CROSS Safety Report
Delay by party wall surveyor adds to risk
A party wall surveyor causes delay which prevents a dangerous wall from being made safe in a timely manner.
Key Learning Outcomes
For surveying and engineering professionals:
- All building professionals should understand the code of conduct of their qualifying institution(s)
- Codes of conduct will require professionals to have full regard for safety
- The Party Wall Act provides a framework for decisions to be made and works to be put in place even where parties disagree
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A reporter says that the making safe of a dangerous 2m high masonry wall was frustrated by a person who did not place sufficient emphasis on the risk to safety posed by it.
A party wall surveyor acting for the owner on one side of the property, was told by a structural engineer that the wall was unsafe. A party wall surveyor acting for the second party agreed with this position. However, the first surveyor then stated that the wall did not fall under the scope of party wall legislation and therefore a third surveyor could not be appointed to make an award as would be the normal practice.
The second party challenged this position and reported the matter to the Health and Safety Executive (HSE) who referred the case to the Local Authority. The first surveyor then re-considered and decided that the wall did indeed come under party wall legislation.
It was clear to the reporter that prevarication and delays by the first surveyor obviously prevented the wall from being made safe in a timely manner. The reporter considers that safety should have been the overriding matter and taken precedence in decision making.
Expert Panel Comments
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Delays like this do need to be highlighted to raise awareness of the danger to public safety when the stability of a structure is in doubt.
Where the question is one of safety and there is a risk of death or injury if actions are delayed, a question that should be at the forefront of the professional's mind is, "Would I rather explain to a client why I agreed to spending money by acting, or explain to a Coroner, the Police, the HSE and the relatives of the deceased why I chose not to act?"
or explain to a Coroner, the Police, the HSE and the relatives of the deceased
There may be an issue in this case of a party not wanting to pay for something which they start to understand could be their liability under the Act. However, surveyors and engineers should always be mindful of their professional duties under law, their terms of appointment and the code of conduct of their qualifying institution. The code of conduct alone will require them to be competent to perform the duties offered, including knowledge of applicable laws, act with impartiality and to have full regard for safety. It would be very unwise indeed for any surveyor or engineer to act outside of their obligations. Acting knowingly not to have full regard for safety, would be a very serious issue professionally, legally and morally.
The Party Wall Act etc 1996 lays down a framework of actions and timescales to assist parties to agree upon work that is desired or required. The Act is explained in the Government publication Party walls and building work. Emergency work can be undertaken under the Act with parties agreeing the scope, access and timescales for such work. When parties disagree, the Act still provides a framework for decisions to be made and works to be put in place; the Act allows for these circumstances. It should be noted that the Act is only relevant to England and Wales and not elsewhere in the UK (where it does not apply).
It may have been appropriate to have referred this case to the local authority as a dangerous structure. The local authority building control department has powers available to them under the Building Act 1984 to intervene where structures are unstable; they can act to make structures safe where owners do not act. The Health and Safety Executive may also choose to act where health and safety legislation is potentially breached. Of course, property rights and obligations exist for parties under common law and legal redress could be sought to clarify responsibilities. Nevertheless, the mitigation of safety concerns, as defined by the responsible surveyors and engineers, is the issue that all professionals would be obligated to resolve without delay.
Further guidance upon the Party Wall Act etc 1996 is available:
UK Government: Your garden walls; better to be safe
UK Government: The Party Wall etc Act 1996: explanatory booklet
Institution of Civil Engineers: How does the Party Wall Act affect civil and structural engineers?
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