The High Court recently dealt with an application made under section 1 of the Access to Neighbouring Land Act 1992 (“ANLA”) for an access order allowing an owner of a building access to neighbouring land to carry out certain works.
Interestingly, this is the first time this provision of the ANLA has been considered in the High Court, which, as Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) highlighted, is a testament to the sound drafting of the Act.
The Claimant is the owner of a high value property in South Kensington situated at the end of a private road opposite the Victoria & Albert Museum. It has featured in “Britain’s Most Expensive Homes” on Channel 4 and used to be the home of the late ballerina Dame Margot Fonteyn.
This property is being redeveloped with the north wall requiring extensive re-rendering and re-painting. For the Claimant to do these works it needs to put up scaffolding and to do so it requires access to a narrow passageway owned by the Defendant. Due to the parties not being on the best of terms, the Claimant applied to the Court for an access order under s.1 ANLA.
The Court applying the 5-step legal test for granting an access order set out in s.1 ANLA
1. Were the works reasonably necessary for the preservation of the whole or any part of the Claimant’s land?
The works were decided to be “basic preservation works” and amounted to maintenance and repair of the Claimant’s property therefore being reasonably necessary and passing the first test.
2. Would it be impossible, or substantially more difficult, to carry out the works without entry to the Defendant’s land?
The Defendant had already acknowledged that the works could not be done without access to the passageway.
3. If the access order was granted, would the Defendant or any other person suffer interference with, or disturbance of, his use or enjoyment of the servient land?
The Court found that the works the Claimant wanted to do could be capable of disturbing the Defendant’s use or enjoyment of the passageway.
4. If the order is granted, would the adjoining owner or any other person occupying the land suffer hardship?
The Court found that the Defendant’s use of its passageway could be disturbed by these works, but it was unconvinced that the access order would give rise to any hardship to the Defendant.
5. If the answer is yes to questions 3 and 4, the Court must ask a final question. In this case, while the Court decided the order would not cause the Defendant to suffer hardship, it still addressed the final question: would the interference, disturbance, or hardship arising from entry onto the land occur to such a degree that it would be unreasonable for the Court to make the order?
Although the Defendant had objected to the access order based on its use of the passageway, possible health and safety risks and insurance concerns, the Court decided it was not unreasonable to grant the access order to the Claimant.
Mr Nicholas Thompsell ended his judgment with some words of wisdom to neighbours expressing that the Biblical precept to "love thy neighbour" is one that owners of neighbouring properties should perhaps abide by to avoid future disputes.