For the first time in 30 years, the High Court have considered the provisions on the Access to Neighbouring Land Act 1992. In this case, the Court considered the legal test that applies to making an access order.

An access order access to adjoining or adjacent land for the purpose of carrying out "basic preservation works" to one's own property.

Background

The Claimant owned Amberwood House which was being redeveloped to become a “super prime” property. The Defendant owned the adjacent property. That property was also being redeveloped. 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 Claimant applied for an access order under Section 1 of the Access to Neighbouring Land Act 1992.

The Legal Test

When making a decision, the court considered the legal test in Section 1 of the Access to Neighbouring Land Act.

The court found that it had to consider the following five questions in order:-

1. Are the works reasonably necessary for the preservation of the whole or any part of the claimant’s land? The court decided that a broad view should be taken in determining whether the works and the access requested were necessary. The works need not be urgent to be reasonably necessary.
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 adjoining owner or any other person suffer interference with, or disturbance of, their use or enjoyment of the adjoining land?
4. If the order is granted, would the adjoining owner or any other person occupying the land suffer hardship? This would include financial hardship.
5. Would the interference, disturbance or hardship arising from entry onto the land occur to such a degree that it would be unreasonable for the court to make an order? A minor degree of interference, disturbance or hardship was not sufficient for it to be unreasonable for the court to grant an order.

The High Court determined that the court's powers to order compensation were flexible and allowed it to order compensation on:

• A forward-looking basis, by ordering payment of a specific sum, or a sum to be calculated on a specific basis.
• A backward-looking basis, by permitting the adjoining owner to claim losses or damage actually incurred once suffered and quantified.​​​​​​​

Outcome

The application was granted.​​​​​​​

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 that would make it unreasonable for those works to be ordered.

In circumstances where obtaining access is contentious, this decision provides practical guidance that will help parties assess whether or not their works meet the required tests.

Practically speaking, we would always encourage positive discussions between neighbours to try and resolve access issues without the need for litigation, but we are of course happy to advise on the alternatives.

This blog was co-authored by Rachel Airriess and Richard Glover.​​​​​​