This post has emerged following a phone call this morning.
Party Fence Wall/Fence in place – no dispute exists. Notices served, surveyors appointed, award in place, extension built by Building Owner on Party Wall.
A year later Building Owner places fence in line with outer edge of extension which the Adjoining Owner claims is not the original boundary – Has a nuisance or trespass arisen?
Thompson Schwab v. Costaki  1 W.L.R. 335,
“A private nuisance may be and usually is caused by a person doing on his own land some thing which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend onto the land of his neighbour by (1) causing an encroachment on his neighbours land, when it closely resembles trespass. (2) causing physical damage to his neighbours land or building or works or vegetation upon it, or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.”
From the adjoining Owner’s point of view undoubtedly and from the Building Owner’s point of view not.
Do the surveyors have jurisdiction to award in this matter?
(10)The agreed surveyor or as the case may be the three surveyors or any two of them shall settle by award any matter—
(a)which is connected with any work to which this Act relates, and
(b)which is in dispute between the building owner and the adjoining owner.
It would be a very slipshod reading of the above which would determine otherwise even when arguing from gradable adjectives:
What does the gradable adjective connected mean? To join one or more things together”
What does the un-gradable adjective connected mean? – “considered as related in some way to something else”
Do the surveyors have the information required to make the award? (Welter-v-McKeeve-27th-November-2018) – as they should have carried out a Schedule of Condition they should have.
What can prevent the surveyors proceeding if called upon by the adjoining owner?:
Nb If they refuse to act outside of the above are they are at risk of a claim in negligence and/or a professional complaint being made in respect of the same? A bullying owner, with money, will, via their lawyers, certainly attempt to convince them of such and would cower many a Party Wall Surveyor lacking in Education, Experience, Ethics, professionalism and courage into compliance of their will. However I detract and am straying from the matters in front of me.
If Parliament had intended the jurisdiction of the surveyors to be limited pedantically to the work within the notices served the act it would have been a very straightforward matter for Parliament to have made such a provision, and it did not.
Also It is to be noted, I repeat, that a party wall award can do something that no court can ever do, that is give authorisation for acts which would otherwise constitute a trespass or a nuisance.
Also But it is important to bear in mind that s.10 (12) provides that an award may determine not only the right to execute work, the time and manner of executing work, but “(c) any other matter arising out of or incidental to the dispute including the costs of making the award.”
That is a wide statutory authority to party wall surveyors to determine matters arising out of or incidental to the dispute. There is also the authority given by The Act to the party wall surveyors to make an award compensating any adjoining owner “for any loss or damage which may result to them by reason of any work executed in pursuance of this Act”. That, it seems to me, properly construed, provides that a party wall award may include compensation for an adjoining owner for works carried out, including works which were carried out before the making of an award but which are retrospectively authorised by the award.
As already noted the fact that a trespass has been committed by building works does not preclude the making of an award which retrospectively authorises that Act. The fact that liability for past trespasses is not removed by The Act does not preclude compensation being awarded for acts executed under works which are authorised by an award, even after the works in question, or some of them, have been completed. – J (Judge Bailey – HESHMAT HASSAN BIBIZADEH JANET CATHERINE BIBIZADEH v ANA DODOSH)
But while a court should not hesitate to give a purposive construction to a statute where it is essential to do so, a court must be cautious in its approach and should never give purposive constructions where such constructions are not necessary, particularly when invited to do so to assist an individual party, however worthy of sympathy that party may be. (Judge Bailey – PROPERTY SUPPLY & DEVELOPMENT LTD Claimant -Mr GRAHAM VERITY & MRS JULIE VERITY)
Therefore if I was called upon to settle the matter above as one of the two surveyors or as the third surveyor I would and if there was a weak ineffectual or bullying surveyor on the other side who was refusing or neglecting to act effectively I would go ex-parte
Party Wall Surveyor serving Thanet and London
Third Surveyor serving England and Wales