January-February 2013

rics.org/journals

Building Surveying Journal

Incorporating the Building Conservation Journal

Neighbourly
matters
• Rights of light
• Party walls
• Boundaries
• Security for expenses
• Tree roots

In this edition of the Building Conservation Journal

• From factory to flats • Skills bursary • Climate change •
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2 Building Surveying Journal January-February 2013

 Contents
Building Surveying Journal – January-February 2013

5 Close encounters
Most building surveyors will come across a
‘neighbourly matters’ issue in the course of their
work, says Matthew Clare, so it is good that they
have the skills to navigate through a dispute

6 Under the spotlight

Rights of light are archaic, argues Liz Peace, which is
why the Law Commission’s review will hopefully find
a balance between the interests of landowners

7 Digest

8 Border guards
8

16
Boundary disputes are really about people not maps,
suggests David Powell, so surveyors are ideally A shadow of doubt
placed as mediators to help resolve them Andrew Smith reviews the issues around rights of light
and how it is easy for developers to run into problems

10 Spell it out
All property professionals are concerned about fees,
says Gary Blackman, which is why adjoining owner’s
19 Going underground
Continuing her series of articles explaining legal
surveyors need to take certain steps to ensure that terms, Vivien King discusses the growing question of
they actually get paid nuisance in the context of subterranean development

12 Recovery position 20 Security check

Andrew Thompson looks at the issues raised when Donald Jessop considers security for expenses
a surveyor is required to consider repair solutions under the Party Wall etc. Act 1996 and how traditional
to a party wall following subsidence damage views have been affected by a recent judgement

23 Root of the problem

Andrew Plunkett discusses ‘foreseeable damage’
in cases of tree root-related subsidence to property
and how recent rulings have flagged the importance
of surveyors highlighting potential risks to clients

24 Framing the evidence

In his second article on fenestration, Rod Appleyard
examines the practical details of fixing and sealing
new or replacement PVCu windows in place

26 Kipling’s six honest men

Ewan Craig gathers tips on the written submission
content of the APC process and how candidates
16
can overcome some potential pitfalls

Editor: Les Pickford T +44 (0)20 7695 1632 lpickford@rics.org Editorial Advisory Group: Gary Blackman (Malcolm Hollis), Alan Cripps (RICS),
Matthew Lown (Tuffin Ferraby Taylor), Peter Miller (William Martin), Gillian Murray (The Landmark Trust), Patricia Newman, James Percival (Savills),
Trevor Rushton (Watts Group) Terry Walker (Walker Associates) and Kevin Woudman (AKD Consulting) Editorial and production manager: Toni Gill
Sub editor: Gill Rastall Advertising: Lucie Inns T +44 (0)20 7871 2906 lucie@sundaypublishing.com Published by: The Royal Institution of Chartered
Surveyors, Parliament Square, London SW1P 3AD T +44 (0)870 333 1600 www.rics.org ISSN: 1750-1032 (Print) 1759-3387 (Online)
Front cover: Shutterstock

While every reasonable effort has been made to ensure the accuracy of all content in the journal, RICS will have no responsibility for any errors or omissions in the content. The views
expressed in the journal are not necessarily those of RICS. RICS cannot accept any liability for any loss or damage suffered by any person as a result of the content and the opinions
expressed in the journal, or by any person acting or refraining to act as a result of the material included in the journal. All rights in the journal, including full copyright or publishing right,
content and design, are owned by RICS, except where otherwise described. Any dispute arising out of the journal is subject to the law and jurisdiction of England and Wales. Crown
copyright material is reproduced under the Open Government Licence v1.0 for public sector information: www.nationalarchives.gov.uk/doc/open-government-licence
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4 Building Surveying Journal January-February 2013

FromClose
the encounters
Chairman
Most building surveyors will come across a ‘neighbourly matters’ issue, says
Matthew Clare, so it is good that they have the skills to navigate through a dispute
T
his Building Surveying Journal focuses on
‘neighbourly matters’, which is a source of
work for practitioners everywhere – although
some aspects are distinctly localised, depending
on the prevailing law of the land. This diverse
subject even allows many building surveyors to
pursue careers specialising in one of its ‘niche’
areas – including rights of light, party wall matters
and boundary disputes.
The skill of a Boundary-related problems cause many UK
neighbourly disputes, from perceived encroachment
good building and unwelcome vehicle parking to the dreaded
leylandii. This is an inevitable consequence of being
surveyor lies in a densely populated but relatively small island with
increasing pressure on land in urbanised areas.
our ability to get Even if neighbourly matters seems very specialised,
it is likely to impact on you at some point in your
our message career so I think that you will find something of
interest inside.
across without
We are hearing more and more about building
information modelling (BIM) and how this wonderful
technology is being used on a daily basis in
confrontation… ever-more affordable and accessible ways. The
role of BIM is evolving and I feel that it has endless
and to bring possibilities in the rights of light field, in terms of
more accurate modelling of new buildings and
the other party extensions, and of adjacent properties.
along to see our Art of arguing
A fellow practitioner once told me that he felt
point of view our profession amounted to “a series of small
arguments” every day – be it with contractors, other
consultants, tenants, neighbours or local authorities.
While this may not be the case for everyone, I
suspect that there is some truth in it. This might
be because, generally, building surveyors are
confident and have strong views that they are able
to articulate – but, of course, that does not always
necessarily have to lead to an argument. The skill
lies in our ability to get our message across without
confrontation, supported by fact, to clearly explain
and bring the other party along to see our point of
view – even if they don’t always agree with it.
As Terry Northwood explained in his excellent
2012 Contract Administration roadshows:
“Compromise is an outcome whereby both parties
feel equally dissatisfied.” Many consider rights of
light in particular to be a mysterious business and
there are relatively few genuine ‘experts’ in this field.
But they come up against each other frequently,
often with roles reversed, representing a developer
January-February 2013
one day and a neighbouring party the next. It is
commendable that these adversaries can joust day
after day, but retain absolute professionalism without
resorting to arguing.
Party wall matters is an area in which most building
surveyors can become involved. This was historically
the preserve of London practitioners, but it is now
much wider reaching. Yet it is often overlooked or
even bypassed completely, particularly on small-scale
residential refurbishments and alterations. Clearly,
ignorance of the issues is no defence.
Future shape
The economy still looks gloomy – the end of 2012
featured downgraded UK growth forecasts and there
is likely to be only very modest growth expected in
2013. The housing market has further contracted
and construction has recently shrunk significantly
– perhaps it had been artificially supported by the
Olympics work for a number of years? And there is
still barely a pulse in the residential new build sector
(depending on who you read).
Never mind a ‘W-shaped’ recession, it has always
felt that we were still somewhere near the bottom
of a ‘U-shaped’ downturn (or indeed ‘L-shaped’ as
former HSBC Chief Economist Dennis Turner so
eloquently put it). Whatever your view about what
has happened or is going to happen, it seems clear
that there is more bad news yet to emerge from the
eurozone and no matter how robust UK plc is, this
will inevitably affect us all. I expect another couple of
years of pain at the very least.
At the time of writing, the Building Surveying Annual
Conference is being planned and will be the usual
busy day packed with technical and professional
topics that will all add to your CPD points. Visit
www.rics.org/conferences for more details.
If you are fortunate enough to be in employment,
please spare a thought for those who are not.
Might you be able to take on a graduate surveyor
or two? Please look at the excellent work of the
Chartered Surveyors Training Trust, which provides
a low-cost route into surveying for keen and
enthusiastic individuals. Please contact the Trust
(see www.cstt.org.uk) if you think you could help.
Matthew Clare FRICS is Chairman of the Building
Surveying Professional Group
bs.professionalgroup@rics.org
Building Surveying Journal 5
Leader
Under the spotlight
Rights of light are archaic in today’s world, argues Liz Peace, which is why the Law
Commission’s review will hopefully find a balance between landowners’ interests
I
t was not so long ago that I was only vaguely
aware of the concept of rights of light, and an
even shorter time still since I began to see its
modern relevance. Yet, over the past couple of
years, a stream of court cases and regular media
attention has revealed it as an archaic practice that
is antagonising an already strained development
industry. Some form of change is obviously
necessary, and the sooner the better.
It seems strange to think that, in this age of
Developers artificial lighting, developers have been forced to
remove parts of their building to comply with a law
have been based on the amount of candlelight needed to read
the small print of The Times. The calculations were
forced to made in the 1920s and popular opinion among
developers today seems to be that they should have
remove parts stayed there.
of their building Retrospective action
But archaism is not the only gripe to be held
to comply with against the rights. Rather, the crowds of critics
are now indicating that it is the legal intricacies that
are of biggest concern. Recently, there has been
a law based a trend for granting injunctions against offending
buildings retrospectively. Not only are claimants being
on the amount compensated, but they are also successfully seeking
injunctions to have any light-blocking sections of the
of candlelight offending building removed altogether.
We first saw this in Toronto Square, Leeds, in
needed to read 2010 when Marcus Heaney won an infringement
claim against his neighbour Highcross, which was
the small print ordered to take down part of its new build (see
HKRUK II (CHC) Ltd (Highcross) v Marcus Heaney
of The Times [2010] EWHC 2245 Ch). Highcross appealed, but
the case was settled out of court before the appeal
was heard.
Planning permission cannot stand up against
these court orders and, consequently, developers
are finding that to avoid demolishing their
constructions, they are being hit for grossly
disproportionate sums of compensation. In 2012,
Great Portland Estates experienced just this when
it settled on a multi-million pound deal with its
New Fetter Lane neighbours, Bradley Investments.
In principle, rights of light may well protect a
property’s value and utility, but a code of practice
has become vitally important to ensure that its
application is not exploited.
Clearly, developers’ fears about extra costs and
delays are very real but, thankfully, a decisive review
by the Law Commission now looks set to allay
them1. This welcome project will assess whether
the law provides an adequate balance between
6 Building Surveying Journal January-February 2013
the interests of landowners and the need to assist
appropriate development. By looking at current
solutions offered by the courts, hopefully some
consistent, measurable scale of compensation can
be found to replace the unmanageable injunction
system we abide by today.
The commission’s consultation on the matter,
supported by the Department of Communities and
Local Government, has already begun, although
publication of any proposed change to the law
is not expected until early 2015. It is hoped that
the review will clarify how rights can be exercised,
without the extra expenses and delays to schedules
currently endured by developers. The commission
could even negotiate a situation whereby these
immensely costly disputes do not have to make it
to court.
Watching the clock?
While rights of light are unlikely to disappear
altogether, there may at least be a sensible
timeframe established for claims to be made. This
more logical approach could see existing building
owners being given the opportunity to view plans
and respond accordingly within a certain period and
then, if no issues are raised, their rights to seek an
injunction are removed.
In support of the review, the British Property
Federation hosted a number of well-attended round
table meetings over the summer of 2012. With
the help of the Law Commission, these gatherings
collected evidence that will help frame future work
on this contentious topic and will be drafted into
a consultation paper, published for public use
early this year. In the meantime though, reports of
the adverse economic impacts of the current law
continue to surface.
I am encouraged by the unprecedented levels of
industry cooperation we are currently seeing and
trust that the Law Commission’s work will have
important practical consequences in the property
industry. The problems may not disappear quickly,
but at least there is reform on the horizon and the
hope of dragging this antiquated practice in to the
21st century.
Further information
1
Details of the Law Commission’s consultation into
rights of light can be found at http://lawcommission.
justice.gov.uk/areas/rights-to-light.htm
Liz Peace is Chief Executive of the
British Property Federation
lpeace@bpf.org.uk
 Digest

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Neighbour Disputes Service correctly specify and use

secondary and recycled
Issues such as the location of a boundary can without the risks and costs of court proceedings. materials in residential
become the focus of a personal war between Neighbours do not have a decision imposed on construction, plus two
neighbours. Lawyers may be expected to fight a them, but instead they achieve their own solution documents on overheating
case through the courts to preserve a party’s with the help of someone who is impartial, in homes: Overheating
rights – but probably at a high cost. understands the issues and is committed to in Homes – Literature
The RICS Neighbour Disputes Service (NDS) helping them to resolve their problem. Review and Overheating in
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January-February 2013 Building Surveying Journal 7

