Accessing adjoining building owner's land

Good relations with neighbours helps smooth access for works

Do you want to access an adjoining building owner’s land to carry out works?

The Access to Neighbouring Land Act 1992 (the Act) provides a building owner with the right to obtain access to an adjoining owner’s and to carry out works in certain circumstances.

However, if your neighbour refuses consent or there is no right of entry, it may be necessary to apply for an Access Order under the Act.

Sophie Kerry, Solicitor in the Litigation Team at Wake Smith Solicitors looks at the issue and concludes good neighbourly relations will always save time and money in the long run.

The article covers:

• The law
• A recent case
• Good neighbourly relations
• Your next move

The law

Section 1 of the Act sets out the basis on which a Court has authority to make an Access Order and, in a recent case, the Court applied the law by considering the following five questions:

1. Are the works reasonably necessary for the preservation of the whole or any part of the claimant's land?
2. Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land?
3. If the order is granted, would the defendant, or any other person, suffer interference with, or disturbance of, the use or enjoyment of their land?
4. If the order is granted, would the defendant, or any other person occupying the land, suffer hardship?
5. Would the interference, disturbance or hardship caused by the entry onto the land occur to such a degree that it would be unreasonable for the court to make the order?

A recent case

In the case of Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022], the court considered these five stages when deciding whether to grant an access order.

This is the first time in 30 years that an application under the Act has come before the High Court.

In this case, the Claimant was a company called Prime London Holdings 11 Ltd (Prime), and the Defendant was a company named Thurloe Lodge Ltd (Thurloe).

Prime wanted to re-render and paint the north wall of its property and so requested access to a passageway on the Thurloe’s land in order to erect some scaffolding.  Unfortunately, Thurloe refused, so Prime applied for an Access Order under the Act. Both Prime and Thurloe’s land were being developed at the time of the application.

In reaching its decision in this case, the Court set out how it approached the questions set out above. The two primary questions were:

• Are the works reasonably necessary for the preservation of the whole or any part of the claimant's land?
• Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land?

In this case the Court held that the answer to both of these questions was yes, and therefore two further questions needed to be addressed:

• If the Access Order was granted, would there be interference with, or disturbance of, the use or enjoyment Thurloe’s land?
• If the order is granted, would the defendant or any other person occupying the land suffer hardship?

If the answer to both of these questions was no, the Court had to grant the Access Order.

In this case, the Court said that the concept of use and enjoyment should be looked at narrowly but decided that Thurloe’s use and enjoyment was capable of being disturbed by Prime’s proposed works. But hardship should amount to more than a mere inconvenience.

However, if the answer to either of the questions regarding interference, disturbance or hardship is yes, the Court had to consider the fifth question:

• Would the interference, disturbance or hardship be so serious that it would be unreasonable for the court to make the order?

Therefore, a minor degree of interference, disturbance or hardship was not sufficient to stop the Access Order being granted.

It is also important to note that, in considering if it was unreasonable to impose an access order on Thurloe, the Court also took into account the detriment to Prime if the Access Order was refused and their "reasonably necessary" works could not be carried out.

Having considered all of those questions in the context of the facts of the case, the Court granted the Access Order.

Good neighbourly relations

The judge in this case commented:

"If this case has proven anything, it has proven that the Biblical precept to "love thy neighbour" is one that owners of neighbouring properties would do well to abide by. The current action has involved great effort and cost to both parties in order to produce an outcome that, with only a modicum of goodwill, they might have been able to agree between them."

In other words, all of that stress, hassle and expense could have been avoided, and the works carried out more quickly, had the parties adopted a more neighbourly approach from the outset.

However, the decision does provide useful guidance that should help neighbours assess whether their proposed works and access requirements meet the required tests and, if so, whether any compensation might apply.

One last point to mention is that when an Access Order is granted the order may also require the claimant to pay the adjoining owner a reasonable and fair sum for the privilege of entering the adjoining land, unless the works are to residential land.

Your next move

If you have a litigation issue with property contact Sophie Kerry at Wake Smith Solicitors on 0114 224 2036 or at [email protected] 

Find out more about our litigation services.

Published 27/06/22