Party Wall Case Law Farrs Lane v Bristol Magistrates

The Administrative Court judgment in Party Wall Case Law Farrs Lane v Bristol Magistrates has become a staple citation for party wall surveyors and construction lawyers because it answers two long-debated questions: (1) can an award include a surveyor’s own fees even if nobody raised a dispute about those fees during the Section 10 process; and (2) can an award direct that those fees be paid directly to the surveyor rather than routed through one of the “owners”? It also addresses a third point about costs in the magistrates’ court. In R (Farrs Lane Developments Ltd) v Bristol Magistrates’ Court (2016) EWHC 982 (Admin), Holgate J answered all three in a way that strengthens the enforceability of awards and clarifies surveyors’ costs recovery under the Party Wall etc. Act 1996.

Background - Party Wall Case Law Farrs Lane v Bristol Magistrates

Farrs Lane Developments was redeveloping the Harris & Co building in Bristol into flats. The works engaged the Party Wall etc. Act 1996, so notices went out to multiple adjoining owners. Farrs Lane appointed party wall surveyor James McAllister (the Interested Party) on standard terms at £90/hour. He served ten party structure notices. In five cases he acted as the agreed surveyor; in the others he sat as one of two surveyors. Between 17 and 23 December 2014, he made ten awards authorising the works. Each award directed the building owner (Farrs Lane) to pay the adjoining owner’s surveyor’s fees, and - critically for this dispute - also directed Farrs Lane to pay Mr McAllister’s own fees (a fixed sum for making the award plus future time at £90/hour) directly to him.

Farrs Lane thought his fees were too high but did not appeal any of the awards to the county court within the 14-day window under s.10(17) of the Act. Instead, Mr McAllister, to enforce the awards, issued ten complaints in the magistrates’ court under s.17 (“recoverable summarily as a civil debt”). On 13 May 2015 a panel of lay justices granted orders for the fees and awarded Mr McAllister his magistrates’ court costs, calculated by multiplying hours spent by his £90/hour professional rate, plus the issue fee.

Farrs Lane applied to have a case stated; the magistrates refused. So the developer brought judicial review. Permission was granted, but the parties agreed to proceed by JR directly (no stated case) because the issues were pure points of law and no further facts were needed.

The Issues - Party Wall Case Law Farrs Lane v Bristol Magistrates

Holgate J had three questions to answer:

Ultra vires? Was the part of each award that dealt with Mr McAllister’s own fees beyond the surveyor’s powers because there had been no dispute about those fees between the building owner and an adjoining owner? (In other words, are awards confined to actually disputed matters only?)

Pay the surveyor directly? Even if an award can include surveyors’ fees, can it lawfully direct payment to the surveyor, or must it only order payment between the “owners”?

Magistrates’ costs irrational? Did the justices err by awarding Mr McAllister his own professional rate (£90/hour) as a litigant in person, rather than applying the lower litigant-in-person rate?

He dismissed the claim on all three. Each answer matters in practice.

Issue 1 - Can an award include a surveyor’s own fees if no one had disputed them?

Answer: Yes. Holgate J held that a Section 10 award may include surveyors’ fees even where there was no prior dispute about those fees during the statutory process. The argument that awards can only decide items that were actively disputed was rejected as too narrow and inconsistent with the Act’s language and purpose.

Why? The court read s.10(12)(c) broadly: an award may determine “any other matter arising out of or incidental to the dispute including the costs of making the award.” That catch-all is “apt to include matters going beyond the ambit of the dispute between the parties,” including consequential or ancillary items that sensibly sit in the same “package” so the award can be enforced as a whole. The judge emphasised that “determine” can mean to pronounce or declare (not just adjudicate a live quarrel). If Parliament intended surveyors to excise every item that happened not to be in dispute, awards would become fragmented and artificial, undermining the coherent and enforceable “totality” the Act contemplates.

He also pointed out that s.10(13) uses the broad phrase “the reasonable costs incurred in making or obtaining an award” and other related items “shall be paid by such of the parties as the surveyor(s) determine.” That is not a mere disbursements provision; “costs” includes fees. The judge expressly rejected the submission that “costs” in s.10 excludes surveyor’s fees. In party wall practice, the costs of making the award are the surveyors’ fees.

Farrs Lane leaned on Onigbanjo v Pearson (County Court) and Blake v Reeves (CA, endorsing parts of Onigbanjo) to argue for a tighter reading. Holgate J found those authorities didn’t decide the point now raised and so offered no binding support for the limitation urged by the developer. He noted that even RICS Guidance suggested awards often include such fees, but he grounded his decision in statutory construction rather than practice guidance.

