Gray v Elite Town Management

Section 7(1) of the Party Wall Act 1996 places the obligation not to cause unnecessary inconvenience on the building owner. It concerns the manner and timing of works, not an absolute duty on party wall surveyors to select a design avoiding inconvenience. Surveyors must have due regard to both parties, but do not assume a design obligation towards the adjoining owner. On a second appeal, detailed engineering and factual criticisms ordinarily do not justify permission unless they raise an important point of principle or practice. A surveyor’s appointment may remain valid while recoverable fees are reduced where the surveyor largely follows the appointing owner’s instructions rather than exercising independent professional judgment. A declaration is discretionary and need not be granted where it would serve no useful purpose.

Mr Gray owned 7 Ennismore Mews, adjoining property owned by Elite Town Management Ltd. Elite proposed basement works involving underpinning the party wall. A First Award authorised earlier works, and a later Third Award authorised underpinning under Scheme C.

Following a hearing, the Central London County Court, HHJ Bailey, on 23 July 2015 refused a declaration that the First Award was invalid, dismissed Mr Gray’s appeal against the Third Award, awarded him £1,320 for cracking, and varied the award to provide for payment in principle under section 11(11) of the Party Wall Act 1996 and for part of his surveyor’s fees.

The Court of Appeal considered the scope of section 7(1), the approval of Scheme C, the recoverability of surveyor’s fees, the validity of the First Award, and permission for a second appeal.

The Court of Appeal dismissed the appeal concerning the declaration and refused permission to appeal in the party wall proceedings.

1. Section 7(1). The obligation in section 7(1) of the Party Wall Act 1996 rests on the building owner. It regulates the manner and timing of works after an approved design, rather than imposing an absolute obligation on surveyors to authorise an alternative design which would avoid inconvenience. Surveyors must have due regard to the positions of both parties, but they do not assume a design obligation towards the adjoining owner. The court treated party wall surveyors as occupying a quasi-judicial position with statutory powers and responsibilities, consistent with Gyle-Thompson v Wall Street (Properties) Ltd [1974] 1 WLR 123. Barry v Minturn [1913] AC 584 did not support the wider construction advanced by Mr Gray.
2. Scheme C and the second appeal. The proposed criticisms of Scheme C concerned engineering detail, pile interaction, gaps and subsequent events. Both experts had accepted that Scheme C was satisfactory from an engineering perspective. The Court of Appeal would not reweigh that evidence or interfere with the judge’s factual assessment. The lower court had already found that the works would use Mr Gray’s piles and had provided for payment in principle under section 11(11). The detailed challenges raised no important point of principle or practice warranting a second appeal.
3. Surveyor’s fees. Ms Murthy’s appointment was not invalid. Nevertheless, the judge was entitled to reduce the recoverable fees because she had largely followed Mr Gray’s instructions instead of exercising independent professional skill and expertise.
4. Declaration and fresh evidence. The grant of a declaration was discretionary. The judge had awarded the claimed £1,320 for cracking by another route, and the excavation was permissible under the Third Award. There was no error in declining a declaration. Photographs and matters arising after trial did not justify reopening the decision.
5. Permission. The appeal from the surveyors to the county court was a first appeal, making the proposed appeal to the Court of Appeal a second appeal governed by Rule 52.13. A purported grant of permission by a judge lacking jurisdiction was a nullity, following Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17. It was therefore proper to consider permission and, if granted, the appeal together.

• Court of Appeal (Civil Division): On 3 November 2016, refused permission for the proposed second appeal and dismissed the appeal concerning the First Award and declaratory relief.
• Central London County Court: On 23 July 2015, refused the declaration, dismissed the appeal against the Third Award and Scheme C, awarded £1,320 for cracking, and varied the award concerning payment under section 11(11) and surveyor’s fees.
• Party wall surveyors: The Third Award of 3 October 2014 authorised underpinning under Scheme C. The earlier First Award of 22 August 2012 had authorised reinforced-concrete underpinning.