London Building Acts (Amendment) Act 1939 — Dispute as to effect of party wall award — Appeal from decision of Sir Douglas Frank QC, sitting as a deputy High Court judge — Award signed by three surveyors representing the building owner (the respondent company), the adjoining owner (the appellant leaseholder) and the freeholder — Award provided that the building owner was to be at liberty to carry out certain specified works and had to observe some particular requirements, including the maintenance of the exposed face of the party wall in a weatherproof condition — The works contemplated involved the consequence that a party wall which had been internal to a building belonging to the respondents would become after demolition an outside wall of the appellant’s house and thus exposed to the weather — Some years after the date of the award damp penetrating increasingly through the wall appeared inside the appellant’s house and she brought an action against the respondents — The judge accepted submissions by respondents that the award did not impose any liabilities upon them and that the action was in any case statute-barred — Held, allowing the appeal, that the effect of the award was to impose liabilities on the respondents when they elected to carry out the works — There was in particular a continuing liability to maintain the face of the party wall in a weatherproof condition and the action was not barred by the Limitation Act — It was not beyond the powers of the surveyors to impose such a liability
This was an
appeal by Mrs Anna Marchant from a decision of Sir Douglas Frank QC, sitting as
a deputy judge of the Queen’s Bench Division, in an action brought by Mrs
Marchant as plaintiff against the present respondents, Capital & Counties
plc. The action concerned the effect of a party wall award affecting Mrs
Marchant’s house, a small mews house in William Mews, near Lowndes Square,
London SW1. Mrs Marchant’s house was built into the back of a large warehouse building
fronting to streets east of William Mews. Sir Douglas Frank’s decision is
reported at (1982) 263 EG 66, [1982] 2 EGLR 771.
R Fernyhough
(instructed by Kingsley Napley & Co) appeared on behalf of the appellant; S
Bickford-Smith (instructed by Debenham & Co) represented the respondents.
Giving the
first judgment at the invitation of the Master of the Rolls, DILLON LJ said:
This is an appeal by the plaintiff, Mrs Marchant, against an order of Sir
Douglas Frank, sitting as a deputy judge of the Queen’s Bench Division, given
on April 21 1982. By his order the learned judge simply directed that judgment
should be entered for the defendants, Capital & Counties Property Co Ltd,
with costs.
The dispute
between the parties concerns the effect of an award under the London Building
Acts (Amendment) Act 1939. Mrs Marchant acquired in about 1956 a long leasehold
interest in a small mews house known as 17B William Mews, which is near Lowndes
Square. At that time and for many years afterwards there was behind that house
a large warehouse building called ‘The Pantechnicon’, fronting to Motcombe
Street and Kinnerton Street. It seems that there was a single wall separating
Mrs Marchant’s house from ‘The Pantechnicon’, and Mrs Marchant’s house was
built into the back of ‘The Pantechnicon’.
That wall
between the two was unquestionably a party wall for the purposes of the 1939
Act.
In 1964 the
defendants took a building lease of ‘The Pantechnicon’. The terms of the lease
do not matter at all for present purposes, except that it was provided that
after March 25 1973 the defendants would clear the land of existing buildings
and would thereafter build and complete a new building.
It is
convenient at this stage to refer to the scheme of the 1939 Act which replaces
earlier statutes such as the London Building Act 1894. Part VI of the 1939 Act
is concerned with the rights of building and adjoining owners. Section 46 gives
the owner of land built on to a party wall certain rights to repair or underpin
or demolish the party structure or party fence wall, and also various other
rights, the details of which do not matter. If, however, an owner wants to
carry out works on a party wall, he is bound under section 47 to serve a party
structure notice stating the nature and particulars of the proposed work, and
he cannot carry out the work before he has done that and allowed ample time, as
prescribed by the Act, for consideration.
An adjoining
owner may serve a counternotice under section 48 if, for instance, the
adjoining owner considers that particular works, chimney copings, breasts,
jambs or flues, piers or recesses, or other like works are reasonably required
for the convenience of the adjoining owner. If an adjoining owner on whom a
party structure notice is served, or the building owner on whom a counternotice
has been served, does not within 14 days express consent thereto in writing, he
is to be deemed to have dissented from the notice and a difference is deemed to
have arisen between the parties — that is section 49 of the Act.
Where a difference
is deemed to have arisen between a building owner and an adjoining owner in
respect of any matter connected with any work to which Part VI of the Act
relates, then certain provisions set out in section 55 are to apply. If the
parties cannot agree on one surveyor, then each of them is to appoint a
surveyor, and the surveyors so appointed are to select a third surveyor who is
in effect an umpire.
