Mark Withers | 21st February 2022

Accessing neighbouring land


Mark Withers | 21st February 2022

Accessing neighbouring land

Whenever land is purchased, a buyer will always be keen to establish the nature and extent of any rights over adjoining land. Where structures abut, private services run through adjoining land or works can only be carried out to a boundary feature by going onto a neighbour’s property, any owner will want to be sure it can lawfully access neighbouring land to carry out any necessary works.

Can a court help with accessing neighbouring land?

Occasionally an owner won’t have the necessary rights and in that situation the Access to Neighbouring Land Act 1992 can be relied upon. Having been enacted in 1992 there has been only one reported High Court case concerning this Act in thirty years being the recent decision handed down in Prime London Holdings 11 Limited -v- Thurloe Lodge Limited. The High Court in that case had to consider an application made under the Act to obtain access to adjoining land in order to render and repaint a wall. An access order was eventually made under the 1992 Act.

The case emphasised that a court can only make an order under this Act allowing access to an adjoining property where:

  1. the works are reasonably necessary for the preservation of the whole or any part of the claimant’s land; and
  2. it would be impossible or substantially more difficult to carry out the works without entry onto the other land.

If the answer to either of these questions is “no” an access order cannot be granted. If the answer to both questions is “yes” the court then needs to consider:

  1. whether, if the order is granted, the adjoining owner or other person would suffer interference or disturbance with the use and enjoyment of the adjoining land; and
  2. whether the adjoining owner or other person occupying the land would suffer hardship if an order were granted.

If the answer to both question 3 and 4 is “no” the court should grant an order. If the answer to either or both question 3 or 4 is “yes” the court needs to consider whether the interference, disturbance or hardship to the adjoining owner is such that it would then be reasonable for the court to make an order.

Provided the impact on the adjoining owner isn’t disproportionately severe, the court may decide to make an order and then needs to consider the question of compensation.

Compensation can be ordered either on a forward looking basis by ordering payment of a specific sum or backward looking by permitting the adjoining owner to claim loss or damage which is actually suffered as a consequence of the access. The Access Order may also require the Claimant to pay the adjoining owner a fair and reasonable sum for the privilege of entering the adjoining owner and his land but not in the circumstances where the work is being carried out to residential land.

The ability to rely upon this piece of legislation (and so avoiding what might have otherwise been a ransom demand) is potentially of great significance to land owners. Its provisions should always be borne in mind where land appears not to have adequate rights (and those rights can’t be obtained through negotiation) to carry out necessary works.

If you have any queries concerning the points raised regarding accessing neighbouring land please contact me.