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Rare ruling helps clarify when neighbouring land can be accessed for required work

13th April 2022

Rare ruling helps clarify when neighbouring land can be accessed for required work

Nyree Applegarth, Partner in the Higgs LLP Dispute Resolution and Litigation team, looks at a rare Court hearing over access to neighbouring land for required maintenance work

Despite its inception in 1992, the Access to Neighbouring Land Act 1992 (“The Act”) has resulted in very little case law and it is rare to see a case involving this Act reach Court.

I, therefore, reviewed the decision in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd with some interest as this appears to be the first time that the High Court has considered the applicability of the Act. 

Predictably, the case reached the High Court because it involved two high value properties in South Kensington, both of which were undergoing significant renovation works.

The north facing wall of Prime London’s property had been built on the boundary line between the two properties so that the exterior face of the wall could only be worked on from a passageway between the two properties which happened to be located on Thurloe’s land.

The north facing wall needed to be rendered and repairs also needed to be carried out to rendering that had cracked after basement works had been carried out to both properties.

The contractor that was working for Prime London thought that patchwork rendering was inappropriate and that the render needed to be entirely removed and then replaced. After seeking consent to access Thurloe’s land to undertake works, Thurloe denied access and an application to the Court had to be made under The 1992 Act.

The case is interesting because for the first time we have some reasoned thought from the Court about how the Act should be applied. There were various questions that the High Court had to consider including:

  • Were the works that Prime wanted to undertake “basic preservations works” and was it “reasonably necessary” for them to be carried out? It will come as no surprise that the High Court found that the works needed to render the wall were basic preservation works. The circumstances which had resulted in the works being needed were deemed to be irrelevant. The Court took the view that if the works were not done then there was a risk that further water ingress could occur without the protection of the render. The 1992 Act does ask whether the works are reasonably necessary but, in this case, the Court took the view that those words did not imply that it was reasonably necessary that the work had to be done immediately. If, for example, it was appropriate for access to be obtained to undertake the works in warmer weather then that was deemed to be permitted.
  • The next question the Court had to look at was whether the works could not be carried out, or would be substantially more difficult to carry out without entry onto Thurloe’s land? In this instance, that test was clearly satisfied as the wall was only accessible from Thurloe’s property.
  • The Court then went on to consider whether an Order would cause interference, disturbance or hardship to Thurloe or any other person i.e. their contractors such that it would be unreasonable for an Order to be made? In his analysis, the Judge said that if a neighbour had raised a legitimate objection, he would expect the parties to find a solution that they could both live with. The Court does have the power to make an Order subject to conditions that were less than the impact of the access rights granted and the works to be carried out. In this case, Thurloe’s objections related to the method of working which had been proposed by Prime’s contractors, the significant disruption to the use of the passageway, health and safety concerns and insurance liabilities. These were objections that the Court considered would be dealt with in the terms of the Order but were not of themselves objections to justify a refusal to make an Order.
  • Having decided that an Order would be made, the Judge then went on to look at what compensation might be payable for the interference. Under the Act, the Court can order the Applicant to pay compensation for any loss, damage or injury or any substantial loss of privacy or substantial inconvenience caused by the entry which the Court authorised. The Judge held that the terms of the Order would provide for compensation to cover additional costs that would be incurred in managing Thurloe’s own project, although it did not quantify the precise amount that had to be paid. The Court also went on to consider whether any licence fee should be payable for the period of the works. Unless the works relate to residential property then a fee must be ordered to be paid which is fair and reasonable having regard to the inconvenience caused by the works and the likely financial advantage to the Applicant. The Court was not satisfied here that this was residential land even though the Applicants’ property was not currently being used as a dwelling because it was being redeveloped.

Now that we have a High Court decision on factors that the Court will consider, this does help anyone involved in a similar situation to assess the strength, or perhaps the weakness, of their position.

What is clear, however, is that whenever anyone has an issue with a neighbour, despite the law being available to assist, this should be a matter of last resort, and it is always better to work cooperatively with the other party. The costs of taking this case to the High Court were enormous and it is hard to see that there was a clear victor.

 

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