Overview
Question: A building owner's foundations have already been excavated and cast before the party wall award was made. No damage was observed, and the work was confirmed with building control. Can surveyors still make an award dealing with the completed excavation work?
This is a difficult area and should be approached carefully. In our view, surveyors may still be able to make an award dealing with completed works where they have been properly appointed, there remains a dispute under the Party Wall etc. Act 1996, and the award is used to record and regulate matters that still need to be dealt with.
The award should not pretend that notice was served in time or that the work was authorised before it was carried out. It should deal honestly with the position as found.
The practical approach
If excavation work has already been completed, the first steps should be to:
- inspect the adjoining owner's property;
- check whether any damage has occurred;
- obtain and review relevant drawings, photographs and building control information;
- confirm the depth, location and nature of the foundations;
- consider whether any remaining matters still need to be determined.
If no damage has been caused and the foundations have been properly constructed, an award may be used to record the position, deal with costs and reserve jurisdiction for any later issue arising from the work.
Relevant case law
The older approach in Louis v Sadiq is often cited for the proposition that surveyors cannot simply validate unauthorised works after the event. Rodrigues v Sokal is generally treated as showing that the position is more practical and fact-sensitive, particularly where the works have been inspected, no damage is evident and there remains something for the surveyors to determine.
The important point is that a retrospective award should not be used as a fiction. It should not rewrite history. It should record the facts and deal with the consequences that fall within the surveyors' jurisdiction.
What should the award say?
A sensible award should:
- explain that the works had already been carried out before the award was made;
- refer to the inspection and any building control confirmation;
- record whether damage was observed;
- deal with the surveyors' reasonable fees;
- preserve the adjoining owner's position if later damage is identified;
- avoid language suggesting the work was authorised before it happened.
Conclusion
A retrospective award may be justified where there is a valid dispute, no damage is found and the surveyors still need to determine matters arising from the works. However, it should be drafted carefully. It should regularise what can properly be regularised, without pretending the Act was followed before the works took place.