In this episode, Andrew Schofield gives his views, interpretations and opinion on invoking the Party Wall etc. Act 1996 without serving a notice; the scope of Section 7(2) compensation; rights and obligations in using drones for surveys; demystifying the old conflict between the Pyramus and Thisbe Club and the Faculty of Party Wall Surveyors.

You can also watch this interview on YouTube.

Transcription

Philippe: Hi and welcome to another edition of Party Wall PRO the Podcast. Sorry it took me so long to get back online but we’ve been very busy with lots of new customers for our party wall software and also developing a software for schedule of condition that we’re going to release in a few months, which is quite exciting.

I’m very excited today because I’ve got Andrew Schofield with me of Schofield Surveyors and he has agreed to come on the show because…you owe me one, right?

Before we dig into the questions, because this time, it’s a little bit different. I actually went out to our community of users and our mailing list to ask people – to ask you questions directly and we had a ton of responses. So I’m not going to go through all of them but we will try to at least talk about the common themes that came through.

But first of all Andrew, how did you get to where you are? How did you end up doing Party Wall and neighbourly matters?

Andrew: A bit of check on my background. Not a very nice boy at school. Went to sea when I was 16. Spent eight years in the merchant navy, went everywhere, had a thoroughly good time. I met lots of people, some with negotiable affection and well, I met a girl, came to shore, bummed around. Sold brushes door to door, worked at pubs, security guard and then one day I walked past the estate agents where I’d recently bought this flat and I had a young barrister sleeping on the floor to help pay the rent and I walked in to get a job and like the Boys from the Blackstuff – and started off as an estate agent. Did about 12 months of that and then decided I want to be an auctioneer. How to be an auctioneer? You’ve got to a chartered surveyor. Didn’t know any of this of course. Then I met an awesome building surveyor by the way, Mike Rutherford. He’s just brilliant and he – learned with him and went on to Brittain Hadley, partnership, then Conrad Ritblat, as it was in the day, as a senior. Then I signed at another practice for about 10 years10 years, went to Delva Patman where I was a partner and was there for nearly 10 years I think. And then I thought why not try and regain a bit of high ground. I felt that building surveying generally, the standards have dropped – I think the RICS, since the labour reform has changed a lot and I wanted to start something that’s a bit different, also on a different structure to a practice rather than having – I believe very much employee owned so everyone has vested interest in business and it’s a very transparent organisation as much as the people ask a question about – for example, what I earn and I answer it and there’s no hidden secrets about this. We’ve got a business plan to build it up to a certain size and structure it for longevity and it’s not for me, the practice really, I’ve already made the decision. When I’m 65, I resign as a director and they can keep me on as a consultant if they’re not sick of me by then. That’s basically it. It’s a bit of a swan song try to get a high ground, a bit more moral, a bit more – as I say, try and get back to the genuine core interests of construction and the inquiring mind that that requires.

Philippe: So what’s the grand plan? Because I’ve seen you’ve managed to poach some young talent.

Andrew: Poach? Poach? I am so hurt by that comment – these people came to me! They are – I’m really lucky, I’ve got the finest surveyors available really who are great. Yeah, they’re awesome. I mean they’re a lot better than I am. Everything we’ve – obviously Jack is a tour de force. He’s now a mediator with everything that goes with it. and Stuart Cobbold, whose background is in rights of light. Byron of course who is a trained architect. He has got a double qualifier surveyor. We produce really, really good stuff and we’re not cheapest not by a long way, but we’re trying to get the quality back, not just pile it high and set it cheap.

Philippe: Yeah, yeah. So, I guess 95 percent of your work is commercial.

Andrew: No. I wouldn’t think it was actually. No. I haven’t got the breakdown in front of me. I think you would say – well, when you say commercial, do you mean commercial client or commercial property?

Philippe: Commercial client?

Andrew: No, you can’t. No. In terms of fees, I would say 50, 60 percent is for commercial clients. Big residential development of course falls into commercial client. But then we do a lot of high-end residential stuff as well. It tends to be mostly where it has gone wrong or where the owner is nervous and rich and wants a certain thing. That’s what tends to be – surprisingly, it isn’t all adjoining owner, not by a long way. I would say in fact a good 40 – well, 50 percent of our work is building owner and normally when you have a practice, it’s more expensive. You don’t tend to get that. They tend to give you more adjoining owner work because they’re under the mistaken belief that the other side will always pay the fees. So not with us. We get parachuted in a lot. We’re very fortunate. People have been extremely kind to us as well, other surveyors, and we get recommended a great, deal which is mighty handy because one of the ethos behind the practice is very much that we really only work on recommendations from existing clients. We don’t do any outbound marketing. You mentioned yourself, you don’t find much about me on the internet and there’s a reason for that. Keep it below the radar.

