09 July 2018 #Real Estate
We are often asked by landowner clients whether there is any legal right to go on to a neighbour’s land to carry out repair and maintenance works where it is not possible to carry out such works from the landowner’s own property and there is no legal right in place allowing access to the neighbour’s land.
If the Party Walls legislation does not apply to the site in question, the Access to Neighbouring Land Act 1992 (“the Act”) may be of assistance. The Act provides that if the owner of the neighbouring land does not agree to give access to allow necessary repair or maintenance works to be carried out, the Act allows a landowner to apply to Court for an ‘Access Order’ to allow access where the works are reasonably required for the preservation of the landowner’s land, and the works cannot be carried out, or would be made substantially more difficult, if access to the neighbouring land is not granted.
The Act provides that the works for which an order for access may be made are those regarded as “basic preservation works”. This includes but is not limited to:
The Court is entitled to refuse to grant an Access Order where it is satisfied that the neighbour would suffer interference with or disturbance of his use of the land or any person in occupation would suffer hardship to such a degree that it would be unreasonable to make an order.
If the Court does make an Access Order, it is entitled to set out conditions as to the period during which access will be allowed, the hours during which the works may be carried out, the details of the works allowed and the amount of compensation to be paid to the neighbour.
The other case where access to a neighbour’s land is often required is the situation where a landowner has obtained planning permission for a new development but cannot carry out all the works, such as erection of scaffolding or the digging of foundations, without access to his neighbour’s site. Unfortunately for such developers, the limitation of the Act is that the access must be required for the purpose of carrying out preservation work, but ‘preservation’ does not include improvement works or brand-new developments. As a result, the Act will not be appropriate for many elements of large scale new developments, the building of a new extension or even the installation of solar panels on the roof of the landowner’s existing property.
Where the Act does not apply, the only other option is for the landowner to seek and obtain the agreement of the neighbour to access the neighbouring land. Such agreement can be documented in the form of a letter, licence or deed granting a right of access for a specific purpose and a limited time, and the terms will be negotiated between the parties. Neighbours will often know that their consent will have a ransom value especially where a new development is proposed, and so they will have a strong negotiating position in this respect. Should the ransom payment be too high, or if the neighbour takes an uncooperative or unreasonable stance, the landowner’s only other option will be to modify the scheme so that access is no longer required.
None of our experienced team of commercial property lawyers have ever been asked to prepare an application to Court to apply for an Access Order .This may indicate that in some cases where the Act applies, the threat to the neighbouring owner that an application will be made is enough to ensure that the appropriate access is given - and in others that owners are not aware of their rights under the Act.
Please contact Rachel Krol or any other member of the Real Estate team if you have any questions on the Act.