Then there are
provisions for an award to be made. It is provided that the surveyors by
subparagraph (i) of section 55
shall settle
by award any matter which before the commencement of any work to which a notice
under this Part of this Act relates or from time to time during the continuance
of such work may be in dispute between the building owner and the adjoining
owner.
It is further
provided in subparagraph (k) that:
The award may
determine the right to execute and the time and manner of executing any work
and generally any other matter arising out of or incidental to the difference.
There are
provisions in the Act as to costs and expenses, but they are not relevant for
present purposes. It is also provided that the award is to be conclusive and is
not to be questioned in any court except as provided by section 55, which
gives, within a very limited time-limit, a right of appeal to the county court.
In the present
case, when the matter was before the learned judge, it was common ground that
an award had been made, but there was no very satisfactory copy available. We
have now been supplied with
award is dated March 12 1969. It recites that the defendants, who were referred
to as the ‘building owner’, did on May 30 1967 serve on Mrs Marchant, the
leaseholder of 17B William Mews, and also on an insurance company as the
freeholder of that property, notice of the defendants’ intention to exercise
the rights given to the defendants under section 46 and section 50 of the 1939
Act by executing works to the party wall between the two buildings as more
particularly defined in the notice. It is further recited that by a notice of
January 17 1969 the building owner did notify his intention to construct
buttresses against the party wall at the rear of 17B William Mews and generally
finish the wall in the manner shown on the drawing annexed to the award. It
then recited that Mrs Marchant and the freeholder of 17B William Mews had
dissented to the works and a difference was deemed to have arisen; and each of
the three of them, namely Mrs Marchant, the freeholder and the defendants, had
appointed a separate surveyor. The surveyors selected another surveyor to act
as third surveyor, but the three surveyors for the defendants, Mrs Marchant and
the freeholder were in fact able to reach agreement, and the award is signed by
the three of them.
The award in
its operative parts provides by clause 1:
(a) That the intention of the Building Owner
with regard to the party wall is . . . defined on the . . . drawing . . .
attached hereto and forming part of this Award.
(b) That the said party wall is sufficient for
the needs of the Adjoining Owner in all respects.
I take that to
mean that it was sufficient at the time before any works were carried out
because the award is prescribing the works which are to be carried out. The
wall was indeed sufficient at that time because, being a wall between Mrs
Marchant’s house and ‘The Pantechnicon’, it provided support for Mrs Marchant’s
house from ‘The Pantechnicon’, and it also provided full protection against the
weather, there being no possibility of the wall being exposed to the weather in
so far as it was conterminous with the height of Mrs Marchant’s house.
Clause 2 is in
these terms:
That upon the
signing hereof the Building Owner shall be at liberty to carry out the following
works as far as 17/17B William Mews is concerned:
(a) Construct new brick buttresses as shown on
the aforementioned drawing.
(b) Construct 13 in x 9 in pier on existing
cross wall between no 17 and 17B William Mews.
(c) The existing coping stone and guard rail on
said cross wall to be cut back, rebedded and made good.
(d) Finish the top of the party wall and
buttresses with a pre-cast concrete coping. Fill in voids in face of party wall
to form a reasonably flush face, form flashings to all ledges, and paint the
whole wall on completion with two coats of white emulsion paint.
(e) Maintain the exposed face of the party wall
in a weatherproof condition.
Clause 3
provided that the building owner was to do various things, which I need not
list. They included such matters as executing ‘the whole of the aforesaid works
at the sole cost of the Building Owner’, but they were not concerned with any
details of the works but mainly with ancillary matters.
Clause 4
provided:
That any
injury or damage caused to the premises of the Adjoining Owner shall be made
known and notified to the Surveyors immediately and remedied forthwith to the
Adjoining Owner’s satisfaction.
There were
then provisions for entry, as to the timing of the works, and other matters
which I need not rehearse. Then the final clause 12 of the award provided:
That this
Award shall be null and void if the permitted works do not commence within six
months from the date of this Award.
In fact, the
‘permitted works’, which I take to include the demolition of ‘The
Pantechnicon’, were duly put in hand, and the buttresses and pier referred to
were constructed. That was many years ago.
Unfortunately,
damp has appeared from time to time and to an ever-worsening extent within Mrs
Marchant’s house. It appears that it first became apparent in 1970, but it has
got much worse and damp in her sitting-room has been apparent since 1979. It
has not been suggested that the damp is caused by rising damp; it is the effect
of weather damp through the former party wall.