Practice consequence: surveyors can safely include their own reasonable fees in the award (whether or not someone raised them as a contested item). Challenges to reasonableness go by appeal to the county court within 14 days under s.10(17) - not by resisting magistrates’ court enforcement later.

Issue 2 - Can the award direct payment to the surveyor (rather than between the owners)?

Answer: Yes. The court held there is no textual restriction in the Act preventing surveyors from directing that their fees be paid directly to them. Section 10(12)(c) and 10(13) say surveyors determine which party pays the costs; they don’t say the payment must travel between owners. In many common scenarios - especially where a single agreed surveyor acts - ordering payment directly to that surveyor is the obvious, efficient route, and nothing in the statute prohibits it.

Farrs Lane argued that only “parties to the dispute” can appeal under s.10(17), implying surveyors should not be recipients under an award. Holgate J rejected that. A surveyor doesn’t need to be an appellant to protect their interests. If an owner appeals and complains that the surveyor’s level of fees was unreasonable, the CPR allow the surveyor to be joined (so they can be heard and bound) - and the county court’s wide costs powers (mirroring Senior Courts Act 1981, s.51) even allow non-party costs orders in appropriate cases. In short: procedural safeguards exist; they do not require re-routing payment through an owner.

The judge also pushed back on a policy point: if a potential “conflict” arises because a surveyor awarded their own fees and an owner appeals, that possible tension already exists even on the developer’s case (since surveyors can determine fees where there was a dispute). In either world, a court can police reasonableness on appeal and can address any costs fallout. That is not a reason to curtail the statutory wording.

Practice consequence: awards can (and, many would say, should) say plainly that “the building owner shall pay the building owner’s surveyor’s fees of £X to [name]”. If an owner thinks the figure is unreasonable, the route is a county court appeal inside 14 days - not refusing to pay and hoping to defeat s.17 enforcement later.

Issue 3 - Were the magistrates wrong to award Mr McAllister his professional rate (£90/h) as a litigant in person?

Answer: No (in this case). The developer said the justices should have applied the litigant-in-person rate rather than Mr McAllister’s professional rate. Holgate J treated the challenge as one of irrationality to the justices’ costs discretion. On the material available, he found it impossible to say they acted irrationally in awarding just under £3,600 (about 38.5 hours x £90 plus the issue fee). He noted the context: Mr McAllister was enforcing awards that stood unappealed, he faced a legally represented opponent raising non-merits jurisdictional arguments, and he deployed significant personal time he might otherwise have expended through legal representation. The justices applied the “just and reasonable” test in s.64 Magistrates’ Courts Act 1980; that was within their discretion on the facts. The JR court would not interfere.

Importantly, after delivering judgment on the JR outcome, Holgate J dealt with costs in the High Court. There, when the developer argued for the CPR 46.5 litigant-in-person rate (~£19/hour at the time), Mr McAllister conceded the point on the evidence available, and the judge proceeded on that basis for High Court costs. That post-judgment costs discussion does not retroactively render the magistrates’ decision unlawful; it simply reflects the different forum and the evidence/rules then engaged. The JR result stood: challenge dismissed.

Practice consequence: don’t read Farrs Lane as a blanket endorsement that surveyors acting in person always recover a professional rate in the magistrates’ court or elsewhere. It is a reminder that costs awards are discretionary and will be upheld unless irrational. The safer takeaway is that refusing to pay and forcing enforcement can become expensive - for either side.

How Farrs Lane fits with the Act’s machinery

Awards as a “package”. Surveyors can bundle the works permissions, protections, and costs (including fees) into a single document that is “conclusive” unless appealed, and then enforceable as a civil debt under s.17. This avoids slicing awards into “disputed” versus “undisputed” annexes with uncertain status.

Appeal vs enforcement. If an owner wants to contest liability or quantum of surveyor’s fees, the Act gives a tight 14-day appeal to the county court, where the court can rescind or modify the award and make costs orders as it thinks fit. Wait too long, and the award becomes enforceable in the magistrates’ court (civil debt).

Direct payment works. There’s no statutory reason to require a detour via an owner if the money is due to the surveyor; directing payment to the surveyor is consistent with the text and makes commercial sense.

