to the work subject to the Act. It would also go against the intention of the Act, which is to ‘enable’ work and resolve disputes with a view to reducing litigation.
Accepting the value of consent under 3(3)(a) and embracing the Act in the event of a dispute arising, serves the dual purpose of both enabling the work with little fuss, and, giving both parties peace of mind that in the event of a dispute, litigation is not the only option. This interpretation is also in the spirit of the Act.
It would be perverse if the Act were to punish adjoining owners (by way of exclusion) who are well-meaning and wish to consent to the building owner’s work. Legitimate disputes may arise, and both parties can expect to have access to The Party Wall Act. It is for the surveyors to then identify the work subject to the Act, and to then resolve the dispute. When the adjoining owner consents to work, he does not necessarily consent to damage or inconvenience, and these contentious issues can often arise unexpectedly. Both parties can benefit from engaging with surveyors to resolve their dispute and maintain neighbourly relations.
2.13 Recommendations to improve the Act There are very few concrete recommendations that seek to improve the Act. Whilst criticism of the Act is common, few Surveyors and Solicitors find appropriate solutions (P&T 2016)
2.14 Ambiguity of the Act – an Amended Act? An amendment to the Act would be an opportunity to clarify the points which are unclear. This would include clarifying successors in title; definition of special foundations (though case law has recently defined this) and; the extent to which Notices need to be served on multiple owners. A discussion should be had where further ambiguous areas are identified and remedied (White 2018).
2.15 The ineffectiveness of Section 10(1)(b) – a solution? It is a failure of the Act that Agreed Surveyors are not more widely used. The Act intended that such an appointment would be encouraged, however there is clearly a lack of incentive to proceed on this basis, and this, combined with a lack of trust by the general public, serve to ensure that this aspect of the Act is not working as effectively as had been intended. By way of an improvement, an amendment to the Act can be put in place whereby if an Agreed Surveyor is appointed, the two parties can also agree upon a reserve Surveyor who in certain circumstances can intervene in a way that avoids the process beginning de novo. This could encourage the uptake of Agreed Surveyor appointments and provide a safety net in the event an Agreed Surveyor is acting improperly. It may also ensure that the Agreed Surveyor acts to a higher standard, if there is the prospect of his replacement (Frame 2010).
2.16 Education Education of Party Wall Surveyors is fundamental to ensuring the Act works effectively. This can be done via various means, such as self-learning; gaining professional experience; attending seminar and forums; joining the Faculty of Party Wall Surveyors and’ completing CPD. A drive in standards is required, and whilst some Surveyors lean towards tighter regulation, this may have adverse consequences, affecting the impartiality of a Surveyor. There may be other ways of driving up standards, and it is in the interest of all Party Wall Surveyors that they have a high degree of understanding so that they may effectively administer the Act (White 2018).
2.17 Summary Review of the current literature confirms that there is further information required in relation to the performance of the ‘Act’. ‘The Party Wall Casebook’ by Paul Chynoweth was published in 2003 and is significantly outdated. There are several books by party wall surveyors and solicitors though many are equally outdated. These include Anstey’s ‘Party Walls’ published in 2005 and ‘The Practical Neighbour Law Handbook’ by Alistair J Redler (2006).
There is little literature on the subject of the effectiveness of the Party Wall Act. There tends to be two types of contributors: Party Wall Surveyors; and Party Wall Solicitors. Books written by Solicitors such as Matthew Hearsum and Nicholas Isaac will often summarise cases and identify precedents, whilst books written by Party Wall Surveyors give opinions on the workings of the Act. Philip Antino, Alex Frame and Michael White, all practicing Party Wall Surveyors, are very vocal in their books with regards to the conduct of Surveyors and their perceived failings of the Act.
It is both a strength of this article and a significant challenge that there is little literature that considers the effectiveness of the Act. There are passing comments in books that allude to an author’s views on the effectiveness of the Act but generally, the books tend to stick to defining the Act and explaining its mechanisms.
There are very few recommendations that seek to improve the effectiveness of the Act. Alex Frame’s suggestion is a good starting-point, though this could lead to further disputes and unintended consequences. Michael White asks several questions: Does there need to be greater regulation among Party Wall Surveyors? Is it possible to restrict the ability to be appointed to those that can prove a level of ethics and competency?
Could there be any means of control over those that look to abuse the process? Whilst Mr White asks these questions, he does not provide workable answers, and this is where the difficulties lie – it is easy to criticise the Act and ask searching questions, yet finding solutions is a wholly different business.
3.0 Conclusion and Recommendations 3.1 Introduction This article sought to answer the question ‘is the Party Wall etc. Act effective?’ and whilst literature was studied, there are still key questions that remain unanswered. This section of the report looks at whether the Hypothesis has been adequately tested; reviews the objectives; summarises the findings and; provides recommendations for future research. The Party Wall Act is effective, but there is clear room for improvement and more information is required to further ascertain how the Act is performing.
