Why do many architects dislike the Party Wall etc Act 1996? by Bernard Humphrey-Gaskin of abp Chartered Architects, ( abp Architects ), Bromley architects
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| Exposure of existing foundations, during party wall negotiations by Bernard Humphrey-Gaskin of abp Chartered Architects ( abp Architects ) , Bromley architects |
The short answer: “money for old rope”
I suppose the short answer is that the Act is perceived generally by architects as an unnecessary piece of legislation that is only there to fill the pockets of surveyors with no real benefit to neither their client nor the neighbour. The most common phrase used is “money for old rope”. Architects also consider that some surveyors dealing with the Act, charge fairly large and exorbitant fees, normally based on an hourly rate and well in excess of what they as architects can charge their own clients. Furthermore, this fee becomes legally tied into an Award which enforces their clients to pay it.
Yes, the perception is all about the money and not really if the services undertaken by the party wall surveyors actually helps the architect’s clients (the building owners) or even protects the neighbours interests (the adjoining owners).
The poor perception: “money grabbing” & “cash cows”
Working as both a party wall surveyor and an architect I see both sides of the story.
Some party wall surveyors have given the unfortunate impression of “money grabbing” individuals who are only thinking of their own pockets and who are not interested in resolving a dispute, or following the principles of the Act or even considering the practical purposes of the Act as long as they get paid. I have also come across situations where some surveyors will even try to encourage further disputes under the Act in order to use the building owners as a “cash cow” for further fees.
Such a perception is not good for any of the professionals who deal with matters laid out in the Act whether they are structural engineers, solicitors, surveyors or architects because it detracts from the real purposes of the Party Wall etc Act 1996. The Act is there to help facilitate people to undertake building works that may affect their neighbours. It is therefore there to provide a statutory framework that resolves disputes without the need to take the matters to the Courts.
Architects and designers already have quite a lot of frustrating legislation, from “unfair” planning decisions to “awkward” building regulation requirements. Therefore, to have to deal with another piece of legislation that further hampers and quite often protracts a project, is never really going to be welcomed, especially as it appears to be “administered” by yet another professional that has no connection with the local authorities or government departments and who is generally an individual who is not too far removed from their own profession as an architect.
“It is not a good idea” for the agent to work as a party wall surveyor in my opinion., although I am aware there are some party wall surveyors and other construction professionals that still think it is acceptable to provide party wall services for their clients’ building works in order to save them money (that is the excuse I have been given). In my opinion, “it is not a good idea”. I have never provided both the services of an architect and party wall surveyor on the same job. I believe it is a conflict of interests and such an approach cannot really serve the client. Furthermore, any professional providing this "double" service could put their client in a precarious position, if matters get complicated and courts become involved.
As I am not the agent for the persons undertaking the works (building owners) I can be quite open and direct with regards to their obligations and those of the adjoining owners. It also makes it easier for me to consult with the design team and to deal with any issues that are preventing the resolution of a dispute. Furthermore, I am sometimes appointed as an agreed surveyor, because most adjoining owners can see that I am independent of the building owners and I am acting totally within the remit of the Act without any self-interests or other motives that could be obstructing my duties under the Act.
Encouraging architects / designers to see the benefits of the Act: “being positive”
In order to encourage architects into seeing the benefits of the Act I normally have to enlighten them on the various aspects of the Act that can actually help with the works and in turn their own clients (the building owners). There are rights of enclosures (or more precisely making use of works previously undertaken by the adjoining owners), that can save the building owner money on having to do something that has already been done and only paying for half the costs in doing so. The rights of access are quite often overlooked, and when this is used in a positive way it can actually help both parties in getting a better job, (i.e: a decent brickwork face with proper pointing).
As for my counterpart surveyors, I am sometimes in a situation of having to remind them of their responsibility of their appointment under the Act, in that, it is the duty of the appointed surveyors to resolve the disputes rather than perpetuate them or start new ones.
Architects appointed as party wall surveyors: “who understands the Act fairly well”
I am often appointed as the building owners’ surveyor, initially to serve the notices on their behalf and then to resolve the dispute that may follow. I am sometimes confronted with surveyors who think because I am a chartered member of the Royal Institute of British Architects and it is written as such on my letter headed paper that, firstly, I am the architect working on my own project and secondly, that I do not know a thing about the Act itself.
On the first of these points I have already explained the reasons above as to why I do not consider it wise or even clever to take on the duties of a party wall surveyor on one’s own architectural jobs.
