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The Award was withdrawn by Mr Lloyd-Baker following legal advice, accepting that the Award was as Mr Antino had contended all along invalid.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 Behan in selecting a third surveyor. Mr 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 Behan is also a member. Mr 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 Behan approached the local authority who subsequently selected Mr Simon Price under s10(8).

Mr Antino’s primary concern was the use of special foundations. the Fergusons exercised their section 7(4) veto. To his credit Mr Behan immediately accepted that the works included special foundations. Although it is not clear why he chose not to disclose that fact in his notices! Had he done so openly, the Fergusons may well have consented to the works, but clearly the omission of this important point caused the Fergusons concern, and justifiably so.

The proposed works incorporated reinforced concrete walls tied to the floor slab, as such, creating a ‘box’ construction. The integrity of the box to support the imposed loads of the building above and the lateral loads form the adjacent soil was dependent on the ‘box’ design. The building owner’s engineers were asked to redesign the basement to avoid special foundations. They simply introduced concrete rails beneath the basement box floor slab, and ignored the special foundation beneath the party fence wall. Mr Behan argued that the special foundations had been removed and therefore the award should be served. Mr Antino did not accept this contention.

Mr Behan was in direct correspondence with Mr Simon Price who wrote to Mr Antino stating that the proposed works did not include special foundations. 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 authorise special foundations on the adjoining owners land.

Mr Price and Mr Behan, ignored Mr Antino’s observations and produced 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. Mr Antino advised Mr & Mrs Ferguson that the Award was ultra viries, because it sought to authorise special foundations across the boundary line without their written consent was therefore unlawful.

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

In august 2017 Mr Behan served new notices with a revised scheme removing special foundations from the proposed works. Mr. Antino challenged the validity of the notices as they did not comply with section 6(6). Mr Behan accepted Mr Antino’s points and then in October served new notices. The surveyors were unable to agree a third surveyor and a section 10(8) selection was made but not Mr Price. An award has yet to be agreed.

What was disappointing from the first appealed award is that Mr Simon Price did not engage fully with Mr Antino under section 10(11), despite Mr Antino’s numerous request to be included in the award process. Mr Behan and Mr Price chose not to include Mr Antino.

This is particularly frustrating and disappointing because Mr Simon Price had a duty as the Third Surveyor to remain neutral and impartial. For reasons that are not clear, he simply joined with Mr Behan and simply pushed ahead (to the detriment of Mr Lloyd-baker) ignoring all of Mr Antino’s advice, concerns and/or observations that the award based on the scheme could not proceed as set out in the drawings attached to the notices, because they sought to legalise works which could not be executed without the Ferguson’s agreement. Mr Price and Mr Behan simply failed to understand what constituted a special foundation.