Party Wall Case Law Welter v McKeeve

This long-running party wall dispute between neighbours at 5 and 6 Earls Court Gardens, London, offers a rich lesson in how the Party Wall etc. Act 1996 operates when basement works go wrong, how third surveyor awards are treated on appeal, and how failure to mitigate can bite hard on quantum. In Party Wall Case Law Welter v McKeeve, His Honour Judge Edward Bailey heard a county court appeal in the Technology and Construction List and ultimately reduced a third surveyor’s compensation award dramatically, while reaffirming the building owner’s statutory liability under section 7(2).

Background - Party Wall Case Law Welter v McKeeve

The Appellant, Jens Welter, owned No. 5; the Respondents, Mr and Mrs McKeeve, owned No. 6. A party wall divided the properties. Both owners pursued ambitious redevelopment, including rear and basement extensions.

On 20 December 2012 Mr Welter, as building owner, served notices under sections 3 and 6 of the 1996 Act for his basement works at No. 5, which included underpinning the party wall. The adjoining owners dissented, deemed disputes arose, and party wall surveyors were appointed: Peter Davies FRICS for No. 5, Nigel Acres for No. 6, with Mr Toogood FRICS as third surveyor. On 3 April 2013, Mr Davies and Mr Acres made an award under section 10 authorising the basement works and underpinning. Mr Welter’s contractor Penn Contracting Ltd implemented the scheme to designs by The Wilde Carter-Clack Partnership; underpinning completed around 27 August 2013 and the No. 5 basement finished by April 2014.

In September 2013, the McKeeves served their own sections 3 and 6 notices to build a basement at No. 6 which would enclose upon and make use of the underpinning recently constructed at No. 5. The parties again appointed surveyors (with a different third surveyor selected), but progress was fraught. Frustrations mounted on the No. 6 side about pace and process.

Meanwhile, the No. 6 contractor Cranbrook began excavating before an award with No. 5 was in place. Judge Bailey noted that doing so was not, in itself, a breach of the Act provided the works neither affected the party wall nor triggered section 6 excavation thresholds necessitating notice. Mr Davies sought reassurance and, if needed, threatened to exercise a section 8 right of entry (through the surveyor) to inspect Cranbrook’s works.

Alongside permissions for No. 6’s works, the appointed surveyors also had to address enclosure/use charges under section 11(11) for No. 6’s use of No. 5’s underpinning. A costing letter from Mr O’Connor (19 December 2013) advocated a 50% contribution and posited a market rate of about £2,145.81 per linear metre for underpinning, citing informal industry practice. Judge Bailey later observed this calculation involved hindsight: it assumed a simple mass concrete underpin, ignoring reinforcement that had actually been required because the underpinning was functioning as a retaining wall during the construction sequence.

The award that led to appeal

Fast-forward to 2017. A third surveyor award dated 14 February 2017 ordered the building owner (No. 5) to pay substantial compensation to the adjoining owner under section 7(2) for loss or damage caused by the earlier underpinning works encountered and remedied during No. 6’s build. A short “corrective” award issued on 22 February 2017 to fix an obvious slip about who pays whom; in the appeal Judge Bailey accepted that the 14 February award had a slip, but he ultimately modified that first award and rescinded the second.

Mr Welter appealed on 8 March 2017, within 14 days of service as required by section 10(17) of the Act. He advanced two grounds: (1) that he bore no liability because any loss was caused by his independent contractor (Penn), and (2) that the adjoining owners failed to mitigate their loss, including by not accepting Penn’s offer to return to remove overspill and by not obtaining alternative quotations to challenge Cranbrook’s price for remedial works.

The legal framework the court applied

Section 7(2): the building owner must compensate the adjoining owner for any loss or damage resulting from work executed in pursuance of the Act. Liability attaches to the building owner as a matter of statute; there is no independent-contractor immunity.

Section 11(11): where the adjoining owner subsequently uses work carried out solely at the expense of the building owner (e.g., enclosing on underpinning), the adjoining owner must pay a due proportion of the expense, typically valued at the time of subsequent use. This is a separate head from damage compensation under section 7(2).

