The Role of the Advising Engineer Under the Party Wall etc. Act 1996. Is there one?

First published in the peer reviewed Journal of Building Survey, Appraisal & Valuation
Vol. 3. No. 1, 2014, pp. 46-52
© Henry Stewart Publications
2046-9594

Abstract

There is a growing tendency for adjoining owners’ surveyors appointed under the Party Wall etc Act 1996 to ask almost as a matter of routine for the building owner to meet the cost of another engineer to advise the surveyor. This practice adds the burden of yet more fees on the building owner.

There seems to be no direct authority for this in the Act itself but the practice is supported by inference in a leading judgment and directly in guidance published by some of the professional organisations in the field. What is clear is that such an additional appointment should be made only in exceptional circumstances and that responsibility for the appointment needs to be carefully considered and defined.

Surveyors relying on guidance from “their own” advising engineer should also be aware that in so doing they and their engineers may become involved in the design itself and acquire liability of which they and their professional indemnity insurers are unaware.

“One has to watch out for engineers – they begin with the sewing machine and end up with the atomic bomb.” – Marcel Pagnol (1895-1974), Critiques des Critiques

Introduction

The Party Wall etc Act 1996 (the Act) deals with the problem of adjacent excavations in Section 6 but I think it is generally recognised that it did not anticipate the enormous growth in domestic basement developments that has become the lion’s share of notifiable work in London. There have been a few spectacular failures and surveyors and their insurers are understandably cautious. Unfortunately, insurers are notorious for prohibiting disclosure of any information on professional indemnity claims and it is still rare for party wall cases to make it into court, far less to appeal in the higher courts.

Most projects that require the serving of notices under the Act will involve structural work be it simply the insertion of a steel beam into the party wall or major excavation and underpinning in connection with a new subterranean development (as they are now called). Even on the simpler schemes someone will have done some calculations to determine the size of the beam to be used. That someone is likely to be and on the more complicated schemes certain to be a structural engineer.

As part of the approval process under Building Regulations the Building Control authority will appoint another structural engineer to check the structural design and calculations submitted by the applicant. Under the Full Plans Application route this is done before works start but work to a dwelling can proceed immediately without prior checking and approval on the submission of a Building Notice. The general advice is that a Building Notice is suitable for “simple domestic work” but it is the route of choice for householders in a hurry and is used for many complicated basement extensions to existing houses and flats.

The Building Notice route has two major disadvantages for the party wall surveyor. Firstly, the Building Control authority is not required to issue a Completion Certificate for works started on a Building Notice. A Completion Certificate is useful confirmation for adjoining owners and their surveyors that the work has been completed in accordance with Building Regulations. Secondly, the structural work can start before the design engineer’s calculations and design have been checked by the engineer appointed by the Building Control authority by which time it may be too late.

In recent years it has become increasingly common for adjoining owners’ surveyors appointed under the Act to ask the building owner to meet the cost of another structural engineer to advise the surveyor. Is it reasonable, justifiable or even lawful for surveyors to agree that the building owner must pay for yet another engineer to re-examine the design and inspect the works on site?

Strictly speaking a checking engineer has no role under the Act. The word “engineer” does not even appear in the act. Neither, of course, do many other words that some party wall surveyors fondly believe have statutory provenance. References to independent engineers and advising surveyors do, however, appear in current guidance notes for practitioners and, albeit briefly, in the standard reference work on the operation of the Act^[1].

The Role And Competence Of The Surveyor

To be lawfully appointed under the Act, a surveyor needs to be qualified only to the extent that he or she is not a party to the dispute. Indeed, as the title “surveyor” is not protected in law in the way that “architect” is, I have argued in the past that any person may be appointed to act as a surveyor under the Act. In fact the Act does refer to appointing and selecting “a surveyor” not merely someone to “act as a surveyor” but stops short of requiring formal qualification or accreditation. The term “surveyor” does not feature in the definitions in Section 20 except to disqualify “a party to the matter” and has not, so far as I am aware, been tested in court.

This lack of definition means in practice that anyone occupied in some kind of surveying, perhaps a marine surveyor, or any one who routinely carries out surveys of buildings, perhaps a damp proofing surveyor or a loss adjuster, with no knowledge or experience of the Act can accept a statutory appointment with no real prospect of challenge. The Act leaves it to would be surveyors to determine their own competence and most experienced party wall surveyors are well used to dealing with incompetent individuals, nursing them along and ultimately coaxing out an award with some legal credibility. This is normally the most expedient course.

