Mills v Sell & Savage the truth the whole truth and nothing but the truth
It is very difficult to have any sympathy for the Mills, from the very beginning knowingly attempting to avoid their legal obligations under the Act, and as a consequence have created what can only be described as
For the past few years Philip Antino has maintained a dignified silence whilst quietly observing misconceived understanding of the TRUE circumstances surrounding the Mills v Sell and Mills v Savage decision handed down by HHJ Bailey.
It is abundantly clear from the feedback that Philip Antino is receiving from various parties attending these seminars that Pinky & Perky are not only generating but also circulating FAKE NEWS.
This paper now sets the record straight, it is factually accurate, correct and presented in order to ensure that those gullible enough to believe Pinky & Perky do not fall into traps which could lead them to forming the wrong opinions and interpretation of the Party Wall etc. Act 1996.
In 2015 Mr Stuart Mills RIBA a qualified architect and his then fiancée Miss O’Callaghan purchased 29 Pembury Avenue. A mid terraced house comprising traditional construction with a pitched roof front to rear. The property had not been extended or altered and had previously been occupied by an elderly gentleman.
Shortly after purchasing No. 29 Mr Mills and Mrs Mills (nee O’Callaghan) introduced themselves to Mr & Mrs Sell and in a meeting that lasted no more than 5 minutes proudly exclaimed “we are going to do some improvement works”.
Mr & Mrs Sell thought no further of it and were pleased to note that the property will be bought up to a good standard of repair. However, let’s not forget Mr & Mrs Sell are laypeople, Mr Mills is a RIBA qualified architect and his wife Mrs Mills also works in property, and were for all intents and purposes professionals. It was somewhat surprising if not shocking that Mr Mills and his wife chose not to comply with their statutory obligations and did not serve notice for the following works.
· Removal of chimneybreast
· Excavation of foundations to front extension under s.6(1)
· Building a new wall on the line of junction to the front garden
· Removal of internal walls and cutting away from the party wall
· Exposing the party wall and forming a loft conversion
· Notices under s.6(1) for rear extension foundations
· Removing the rear elevation wall
To those conversant with the Party Wall Act it will be somewhat galling that a RIBA qualified architect chose to ignore his statutory duties, but when we then consider the extent of the works which they wanted to undertake and the legality we can perhaps start to get a better picture of why they did not want to invoke the Act. Notice it would have exposed the erroneous designs of Mr Mills RIBA, which involved various trespasses, nuisances and could not actually be built without the adjoining owners, Mr & Mrs Sell’s permission.
Mr & Mrs Sell were oblivious to the Party Wall etc. Act but works started. A porch was constructed to the front with a hipped roof which involved the guttering, fascia, soffits projecting across the boundary between No. 29 & 31 creating a trespass.
To the rear of No. 31 the Sell’s had a longstanding single storey extension built wholly on their land. Mr Mills design not only included enclosing upon that extension, but extending the flank wall of that extension in line (thereby wholly on No. 31’s land) to create a larger extension to the rear of No. 29. This created another trespass plus it also exposed the Mills to having to pay a contribution at the very least to No, 31 for using their wall.
What was more frightening was the fact that this extension to the rear could not actually be built because where the Mills had decided to extend the Sell’s flank wall, required the removal of No. 31’s drain gulley which collected surface water from the extension roof, kitchen sink and washing machine waste. This drain was located on the right hand corner (facing front) adjacent to the boundary and extended diagonally across the rear of No. 29 into an inspection chamber. The drains running across the rear of the terrace of properties was therefore a common drain within the ownership of Thames Water Authority.
One day after returning from work whilst standing at her kitchen sink and washing up Mrs Sell pulled the plug and was saturated by an escape of water. When she looked under the sink, the waste pipe and trap had been dislodged from the sink. On further investigations externally they noted that their existing drain had been blocked off, their patio had been excavated a new trench formed on the opposite left hand corner of their extension. A new plastic gulley inserted which upon lifting the manhole cover extended into the inspection chamber, approximately 400mm above the drain!!!
The guttering to the rear of their extension had been pulled off, turned around so that it fell in the opposite direction. Installed and discharging into this new drain gulley. The washing machine waste and kitchen sink wastepipes had been taken off, twisted around the discharged into this new gulley.
Mrs Sell then approached the builders on the following day where it became evident that the building contractor was a Mr Kevin O’Callaghan, none other than Mrs Mills father. When confronted about this outrageous trespass and damage Mr O’Callaghan simply laughed and said we can do what we want, what are you going to do about it? It was at this stage Mr & Mrs Sell then took legal advice.
Solicitors advised Mr & Mrs Sell to get a surveyors report, they did an internet search and subsequently instructed Philip Antino to provide an expert report on trespass and damage. It will come as no surprise to those who are reading this blog that Philip Antino immediately noticed the breaches of the notifiable works under s.6(1), s.1(5) and s.3(1) and various sub sections under s.2(2).