Section 10(17): a party may appeal within 14 days to the county court, which may rescind or modify an award and make cost orders. Awards are otherwise conclusive but subject to this narrow statutory appeal.

Judge Bailey emphasised that appeals against party wall awards “almost invariably” proceed by rehearing, not review, because awards are commonly non-speaking and made without a hearing. The court will receive evidence and reach its own view as to whether the award was wrong, a principle confirmed in Zissis v Lukomski (2006).

Ground 1: “Independent contractor” liability argument rejected

The first ground of appeal failed swiftly. The statutory route is clear: section 7(2) imposes liability on the building owner for compensating loss or damage resulting from works executed under the Act. Common-law rules about vicarious liability or independent contractors do not defeat that statutory claim. Judge Bailey held the argument was misconceived, and it was not pursued at the hearing.

Practice point: For building owners, the Act places the compensation burden on you, even where a reputable independent contractor performed the work. Contractual risk allocation with your contractor is prudent, but it won’t shield you from an adjoining owner’s section 7(2) claim.

Ground 2: Mitigation and the reasonableness of remedial costs

The heart of the appeal was mitigation and quantum. The third surveyor had awarded a six-figure sum (the Appellant argued £148,882.32 + VAT) to reflect remedial works to the underpinning encountered during No. 6’s basement excavation. The question for the court: were those costs reasonably incurred, and did the adjoining owners mitigate?

Judge Bailey undertook a full rehearing, receiving oral and written evidence (including two expert quantity surveyors) and cross-examination. He accepted that the Carter-Clack remedial scheme was appropriate in principle, but scrutinised whether the Respondents acted reasonably in allowing Cranbrook to proceed at its quoted price without either (i) obtaining alternative quotations or (ii) subjecting the quote to independent QS review, particularly after their own surveyor, Mr Davies, raised serious questions and requested a detailed breakdown.

The judge found the adjoining owners knew or should have known—by 20 May 2015 at the latest—that Mr Davies was questioning the reasonableness of Cranbrook’s figures and seeking market testing to establish a “genuine market price for the actually relevant works.” Proceeding at the quoted price in those circumstances was unreasonable and amounted to a failure to mitigate.

On the costing background, the court also noted the earlier O’Connor letter (used in the section 11(11) “use” context) had stripped out reinforcement on the basis of hindsight, whereas the underpinning as built did act as a retaining wall and required reinforcement. That example underscored why proper, contemporaneous market testing and professional review matter when setting costs—whether for enclosure under section 11(11) or damage under section 7(2).

Surveyors’ conduct, speed vs. diligence, and “non-speaking” awards

The judgment also comments on surveyors’ practice. The court recognised the tension between speed and due diligence. Pressure from an appointing owner or contractor to “get an award out” cannot excuse a surveyor from acting properly. While party wall awards need not be reasoned, Judge Bailey observed that the discipline of testing proposals, seeking quotations, and recording reasons can help ensure the right outcome—and, by implication, make an award more robust against appeal.

As to the pace of Mr Davies’ work, the court was not persuaded that criticisms were justified on the material before it. Had Mr Williams (on the No. 6 side) co-operated with requests for information or market testing, a speedier resolution might have been possible. The overarching message: expedition is no substitute for diligence—especially where six-figure sums turn on the reasonableness of costs.

The outcome

Having reheard the matter, Judge Bailey modified the third surveyor’s 14 February 2017 award to £47,977.30 + VAT by way of compensation under section 7(2) for the remedial works to the underpinning executed to the building owner’s property pursuant to the 3 April 2013 award. He rescinded the 22 February 2017 “correction” award. The court also confirmed the appeal had been brought in time and proceeded as a rehearing under section 10(17). (Issues of interest and costs were left for submissions.)

Download Judgement

Practical implications for surveyors, developers and advisors

Statutory liability is on the building owner. For section 7(2) compensation claims, the building owner cannot avoid liability by pointing to an independent contractor. Contractual indemnities and insurance are your backstop; they don’t defeat the adjoining owner’s statutory remedy.

Mitigation matters—and can drastically reduce recovery. When remedial work is needed, adjoining owners should obtain competing quotations and/or a QS review where figures are significant or queried by the other side. Failure to test the market or respond to legitimate information requests may be unreasonable and lead the court to trim quantum.