Section 10 sub-section (5) is intended to protect the surveyors’ appointments against outside interference but it also allows an appointed surveyor to withdraw if he realises that he is “incapable of acting”:

“If, before the dispute is settled, a surveyor appointed under paragraph (b) of subsection (1) by a party to the dispute dies, or becomes or deems himself incapable of acting, the party who appointed him may appoint another surveyor in his place with the same power and authority.”

It is very rare for an appointed surveyor to shoot his own fox by concluding that he is incapable of acting. I have done so myself only once in over thirty years and then for a very specific reason. When a surveyor does deem himself incapable it is often because he is going away and will be unable to deal with matters within the time frames enabled by the Act to be imposed by the other surveyor. In fact, the option is sometimes threatened in order to buy more time in such circumstances as the effect would be that the process must start over with another surveyor. I have never heard of an appointed surveyor admitting that, on this particular occasion, he is out of his depth and not capable of making an informed assessment of the proposed works.

In 2001, an unreported case was heard in chambers by Deputy Master Chism of the High Court who gave judgment without the matter proceeding to trial.[for more – see Note A below] The dispute concerned the underpinning of a party wall in the context of an urban redevelopment with a number of adjoining freehold and leasehold owners and was based on the London Building Acts (Amendment) Act 1939, the precursor to the 1996 Act. There are both material and subtle differences between the two statutes but those do not concern the present argument.

In his judgment, Deputy Master Chism was happy to accept this very specific qualification of the role of the building owner’s surveyor who stated:

“It is not my role therefore to consider the technical merits of any structural works being proposed. I need to know the nature and scope of the proposed works to make the assessments that I have described above and they need to be referred to in an award so it is clear which works have been agreed. However, I am not required to assess and do not assess whether the works are adequate from an engineering or architectural point of view.”

This extract refers very specifically to the role of the building owner’s surveyor. It might be argued that the adjoining owner’s surveyor’s role may not be similarly constrained except that the Act makes no distinction whatever between the roles of the adjoining owner’s and the building owner’s surveyors. To do so would be inconsistent with the concept of the parties concurring in the appointment of a single agreed surveyor whose role is similarly not otherwise distinguished from that of the other two.

If an appointed surveyor does believe that it is his duty under the Act to “assess whether the works are adequate from an engineering point of view” but finds that he is not competent to do so then it could be argued that he is by that very fact incapable of acting. He should, therefore, deem himself so thus allowing the Adjoining Owner to appoint a surveyor with the necessary technical ability.

Ironically it is quite possible that the new surveyor will not consider it his duty under the Act to “assess whether the works are adequate from an engineering point of view” and will be content to restrict himself to the matters in dispute as set out in Section 10 sub-sections (10) and (12).

The Rationale For Another Engineer

On the rare occasions when an adjoining owner’s surveyor is challenged as to exactly why he needs the “comfort” of a checking engineer and on what basis he thinks it reasonable that the building owner should foot the bill, the most common response is that he needs to be satisfied that the work will be carried out without causing unnecessary inconvenience to the adjoining owner quoting Section 7(1) of the Act.

“A building owner shall not exercise any right conferred on him by this Act in such a manner or at such time as to cause unnecessary inconvenience to any adjoining owner or to any adjoining occupier.”

It is easy to imagine how unnecessary inconvenience might be caused if the building owner’s design team has not thought the process through fully but to use this provision as authority for the appointment of another engineer to check that there is not an alternative design that would cause less inconvenience is to admit the possibility that the adjoining owner’s surveyor and his engineer may interfere with or contribute to the design.

Now this possibility is one that so terrifies party wall surveyors that they will routinely include a clause confirming that nothing that they say or do shall be construed in any way to suggest that they might inadvertently have become “designers” for the purposes of the CDM regulations^[2]. The relationship of the CDM regulations with the role of surveyors under the Act is a matter for another day. Suffice it to say that surveyors cannot insist on engaging an engineer to check the design and simultaneously deny that they are in any way influencing the design.