Neighbourly matters – Boundaries
Border guards
Boundary disputes are really about people not maps, says David Powell, which is why surveyors are
ideally placed to help resolve them through a new template for mediation between the opposing sides
B
oundary disputes have been with us ever
since mankind started settling down in one
place and calling it home.
You can pick up the Holy Bible, turn to
Deuteronomy 19:14 and read: “Thou shalt not
remove thy neighbour’s landmark.”
Then turn to Roman poet Ovid and his Fasti
Book II February 23, Terminalia and see:
“When night has passed, let the god be celebrated
With customary honour, who separates the fields
with his sign?
Terminus, whether a stone or a stump buried in
the earth,
You have been a god since ancient times.
You are crowned from either side by
two landowners.”
And open a current daily newspaper and you will
often read the headline: “Neighbour dispute over
hedge led to County Court”.
Most people don’t fall out with their neighbours,
but for those who do have an argument over a
rampant hedge, a rickety fence or a cramped
parking space, there have been a variety of
remedies over the centuries that have failed to
deal effectively with the root cause of the problem.
A new realism
I recently returned from addressing the Nordisk
Landmålerkongress in Oslo, where much of the
discussion revolved around the best way to record
property boundaries. For the first time in my working
life (I have been a qualified land surveyor for 45
years) the discussion has shifted from the pure
technical aspects of land surveying to the economic
aspect of record-keeping as the reality of the
recession sinks in. In my experience, this realism
has been present in the UK for several years but in
many European countries it is only just beginning to
enter the consciousness.
Most, if not all, countries in Europe (for the
purpose of surveying practice I am excluding the
UK) have a precise cadastral system of recording
boundaries. This often involves placing physical
boundary markers in the ground and fixing their
position using a GPS on a co-ordinated grid system.
The boundary of each property is then recorded on
a cadastre in each country’s land registration office.
Individual countries tend to be rather vague
when asked about the precision of their cadastral
markers; a German surveyor once told me that the
markers around every single property in Germany
were accurate to 40mm, while a Greek surveyor
smiled and stretched out his arms as if describing
a fish he once caught. Most other nations seem
to fit somewhere between these extremes.
8 Building Surveying Journal January-February 2013
The cost of creating and maintaining a cadastral
system is huge and there is no avoiding the fact
that taxpayers foot the bill. I mentioned this to
the German surveyor and he looked at me in
astonishment and said: “The taxpayer does not
have to pay anything; the government pays!” This
illustrates the way in which many land (cadastral)
surveyors have viewed life in the past. However,
change is being forced on countries using or
considering a cadastre by economic constraints
that are unlikely to be lifted for many years.
A younger mindset
In England and Wales there is a different approach,
known as the ‘general boundaries system’. I
have seen this system derided and mocked by
the cadastral lobby as being ‘old fashioned’ and
‘inadequate for the modern world’. However, in
the past few years there has been a palpable
change in European attitudes. When I stood up at a
conference in Munich 20 years ago I was laughed at
for suggesting that the general boundaries system
was ‘the way forward’. However, at the recent Oslo
conference a rapt audience drawn from across Is the boundary the fence or the hedge?
Scandinavia listened as I explained the economic
benefits of the system and I was inundated with
questions afterwards, especially from younger
attendees who were less set in their ways.
The general boundaries system is simple. It relies
on published Ordnance Survey (OS) maps and a
land registration process that surrounds each parcel
of property with a red line. OS maps are not precise
and it is not possible to say with certainty what
feature lies beneath the red line but for the vast
majority of property owners it works.
The cost is very low, being activated only when
someone moves house or there is some other
ownership change. More pertinently, that cost is
borne by the property owner at the time. A buyer
may, of course, want a more detailed plan of the
property that either they or the vendor pays for; it
is up to them whether they simply have a red line
round a postage stamp-sized plan or a complicated
fully-dimensioned topographic survey. If they want it,
they pay for it; what could be fairer? That plan and its
related text is then known as ‘paper title’, ‘the deeds’ A concrete cadastral marks a boundary
The discussion has shifted from the
pure technical aspects of land surveying
to the economic aspect of record-keeping
as the reality of the recession sinks in

A German surveyor once told me that the
markers were accurate to 40mm, while a
Greek surveyor smiled and stretched out his
arms as if describing a fish he once caught
or more formally ‘the Transfer’ and if a dispute goes
to court, it is the paper title and not the Land Registry
Plan that is always the starting point.
So, it can be seen that the general boundaries
system is amazingly cheap and property owners
can have as little or as much as they want written
into their deeds; it is up to them. The taxpayer is
not involved.
In an ideal world, that would be all. However, some
people do not agree with their neighbours about the
correctness of their boundaries and such disputes do
not just disappear; they have to be addressed.
A precise cadastral system would not address
this problem because, as in ancient times, these
disputes are really about people and not about
maps. Interestingly, there are many boundary
disputes in countries where cadastral systems exist.
Property owners claim: “My neighbour moved the
boundary marker”; “The surveyor made a mistake”;
“The surveyor’s ranging rod was not vertical”,
because, just as in England and Wales, some
people will always argue.
Having specialised in boundary demarcation
for the past 24 years, I have spent many a long
motorway journey thinking about the best way to
resolve these disputes. In a strange sort of way,
the best place is in court. The arguments are put
forward, the experts are listened to and the judge
decides where the boundary runs. The downside is
that the cost is truly frightening; easily amounting to
£30,000 or more for each party. To make matters
Images © David Powell
worse, things come out during the trial about “who
said what to whom” that serve to increase the
bitterness between the parties, who usually have
to carry on living as neighbours.
New template
With all that in mind, I got together with Martin Burns
at the RICS Dispute Resolution Service (DRS) a few
years ago and the germ of an idea was planted. This
has now grown into a template that is changing the
way we look at boundary dispute resolution.
When I revealed these new ideas in Athens,
Bergen and Oslo there was an almost evangelical
air in the room and I am certain that they will be
adopted as the way forward. A senior Danish
January-February 2013
Neighbourly matters – Boundaries
delegate in Oslo came up to me afterwards and
said: “We are starting to do this in Denmark, too.”
It might be a few more years before the cadastral
kernel, Germany, adopts our ideas but I am sure
that it is inevitable. From my experience it will be the
younger surveyors (probably not my generation) who
will carry the template into the future.
Simple elements
So, what is this ‘way forward’? Well, it is based on
some simple elements that are already in place.
First, it recognises that the one and only profession
that understands property ownership with all its
ramifications is surveying (chartered surveyors in
England and Wales, licensed surveyors in Europe).
No other profession immerses itself in everything
to do with property, and the chartered surveyor is
invariably a trusted member of their local community.
Secondly, the general boundaries system works for
most people so ‘if it ain’t broke, don’t fix it’.
I hear the GIS lobby shouting: “But OS maps are
not accurate enough for GIS purposes.” My answer
is: “Yes they are… it matters not, for GIS purposes,
on which side of a wall or a hedge a boundary
between two property owners lies.”
If two neighbours have an argument over a
boundary dispute they can approach the DRS and
ask for a chartered surveyor to mediate. This is not
Mediate (with a big M) it is mediate-lite (with a small
m). The surveyor takes some measurements, forms
his own view from a technical aspect and then goes
from side to side trying – and usually succeeding –
to reach an agreement.
There will always be the odd case that proves
to be impossible to resolve and the courts will be
there as an instrument of last resort. But, as the years
roll by and money continues to be in short supply,
I am certain this new way of dealing with boundary
disputes will become the norm and can be spread to
any part of the world, with the RICS leading the way.
David Powell FRICS is a boundary demarcation
surveyor and founder of PSL Chartered Land Surveyors
davidjpowell@btinternet.com
Building Surveying Journal 9
Neighbourly matters – Fees
Spell it out
All property professionals are concerned about fees, says Gary Blackman, which is why adjoining owner’s
surveyors need to take certain steps to ensure that the sums agreed under the contact actually get paid
P
rior to a Party Wall Notice arriving on their
doormat, many people will have no prior
experience of their new role as an adjoining
owner (AO). The question “what do I do now?”
is frequently how it all begins. The last thing that
a novice AO wants to hear is that they may incur
fees on account of their neighbour’s building
activities, with the hassle of getting reimbursed at
a later date.
Of course, the Party Wall etc. Act 1996 provides
that in all normal circumstances it is the building
owner (BO) that will bear such costs… but it is not
always as straightforward as that.
Assuming that an AO seeks specialist advice,
they do, in many cases – as is their right under
The appointed the Act ­– appoint their own surveyor (adjoining
owner’s surveyor, AOS) to ensure that their interests
AOS still has a are properly safeguarded. This arrangement is
formalised in a standard letter of appointment.
duty of care not One matter we shall return to later is, how many
surveyors send out terms and conditions with their
only to the AO letter of appointment?
Once appointed, the AOS contacts the building
owner’s surveyor (BOS) to agree, among other
but also to the matters, a party wall award. In their discussions,
the BOS may ask the AOS for details of their
BO to perform professional fees so that they can be incorporated.
For the AOS, the inclusion of their fees in the award
the obligations is an important, but only the first, hurdle: actually
getting paid is another matter entirely.
imposed on
Contractual relationships
them by the Act Usually, the AOS’s fees are paid: however, difficulties
arise when payment is not forthcoming. The
diligently and problem is that, while there is a clear contractual
relationship between the AO and their AOS, none
impartially such exists between the AOS and the BO – whom
the AOS is ultimately relying on for payment. Nor is
the Act itself helpful in this regard: Section 10(13)
simply states: “The reasonable costs incurred in
making… an award… shall be paid by such of
the parties as the surveyor(s) making the award
determine.” The award should state who should pay
what – but it does not, and cannot, stipulate who
should receive that payment.
However, convention has it that AOSs have long
sought payment direct from BOs – often without
problem. Indeed, there are examples of cases that
have been successfully argued by AOSs in court,
enforcing fees payment by BOs: Anstey Horne &
Co v Lai (unreported 21 January 2000) is one such
example. Surveyors will take little comfort, however,
from the judge’s words from that case in finding for
the AOS: “I may be wrong on the law but I know I
am right in justice.”
10 Building Surveying Journal January-February 2013
Court cases relating to non-payment of AOSs’ fees
find more frequently that the absence of a contract
between the AOS and the BO precludes the former
from mounting a contractual claim against the latter.
However, although the AOS will not strictly be able
to recover fees from the BO under a contract, the
AO can (as a party to the Act). This is a point that
was considered in Onigbanjo v Pearson [2008]
BLR 507 MCLC in which the award attempted to
stipulate that the AOS’s fee was payable direct by
the BO. The judge recognised that, in reality, the
BO usually does pay the AOS’s fee directly but, in
adding that “that is not the legal position”, ruled that
payment should be made to the AO (who would,
themselves, pay their surveyor).
Excessive AOS fees?
But given that it is only because of the BO’s
proposed works that necessitates the AOS’s
involvement – and a mechanism for payment
exists (albeit via the AO) – what is the problem?
The most obvious question to ask is: has this
scenario come about because of excessive AOS’s
fees? Certainly the majority of referrals to the third
surveyor are over fees. You do have to pity the BO:
they have negotiated a fee from their own surveyor
for serving notices etc, and then get presented
with another bill from the AOS – sometimes for
substantially more than they are paying the BOS. In
this respect, it may help if AOSs’ fees are quantified
in some way.
But also consider what a prospective AOS will
do the next time they are approached by an AO.
Having not been paid for a previous instruction they
could decide to take the hit and just move on, but
what if it happens again?
One approach is to try to create a link between
the AOS and the BO by securing a written
undertaking from the BO to pay the AOS’s fees.
Actually realising this could be difficult – and,
anyway, why should we burden the BOS and task
them to sort this out for us? In any event, BOSs are
unlikely to recommend to the BO that they enter into
a contract with the AOS.
Duty of care
In the absence of a payment undertaking, simply
refusing to act once appointed is not an option,
bearing in mind that the appointed AOS still has a
duty of care not only to the AO but also to the BO
to perform the obligations imposed on them by
the Act diligently and impartially. The same could
be said if the AOS decides to do nothing until the
undertaking is signed and sealed, despite the idea
being positively received, because it could still take

BUILDING OWNER
PARTY WALL AWARD
(BO)
CONTRACT
BUILDING OWNER’S
SURVEYOR (BOS)
Figure 1 – The relationships between the various parties in party wall work
months until it is finalised. Notwithstanding that
developers are usually working to tight deadlines
and awards have to be in place before notifiable
works commence, refusing to act simply frustrates
the proper function of the legislation.
Also, in doing so, the AOS may well be deemed
not to be acting ‘effectively’ (as required under
Section 10(6)(a) of the Act) and thus open the door
for the BOS to act ‘ex parte’. This will not go down
well with an AOS’s appointing owner – would they
ever say: “I’m not going to act. The BOS will sort
out the award and you may have to appeal this
yourselves. Oh, and by the way, you’re likely to
incur costs too.”
It could be that the AOS does decide to act,
but takes the decision to refuse to sign or send
back the award until the fees are paid. Thankfully,
behaviour like this is rare but, if it does happen, is
this in the spirit of the Act? Is this not merely holding
the BO to ransom?
Assigning rights?
So, what is the solution? It has been suggested
that the AO may be able to assign to their AOS
their rights to recover monies from the BO in the
event that the BO refuses to pay the AOS directly.
The desirability of this from a practical viewpoint
is debatable – after all, the BO has no hand in
appointing the AOS.
Another option is for the AOS to send their
bill to the AO for payment who, in turn, will seek
reimbursement from the BO. Again, this is hardly
an attractive proposition to the AOS as they will
probably have already told the AO that their fees
will be paid by the BO – which they will normally
do (as long as they are reasonably incurred) albeit
on a reimbursement basis.
The reality is that there is no definitive answer
to the problem. In my view, what an AOS should
do first is to spell out to the AO that they could
Neighbourly matters – Fees
ADJOINING OWNER
(AO)
NO CONTRACT CONTRACT
ADJOINING OWNER’S
SURVEYOR (AOS)
potentially be liable for the AOS’s fees in the event
that the BO does not pay. It is not ideal but does at
The convoluted
least serve to forewarn the AO what could happen.
Much as a surveyor would customarily do for other
approach that
types of instruction, this could be outlined in the
terms and conditions sent out with the letter of AOSs are
appointment.
Secondly, should the AOS not also (as damage sometimes
limitation) inform the BOS of their hourly rate,
give an estimation of the likely fees for the works forced to adopt
to be undertaken, set out travel times, review of
information, correspondence, etc? That way, at to claim their
least the BO should be made aware, early on, of
the quantum of fees that they should expect. fees is certainly
Of course, in today’s uncertain economic
climate all property professionals are concerned not helpful to
about fees. But it has to be said that the convoluted
approach that AOSs are sometimes forced to a business’
adopt to claim their fees is certainly not helpful to
a business’ cashflow. The problem is magnified in
developments involving complex awards that can
cashflow
take many months to finalise, requiring numerous
interim invoices.
On a final note, while fees are arguably at a
low point (and possibly expectations are even
lower) they should not be so low that surveyors
feel compelled to agree party wall awards quickly,
without adequate consideration. Not only is this
unprofessional but it possibly even negates the
whole point of the Act – which is, after all, to protect
owners’ interests.
Gary Blackman MRICS is an Associate with
Malcolm Hollis
gary.blackman@malcolmhollis.com
Related competencies include: M006,
T051, T077
January-February 2013 Building Surveying Journal 11
Neighbourly matters – Subsidence repair costs

