On the Third Day of Christmas 2022...

…Today Paul Henson from Irwin Mitchell’s Real Estate team examines the Access to Neighbouring Land Act 1992 and in particular the Prime case which came before the High Court for the first time at the start of 2022.

The Access to Neighbouring Land Act 1992 (‘ANLA’) came before the High Court for the first time in January 2022 in Prime London Holdings 11 Limited v Thurloe Lodge Limited (2022) EWHC 79 (Ch) (“Prime”).  By way of re-cap, ANLA was enacted to provide a party with a statutory route to seek access onto another’s land to allow it to carry out works of repair or improvement to its land without causing a trespass.  Section 1 of ANLA provides that the Applicant’s works must be ‘reasonably necessary’ to preserve the whole (or part) of their land and that it is either impossible, or substantially more difficult, to carry out those works without access to the neighbouring land.

In Prime, two substantial and high value properties in the prime central London area of South Kensington were being redeveloped at the same time. The Claimant sought access to the Defendant’s land under ANLA to carry out works to re-render and re-paint the north wall of their property.  The Claimant’s exterior wall could only be worked on from a narrow passageway between the two buildings owned by the Defendant.  As is no doubt obvious the parties fell out and the Defendant’s complaints included that such works would delay its own programme of works. 

The Court decided that there were 5 questions to cover when considering an application under ANLA. Section 1 of ANLA, it found, had been “carefully crafted” such that there are two initial questions to consider:

1. Are the works reasonably necessary for the preservation of the whole or any part of the Claimant’s land?

2. Would it be impossible, or substantially more difficult, to carry out the works without entry to the Defendant’s land?

If the answers to 1 and 2 are yes, the court must then consider the further two questions posed by section 1(3) of ANLA:

3. Would the Defendant (or any other person) suffer interference or disturbance with the use or enjoyment of the land; or

4. Suffer a hardship. 

If the answer to questions 3 and 4 are no, then the court still retains the discretion as to the terms of any access order it might grant.

If the answer to questions 3 or 4 are yes then a fifth question needs to be addressed – would the interference, disturbance or hardship be to such a degree that it would be unreasonable for the Court to make the access order?

In Prime, the parties disputed four out of the five questions and the Court had to consider them separately.  Amongst other things, the Court held that the cracked external render to the Claimant’s property was within the definition of “maintenance, repair or renewal” and that replacing it was “reasonably necessary” because there was a risk of water ingress if the works were not undertaken.  Usefully, the Court also held that such works did not need to be required to be undertaken ‘immediately’ to be considered as “reasonably necessary” and that the Court ought to take a broad view when considering the point.

When addressing the “fifth question” as to whether it would be ‘unreasonable’ to impose an access order on the Defendant, the Court decided it had to balance the interference, disturbance, or hardship they might face against the detriment to the Claimant if no access order was made. When deciding this, the Court should have in mind that it is able to impose its own conditions as to when and how any works are undertaken in the order and that there is provision for compensation to be payable.  In Prime, the Judge commented that “it would be perverse to ignore these provisions when forming a view as to whether the Defendant will suffer hardship through granting of the Order.  If the Defendant is compensated under the terms of the Order, then the Order cannot have given rise to any financial hardship”.

In Prime the Judge noted that this final question would almost always be the main point of dispute in any contested application under ANLA but that where the court hears legitimate objections from a Defendant it should consider how they can be mitigated through the terms of the access order it might grant.  In this case the court had in mind that section 2(5) ANLA provides that compensation can be paid by a Claimant for the privilege of entering a Defendant’s land, albeit only if the subject property is not “residential” in nature.  Whilst the Defendant claimed compensation in the sum of £3 million on the grounds that it considered its own works would have to stop for a period of 15 weeks if the Claimant undertook their requested works, this was rejected by the Judge who determined compensation should be based on the costs of supervising the works and that such sum was in the tens of thousands.  This outcome was no doubt guided by the Judge’s criticisms of the Defendant’s somewhat obstructive approach to the litigation which meant it lost sympathy with the Court.

Prime is a useful decision for parties looking to enact the provisions of ANLA as it finally provides High Court authority as to how the Act is to be interpreted in practice. In its judgment the Court was somewhat critical of the parties in having spent a not inconsiderable sum in producing 14 witness statements and four expert reports (together with four days spent in the High Court) to resolve the issue of access and concluded that it would be much better to agree something and “love thy neighbour” than get involved in such litigation.