The rights granted by the Access to Neighbouring Land Act 1992 (the “Act”) are relied upon by many residential and commercial building owners to access an adjoining owner’s land in order to carry out works.
On 14 February 2022, the High Court handed down its judgment in Prime London Holdings 11 Limited v Thurloe Lodge Limited  EWHC 3030 (Ch). This case is the first ever High Court judgment on the operation of the Act since it came into force almost 30 years ago. This article summarises the Court's useful clarification of aspects of the Act and its application.
Prime London Holdings 11 Limited (the “Claimant”) own Amberwood House and Thurloe Lodge Limited (the “Defendant”) own the neighbouring property, Thurloe Lodge. Both properties were undergoing extensive redevelopment. During this time, the Claimant requested access to the Defendant’s land to complete rendering works on the northern wall of Thurloe Lodge.
After a breakdown in the parties’ relationship and revocation of the Defendant’s permission for the Claimant to access Thurloe Lodge, the Claimant sought an order from the Court to allow access under section 1 of the Act.
To grant or not grant an access order – the legal test
The judge provided useful guidance on the legal test a Court must consider when asked to grant an access order under the Act in the form of a list of questions to be addressed:
1.Are the works reasonably necessary for the preservation of the whole or any part of the Claimant’s land? (Section 1(2)(a) of the Act).
Works that fall under the definition of ‘basic preservation works’ at section 1(4) of the Act must still be reasonably necessary.
Works undertaken for primarily aesthetic purposes can be regarded as reasonably necessary.
The fact that the works are not required to be done immediately does not prevent them from being reasonably necessary.
2. Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land? (Section 1(2)(b) of the Act).
If the answer to either question 1 or 2 is ‘no’ then the Court must make no order. If the answer to both questions is ‘yes’ then the Court should consider section 1(3) of the Act.
3. If the order is granted, would the respondent (i.e. the Defendant in this case) or any other person suffer interference with, or disturbance of, his use or enjoyment of the servient land? (Section 1(3)(a) of the Act).
The Court must not only consider the position of the Defendant but any other person who might suffer, which could include a contractor carrying out development.
4. If the order is granted, would the respondent or any other person occupying the land suffer hardship? (Section 1(3)(b) of the Act).
If the adjoining owner is compensated under the access order, then they cannot have suffered financial hardship.
If the answer to questions 3 or 4 is ’no’ an order should be granted with discretion as to its terms. If the answer to either question 3 or 4 is ‘yes’, the Court must consider question 5.
5. Would the interference, disturbance or hardship occasioned by reason of the entry onto the land occur to such a degree that it would be unreasonable for the court to make the order? (Section 1(3) of the Act).
- A minor degree of interference, disturbance or hardship does not make it unreasonable for an access order to be granted.
- The extent of the interference, disturbance or hardship must be looked at in light of the detriment to the applicant if the order is denied.
- The Court must consider how legitimate objections can be mitigated by putting provisions within the access order; in accordance with the Court’s wide powers under the Act.
The Judge concluded on the facts that an order should be made in the Claimant’s favour.
Basis of compensation
In addition, the judge provided useful guidance on compensation and confirmed the Court had powers to order compensation on:
- A forward looking basis, ordering payment of a specific sum/sum calculated on a specific basis; or
- A backward looking basis, permitting the defendant to claim for loss or damage actually incurred and quantified; or
- A combination of the two approaches.
In relation to the land itself and its status as residential land, the judge confirmed:
- Residential land included any garden and outbuildings used for the enjoyment of the main residential building.
- Once a property is characterised as residential land, this character remains until the property is used for another activity (for instance commercial or agricultural purposes).
- A significant period of non-occupation, including substantial redevelopment of the property, would not remove the property’s status as residential.
- A property development company in ownership of the property would not remove the property’s status as residential.
Of particular wider interest are the judge's comments on the deterioration of the parties’ relationship.
The judge indicated that in future, the court would expect parties to try and agree a way of undertaking the works and allowing access between themselves, rather than resorting to litigation. In our experience, Access to Neighbouring Land Act disputes rarely make it to court, as is borne out by the fact that this is the first case of its kind in the High Court. Nevertheless, parties in similar situations should try and reach agreement, taking into consideration the legal test as outlined above.
This judgment will be important to both commercial and residential landowners in England and Wales seeking an access order under the Act.
A minor degree of interference, disturbance or hardship does not make it unreasonable for an access order to be granted. The extent of the interference, disturbance or hardship must be looked at in light of the detriment to the applicant if the order is denied.