Philippe: That’s quite interesting. So what’s the sweet spot then for a practice like yours? Is it high-end residential? Is it big commercial developments?

Andrew: I think probably – curiously enough, if there’s a sweet spot, it’s the relationship with the legal profession because the sort of people we’re talking about, they always have lawyers. They all have lawyers, no question of that. If they’re recommending a practice – like what we said before, it’s someone they can rely on. Someone who is going to give the kind of quality service the clients are going to need. So I would say that yeah, we have a good working relationship with lawyers. Yeah.

Philippe: Right. Well done. Not always easy.

Andrew: Ultimately …

Philippe: Let’s get into the meat of things. So I sent an email around to talking – and to a mailing list, people that follow us and asking them to ask you questions. Obviously you’re used to that because you do speak a lot at P&T events and other places and one of the main things that came up was the – you need a notice for the Party Wall etc. Act 1996 to apply and how to invoke the Party Wall etc. Act 1996. So I will just read out the first one. “Can the Party Wall Act be invoked on a dispute between neighbours if the relevant notice has not been served and the works are progressing? In more general terms, does someone need to serve a notice to invoke the Party Wall etc. Act 1996?” So you’ve got certain views on that.

Andrew: Yes.

Philippe: Please.

Andrew: Yeah. This is one of the odd ones actually where I get the impression that surveyors are fairly united on this, not entirely but reasonably and lawyers are fairly united. But there’s an opposing point of view, which is not usually normally – you know, I get a fair spread – I recentlyhadquitealongexchangea ndIprintedthisoutsoIcouldrefertoit,becausetwo lawyers, both highly experienced in this field. In fact three of them Matthew Hearsum, Richard Webber and Nicholas Isaac were basically talking about this. I think it came off the back, the talk that Alistair and I gave in Central London about a year ago. He fundamentally disagreed with us because both Alistair and I agree that the operation of the Party Wall Etc. Act 1996 is a process and you can’t dive in and out of it really. The Party Wall etc. Act 1996 follows a certain process. Now he disagrees completely. Nicholas Isaac swayed between the two but eventually came up with his thing. I think the thought was that under section 10 he said a dispute could be deemed to have arisen. It was this idea, this word “deemed” meant that you didn’t need a notice. It didn’t need to follow a particular event. I gave it a lot of thought and I came up with basically the theory that section five makes – follows a direct procedure. I don’t know if you want to turn to that. OK. Because it makes specific reference, the notice being served before disputes can arise. OK? I thought this made it – the dispute dependent on dissent or deemed dissent, having arisen – following the service of a notice. So if there was a notice under section 6, followed by dissent or deemed dissent followed by dispute. Followed by appointment. So in other words, it follows the Party Wall etc. Act 1996. It went – notices one, three and six. Then the procedure under section five, followed by the appointment under section 10. Now I felt that it was wrong to just pull section 10 out on its own and just disregarded the rest of the Party Wall etc. Act 1996. It’s meant to be read more or less in a sequence. As I said, I am – the lawyers I just mentioned don’t agree. They think you can just look at section 10, use that word “deemed dissent” and pull it straight out.

Philippe: Is that because of the spirit of the Party Wall etc. Act 1996 as a whole?

Andrew: No, it’s because they’re lawyers.

Philippe: Then the argument of owners would be “well then I’m not going to serve any notice”, right?

Andrew: Yeah. I think that’s probably right because they don’t need to. Of course in Onigbanjo v Pearson [2008] BLR 507 which is the case which governs the circumstances where a building owner had served a notice. It had been consented to. The adjoining owner then said, “Right, your works caused damage.” The building owner basically said, “Well, tough, you’ve deprived yourself of using the Party Wall etc. Act 1996. It’s now a common law matter. You will have to sue me for damages.” Sara Burr and the other surveyors involved in that, quite rightly, said no and they followed the procedure under the Party Wall etc. Act 1996. I think – I can’t quite remember the circumstances now. But I think she “10(4)d” the appointment for the building owner, they made an award for compensation which was appealed and it was held that that was enacted correctly and the award was correct. It’s very important to understand that a notice had been served in that circumstance. So the Party Wall etc. Act 1996 had been invoked. In other words, we’ve done the first stage of that process I just talked about. It had been served. It had been responded to albeit consent. So my own personal view on that is I believe that you have to have served notice. Now the next question is what stage can the notice be served, well it has to be served prior to the works being undertaken? Because it’s about the timing and the manner.

