Can I have access to a neighbour’s land to carry out works to my property?

As a landowner, maintaining and repairing your property is important. It may be the case that to do so, you will need to access the land of a neighbour. If the neighbouring landowner is not forthcoming about granting you access, the question then becomes, do you have a legal right of access?

If the Party Walls legislation does not apply to the site in question, the Access to Neighbouring Land Act 1992 (‘the Act’) may be of assistance. The Act provides that if the owner of the neighbouring land does not agree to give access to allow necessary repair or maintenance works to be carried out, a landowner can apply to Court for an ‘Access Order’. Such an order allows access where the works to be carried out are reasonably required for the preservation of the landowner’s land, and they cannot be carried out, or would be made substantially more difficult, if access to the neighbouring land is not granted.

The Act provides that an Access Order may be made for ‘basic preservation works’. Whilst the Act does not comprehensively define what works will be “reasonably necessary” for the preservation of land, certain works will be treated as such. These include:

• Specified basic preservation works – for example maintenance/repair/renewal works to a building/structures/drains/cables/pipes/hedges; and
• Works that the court thinks are fair and reasonable in all the circumstances of the case.

Basic preservation works do not need to be those that have arisen in the natural course; they can be works that are necessary through the fault of the landowner and their actions and can even in some cases be works that are undertaken for purely (or primarily) aesthetic purposes.

If the Court does make an Access Order, it is entitled to set out conditions as to the access, such as the hours during which the works may be carried out, the details of the works allowed and the amount of compensation to be paid to the neighbour. The Court will place particular weight on the interference, disturbance, or hardship suffered by the neighbour in allowing access. Whilst the court can make an Order with conditions,

it is equally entitled to find that, when considering the level of interference, disturbance, or hardship suffered by the neighbour, the granting of an Access Order would be unreasonable.

The Act will not be appropriate for developers who may require access to land to erect scaffolding, dig foundations or other works, as works of this kind do not fall within the definition of ‘preservation works’.

Where the Act does not apply, the only other option is for the landowner to seek and obtain the agreement of the neighbouring landowner to access their land. Such agreement can be documented in the form of a letter, licence, or deed granting a right of access for a specific purpose and a limited time. These terms will be closely negotiated between the parties. Neighbours will often know that their consent will have a ransom value, especially where access is required for works on a new development where there is no legal right of access. However, should the ransom payment be too high, or if the neighbour takes an uncooperative or unreasonable stance, the landowner’s only other option will be to modify the scheme so that access to the property is no longer required.

Whilst applying to Court for an Access Order is exceedingly uncommon, and in most cases neighbours find an amicable resolution to the matter, it is important that landowners know their rights under the Act and how to exercise them.

Please contact our Commercial property solicitors if you have any questions on the Act.