The Party Wall etc. Act 1996 is designed to provide a clear framework for resolving disputes that arise when building works affect shared walls, boundary walls, or excavations near neighbouring properties. While the intention behind the Act is commendable, Section 10(4) has come under scrutiny for being susceptible to misuse. This section, which addresses the appointment of a surveyor on behalf of a party which has refused or neglected to respond to a request to appoint a surveyor, is particularly vulnerable to exploitation. This article explores some of the ways in which Section 10(4) can be abused, highlighting the urgent need for reform.
Section 10(4)
Section 10(4) of the Party Wall Act allows one party to appoint a surveyor to act on behalf of the other, to allow a dispute to be settled under section 10 of the Act. This is a powerful piece of the Act, with far-reaching implications to both parties.
Section 10(4) If either party to the dispute –
The other party maymake the appointment on his behalf.
There can be different ways to arrive at this scenario:
The Act sorts out all these different scenarios, and more, by allowing the appointment of a surveyor on behalf of the other party.
Lack of Oversight and Regulation
One of the primary issues with Section 10(4) is the lack of oversight and regulation in the appointment of surveyors. The Act does not specify the qualifications or experience required for surveyors, nor does it provide a robust mechanism for monitoring their conduct. This gap allows for the appointment of surveyors who may not be adequately qualified, potentially leading to biased or incompetent decisions. Without stringent oversight, unscrupulous parties can exploit this lack of regulation to appoint surveyors who may favour their position. This issue is not restricted to appointments under section 10(4) but it is likely to concern the public that an inappropriate individual may be appointed on their behalf.
Potential for Collusion and Bias
The process for appointing the third surveyor is particularly vulnerable to collusion and bias. Since one of the surveyors, or the party themselves, choose the surveyor, there is a significant risk that this individual could be chosen based on personal relationships or prior agreements, rather than impartiality and expertise. This can lead to biased decisions that unfairly benefit one party, undermining the fundamental principles of fairness and neutrality that the Act seeks to uphold.
In Property Supply & Developments Ltd v Verity, the President of the Faculty of Party Wall Surveyors, Alex Frame, appointed under section 10(4) the vice President of the Faculty of Party Wall Surveyors, Steven Campbell, and they selected a Director of the Faculty of Party Wall Surveyors as the Third Surveyor, Alan Bright. The issue here is one of perception. Do these actions instil confidence in the process?
The Third Surveyor issue
What happens if the two surveyors make a referral to the Third Surveyor?
Firstly, it is unlikely to happen. If we look back at Property Supply & Developments Ltd v Verity, it is unlikely that the President and the Vice President of the Faculty of Party Wall Surveyors would make a referral to their fellow Director – it would have been an uncomfortable situation for all involved. The point here, is that when appointing a surveyor under section 10(4), the surveyor choosing their counterpart for the appointment is likely to select someone with similar views to their own. This is perfectly reasonable, as clearly a professional and ethical surveyor would want to have a counterpart of similar ilk.
The Third Surveyor issue lies in the fact that an adjoining owner may have to pay the costs associated with a losing referral, because a surveyor who they didn’t appoint acted unreasonably. Should the adjoining owner be put to costs? Should the adjoining owner be liable for the actions of a party wall surveyor chosen by the building owner / building owner’s surveyor? The Third Surveyor is at liberty to apportion costs as they see fit, and ordinarily, if the adjoining owner’s surveyor loses the referral, the adjoining owner would be liable for costs. At the very least, this has to make people uncomfortable, and it is hard to find another comparable example whereby liabilities are forced onto them.
Limited scope for dispute resolution
A 10(4) appointment is made when one party ‘refuses’ or ‘neglects’ to appoint a surveyor following service of a request giving them ten days to do so. This is mostly the adjoining owner, who having received a notice and then a request, refuses or neglects to appoint a surveyor.
