It’s hard to believe a year has passed since I acted as the expert witness in the landmark High Court hearing that set new case law regarding what is and isn’t allowed under the Access to Neighbouring Land Act 1992.

This was the first time that the Act had been tested in the High Court – most cases are settled through alternative dispute resolution before ever making it near court – and from a technical perspective was fascinating in the level of detail required to demonstrate the meaning of aspects of the Act.

For the thirty years prior, the Act had not been questioned to this degree and the strength of the judgement means that it is unlikely to be seriously tested again anytime soon. The rulings, though, set very clear criteria that developers need to adhere to when wanting to access neighbouring land, or indeed when hoping to deny access.

Case background

The case was a dispute between the wealthy owners of two super prime iceberg basement houses located on a private road opposite the Victoria & Albert Museum in Kensington with a combined value of over £100m.

In order to re-render and repair its northern flank wall, the owner of Amberwood House (Prime) needed access to a passageway within the curtilage of Thurloe Lodge so it could erect scaffolding. An initial civilised interaction saw informal access agreements for scaffolding and site set-up, but the owner of Thurloe Lodge eventually became uncooperative – cancelling access and kicking the builders off site. This also meant a substantial flank wall to Amberwood House remained unrendered, with large gaps and exposed brickwork allowing damp ingress and looking unsightly – diminishing the value of the property.

The owners of Amberwood House tried to re-engage but failed to reach an agreement following unrealistic demands and outright refusal to cooperate. Under the Access to Neighbouring Land Act 1992, they then issued proceedings for an access order which needed to prove that a) the works amounted to basic preservation or maintenance, b) the works could not be reasonably undertaken without access and c) access would not cause significant impediment to their neighbour.

Thurloe Lodge objected to the order, arguing that the works weren’t necessary, and that granting access would impact their own development works, breach Health & Safety provisions and would present issues for insurance cover.  All these arguments were rejected by the judge.

The owner of Thurloe Lodge also claimed compensation in the sum of £3m on the grounds that they would have to stop work for 15 weeks if their neighbour’s contractor came on to the site to carry out the works. This claim was again rejected by the judge who determined that compensation should be based on the cost of supervising the works – a matter of tens of thousands not millions.

Thurloe Lodge’s claim for substantial consideration was also rejected on the grounds that Amberwood House was a dwelling and therefore the consideration provisions did not come into effect.

An appeal has since been lodged on one aspect of determining compensation on a dwelling, but the order itself was not impacted.

Case significance & learnings

This case represents the first decision of the High Court on an application under the Act and gives guidance about how such applications should be determined. It also gives guidance on how the term “residential land” should be understood, the significance being that if the ‘dominant land’ is residential land, regardless of whether works are being undertaken by a developer or homeowner, then no consideration is payable for the right of access.

The importance of this case is that it explains how an application for an access order under the Access to Neighbouring Land Act 1992 should be approached in practice. An access order may only be made if the works involve the maintenance, repair or renewal of part of a building on the ‘dominant’ land.

The facts of this case whilst fairly stark and specific, is a salutary tale of the all too often case of neighbours falling out over building works.

This was a landmark case, fascinating in its details with plenty of lessons to be learned from a party walls and neighbourly matters perspective. Chiefly, the importance of engaging with neighbours if they require access and not being uncooperative or obstructive (as the courts will not look favourably on what they deem to be unreasonable behaviour).

I hope that this case will be seen as a warning to objectors to see reason and reach satisfactory terms without having to spend hundreds of thousands in fees going to court.  We’ve gone 30 years since the introduction of the Act before this case and, as the judge put it, I hope to not see another case of this kind for 30 more years.