Philippe: So an adjoining owner discovers that one has been starting works, no notice, comes back from a three-week holiday and he sees that the neighbour’s started. What does he do then?

Andrew: You mean he started work without serving the notice, just – he basically – as well as I do, the way to do that is you seek an undertaking from the owners to cease work immediately and then the remaining elements can be dealt with under the Party Wall etc. Act 1996 if and r emaining notifiable works can be dealt with under the Party Wall etc. Act 1996. If he doesn’t do that, you take out an injunction. I’m not for a minute going to say that’s very fair. It puts a tremendous cost burden and risk for them on the innocent adjoining owner. But that’s not our problem as surveyors. We don’t write the law. We have lords for doing that. If that’s what they see is the way that these things should be done, then I’m afraid we’re stuck with it. That’s the way it has to be done. That’s all you can do. But there again, that’s the same for every part of civil law as far as I’m aware.

Philippe: As an adjoining owner, I would feel if my surveyor would come to me and say, “Well, actually yeah, all you have to do is go for an injunction,” I’m like, “Well, it’s going to cost me a lot,” and coming from a building owner, I thought, well, you will have a lot of building owners which would say, you know, with this approach, “I’m not going to serve a notice”

Andrew: I do – I completely agree with you. The times that I have been involved where an adjoining owner has decided no, I’m not having this and has basically gone for the building owner who has ignored the Party Wall etc. Act 1996 have always ended up with the adjoining owner getting compensated quite highly. I’m talking about far in excess of any damage that the adjoining owner may have suffered, certainly in terms of costs. I found that in my experience, the courts are pretty robust about this and I’ve – I know that solicitors are, quite rightly, cautious when it comes to matter of injunctions and they put their clients on good notice on the risk that comes along with it, the cost undertakings and cost, all the other bits and pieces that go with that. Not to mention the initial cost that’s just anything up to – well, between £5,000 and £10,000 usually. Not to mention that – you know, anything that might accrue just to go to trial. But on the few that I have had, the undertaking has always been enough. You don’t want to go further than that. A couple of them have gone to injunction and I have – as I said, in those circumstances, the adjoining owner properly advised, has come out of it pretty well. I wouldn’t necessarily say cost-free. It’s probably still costing them something. In fact that brings us on to it. An interesting question that you’re going to ask me later on, which I’m going to go back to when you get to it.

Philippe: Actually before we – so before we get there, so someone else asks. So, OK, building owner did not serve. Works are completed and damage was caused to the adjoining owner’s property. What is the correct course of action for the adjoining owner to get their property repaired?

Andrew: Actually damages under common law.

Philippe: So yeah, this is the frustrating part for an adjoining owner in that situation is hey, you’re going to have to pay up your solicitor’s fees and all that to go and try to get damages.

Andrew: Yeah.

Philippe: So it’s exactly the same vein is if you’re not – if you don’t serve notice, then the Party Wall etc. Act 1996 won’t apply and so the adjoining owner cannot actually benefit from any protection under the Party Wall etc. Act 1996, right?

Andrew: The Party Wall etc. Act 1996 does – from that point of view lacks teeth, will – on the other hand, am I entirely sympathetic to an adjoining owner who doesn’t take any notice? So you mentioned the bloke that goes on holiday for three weeks. Yes, we all hear these stories. But really, it doesn’t happen that often. It’s mostly people who are so reluctant to spend the money. That’s the first thing or absentee landlords who don’t really keep in contact. That’s most of the effect. If you are halfway responsible, you will get – almost certainly get a notification from the planning office if the scheme planning permission. You will see the builders turn up on site. You’ve only got to ask the questions. You know, please give me an undertaking you’re not doing any works notifiable on the Party Wall etc. Act 1996. Please give me the assurance. Can I see your drawings? Talk to your neighbour. So I’m not – I’m a bit ambivalent about this as to whether the act should be beefed up or not, because I do think people have the responsibility to protect their own interest and not just rely on other people to go and punish their neighbours.

Philippe: It’s true, it’s true because, after all, it’s an enabling act.

Andrew: That’s right.

Philippe: OK. Anything else you want to add to that before we move on? Do you want to move on to the compensation, to section 7(2) ?

