Unreasonably refusing access for a neighbour to carry out works on their property can be a costly decision.
Prime London Holdings 11 Ltd v Thurloe Lodge Ltd  EWHC 303 (Ch)
Surprisingly, despite the passage of 30 years since the Access to Neighbouring Land Act 1992 was placed on the statute books, this was the first time the High Court had been asked to consider the provisions of the Act. The High Court ordered a property owner to provide access to its land so that the owner of the adjacent property could carry out basic preservations works that were reasonably necessary. This decision will therefore provide helpful assistance when Registered Providers need to carry out repairs to their properties, but cannot do so without going onto land that they do not own and cannot readily obtain permission to do so.
The claimant owned Amberwood House (the dominant property) which was being redeveloped. The defendant owned the adjacent property (the servient property). That property was also being redeveloped, but the project was not as advanced as the Amberwood House project. The claimant had requested access to a passageway on the defendant’s land so that it could erect scaffolding to re-render and repaint the north wall of Amberwood House, but the defendant refused.
The Act enables the Court to grant an access order to a person who, for the purpose of carrying out works to any land (the ‘dominant land’) needs to enter upon adjoining land (the ‘servient land’) but does not have the consent of the other person to do so. However, the Court can only make such an order if satisfied that the works are ‘reasonably necessary’ for the preservation of all or part of the dominant land and that the works cannot be carried out, or would be significantly harder, without entry upon the servient land.
Firstly, in applying the statutory test, the Court had to consider were the works ‘reasonably necessary’. The claimant had demonstrated that there were good reasons why the rendering needed to be reapplied for reasons that were clearly relevant to the preservation of the wall and therefore fell within the definition of “basic preservation works”.
The defendant acknowledged that if the works needed to be done, they could not be done without access to the defendant’s land.
If the order was granted, would the defendant or any other person suffer interference with, or disturbance of, his use or enjoyment of the servient land to such a degree that it would be unreasonable for the court to make the order?
The defendant had made objections to the order based on:
(i) the use of the passageway;
(ii) health and safety responsibilities;
(iv) its contractor’s reaction; and
(v) the proposed use of a direct route through its property.
Where a defendant had made legitimate objections to the proposal, the court had to consider how those objections could be mitigated through the terms of the order. The Court made it clear that Defendants should be expected to try to work constructively with claimants to see how any detriment could be lessened. A defendant who failed to engage risked losing the sympathy of the court and risked costs consequences.
So, should the Court grant an access order?
Yes, the claimant reasonably required access to the defendant’s property in order to do basic preservation works that were reasonably necessary. The defendant had not shown that it or any other person would suffer from the proposed works in any way which would make it unreasonable for those works to be ordered, having regard to the terms which would be appropriate features for an access order.
The Court then had to consider, what (if any) terms should be attached to the order, which may include provision requiring the applicant to pay the respondent such sum by way of consideration for the privilege of entering the servient land. The defendant claimed that it should be compensated for:
(i) additional costs in managing its own rebuilding project;
(ii) delay to its own building project;
(iii) the delay in its ability to monetise its investment in the building;
(iv) damage to its property; and
(v) substantial loss of privacy or other substantial inconvenience.
However, by s.2(5) of the Act such consideration did not have to be paid if the intended works were to “residential land”.
Amberwood House had been used for 80 or 90 years as a residence. Whilst it was currently in the ownership of a developer, the purpose of the work was with the intention of it remaining as a private residence. The Court decided that once a property had obtained the character of residential land, it retained that character until the property was being used for something else. Accordingly, the court did not order the payment of a licence fee as a condition of the grant of the Access Order.
It is not uncommon for property owners to want to carry out repairs and maintenance on their land but need access to neighbouring land for the purposes of, for example, erecting scaffold but are unreasonably prevented from doing so resulting in increased costs or delay in works being undertaken. This case provides helpful guidance on the test to be applied by the Court to grant an access order. Further, a land owner who fails to cooperate with his neighbour in working out the terms on which access could be given, risks facing a costs order if the Court considered his actions to be unreasonable.
How can Birketts help?
Birketts have a specialist Housing Management Team and Development Team to assist our clients stay one step ahead. Our expert lawyers can advise on all aspects of site acquisition, development, housing and asset management. Our experts have decades of experience acting for Registered Providers and local authorities and offer a truly ‘one-stop shop’ for the issues facing the sector.
If you have any queries regarding the content of this article or wish to discuss any issue regarding the management of your tenants or stock, please contact Clive Adams, Jonathan Hulley or any member of the Social Housing Team, to see how Birketts can help you.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2022.