Recovery position 2 To accompany a typical section 3 or 6 notice

Andrew Thompson looks at the issues raised in adjusting the standard administration process when a surveyor is
required to consider repairs to a party wall following subsidence damage in commercial and residential properties
<insert name(s) of the adjoining owner(s)>

R
epair solutions of damage typically <insert adjoining owner’s main postal address>

associated with subsidence of cracking

and underpinning need to be carefully
considered by surveyors during the administration
of the party wall process because the method
departs from the standard route encountered when
acting for a developer.
The examples, documents and templates used
in the RICS Party wall legislation and procedure
guidance note1 consider the situation of the building
owner as a developer with no recovery of the
repair costs. The example documents assume a
building owner will be responsible in full for the
professional fees and the cost of the works, plus the
full cost of all damage. The assumption of the RICS
Working Group that developed the guidance was
that a surveyor would adjust the base documents
to make them project-specific. In the context of
repair recovery, the example documents will need
adjustment to make clear the intention to recover
costs (see Figure 1 for an example change).
Under the Party Wall etc. Act 1996 <insert name(s) of the building owner(s)> (the building
owner) is obliged to serve you with the accompanying notice of the intention to carry out
works which has the potential to affect your premises.
This letter is to explain in less formal terms that if you disagree with any of the proposed
works you should concur in the appointment of an agreed surveyor, or appoint your own
surveyor to safeguard your interests.
The surveyor’s fee, under all normal circumstances, will be paid by the building owner, who
will also be responsible for making good any damage that the works proposed may cause.
I would be grateful to learn whether or not you agree to the works proposed or, if you are
intending to appoint your own surveyor, who this will be. Please complete and return the
enclosed acknowledgment form giving this information and kindly tell me of any other
person having an interest in the property, either as landlord or tenant.
I would be pleased to explain in further detail the formalities involved in these matters if you
so wish.
Figure 1 – This example letter from the guidance note will require paragraph three to be
replaced with text..............................................................................
Signed: explaining the repair and warning of the potentialDate: recovery of costs
.............................
Print name: ..............................................................................
Authorised to serve notices for <insert name(s) of the building owner(s)>

It is common for a subsidence event to trigger

Inform adjoining Serve formal
a claim by the policyholder under the Buildings owner of notice under the
Section of an insurance policy for the property. sent to a lay adjoining ownersubsidence
Note: Notices will normally beEstablish and, while not required, this
Act stating clearly,
Investigate
accompanying letter will assist in givingABI
whether problem.
meaning to the legal The
requirements.
The coverage of subsidence as an insured peril is liability Party Wall Notice in plain English,
agreement that a recovery
common in both commercial and domestic property. is applicable
should not come
as a surprise to under the Act is
However, in this article the example of a domestic the owner (Best anticipated
property will be followed. Practice)

A long process
The first phase of the sequence is the inspection Party wall
and investigation of the damage, typically followed Normal right of Once the Tribunal surveyors Brief party wall
by site investigations and monitoring of the crack is ready, an award (Tribunal) surveyors on
appeal process
is issued on independently issue of liability
movement. This is undertaken in the surveyor/ runs under the Act
thePROCEDURE
30 | PARTY WALL LEGISLATION AND question of perform their role and justification
adjuster role. The investigations all take time and liability and consider the of recovery
it is quite normal for many months to pass from issues
the first inspection to the point that a property is
ready (in technical terms) for a structural repair. The
classic error made during this period is to focus Strictly within
a period of
wholly on the investigation and not to proactively two months of In the event of a
Works proceed as
start to consider the repair costs and potential completion of the Adjoining owner dispute, section
nomal property
works, issue a has one month to 10 and the
recovery issues. repairs under detailed account consider account publication of an
Should the subsidence have resulted in crack professional to the adjoining
award is required
supervision owner in the
damage to the party wall then this is very likely to same manner as
be an issue to both owners and it is in the interests serving a notice
of both to co-operate. This joint approach is
successful when the fault source is found to be due
No dispute, the
to a third party – for example, when it is caused adjoining owner
by a local authority street tree. The party wall becomes liable
to honour the
element of the repairs is undertaken on an equally account at the
proportioned basis between the owners as neither is end of the month
period. Failure
directly responsible for the defect or want of repair. leads to County
The party wall surveyors will, however, need to Figure 2 – Key stages in a repair
Court recovery
action
consider if both owners are making equal use of the recovery action under the Act
section of party wall that is the subject to the repair.

12 Building Surveying Journal January-February 2013


The recovery of the repair costs and all professional
fees will be undertaken via the adjusters through
normal civil court procedures. In this situation, it is
suggested that the surveyors clearly set out the full
cost of the repairs under the award and the fees
of both surveyors, as the full cost to the recovering
owners will be the subject of the adjuster’s
recovery action.
The common damage approach becomes
more complex when the tree, or the cause of
the subsidence defect, is due to an action of the
neighbouring (adjoining owner) property. In domestic
cases, it is necessary to investigate whether the
insurance position deals with recovery via the
Association of British Insurers (ABI) Domestic
Subsidence Tree Root Claims Agreement Third
Party Liability2,3.
Surveyors acting in the loss adjuster role need to
be aware that party wall surveyors should only deal
with matters that are in dispute. Therefore, if the
two policyholders (owners) have reached agreement
on an issue of recovery via the operation of the ABI
agreement then this point needs to be conveyed
to all sides to avoid needless time and professional
fees being incurred by the party wall surveyors. The
surveyors may still need to administer the technical
points of the repair.
Consider recovery
My recommendation is that the party wall surveyor,
when aware of the operation of the ABI agreement,
should record this point in the preamble of the
party wall award clauses. This clearly shows
that the surveyors, in the determination of the
dispute, have considered the question of recovery.
This statement of fact will also be important to
the building owner in the future should further
subsidence damage arise because clause 3 of the
ABI agreement limits its operation to the initial first
claim for damage. In practical terms, the surveyors
are recording the evidence needed for a second
event recovery action.
Let us therefore consider the recovery situation if
the question of liability has been given to the party
wall surveyors to award as a dispute between the
owners. This will be the situation when a recovery
is a second event under the ABI terms or for
properties that do not hold insurance cover.
The owners may select an agreed surveyor
and under this route the appointed surveyor
needs to be issued with sufficient information to
allow a technical assessment of the damage, the
reasonable causation and the costs. The award is
likely to be structured on a two-stage basis. The first
would deal with the issue of liability and then, post
works, a second award might be necessary should
a dispute arise over the account under Section 11(4)
and 11(5) dealing with the extent of recovery under
the Party Wall etc. Act 1996. The strict timeframes
of Section 13 should be remembered.
It is more likely in this type of recovery action
that the owners will want their own surveyor. Each
surveyor needs to ensure that the terms of their
Neighbourly matters – Subsidence repair costs
appointment makes clear that the question of fee
liability will be a matter under the award. Once
again, beware of your own standard templates –
in a repair situation, the adjoining owner’s surveyor
cannot issue terms of business stating that the
building owner will be the sole party liable for
the payment of fees. This implies that you have
considered your view of the recovery before you
have seen the evidence and will lead to a shock to The classic
the adjoining owner when they are not only writing
cheques for your fees but also the building owner’s error is to focus
surveyor and all or part of the cost of the repairs.
While areas of practice (such as the CDM wholly on the
Regulations) have evolved to recognise the role
played by an insurance company in a project investigation
managed repair, the party wall legislation is currently
set out in the name of the owners. The appointment and not to
letter therefore needs to come from, and be in the
name of, the owner even though they may have little proactively start
interest in the technical detail as everything is being
managed on their behalf by the insurer.
This article considers the interaction of the party
to consider the
wall process within an insurance claim. The Act is
silent on the issue of insurance, and the timeframes
repair costs
for appeals and decisions are those fixed by the
Act. The surveyor needs to ensure that all parties
and potential
are made fully aware of these strict legal timeframes
because party wall matters are procedural on this
recovery issues
type point. Therefore, non-compliance will result in
the defeat of a claim.
The role of the party wall surveyor is to administer
the division of costs for repairs under the Act.
This is legally and technically a separate role to
the insurance loss adjuster. This is an important
separation because for the party wall surveyor, the
recovery of costs and fees is limited to the works
under the Act while the loss adjuster will consider
the wider full recovery action at common law.
The rules and scope are separate in approach.
Surveyors working in this area therefore need to be
very clear on the difference between insurance and
the party wall process to ensure that the award is
strictly limited to matters under the Act.
The examples used in this article are subsidence-related
but the general concept of recovery of elements of the
repair cost under the Party Wall etc. Act 1996 will Further information
remain the same, so readers need to consider this
1
Party wall legislation and
procedure guidance note
article in the wider application.
(GN27/2011), 6th edition,
can be downloaded from
Andrew Thompson FRICS is a member of the RICS www.rics.org/standards
Boundaries and Party Walls Panel and a member of 2
 BI Domestic Subsidence
A
the working group that wrote the Party wall legislation Tree Root Claims
and procedure guidance note Agreement Third Party
andrew.thompson@uwl.ac.uk Liability (1997)
3
See Section 5.7.5 Adjoining
Owners of the Subsidence
RICS Building Defects: Practical Analysis
in relation to insurance
2013 Seminars, Jan-Jun, various UK locations,
www.rics.org/buildingdefects claims guidance note
(GN81/2011), 1st edition,
which can be downloaded
from www.rics.org/
Related competencies include: M006,
T051, T077 standards
January-February 2013 Building Surveying Journal 13
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14 Building Surveying Journal January-February 2013


Building Conservation Journal
2 Building
traditional skills
Kate Gunthorpe reviews the
initiatives to tackle the gaps in
skills essential for the
conservation, repair and
maintenance of the UK’s
traditional building stock
4 Rescuing an icon
John Assael describes how a
former Art Deco west London
factory was carefully restored into
a residential tower while still
retaining the original fabric
6 Under the weather?
Peter Brimblecombe looks at the
impact of climate change and the
performance of building materials
8 Heritage Agenda
Keeping traditional
building skills alive
and well
page 2
January-February 2013
rics.org/journals
From the chairman
‘D
epartment of Bizarre Requests, how can we help you?’
This was how we used to play with callers on a Friday
afternoon long ago. I felt my past might be catching
up with me when a caller enquired what one might budget to
commission a quinquennial survey of the Blackpool Tower. He
stressed it was a hypothetical question. Of course, I investigated
with gusto, late on Saturday afternoon, with my ten-year-old
as a decoy. For me, the 4D cinema in the tower, as part of the
‘Blackpool Eye’ experience, nailed the spirit of place. A donkey’s
tail zoomed towards us, lifted with a loud raspberry, and a puff
of air was blown on the audience. The children screamed with laughter while all the women
tutted their disgust in perfect unison. Matron in the Carry-On films could not have been more
appalled. At the top, we stepped trembling onto the glass floor of the viewing platform and
looked down to the new Comedy Carpet. I rushed with everything Blackpool is – a huge
dare, giddy and thrilling; look-at-me-I’m-on-the-edge.
The spirit of place has moved every generation from Vetruvius to Hemingway (Wayne, that
is). The policy-makers call it ‘character’, and that anthropomorphic analysis has remarkably
survived post PPG15. Gazing over to the brooding hills of Cumbria, I considered the old saw
that owners end up resembling their pets. Could this be so for the spirit of place, that people
could be shaped by their experience of places? Even in our current down-at-heel lifestyles,
the ‘staycation’ upholds the tradition that to see different things, you must travel. And in turn,
we come to see things differently, returning refreshed, even from the shortest break.
DH Lawrence’s travel writing – try Sea and Sardinia – conveys the idea that people could
live with greater intensity and effect if the spirit of place is allowed to inhabit us. It is an
idea far removed from the every-town high street shunned by the Portas initiatives and the
inevitable cookie-cutter housing found in the more necrotic suburbs. This is not to say that
commercial interests cannot commission innovative design – the Pleasure Beach remains
in family ownership, with ride engineering to rival any in the world. Tellingly, Blackpool also
hosts the most exciting publicly-sponsored design investments; twinkly illuminations, Frank
Matcham’s gob-smacking Tower Ballroom, and the more recent high tide organ on the
promenade. Both public and private sectors can clearly match and exceed the standards
of patronage we need. But the principles of placemaking are inevitably affected by the
withdrawal of development rights. Design codes in particular are potential assassins to
creativity. The National Planning Policy Framework has at its core the concept of light-touch
regulation. The historic environment policy embodies the break-eggs-to-make-omelettes
argument. It cites the viability (or should that be vitality?) of historic places as potential
justification for ‘less than substantial harm’. The spectrum of opinion in our sector rates this
change from developer’s charter to practical conservation. The proof will be whether our
clients can continue to invest new life into old places, and ultimately, whether building users
and visitors are in turn transformed by that vibrancy. It’s a risky step out of the policy comfort
zone, and we cannot yet be sure whether it is a glass floor or a dangerous fall.
Membership of the Building Conservation
Lynda Jubb FRICS is Chairman of Forum is FREE. For more information,
email conservation@rics.org or visit
the Building Conservation Forum
conservation@rics.org
www.rics.org/buildingconservationforum
Training
Building traditional skills
Kate Gunthorpe reviews the initiatives taking place around the country to tackle the gaps in construction skills
that are essential for the continued conservation, repair and maintenance of the UK’s traditional building stock
O
ne in five buildings in the UK dates from before 1919. This
sheer quantity of traditionally constucted building stock creates
a need for skills for the conservation, repair and maintenance
of this built heritage. The first organisations to respond to this challenge
were English Heritage and CITB-ConstructionSkills, which recognised
the merit of working in partnership. This led to the creation of the
National Heritage Training Group (NHTG) – a specialist sector skills
development group with a UK-wide remit.
In 2005, the NHTG published Traditional Building Craft Skills:
Assessing the Need, Meeting the Challenge, which quantified the
scale of skills shortages and gaps. This report and further research
in 2008 showed that only around one third of the workforce had the
skills needed to work with traditional building materials. This skills
gap is of particular concern, because the research revealed that the
repair and maintenance of traditional buildings accounts for nearly
half the current output of the construction industry. With these needs
established, a pioneering partnership was formed between Cadw,
CITB-ConstructionSkills, English Heritage, the NHTG and the National
Trust, pooling resources, expertise and funding to take action and meet
these challenges.
The Traditional Building Skills Bursary Scheme (TBSBS) for England
and Wales was established against this backdrop in 2005 with the aim
of addressing these gaps and shortages of traditional building skills.
Achievements so far
Between 2006 and 2012, the TBSBS delivered an ambitious range
of paid on-site based training placements. With the support of
£1.7m of Heritage Lottery Fund (HLF) cash, the partners worked
together to deliver 138 upskilling placements with a broad range
of companies and organisations. A contractor would act as a host
for a trainee, who learnt as they worked alongside experienced
craftspeople. The trainees worked successfully with small and
medium-sized companies and particularly effectively with sole
traders, where a constant relationship could develop between
trainer and trainee.
2 Building Conservation Journal January-February 2013
There were challenges for the scheme. While some building skills
such as stonemasonry, solid plastering and carpentry attracted
good numbers of placement providers and trainees, others, such
as traditional roofing, leadwork and fibrous plastering failed to do
so. In part this may be due to these trades being perceived by their
practitioners as less ‘heritage’ focused and consequently not requiring
specific conservation-related training to work on traditional buildings.
However, overall this scheme – at the time the largest and most
complex of those funded by the HLF – has undoubtedly been an
outstanding success, covering a large range of trades and delivered
across two countries. This success can be measured quantitatively in
exceeding the number of placements and qualitatively by the standard
of the rich learning experience provided to the trainees.
Placement benefits
Simon Doyle undertook a 12-month placement with TBSBS, followed
by training with the National Heritage Ironwork Group bursary
scheme. He has now set up a company with a fellow ex-NHTG
trainee as heritage blacksmiths, amalgamating the traditional skills
with conservation sensitivity. “My work-based training exposed me
to realistic situations and dilemmas that needed practical solutions.
I not only honed my blacksmithing skills, but I learnt to deal with
historic metalwork with a conservation approach, adapting my
techniques as necessary.”
Another trainee, Alice Midmore, has continued to develop her
carpentry and joinery skills with two organisations – Handspring Design
in Sheffield and Felin Uchaf on the Lleyn peninsula in north Wales. “This
has given me training opportunities I wouldn’t normally have got. It’s
given me the time to build up my skills and experience on a variety of
projects,” she says.
There were benefits for the placement providers as well. John Guest
of Oxford Lime Mortar, who hosted a placement for trainee Oskar
Newadzi and now employs him, says: “Working with the scheme has
helped my business select, recruit and support a trainee in whom I can
invest time and effort, which has in turn helped to develop them and

