What do I do if I can’t repair my property without going onto my neighbour’s land?

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In some circumstances, the Access to Neighbouring Land Act 1992 (ANLA 1992) can provide a building owner with a right to access a neighbour’s land in order to carry out works.

In Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 303, the High Court considered what those circumstances are for the first time in 30 years.

The Court said that before granting access to a neighbour’s property, five questions had to be considered:

1. Are the works reasonably necessary for the preservation of the whole or any part of the applicant’s land?

The Court held that both the preservation works, and the application for access, must be reasonably necessary. However, in deciding this, the Court should take a broad view. The works needn’t be urgent. In addition, the test can be satisfied even where the need for repair or renewal was caused by the applicant himself whilst carrying out work elsewhere on the property.

2. Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land?

If the answer to either this question or the previous one is “no”, the Court has no jurisdiction to make an access order. However, if the answer to both questions is “yes”, this leads to questions 3 and 4.

3. If the order is granted, would it interfere with, or disturb, the use or enjoyment of the adjoining land – whether by the neighbour or any other person?

As the ANLA 1992 requires the Court to consider the effect of an access order on the adjoining owner “and any other person”, this included an occupier of the adjoining land, such as the adjoining owner’s contractor. “Use and enjoyment” should not be construed narrowly, and both the adjoining owner and their contractor had a use or enjoyment capable of being disturbed by the claimant’s proposed works.

4. If the order is granted, would the adjoining owner or any other person occupying the land suffer hardship?

Hardship means more than just inconvenience – and it could include financial hardship. However, the ANLA 1992 envisages compensation and consideration being potentially payable, and where the neighbour is compensated under the terms of the access order, the order cannot have caused financial hardship.

If the answer to both questions 3 and 4 is “no”, the Court should grant an order, but the Judge retains discretion as to the terms of the order.

If the answer to either question 3 or 4 is “yes”, the Court must consider a fifth question:

5. Is the level of interference, disturbance or hardship such that it would be unreasonable for the Court to make the order?

If it is only minor, then it would not be unreasonable for the court to grant an order. As well as considering the extent of interference, disturbance or hardship to the neighbour, the court must also consider the detriment to the applicant if the order is denied and their “reasonably necessary” works could not therefore be carried out.

The ANLA 1992 gives the court wide powers as to the terms of an order. The court is not restricted by the claimant’s application – which may include stipulating timings and a method statement.

Compensating the neighbour

The Court also has flexible powers regarding the compensation it can order, including:

  • A specific sum, or the basis for calculating it; or
  • The loss or damage actually incurred, assessed after the event.

A combination of both bases is also permissible, which is helpful if the loss cannot be assessed in advance.

Such losses may include damage to the neighbouring property and loss of privacy or other inconvenience. In this case, the neighbour was also undertaking a rebuilding project, and so the losses would include those due to the delay in that project.

Payment of ‘consideration’

The access order may also require the applicant to pay the neighbour ‘consideration’ – i.e. a fair and reasonable sum for the “privilege of entering” the adjoining owner’s land – unless the works are to residential land.

In this case, it was held that the fact that the property had been unoccupied for a significant period and reduced to just walls and a hole in the ground did not prevent it being classified as residential. It only lost its residential status when it was used for something else (such as commercial or agricultural use).

The fact that the owner of the applicant’s property was a property development company rather than an owner-occupier was also not relevant to determining whether the property was residential for the purposes of the ANLA 1992.

Comment

This decision provides helpful guidance in:

  • assessing whether works meet the required tests;
  • any likely heads of compensation; and
  • whether consideration may be payable.