There was a
great deal of discussion about this, which led to no result that Mrs Marchant
found satisfactory. Accordingly she began this action in May 1981, and in the
court below she appeared in person and presented her own case. In this court we
have had the advantage that Mr Fernyhough has appeared to present the appeal on
Mrs Marchant’s behalf.
The learned
judge appreciated, despite certain deficiencies in the pleadings prepared by
Mrs Marchant herself, that the essential question was whether a liability was cast
upon the defendants by the party wall award of March 12 1969, but he held that
there was no liability cast upon them for three reasons.
He said,
firstly, that as a matter of construction of clause 2 of the award it did not
impose liabilities on the building owner; it only gave him liberty to carry out
certain works if he thought fit. I find that a very difficult construction to
arrive at on this award. It is true that the wording of clause 2 begins: ‘That
upon the signing hereof the Building Owner shall be at liberty to carry out the
following’ whereas clause 3 provides that the building owner is to do various
things. However, the award makes no shape or sense if all the essential
provisions as to works in clause 2 are wholly optional on the building owner:
he can construct brick buttresses if he wants to; he can fill in voids in the
face of the party wall if he wants to; he can rebed and make good the coping
stone and finish the top of the party wall if he wants to; but Mrs Marchant and
the freeholder must rest on his goodwill and have no enforceable rights under
the award at all. That to my mind does not make sense. I think that the true
construction and effect of clause 2 is that the building owner is under an
obligation to do all that is required by (a) to (e) of clause 2 if he elects to
undertake the permitted works referred to in clause 12 at all; and, as he did
so, he became clearly bound to carry out the whole of the work prescribed by
clause 2.
In addition,
in paragraph (c) of clause 2, the wording is: ‘the existing coping stone and
guard rail on said cross wall to be cut back, rebedded and made good’. That to
my mind is mandatory. (a) and (b) refer to works which the building owner had
proposed. (c), (d) and (e) refer to matters which apparently had been put into
the award to meet objections by Mrs Marchant and the freeholder. I read (c) as
mandatory. If (c) is mandatory in its reference to the coping stone on the
cross wall, then (d), which provides for the finishing of the top of the party
wall and buttresses with pre-cast concrete coping, is also mandatory, and also
in so far as it provides for the filling in of the voids and the forming of
flashings to all ledges. So equally (e) is mandatory.
As a further
matter of the construction of the award, Mr Bickford-Smith has argued in this
court — although I do not think this point was reflected in the judgment of the
learned judge — that (e), ‘Maintain the exposed face of the party wall in a
weatherproof condition’, is related only to the period while the works are
being carried out and means that the exposed face of the party wall is to be
maintained in a weatherproof condition until the earlier works are completed
ending with the painting of the whole on completion with two coats of white
emulsion paint.
That is not,
in my judgment, a natural reading of the words. ‘Maintain’ is a continuous
process. It means ‘maintain the exposed face of the party wall in a weatherpoof
condition’ without limit of time, and the natural placing of (e) as a separate
obligation indicates that this is to happen after the voids have been filled
in, the flashings have been formed, and the painting on completion of the whole
wall has been done under (d).
As a matter of
construction, therefore, I read the award as imposing a continuing liability on
the defendants to maintain the face of the party wall in a weatherpoof
condition. It is not now in a weatherproof condition; and to maintain it now in
that condition would involve putting it into that condition in the first place.
There is no difficulty in construing an obligation to maintain a wall in good
condition as implying an obligation to put it in the necessary condition in the
first place; that is commonly done in the construction of repairing covenants
in leases.
A further
point taken in the court below and decided against the plaintiff by the learned
judge was that her claim is statute-barred because the damp became apparent
more than six years before the issue of the writ. But if the obligation to
maintain the face of the party wall in a weatherproof condition is a continuing
obligation, then time cannot run, because the obligation arises afresh from day
to day and the Limitation Act cannot provide a defence for these defendants.
The other
point which the learned judge decided against the plaintiff, and upon which Mr
Bickford-Smith has argued
obligation on the defendants was beyond the surveyors’ powers under the Act.
They had no power in the award to do other than order the immediate carrying
out of works; they had no power to impose an indefinite and unlimited
obligation.
It is clearly
established, for instance, by a decision of this court in Leadbetter v Marylebone
Corporation [1904] 2 KB 893 that the function of surveyors under the 1939
Act, as under the 1894 Act which was in force at the time of the decision in Leadbetter’s
case, is to adjust the differences which have arisen between the adjoining
owners and the building owners under the Act, the question for the arbitrators
being how far the building owners are right in imposing their requirements and
how far the adjoining owners are right in their cross-demands made upon the
building owners in relation to particular works proposed to be carried out to
the party wall by the building owners. It is beyond the powers of the surveyors
to go any further and purport to decide future disputes that have not yet
arisen or to lay down how the wall is to be dealt with in uncertain future
circumstances. If surveyors go beyond their powers, then, notwithstanding that
there is no appeal to the county court under the express appeal provisions of
the 1939 Act, the courts have held that the award is pro tanto invalid
and unenforceable. It is not necessary in this case to see how far those
decisions fit in with the current arbitration law.
