An issue which commonly arises for various reasons is the need to access neighbouring land in order to carry out work on your own property. This might be to cut back trees, repair fences, pipes or eaves. Legally therefore, what are your options if you should find yourself in this situation, especially where your neighbour might refuse to consent?
This is, of course, the most preferable and practical route, which ideally should always be explored before seeking to take a more formal legal route (if possible). Even if you are able to amicably agree this with your neighbour however, this does not necessarily preclude the need for at least some formal arrangements in place.
It is always prudent to document matters by way of a formal agreement to reduce the likelihood of a dispute regarding what has or hasn’t been agreed (which will prove especially difficult once works have already commenced). Documenting this does not necessarily mean a long and complex agreement – sometimes a simple letter can suffice.
We would suggest that you check the title to both properties to see if there are already easements in place granting rights of access.
If the land does benefit from an easement that permits access, but your neighbour still refuses you entry you might be able to bring a claim in nuisance or obtain an injunction ordering your neighbour to allow access.
3. Obtaining a court order under the Access to Neighbouring Land Act 1992
An owner or tenant of a property can apply to the County Court for an access order over neighbouring land for the purpose of carrying out works to the applicant’s property. Such an application can be made in the case of both residential and non-residential land and once applied for, will allow the applicant to register a pending land action against the neighbour’s title. If a court order is made, this can also be registered against the title of the neighbouring land.
Generally speaking, a court will grant an access order if it is satisfied that the works are reasonably necessary for the preservation of the applicant’s land and cannot reasonably be carried out without access to the neighbouring land. The court will not make an access order if to do so would interfere with the neighbour’s use of the land or would cause hardship to the neighbour.
If a court chooses to make an access order, it will usually include details of the following:
- The works that are to be carried out;
- The part of the neighbouring land that may be entered upon;
- When the works may be carried out;
- Compensation for the neighbour; and
- Costs to be paid by the applicant.
The court may also choose to include certain other conditions to its order, such as requiring the applicant to have appropriate insurance in place and specify who may undertake the works.
Further, where the land is non-residential, the court also has the power to require an additional payment to be made by the applicant for the “privilege of entering” the neighbouring land. This sum would be calculated based on relevant factors such as any likely financial advantage from the development value.
Obtaining such a court order means that the neighbour is required to allow the applicant to carry out any works which are permitted under the order. This might also include being required to allow the applicant to bring materials and equipment onto the land, as well as any waste arising from the works. However, an order would likely also impose on the applicant an obligation to remove such waste from the land and make good any damage.
- Rights under the Party Wall etc. Act 1996
The Party Wall etc. Act 1996 grants rights to enable neighbours sharing a boundary to carry out building works that involve:
- Building or demolishing a party wall or structure;
- Carrying out repairs to a party structure; and
- Excavating a site up to six metres from neighbouring buildings.
In order to rely on this however, you would need to follow the notice procedure contained in the legislation and should consult a Party Wall Surveyor.
For further information or guidance, contact BHW’s Commercial Property department on 0116 289 7000.