Philip Antino on Special Foundations, basements and s7(4) veto

An Appeal against Special Foundations and the refusal to recognise s.7(4) veto

J P Ferguson & F E Ferguson v A G Lloyd-Baker (2017) Central London County Court

The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along invalid.

Mr & Mrs Ferguson (the appellants) filed an appeal at the Central London County Court challenging an Award, served by Mr Mark Behan appointed by Mr Lloyd-Baker and Mr Simon Price, the third surveyor selected under s.10(8) of the Party Wall etc. Act 1996.

Mr Philip Antino was Mr & Mrs Ferguson’s surveyor. Mr Lloyd-Baker wanted to construct a basement beneath his end of terrace house which adjoined the appellant’s property and other notifiable works. Mr Mark Behan prepared and served notices for the basement which surprisingly, incorporated special foundations extending across the boundary line.

Mr Antino experienced considerable difficulties with Mr Mark Behan in selecting a third surveyor. Mr Mark Behan insisted that it should be someone from his list of preferred surveyors. Included in that list was Mr Simon Price, a chartered surveyor and director of the Faculty of Party Wall Surveyors of which Mr Mark Behan is also a member.

Mr Antino declined the nominations put forward by Mr Mark Behan and provided alternatives. Some of who were and/or were not members of the Faculty of Party Wall Surveyors. Mr Mark Behan refused to accept anyone unless it was someone he suggested.

Regrettably there was no agreement on the selection of the third surveyor and Mr Mark Behan approached the local authority who subsequently selected Mr Simon Price.

Mr Mark Behan had been asked by Mr Antino to notify the local authority of all those names previously submitted by both parties to ensure that they were not included in the selection process, thus avoiding any potential conflict of interest. It appears from Mr Simon Price’s subsequent selection that Mr Mark Behan did not take Mr Antino’s advice.

Mr Antino’s primary concern given that Mr Mark Behan appeared not to understand what a special foundations and or indeed the s.7(4) veto that any selected the third surveyor was both independent and had the appropriate skills, knowledge and experience to be able to deal with special foundations and or indeed the s.7(4) veto. To Mr Antino’s surprise the local authority selected Mr Simon Price, despite his earlier rejection.

Mr Mark Behan immediately wrote to Mr Simon Price claiming that there were no special foundations and sought his agreement to prepare an award. Mr Simon Price’s first email to Mr Antino was to suggest wrongly as it transpires, that there were no special foundations in the proposed scheme. Mr Antino rejected this contention explaining that there were special foundations and that Mr & Mrs Ferguson had exercised their right under s.7(4) and in the absence of any written consent, an Award could not be served, because the Act specifically prohibited such works under s.7(4).

Mr Simon Price and Mr Mark Behan, then proceeded to work together to produce an award, leaving Mr Antino out of the statutory procedures. It took some 7/8 months for Mr Simon Price and Mr Mark Behan to eventually serve an Award. On receipt of service Mr Antino advised Mr & Mrs Ferguson that the Award was ultra viries because it sought to authorise special foundations across the boundary line and without their written consent was therefore unlawful.

Mr & Mrs Ferguson filed their appeal within the 14 day statutory period, and Mr Lloyd-Baker having taken legal advice agreed to withdrew the Award by consent and agree to pay Mr & Mrs Ferguson’s substantial legal costs in defending the appeal.

The appointed surveyors must act impartially, however, from the first instance, Mr Simon Price did not engage with Mr Antino under section 10(11), despite Mr Antino’s numerous request to be included in the award process. Mr Mark Behan and Mr Simon Price chose not to include Mr Antino. This is particularly frustrating and disappointing because Mr Simon Price duty as the Third Surveyor was to remain neutral and impartial. For reasons that are not clear, he simply joined with Mr Mark Behan to serve an invalid Award. They simply pushed ahead (to the detriment of Mr Lloyd-baker) ignoring all of Mr Antino’s advice concerns and/or observations that the scheme could not proceed as set out in the drawings attached to the notices.

Indeed Mr Lloyd-Baker sent an email to Mr & Mrs Ferguson shortly before service of the Award stating “I am glad to hear it seems our party wall award is now finally resolved to the satisfaction of the third adjudicating surveyor. Whilst I really hope this draws a line under it, I am aware your party wall surveyor Philip Antino is rather familiar with legal proceedings, mostly it seems to the detriment of his clients. So if he hasn’t already, I imagine he will be lobbying your representative with all sort of reasons (sic) you should appeal the decision at your own costs and risk”.

Mr Lloyd-Baker is correct Mr Antino not only knows the legal proceedings, he was plainly more knowledgeable about the correct interpretation of special foundations and how the s.7(4) veto applies under the Act. Given, Mr Lloyd-Baker’s acceptance that the Award was invalid, and agreement to pay Mr & Mrs Fergusons costs this has been an expensive exercise for Mr Lloyd-Baker.

The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along invalid.