Andrew: Yeah. This was a great question but – by the way, everybody – the questions you asked me are really good. I spent quite a lot of time going back through my records and have a look at this. That last one you just asked me, so there’s – I have got an exchange of emails, pages about that issue, about all we just talked about, whether you need to serve a notice or not and as I said, it was a two-hour talk on it. Right. Let’s go on to this idea of compensation under 7(2), right. I think.

Philippe: Well, for full disclosure, I did send Andy the questions beforehand because I didn’t want him to just show up and then record it. So it’s also because it adds value. So the question was: “How far can Section 7(2) of the Party Wall etc. Act 1996 be pushed or how powerful is it? Can Section 7(2) of the Party Wall etc. Act 1996 cover adjoining owner rental losses from the building owner’s scaffolding being on the adjoining owner’s land subject to Section 8 of the Party Wall etc. Act 1996 being followed to the letter of course.” So how far can you push it? How greedy can you be as an adjoining owner?

Andrew: Well, the example you gave me, the answer to is yes, it can. If the adjoining owner suffers a loss, as a consequence of access under section 8 and is directly related to the exercise of a conferred right, well then, yeah, absolutely. The big problem you get, is quite often that loss is very small. I had a case in Carlyle Square, in Chelsea which is just so expensive and the garden at the back was beautiful, a Georgian townhouse yard. It was about the size of a postage stamp and the next door – it was all beautifully laid out, with water features out the back and everything, but it was very small. The next door needed to erect a scaffold which went right up and this scaffold filled the yard area, filled it to the extent they couldn’t actually even open the doors to the basement to get into the yard area. The building owner was very apologetic. He wasn’t doing it deliberately. He had done absolutely minimum to do it and cut down the time and all the rest of it because there is no doubt about it but it trashed the garden completely. When I looked at this, I said, “Well, you can have compensation for this as far as I’m concerned because you are being deprived of use of your garden throughout the summer,” because he had that there for a few months. So the question then arose: How do you value that? Now I – yeah, one of my big strengths is dilapidations, so I’m very conscious of the rules covering damage to reversion. But I think there has to be a demonstrable loss to have a damage, something you can actually put your hat on. So I phone around the local estate agencies and ask: “How much would it be worth with a garden? How much would it be worth without?” It’s about a 25-pound a week difference. It’s the middle of Chelsea but it was ridiculously small. It bore no resemblance whatsoever to the loss of the owners suffered for not being able to use their rear yard area. So this left me in a dilemma and I spoke to the other side surveyor and we agreed that we could use that as a starting point but then we could enhance it by saying that it was – there was a circumstance where it was their home. It wasn’t rented. It had been forced upon them whereas the rental person would have a choice, you see. So I was able to – I felt – it was worth an uplift and we agreed and amicably we talked. So going back to your question on it – can it be stretched to that? Where you can show loss, if it directly relates to the exercise of the conferred rights. So that’s no problem, which brings me back to this other thing that I was quite interested in. We talked about the injunction. So along comes a building owner. Starts doing notifiable works without having served notice. The adjoining owner takes out an injunction. The court order is that parties will appoint surveyors and resolve matters through award. Now do you think in a circumstance like that, that the surveyors could award any shortfall in the cost incurred by the adjoining owner as any loss, right? Baring in mind it’s absolutely in the exercise of conferred rights because it is the failure to serve the notice required by the Party Wall etc. Act 1996. I’m quite sure the lawyers would say absolutely not. But it’s an interesting idea and certainly one that I would be prepared to entertain. I would say, well, I – as a bearer of very little brain, I think that that’s worth considering. You know, you just put down – it’s being forced into this position by actions of the third party in the exercise of a conferred right. OK. We failed to follow completely the Party Wall etc. Act 1996. He spent £10,000. He has got £7500 back. But he has got a £2500 shortfall. That is any loss or damage. We can’t rule it any other way. I’m sure a lawyer will come back to me and explain to me through some detail why I’m wrong. But I like it.

Philippe: You’ve never put that to the test, have you?

Andrew: I think I may have done once. Actually, yes, I think I did award an adjoining owner a thousand pounds from that. But by that time the building owner was battered. But I think I was probably morally right and possibly technically wrong and I do accept that. But that is the strength of surveyors. Be surveyors first, lawyers second. Do right by that, trying to do what’s right under the Party Wall etc. Act 1996.