my company.” Indeed, Guest was so impressed with the scheme’s
concept and the trainee’s performance that he has taken on another
trainee under the Building Traditional Skills (BTS) scheme, which
launched in early 2012.
Widening opportunities
In summer 2012, the TBSBS scheme secured a further £760,000 of
HLF grants, which will enable it to continue through to 2015. It will
target displaced apprentices throughout England and Wales who,
in the current economic climate, have lost their hosts. It will include
opportunities to work with and learn from the highly skilled and
experienced National Trust and Cadw direct labour teams.
The lessons learnt from TBSBS were also used to design the BTS
scheme, which aims to reach a wider potential audience with a greater
range of opportunities. With £1.3m of HLF funding, this project is
the largest and most complex project in the current HLF Skills for
the Future Programme. The scheme is delivered by NHTG through
a network of regional coordinators in England. This means that the
project can make the most of local knowledge and contacts, work
closely with local companies and provide on-the-ground support to
trainees and placement providers.
There are opportunities for 60 paid and supported site-based
placements, which follow the best practice model developed by
TBSBS. In addition, there is a range of training from short introductory
courses through to NVQ Level 4 senior crafts qualifications. The
scheme supports the wide range of training and qualifications
developed specifically for this sector, including heritage specialist
apprenticeships and foundation degrees in building conservation. There
are also opportunities for experienced craftspeople from a mainstream
construction background to gain NVQ Level 3 Understanding Repair
and Maintenance of Traditional (pre-1919) Buildings via modular
training programmes.
Under this scheme, Aimee Henderson has embarked on a
12-month placement to achieve her NVQ Level 3 in Construction Site
Management (Conservation). She is working with Heritage Project
Management on the Manchester Town Hall and Library transformation
programme and says: “This is such an exciting project to work on,
Above: TBSBS trainees Becky Starmer, Lois Raine, Nora Kasanicka,
Lisa Ferguson and Lisa Oliver mark Women in Construction Day at the
National Trust property, Tyntesfield
Top left: By attending the Building Crafts College in Stratford, Alex
Rose-Deacon gained her Advanced Diploma in stonemasonry. After
completing a 12-month placement at Gloucester Cathedral, Alex is
now a full-time member of the Cathedral Works Department.
Training
partly because of its scale and ambition but also partly because of the
new challenges it is presenting to me, such as justifying expenditure to
important stakeholders or planning the work schedule for a whole team
of people. I know I’ll leave the placement feeling far more confident as
well as more professionally equipped for the real world.”
Looking ahead
As with TBSBS, the emphasis of the BTS scheme is to promote
the qualification and accreditation of a skilled workforce. To date, 44%
of trainees from TBSBS have gained NVQ Level 3 Diploma in Heritage
Skills. By successfully completing a health and safety test, trainees
then go on to gain their Heritage Skills Construction Skills Certification
Scheme card. For building surveyors and other professionals procuring
conservation, repair and maintenance on traditional buildings, asking
for this card, for example at pre-qualification questionnaire stage,
can reduce the risks that come with contractor selection. It gives the
professional team and their clients proof that a contractor has the right
skills and has achieved the appropriate standards in their work.
The partners in both schemes are committed to promoting equality
and diversity in the sector. TBSBS improved on the industry statistic
of 2% women working in hands-on construction by granting 15% of
its placements to women. However, it has failed to attract significant
numbers of ethnic minorities, with only 3% of trainees from outside the
home countries and 0.6% being non-white. To ensure that the sector
draws from the widest possible pool of talent, the BTS scheme is
taking a more proactive and focused marketing campaign at regional
level. It aims to provide 15% of its bursaries to women and 5% to
ethnic minorities.
It is too early to make meaningful analysis of the scheme’s
performance in this area, but there are some interesting opportunities
developing. In Stratford, east London, the scheme is working with
the Building Crafts College on delivering introductory courses for a
local women’s group. In the North West, the scheme is working with
the All Souls Bolton Project to offer opportunities among the local
predominately Muslim community.
Good news
Reflecting on the TBSBS, scheme manager Clara Willett comments:
“We are now seeing the success of the scheme through the
achievements of the trainees. Not only are they gaining excellent work
experience, but 78% of them carry on working in the heritage sector
and more than half have gained their Heritage Skills NVQ. This is great
news for these individuals and the sector.”
The success of these schemes is due in large part to the partnership
established between the leading heritage organisations, the support
of the HLF and the commitment of placement providers in a difficult
economic climate. But at the centre are the keen and motivated
individuals who have an opportunity to learn and develop skills that will
stand them in good stead for their future career. It is good news that
our precious built heritage is in safe hands.
Further information
More information on the schemes can be found at www.nhtgskills.org and
www.buildingbursaries.org.uk
The TBSBS evaluation report is available at
www.buildingbursaries.org.uk/about.html
Kate Gunthorpe MRICS is Senior Building Surveyor at English Heritage
and recently gained RICS Historic Building Conservation Accreditation
January-February 2013 Building Conservation Journal 3
Restoration
Rescuing an icon
John Assael describes how a former Art Deco west London factory was carefully
converted into a residential tower while still retaining the structure’s original fabric
T
he surest way to safeguard historic
buildings is to give them a viable future
– but that future is worth little if the
redevelopment does not also pay due homage
to the past. Assael Architecture’s Wallis House
project in west London strikes a perfect balance
between these two aims, as shown by its recent
win of the New London Award for Conservation
and Retrofit jointly with the King’s Cross Station
redevelopment by John McAslan.
Not only has a vacant Art Deco former aeroplane
accessories factory been transformed into a highly
desirable apartment building, but by carrying out
the restoration as sensitively as possible, in close
collaboration with a variety of heritage bodies, a
touch of 1930s glamour has been brought back
to an area once justifiably known as London’s
Golden Mile.
Sitting at the heart of Art Deco London, the
factories on this short stretch of the Great West
Road between Chiswick and Brentford managed
to combine the energy of modern industrialism with
the glamour of the jazz age. American companies
such as Gillette, Hoover and the Firestone Tyre
Company produced vast buildings with grand
facades that brought a flavour of booming New York
to the west London skyline.
But while the Golden Mile’s rise was rapid and
dynamic, its demise after the war was slow and
dismal. As the Great West Road grew into the M4,
the factories that lined it gradually disappeared,
their smart exteriors belying the fact that they no
longer met the requirements of modern industry.
The fate of the iconic Firestone building was
particularly poignant – demolished on a public
holiday in 1980 shortly before a preservation order
was due to be served.
The Simmonds Aerocessories factory could quite
easily have shared its fate. Designed by the same
practice of Wallis, Gilbert & Partners, which arguably
did more than any to shape the Golden Mile, the
building’s 11-storey central tower and west wing
quickly became a local landmark, thanks partly to
the distinctive statue of an airman that graces its
facade. And like the Firestone, it eventually fell into
disuse, having spent several decades after the war
as a pharmaceuticals factory.
But that is where the similarities end. For rather
than being dismissed as an obsolete factory and
demolished, the Simmonds building survived long
enough to be cleverly reimagined by Assael as the
fittingly named Wallis House – a residential tower
that forms the iconic centrepiece of Barratt Homes’
12 acre Great Western Quarter regeneration project.
The key question is, how has the practice managed
4 Building Conservation Journal January-February 2013
to introduce the highest domestic standards into
this distinguished old factory while retaining the
original fabric?
The challenge
The Wallis House project began in 2005 when
Barratt London bought the vacant grade II-listed
building with the intention of creating a mixed-use
development of 111 private apartments, a 1,500m2
health club and 1,700m2 of office space. The first
challenge posed by such a radical change of use
would have been obvious before the architects had
even entered the building. Its location next to the
M4 meant that a significant portion of the envelope
fell within noise emission category D, which normally
leads to planning permission refusal for residential
use. Overcoming this was clearly going to be a key
factor in ensuring the scheme’s viability.
Early exploratory work into the state of the
structure revealed further challenges. This process
began with sourcing original building drawings from
the Twentieth Century Society and a local library.
However, these did not tell the whole story, because
the building had undergone many modifications
and incarnations over its long life. Structural surveys
were needed to gain a better understanding of the
building and these were carried out in two phases,
one before the building was stripped out and a
second more comprehensive one afterwards, which
took two months. These investigations revealed
extensive corrosion of some of the main structural
steel frame elements. In some places, this was
visible through the damaged brick and stonework,
but most of the corrosion was hidden and the brick
and stone had to be carefully removed to expose
the steel.
The structure posed further problems. The
crumbling brick and stonework and single-glazed
Crittall-type windows of a 1930s factory were
never going to meet 21st century thermal efficiency
standards, which, according to 2006 Building
Regulations, demand an insulation coefficient
of 0.35W/m2K. Assael needed to find a way
to overcome this and make the building fit for
purpose to the satisfaction of the London Borough
of Hounslow and the National House-Building
Council, while also protecting the historic fabric
to the satisfaction of a variety of other interested
parties including English Heritage and the Twentieth
Century Society.
The solutions
Repairs to the facade involved professional
stonemasonry and the laying of specially fired and
sized bricks, but the most urgent problem facing the

