Gray v Elite Town Management (Unreported, 23rd July 2015) Central London County Court
Transcript available from: Gray v Elite Town Management 23rd July 2015 (1)
In an appeal against a third surveyor’s award approving mass underpinning of the party wall, the adjoining owner failed to persuade the Court that the party wall surveyors were required to consider alternative design solutions. In relation to the same award, the adjoining owner’s surveyor, who was criticised for merely being a mouthpiece for the adjoining owner, was held not to be a proper surveyor for the purposes of the Act. Finally, an earlier award was confirmed to have been unlawful in purporting to approve special foundations without the adjoining owner’s consent.
This is a decision of HHJ Bailey at the Central London County Court. It is not, therefore, binding on other county courts, although as a decision by an experienced and specialist circuit judge, it is likely to be persuasive in other cases at this level. This case is currently on appeal to the Court of Appeal, due to be heard at the beginning of November 2016.
Several years earlier, the owner of 7 Ennismore Mews, Mr Gray, had created a basement extension by installing mini-piles just inside the line of the party wall. More recently the owner of 9 Ennismore Mews, Elite, decided that it wished to build its own basement, and served notices accordingly. An initial reinforced concrete box design solution (which was the subject of an earlier award) was challenged by Mr Gray and abandoned after it was discovered during initial excavations that some of the mini-piles had deviated so as to stray under the party wall. The third surveyor was called upon to approve, and did approve, an alternative mass concrete underpinning solution which utilised the presence and strength of the mini-piles. The building owner also complained that the adjoining owner’s surveyor, Ms Murthy was not a proper surveyor under the terms of the Act, since she was, it claimed, merely a mouthpiece for Mr Gray. The adjoining owner, Mr Gray, appealed that third surveyor’s award, arguing that the third surveyor should have approved an alternative underpinning solution. Mr Gray also sought a declaration as to the invalidity of the earlier award authorising the abandoned reinforced underpinning solution.
The judge dismissed the appeal, holding (1) that there was no duty on the part of the surveyors (although it might well be good practice) to consider any alternative underpinning designs – in particular that no duty to do so arose from the building owner’s obligation under section 7(1) to avoid “unnecessary inconvenience”; (2) that Ms Murthy was a mere cypher or agent for Mr Gray, was therefore not sufficiently independent of Mr Gray, and was not a “surveyor” for the purposes of the Act – the fees claimed for her were therefore reduced by two-thirds; and (3) that the earlier award did indeed purport to authorise special foundations and was therefore unlawful, that the unlawful part could not be severed from the remainder of the Award, and that the award was therefore invalid – but the Court also refused to make a declaration to that effect because it did not consider it necessary or appropriate to do so.
Since this case is under appeal, one must be careful about drawing too many conclusions from it pending the Court of Appeal’s decision. However, there are some points which can be drawn from it which are either not the subject of the appeal, or which the Court of Appeal is unlikely to interfere with. First, the judge’s approval/application of the decision in Selby v Whitbread  1 KB 736 confirms that it is possible for the “bad” part of an award made ultra vires to be severed from the rest of the award, provided it is practical to do so. Secondly, surveyors will be reassured to read that HHJ Bailey thought that party wall surveyors would be “aghast” to learn that it was being suggested that they had duties in relation to the building owner’s design (albeit this is an issue taken on appeal). Thirdly, the court’s discussion as to the necessary degree of independence required of a party wall surveyor appointed under the Act – “a degree of independence from the party” – is probably uncontentious of itself, and may be useful in dissuading parties from seeking to appoint relatives (for example).