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Solicitors in Westminster, London

Love thy Neighbour as Thyself- but if you cannot this recent High Court commandment might assist

The Access to Neighbouring Land Act 1922 (“the Act”) is a piece of legislation that is often relied upon (or where necessary, used as a stick to wave at a neighbour) but rarely tested in court. The case of Prime London Holdings 11 Limited -v- Thurloe Lodge Limited [2022] EWHC 303 (Ch) decided this month saw the Act scrutinised by the High Court for the first time in 30 years.

The Act

The purpose of the Act is to

enable persons who desire to carry out works to any land which are reasonably necessary for the preservation of that land to obtain access to neighbouring land in order to do so’.

The owner of the land which is being worked on (the dominant land) can apply to the court for an order granting them access to their neighbour’s land (the servient land). The court will make an order where they are satisfied that the works are reasonably necessary for the preservation of the dominant land and that they cannot be carried out or would be much more difficult to carry out without access to the servient land. For the court to consider granting such an order, the owner of the dominant land must show that in accessing the servient land, they will not cause hardship or disturbance to the owner of the servient land. 

Background to the case

The parties are the owners of two substantial and neighbouring properties in South Kensington, London, with both properties were being extensively redeveloped at the same time. Prime London Holdings 11 Ltd, the owner of Amberwood House, sought access to Thurloe Lodge, the Defendant’s land under the Act in order to carry out works to the north wall of Amberwood House. This wall was accessible only by a narrow passageway between the two buildings which was located on the Defendant’s land.

The application

The Claimant put forward two Method Statements to carry out the works. The first method involved carrying scaffolding through Thurloe Lodge, erecting the scaffolding in the passage between the properties and then carrying out the work from the scaffolding. The second method involved taking scaffolding materials over the roof of Amberwood House using a cantilevered scaffolding bridge and then erecting the scaffolding in the passage between the properties and carrying out the works from the scaffolding.

The Defendant objected to the Claimant’s application on various grounds, including their own need to access to the narrow passageway to transport materials for their redevelopment of Thurloe Lodge, that the passageway was a fire escape route and that the neighbour’s use of the passageway could throw up issues with their site insurance.

The Defendant also sought compensation from the Claimant under section 2(4) of the Act. This section of the Act requires the Claimant to pay the Defendant compensation for any loss, damage, or inconvenience caused by the works.  The Defendant asserted that the cost of stopping their own development works for 15 weeks to allow the Claimant to carry out their preservation works would cost the Defendant c.£3 million.

The result

The court granted the Claimant’s application. The court found that the Claimant required access to the Defendant’s property so that they could carry out preservation works that were reasonably necessary. The Defendant was not able to persuade the court that the Claimant’s works would cause interference with or disturbance of their use or enjoyment of the servient land.  The court refused the Defendant’s application for compensation and held that the cost of the works would cost thousands of pounds and not millions. 

Comment

The case provides a useful and up to date review and guidance on the Act and how the court will assess the competing needs of dominant and servient owners. Where possible, amicable discussions between neighbours is almost always the best course of action. But, in circumstances where the parties cannot agree access rights, this decision provides several valuable pointers.  If you would like to discuss any of the issues raised in this article, please contact Stephen Dean or Katya Churchill to discuss further.