Philippe: And actually in terms of compensation, what was kind of the crazy stuff that you had to deal with in terms of adjoining owners asking for X amount just as –?

Andrew: I don’t get that much.

Philippe: No?

Andrew: No. I ducked that particular one. I imagine you’re talking about that particular one in – is the Russian one in Belgravia which my colleague, Mr. Redler did with just about any other surveyor in London. I think they’re on their 13t h award now or something. If I’m appointed by an adjoining owner, I think one of the big things – so I emphasised in my talks is managing expectation, making sure that they understand that. And I won’t get beaten up. I don’t take instructions and I won’t do that. There are certain surveyors who are more perhaps interpret the Party Wall etc. Act 1996 in a different and then perhaps more partisan but I’m not one of them. So I don’t get that. If as a building owner, again, I’ve not faced that mainly because I think possibly I’m a bit more robust. I don’t let myself get – people make these sorts of claims.

Philippe: No?

Andrew: No. I ducked that particular one. I imagine you’re talking about that particular one in – is the Russian one in Belgravia which my colleague, Mr. Redler did with just about any other surveyor in London. I think they’re on their 13t h award now or something. If I’m appointed by an adjoining owner, I think one of the big things – so I emphasised in my talks is managing expectation, making sure that they understand that. And I won’t get beaten up. I don’t take instructions and I won’t do that. There are certain surveyors who are more perhaps interpret the Party Wall etc. Act 1996 in a different and then perhaps more partisan but I’m not one of them. So I don’t get that. If as a building owner, again, I’ve not faced that mainly because I think possibly I’m a bit more robust. I don’t let myself get – people make these sorts of claims.

Philippe: Yeah. That’s actually a good way to get to the other question of …

Andrew: Actually, can we go back? Because I’m sorry if I’m going on too long. My only thing to add, I’m going to go back. As I said, I looked through my papers to find out about those sort of things. A few years ago as third surveyor, I was approached by an adjoining owner – not common. It is very rare to be approached directly by the owner because their appointed surveyors were refusing to deal with the matter. And so, via their solicitor came to me and referred it to me as a matter of dispute. And it really was an absolute poisoned chalice. Basically, the referral was whether, as a matter of principle, the raising of a Party Wall would result in diminishing the light into and the view from a window can be described as a loss within the many of the provisions of 7(2) the Party Wall etc. Act 1996. 7(2) the Party Wall etc. Act 1996: The building owner shall compensate any adjoining owner and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act. Now, I should point out, the loss of light was not sufficient to pursue a right of light claim. It was only modest loss. I think the main problem here was that they had a sort of an office on a half landing with window that gave a nice look over everybody else’s’ gardens and that was going to go down. I concluded that as a matter of principle the diminishing of light and the view arising from the raising of the Party Wall cannot be described as a loss within the meaning of clause 7(2) of the Party Wall etc. Act 1996. That’s what I had decided. The reasons were in respect to this was that under the Party Wall etc. Act 1996 there’s no legal right to a view and there can therefore be no loss. Right? And I felt – I went on to say the Party Wall etc. Act 1996 does not create categories of loss that are not already available in common law. This is my opinion and I’m quite sure that for every lawyer, there will be another opinion but that was mine. I felt that that this would be an abuse. And again, it came to light and I said it is possible for the adjoining owners to have a right to light as an easement and therefore injury to this obtained by the undertaking building owners’ notifiable works would be considered a loss. However, clause 9(a) of the Party Wall etc. Act 1996 states nothing in the Act shall authorise any interference with easement of light or other easements in or relating to a party wall. And that being the case, it was deemed that the building owners notifiable works notified pursuance to the Party Wall etc. Act 1996 could result in such interference and then award concerned would be ultra vires. So – and if the award is ultra vires, the loss or damage could not be considered in accordance with the provisions of cause 7(2) of the Party Wall etc. Act 1996. That’s what I was getting to. So I think my advice to practitioners would be when considering any loss or damage, make sure it does relate to the exercise of the conferred right and not tripping over some other part of law. So I think this is a rather devious attempt to try and drag or make something that the Act was never supposed to consider just because the Party Wall etc. Act 1996 is rather loosely worded.

Philippe: Yeah.

Andrew: But my award was not appealed by the way. And by the way, I should point out that I felt it was one of those third surveyor’s awards that didn’t really matter what decision I made. It was going to be appealed because it was one of those – one of them was always going to be p@#$$ off.