project team was the corroding steel structure. To
address this, structural engineer Scott Wilson first
replaced the most severely damaged members and
then drew on advanced electrochemical theory to
connect the entire existing steel frame to a cathodic
protection system. This effectively turns the frame
into a galvanic electrical cell in which the steelwork
of the building becomes the cathode, while another
metal is connected as the anode. The second
metal has a more active voltage and is therefore
more likely to corrode; it is thus sacrificed to
protect the steel.
With the structure secure, attention could turn
to the thermal and acoustic performance. The
efficiency of the fabric was dramatically improved by
lining the internal surface of the walls with a phenolic
laminate that consisted of 10mm board bonded
to insulation. However, after exhaustive studies to
Repairs to the facade involved professional
stonemasonry and the laying of specially fired and
sized bricks, but the most urgent problem facing
the project team was the corroding steel structure
ascertain the viability of refurbishing the Crittall-type
window frames, noise and thermal leakage proved
insurmountable barriers.
Various secondary glazing options were
considered but deemed difficult to operate,
obtrusive or prone to condensation. Discussion
of this issue with the conservation officer and the
Twentieth Century Society continued for a whole
year, but eventually a high-performance double-
glazing system by Danish firm MAG Hansen was
chosen to the satisfaction of all parties. Crucially, its
sightlines were very similar to the originals.
The site’s inherent noise problems were further
addressed through the use of a whole-building
ventilation system and by situating most of the
residential space to the rear of the site. The
non-residential uses, including offices and the leisure
complex, face the elevated road and a corridor
down the axis of the building on the first floor
creates an acoustic buffer for the apartments.
Despite the fundamental change of use, large
parts of the interior have been protected. The
apartments have been laid out to accommodate the
idiosyncrasies of the original factory – indeed, pillars,
angled walls and differing floor levels mean that no
two are the same. The polished plaster surfaces
January-February 2013
Restoration
of the main staircase, which spans two-and-a-half
levels, have been meticulously restored by hand,
and the original steel balustrade serving the tower’s
north-west staircase has also been retained.
Sadly, some features had been lost over the
years. Originally, the building had a double-height
entrance space, but this had been subsequently
modified, with a mezzanine floor inserted and the
Art Deco fascia removed. Precise replication of the
original was impossible because very few records or
photographs existed.
So rather than create a pastiche, Assael chose
to create a contemporary, double-height foyer
with a minimalist glazed entrance. To open up
the entrance, a hole had to be punched through
an internal sheer wall, which proved structurally
challenging because it provided bracing for the
tower. Scott Wilson’s solution was to provide
extra reinforcement to the columns either side of the
new opening.
The new entrance is a great example of the
delicate balance that was struck at Wallis House
between conservation and modern redevelopment.
From the outset, the priority was to preserve as
much of the existing fabric as possible and strip
away the less important later additions or alterations
to the building. Another example of this was
the creation of two large courtyards through the
demolition of redundant industrial sheds to the rear
of the building.
This approach was made possible by the mutual
trust that existed between the project team, the
heritage bodies and the council. Decisions were
always based on research, testing, analysis and
long periods of negotiation, leading to a result that
all parties are happy with: a building that is at once
lovingly restored and totally reinvented.
John Assael is Managing Director of Assael
www.assael.co.uk
Related competencies include: T006, T012,
T013 and T021
Building Conservation Journal 5
Climate change
Under the
weather?
Peter Brimblecombe looks at the impact of climate
change and the performance of building materials
N
icholas Hawksmoor designed his buildings for the
long term. “I am of the opinion, if violence does not
happen, this fabrick will stand 1,000 years,” he said – a
sensible notion, but perhaps a luxury few can still afford. Despite
his perceptiveness, Hawksmoor could not have anticipated
the magnitude of change facing urban environments over the
past 350 years, but was nevertheless aware of the damaging
effect of weather and coal smoke. And as Peter Ackroyd’s novel
Hawksmoor (1985) reminds us, he sensed an irony that funding
for his London churches derived from a tax on coal.
This millennium may bring novel changes. While contemporary
cities of Europe and North America have shown a remarkable
improvement in urban air quality as primary pollutant concentrations
have been reduced through changes in their nature, the fuels they
use and regulations imposed, this does not mean that the threat
has gone; rather that it has altered. In addition, the coming century
is likely to bring profound change in terms of climate. In the UK, this
will bring rising temperatures and shifts in the seasonal patterns of
rainfall and humidity, albeit subtle; just a few degrees or a few per
cent. But although we can understand how this might affect human
behaviour or crop growth, it can be more difficult to imagine how this
affects materials.
Extreme events
The most obvious impact of climate change on buildings is in
the frequency of extreme events such as storms, floods and
heatwaves. These can have a sudden and catastrophic effect
and are likely to occur more frequently in the future. Floods have
dominated the news in recent years and have increasingly been a
concern for heritage managers as observed in the University College
London project Engineering Historic Futures. Despite this, a little
caution is needed in attributing all of this to climate change. Flooding
can result from changes in the catchment, especially non-permeable
urban surfaces such as buildings and roads. Furthermore, insurance
claims have become larger and often flood plains have been more
extensively built-up than in the past. During extreme events materials
can pushed beyond their design limits.
Dry conditions
We can also see the accumulation of damage over time; a long
period of dry weather could cause a loss of soil moisture and a
lowering of the water-table and thus affect building foundations.
In terms of materials, extended dry conditions could well
mean the movement of salts to the surface, or perhaps long
periods of continuous dampness could lead to ‘deep-wetting’
in porous stone.
6 Building Conservation Journal January-February 2013
There are more subtle ways to degrade materials. Phase changes –
ice to water or brine to salt crystal – occur at a defined temperature
or relative humidity and small changes in the average temperature or
relative humidity can mean that the number of transitions between one
phase and another can change dramatically. The number of freezing
events in the UK has declined historically over the past two centuries
and the trend is likely to continue. This reduces the impact of frost
shattering on porous stone. Conversely, drier conditions may well
enhance seasonal impact of salt weathering to stone.
Pollution
In the contemporary urban atmosphere, the composition of pollutants
has changed from high concentrations of aggressive sulphur dioxide
and coal smoke to nitrogen dioxides, diesel soot and ozone. Sulphur
dioxide is a phytotoxin, but the accumulation of nitrates on porous
surfaces can change the extent of biological growth. The nitrogen
oxides are less aggressive towards calcareous stone than sulphur
dioxide, but the decay products are more soluble and thus less likely
to form crusts.
In the future, increased sunlight hours may mean that ozone and
other oxidants could be of greater importance, making stone less
susceptible to pollutant attack than in the past. The most sensitive
materials would be polymers, plastics and organic coatings. In the
case of metals, iron was attacked readily in polluted atmospheres of
the past, but less so now. The more oxidising atmosphere may mean
that aluminium or copper could become more vulnerable in future. In
northern Europe, higher future temperatures might cause metals to
corrode faster, although at warmer sites even higher temperatures can
make metal surfaces drier and reduce corrosion rates. The impact of
the future environment on metals will be a balance between pollution
effects and climate.
Meanwhile, particles in the atmosphere no longer derive from coal
smoke, but diesel exhaust. These are smaller in size, blacker and rich
in organic compounds that change the nature of the soiling process
that discolours facades. Initially attractive modern building surfaces
may be disfigured by areas of rain-washed diesel soot. The increasingly
sunlit and oxidising urban atmosphere can cause these to change from
dark to warmer tones.
Planning is key
Climate change is a subtle process but its slow advance does at
least offer the time to plan. A sensible response is to introduce better
and more thorough maintenance. Given changing rainfall patterns,
it is more essential than ever that buildings’ drainage systems are
properly cleaned. In addition, overhangs that shelter facades need
to continue to be effective under stormier conditions, especially if
2
1 The rates of damage to rubber and
35
polymers. The increases in damage
30 rates through the current century
are greatest in central Europe
25 where future ozone concentrations
could increase substantially
20 2 Recession rates of porous
limestone in microns per year for
15
London 1100–2100 AD, showing
10 the importance of two centuries of
intense coal-burning. The increase
5 predicted for the current century is
a function of rising carbon dioxide
0 concentrations
1100 1300 1500 1700 1900 2100

there is a change in the predominant wind direction. Care should also
be taken to choose materials that are resistant to climate change.
In particular, polymers and plastics may well be more vulnerable,
especially if exposed to strong sunlight and oxidising urban pollutants.
Protection requires careful thought about the future. We may not
meet Hawksmoor’s vision of millennial survival, but perhaps a century
of protection seems an achievable aim.
Peter Brimblecombe is a Professor of Atmospheric
Chemistry at the University of East Anglia. He is
currently on leave at City University in Hong Kong
p.brimblecombe@uea.ac.uk
Further information
Peter Brimblecombe & Carlota M Grossi (2009) Millennium-long damage to
building materials in London, Science of the Total Environment 407,
1354-1361
May Cassar & Chris Hawkings (Eds.) Engineering Historic Futures,
Stakeholders Dissemination and Scientific Research Report,
Centre for Sustainable Heritage, University College London (2007).
eprints.ucl.ac.uk/2612/1/2612.pdf
WMF (2002) The genius of Nicholas Hawksmoor, World Monuments Fund
Journal Summer 30-35 bit.ly/nhawksmoor
Related competencies include: T006

MSC CONSERVATION OF
THE HISTORIC ENVIRONMENT
• Focus on the conservation of historic buildings
and landscapes
• Develop skills, understanding and sensitivity
necessary to care for our rich and diverse cultural
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INTERESTED IN
CONSERVATION AND
HERITAGE MANAGEMENT?

January-February 2013 Building Conservation Journal 7

Heritage agenda

Online legal guide

Listed building English Heritage has launched a comprehensive one-stop guide to
heritage protection law, policy and guidance, which will be a very
useful tool for professionals. A Guide to Heritage Protection in

consent changes England covers designation, consents and heritage at risk.

See bit.ly/ehguide

Following the consultation over the summer, the UK government

has decided to introduce a system of local and national class
listed building consents, and certificates of lawful works, but only Conservation
in relation to proposed works, not works that have already been
carried out. These two proposals will need legislation and it is
expected that this will be done by amendments to the Enterprise
capacity declines
and Regulatory Reform Bill currently going through Parliament. The Recent data shows that conservation skills in local authorities
bill already contains proposals to change heritage law. continue to decline at an alarming rate. Since 2006, numbers of
On the contentious proposal for accredited agents, the historic environment specialists have fallen by more than 25% –
government is proposing a non-statutory system. It will therefore, it breaking down as a drop of 16% in archaeological advice and
states: “Explore a system that is non-statutory and complementary 31% in building conservation advice.
to the system that local planning authorities See bit.ly/skillsdecline
(LPAs) use to determine applications. As LPAs are already
able to seek external expert advice, the intention of using
accredited agents is to strengthen expertise and drive up
standards. A robust system of accreditation would be established
to ensure that appropriate standards of expert advice are applied
to LBC cases, and provide monitoring and enforcement of
Heritage Angel
professional behaviour. We will define and test this approach over
the coming months.” Award winners
See bit.ly/consult92
The Palace Theatre in London hosted the second Heritage Angels
Awards in October, organised by the Andrew Lloyd Webber Foundation
and English Heritage.

Planning guidance
The overall winner was chosen by the public was Stow Maries First
World War airfield in Maldon, Essex. The judges choices for the four
categories were:

review work starts

Liberal Democrat peer Lord Taylor of Goss Moor has been appointed
by Communities Secretary Eric Pickles to review the planning guidance
that supports the implementation of national planning policy, following
the introduction of the National Planning Policy Framework. The current
guidance is the English Heritage PPS5 Planning Practice Guide,
which is still in force. Revised guidance is being drafted by Historic
Environment Forum, subject to this review.
Lord Taylor has invited Simon Marsh from the Royal Society for
the Protection of Birds, Andrew Whitaker from the Home Builders
Federation, Trudi Elliott from the Royal Town Planning Institute and
Mike Jones, Leader of Cheshire West and Chester Council to join him
on the panel.
See bit.ly/planreview
• Best Rescue or Repair of a Place of Worship: St Mary’s Church,
West Somerton, Norfolk
• Best Rescue of a Historic Industrial Building or Site: The Droitwich
Canals, Wychavon, Worcestershire
• Best Rescue of Any Other Type of Historic Building or Place:
Cockermouth Main Street, Cumbria
• Best Craftsmanship Employed on a Heritage Rescue: Tynemouth
Station, North Tyneside.
Clare Balding was the host at the event; Melvyn Bragg and Graham
Norton announced the awards. See bit.ly/ehawards
Heritage Agenda is compiled by Henry Russell FRICS, who is
Tutor in Building Conservation at the College of Estate Management
and chair of The Heritage Alliance’s spatial planning advocacy group
h.j.g.russell@cem.ac.uk

Editor: Laura Barton T +44 (0)20 7695 1533 lbarton@rics.org, Les Pickford T +44 (0)20 7695 1632 lpickford@rics.org Building Conservation
Forum Board contact: Frank Keohane (Paul Arnold Architects) Editorial and production manager: Toni Gill Sub editor Gill Rastall
Advertising: Lucie Inns T +44 (0)20 7871 2906 lucie@sundaypublishing.com Published by: The Royal Institution of Chartered Surveyors,
Parliament Square, London SW1P 3AD T +44 (0)870 333 1600 www.rics.org ISSN: 1469-5421 (Print) ISSN 1759-3379 (Online)
While every reasonable effort has been made to ensure the accuracy of all content in the journal, RICS will have no responsibility for any errors or omissions in the content. The views
expressed in the journal are not necessarily those of RICS. RICS cannot accept any liability for any loss or damage suffered by any person as a result of the content and the opinions
expressed in the journal, or by any person acting or refraining to act as a result of the material included in the journal. All rights in the journal, including full copyright or publishing right,
content and design, are owned by RICS, except where otherwise described. Any dispute arising out of the journal is subject to the law and jurisdiction of England and Wales. Crown
copyright material is reproduced under the Open Government Licence v1.0 for public sector information: www.nationalarchives.gov.uk/doc/open-government-licence
 For display advertising contact Lucie Inns +44 (0) 20 7871 2906 or lucie@sundaypublishing.com

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January-February 2013 Building Surveying Journal 15