On the second point, I am often in a situation of trying to demonstrate that I am a professional person “who understands the Act fairly well”. it does not really matter how long one has been dealing with party wall issues, but on how effective one is, although I have been dealing with matters under Act for over two decades.
The first give away that my counterpart surveyor has not really got a grip on the Act, is when they refer to their “appointing owners” as “clients”. This is often a good indication that the surveyor “may” have a vested interest in the outcome of the resolution of the dispute. How this vested interest manifests itself can be in a number of ways, from the fees claimed to the overall handling of the dispute and trying to get the best “deal” for his/her “clients”. In such circumstances I am loathed to allow the surveyor to handle matters in my absence, as I would be concerned about his/hers so called impartiality in dealing with the matters.
Adjoining Owner Surveyor is sometimes an: “ambulance chaser”
I have been in situations where the adjoining owners’ surveyor has been appointed before the service of the notice. As a result, I am then having to get the surveyor to be properly appointed once the notice is served. Furthermore I disallow them from charging their time prior to the service of notice, as no dispute under the Act could have been in existence before the issuing of the notices. These surveyors are normally defined as “ambulance chasers”. They are the types that scour the planning lists and promote themselves as party wall experts to the adjoining owners and inform the adjoining owners that all their fees would be paid by the building owners. They will often encourage disputes by frightening the adjoining owners, stating that all sorts of calamities are going to befall them as a result of the works happening next door, and they will need their help to protect them. In such situations it is vital that an agreement on the third surveyor is reached as soon as possible, before anything else happens. Unfortunately, this type of party wall surveyors exist and can bring the Party Wall etc Act into disrepute as well as focus our attention away from the purposes of the Act.
However, let us look on the bright side, as there are quite a few decent party wall surveyors who understand that they are there to represent both parties and resolve the disputes fairly. I am always happy to appoint such surveyors for adjoining owners who did not respond to a ten day requests to appoint their own party wall surveyor following the serving of notices. Furthermore, I am happy for such surveyors to conclude the schedule of conditions, or where necessary the awards on my behalf, if I am detained or otherwise engaged on other matters.
The Party Wall etc Act 1996: “has benefits”
In order for the Party Wall etc Act 1996 to work and be promoted as a decent way of dealing with the legal issues surrounding it, those administering it have to behave appropriately and explain it accordingly to all parties, the architects, designers, building owners and adjoining owners.
Architects, designers and their clients need to feel reassured that the Act “has benefits”, even if those benefits are simply a way of recording the state of affairs next door prior to the building works starting and providing a reasonable way of determining if any damage has resulted from the works that have taken place and thereby avoiding the possibility of employing solicitors and incurring court fees, etc. If we, as reasonable professionals cannot get this right, then unfortunately it will be the solicitors and courts that will take on board these issues instead. There are points of law and case laws that happen anyway because of the complexity of some situations that can arise from the Act, but these should be the rarity rather than the norm.
With regards the adjoining owners, it must be demonstrated to them that the Act allows for certain rights and obligations from the person undertakng the works. It should be emphasised to them that the Act should not be used as another “stick to hit” the neighbour with because they did not like the idea of works happening next door in the first instance. It is up to the adjoining surveyors to explain this to the adjoining owners and that their remit can only deal with matters under the Act. The key word here is “impartiality”, and the adjoining surveyors should be willing to show that they are “impartial”.
Appointed Surveyors have: “a duty of care, to both parties”
In one instance when I was appointed as an adjoining owners surveyor I was getting demands from the building owners surveyor to explain to him what was in dispute and to catalogue it, as he was trying to suggest a dispute could not be legitimate if I could not do this. I referred him back to the Act and that it was a deemed dispute and we need to resolve this by ensuring the notifiable works are dealt with by acknowledging (determining) them in an Award. These types of abuses, misrepresentation and misunderstandings of the Act do not help either party and give a bad impression of the Act for everyone.
Party Wall Surveyors need to: “keep it real” and “play ball”
So, how can we as party wall surveyors “keep it real” and ensure that we get a better reputation? Although I do not believe you can make anybody happy to pay for another piece of legislation that they feel is burdensome and unnecessary, there has to be a way of making building owners aware of the benefits of the Act other than the Act to be used as another stick to hit them with. It also depends on the way the adjoining owners are advised and approached by their own surveyors. The adjoining surveyors have a big responsibility in communicating the aspects of the Act that affect their appointing owners and they should certainly not be looking at the building owners as “cash cows”.
Firstly, the surveyors need to be clear on what they are appointed for. They are there to resolve a dispute or deemed dispute following a service of a notice for the notifiable works only.