Philippe: It’s true. If you weren’t taking this approach, you could end up in a situation where in the office for example, if it had been one of those artists that needs light and can demonstrate that as a consequence, the quality of his art as the mean to quantify the loss.

Andrew: There has been a case about that. I think it was a case about how important north light was to a particular artist.

Philippe: Oh really? Right.

Andrew: It was common what it was then.

Philippe: That’s a good one. Thanks for that. So let’s get to another question. Someone was asking, what is the best course of action to take where the adjoining owners are reluctant to dispute as they do not want to cause trouble and extra cost, however, they’re uncomfortable with the works. So it’s kind of what is the fine tuning of your – how you steer an adjoining owner into what direction. Any views on that?

Andrew: Yeah, brutal. You can’t have it both ways. And this again is the surveyor’s skill to manage expectations. Well, if you are – you don’t want to upset your neighbour or whatever, whatever it is, consent. If the Party Wall etc. Act 1996 has invoked and a problem arises again in the future, you can use the Party Wall etc. Act 1996 to determine it and you may be able to use the Party Wall etc. Act 1996 to determine it. But if you’re concerned about the works then dissent. It’s just as simple as that. Those are your choices. You can’t – you can give conditional consent. OK. But unless that condition is very gentle, for example, I quite often recommend to people, why don’t you just consent? I mean if I were you, I’d write back consenting subject to the preparation of a schedule of condition because that just protects both of you. All right? Or you might want to say, “All right. Subject to you providing details of how you’re going to come in my garden to build the wall,” or whatever it might be.

Philippe: Yeah. I was going to ask actually the conditions. What kind of condition precedent are there to granting consent? A Schedule of condition, that’s one of them. And it’s more and more common, isn’t it?

Andrew: I’d like to think so. Certainly, I get a lot of phone calls from a lot of people. And I do recommend this a lot. I say, “Well, let’s go through the works and let’s have a chat about it. What are they planning to do? Doing this, doing that. OK. Let me look have a look at the drawing.” So I will look at the drawing. It’s only that. If I were you, I’d consent. You’re going to live next door to these people, remember. There’s no point – if you’ve just dissented from their cutting a pocket to put a steel beam in at a princely cost of 1200 quid for the adjoining owner surveyors to be able to even agree to those fees, it’s probably going to be – they’re not going to be your best friends anymore. Let’s put it that way. And really, was it necessary? That’s a good question.

Philippe: Can you – and that was actually my thought because I’m currently an adjoining owner.

Andrew: Oh, you’re one of them are you?

Philippe: Yeah. Is to actually consent subject to me having a say in who they are actually using?

Andrew: I haven’t. But I don’t see any reason why you can’t. You can put any condition you like.

Philippe: Yeah, because obviously, the damage is going to be caused by builders.

Andrew: Philippe, how are you going to know if the building is any good or not?

Philippe: Yeah.

Andrew: I don’t mean that as an insulting way. I just mean it genuinely. How do you know? Half of the time we don’t. And we do contract work here. And we do a lot to test the builder out. We go and look at their past projects. When they submit their tenders they have to give us certain information. We ask for testimonials. And that sort of thing goes on. I mean builders like any other business can change overnight because so often it’s about the individuals involved. And if you look in a modest domestic scheme, you’re either going to have, the chap who has been doing, who has always done it, in which case you’re probably fine. Or you’re going to find that he is particular, the one he particularly relied is going back to Eastern Europe for holiday and somebody else is involved. So you don’t really – it’s very limited value there. I would always say, probably don’t get too involved. It’s your neighbour doing the work. You don’t want that excuse, “Well, you told me who the builder was.” You don’t want to give him that kind of get out of jail. You want to look at the works. All right? Or meet them if you want to and let’s make a value judgment and just see what the impact is on you. If it’s excavations within 6 metres and it’s perpendicular to your property or to your nearest foundation, well, it’s only those few foundations running out that are a risk to you. So they are probably only going to be a metre wide. So you’ll bridge over that without any problem. Obviously, I don’t know your house. But if you have a rear addition stuck out and excavating parallel to it, that’s a different matter that you’ve got to be a lot more careful about. So my advice would always be do a value judgment of the works with the conditions. Reasonable.

Philippe: OK. So …

Andrew: That’s a freebie for you.

Philippe: Oh yeah, thank you. The more fun ones, drones.

Andrew: Yeah, I did some investigation on this. I went – we do quite a lot of drone surveys.

Philippe: All right. So the question was: “Is sending a drone over someone’s property a trespass? And if so, what can be done?”