A shadow of doubt
Andrew Smith looks at the issues around rights of light and how it is easy for developers to run into problems
A
right to light is an easement. It can only
be enjoyed in respect of a building and
cannot arise for the benefit of land that has
not been built on. It is a right to receive sufficient
natural illumination through defined apertures such
that the rooms served can be used for the ordinary
purposes to which the building is likely to be put.
A right of light is a negative easement and it is
not necessary for the dominant owner to take any
steps to enjoy it – contrast this to a right of way,
which requires positive action to be exercised. It is
not a right to a view; indeed, the right to a view is
unknown to the law. In Phipps v Pears [1965] QB
76, Lord Denning MR, said:
“Suppose you have a fine view from your house.
You have enjoyed the view for many years. It adds
greatly to the value of your house. But if your
neighbour chooses to despoil it, by building up and
blocking it, you have no redress. There is no such right
known to the law as a right to a prospect or view.”
Acquiring rights of light
A right of Practitioners will be most familiar with acquisition
by prescription, under Section 3 of the Prescription
light… is not a Act 1832, i.e. by the enjoyment of the light for at
least 20 years before the time that proceedings are
right to a view; issued without interruption and without consent.
Rights under the Prescription Act cannot be
indeed, the
asserted against the Crown. The right can arise
even if the building is not occupied.
A prescriptive right of light can also arise by
right to a view the doctrine of ‘lost modern grant’ in cases where
it can be proved that 20 years’ use has been
is unknown to established. In such cases, the courts will assume
the fictitious grant of a right of light. The significance
the law is that the 20-year period need not be immediately
16 Building Surveying Journal January-February 2013
shutterstock
before the commencement of the action. It follows
that a claim to a right of light arising under the
doctrine of lost modern grant can succeed where a
claim under Section 3 of the Prescription Act would
fail for having been started more than 12 months
after the enjoyment of the right had ceased.
There are a number of technical differences
between easements arising under the Act and those
arising from the doctrine of lost modern grant, the
most significant being:
• rights under the Act can arise for the benefit of
lessees whereas rights arising from lost modern
grant can only benefit freeholders
• the Custom of London entitles freeholders in the
City of London to build to unrestricted height
on ancient foundations, notwithstanding any
interference with any rights of light enjoyed by
neighbouring owners – this will defeat a claim
based on lost modern grant but will not defeat a
claim under the Act.
Rights of light can also arise for the benefit of
freehold property by prescription under the common
law that requires proof of the enjoyment of the right
‘from time immemorial’ meaning the beginning of
legal memory in 1189. This is, of course, virtually
impossible to prove, which is why the courts
developed the doctrine of lost modern grant in
the 17th and 18th centuries.
Rights of light can also be conferred by an
express grant, just as any other right. Conveyancing
documentation should therefore always be checked,
although this commonly excludes such rights rather
than grants them. In particular, a properly drafted
lease will reserve for the landlord the right to develop
the adjoining property notwithstanding any effect that

such development might have on the tenant’s rights
(whether they be rights of light, air or otherwise).
Where the documentation does not expressly
grant a right of light, such a right may nevertheless
arise under Section 62 of the Law of Property Act
1925. This provides that:
“A conveyance of land shall be deemed to
include and shall by virtue of this Act operate to
convey, with the land, all…easements, rights and
advantages whatsoever, appertaining or reputed to
appertain to the land or any part thereof, or at the
time of conveyance, demised, occupied or enjoyed
with or reputed or known as part or parcel of or
appurtenant to the land or any part thereof.”
A right of light will usually arise under Section
62 where a landowner sells a building on part of
their land but retains the remainder of the land. If
the building had previously enjoyed light reaching
it over the adjoining land, an implied right will arise
for the benefit of the building under Section 62. It
is possible to exclude the operation of Section 62,
however, in the conveyancing documentation.
Rights of light can also arise under the rule in
Wheeldon v Burrows [1879]. This case applied
principles that are substantially similar to those
imposed in 1925 by Section 62 of the Law of
Property Act.
Infringing rights of light
The test for deciding whether or not an actionable
interference has arisen is not how much light has
been taken away but how much light remains and
whether this is sufficient for the claimant’s purposes.
In Colls v Home & Colonial Stores Ltd [1904] AC
179, Lord Davey said:
“…the owner or occupier of the dominant tenement
is entitled to the uninterrupted access through his
ancient windows of a quantity of light, the measure of
which is what is required for the ordinary purposes or
inhabitancy or business of the tenement according to
the ordinary notions of mankind.”
And Lord Lindley said:
“…generally speaking an owner of ancient lights
is entitled to sufficient light according to the ordinary
notions of mankind for the comfortable use and
enjoyment of his house as a dwelling-house, or for
the beneficial use and occupation of the house if it
is a warehouse, a shop or other place of business.”
The amount of light generally considered to be
sufficient is the equivalent of 1 lumen per square
foot at table top height, which is 850mm or 0.2%
of the dome of the sky over a minimum of 50%
of the room in question. There are, however, a
number of potential complications. For example,
where a room benefits from windows on two sides,
the owner of land on one side may only build to
such a height as would leave sufficient light in the
room if the building were erected on the other
side (see Sheffield Masonic Hall Co Ltd v Sheffield
Neighbourly matters – Rights of light
Corporation [1932] 2 Ch 17). In addition, any
reasonably foreseeable future subdividing of
the room may also be taken into account (see
Carr-Saunders v Dick McNeil Associates Ltd [1986]
2 All ER 888).
Rights of light surveyors are experienced in
measuring the amount of light in a given area. If it
is shown that the reduction brings the light below
The test for
acceptable levels, then an infringement will have
occurred and the claimant will be entitled to a remedy. deciding
Extinguishment whether or not
Rights of light can, of course, be extinguished by
agreement. The other methods are: an actionable
Abandonment interference
This is very rare. Once a right of light has arisen,
it would be surprising for the owner simply to has arisen is
abandon it and the clearest evidence is required
by the courts to demonstrate an attention to not how much
abandon. The mere bricking up of the window and
even the demolition of the building (see below) is light has been
not generally sufficient. To prove abandonment,
evidence must be produced to demonstrate a fixed
intention never again to assert the right.
taken away but
Demolition or alteration of the dominant property
how much light
Most people unfamiliar with the field would assume
that, where a building enjoying rights of light is
remains
demolished, then those rights of light will naturally
be extinguished. Generally speaking, however, this
is not the case if it can be demonstrated on the
evidence that the dominant owner had no intention
to abandon the rights. The fact of demolition is
insufficient, by itself, to prove such an intention. It
follows that, where a new building is erected in the
place of an earlier one that enjoyed rights of light,
then the new building will enjoy rights corresponding
to the old – but only in respect of windows whose
positions correspond to the positions of the
windows in the old building.
This principle even applies where the alterations
involve changes in the plane or the shape of the
window. If, by contrast, the windows in the new
building do not coincide with the position of the
windows in the previous one, then the rights of light
benefiting the earlier windows will be deemed to
have been abandoned.
Delay
Where a claimant relies on Section 3 of the
Prescription Act, he must show, among
other things, that the right had been enjoyed
“without interruption” for 20 years prior to the
commencement of the action. For these purposes,
an interruption will only be effective if it lasts for at
least a year. It follows that if a right of light has been
obstructed for more than a year before proceedings
are instituted, the claimant’s right will have been lost.
January-February 2013 Building Surveying Journal 17
Neighbourly matters – Rights of light
Statute
It is not necessary to erect a physical obstruction to
create an interruption of the right of light. A notional
interruption can be registered as a local land charge
under the Rights of Light Act 1959. The effect
of this is that, subject to service of notice on the
servient owner, the registration acts as a notional
obstruction. Any rights of light arising under the
Prescription Act will be lost unless the dominant
owner brings proceedings for infringement within
12 months of the date of registration.
Rights of light may also be overridden on
compulsory purchase of a property by the local
authority – for example, under Section 237 of the
Town and Country Planning Act 1990. This applies
where a local authority acquires property for the
purpose of development and entitles the local
authority to extinguish the dominant owner’s rights
of light in return for compensation.
The level of such compensation is assessed by
reference to the diminution in value of the dominant
owner’s land and not by reference to Wrotham
Park principles (following Wrotham Park Estates
Co. Limited v Parkside Homes Ltd [1974] 1 WLR
798). This can result in a significantly lower figure
than would otherwise be the case. The granting
of an award under the Party Wall etc. Act 1996
authorising works that will infringe rights of light
does not prevent the dominant owner from bringing
proceedings in respect of those works. Section 9 of
the Act states that:
“Nothing in this Act shall:
a. authorise any interference with an easement of
light or other easements in or relating to a party
wall; or
b. prejudicially affect any right of any person to
preserve or restore any right or other thing in or
connected with a party wall in case of the party
wall being pulled down or rebuilt.”
Practical matters
Developers should always give early consideration
to the impact of their schemes on the rights of light
of any adjoining owners and begin negotiations with
them at the earliest possible stage. Most adjoining
owners would be very reluctant to take on the risks
and costs involved in applying for an injunction and
can frequently be persuaded to release their rights
in return for a suitable premium. It is generally best
to instruct rights of light surveyors to negotiate the
level of such premium.
It is important to remember that affected
properties are frequently mortgaged and that the
mortgagees will need to agree the arrangements
and execute the deed of release. In the present
18 Building Surveying Journal January-February 2013
financial climate, mortgagees frequently require that
part of the premium be paid to them in reduction
Most people
of the mortgage as a condition of granting their
consent. This can sometimes cause lengthy delays. assume that,
where a building
A dominant owner must also be careful to
ensure that any discussions concerning the level
of possible compensation do not undermine
their ability to apply successfully for an injunction enjoying rights
in the event that agreement is not reached. An
acknowledgment in correspondence that the of light is
dominant owner is prepared to accept money would
seriously undermine his position in any application demolished,
for an injunction. It is accordingly important to
ensure that all correspondence dealing with then those
compensation is marked “without prejudice and
subject to contract” and to make it clear that the
dominant owner will not be bound to proceed with
rights will
any agreement prior to the completion of a formal
deed of release.
naturally be
In addition, tax considerations must be borne
in mind. The disposal of a right of light in a deed
extinguished.
of release would probably be treated as a taxable
disposal for the purposes of capital gains tax giving
Generally
rise to a significant charge, although the principal
private dwelling-house exception may frequently
speaking, this
apply. A developer who pays a premium in return
for a deed of release may also be subject to stamp is not the case
duty land tax on it.
Rights of light give rise to a series of practical and
legal issues, many of which are arcane and obscure.
Developers will require multi-disciplinary input to
deal with these issues and should obtain advice at
the earliest possible stage.
The second article will look at measuring the
adequacy of rights of light, remedies and the
calculation of compensation.
Andrew Smith is a Partner with law firm Child & Child
andrewsmith@childandchild.co.uk
R
For Library reference resources go to
www.rics.org/catalogue and search for
‘rights of light’
Related competencies include: M006,
T051, T077

