What happens if the adjoining owner’s property is damaged when the building owner carries out his works, but the damage isn’t discovered until much later, after the building owner’s works have been completed?
In this scenario, let us assume that in 2009, the building owner gave the relevant party wall notices and a party wall award was made. The work was carried out in 2009-10 but the damage was only discovered in 2012. For simplicity, there was only one party wall surveyor, the agreed surveyor.
This scenario raises a number of questions:
- What works did the original party wall award provide for?
- What compensation did the original party wall award provide for?
- Can the agreed surveyor make an additional award dealing with the 2012 damage?
- What other rights does the adjoining owner have?
The PWA 1996
A party wall award is made under section 10 of the Party Wall etc. Act 1996 (PWA 1996). It protects both the building owner and the adjoining owner by setting out:
- What works will be carried out.
- When and how the works will be carried out.
- A record of the condition of the adjoining owner’s property before the works begin.
- If necessary, what works will be carried out to the adjoining owner’s property.
- Any other matter, including the costs of making the award and any compensation to be paid to the adjoining owner for any inconvenience, damage or loss he might experience during or as a result of the works (section 7, PWA 1996).
A party wall surveyor’s jurisdiction also comes from section 10. Although it is not expressly referred to in the PWA 1996, there is nothing to prevent a party wall surveyor from making more than one award, should the situation call for it. Indeed section 10(12)(c) allows for an award to deal with “any other matter arising out of or incidental to the dispute”, which is generally understood to cover more than one award, and supplemental awards are relatively common.
What the adjoining owner needs to establish
In our scenario, the adjoining owner needs to establish:
- The cause of the damage and whether the building owner’s works were responsible.
- What works were provided for in the party wall award. For example, depending on the nature of the building owner’s works, in addition to how the building owner’s works should be carried out, the award may have set out the scope of certain works to the adjoining owner’s property or a method of working that would minimise any damage to the adjoining owner’s property. It may also have provided for a final inspection of the adjoining owner’s property by the agreed surveyor.
- Whether the building owner’s actual works went beyond the works authorised by the award. If so, then the building owner will be in breach of the award.
- What compensation was included within the award, which may take the form of “making good” damage to the adjoining owner’s property once the building owner’s works were completed, or may be a money payment in lieu of damages that were anticipated to occur to the adjoining owner’s property.
- Whether the compensation payments were actually made by the building owner. If not, this will also be a breach of the award.
Compensation in a bit more detail
Section 7(2) of the PWA 1996 envisages that compensation may be payable to the adjoining owner “for any loss or damage which may result… by reason of any work executed in pursuance of this Act.” In our scenario, the 2012 damage to the adjoining owner’s property falls within that definition.
There is no time limit in the PWA 1996 regarding the adjoining owner’s claim for compensation. However, one needs to consider whether the agreed surveyor’s jurisdiction has ended, or whether he still has jurisdiction to deal with the “late” claim for compensation.
It is often thought that a party wall surveyor’s appointment comes to an end when the work under the original award has been completed and signed off in accordance with the terms of that award. Indeed, in Selby v Whitbread & Co  1 KB 736 (concerned with the London Building Act 1894), the court stated that party wall surveyors’ jurisdiction was:
“continuous and exclusive… it remains unimpaired until the final adjustment of all questions in difference between the building owners who gave the notice and the adjoining owners who received the notice, and until the operations involved in the notice are concluded.”
However, there is little modern authority on the PWA 1996, and even less guidance on the meaning of “until the operations involved in the notice are concluded”. It is certainly arguable that, despite Selby v Whitbread, the surveyor’s jurisdiction continues because the adjoining owner is seeking compensation for damage that was a consequence of works carried out under a party wall award (section 7 refers to “work executed in pursuance of this Act” and section 10(12)(c) to “arising out of or incidental to the dispute”).
If one relies on sections 7 and 10, then, in our scenario, the agreed surveyor will have jurisdiction to deal with the adjoining owner’s 2012 compensation claim and issue a supplemental party wall award. In fact, he may be the only person that does have jurisdiction, since the PWA 1996 grants exclusivity relating to the works set out in a party wall award.
Support may also be found in the judgment in Onigbanjo v Pearson. Here the adjoining owner consented to the building owner’s works, but was subsequently able to engage the PWA 1996 in order to recover compensation from the building owner. There seems no reason why, by analogy, the adjoining owner should not be able to engage the Act to deal with subsequent damage or loss. In our scenario, this may involve the adjoining owner going back to the agreed surveyor, rather than starting any new party wall procedures.
What other remedies does the adjoining owner have?
The adjoining owner should not overlook discussing the matter with the building owner, trying to reach an amicable settlement with him. This should be one of the first things the adjoining owner does.
Also, regardless of whether the adjoining owner can rely on the PWA 1996, he has a number of common law remedies available to him, although care needs to be taken to ensure those remedies do not clash with any statutory rights or remedies. For example, the adjoining owner cannot sue for damages in trespass if what would have been trespass by the building owner was made lawful by the PWA 1996 (that is, the works were included in the award). However, the adjoining owner could sue for nuisance because nuisance is usually caused by someone doing something lawful on their own land. Perhaps confusingly, the adjoining owner may have a claim in trespass if the building owner’s works went beyond what the party wall award authorised him to do.
The adjoining owner may also have have a claim against the building owner for:
- Breach of statutory duty, provided the building owner’s works fell within the scope of the works contained in the party wall award (see Crowley t/a Crowley Civil Engineers v Rushmoor Borough Council).
- A payment of money, if part or all of the original compensation remains outstanding. This would be recoverable as a debt.