HHJ Lethem in the Central London County Court upholds third surveyor award that the adjoining owner cannot request what health & safety provisions will be put in place. ’….that the Adjoining Owner is not entitled to seek details of the health and safety proposals for works to set in flashings and weatherings.’
The works: to carry out a loft conversion, requiring steel beams, flashings to be cut into the party wall and repairs to the party wall following removal of the chimney stack. Works had commenced prior to the award being put in place as the BO commenced work causing damage, exposing the adjoining occupants to falling debris, trespass and providing no form of H&S measures. An injunction was granted March 30th 2021 and is till in force at the time of writing.
This was an award made by Alan Bright FFPWS FRICS MCIArb of Alan Bright Associates in his capacity as the selected third surveyor following a referral by the the building owners’ surveyor, Syed Waseem of Civils Consulting Ltd.
Alan Bright is a director of the Faculty of Party Wall Surveyors https://fpws.org.uk/directors/ is this a FPWS policy that an AO is not entitled to know what H&S measures are to be put in place when the BO intends to carry out work alongside the AO’s sloping roof, whereby debris, bricks, tools etc. can (and debris has fallen) fall into the AO’s garden exposing the occupants to life threatening situations. In effect the AO is now a prisoner in her own home.
I’ve made some comments about an award made by the third surveyor Alan Bright which was the subject of an appeal, items in the award were subsequently conceded by the BOs legal team, such as payment of legal costs relating to party wall advice from the AO’s legal adviser, however, one issue was the request for the BO to provide details of what H&S measures would be put in place. Mr Bright conveniently restricted this to ‘weatherings & flashings’ however, there was brickwork to be infilled i.e. repairs to the party wall above the adjoining owner’s sloping slate roof that posed the biggest danger - Mr Bright ignored this despite having visited the site. The BOS asked Mr Bright to enjoin with him ‘to serve the flashing/weathering award’ notwithstanding that there were other works. In his referral BOS stated he would make a submission but did not, Mr Bright said he would invite submissions but did not, he just went straight to an award without enjoining with the BOS.
In the appeal HHJ Lethem said that had he been the 3S he would not have awarded that the AO has no right to seek what H&S measures would be put in place but nonetheless, very sympathetic to the AO, said he would not amend or rescind the award as it was the 3S’s decision. I am hoping to get a a copy of the decision to confirm this. The situation is now quite bizarre.
The difficulty in coming to terms with this decision is that the AO was granted an injunction to stop the works as works had commenced prior to the award being agreed and debris was falling onto the AO’s property as a result of a total disregard for H&S etc. etc. In granting the injunction Her Honour Judge Boucher instructed the AO’s solicitor to immediately notify the HSE as result of the H&S issues.
The BOs claim that they do not require access to the AO’s property to repair the brick parapet wall or to install the flashings. I find this somewhat strange as it is like closing a door to a room and trying to work on the other side of the door. However, if a method statement had been supplied as requested then the matter would have be resolved one way or another. The dormer is constructed against the party wall.
Proposed amendment to the BOSs’ draft award put forward by Lee Kyson (AOS)
Prior to recommencing the works the contractor is to submit method statements for the following:
1. as to what health and safety measures will be put in place to protect the
adjoining owner’s property from falling debris and to complete the remaining
works without causing damage to the Adjoining Owner’s property.
2. how the contractor intends to remove debris from the adjoining owner’s roof.
Such method statements to be approved by the two surveyors, such approval will
not be unreasonable withheld.
It should be noted that the remaining works did not just relate to ‘weatherings & flashings’.
The above was (sort of) referred to Mr Bright by Syed Waseem (BOS)
Dear Mr Bright,
Please take this email as formal confirmation of the matter being passed over to you for determination.
I attached the following documents:
1. My appointment letter
2. Notice
3. Drawings
4. Draft Award which Mr Kyson refused to sign
I will prepare a submission for your consideration. However, very simply I would like you to adjoin with me in order to serve the flashing/weathering award.
I was not given the opportunity to make a submission. You can read Mr Bright’s award and reasoning below.. however, some points which I believe are relevant:-
Mr Bright’s award creates more problems than it solves…
1. Mr Bright has awarded the works for weatherings and flashings to be carried out but not repairs to the party wall.
a. I AWARD works under 2(2) (f) and 2(2) (j) for weatherings and flashings and that the Adjoining Owner is not entitled to seek details of the health and safety proposals for works to set in flashings and weatherings. However, the current notices do not properly cover 2 (2) [a] and 2 (2) [k], the elements of work undertaken in breach of statutory duty to serve notice.