A surveyor appointed under section 10(4) ideally should reach out to the party that they are acting on behalf of. This may sound obvious but in Property Supply & Developments Ltd v Verity the Judge stated ‘I note in passing that it is an unfortunate feature of the facts of this case that after Mr Steven Campbell accepted appointment by Mr Frame on behalf of the building owner, he did not trouble to make any contact whatsoever with the building owner before making an award. In this regard Mr Campbell could doubtless point to the fact that the Act does not expressly require a surveyor appointed on behalf of either party to be in communication with the party concerned but it would be surprising if by failing to put in an express requirement to that effect, parliament was intending to encourage surveyors to have no regard whatsoever to their appointing party, even where that party is only nominally the appointing party. Mr Campbell’s behaviour in this regard cannot have helped progress matters in a positive way.’
A lack of contact can come about because the surveyor is not proactive in reaching out to their appointing owner, or because there are simply no means of contact i.e. an absent freeholder. The lack of contact can also be because the appointing owner does not want to engage with the process or their surveyor.
This can serve to limit what a surveyor appointed under section 10(4) can achieve. To what extent can the surveyor define and settle the dispute? In ordinary cases, for there to be a dispute, it is on the basis that there is a disagreement, a rejection of a position, an argument. Without any of this, the surveyor may be in a difficult position.
Does the surveyor drive the dispute? Alternatively, should the surveyor agree an award with minimal fuss?
The limited scope for dispute resolution often comes about because the surveyor has to second-guess their appointing owner’s concerns. Decisions are made with limited information and to some extent blindly. Quite often, surveyors are unable to get access to the adjoining owner’s property, and this could give rise to the surveyors missing things.
There are further limits, in terms of what the surveyor can achieve. For example, a request for security for expenses must come from the adjoining owner, not the surveyor appointed on their behalf.
Monitoring may not be permissible as it is a form of surveillance, and it requires accessing the adjoining owner’s property. A surveyor may feel unable to offer their appointing owner that safety net without first obtaining their consent, and yet the surveyor could be criticised for not properly safeguarding their appointing owner’s property.
The lack of contact with the surveyor and their appointing owner will limit what any award can achieve.
Conclusion
Section 10(4) of the Party Wall etc. Act 1996, while well-intentioned, is fraught with vulnerabilities that open the door to abuse.
An unqualified and entirely unsuitable person can be appointed on behalf of a party that fails to respond to a request under section 10(4) to appoint a surveyor. The ability of that surveyor to settle the dispute is inhibited by the lack of contact between the surveyor and their appointing owner. Having one party appoint a surveyor on behalf of the other is open to abuse, with inappropriate appointments made, and to rub salt into the wound, the party on which the appointment is forced upon, can be found liable for their surveyor’s conduct.
To protect the integrity of the dispute resolution process, it is imperative to reform Section 10(4), introducing stricter regulations, clearer guidelines, and more robust oversight mechanisms. Only through such reforms can the Act truly fulfil its purpose of fair and impartial dispute resolution.
This article was written by Ben Mackie.
I’m Ben Mackie, the founder of The Party Wall Collective. I am a Chartered Construction Manager, a member of the Pyramus & Thisbe Society, a member of the Faculty of Party Wall Surveyors, and an accredited mediator. I have over 10 years’ experience handling party wall matters.
I’m a family man, with an amazing wife and three young children. I love writing, and telling stories, especially to my children, but sometimes to my wife!
I have written children’s stories, a novel, and I am also doing a London Street Art book which I plan to donate to the charity Shelter. Have a look below at some of the images I have captured, walking around London between my party wall appointments!
I have also produced a couple of Party Wall books working with the most respected people in the game, whilst ensuring these books are available to the public for free.
I love to travel and have been to some places that I never thought possible, including the Antarctic, the Galapagos and Southend.
I love to cook. My masterpiece is my egg shakshuka. I make it with smoked paprika, halloumi, Spanish Chorizo and tinned cherry tomatoes, Greek yogurt and about 10 more ingredients!
I enjoy playing the guitar and Sitar, as well as singing badly.
I value imagination, originality, and differences.
Learn more about Ben and his services at the Party Wall Collective HERE
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