The key message from Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 303 (Ch) – the first reported High Court decision on the operation of the Access to Neighbouring Land Act 1992 – is that neighbours should work hard to reach agreement and avoid the delay and expense of litigation.
The parties owned adjacent properties in South Kensington – Amberwood House and Thurloe Lodge – which they were redeveloping. The claimant sought access to the defendant’s land under the Act to re-render and repaint the north wall of Amberwood House. The wall was set on the boundary line and could only be worked on from a narrow passageway, between the two buildings, on the defendant’s land. The parties, who had fallen out in 2019, could not agree terms for access.
Section 1 of the Act requires the court to consider five questions in deciding whether to order access:
- Are the works reasonably necessary for the preservation of the whole or any part of the claimant’s land? The wall had been rendered previously and damaged during basement excavation works. The works were “maintenance, repair or renewal” within section 1(4)(a) of the Act and the application for access and the works were reasonably necessary.
- Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land? The parties agreed that the works could only be done with access to the defendant’s land.
- If the order is granted, would it cause interference with, or disturbance of, the use or enjoyment of the defendant’s land? The court affirmed this, acknowledging that it covered the effect on any occupier of the land, which would include the defendant’s contractor.
- If the order is granted, would the respondent or any other person occupying the land suffer hardship? Disruption to the defendant’s building project could cause increased costs, but since the court has wide powers under the Act to specify how and when the works are to be carried out and the precautions to be taken, and to require the applicant to pay compensation for losses, the answer was probably not.
- Would the interference, disturbance or hardship occur to such a degree that it would be unreasonable for the court to make an order? This required consideration of detriment to the applicant if the order was denied as well as the defendant’s position. The court should exercise its wide powers and consider how legitimate objections could be mitigated in the order. The parties should assist the court in achieving this. The defendant had generally sought to find problems rather than solutions: its objections based on the use of the passageway, health and safety, and insurance were ill-founded.
The court ordered access. The defendant could choose whether the works were carried out in 2022 during its building project or delayed until 2023 after its completion. The defendant was entitled to compensation for losses which it could establish. These could include additional costs incurred through delay or in accommodating the claimant’s works, damage to Thurloe Lodge and delay in monetising its investment in the building.
Louise Clark is a property law consultant and mediator