Andrew: Apparently not. Right. It’s no trespass because you can – well, it’s just not. It has something to do with Air traffic. You have to have – you cannot go over anything within 50 meters which is not under your control, OK? So in other words, what you’re over, you have to be in control of. So if I’ve instructed you to do a drone survey of this building, you can do that and I think you can go over within 50 meters of it. But you can’t go – that has to be in your control. I may have got this wrong by the way so do check it out. This is safety measure by the way. It has nothing to do with trespass. Except to take off a landing where that reduces to 30 meters. OK. Now, you can – you can get – this is where it’s applicable, to a standard commercially available drone. OK? You can be licensed to do more intrusive surveys by the CAA but it’s subject to what’s called an operational safety case. So that’s the health and safety bit of it. The privacy aspect is actually I believe your field, data protection.

Philippe: Yeah.

Andrew: So, my pilot, my techy, his solution is to be very clear about this. He takes off and lands with the camera switched off. So he actually only – so he takes off. Goes over the top of the building I wanted him to survey, camera on. Surveys it. Switches off. He comes back and lands. So that way, he is only looking at the bit that I authorised him to look of on my clients’ house. You should always pre-notify. That was the other thing. So if you’ve got – I’ve got in Kingston at the moment where it’s fight between landlord and tenants and I will pre-notify the tenants of the landlord’s intention. And it will just be simply like this is what it’s going to be. This is why we’re doing it. And I will say about switching camera on and off and that sort thing. However, during this period, if you have any concerns, can you please close your curtains. You are not allowed to show anything that would allow to discover the identity of the individual concerned. So you cannot show the face or anything including such things as cars for example. And if there are any doubts on somebody, you should be prepared to show the images of what you’ve taken to the person concerned before you leave the site.

Philippe: OK. And you wouldn’t anonymise anything that has actually ended up on your film by mistake, right?

Andrew: I think mistake can be – obviously I think mistakes happens. That’s the general guidance. The chap who does it for me is ex-diplomatic police protection so he is very useful for me because I have to do some big surveys in some of the embassy’s down by Holland Park. And I need to do flyovers there and of course, it is surrounded by embassies. And we are able to get the consent to do it. I’m very lucky.

Philippe: Wow!

Andrew: We have good contacts. Yeah.

Philippe: So the trespass point is no trespass.

Andrew: No, I don’t think it’s trespass.

Philippe: OK.

Andrew: But I just say, not really about Party Wall. I know I do. I know I do boundaries.

Philippe: Yeah. But I guess it depends on the height of the air space between the building…. Yeah, nearly time to go. So the last – someone asked the question about the Faculty. So that’s brilliant.

Andrew: Yes, a poisoned chalice. Again, I gave this a lot of thought.

Philippe: “Your views on what added value, the Faculty and Party Wall Surveyors (FPWS) has brought to the profession and process.” So I guess you as a member of the P&T Club. Are you a member of the Faculty or not?

Andrew: I’m not. I think I should sort of qualify this first. There’s a big misunderstanding about the P&T. The Pyramus and Thisbe club is a club and a learned society. It’s there to encourage the pursuit of excellence in the administration of the Party Wall etc. Act 1996. That’s it. It doesn’t have formal complaints. It doesn’t have disciplinary. We have a protocol we expect people to adhere to. And if they don’t, what happens is we just don’t renew their membership. But it is educational. The Faculty of Party Wall Surveyors (FPWS) is a trade organisation. It’s as simple as that. It basically has members practicing in certain field. I believe it has, but don’t quote on this, complaints and disciplinary procedures that are set out. And of course, it’s prime role is to promote its members. So being a member of the Faculty of Party Wall Surveyors (FPWS) will give you a commercial advantage. And I think in truth, certainly outside London, it probably does. I have personal views about the perceived value versus the actual value of membership. But I think that a lot of people do put weight about being able to display membership and organisations against their name as displaying certain amount of competence and governance. In terms of actually improving the administration of the Party Wall etc. Act 1996, I think the answer is probably not. And I don’t mean that necessarily in a negative way because I think actually the individual members probably have benefited. But by doing it, they have a lot more people are involved and I think that they are where it’s previously perhaps the Party Wall etc. Act 1996 would have been administered by people with better knowledge of construction than they are now because, of course, the term surveyor is not defined in the Party Wall etc. Act 1996. I think there are certain things the Faculty of Party Wall Surveyors (FPWS) do really well, really, really well. I think where the individual members organise forums, I think they are being done very well on the whole. I’ve enjoyed speaking at them, where I’m being invited – and usually lively discussions. I think as I say, in terms of advancing knowledge and improving the performance of practitioners administering the Party Wall etc. Act 1996, I am less convinced that they have done quite so much. I think that the P&T Club, are much better from that point of view.