At the time of the inspection the porch had been constructed to the front, the hipped roof was formed in an exposed timber skeletal frame, no fascias or soffits, or gutters fitted, but it was clearly evident that there was a trespass. The rear extension walls had been built, no roof formed, scaffolding erected and roof tiles stripped from the front and rear elevations of the roof, the internal load bearing walls had been cut away from the party wall and chimneybreast removed in various locations adjacent to No. 27.
What was more alarming than anything was the illegal entry on to No. 31’s land and the works carried out to alter their drains, which for the avoidance of doubt is absence of any licence by the water authority in. This could not be granted because it is the property owner that has to make the application not a neighbor, and Mr & Mrs Sell were not asked.
Philip Antino was instructed and provided a report and wrote to the Mills pointing out their breaches, asking them to give an undertaking not to do any further works until the party wall matters were resolved and the various trespass works also resolved. Solicitors advised an injunction.
It would not be unreasonable to expect a RIBA qualified architect to simply accept that they have done wrong, and then try to resolve the matter, but not Mr & Mrs Mills. There was an increased flow of workmen on site clearly intending to finish any remaining notifiable works before an injunction could be obtained. An injunction was obtained and at the return date hearing 3 days later before HHJ Gold, Mr & Mrs Mills when questioned by the Judge. They openly admitted that they were fully aware of and knowledgeable of their obligations under the Party Wall Act.
Mr Mills then did something quite outrageous he told the Judge that he had in fact served notice. When HHJ Gold asked him to produce those notices, he of course could not. He had effectively attempted to mislead a Judge. This is all documented in the transcript.
The injunction was granted and that all notifiable works were stayed until party wall matters were completed. Mr & Mrs Sell were then subjected to what can only be described as harassment, abusive behaviour, all of which was unnecessary, wholly avoidable, that involved the police being called out on a number of occasions.
One would have hoped that Mr & Mrs Mills would have now realised that the game was up, they were caught like the proverbial rabbit in the headlights and that unless they deal with this properly, things would continue to their detriment.
They appointed Mr James Hopkins MRICS a chartered surveyor, who together with Mr Antino selected Mr Charles Dawson as the Third Surveyor. A meeting was arranged to prepare a schedule of condition and to discuss those elements of works which had not been completed.
One would have hoped that this would have been a simple straightforward to resolve, but Mr Hopkins became objectionable with regards to various matters, which led to a referral to Mr Dawson. The referral was dealt with. Mr Dawson then notified the parties that he was ready to release his Award on payment of an amount of money from both the Mills and the Sells.
Mr & Mrs Mills refused to pay the Third (Charles Dawson)Surveyor’s fees, leaving Mr & Mrs Sell to pay the money and if the Award went in their favour then having to sue the Mills to recover that money.
Is this appropriate behaviour for a RIBA qualified architect?
Upon receipt of the Third Surveyors Award Mr Hopkins wrote to Mr Antino “I am deeming myself incapable of acting under s.10(5) because my owners do not have any money to pay my fees”.
Mr Antino considered that was not sufficient grounds to deem oneself incapable of acting. Morally, professionally any professional with an ounce of integrity would have continued to act. Simply walking away on such spurious grounds did not render Mr Hopkins incapable, it just meant he did not want to do it because he thought he would not get paid.
Mr Dawson the Third Surveyor wrote to Mr Hopkins stating that they were not justified grounds for deeming oneself incapable of acting and that he remained the appointed surveyor. Shortly thereafter Mr Dawson deemed himself incapable of acting because he was leaving the country for several months on business.
Mr Antino was now faced with a frustrating situation. There was no building owners surveyor and no Third Surveyor who he could join with him under s.10(10) to complete the outstanding party wall procedures.
Requests were made for Mr Hopkins to join with Mr Antino in selecting a replacement Third Surveyor, they were met with silence. Mr Antino made a referral to the local authority under s.10(8) and provided a list of all the surveyors that Mr Hopkins and Mr Antino had previously discounted for various reasons.
Mr Antino suggested to the local authority they might want to consider appointing someone of considerable experience and expertise in party wall matters and someone who is of high standing in a professional organisation, he suggested Mr David Taylor President of the Chartered Association of Building Engineers.
Mr Antino had never previously worked with Mr Taylor on any party wall matters. He therefore did not consider any perceived or actual conflict of interest arising and given his status as the President of CABE that would be more appropriate than the local authority appointing another surveyor who may simply walk away or decline his s.10(8) selection.
During this time the Mills were silent, except however for Mr O’Callaghan the father/father in law of the Mills who was now becoming very vocal and writing various correspondence, which is somewhat ironic given that he was the builder who had trespassed on to Mr & Mrs Sell’s land, caused the damage, the nuisance etc. The Mills simply refused to engage with their statutory duties until the selection of Mr Taylor. Then the Mills suddenly woke up and realised that they will have to comply with the legal obligations as set out by Parliament under the Act.