Practical implications for surveyors and owners

For building owners

If you think your own surveyor’s fees are too high, appeal the award within 14 days under s.10(17). Don’t bank on defeating enforcement later on jurisdictional niceties. Holgate J makes clear that awards may include those fees and may direct payment to the surveyor. Failing to appeal risks summary enforcement via s.17 and additional costs.

For adjoining owners

Expect awards to include your surveyor’s fees as a lump sum and (depending on wording) possible provisions for further inspections. If the building owner contests reasonableness, the dispute belongs in a county court appeal - not as a re-run in enforcement proceedings.

For surveyors

Draft your costs clauses confidently. If acting as an agreed surveyor, it is entirely proper for the award to say the building owner shall pay you £X directly and to set out a reasonable hourly rate for post-award attendances. If an appeal is lodged, be aware you may be joined so your position can be heard, and in outlier cases the court’s non-party costs jurisdiction exists - another reason to keep fees evidence backed and proportionate.

How the court addressed “contrary” practice notes and case law

The court acknowledged RICS guidance which - while recognising that building owners often agree fees directly with their own surveyor - also warns surveyors about enforcing “awarded costs.” Holgate J preferred the statute’s wording over custom/practice, noting there was no authority squarely against direct-to-surveyor payment. References to Onigbanjo v Pearson and Blake v Reeves did not decide the issue; Zissis v Lukomski contained an assumption about s.17 enforceability of fees but with no argument. Farrs Lane therefore supplies the missing authority: awards can include surveyors’ fees and order payment to them.

Summary - Party Wall Case Law Farrs Lane v Bristol Magistrates

All three grounds failed. The Judicial Review was dismissed. The magistrates’ orders stood. The developer’s strategic choice not to use the s.10(17) appeal window proved costly.

Awards may include fees even if undisputed at the time. The Act’s language (“any other matter arising out of or incidental to the dispute including the costs of making the award”) is broad.

Direct-to-surveyor payment is lawful. Nothing in the Act prevents it; it suits agreed surveyor cases and avoids needless “round-trips” of money.

Enforcement via s.17 is robust. If you don’t appeal in time, summary recovery as a civil debt is available.

Costs are discretionary. The justices’ award of professional-rate time to a litigant in person wasn’t irrational on the facts. Different forums apply different rules (e.g., CPR 46.5 in the High Court), but that didn’t help the developer here.

Key Party Wall Act References

Section 10(12)(c) - Award may determine “any other matter arising out of or incidental to the dispute including the costs of making the award.”

Section 10(13) - “The reasonable costs incurred in making/obtaining an award … shall be paid by such of the parties as the surveyor(s) determine.”

Section 10(16)–(17) - Award is conclusive unless a county court appeal is brought within 14 days; the court may rescind/modify and make costs orders.

Section 17 - “Any sum payable in pursuance of this Act … shall be recoverable summarily as a civil debt.”

Practical guidance you can apply tomorrow

Add a clear costs clause. When acting as an agreed surveyor (or as one of two), include a fixed fee for making the award and a reasonable hourly rate for post-award attendances, expressly payable to you. Farrs Lane confirms that is lawful.

Signpost the appeal route. Continue to include the standard s.10(17) appeal notice in your award service letter. If the building owner objects to the level of fees, the proper venue is a county court appeal inside 14 days.

Evidence “reasonableness.” Keep time records and a short basis-of-charge note. If challenged on appeal, you can be joined and the court will expect coherent support for your figures.

Enforce promptly if unpaid. Where no appeal is made and sums remain outstanding, use s.17 to recover the debt in the magistrates’ court. Consider proportionality and the risk of adverse costs before litigating.

Key takeaways

Farrs Lane settles the point: Awards can include the surveyor’s own fees even where no prior dispute about those fees existed, and awards can properly direct payment straight to the surveyor. That is squarely within s.10(12)(c) and s.10(13).

Enforcement vs appeal: If you disagree with surveyor fees, appeal within 14 days; don’t wait and try to argue jurisdiction at the enforcement stage. s.17 is a powerful route for recovery if the appeal window is missed.

Costs discretion is real: The magistrates’ court award of £90/hour here wasn’t irrational given the circumstances. But in higher courts, CPR 46.5 may cap recoverable LIP time unless real financial loss is proven. Plan your litigation strategy - and evidence - accordingly.

Draft with confidence: Post-Farrs Lane, surveyors can draft clearer, cleaner awards that bundle (i) the works permissions, (ii) protection/inspection regimes, and (iii) fees - all enforceable as a single, conclusive package absent a timely appeal.

Get in Touch - Party Wall Case Law Farrs Lane v Bristol Magistrates

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