In this week’s blog post I will be discussing the case of Onigbanjo v Pearson 2008 relative to the Party Wall etc Act 1996.
This case is widely controversial amongst Party Wall Surveyors as many have opposing views on how the case was dealt with and the decision the Judge arrived to!
Under the Party Wall etc Act 1996, if a building owner intends to carry out construction works that are notifiable, meaning they fall within the realm of the Act, they must serve a Party Wall Notice relevant to the applicable section of the Act upon the adjoining owner a minimum of 1 to 2 months before they commence their proposed work.
Once this Notice is served, the adjoining owner has 1 of 3 response options available to them which in turn determines whether a Party Wall Agreement is required. The response options are as follows:
Response Option 1:
A consent to the Notice means that the adjoining owner is happy with all the information provided to them in the Notice and they agree to the works and Notice, thereby reserving the legal rights and protections afforded to them under the Party Wall etc Act 1996.
Response Option 2:
A dissent to the Notice. If the adjoining owner dissents to the Notice and appoints an Agreed Surveyor, it means that both the building owner and adjoining owner will share the same Party Wall Surveyor protecting their interests. The appointed Surveyor will produce the Party Wall Award also known as the Party Wall Agreement and serve that upon both of the respective owners.
Response Option 3:
Lastly, the adjoining owner can dissent to the Notice and appoint a Party Wall Surveyor of their own choice. This means that both the Party Wall Surveyors will agree the Party Wall Agreement together and only serve it upon the respective owners once they are both happy and in agreement to the contents.
Simple enough right? I am afraid not!
In the case of Onigbanjo v Pearson 2008, the adjoining owner consented to the Party Wall Notice thereby reserving their rights under the Party Wall etc Act 1996. In normal circumstances, once a consent is received that usually marks the end of the formality and the input and assistance of Party Wall Surveyors. The building owner is then in a position to proceed with their proposed works without any of the Act’s formalities being followed and 9 times out of 10 will do that very promptly.
However, in this case post construction there was damage to the adjoining owner’s property caused by the building owner’s party wall works at which point the Act was re-invoked which means a dispute arose to the original Party Wall Notice despite there being a written Party Wall Notice consent in place.
This is somewhat controversial, as the adjoining owner had originally consented to the Party Wall Notice served upon them by the building owner.
Some would argue that as the adjoining owner consented to the notice, they cannot then use the Act for their protection in the future and would be unable to rely upon it to recover the quantum of any damage from the building owner. However, it is worth bearing in mind that this would then leave the adjoining owner in a position where they have to remedy the repairs for the damages through conventional civil procedures. Unlike the Act, this would mean that the professional costs for Surveyors and Solicitors would need to be borne by the adjoining owner and then recovered through the courts.
Onigbanjo v Pearson followed a different path as the adjoining owner essentially turned their Party Wall Notice consent into a dissent. This may be confusing to a building owner, this isn’t to say that an adjoining owner can just change their Party Wall Notice response at their whim. The request to change Party Wall Notice Response options holds more weight with a valid reason.
In this case, as the reason was property damage caused by the Party Wall construction works.
The adjoining owner therefore wrote to the building owner requesting the appoint an Agreed Surveyor which was ignored and led to two Party Wall Surveyors being appointed under Section 10(4)b of the Act:
If either party to the dispute (the building owner and the adjoining owner) refuses to appoint a surveyor or neglects to appoint a Surveyor for a period of ten days beginning with the day on which the other party serves a request on him, the other party may make the appointment on his behalf.
In effect the building owner failed to respond to the adjoining owner’s request and Notice for him to appoint a Party Wall Surveyor, which meant the adjoining owner appointed a Party Wall Surveyor on the non responsive building owner’s behalf.
Following on from the appointment, the two Party Wall Surveyors agreed a Party Wall Award which awarded the adjoining owner a sum of money which dealt with the cost of the property damage to the adjoining owner’s property, caused by the building owner’s Party Wall works.
Upon being served and receiving the Party Wall Award, the building owner appealed it as he believed there was no jurisdiction to produce the Award, for the appointment of Party Wall Surveyors, or for the payment of their fees.
The judge ruled against the building owner and found that the adjoining owner had correctly appointed Party Wall Surveyors on the basis of a dispute under the Act and that there was jurisdiction to agree and serve a Party Wall Award. The ruling also found the building owner responsible for both Party Wall Surveyor’s fees and the adjoining owner’s legal fees! Quite a costly day for the building owner considering he was also been responsible for the cost of the damages caused to the adjoining owner’s property.
Many would argue that the decision should have not reached as the Party Wall Notice response and consent should have restricted this, but this case contradicts that and places emphasis on the fact that despite a Party Wall Notice consent being in place; a dispute can still arise if damage, or another valid issue occurs.
This just goes to show that building owners and Party Wall Surveyors alike, should not just dismiss an adjoining owner’s post consent claims and issues on the basis of the consent to the Notice, as this can be refuted.
While this is a very clear outcome, there will still be instances where raising a dissent post consent isn’t appropriate, therefore if you find yourself in this situation, I would advise speaking to a Party Wall Surveyor at the earliest opportunity to ensure you are properly advised.