In an earlier issue of this journal^[3] I commented on the case of Kaye v Lawrence [2010] EWHC 2678 (TCC) in which the High Court Judge clarified several areas on which party wall surveyors hold firm but different opinions. At paragraph 50 of the judgment referring to the power of surveyors to determine “any other matter arising out of or incidental to the dispute including the costs of making the award” [section 10(12)(c)] Mr Justice Ramsey confirms that this is “…a broad power which permits the award to deal with such matters as insurance…”. If the High Court accepts that the power of surveyors is broad enough to include insurance provisions, which are not referred to in the Act either, it seems to me likely that it would accept that it includes the power to consult an engineer and to include the reasonable costs in the award.

While it is tempting to suggest that a surveyor in need of an advising engineer should stand aside in favour of a replacement who is not, this is too simple a conclusion and the question becomes one of when is it reasonable to engage the services of an independent engineer to advise the appointed surveyors and, further, what is the reasonable extent or scope of such advice?

Published Guidance

The Pyramus and Thisbe Club^[4] publishes a series of Guidance Notes for practitioners including GN7 “Impact Assessments (& Method Statements)” which suggests that for “more intrusive, complex or larger scale works” :

“To best inform and equip the surveyors a design Impact Statement should be required by them, explaining in clear concise terms the impacts and risks presented by the design on the adjoining owner’s interests and property.”

This puts the responsibility for careful assessment of the wider impact of the project squarely where it belongs, with the design team, and GN7 goes on to state:

“An advantage to this approach is that designers, in having to carefully consider impacts and risk, tend to produce better considered designs reducing potentially contentious issues, and contractor’s method statements may then only need to address the practical aspects of implementation.”

This seems to me an eminently sensible and practical approach that sits comfortably with the underlying principles of the Act and its predecessors and it does surprise that sometimes design engineers seem baffled by such a request. If the building owner’s design team is unable to demonstrate to a reasonably capable surveyor that the effect on the adjoining owner has been properly considered (and mitigated) it might be reasonable for an advising engineer to be appointed. As GN7 warns:

“The lack of such information often leads to adjoining owners wishing to have designs reviewed by their own structural engineers.”[For more – see Note B below]

The Royal Institution of Chartered Surveyors (RICS) also publishes a guidance note^[5] to members but this only refers at all to engineers in the two paragraphs in section 7.5.2 headed “Advising engineer fees”:

“It may be necessary for one or both of the appointed surveyors to seek advice from an independent engineer to consider the suitability of technical proposals of an engineering nature, which would be outside of their expertise (for example, the adequacy of temporary shoring). It may be that in order to ensure the stability of its property is being adequately protected, the adjoining owner undertakes to pay the independent engineer to advise on this matter. In such circumstances, responsibility for this cost by way of engineer fee should be dealt with in exactly the same way as surveyor fees in paragraph 7.5.1.

Alternatively, the independent engineer’s fee may be a contractual responsibility of the surveyor(s) instructing the engineer and is to be paid as a disbursement of the appointed surveyor. In such case, it would be prudent for this ‘disbursement cost’ to be put in a separate clause from the surveyor fee so that the engineering advice element of the cost is distinctly identified. As with any cost, surveyors can only determine responsibility for reasonable costs that are proportionate to the necessary tasks to facilitate the making of the award. Therefore, in this context only engineer’s fees that constitute a reasonable cost should be included in an award.”

It is interesting to note the suggested example of circumstances when the advice of an independent engineer might be appropriate. The “adequacy of temporary shoring” is usually a part of the contractor’s temporary works and not the project engineer’s design. There is nothing in the RICS guidance note to suggest that the building owner’s engineer’s basic design should be checked by an independent engineer.

The Faculty of Party Wall Surveyors^[6] does not publish guidance on this matter for its members.

The Role Of The Advising Engineer

The Pyramus and Thisbe Club’s Guidance Notes include GN10 entitled “The Role of the Advising Engineer”. While GN10 gives sound advice on what an advising engineer should and should not do it does not suggest that an advising engineer should be a routine appointment. In fact it suggests a rather different approach to that normally adopted by Adjoining Owners’ surveyors:

“…to impartially assist the appointed surveyors it is preferable for the assistance of a structural engineer to be engaged, with the related professional charges included as a cost in the making of an Award. ”

Note here the implication that the supplied design information is such that the two appointed surveyors need the impartial advice of an independent engineer to assist them equally. In other words the surveyors agree that they cannot make a proper assessment on the basis of the information that the design engineer is able or willing to give. It suggests a level of communication some way above that of the adjoining owner’s surveyor seeing the word underpinning and asking for a structural engineer to advise him.

