Party Wall Award clauses

Here are a few comments to clauses that I come across regularly when dealing with 2 surveyor awards, either in draft awards forwarded to me or inserted into draft awards returned back to me, some are one-off clauses.

I look forward to any comments anyone has to these clauses or my comments. This is another work in progresses which just gets added to as when… mainly if I want to switch off from something else.

Horticultural ‘relating to the study or activity of growing garden plants’.

Where applicable make good all structural, decorative or horticultural damage to the adjoining owner’s property occasioned by the said works in materials to match the existing fabric and finishes, to the reasonable satisfaction of the two surveyors, with such making good to be executed on completion of the works, or at any earlier time deemed appropriate by the two surveyors. If so required by the adjoining owner, make payment in lieu of carrying out the work to make the damage good, with such sum agreed between the owners or in the event of a dispute determined by surveyors.

If we break this down and look at the ‘horticultural’ element.

What this says is ‘Where applicable make good all horticultural damage to the adjoining owner’s property occasioned by the said works in materials to match the existing fabric and finishes….’ Really? Are you going to mend a plant in materials to match the existing fabric?

In essence, if I am correct and we delve a little deeper, reading the dictionary definition for ‘horticultural’ states ‘relating to the study or activity of growing garden plants’ 

Therefore, IMHO, the clause reads..’Where applicable make good all damage relating to the study or activity of growing garden plants  to the adjoining owner’s property occasioned by the said works in materials to match the existing fabric and finishes’.

‘Horticultural’ is an adjective – how can you cause damage to, and repair an adjective?

This does not appear in the FPWS template awards.

It is a requirement of the Act that the three surveyors or any two of them, or in the event of no two of them being in agreement the Third Surveyor, shall settle by Award all or any matter which is connected with any work to which the Act relates and which is in dispute between the Building Owners and the Adjoining Owners including: the right to execute the work, the time and manner of executing the work, and any other matter arising out of the dispute including the cost of obtaining and making this Award.

— P&T template award

This clause is somewhat ambiguous and is included in the Pyramus & Thisbe Club (P&T) template award and appended to the Green Book 3rd ed. It s not included in the FPWS template award.

First of all it is not a requirement of the Act as this clause suggests that the third surveyor may not agree with one of the two appointed surveyors but this clause states that the Act requires him to settle the matter. Ordinarily there can only be a dispute between the two appointed surveyors and they would call upon the third surveyor.

The wording states that he shall [mandatory] settle by award ‘all matters’ or ‘any matters’ this appears to be somewhat ambiguous giving the third surveyor the right to exercise his discretion as to whether he leaves matters ‘still in dispute’ between the owners including the right to execute any work, the time and manner and any other matter including the cost of making the award. There seems to be a bit of a misnomer as the word ‘shall’ is used in this clause whereby both ‘shall’ and ‘may’ are used in different contexts in the Act.

(q) Ensure that 24 hour clear and unobstructed access is maintained to the electricity substation at all times during the works, and keep all access paths, doors and vents serving the substation clear of dust, debris and material emanating from the works.
— Chris Zurowski MRICS of Chris Zurowski Consulting

What is amusing with this clause is that the clause inserted prior to the clause in question stated ‘All foundation excavations are to be infilled with concrete on the same day, and no excavations are to remain open overnight, nor over any weekend.’ That was the extent of the notifiable works; the AOS was stipulating that this ~4m of excavation be infilled on the same day, presumably an 8 hour day. On this basis the notifiable works had a duration of 8 hours. The access to the adjoining owner’s land was a gate and dropped kerb to the street with residential parking restrictions.

Why would the building owner have to maintain 24 hours clear and unobstructed access? they are not traffic wardens and what jurisdiction do they have in the street anyway???

Why would excavations be left open overnight and at weekends if they are to be infilled with concrete on the same day??

This Award does not authorise or permit the oversailing of the air space above the substation with any cranes, scaffolding or any other oversailing associated with the construction works on the Building Owners’ site. In the event that any such oversailing may be required, the Building Owner is to provide all necessary details & drawings to the appointed Surveyors, who shall consider whether consent for any such oversailing can be determined in a further Award(s) or whether such consent will need to be agreed directly between the respective owners via a separate Licence agreement.
— Chris Zurowski MRICS of Chris Zurowski Consulting

Really? for ~4.5 m of excavation which had unfettered access from the road.

An exclusion clause- it is very difficult to successfully implement any clause that absolves someone from any liability or responsibility from something they agree to.

Any agreement or acceptance made by either of the surveyors in this Award or subsequently during works on site shall not be taken to imply any responsibility by them or their appointed technical delegates for any structural or any other insufficiency in any part of the works whether existing or executed.
— Robert Maycox of David Maycox & Co

What he is saying here is that you are quite happy to agree matters ‘or accept them??’ with anyone on site but do not accept responsibility for what you have just agreed to. Why would you be agreeing structural issues if you are not suitably qualified? as was the case here. In essence, the surveyors have just agreed an Award but absolve themselves from any responsibility for the Award that they expect others to adhere to.