3.2 Has the Hypothesis been Sufficiently Tested? The hypothesis has not been sufficiently tested - there is far more rigorous testing that can, and should, be applied. The scope of this article was limited, and more intense testing was not possible. A reminder of the hypothesis: “The Party Wall etc. Act 1996 is effective, though it’s effectiveness is diminished by abuse of process and a lack of teeth”
The literature available on the Party Wall Act indicates that the Act is effective and working well. However, in most books, there is an acknowledgement that the Act could work better, and there are numerous references to the ‘abuse of process’ by Surveyors who act in a questionable manner. The hypothesis that the Act ‘lacked teeth’ was not adequately proven. Most books and articles agree that the Act provides a suitable framework to resolve the dispute, so in that sense, the Act works well. Interestingly, further research could be undertaken to test the hypothesis more thoroughly, and the ‘Recommendations for Future Research’ section of this article will take a look at this.
3.3 Review of Objectives This article sets out to answer the question: ‘‘Is the Party Wall etc. Act 1996 effective?’ and in doing so, three objectives were set.
Objective 1 - Critically examine the effectiveness of the Act. This report examined the effectiveness of the Act using primary and secondary information, though further collation of primary data is likely to have assisted in a more thorough examination of the Act.
Objective 2 - Identify the reasons that make the Act effective and the factors that inhibit its effectiveness. This objective was satisfied in that there were numerous factors identified that contributed to the effectiveness of the Act, in particular Section 10 – the dispute resolution process. There were also many reasons identified that inhibited the Act; the conduct of Surveyors was at the forefront of this; the low uptake of ‘Agreed Surveyor’ appointments and; the actions of Party Wall solicitors, to name a few.
Objective 3 - To review current legislation and recommend ways in which the Act can be improved.
It is a fairly simple task to review the current legislation. It is a far harder task to recommend ways in which the Act can be improved. There is significant criticism levelled at the Act, but few practical solutions. There are calls for amendments to the Act, though in reality, few people are able to offer workable improvements.
3.4 Conclusion The Party Wall Act is effective, though there are many areas of concern that diminish its effectiveness. The three objectives have not been adequately tested and the report finds that there is a general consensus amongst Party Wall Surveyors that the Act is working. This report is lopsided in that the information and views expressed are by those who administer the Act - there was no interaction with the general public; architects; builders and other interested parties. The findings may have been very different had interested parties been engaged. The following quotes from members of the public act as a stark reminder that perhaps the Act is not working as well as many in the Party Wall community would imply: ‘The vultures have descended and, as I and previous posters know, you will be the prey / loser’ ‘The party wall act has been designed by party wall surveyors for party wall surveyors. It is actually fairly corrupt.’ The Act is increasingly being questioned by those connected to or affected by it, and there are growing calls for an amended Act to be passed. Those who administer the Act play a vital role in determining its success.
3.5 Limitations of this article Despite the Party Wall Act being a widely used piece of legislation, there is a distinct lack of literature and case law which make assessing ‘effectiveness’ more difficult, though it is argued that lack of case law is a sign of the success of the Act. This article does not identify the extent of compliance with the Act. There is also understood to be a draft amendment to the Act, and sight of this may have benefitted this article further. This article did not engage with all of the interested parties, and instead focused on Party Wall Surveyors. Gathering further data from the excluded parties was considered, however it was found that it would not be possible to paint an accurate picture of their views. The author works in the industry and had access to architects, builders and ‘clients’ making use of the Act, but any questionnaire may simply have reflected their experience of the author’s company as opposed to the Act itself, and thus the information obtained is likely to have been distorted. Compliance of the Act was not measured, i.e. the number of people who proceed with work unlawfully, bypassing the Act. This would be hard to measure as any perpetrator is unlikely to be honest, unless anonymity is given.
3.6 Recommendations for Future Research There are currently no known statistics that show the percentage uptake of the Party Wall Act. Many projects commence unlawfully, without invoking the Act. In terms of measuring performance, it would be interesting to try to get figures that show: · The percentage of projects that commence unlawfully – bypassing the Act · The percentage of disputes referred to the Third Surveyor · Figures showing the number of cases brought before the Courts on an annual basis. These figures can be compared year-on-year to see whether there is a rise in cases. · Feedback from various parties, to establish satisfaction levels. Target groups include: Building Owners; Adjoining Owners; Builders and; Party Wall Surveyors. It would be interesting to see what the public perception is of the Act and, how this compares with Builders and Party Wall Surveyors.
· The research of unethical procedures and their prevalence. This may be tricky, but there are many questionable practices, such as the trading of 10(4) appointments; ambulance chasing; withholding notices and; abuse of process. There is plenty of further research that is recommended that will help to ascertain whether the Act is effective. It is an interesting and relevant topic that affects so many people. 3.7 Final Summary In summary, the Party Wall etc. Act 1996 is effective. There is a consensus that the Act itself could have been better written and clearer in places. The effectiveness of the Act is increasingly being called into questions, and this is shown by the recent increase in cases being brought before the Courts. The Act, designed to reduce litigation, is starting to lose its effectiveness, as arguments are developed and more people questions its workings. An amendment Act has been drafted, and this indicates that there is change in the air, with old practices falling away and new ideas emerging. This may be what is needed to keep the Act relevant.
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