The short answer
Where excavation has already been done before an award, surveyors may still be able to make an award dealing with the completed work, provided they were properly appointed, a dispute remains under the Act, and the award records and regulates what still needs dealing with. It must not pretend notice was served in time or that the work was authorised before it was done.
Why it matters
A retrospective award must deal honestly with the position as found, not as a fiction that rewrites history. The older approach in Louis v Sadiq is cited for the proposition that surveyors cannot simply validate unauthorised works after the event; Rodrigues v Sokal is generally treated as showing the position is more practical and fact-sensitive, particularly where the works have been inspected, no damage is evident, and something remains for the surveyors to determine. The award should record the facts and deal with the consequences within jurisdiction.
What to do now
- Inspect the adjoining property and check for damage.
- Obtain and review drawings, photographs and building control information, and confirm the depth, location and nature of the foundations.
- If no damage and the foundations are properly built, use the award to record the position, deal with costs and reserve jurisdiction for any later issue.
- Draft so the award explains the work was already done, refers to the inspection and building control, records whether damage was observed, deals with fees, preserves the adjoining owner’s position, and avoids any suggestion the work was authorised beforehand.
Common mistakes
- Using a retrospective award as a fiction to validate unauthorised work.
- Drafting language implying the Act was followed before the works.
- Failing to reserve the adjoining owner’s position on later-discovered damage.
When to call Coburns
If excavation has been done before an award, send us the details and we will advise whether a retrospective award is appropriate and how it should be drafted.