Prior to the High Court Decision of Prime Holdings 11 Limited v Thurloe Lodges Limited  EWHC 303 (Ch) (Prime) the Access to Neighbouring Land Act 1992 (ANLA) had not come before the court. This particular piece of legislation concerns a party’s ability to seek access to neighbouring land (the “servient land”) for the purpose of carrying out maintenance works on their property (the “dominant land”). Prime focuses on section 1 of the ANLA 1992, with section 1(2)(a) providing that any potential maintenance must be “reasonably necessary” for the preservation of the dominant land. Additionally, section 1(2)(b) noted that the court will consider whether not having access to the servient land will render the works substantially more difficult to carry out.
Prime concerned two properties situated in South Kensington, London, with the Claimant’s property (the “dominant property”) being put under renovation at the same time as the Defendants (the “servient property”). Access to a passageway on the Defendant’s land was requested by the Claimant in order to put up scaffolding for the purpose of re-rendering and repainting one of the walls of house. However, the Defendant refused.
An application was issued by the Claimant, and the court held that five questions should be considered on an application under ANLA. Firstly, the original conditions from section 1(2)(a) and (b) of ANLA shall be taken into account. If it is held that they are satisfied, it would be examined as to whether the defendant or any other person’s enjoyment of the servient land be disturbed and whether any occupiers of the land would suffer hardship. Even if this is found not to be the case, the court still may not grant access. Lastly, if it was found that there would be interference as a result of access to the land, it would be assessed as whether granting access would be unreasonable.
The case examined four out of the five questions, which were each considered independently, with the first issue being whether the works were reasonably necessary. It was held that the works fell under the definition of “basic preservation work” and that the rendering was necessary for the preservation of the wall. But access could also be justified by wanting to maintain its presentation. In addition, it was decided that works did not have to be a matter of urgency in order to be “reasonably necessary”, although this may be reflected within the terms of the order. Section 1(2)(b) was not at dispute here as the Defendant acknowledged that access was necessary for the works. After this, it was stated that the court should not interpret “use or enjoyment” narrowly and that the use and enjoyment of the Defendant and his contractors could potentially be impeded by the works. As for the occupiers suffering hardship, the court took view that the Defendant would not suffer, but potential financial loss should be considered.
When deciding on the final issue of whether access was unreasonable, the court balanced the extent of the interference, disturbance and hardship on the Defendant if access was granted as well as the detriment to the Claimant if access was denied. It was mentioned that courts have the ability to impose conditions on how the works were to be carried out and also consider any legitimate objections to the proposal. As a result, it was noted that the final question would often be the primary area of contention in an application under ANLA. In this particular example the question of consideration also arose with section 2(5) being considered. Under this section, consideration does not have to be paid if the works carried out were to a residential property. Despite it being decided that the Claimant’s property could be considered residential in nature, after being used as a dwelling for a significant period of time, a license fee was issued. This determined by the how much the work would cost to supervise.
When parties are looking to make an application under ANLA Prime will be a useful reference point as to how the act is viewed in practice. However, it was noted by the judge that litigation could have been and should be avoided in matters such as this. The cost and effort put into the case could have easily been avoided if the parties were able to make a simple agreement between them and abided by “the Biblical precept ‘love thy neighbour’”. Due to this the judge hoped that this decision could assist future applicants to resolve their differences and avoid court.
Should you have any queries concerning access to a neighbouring property, please do not hesitate to contact Lorraine Lancaster of our Real Estate Litigation Department on 01702 338338.
Author: Lorraine Lancaster