The Role of Building Surveyor

The Development and Alteration of Buildings

The development of a new building or that in existence is one of the major concerns by the landowner and the surrounding entities. The initiatives require the engagement of proper planning before starting the project so at to meet the criteria and consideration of the parties involved. In that respect, the review of all possible phenomena that can affect the neighbour and the environment is highly regarded in relation to the set regulation or the agreement between the two parties on the nature of these impacts. Building surveyors come into play in such situations to give advice as well as develop a system that will deliver the required services (Isdell 2013). The rationale of this is to have a third party involved in the building to allow it to meet the required standards. In most cases, building regulations related to building work and alterations of buildings are used to make the process safe limiting the environmental damage as well as the neighbouring people.

Scenario and Recommendations

This paper seeks to give directions and recommendation concerning scenario related to the impact of development and alteration of building to the neighbours. The scenario involves two significant cases from which the insight will be developed to give appraisal and recommendation. Firstly, the client is certain that the storey extension built two years ago did follow relevant permissions. Secondly, his neighbour has claimed that his extension built six years ago has developed cracks and is adjacent to the wall of the client's extension. The discussion, therefore, revolves around the responsibility of the two parties two the issues at hand with insights from relevant legislation.

Party Wall Act 1996

As stated in the above section there is some regulation that governs the extent to which a building owner project construction can affect either directly or indirectly on the adjoining land. This is the same scenario for Mr. Oplanning and his neighbour on the construction of storey extension. In the United Kingdom, one of the common law that relates to such a case is the Party Wall Act 1996 (RICS 2011, p.3). This Act provides the framework for resolving disputes concerning party walls, boundary walls, party structures and excavations near neighbouring buildings (Department for Communities and Local Government 2016,p.4). The case of Mr Oplanning and his neighbour are within the jurisdictions of this regulation since their issue is primarily related to the walls of both parties.

The Responsibility of Mr Oplanning

Firstly Mr Oplanning is affected by this regulation since his extension did not involve permission of extension. According to the Act, any party intending to make alteration or development must first give the adjoining owner notice of their activities. In a critical view, Mr Oplanning cannot shun taking the responsibility that his extension is primarily affecting that of the neighbour since his neighbour who is the adjoining landowner had to sort for permission prior to the building of his extension. Although section two of this Act gives the building owner the right to raise the height of a party wall, for example, adding another storey, it creates circumstances under which the activity can be carried on (Department for Communities and Local Government 2016, p.10). The responsibility of the landowner, in this case, would include informing all Adjoining Owners of his intentions to carry out any work as mentioned in section two of the Party Act 1996.

Potential Claims and Rulings

The adjoining owner may establish a claim in court requiring Mr Oplanning to take full responsibilities for breaching the statutory duty (Davidson 2016). Is such a case is to be taken in court the judge may make argument or ruling as it was done in Roadrunner Properties Limited v Dean [2004] case. According to this case, judgement was based on the defendant failure to serve the claimant with building notice which was termed as a breach of statutory duty and that the defendant is guilty of negligence.

Responsibility and Rights

According to this Act, the extension should not bring inconveniences to the adjoining owner and that the building owner must offer protection for the adjacent buildings where necessary. Therefore, Mr Oplanning may be required to carry responsibility on his neighbour's cracks on the walls since his extension came much time later and without prior permission that is required by the regulation. However, the Act gives him right to repair on condition that he offers or gives notice to his neighbour on the proposed development (Department for Communities and Local Government 2016, p.24). Serving the neighbours with building notice is crucial to avoid the infringement of a right of light (Jones n.d.).

The Building Regulation 2010

Mr Oplanning scenario indicates that the extension was done without the required permission. In that case, therefore, the scenario is affected by regulation 13 and 14 of the building Regulations 2010 which requires that the person carrying out building operation serve a notice or full plans (Department for Community and Local Government 2015, p.5).

The Role of Surveyor

Surveyors are the most critical parties in planning as they guide the building owner on the consequences and options to be adopted to minimise conflict in building operations. However, disputes arising from party wall cases should be settled or resolved by an award agreed by both parties’ surveyors (Isaac 2014). Surveyors, therefore, give advice on the extent to which the regulations such the Party Wall Act 1996 apply to specific building operation (RICS 2011, p.6). The surveyor is also responsible for making an award for compensation for the damages caused by the building operations of the party involved (Smith 2017). In some instances there may be the involvement of two surveyors from both parties involved to help in developing a system that resolves the anticipated conflict. Section 10 of the Party Wall Act 1996 primarily focuses on the role of the award in disputed matters and is under the responsibilities of surveyors from both parties involved or affected (Isaac 2017). However, the two may disagree on several issues which would lead to the appointment of the third surveyor who acts as the third party in the dispute.