Going underground
Continuing her series of articles explaining legal terms, Vivien King discusses
the growing question of nuisance in the context of subterranean development
om/dutch icon™
F
ootings for buildings that are below the frost
line encourage the development of usable
underground space in many countries
© iStockphoto.c
including the northern USA and Canada. Reduced
heat loss from basements and lack of natural
daylight during cold winter months encourage
subterranean living. This extends beyond
residential basement living rooms to commercial
property, including shopping malls and
underground pedestrian systems. Toronto
and Vancouver offer many classic examples.
UK basement development has historically been
Complainants limited. With Victorian and Edwardian residential
property, it was usually the servant areas built below
therefore have ground level thus preventing staff gazing from
windows. With commercial property, it is car parks,
to consider not boilers and mechanical and electrical equipment
that are hidden away in basement space.
While thought provoking, this is not why
a change in subterranean development has hit the UK headlines.
Leaving aside disruption caused by extending
the law but the London’s underground transport systems and
the development of large car parks below open
commencement spaces, it is the development of basement space to
existing residential building stock that is leading to
of an action numerous complaints from neighbours suffering the
consequences of underground works.
under the
Balancing needs
existing law of A reported rise in the number of planning
applications involving subterranean development,
private nuisance coupled with an increase in the public’s growing
perception of the potential adverse impact of such
development, led the Royal Borough of Kensington
and Chelsea to commission Ove Arup & Partners to
undertake a scoping report1. Publication prompted
consideration by other councils, too, in an attempt
to balance aspirations of property owners against
the effects on neighbours and the environment.
It is not just in London boroughs that
subterranean development, particularly under
existing residential property, has become popular.
Not always requiring planning permission, it
enables a household to remain in an existing
home but increase its square footage. Whatever
its scope, any subterranean development involves
a huge engineering project, potentially putting
at risk not just the property being undermined
but neighbouring property too. It can give rise to
concerns (not always justified) of ground movement,
flooding, removal of vegetation and of noise, dust,
vibration and increased heavy transportation.
Constituents’ complaints led to questions in
the House of Commons and the introduction of
the Subterranean Development Bill in the House
January-February 2013
Legal briefs
of Lords. While undoubtedly requiring some legal
redrafting, the principles embodied in this draft
legislation (including extending the distance of six
metres to nine in Section 6(5) (adjacent excavation
and construction) of the Party Wall etc. Act 1996)
received much support, but unfortunately not from
the government. Hence, this Private Members’ Bill
fell when Parliament was prorogued in May 2012.
Private nuisance
Complainants therefore have to consider not a
change in the law but the commencement of
an action under the existing law of private
nuisance. Unfortunately, there is no definitive
list of nuisances. Viscount Maugham stated in
the House of Lords case Sedleigh-Denfield v
O’Callaghan [1940] AC 880:
“My Lords, I look upon the word nuisance as used
in our law as a generic term. It is applied to damage
resulting from water, smoke, smell, fumes, gas, noise,
heat, electricity, disease-germs, trees, vegetation, and
very little thought is sufficient to show that the ways
in which damage from these things is caused and
may be prevented are widely different.”
However, while it is easy to see that the matters
commonly complained of by neighbours might
constitute a nuisance, it must also be shown that
it was the defendant’s acts that led directly to the
complainant suffering unreasonable interference
with the use or enjoyment of his/her own land. It
is going to be a question of balancing the rights of
the defendant to develop his/her own land and the
right of the neighbouring complainant to enjoy his/
her own land.
As to what constitutes ‘unreasonable’ is a
question of fact and degree in every case. Noise,
dust and vibration are obvious consequences of
carrying out building works. Such may or may
not amount to a nuisance to an occupier of
neighbouring land depending on the facts of the
particular case (including what the owner of the land
on which the building works are being conducted
and/or his contractor have done to keep the
nuisance to a minimum).
So, complaints increase, developers carry on
regardless and lawyers sharpen their swords. A
legal case is anticipated – watch this space.
Further information
1
The Subterranean Development Scoping Study is
available from ow.ly/eiou5
Vivien King is a Consultant to Malcolm Hollis
vivien.king@malcolmhollis.com
Building Surveying Journal 19
Neighbourly matters – Security for expenses
Security check
Donald Jessop discusses security for expenses under the Party Wall etc. Act and how traditional views have
been affected by a recent judgement on conferred rights of adjoining property owners over fears of damage
T
he circumstances when security may validly
apply under the Party Wall etc. Act 1996 are
uncertain among practitioners. The current
debate concerns the way that the judgement in
Kaye v Lawrence [2010] EWHC 2678 (TCC) rides
with traditional guidance from the Pyramus &
Thisbe Club in its Green Book.
The Green Book reflects a popular leaning among
practitioners that security is only applicable in the
starkest of circumstances – principally where a
While the party structure is to be removed and there is a
clear and sustainable risk it might not be replaced.
popular view Mr Lawrence had no wish to take anything from
Mr Kaye, in whole or in part, but his proposed
is that [the building work was going to be very close to
Kaye’s house, and the notice Kaye received
statutory caused him high anxiety that damage to his
property was certain.
jurisdiction So Kaye asked for a security deposit to be held
in escrow that would cover the expense of making
of appointed good any damage if caused; and a dispute arose,
which was referred to the third surveyor to determine.
surveyors] does The third surveyor concluded that the building
owner could adjust his design to reduce the risk of
damage to the adjoining premises, and also make
not extend insurance arrangements to cover the expense of
making good any damage.
to making
Statutory remit
directions for Using the Green Book guidance, he considered
that it was beyond his statutory remit to direct
security… the security where a building owner proposed to
excavate and build wholly on his own land, without
court appears the need or requirement of doing any work to the
foundations of the adjoining property. But was he
to say that it wrong to do this?
Kaye appealed to the court, which found by
does the arguments submitted that security was
admissible, but there was nothing expertly
adduced to say that the third surveyor’s award
was pragmatically wrong.
The case is clearly about the statutory jurisdiction
of appointed surveyors, and while the popular view
is that this does not extend to making directions for
security in the kind of circumstances presented to
Kaye, the court appears to say that it does.
Does this mean that there is now an obligation on
appointed surveyors to direct security whenever this
is sought by an adjoining owner? Or does security
remain but one of other options available for direction?
Counsel examined whether or not there is a
‘real’ or an ‘artificial’ distinction to be made
between the exercise of a conferred right under
the Act and the execution of work connected
ith a conferred right. I suspect counsel focused
20 Building Surveying Journal January-February 2013
on this because Section 12(1) of the Act says a
notice for security must be served before a building
owner begins any work in the ‘exercise of a
conferred right’.
Opposing views
On the one hand, it was argued that excavating
and building on one’s own land – without the need
or requirement of underpinning, strengthening or
safeguarding the foundations of the neighbouring
premises – is not an activity that actually engages
any of the ‘conferred’ rights in the Act, because
the ‘reality’ is that this is a natural and absolute
right, and does not need to be conferred as a right
by the statute.
The conferred right is the activity of
underpinning, strengthening or safeguarding the
foundations of the neighbouring premises, which
does not otherwise ‘exist’ as a right, and because
this work was not planned, it follows that no
‘conferred right’ was in exercise, meaning that
security could not be rightly sought.
In contrast, it was argued that if it was necessary
to use the Act before being able to lawfully proceed
with the proposed building work, then as a matter
of plain common sense the Act brought such work
into its ambit.
It follows that the natural and absolute right to
excavate and build on one’s own land becomes
statutorily qualified when this kind of work is
undertaken in proximity of someone else’s building,
meaning that the distinction in contention must be
‘artificial’ and that security could be rightly sought.
The court was persuaded that the distinction
was artificial and held that Kaye’s request for
security was admissible under the Act. In my
view, this must be right simply because excavating
and building on one’s own land within ‘notifiable’
proximity of another building (whether or not this
involves work to its foundations), is ‘work to
which the Act relates’, so the statutory scheme
will be engaged.
However, I do not agree it follows that Kaye’s
request for security was admissible under the Act,
because the court did not go on to examine the
option for which security is actually given, which is
‘expenses’ (intrinsically given by the Act).
Actual or potential?
The real distinction is: if it is proposed to do
foundation work to the adjoining premises,
then there will be a real and tangible ‘expense’
to which an adjoining owner could be exposed;
whereas if this is not to be done, then there is
no ‘expense’ arising for which any security can

be sought, and Kaye was not exposed to this
expense – but then his concern was one of potential
damage. The crucial question the court might
therefore have examined was whether or not Kaye
had any exposure to the expense of making good
damage by virtue of the Act.
Section 11 of the Act defines what the expenses
are and, among other things, admits the expression
‘fair allowance’ and certain ‘costs’ into the ambit
of ‘expense’. The payment of money, instead of
‘making good damage’ is also admitted into the
ambit of expense in Sub-section (8) of Section 11,
so could this be the kind of ‘expense ’against which
Kaye was entitled to apply for security?
In my view it is not, because the sub-section
makes it a condition that it can only apply as an
expense where the Act has directed making good
damage as a remedy, and this only applies to the
exercise of ‘party wall’ rights under Section 2(2) of
the Act. The remedy for ‘damage’ caused by work
progressed under either Sections 1 or 6 of the Act
is ‘compensation’, which is absent from Section 11
as an expense.
Its absence is perhaps more noticeable because
all of the Act’s predecessors express the security
provision in wider terms to include ‘compensation’,
but this was dropped from the 1996 Act and we
know from Kaye v Lawrence there is a presumption
against recourse to earlier Acts.
Keeping safe
So while the ratio in Kaye v Lawrence may be
pure in its analysis of everything that was
submitted by counsel, it seems to me (from what
was not submitted) that the third surveyor correctly
decided it would be unsafe to step outside his
remit, and accordingly to have awarded the
security sought would not have been in the best
interests of the parties.
I could perhaps leave the story here, with the
reasonable certainty that security does apply by
the Green Book guidance – although I consider its
verse could be improved. I am, however, pressed
to focus on the question of whether or not the
security provision is, in fact, available in any way
for the ‘expense’ of ‘money in lieu of making good
damage to adjoining premises’.
The big problem area is where a party wall is
to be underpinned with a ground-retaining wall
during residential basement and sub-basement
construction, which is increasingly common
(especially in affluent residential areas in London).
Some say that the probability of damage to
adjoining premises from this kind of work is very
high and although deep excavation work is not
Neighbourly matters – Security for expenses
new, it is always a sensitive activity. It appears that
some adjoining owners are motivated to pressure
building owners to abandon their schemes, by
‘requiring’ vast sums of money for security as
though this must now be given as of right because
of Kaye v Lawrence.
An expensive list
These expenses can include: the equivalent
reinstatement of the entire adjoining premises,
allowance for the occupiers living in at least as
good a place elsewhere during demolition and
It appears that
reconstruction, the removal costs of putting valuable
chattels in secure storage and all associated
some adjoining
professional costs – the list goes on.
This wrongly stretches the statutory process
owners are
beyond its reasonable limit and, at worst, abuses it.
This kind of extreme position is just what a building’s
motivated to
insurance policy is for, and because such extreme
things rarely happen is why they are insurable.
pressure building
First, Sections 1 and 6 of the Act are out of
the equation because compensation is the given owners to
remedy for damage, not money in lieu of making
good – and the security provision does not operate abandon their
for compensation.
We can therefore only be concerned with six of schemes, by
the Act’s 13 Section 2 rights that carry the condition
to make good any damage occasioned to the ‘requiring’ vast
adjoining premises by the work.
It has been proffered that the requirement to sums of money
make good any damage to the adjoining premises
when exercising of any of these six rights in some for security
way confers a right to damage the adjoining
premises which must therefore engage the
security provision.
This notion, though, is without merit, because
it assumes that the aim of a building owner is
to damage the adjoining premises. Moreover, if
damage is done because there is a ‘right’ to do
it, this then leaves the premises in their damaged
state, which absurdly contradicts the requirement
to make good. In contrast, the requirement to make
good is full of merit and seeks to maintain the
status quo.
Does the damage exist?
It should be understood that the statutory
requirement to make good damage is inchoate until
actual damage occurs – the damage otherwise
does not exist, however probable it may be.
Accordingly, the Act does not give an adjoining
owner the ability to convert the requirement of making
good damage into the ‘expense’ of money in lieu of
making good, before the time the damage is done.
Since damage cannot be occasioned until a
January-February 2013 Building Surveying Journal 21
Neighbourly matters – Security for expenses

conferred right is in exercise, and the Act requires a
notice for security to be served before the conferred
right commences, it appears plain enough that the
Act does not bring security for the probability of
damage into the ambit of its scheme.
This is not to say that contingency estimations, for
example, cannot be valued to deal with the expense
of planned foreseeable events, but then this belongs
It should be to the genus of ‘fair allowance’, which noticeably
relates to the removal of a party wall.
understood I would summarise the situation as:
1. Security for expenses can only relate to the
that the exercise of a right that has been elevated as a
conferred right, through the operation of the Act.
statutory 2. A conferred right cannot be exercised under the
terms of the statutory scheme until:
it will be vulnerable to legal challenge for being
unfair, excessive and bad in law.
7. If a notice under 5 or 6 above is challenged and
work starts, the onus will be on an adjoining
owner to seek an injunction to prevent the work
from continuing and to prove the merits of its
case at trial.
8. On receiving a proper notice for security, a
building owner should be sufficiently informed
to either:
a. simply agree what is sought
b. know whether to issue a counter-notice
c. challenge it for referral to the appointed
surveyors to determine, by further award, the
quantum and/or give other available practical
measures that are fair and reasonable.

requirement a. a notice has been served to do work to which

the Act relates
Accordingly, the parties are left knowing whether
or not they might wish to appeal the further

to make good b. the notified work has either been settled by

consent between the parties, or by appointed
award, and on what grounds.

damage is surveyors in an award.

3. If, in the course of the settlement process,
I remain in sympathy with all practitioners who
regard it safe only to construe the provision of

inchoate until appointed surveyors think that the circumstances

of the parties are stark enough as may sanction
security for expenses to apply in the starkest of
practical circumstances where the Act permits
security for expenses, they may identify these something to be physically removed that might
actual damage expenses for what they are (in correlation with not be returned.
the conferred rights) in the award they make.
occurs – the This should:
a. provide a reasonable period, i.e. 14 days,
damage within which adjoining owners can decide for
themselves whether they would wish to serve
otherwise a notice for security, before the conferred right
lawfully commences
does not b. in turn put building owners into an informed
position, who may pre-emptively seek to make
exist, however some management arrangements with their
adjoining owner.
probable it 4. A notice for security may only validly follow
after an award first settles the conferred right
may be to be exercised and it must then be served
before the conferred right commences. Any
notice for security is serious because it
‘stops’ the work until its terms are then in
turn settled. Donald Jessop FRICS is a Consultant with William
5. An adjoining owner will not be able to Martin Property Consultants and former Chairman
reliably attain security without a valid notice of the Pyramus & Thisbe Club
(which, among other things, should specify the donaldjessop@jessopassociates.co.uk
statutory expense against which it is sought)
and quantify the exposure to this expense
(without which the notice will be vulnerable
to legal challenge for being unfair, excessive
R For Library reference resources go to www.rics.
org/catalogue and search for ‘party wall act’

and bad in law).

