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'Love thy neighbour' – guidance on the Access to Neighbouring Land Act

Posted on 6 April 2022

The Access to Neighbouring Land Act 1992 (ANLA) was brought into force to give landowners a way of obtaining access to their neighbour's land if it was needed in order to maintain their own property. While applications under ANLA have been made or threatened, often as a way of extracting money, there has only been one reported county court decision on ANLA since it was passed 30 years ago. As such there has been a great deal of uncertainty as to how ANLA should operate in practice. Much needed clarity and guidance has now been provided by the High Court in the recent case of Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022]EWHC 303 (Ch).

The dispute involved two neighbouring prime residential London properties which were both in the process of being redeveloped. The application under ANLA concerned proposed works to a wall set on the boundary between the properties. The Applicant wanted access to the Respondent's land to re-render and paint the wall. In order to undertake these works they would need to put scaffolding up on the Respondent's land and then complete the work from the Respondent's land.

Ultimately the Applicant succeeded and was granted an order for access, subject to conditions. The judgment sets out a framework of questions the court should address in considering whether an order for access under ANLA should be granted, and if so, on what terms.

Key points made by the court include:

The proposed works

The court needs to decide whether the proposed works are reasonably necessary for the preservation of the subject property. Aesthetic concerns can be relevant and were so here, in the context of prime residential property. It did not matter that the work did not need to be done immediately, the work was still necessary.

Hardship to the respondent:

The court also needs to consider whether granting the requested access would cause hardship to the Respondent and crucially whether the level of that hardship means that it is unreasonable to grant the order for access. This is often the key issue in these disputes. In making this assessment, the court needs to balance the potential hardship against the necessity of the access to the Applicant, bearing in mind that the hardship could be ameliorated by making the order for access subject to conditions. The court has a wide discretion to set conditions for the access.

It was also relevant that the Respondent here was likely to benefit from the proposed works.

Compensation

Often it will not be clear what damage / losses the Respondent will suffer until the works have been completed. The court can therefore set out a mechanism in the order for access to calculate these and order that in the meantime the Applicant provides the Respondent with security to cover the potential damage/ loss.

Consideration or 'licence fee' for the access

ANLA states that consideration is only payable by the applicant where the applicant's land is not residential. Here whilst the Applicant's property had been used a residential home for 80 – 90 years it had laid empty for some time and was currently in the process of renovation. The Respondent referred to these points to argue that the Applicant's property was not a residential property and therefore the Applicant should pay the respondent a licence fee. The Judge considered this point in detail before concluding that the key issue was the character of the property, not whether it was currently occupied as a residence. The Applicant's property was residential and a licence fee was not payable.

Co-operative approach

The judge was critical of the Respondent's approach in this matter and strongly encouraged parties to work together to try and resolve problems in a constructive manner. A 'can-do' attitude is required and respondents should co-operate and seek to offer solutions, rather than simply problems. This is true of both the communications before litigation and during trial when the parties may have to react quickly and work together to address new issues.

This dispute resulted in a four-day trial with 14 witness statements and four expert reports, and a likely hefty legal bill. By their nature neighbour disputes are difficult and parties often become entrenched in their positions but the court made clear its wish for co-operation and is likely to sanction those who do not behave accordingly.

We understand that permission to appeal the judgment is being sought.

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