Mr Bright awards the works under 2(2)f + j, for which a notice had been served; then goes on to say
On this basis, is there a need for an award to be made by the two appointed surveyors? Albeit, given the wording of s10(10), I do not believe that a 3S can award works that are the subject of the primary award and especially when they are not in dispute per se. However, as far as I am aware, his award has been upheld on this aspect. How can an award made by the 2 appointed surveyors, as required to lift the injunction, deal with a matter already dealt with by the 3S?
Furthermore, the restriction with regard to seeking details of H&S proposals has been narrowly focused to the weathering & flashings, therefore, other notifiable works are still at large with regard to H&S as these were not included in his statement i.e. as proposed in the draft award ‘..to make good repairs to the party wall’. The repairs to the party wall were the main H&S issue and a considerable concern.
2. My understanding is that Mr Bright appears to imply that the dormer wall falls under s2(2)a, however, s2(2)a by its wording relates to an existing wall being raised
a. to underpin, thicken or raise a party structure, a party fence wall, or an external wall which belongs to the building owner and is built against a party structure or party fence wall;
IMHO, this would suggest the wall must already be in place as it is built against an existing structure and not a new wall being built in its entirety. Mr Bright was not asked to determine this matter by anyone. BOS served notice under section 2(2)b as repairs to the party wall would be required due to the removal of the chimney stack. I’m not sure where ‘raising the party wall comes into effect.
3. Mr Bright also states the current flashing design that he has in effect awarded, is not sufficient and must overlap over the party wall i.e. encroach over the LoJ. This is paradoxical because he has awarded it without restriction, which must mean in accordance with the drawing supplied. How can he award works that he was not asked to award in isolation and at the same time award the works that he deems are not sufficient. In essence ‘I award works that are insufficient..’ section 10(10) requires that any two of the three surveyors make an award that is in dispute between the owners. BOS asked Mr Bright to enjoin with him in making an award, not make a one paragraph award for the primary works in isolation - which were not in dispute. The installation of ‘weatherings & flashings’ was not a matter in dispute and was not referred to Mr Bright as a disputed matter. AOS simply asked for what H&S proposals would be put in place, the right to carry out the works was not in dispute. Mr Bright stated the proposal was not appropriate without asking how they intended to carry it out.
4.How can he award works under s2(2)f+j and then say that a s2(2)k notice is required for the same works? by his own admission, he says the works cannot be lawfully undertaken as a s2(2)a notice hasn’t been served for raising the party wall. I am not aware of any intention to raise the party wall, just carry out repairs. He has awarded works prior to a notice being served. BOS subsequently served notice for works Mr Bright had in effect already awarded…??
5. The clause put forward by AOS was relating to legal fees was (Onigbanjo)
THAT the Building Owner shall on the service of this Award pay the Adjoining Owner's Costs by way of her Solicitor's fees in the sum of £500 + VAT in connection with advice provided in relation to the notifiable works and this Award.
I have no idea why Mr Bright related this to the injunction given the clear wording of the proposed clause…. did he really expect legal costs for an injunction of £500??
6. Mr Bright states the extensive loft conversion was ‘DIY’, this was rejected by the court. I believe the CA decision in Douglas Alexander Alcock v 1) Mr. Wraith T/a M & P Builders 2) J.T. Swinhoe and Susan Swinhoe removes any notion of notifiable works falling under the category of DIY.
In the present case work had to be done on the division between the properties at roof level. Mr. and Mrs. Swinhoe had the right to interfere with the joint between the two roofs and, because of its structure, to intrude slightly on to the slate roof of Mr. Alcock's house. But if they exercised this right they were under a duty, as I see it, to see that reasonable skill and care were used in the operation. Moreover, this duty could not be delegated to an independent contractor. In this context I can see no satisfactory distinction between interfering with a party wall or with a floor on the one hand and interfering with the edge of a contiguous roof on the other hand. In each case the work involves the risk of weakening or damaging the structure of the neighbouring property. Furthermore, the risk of damage to the adjoining property is even greater where, as here, the interference involves the removal of a small part of the neighbouring roof.
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