The question
is, however, what do the surveyors have to do?
They have to decide the difference that has arisen. We do not in this
case have the party structure notice served by the defendants or any notices of
dissent which were given on behalf of Mrs Marchant or the freeholder, but we
are able to deduce what the differences were about from the terms of the award
itself.
The adjoining
owner’s property, 17B, undoubtedly had a need for support. It had a need for
the demolition works and the supporting buttresses to be properly finished off
with coping stones and so forth. Beyond that, it had a need for protection
against the weather, because a wall which had always been internal to ‘The
Pantechnicon’ was going to become an outside wall of Mrs Marchant’s house
exposed to the weather. The surveyors addressed their minds to practical ways
of dealing with this, and, as it seems to me, the need for a pre-cast concrete
coping, for flashings, and for the voids to be filled in are all concerned with
this problem. There would be no doubt, as it seems to me, that, had they
thought fit, it would have been within their power to require that the wall be
rendered weatherproof by a vertical damp-proof course being inserted and by
plastering over so as to provide a surface impervious to rain and weather. If
that had been an immediate work, it would have been beyond argument that it was
something that could have been directed by the surveyors in their award.
The direction
that the building owners are to maintain the exposed face of the wall in a
weatherproof condition is designed to achieve the same result, but one may
infer that it would achieve that without the same initial expense to the
building owners. I cannot see that it is in any way beyond the powers of the
surveyors to impose any such requirement. It may well be that it is in practice
undesirable, save in somewhat unusual circumstances, that surveyors should seek
to impose a continuing obligation by a party wall award rather than prescribing
for particular works which will have a certain long-term result — or are
expected to have a certain long-term result — to be carried out at once, but I
cannot think that it is beyond the powers of the surveyors to deal with this
matter as, in my judgment, they have on the proper construction of 2(e) in this
award.
I would
therefore allow this appeal and discharge the order of the learned judge,
holding that, subject to discussion on the appropriate form of relief, Mrs
Marchant is entitled to have the wall made and kept weatherproof.
Agreeing with
the conclusion and reasons of Dillon LJ, SIR GEORGE BAKER said: As we are
disagreeing with the learned judge, I would say only this, that it seems to me
that the argument that the words in clause 2 of the award, ‘That upon the
signing hereof the Building Owner shall be at liberty to carry out the
following works’, do not impose any liability on the building owner, but merely
give him an option, is quite untenable. It is, of course, unfortunate that,
because of the lapse of time, the notices are no longer available and have not
been before this court or the learned judge, and the processes or procedures by
which they were given are now unknown. But when one looks at the Act, section
48 provides for counternotices, and subsection (4) provides:
A building
owner on whom a counter notice has been served shall comply with the
requirements of the counter notice unless the execution of the works required
by the counter notice would be injurious to him or cause unnecessary
inconvenience to him or unnecessary delay in the execution of the works
pursuant to the party structure notice.
So there is a
provision that the building owner shall comply with the counternotice. That is
then followed by section 49:
If an owner
on whom a party structure notice or a counter notice has been served does not
within fourteen days thereafter express his consent thereto in writing he shall
be deemed to have dissented from the notice and a difference shall be deemed to
have arisen between the parties.
That is
exactly what happened in this case. A difference having arisen, section 55 came
into operation for the settlement of differences.
It seems to me
to follow inevitably that, as my Lord pointed out, 2(a) and 2(b), being works
which the building owners were proposing, must be matters which they, after the
surveyors have made their award, are still at liberty to carry out or not to
carry out as they wish; but, if they are going to carry them out they must
comply with the award and requirements (c), (d) and (e) in the counternotice.
Having reached that position, it then seems to me that the words ‘Maintain the
exposed face of the party wall in a weatherproof condition’ are as clear as any
words could possibly be and impose a continuing obligation which cannot be
subject to the Statute of Limitations.
I, too, would
allow this appeal.
SIR JOHN
DONALDSON MR agreed with both judgments and did not add anything.
The appeal was
allowed with costs. The court made a declaration that on the true construction
of the party wall award the respondents were under an obligation, enforceable
by the appellant, to maintain the face of the party wall in a weatherproof
condition. Leave to appeal to the House of Lords was refused.
