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Accessing neighbouring land for development works

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Background to the Access to Neighbouring Land Act 1992 Development is the art of managing risk. The most problematic risk context is where the developer needs the cooperation of ...

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Date: 01/03/2022

Authors:

Kirsty corkum colour 2021

Background to the Access to Neighbouring Land Act 1992

Development is the art of managing risk. The most problematic risk context is where the developer needs the cooperation of a counterparty who has nothing to gain from the success of the development. Rights of light are a classic example of such risk; access to neighbouring land is another.

Under the Access to Neighbouring Land Act 1992, a landowner may apply to the Court for an order to permit access to neighbouring land without consent from the neighbouring landowner in order to carry out works to their own land. So far so obvious - but the Act is rarely utilised by developers since it is perceived as authorising only a narrow category of ‘preservation works’. A recent case on the Act (Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 303 (Ch) (14 February 2022).) – the only High Court case on the Act since it came into effect over 30 years ago - has provided some valuable insight into how it should be applied; including where it can benefit developers.

In fact, the context for the dispute giving rise to the case was the contemporaneous redevelopment of two adjacent super prime houses by separate developers. The developers had previously cooperated but, for unexplored reasons, had fallen out and it is clear that relations had broken down such that the judge commented ‘The proceedings have involved a level of effort on behalf of the parties that seems out of proportion with the importance and value of the matter in question’.

Analysis of the Act

The judge undertook a forensic analysis of the Act’s ‘subtle’ drafting in the expectation that his judgement would remain the sole authority on the Act for a considerable time. He set out a detailed sequential test of five questions that will comprise a blueprint for identifying whether an access order under the Act can be granted. The judgement also confirmed some points that are relevant to developers:

  • the Act applies to works that are reasonably necessary for the preservation of land. This test is deemed to be met where the Court is satisfied that it is reasonably necessary to carry out ‘basic preservation works’. A non-exhaustive list of ‘basic preservation works’ is set out which includes maintenance repair or renewal of any part of a building or other structure and the clearance repair or renewal of any pipe drain or cable.
  • works to re-render and repaint a pre-existing wall are ‘maintenance repair or renewal’ despite the fact that it was the applicant for the access order who had removed the render at an earlier stage of the development. The judge rejected the contention that works fell outside the scope of the Act because the damage requiring repair was caused by a voluntary act of the applicant. So works to repair a pre-existing structure unintentionally damaged by a development are covered. Logically therefore, the Act may be used to gain access to remedy defects or snagging in a newly developed building; for example in the defects liability period.
  • once the works are categorised as ‘basic preservation works’, it is not necessary for them to be reasonably necessary to preserve anything; the ‘reasonably necessary’ test can be satisfied by aesthetic considerations where the character of the building and its location so justifies. On this point, the judge recited judicial commentary in 1879 that ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’. Whilst urban renewal may render this analogy outdated, we can understand the principle of the distinction. Also, the work can be ‘reasonably necessary’ if it is required to comply with building regulations or planning requirements. This opens the door to the Act authorising works needed to meet anticipated performance standards.
  • the Court may grant an order granting access notwithstanding it is not reasonably necessary that the work are done urgently. If the works are not urgent, the terms of the order should be such as to accommodate the convenience of the neighbouring landowner rather than requiring the applicant to delay approaching the Court until the works are urgent.
  • the Court may grant an access order notwithstanding interference to the use and enjoyment of or hardship to the neighbouring landowner where that can be quantified in financial terms. In that case, payment of compensation will be one of the terms of the order.
  • when assessing whether it is reasonable to grant an order, the Court should balance the interference or hardship caused to the neighbouring landowner and the detriment to the applicant if the works cannot be carried out.
  • unless the applicant’s land is residential, the Court may order the applicant to pay ‘a licence fee’ for the privilege of entering the neighbouring land. This is separate from compensating the neighbouring owner for losses suffered (which could include substantial loss of privacy or other inconvenience) and there should be no double counting. The fee is assessed by the Court to be a fair and reasonable amount. The Court should take into account all circumstances including any likely increase in the value of the claimant’s land as a result of the works for which access is required insofar as those exceed the likely cost of carrying out the works. This is tantalisingly close to giving the neighbouring owner a profit share but, sadly for us, this avenue is not explored in detail; the judge ruled that the applicant’s property was indeed residential, (notwithstanding it was currently under development by a professional developer).

Key takeaways

A developer still needs to agree terms with adjoining landowners where it needs access to install new structures and is well advised to commence negotiations as early as possible in the development process and ensure that licence anticipates post PC work. However, this case demonstrates that the Act can justify an order where access is needed to rectify defects materialising in a development and that the definition of defect is wider than it might first appear. The case is most likely to have a practical benefit where the methodology for the initial construction was such that no access was required or where the term of a negotiated access licence from the neighbouring owner has expired before the defect has materialised.

Critically, the case emphasises judicial disapproval of ‘unneighbourly behaviour’ which in this case resulted in the wasted resources of a four day High Court hearing and the production of fourteen witness statements and four expert reports. The judge contrasted the open and constructive approach of the applicant in accommodating the neighbouring owner’s objections with the obstructive and reactive stance taken by the neighbouring owner. Where there is a dispute to which the Act applies, a neighbouring owner who does not cooperate proactively to find a mutually acceptable solution risks losing the sympathy of the court and facing consequences in bearing responsibility for costs incurred. Going forward, developers who pointedly refer to the Act (and this specific case) in access negotiations may experience a more cooperative mindset from adjoining owners.

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