Statutory rights of access to neighbouring land

United Kingdom

Introduction

A limited change in the law was made by the Access to Neighbouring Land Act 1992 ("the Act") which came into force on 31 January 1993. Prior to its enactment, there was no statutory right to access a neighbour's premises to carry out maintenance and repair work to one's own premises. Either an easement or an express licence was required.

The Act enables access to adjoining or adjacent land for the purpose of carrying out "basic preservation works" to one's own property. Before entering, an application for an access order is required which, if granted, would require the neighbour to allow the applicant to enter onto the neighbour's land.

Applications for Access Orders

A right of access under the Act only arises where a court makes an access order in favour of an applicant. Proceedings must be commenced in the County Court.

The court may make an access order if, and only if, it is satisfied that the basic preservation works are (i) reasonably necessary for the preservation of the relevant land; and (ii) that they cannot be carried out, or would be substantially more difficult to carry out, without entry onto the adjoining, 'servient' land (i.e. the land over which the right is to be exercised).

Even if (i) and (ii) above are satisfied the court may not make an access order where it concludes that it would be unreasonable to do so due to the degree of interference with, or disturbance of, the respondent's or any other occupier’s use or enjoyment of the servient land or the respondent would suffer hardship to such a degree that it would be unreasonable to make the order.

What are Basic Preservation Works?

Briefly,

(1) Maintenance repair or renewal of a building;

(2) Clearance, repair or renewal of a conduit;

(3) Felling, removal or replacement of a tree or plant which is in danger of becoming dangerous or diseased, insecurely rooted or dead;

(4) Filling in or clearance of a ditch;

(5) Such other works as the court may consider reasonably necessary for the preservation of any land.

Content of Access Orders

The court may include conditions such as the days and times at which the works are to be carried out, who must carry out the work, the precautions to be taken by the applicant and may even provide for payment to be made for any loss, damage, injury, substantial loss of or other substantial inconvenience to the owner or occupier of the servient land by reason of the entry.

Where work is required to commercial premises the court may require the applicant to pay the respondent fair and reasonable compensation having regard to the likely financial advantages to the applicant and the degree of inconvenience likely to be caused to the respondent or any other connected person.

Any of the terms or conditions of an access order can be varied, discharged, suspended or revived by the court.

Effect of Access Orders

An access order is binding on anyone subsequently acquiring an estate or interest from the respondent (whilst the order is in effect) subject to the order having been properly registered either as a land charge or at HM land Registry.

Damages for Breach

Any person who contravenes or fails to comply with any of the provisions of an access order can be ordered by the court to pay damages to any person affected.

Conclusion

As important as it is to recognise what the Act does create, it is as significant to understand what it does not create. The Act does not create a form of statutory easement and does not give rise to a new interest in land. The Act merely gives a right to access in certain defined circumstances, which can be enforced against certain defined persons connected with the servient land.

A right to access under the Act is not an immediate, automatic or certain one, and as such is very much a last resort. Where agreement with the owner or occupier of the servient land is forthcoming, it is preferable to rely upon an express licence or deed of easement to enter their property. It is also important to remember that this right is only available for repair/maintenance purposes.

It is also important to remember that the Party Wall Act may provide a suitable alternative means to carry out works and this article does not seek to address those possibilities.

For further information please contact Louise Mary at [email protected] or on 020 7356 2843