Rehearing, not review, is the norm on appeal. Because awards are often non-speaking, county courts typically rehear evidence to decide whether an award is wrong—consistent with Zissis v Lukomski. Expect to prove your case afresh with witnesses and experts.

Non-speaking awards carry risk where costs aren’t tested. The Act doesn’t require reasons, but where a third surveyor adopts a single contractor quotation without market testing or analysis, the award is vulnerable on appeal. The judge’s gentle nudge: giving reasons and evidencing diligence helps.

Don’t apply hindsight to “use” costs. For section 11(11), assess the due proportion by reference to what it would actually cost to construct the relevant work “at the time” of subsequent use—and be wary of back-calculations that ignore as-built requirements like reinforcement or temporary retaining functions.

Start early—but respect the Act’s triggers. Beginning excavation before an award is not automatically unlawful if the works don’t affect the party wall or meet section 6 thresholds. However, doing so may heighten scrutiny and strain relations; surveyors may invoke section 8 rights of entry to check compliance.

Use your surveyor—and co-operate. Owners should work through their appointed surveyors and co-operate with information requests. Resistance or delay can backfire if it results in an award based on insufficiently tested evidence that later unravels on appeal.

Know the clock and the court’s powers. An appeal must be issued within 14 days of service of the award. The county court can rescind or modify the award and make costs orders. These are broad powers—be prepared for a fresh assessment of quantum.

Why Party Wall Case Law Welter v McKeeve matters

At its core, this case shows the Act’s twin balance: it gives building owners valuable rights to carry out works affecting a shared structure, but it simultaneously imposes a strict, statutory duty to make good loss or damage caused by those works. The court reaffirmed that obligation and re-weighted the compensation only because the adjoining owners, on the facts, failed to mitigate reasonably when sizeable remedial costs were challenged.

Judge Bailey’s judgment also offers a practice roadmap. For surveyors, it underlines the importance of testing contractor prices where appropriate, documenting reasoning, and resisting pressure to prize speed over substance. For owners, it is a reminder to engage constructively with the statutory process, to co-operate through your surveyor, and to insist that big numbers are backed by market evidence.

Finally, the outcome demonstrates the teeth of section 10(17) appeals. The court will not rubber-stamp a non-speaking award if the evidence shows the sum was too high. Here, a six-figure award shrank to £47,977.30 + VAT after a careful rehearing on the merits. For those managing party wall projects - whether surveyors, developers, architects or litigators - Party Wall Case Law Welter v McKeeve is essential reading on liability, mitigation, and the evidential standards that ultimately decide how much is payable.

Key takeaways

Section 7(2) liability is statutory and direct: the building owner must compensate adjoining owners for loss/damage resulting from works done under the Act—regardless of independent contractor involvement.

Appeals are usually rehearings: expect the county court to receive fresh evidence and decide afresh whether the award was wrong; Zissis v Lukomski applied.

Mitigation is critical: if costs are questioned, obtain alternative quotations or an independent QS review; failure to do so can result in a significant reduction of compensation.

Market testing beats assumption: avoid hindsight assumptions in pricing underpinning or enclosure costs; value what was actually required and what it would cost at the time of use or remediation.

Non-speaking awards need diligence: although reasons aren’t required, surveyors who test evidence and create a paper-trail of reasonableness make their awards more appeal-proof.

Know the mechanics: award appeals must be lodged within 14 days; the court can rescind or modify and make costs orders under section 10(17).

Start early, stay lawful: pre-award work is not automatically a breach if it doesn’t affect the party wall or trigger section 6 thresholds; surveyors may still exercise section 8 entry powers to check.

Conclusion - Party Wall Case Law Welter v McKeeve

Party Wall Case Law Welter v McKeeve clarifies that statutory compensation under section 7(2) rests squarely on the building owner, while reminding adjoining owners that mitigation is not optional—especially when six-figure remedial costs are in play. For practitioners, it reinforces robust, evidence-led surveying practice and the importance of market-testing quantum. For parties, it shows that, on appeal, the court will look past a non-speaking award and right-size compensation based on the best available evidence.

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