Legal Review: Procedural Nullity & Resignation - Alan Bright

Statutory Analysis: The Nullity & Resignation of Alan Bright

Review of Third Surveyor Referral under Section 10(11) of the Party Wall etc. Act 1996

COMPLAINT REFERRED to RICS COMPLAINT REFERRED TO CIArb COMPLAINT REFERRED TO FPWS
Third Surveyor: Alan Bright FRICS FFPWS MCIArb Director of FPWS
Adjoining Owner's Surveyor: Clayton Ayling BSc (Hons) MRICS MPTS (Ayling Associates Ltd)
3S DECLARED HIMSELF INCAPABLE

1. Bizarre Declaration of Incapacity

Following the issuance of a legally defective award, Mr. Bright has declared himself "incapable of acting" without providing factual grounds. This declaration appears to be a strategic attempt to bypass the duty to correct an inconclusive determination.

"Very sorry but I deem myself incapable and in accordance with section 10(9) of the Act the appointed surveyors may select another to take my place."

Legal Analysis: The statement that he is incapable "in accordance with Section 10(9)" is misconceived. Section 10(9) does not authorize a Third Surveyor to self-certify incapacity at will; rather, it applies where incapacity is an established fact, triggering the duty for appointed surveyors to select a replacement.

2. Referral Items and Procedural Outcomes

Five items were referred to Mr. Bright. Despite the Adjoining Owner's Surveyor (AOS) conceding three of the five points following Building Owner's Surveyor (BOS) submissions, the Third Surveyor issued an award that was both ultra vires and factually incoherent.

Item Subject Matter Referred Final Determination / Outcome
1 Removal of specific Section 2(2) text from the award. Awarded in favour of BOS
2 Necessity of determining boundary position for cill cutting. Conceded by AOS
3 Demand for contractor’s liability insurance certificate. Conceded by AOS
4 Temporary works for non-existent internal wall removal. Wrongly Awarded to AOS (Ultra Vires)
5 Requirement for ICE/iStructE affiliation for designers. Conceded by AOS

3. The "Wrong Question" Principle (Nullity)

A Third Surveyor's jurisdiction is limited strictly to the question referred. By reframing Item 4, Mr. Bright acted outside his statutory power.

Legal Precedent: Nikko Hotels (UK) Ltd v MEPC plc [1991] establishes that if an expert answers the "wrong question," the decision is a nullity. Similarly, Gyle-Thompson v Wall Street Properties [1974] confirms that surveyors act judicially only within the limits of jurisdiction conferred by statute.

Structural Impossibility (Item 4)

The referral asked if temporary works were needed for internal walls. Mr. Bright instead awarded works for the "main rear elevation." As the structural drawings show the beam supports the wall from within the property, the award describes a structural impossibility and is factually void.

Financial Omissions

Mr. Bright failed to award the BOS's reasonable fees for the referral despite a formal request. Furthermore, his 50:50 cost apportionment ignored the fact that the Building Owner prevailed on 80% of the referral items through law or concession.

4. Statutory Failures

  • Section 10(16): An award must be "conclusive." By failing to resolve Item 2 and providing a void determination on Item 4, the award fails this test.
  • Section 10(15): Mr. Bright improperly conditioned the release of an inconclusive award on prior payment, contrary to the statutory sequence.

Jurisdictional Status: Pending Correction

As the award is not "conclusive," Mr. Bright technically retains jurisdiction to rectify it, notwithstanding his declaration of incapacity. Complaints remain active with the RICS, CIArb, and the Faculty of Party Wall Surveyors.