Prime London Holdings 11 Limited v Thurloe Lodge Limited [2022] EWHC 303 (Ch) is a novel and important review of the Access to the Neighbouring Land Act 1992
An application under the Access to Neighbouring Land Act 1992 (‘the Act’) has, until now, never come before the High Court. The judge in this case offers two theories as to why: the sound principles on which the Act has been drafted, and the common-sense and neighbourliness of most landowners in England and Wales.
Property law professionals may have their own views on those theories, particularly on the latter, but in our experience the Act often proves a useful and balanced legal tool to address a practical and everyday problem: can you access a neighbour’s land when you need to do work to your own property?
Sometimes ‘common-sense’, and prohibitive legal costs, mean that the owner (A) who needs to do the work and the owner (B) whose land needs to be accessed agree a temporary licence to facilitate A’s access. As part of that A should accommodate the legitimate concerns of B and address or mitigate them. Occasionally, A will pay B their out of pocket expenses, and sometimes also a premium.
When agreement can’t be reached the Act allows A to apply to the County Court for an order giving them access to B’s property.
In this particular case the properties involved (which can be found opposite the Victoria & Albert Museum in Kensington) are some of the most expensive that can be found in the country. Legal costs were clearly not a concern for either party who were both in the process of converting the buildings, one a former school, the other a townhouse, into ‘super-prime’ properties.
Prime London wanted to carry out rendering works (they said re-rendering works) to a flank wall of their building, and claimed that they needed access to Thurloe Lodge’s property to do so. Thurloe Lodge refused them access, causing Prime London to make an application under the Act. A complicating but relevant factor was that Thurloe Lodge is also carrying out works to their building.
The judgment is likely to stand for the foreseeable future as an enduring authority on what the Court should consider before granting an order under the Act.
The judgment sets out very clearly the five questions a court, and therefore applicants and respondents to an application under the Act, should consider. At least as importantly the judgment suggests how a court should exercise its powers in arriving at the necessary answers.
- Question 1: Are the works reasonably necessary for the preservation of the whole or any part of the claimant's land?
- Question 2: Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land?
- Question 3. If the order is granted, would the respondent (i.e. the Defendant in this case) or any other person suffer interference with, or disturbance of, his use or enjoyment of the servient land?
- Question 4. If the order is granted, would the respondent or any other person occupying the land suffer hardship?
- Question 5. Would the interference, disturbance or hardship occasioned by reason of the entry onto the land occur to such a degree that it would be unreasonable for the court to make the order?
In this case the re-rendering and repainting of the exterior wall was considered reasonably necessary; the layout of the two building sites meant that access to Thurloe Lodge’s land was the most practical way of carrying out that work. The judge decided that ‘hardship’ was a high threshold to meet and could potentially be compensated financially and that the court should take a rounded view of balancing the potential hardship against the necessity of the works.
The judge was also keen to stress that the conduct of the parties is relevant. Prime London had been constructive in their approach to the Thurloe Lodge, suggesting two proposals which would have allowed them to undertake their works and for the Thurloe Lodge to make use of their own land without too much disruption to their own building work. Thurloe Lodge’s approach however was to ‘find problems rather than solutions’ and as the judge alluded to this strategy can have both cost implications and may lose the sympathy of the court.
With his eye on the legacy of this case, the judge also set out useful guidance as to how ‘consideration’ or a ‘licence fee’ for access can be calculated. The judge confirmed that the wider circumstances in any case would be relevant and that compensation should be calculated, in much the same way landlords may offer rent reductions to the tenant of a property let on commercial terms.
In his concluding remarks the judge is clear to point out that "If this case has proven anything, it has proven that the Biblical precept to "love thy neighbour" is one that owners of neighbouring properties would do well to abide by. The current action has involved great effort and cost to both parties in order to produce an outcome that, with only a modicum of goodwill, they might have been able to agree between them."
Whether acting for the property owner undertaking the works or the owner of the affected property this case will prove helpful to property professionals advising on why, in most cases, it is both sensible and cheaper to be a good neighbour.