Party Wall Etc. Act 1996
Making sense of the award and how it can be used
What is an Award and what does it do?
The aim of the Act is to settle disputes between the parties by award.
Sometimes, the award is mistakenly referred to as a "party wall agreement" but this is a serious misconception that some inexperienced surveyors use to describe the award. Be in no mistake that even if two surveyors are appointed, it is still possible for one of those surveyors, or the Third Surveyor, to impose an award on the parties without reaching agreement even with the other surveyors. Unjustified delays in the statutory process can be brought o a swift conclusion by the operation of what are known as "ten day notices" and these can even be given by the parties to the agreed surveyor either or both of the appointed surveyors.
An award is not unlike a court order, albeit from a statutorily convened tribunal rather than a formal court. Section 10, sub-section 16 states -
The award shall be conclusive and shall not except as provided by this section be questioned in any court.
The exception provided in the section is one of a statutory appeal period of fourteen days after service on a party. An appeal has to be made to the county court and has to be on valid grounds of appeal. That is, you cannot appeal simply because you do not like the terms but rather because it contains a mistake, was made without following correct procedure or similar want of process, or it goes beyond the powers of the surveyors available to them in the Act. You cannot appeal simply because you do not like your neighbour's proposed extension, or because you have, as building owner, been ordered to make good to your neighbour's land after the works are completed. The first of these examples can only be dealt with under planning law, and the latter is an obligation in the Act itself.
Section 10 subsection 12 states that an award determines three key areas of any dispute -
It is easy to go off track with an award if the interpretation of items b and c in the list are too liberally interpreted. The Act controls very specific work activities, and has no jurisdiction over incidental works elsewhere on the building owner's land. Any award can therefore only serve as a measured statement of the precise rights and duties on the owners in relation to the relevant work only and those matters that arise from carrying out those works. It is neither a specification nor an agreement between the parties but is a set of specific rules for both parties to abide by.
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What happens if conditions in the Award are breached by either party?
In many cases, a word with one or other of the appointed surveyors who made the award will be enough to resolve minor breaches and get the matter put into good order again. Appointed surveyors are not, however, able to enforce the award itself, and it reverts to the injured party to use the award as a benchmark against which to measure the breach and any alleged damage that arises. Any material deviation from the conditions of the award may constitute an actionable cause and will require the injured party to put the other party on notice that it will resort to litigation to recover damages if the breach is not satisfactorily remedied.
In some situations, the circumstances may have changed since the award was published and its original conditions may be inadequate or inappropriate to suit the conditions now present. It usual then for the dispute to be re-examined and an addendum or new award made to deal with the changes and make sense of its application to the work it is supposed to control.
Appointed surveyors can, but do not have to, act as an expert witness in a claim for damages arising from a breach of a condition of an award. Sometimes it makes more sense to bring in another expert to assess the claim, especially if it involves a range of matters that are not necessarily within the expertise of the specific appointed surveyor used in the first instance.