Philippe: So maybe I’ll have to have someone from the Faculty come in.

Andrew: Yeah, sure. Yeah. I mean yeah, there’s a certain amount of jiving going on but I don’t think we are very different. However, one is a trade organisation and we are not. So I think to muddy the waters and say that there is rivalry between us is misleading because we’re different. We do different things.

Philippe: Yeah, yeah.

Andrew: I don’t personally see the need to be a member. I’m a fellow of the Royal Institution of Chartered Surveyors. I don’t see the need to say anything else. And in fact, I would go as far as to say, I’m not a party wall surveyor, never have been, never will be. You know, I’m a chartered building surveyor and I have all the necessary skills to do that and a lot more.

Philippe: Yeah. Well, that’s a good thing to finish on. So anything else you would like to add? Any other …

Andrew: No, it has been great. I thoroughly enjoyed doing it. Thank you very much for your time.

Philippe: Yeah.

Andrew: Great questions.

Philippe: Thank you. I’ve got a whole list. So I – yeah, one of the questions I always ask is who should I invite to come for an interview next? I have – I actually interviewed Sara a long time ago but the quality of the video is so poor, I’ll have to do it again.

Andrew: OK.

Philippe: So we got to get in touch with her again. Who else?

Andrew: Right. You need to make – you don’t just want people I guess pontificating like I’ve been doing. You need something that’s a bit more – see the other side of the coin. Perhaps some other people who feel differently. Perhaps you want to try people who are very notorious perhaps might be the answer, might be interesting. I don’t know.

Philippe: Who? Sorry. You were cut out.

Andrew: Yes. You might want to select a surveyor or somebody who is rather notorious and get their point of view. I mean one surveyor – I have to – who Ihadtobeinvolvedina–so we don’t have to disciplinary procedures but I did disciplinary matter within the P&T Club. He accepted the criticism that was lobbied at him and he said, “Look, I accept. The trouble is that people who come to me, come to me because they know that I am that kind of person, that I am going to be the kind of person who makes trouble if I can. That’s why they come to me.” And I kind of got that too because he – what he did was he didn’t do anything wrong. He was just very unhelpful. For example, he would deliberately not consent. He would deliberately withhold consent to special foundation, delay and delay and delay, prevaricate, prevaricate. Always giving the indication, “Oh yeah, you he’ll give the consent.” And then right on the day, no consent, “Oh, I could give you consent but it’s going to cost you 50 grand.” That sort of thing, which OK, I mean I always tell people, “Don’t ever rely on it. Don’t do that.” If they’re – not just said yes. Work on the basic and then say no. So really, how much – like it or not, the building hemisphere was wrong. Don’t be adjoining owner. So the adjoining owners, they don’t do anything wrong. The just played the Party Wall etc. Act 1996. And anybody who says, “We should apply the Party Wall etc. Act 1996.” They’re not part of that. You are appointed by an owner to apply the Act. You’re not there to educate the other side. If the adjoining owner doesn’t ask for section 11(11) it is not appropriate for the building owner’s surveyor to suggest it to him. That’s not our job at all. You’re there to determine disputes, not to make them. So I think in – so perhaps someone like that might be interesting to talk to. Other – I mean surveyors who I have a huge amount of respect for, and don’t agree with me on lots of things, Stuart Birrell, Jerry Pool, Michael Kemp , of course with the education side of the P&T. These are P&T members I’ve mentioned who are all I would describe as eminent. Certainly, there is not – one of the great things certainly about P&T, we do not agree about anything. I mean what usually happens is we talk about things and they decide that I was right and we call it a day.

Philippe: OK. Perfect. Well, I’ll reach out to those. Also, if you are watching this interview, if you would like to drop me an email at pw@PartyWallPRO.com, you’ll see the email at the bottom of the screen. Feel free to send me an email with any suggestions or if you want to be interviewed or if you have any good questions that I can put forward to my next interviewee that would be really helpful. Andrew, thank you so much for your time.

Andrew: It’s really a pleasure, Philippe.

Philippe: It’s good having you. And have a good afternoon.

Andrew: Thank you so much.

Andrew’s firm: Schofield Surveyors

 

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