6. Where a notice for security seeks money to be Related competencies include: M006,
held against the expense of envisaged damage T051, T077
arising through the exercise of a conferred right,

22 Building Surveying Journal January-February 2013


Root of the problem
Andrew Plunkett discusses ‘foreseeable damage’ in cases of tree root-related subsidence damage to property and
the importance of surveyors highlighting potential risks to clients and advising on preventive steps to be taken
I
n July 2012, the Court of Appeal gave its decision in Berent v
Family Mosaic Housing and London Borough of Islington [2012]
EWCA Civ 961. It addressed the issue of foreseeability in terms of
relevance to future tree root subsidence claims and, to some extent,
for claims for nuisance and negligence generally.
Subsequently, in August 2012, in the first published judgement on
a claim for tree root property damage following the Court of Appeal
judgement, the court considered the application of Berent in the
different factual circumstances found in Robbins v London Borough
of Bexley [2012] EWHC 2257 (TCC).
Tree root subsidence claims are generally brought in both nuisance
and negligence. In practice, there is little or no distinction between the
two. A party responsible for maintaining the relevant tree(s) will only
owe a duty to a property owner if it is reasonably foreseeable that the
tree would cause damage to the property in question.
Duties before Berent
The fact that a property is in an area known to have a clay sub-soil,
and therefore susceptible to subsidence, has (generally) been sufficient
for the courts to find that the risk of subsidence damage by street trees
was ‘reasonably foreseeable’ by a body such as a local authority, and
therefore for a duty to property owners to arise merely by the proximity
of trees to property.
Contrary to this, the trial court in Berent held that (on the facts) the
defendants could not know there was a real risk that the trees would
cause damage to the claimant’s particular property until after they had
been notified and provided with supporting evidence. There was no
duty, and no liability for damage, before that date. This finding was
upheld by the Court of Appeal in July 2012.
This tilts the balance on liability for such claims away from those who
own or maintain trees (for example, local authorities) and their insurers,
and toward property owners and their insurers.
shutterstock
Neighbourly matters – Tree roots
In Robbins, the court held that damage was ‘reasonably foreseeable’
and that the relevant trees would cause damage to the claimant’s
property long before notification by the claimant, chiefly because
the trees had given rise to a number of earlier claims in the vicinity.
This was in itself sufficient to make the risk of damage reasonably
foreseeable by the local authority, which ought to have acted to
reduce/maintain the trees accordingly. Having failed to do so, it was
liable for consequential property damage.
Focus on the facts
The finding of the court in Robbins is not at odds with that in Berent.
Robbins does emphasise, however, that the issue of whether damage
by tree roots is ‘reasonably foreseeable’ depends on the facts in any
particular case. Reasonable foreseeability does not necessarily depend
on the claimant providing notice to the defendant that the tree is
causing damage.
Following Berent, it remains the case that tree root damage to
property is not reasonably foreseeable for the purposes of a legal claim
in nuisance or negligence unless there is something to elevate the level
of risk above that which one might expect simply by the presence of a
tree in a residential area with a clay-based soil.
The original claimants in Berent lodged an appeal to the Supreme
Court but this appeal has been discontinued: the decision of the Court
of Appeal is therefore likely to stand as the leading case on the issue of
foreseeability in property subsidence claims for some time.
These cases highlight the risk of subsidence damage caused by
nearby trees and the importance, in appropriate cases, of identifying
this as a potential risk – for example, by identifying any emerging signs
of damage, such as cracking – and/or advising on the preventive steps
that ought to be taken.
The fact that, post-Berent, the costs of such damage are more likely
to fall on the property owner – or their insurers – rather than a third
party emphasises the need to ensure that the risks are properly flagged
and, if possible, addressed by the relevant professional.
One further point for professionals engaged in such disputes:
insurers and local authorities in some London boroughs have been
working on a tree root protocol, providing guidance for both parties on
how claims of alleged tree root damage should be handled. It appears
that, at the early stages at least, this protocol was not adopted by the
parties in either of the above cases. Had it been used as it is intended,
it may well have reduced the damages and legal costs in both cases.
Andrew Plunkett is a lawyer at law firm Berrymans Lace Mawer
andrew.plunkett@blm-law.com
RICS Building Defects: Practical Analysis Seminars, Jan-Jun, various
2013 UK locations, www.rics.org/buildingdefects
RICS Building Surveyors Technical Seminars, January, various UK
2013 locations, www.rics.org/bstechnical
January-February 2013 Building Surveying Journal 23
Surveys – Window installations

Framing the evidence

In his second article on fenestration, Rod Appleyard looks at how PVCu windows are fixed and sealed
in place and how choosing the right materials can affect the success of new and retrofit installations

W There should be the required

hen looking at PVCu windows, it is important to recognise
that the material suffers from huge movement (termed its
‘expansion coefficient’) but not all colours behave in the
same way. Those beautiful dark oak windows and doors expand
and contract at a greater rate than white, with the light oak only
marginally less so.
There are also size issues because, in reality, the bigger the frame
the bigger the peripheral gap (see Figure 1). For example, the British
Plastics Federation (BPF) code of practice1 states that for window
lengths up to 1.5m, the minimum gap around a PVCu white frame
must be 5mm at each side at the narrowest part (that is, opening
less 10mm) while for other colours this starts at 7.5mm at each side
(opening less 15mm).
These are big gaps, but the material is the same as plastic gutters,
so when a PVCu window expands and contracts it is confined by
either the fixings or the opening in which it is fitted. When this
happens, it is not uncommon for the units to fail to open and even
for the windows to deglaze in hot weather.
So how are these very flexible and moving frames fitted? If the
house is new or built in the past 20 years, there is every chance that
the frames have been installed using lugs fixed behind the plaster
board or with a dual cavity closer/subframe. It is clear how a frame
using lugs is fixed; however, the cavity closer/subframe is installed as
the opening is formed. Then it is a simple operation for the installers
to click the factory-glazed frames into place followed by a quick
squirt of silicone. A bit of deep probing may find this but the best
From From
Up to 1.5m to 3.0m to Over
Length 1.5m 3.0m 4.5m 4.5m
GRP 5 10 15 15
PVC white 10 10 15 20
PVC non-white 15 15 22 28
Figure 1 – Deduction distances (source: The BPF Code of Practice for the survey
and installation of PVC-U windows and door sets 3556/21 and mirrored in BS8213)
Notes:
1. These deductions are from the total width or height, and are
not ‘per side’. With the normal installations, all the height
deduction will be at the head of the window
2. Note that the gap required for effective polyurethane foam
fixing at the head is 10mm to 15mm
3. When calculating height deductions, due allowance should be
made for the width of any silicone or mortar bed at the sill.
gap around the outside, as
a minimum. If it is tight, then
as the frame expands it will
have nowhere to go
avenue is to find out who built the house. If it is one of the multiple
national builders then they have probably used the cavity closer
system. Regional builders tend to use lug fixing, which can often
found with a good metal detector.
Replacement windows
Now for the most common type of installation most surveyors will
come across: ‘the replacement’. If it is done well, it is a thing of
beauty; if it is done badly, it has the same impact as a mangy dog.
There should be the required gap around the outside, as a minimum. If
it is tight, then as the frame expands it will have nowhere to go. It will
buckle and twist and the openers (if you can get them open) cannot
be closed and in extreme cases, the glass will break. This is most
prevalent with doors where you need to ‘heel and toe’ for a smooth
operation when opening and closing. The leaf relies on the strength of
the glass to maintain a form of rigidity and squareness or it just flops
around and it is difficult to open and close. This is most noticeable on
south-facing doors.
We now get to the real nub of this article – how a window unit is
actually fixed to the substrate. There are myriad correct fixings and just
as many incorrect. First, check that the frame is at least 25mm from
the face of the masonry or sat behind the head drip feature (if present).
That funny little saw cut in the head is a drip feature and is there for a
reason, not just for show.
Trimming the gap
Then see whether the old frame was originally in check and the new
one has been installed in the same position. The chances are that it
could be fixed to the outside skin with a plethora of trim on the inside
to cover up the gap. At this point, alarm bells should ring because the
house invariably did not have a vertical damp-proof course (DPC) and,
if it did, the frame will be sitting in front of this allowing moisture to
migrate past, manifested by a damp line around the periphery of the
window inside.
If the replacement unit is in a post-war 1950s house, there is
every chance it will be of a fair standard of construction with a
vertical DPC – if the window fitters have not pulled it out and thrown
it away. This often happens but it is usually not discovered until
years later, with dire consequences.
So now let’s look at the retrofit fixing of windows and doors. The
correct fixing should be a through-frame sleeved-type fixing and the
head of the fixing should sit flush with the profile or be sunk in with a
small hole cap.

24 Building Surveying Journal January-February 2013


All images © Rod Appleyard
Image 1 – Expansion of the PVCu is deforming the retaining beads on the
right almost to the point of unclipping, which would allow the unit to fall out
Image 2 – Capped fixing sits flush with the profile
Image 3 – Aggressive use of a torque fixing
Surveys – Window installations
Image 2 shows an example of how it should look. This is a door,
but windows should exhibit the same attention to detail. Note the
cover cap in the cill to prevent water getting down the screw shank.
Anything other than mild distortion of the PVCu around the fixing
is not a good sign. If it is seriously distorted then it is likely that there
will be other issues.
Wood screws are a poor choice of fixing and in coastal areas
stainless steel is a must. There is a current trend for fixers to use
torque screws that do not need plugs and instead rely on their sheer
aggressive thread to cut into the host masonry.
Image 3 shows that while there is little distortion to the framing there
is sufficient to compromise the airtightness and cause draughts. Note
the aggressive use of the torque fixing and the jaunty angle of the fixing
itself – neither could be considered good workmanship.
This type of fixing does not allow the frame to expand or contract,
creating deformation of the section or even splitting. This is not
uncommon and is regarded as a serious installation issue.
There are requirements on the number of fixings and how far apart
they should be. Again we look to the BPF code of practice1 that gives
very simple guidance. Fixings should be:
• no closer that 150mm to a corner because it may split
• no further from a corner than 250mm because it will not fully anchor
the corner
• no greater than 600mm apart.
We have to remember the large gap around the perimeter between the
masonry or host structure and the frame. There are several peripheral
sealing products on the market – from a quick and cheap foam to an
expanding dense strip foam on a reel (often referred to as ‘backing
rod’) that gives a quality support to any sealant. However, I have seen
this installed as the primary seal and when the wind blew and the rain
came down the water entered the dwelling.
Silicone sealant comes in different levels of quality and is often
recognisable by its cost and performance. If the silicone is splitting
away from the components then it is either trying to stick to an unclean
surface (something as simple as dust and grease) or it is a cheap
product and will never do the job well. New silicone will not stick to old,
so if you find issues with the peripheral sealant it should be removed
and the area cleaned then resealed.
Some final pointers – always check that fixings do not compromise
the drainage of the frame or the action of the hinges, and that drainage
slots have not been sealed over.
Further information
1
Code of Practice for the survey and installation of PVC-U windows and
door sets, British Plastics Federation, www.bpf.co.uk
Rod Appleyard FRICS is a forensic defects investigator to the
fenestration and construction industry and also practises as an
adjudicator and arbitrator
vassc@aol.com
Related competencies include: T006
January-February 2013 Building Surveying Journal 25
APC
Kipling’s six honest men
Ewan Craig gathers tips on the written submission content of the APC and suggests how candidates
can overcome potential pitfalls in everything from documenting their role to ensuring continuity
I
n previous articles1, I looked at the areas of the Assessment
of Professional Competence (APC) where candidates have
been referred, and offered general advice on how to succeed.
This article draws on the experience of Stephen Parris and Nicola
Woolford, both of whom you could find on your APC panel in
2013. It is aimed at candidates who are working towards their final
submission but will also be of interest to supervisors, councillors and
others as they review, support and guide candidates.
Historically, a small number of candidates have been referred on their
written submission, i.e. critical analysis or professional development
record. This could imply that many candidates meet or exceed the
panel’s expectations with their submission. However, this is part of the
evidence for the technical competencies that gives rise to the majority
of referrals so the complete submission is significant.
RICS information on the written submission content must be
followed – for example, the APC final assessment guide – so ensure
that you provide everything required. This includes your:
• APC logbook
• Experience record
• Professional development record
• 3,000 word critical analysis report.
Potential pitfalls
An incomplete or inconsistent submission
Forward planning is essential to APC success and you should allow
sufficient time to prepare a comprehensive and cohesive submission.
Not following RICS templates
Use the supplied templates and headings for the written submission.
This makes it easier for the panel to assess your work and for you to
check that the submission has addressed every requirement.
Not documenting your actual role
The panel will expect your submission to reflect your work and your
role in it. Clearly show your detailed involvement; e.g. did you prepare
a variation order or only assist? Honesty and clarity will avoid any
ambiguities. Do write in the first person, so use ‘I’ rather than ‘we’.
Selecting a limiting project
Do not select a prestige project with which you had little involvement
when another project better demonstrates your capabilities and will
help the panel to assess you.
Unclear competencies and experience
Ensure that the submission demonstrates that you meet or exceed
the expected competencies. It is unnecessary to cross reference every
item to the competencies, but if this is unclear then redraft the work or
include a simple note showing the correlation.
Poor presentation
Always present the work professionally (as if to a client) and use a
report format in the critical analysis. Always check your spelling and
grammar, and ask others to proof your work. Allow space in the report
(e.g. a margin) for the panel to write notes.
26 Building Surveying Journal January-February 2013
Lack of balance
A concise, well-formed critical analysis should meet the 3,000-word
limit. All reports will differ, but for guidance: an introduction (300-400
words), two main issues with options and solutions (700-900 words
each) and a conclusion (800-1,000 words).
Preparing a narrative not a critical analysis
Be critical and show your analysis of a project in your submission.
Rudyard Kipling’s ‘six honest serving men’ of What, Why, When,
How, Where and Who are an apposite test of completeness.
Exaggerating an issue
Do not exaggerate a minor problem or contrive a key issue. Not
every project will have an issue that is pivotal to the project, such as a
bankruptcy. You could state what you learnt from the project processes
and the rationale behind your decision-making.
Not asking for advice
If in doubt, ask your supervisor, councillor or APC doctor for advice. It
may be helpful to your experience record to ask your supervisor why
they think you are at a certain competency level and which of your
work demonstrates this.
Lack of continuity
The written submission helps to shape the interview and could include
images, e.g. before and after pictures for a refurbishment project.
Ensure continuity in the presentation, such as further pictures to show
detail or progress.
However, the most vital item the panel wishes to see in the final
submission is you and what you have done to become a chartered
building surveyor – you are the most important of Kipling’s ‘six honest
serving men’.
Thanks to Stephen Parris of Hurley Palmer Flatt and Nicola Woolford of
CBRE for their input to this article.
Ewan Craig FRICS is a member of the Building Surveying Professional
Group Board and Course Leader for the BSc (Hons) in Building Surveying
at the College of Estate Management
e.craig@cem.ac.uk
1
 he secret to APC success (May-Jun 2012) and Learning from the
T
past (Oct-Nov 2012), Building Surveying Journal, www.rics.org/
buildingsurveyingjournal
APC advice is available from www.rics.org/apc
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