The model award included in the RICS guidance note makes no reference to engineers but contains as part of its preamble the clause:

“Any agreement or acceptance made by either surveyor in this award or subsequently during works on site shall not be taken to imply any responsibility by them or their appointed technical delegates for any structural or any other insufficiency in any part of the works whether existing or executed.”

It must surely follow that if an appointed surveyor appoints an engineer to advise him on the adequacy of the structural design and subsequently confirms to the Building Owner that he is satisfied he is assuming some responsibility “for any structural or any other insufficiency” whether he likes it or not.

In the award suggested in the standard reference work on the Act^[7], Bickford-Smith and Sydenham offer no such caveat. Furthermore, they make no reference to engineers at all until paragraph 11.5 on the categories of costs that surveyors may award. The reference is interesting:

“The process of making the award may require surveyors to determine… …specialist matters needing advice from engineering consultants or quantity surveyors.”

Again the inference is clear that this is an exceptional circumstance and not a matter of routine. It also supports the view that a surveyor may quite reasonably require specialist advice, and not just from engineers, without immediately rendering himself incapable of acting.

Conclusion

The potential dangers to adjoining owners’ properties from subterranean developments should not be underestimated or dismissed. Following the judgment in Kaye v Lawrence^[8] surveyors should give careful attention to security for expenses under the Act and to the kind of insurance that will give adequate protection to the adjoining owners but the Act does not require the surveyors to assess whether the building owner’s proposed works are adequate from an engineering point of view.

Given the current prevalence of requests for the advice of an independent engineer it is perhaps surprising that what published professional guidance there is makes clear that such advice should only be necessary in exceptional cases. I suggest that those cases should generally be where the building owner’s design team is unable or unwilling to provide a satisfactory Design Impact Statement (as mentioned above) and the engineering element is unusually complicated or work is proceeding under a Building Notice. In the great majority of party wall cases there should be no need for an independent engineer to advise the surveyors but the prudent and vigilant party wall surveyor will establish the scope of the design team’s appointments and insist on a Design Impact Statement where appropriate.

Where the circumstances are such that an advising engineer must be appointed I would refer to GN10 (as mentioned above) to define the scope of the role. It is not his job to check all the calculations in the way that the Building Control engineer must do but to review the possible structural effect of the works on the adjoining owners’ premises in the context of the Act.

Surveyors should be aware, however, that by appointing an engineer and engaging with the design of the building owner’s works they can no longer claim that they are not “designers” for the purposes of the CDM regulations or that they are not responsible “…for any structural or any other insufficiency in any part of the works…” as stated in the RICS model award. The tacit acceptance of this additional potential liability should be discussed with the surveyor’s professional indemnity insurers which may have specific requirements with regard to the making and wording of such appointments.

Notes

[A] “A master is a procedural judge who at first instance deals with all aspects of an action, from its issue until it is ready for trial by a trial judge – usually a High Court judge. After the trial the master resumes responsibility for the case.”

“…Queen’s Bench and Chancery masters and bankruptcy registrars deal with most of the day-to-day work arising within their areas of jurisdiction, and in certain circumstances may also try actions. The majority of cases do not reach a trial as they are disposed of by summary trial, mediation or negotiated settlement.”

http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/judicial%20roles/judges/high-ct-masters-registrars

[B] More accurately, it is the Adjoining Owners’ surveyors who want the designs reviewed by their own structural engineers and occasionally they advise their appointing owners of the fact.

References

1. “Party Walls Law and Practice” by Stephen Bickford-Smith and Colin Sydenham 2009 ISBN 978-84661-179-7
2. Construction (Design & Management) Regulations 2007
3. “Kaye v Lawrence Revisited” JBSAV Vol 2 No 3 2013 pp 233-238
4. The Pyramus and Thisbe Club, now accorded “Learned Society” status, was founded in 1974 as a forum for discussion on all matters relating to the provisions of Part VI of the London Building Acts (Amendment) Act 1939 and subsequently the Party Wall etc Act 1996 which replaced it. It is widely regarded as the leading authority on the application of the Act and has received favourable comment in many leading judgments.
5. “Party wall legislation and procedure”, RICS guidance note, 6th edition (GN27/2011)
6. The Faculty of Party Wall Surveyors (FPWS) is a non-profit making educational body that conducts teaching seminars on the subject of Party Wall matters and has an exam/interview process for membership unlike any other body.
7. “Party Walls Law and Practice” Ibid
8. [2010] EWHC 2678 (TCC)