Secondly, the surveyors need to keep to their remit and not get involved in matters that are outside the Act. I have on many occasions advised my appointing owners (adjoining or building owners) when certain matters are outside my remit and therefore I cannot be involved.
Thirdly, the surveyors need to be reasonable on their fees, as they should know how long things normally take and therefore should not overdo it. They need to remember that they are there to resolve disputes and ensure that the notifiable works are clearly established in the determination and Awarded as such. It is understood that additional works, recording damage and delays from the design team will cause additional time and thereby should be paid for, but encouraging additional work that is outside the surveyors remit, is clearly not “playing ball”.
Secondly, the surveyors need to keep to their remit and not get involved in matters that are outside the Act. I have on many occasions advised my appointing owners (adjoining or building owners) when certain matters are outside my remit and therefore I cannot be involved.
Thirdly, the surveyors need to be reasonable on their fees, as they should know how long things normally take and therefore should not overdo it. They need to remember that they are there to resolve disputes and ensure that the notifiable works are clearly established in the determination and Awarded as such. It is understood that additional works, recording damage and delays from the design team will cause additional time and thereby should be paid for, but encouraging additional work that is outside the surveyors remit, is clearly not “playing ball”.
Lastly but not least, surveyors need to explain to their appointing owners their liabilities as and when they become apparent (this is not always clear on first receipt and inspection of the drawings). They also need to advise them on any opportunities that they may take advantage of, i.e: enclosure opportunities, access to neighbouring land etc. to name just a few.
Bernard Humphrey-Gaskin.
abp Chartered Architects ( abp Architects ) , Bromley architects
Background: Bernard Humphrey-Gaskin is an architect and party wall surveyor with over 25 years experience and a member of the Pyramus & Thisbe Club. He also gives talks to other chartered architects on behalf of the RIBA South East.
Legal Notice: This is for general discussion and guidance only and should not be relied upon for specific matters or points of law.
Also see Bernard Humphrey-Gaskin of abp Chartered Architects website:
Also see Bernard Humphrey-Gaskin of abp Party Wall surveyors website:
abp Architects ( Bromley architects ) - Practice Profile
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| Interior of Sports Centre designed by Bernard Humphrey-Gaskin of abp Chartered Architects ( abp Architects ) , Bromley architects |
Bernard Humphrey-Gaskin is the principal of abp Chartered Architects ( abp Architects ), Bromley architects. Bernard Humphrey-Gaskin works with his wife Maria Humphrey-Gaskin. Bernard Humphrey-Gaskin qualified as an architect in 1987. Bernard Humphrey-Gaskin has a vast experience in the design and construction on various building types. Bernard Humphrey-Gaskin has worked for notable practices such as RHWL, The Property Services Agency and WS Atkins.
Bernard Humphrey-Gaskin has run his own architectural business since 1991, and has worked in the educational, commercial and residential sectors. Bernard Humphrey-Gaskin has experience in theatre projects. ecological and green design projects. Bernard Humphrey-Gaskin is also an experienced party wall surveyor and is a member of the Pyramus & Thisbe Club.
Bernard Humphrey-Gaskin’s other interests and activities include web design, making home movies and is a member of the internet based chess team “The Black Stallion International Chess Team”. Bernard Humphrey-Gaskin was also a Croydon school governor for over 12 years and is still involved with independent school appeal panels for the London Borough of Croydon. Bernard Humphrey-Gaskin has also been an active member of the architectural advisory design panel (TAP), for the London Borough of Bromley planning department for a number of years. Bernard Humphrey-Gaskin has recently been elected as chairperson of the RIBA Croydon, Bromley & Sutton branch.
Bernard Humphrey-Gaskin works closely with his wife Maria Humphrey-Gaskin at abp Chartered Architects ( abp Architects ) as a well organised husband and wife team. Maria Humphrey-Gaskin is also architecturally trained and apart from taking part in the running of the practice as the Practice Manager, she also deals with the measured survey work, and initial design stages of various projects. Maria Humphrey-Gaskin (nee Stylianou) also speaks fluent Greek.
ABP Chartered Architects ( abp Architects ) provides a professional service, from inception to completion. ABP Chartered Architects undertake the designs, planning and building regulation applications, and contract administration for all types of jobs from small domestic works to larger commercial projects. ABP Chartered Architects ( abp Architects - Bromley architects ) are quality assured to ISO 9001.
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Bernard Humphrey-Gaskin and Maria Humphrey-Gaskin of abp Chartered Architects ( abp Architects - Bromley architects ), works with clients to create good architecture and buildings -- to get it built !!!
