The Surveyor's Role?
Although the 1996 Act is almost two decades old, it has been comparatively slow in coming to the attention of the public and building professionals, whilst the wording of the Act provides little indication as to the exact nature of the surveyor’s role.
The purpose of the governing Legislation is to facilitate construction operations near property boundaries. One way in which this is achieved is by granting rights to property owners to undertake work to land or structures on their neighbour’s side of the boundary line. Under the Act owners are for example entitled to erect scaffolding on neighbouring land, to cut a flashing into a neighbour's building and to even forcibly access neighbouring land in order execute work pursuant of the Act.
The surveyors’ role, and the nature of the disputes they are empowered to settle, must be viewed in this context. In permitting work on a neighbour's land Parliament has taken the unusual step of authorising an interference with private property rights. Within the English legal tradition this can only be justified by granting appropriate safeguard for those whose rights are being affected. This safeguard takes the form of the appointment of the surveyors to watch over the process of the offending works.
The conventional view advocated by practitioners in the Pyramus & Thisbe Club, and by leading author of the Faculty of Party Wall Surveyors (Frame, 2007), and supported by older court cases (Hannaford and Stephen, 2006) under former London Acts, is that surveyors should act impartially in their dealings between the parties to a dispute with reference made to surveyors acting as arbitrators. In Gyle-Thompson v Wall Street (Properties) Ltd [1974] Brightman J noted that:
"....the Act.... give[s] a building owner a statutory right to interfere with the proprietary rights of the adjoining owner without his consent and despite his protests. The position of the adjoining owner, whose proprietary rights are being compulsorily affected, is intended to be safeguarded by the surveyors appointed pursuant to the procedure laid down by the Act."
There is a clear general understanding and agreement that surveyors perform a statutory function rather than acting as agents for those who appoint them. Chynoweth (2003) refers to the appointed surveyors, whose primary role is to control the conduct of construction works during the project in such a way that the parties' conflicting rights under the legislation are balanced.
The successful performance of this role therefore requires the party wall surveyor to diligently apply specialist construction knowledge to the situation and to do so equitably between the parties. It is submitted therefore that the three primary responsibilities of the surveyors can be described in terms of those identified by Chynoweth (2003), namely, to take due care, to proceed diligently and to act impartially.
As a practising building surveyor, it has come to the author’s conclusion that while chartered surveyors do not require the breadth of legal understanding held by their counterparts in the legal profession, when it comes to the party wall matters however, there is a need for a similar breadth of legal knowledge when it comes to party walls.
For existing and aspiring Party Wall practitioners in the first instance let the 1996 Act be your guide. It is surprising how many Surveyors I have met that have not taken the time to familiarise themselves with the Act they are tasked to invoke. Whereas an air of contention arises between surveyors, it should be a holster draw for imminent guidance.
For Home Owners, Developers & Social Housing Clients the option for compliance is far more straightforward.
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