They appointed Mr Mike Harry, previously unknown to Mr Antino. I was genuinely anticipated that this would be a welcomed relief from the tirade of correspondence which was simply nonsensical for Mr O’Callaghan. However, that was to be short lived, Mr Harry’s opening gambit was to provide a letter of appointment which indicated that the Mills were now living at a particular address which was in fact incorrect. Given that there is an obligation to serve notice on the last known address, Mr Antino quite rightly wanted to know exactly where the Mills were living, because not only had they never lived at 29 they had now sold it to Mr O’Callaghan. The plot thickens.
Why would a building owner want to withhold their address unless it was to avoid being served with an Award!!!
Mr Harry unperturbed by Mr Antino’s request then agreed to have another letter of appointment signed which included another incorrect address for the Mills. Mr Harry then proclaimed that in any event it does not matter, proclaiming we do not even need to have an address on a letter of appointment. Really!!!
Well despite what Judge Bailey said in his judgment, that has to be in law fundamentally wrong, because that could open all sorts of possibilities for people to abuse appointments. Falsely claiming to be appointed by owners when they are not, it could lead to documents being sent to an incorrect address therefore not reaching the adjoining owners, but more importantly why would you not want to have an address on the letter, it makes no sense, especially when it must be included in the Award.
There was a referral to the Third Surveyor Mr Taylor, Mr Antino believed that he owed Mr Taylor an implied if not an explicit duty of care to advise him of the Mills previous conduct in refusing to pay Mr Dawson’s fees.
The fact that the Mills had a proven history of simply ignoring the statutory procedures and/or requests by Third Surveyors for payment, Mr Antino was quite concerned (justifiably so), and that the Mills would do exactly the same again.
Mr Antino invited the Third Surveyor to make a request from both parties that they should pay their fees in advance of him doing any work rather than Mr & Mrs Sell again being faced with a fait accompli and having to pay all the fees.
Mr & Mrs Sell agreed, Mr & Mrs Savage, and guess what the Mills refused saying it was unlawful. Now subsequently in the forthcoming hearing HHJ Bailey said that was inappropriate and unacceptable, which in my opinion was wrong.
However, HHJ Bailey on the 14th November 2017 in the Mohamed v Antino & Stevens case where Mr Antino raised the very point as to how surveyors would get paid if owners could simply rescind the appointment of the tribunal of surveyors and replace them with someone they refer to as an agreed surveyor.
Shock horror, HHJ Bailey said well there is nothing to stop the Third Surveyor asking for money up front and during the process of the referral. This is a clear contradiction of what HHJ Bailey ruled in the earlier decision of Mills v Sell and Mills v Savage!!!
The matter needed to be resolved the Sell and Savage families paid the fees as requested by Mr Taylor, the Mills did not. An Award between the Third Surveyor and Mr Antino under s.10(10), perfectly lawful was served in accordance with s.15 of the Act at the last known address. An address had been proven to be for the Mills in Croydon certificates of posting were obtained. Not unsurprisingly the Mills were silent for a period greater than 14 days. Then up pops Mr Frame on behalf of the Mills with an application to appeal the Award and surprise surprise they claimed they had never received the Award in the first instance.
Now that in itself is quite a shocking statement to make, given the well-established and longstanding law and with specific reference to s.7 of the Interpretation Act adopted throughout the legal profession. Post is deemed to be delivered 48 hours after being consigned to the Royal Mail, the certificates of posting confirmed that the Awards had been consigned, Mr & Mrs Savage received their copy of the Award, Mr & Mrs Sell received their copy of the Award.
The Award went against the Mills and quite rightly so for the breaches, the damage, the trespass and the nuisance. However, in his infinite wisdom HHJ Bailey deemed that the Awards had not been received (he did not say they had not been posted).
HHJ Bailey continued stating he was surprised that the Awards had not been served by email. Now a lot of surveyors will say that seems sensible but given the explicit wording of s.15 there is no provision for service of Awards by electronic mail and therefore the Awards were served in accordance with the Act.
If we then move forward to the recent Court of Appeal decision in Knight v Goulandris another one of HHJ Bailey’s decisions justifiably overturned by the Court of Appeal, he stated that the Award served by the Third Surveyor was invalid because it had been served by email. A direct contradiction to what he was claiming in the Mills v Sell and Mills v Savage case!!!
Furthermore, for those of you are familiar with the party wall procedures will be aware of the Party Wall etc. Act (Electronic Communications) Order seeking to clarify whether or not electronic communications were sufficient for service of documents. So it is quite clear that there was conflicting opinions and interpretations as to whether service by email at that time was valid or not.
Mr Hopkins claimed that he could not continue to act because Mr & Mrs Mills did not have any money to pay his fees. The question then is how did they propose to Mr Harry’s fees and then subsequently following commencement of litigation they miraculously found tens thousands of pounds to pursue what was an appeal of an Award which does not achieve anything for them because the party wall matters are still ongoing and they will still be faced with the same claim that they trespassed, caused damage, breached their statutory obligations and are required to pay costs and professional fees incurred.