Recommendations

In most cases, the landowner fails to understand their responsibility and most importantly the extent to which the Party Wall Act applies. In such instances, the landowner is advised to seek professional advice concerning the jurisdiction of planning and building regulation laws (Department for Communities and Local Government 2016, p.4). To avoid imposing inconveniences to the adjoining owner, it is advisable that the building owner discusses the planned work with the adjoining owner. The rationale of this is to make them aware of the project as well as giving room to focus on possible consequences and how to handle them. The building owner is advised to use party wall surveyors for the proposed building works and extensions. The surveyors ensure that a full schedule of the condition is undertaken to safeguard the interests of both the building owner and the adjoining owner (Party Wall Services 2015).

Appealing a Decision

Some instance may come up where the one of the party is not conversant with the award adopted which may worsen the dispute, and this may require an appeal (Property Litigation Association 2013). In such instances, it is recommended that these parties seek or appeal to the County Court within 14 days (Smith 2017). For instance, in lea Valley Development Ltd vs Derbyshire [2017] EWHCB22 (TCC) court case that involved differences in the calculated values of the compensation between the building owner and the adjoining owner, the court ruled that it had some jurisdictions concerning the issue to a specified extent. The court’s jurisdiction was based on developing or identifying a methodology to be used by surveyors in assessing compensation. In fact, the court lacks jurisdiction in giving the amount of compensation to fit any of the party, but instead develop a framework to be adopted by the surveyors.

References

Davidson, L., 2016. Pursuing claims for damage covered by the Party Wall etc. Act 1996. [Online]

Available at: https://www.lyonsdavidson.co.uk/pursuing-claims-for-damage-covered-by-the-party-wall-etc-act-1996/

[Accessed 1 March 2018].

Department for Communities and Local Government, 2016. Party wall etc. Act 1996, London: OGL.

Department for Community and Local Government, 2015. BUILDING ACT 1984, AS AMENDED BY THE DEREGULATION ACT 2015, London: DCLG.

Isaac, N., 2014. Ex parte awards under the Party Wall Etc. Act 1996 – Approach with caution. [Online]

Available at: https://www.tanfieldchambers.co.uk/resources/articles/patel-and-anr-v-peters-and-others

[Accessed 1 March 2018].

Isaac, N., 2017. Enforcement of payments in party wall matters. [Online]

Available at: https://www.tanfieldchambers.co.uk/resources/articles/enforcement-of-payments-in-party-wall-matters

[Accessed 1 March 2018].

Isdell, A., 2013. Building progress: Building Control Regulations and their effect. [Online]

Available at: http://www.surveyorsjournal.ie/index.php/building-progress-building-control-regulations-effect/

[Accessed 28 February 2018].

Jones, T., n.d. THE IMPORTANCE OF THE PARTY WALL ETC ACT 1996. COURT OF APPEAL COMES DOWN HARD ON DEVELOPER.. [Online]

Available at: https://www.terry-jones.co.uk/the-importance-of-the-party-wall-etc-act-1996-court-of-appeal-comes-down-hard-on-developer

[Accessed 1 March 2018].

Party Wall Services, 2015. Party Wall Case Studies. [Online]

Available at: http://www.party-wall-services.co.uk/party-wall-case-studies.html

[Accessed 1 March 2018].

Property Litigation Association, 2013. Party Wall Appeals- lessons from the Rolls Building Case. [Online]

Available at: https://www.pla.org.uk/2013/05/party-wall-appeals-lessons-from-the-rolls-building-case/

[Accessed 1 March 2018].

RICS, 2011. Party wall legislation and procedure, London: Royal Institution of Chartered Surveyors.

RICS, 2016. Rights of Light, London: Royal Institution of Chartered Surveyors.

Smith, E., 2017. THE PARTY WALL ACT – WHEN AND WHAT WILL THE COURT DECIDE?. [Online]

Available at: https://levisolicitors.co.uk/news/the-party-wall-act-and-the-court/

[Accessed 1 March 2018].