Philip Antino on Schmid V Athanasou & Hulls S10(4) Principals

Philip Antinoon the Schmid v Athanasou & Hulls – Appeal of Party Wall Award

Mr Schmid the Building Owner, served a notice under s.6(1) for an extension to the rear of his property. He omitted serving a s.1(5) notice for the wall which was intended to be built on the line of junction. Following a conversation the Adjoining Owners verbally consented to the extension being built with a wall to the height of 3m and built wholly on the Building Owners land, works commenced. Shortly thereafter the works caused structural cracking to the Adjoining Owners property. The wall was built to a height of 3.44m and was built across the line of junction creating a trespass, and a Type A party wall, without permission from the Adjoining Owners.

The Adjoining Owners raised concerns which were ignored by the Building Owners (Schmid), giving rise to a dispute.

The Adjoining Owners appointed Mr Antino, who wrote to the Building Owner advising him of damage, the deviations away from the agreed works set out in the notices and drawings, and the structural damage explaining that a dispute has arisen under the Act and asked the Building Owner to appoint a Surveyor.

The Building Owner rejected the advice claiming that the Act did not apply. Mr Antino served a notice under s.10(4) and then subsequently appointed a surveyor, and they subsequently agreed the selection of a Third Surveyor.

The Building Owner then announced that he was going to use the flat roof of the extension as a roof terrace and was going to raise the wall, either using brickwork or glass screens or some other means, by an additional 1.5m in height or thereabouts, giving rise to further disputes.

The Building Owner belatedly took advice from another surveyor, who wrongly advised the Building Owners that the act did not apply and alleged the notices were invalid, and that there was no dispute under the Act. This raises an interesting scenario, the Building Owner was willing to claim that his notices were invalid, presumably to avoid the procedures explained by Mr Antino without realising that to do so would expose him to a common law remedy under tort for damage and trespass.

However, the Building Owner then made a referral to the Third Surveyor (which must be an acceptance that the notices were valid otherwise the Third Surveyor had no standing). The Third Surveyor advised Mr Schmid that Mr Antino’s approach and subsequent s.10(4) appointment was appropriate. The Building Owner did not accept the Third Surveyor’s opinion.

The Third Surveyor advised The Building Owner that a dispute under the Act had arisen which was to be resolved adopting procedures under s.10. The Building Owner continued to dispute Mr Antino’s position and refused to engage productively with his appointed surveyor. The two surveyors made an Award which addressed the trespass across the boundary, the increased height of the wall, and the structural damage to the property, and the appropriate compensation.

The Building Owner filed an appeal under s.10(17) listing 8 different grounds, based on Counsel’s opinion under a direct access scheme. The Adjoining Owners instructed Mr Ashley Bean of MLC and Mr Richard Power of Lamb Chambers.

It was agreed that there were two points that could be heard by way of a preliminary hearing before the main trial.

On the 4th February at the Central London County Court, HHJ Luba QC ruled on the preliminary points as set out below.

Jurisdiction of the Surveyors

Waiver and estopple

HHJ Luba QC held that the appointment of the Surveyors was valid, and that the Award was therefore also valid, further HHJ Luba QC observed “The Award is an impressive piece of work”. The issue of waiver/estopple applied equally to the Building Owner as it did to the Adjoining Owner. Therefore there was a dispute under s.10. The Building Owners appeal on the preliminary points failed, incurring significant costs of circa £60,000.