Did you realise that there are a multitude of different types of surveyors? Not just the usual suspects such as land surveyors (those standing by the side of the road in high-vis jackets with theodolites) and quantity surveyors (the “brick counters”), but also arts and antiques surveyors, machinery and business assets surveyors, and so on. Some surveyors even go on to specialise within their particular area. This may not be the most exciting start to a blog but bear with me.
Anyway, the different types of surveyors got me thinking about which roles (in addition to quantity surveyors) could be caught under the heading “surveying work” in section 104(2) of the Construction Act 1996 or, for that matter, any other part of section 104. Establishing whether a role comes within the Act can be important to surveyors wanting to exercise their rights under the Act. For example, their rights in relation to payment or suspension, or to employers wanting to pursue professional negligence claims against surveyors via adjudication.
Contract administrators, project managers, employer’s agents, and so on
These are roles often undertaken by building surveyors and quantity surveyors and, in my view, could be considered “surveying work”. We know from Gillies Ramsay Diamond v PJW Enterprise Ltd that the role of the contract administrator also falls under section 104(1)(b), “arranging for the carrying out of construction operations by others”. I see no reason why this wouldn’t also catch project managers and employer’s agents.
Project monitoring surveyors
For those of you unfamiliar with this role, a project monitoring surveyor is commonly appointed by a bank or other funding institution to advise on the risks of acquiring an interest in a development, and then monitoring the development, approving draw-downs from the funding and the like. Until recently this was perceived by some in the industry as a relatively low risk role. However, as a result of many developers becoming insolvent from 2008 onwards, claims against these surveyors are now much more commonplace as banks seek to recover their losses.
Will such a role be caught by the Construction Act 1996?
I don’t think that an analogy can be drawn with Gillies Ramsey Diamond because the project monitoring surveyor is not directly involved with the administration of the works. It is certainly arguable that the project monitoring surveyor falls under the definition of “surveying work”: it is work undertaken by a surveyor advising on matters such as development budgets, the value of works undertaken, and so on. It could also fall under section 104(2)(b) which includes providing “advice on building”. After all, the project monitoring surveyor is advising the bank or funder regarding the building.
Party wall surveyors
I’ve heard it said that the work undertaken by party wall surveyors does not come within section 104 because they are appointed to undertake statutory duties imposed by the Party Wall etc. Act 1996. However, the party wall surveyor is nevertheless appointed under an agreement to carry out “surveying work” or “advice on building”, so it is certainly arguable that they come within section 104. Whether they do come within the Act is another matter and, while I don’t think this has been tested by the courts, I understand the RICS’ guidance note on party walls is silent on the point.
The role of CDM co-ordinator is quite often undertaken by surveyors and, like party wall surveyors, this role is also a creature of statute. However, I don’t think that the role could be considered “surveying work” and it might be stretching it a bit far for it to be considered providing “advice on building”. The fact that section 104 does not refer to health and safety may mean that the CDM co-ordinator is impliedly assumed to be excluded.
Building surveyors are often appointed to prepare interim or terminal schedules of dilapidations for leasehold properties. Such appointments are unlikely to be considered agreements to do “surveying work” relating to “construction operations” because the purpose is to identify disrepairs under a lease, and construction operations might well not result.
However, what if the landlord or tenant undertakes the works set out on the schedule? In that case, it may well depend on the wording of the surveyor’s appointment, but it could be that this part of the appointment relates to construction operations and therefore falls within section 104.
Surveying work in connection with construction disputes
We know from Fencegate Ltd v James R Knowles Ltd that services provided relating to disputes by way of expert witness work, or advice or acting as a witness of fact does not fall within section 104.
There may be occasions where part of an appointment constitutes a construction contract under section 104 and part does not. If disputes under such appointments are referred to adjudication then the adjudicator will not have jurisdiction to deal with the whole of the dispute referred, but will have jurisdiction to deal with that part of the dispute which constitutes a construction contract (Cleveland Bridge (UK) Ltd v Whessoe-Volker Stevin Joint Venture).