Love thy neighbour: How a simple redevelopment created history
Friday 18th February 2022
In Prime London Holdings 11 Ltd v Thurloe Lodge Ltd, the High Court considered for the first time an application for an access order under the Access to Neighbouring Land Act 1992 (“the Act”).
The Act allows a claimant to seek access to neighbouring land to carry out repair, maintenance or renewal works to the claimant’s property. A defendant can oppose on the basis that it would suffer hardship, interference with or disturbance to its use of land such that it would be unreasonable for the court to grant the claimant access.
The judgment provides useful guidance on an area that is, thankfully, generally dealt with by agreement.
How did this happen?
The parties to the dispute own and are substantially redeveloping neighbouring houses in South Kensington into “super prime” properties worth £50m to £75m. These have featured on television and in the press.
The parties fell out in September 2019 and, when the claimant requested access to a passageway on the defendant’s land to render a wall on the claimant’s property, the defendant refused.
The key points to consider.
The court allowed the claimant access, but on heavily regulated terms. Some key points from the judgment include:
- While each case will be fact-sensitive, it may be relatively easy for a claimant to show that the proposed works are reasonably necessary. Helpfully for this claimant, the location and character of the building were relevant considerations. The relatively low threshold for using the Act may be welcome news to developers.
- Whether a defendant would suffer hardship should be assessed in light of the court’s (and the parties’) ability to mitigate that hardship. The court’s wide discretionary powers may render this a high hurdle for a defendant to overcome.
- Whether it would be unreasonable for the court to make the order is likely to be the main issue in dispute. Here, the court weighed the extent of the hardship to the defendant against the detriment caused to the claimant in the event the application was refused.
What was the outcome?
The court rejected the defendant’s arguments around health and safety, insurance issues and temporary interruption of access. Denying the defendant access to its land for a few days was not unreasonable. If the claimant had been denied access, damp was likely to permeate its property and it would have been denied a suitable aesthetic finish.
The judgment also makes clear that access will not be free. Compensation was due to the defendant for its inconvenience, calculated by reference to the losses it would suffer. This was assessed in the tens of thousands, not millions, of pounds as claimed. A licence fee can also be ordered.
While this case provides useful guidance, we do not anticipate an avalanche of new claims. The judge indicated the court would expect parties to try to find an agreed way of undertaking works. We imagine there will be fairly punitive costs awards if parties rush to litigation.
As the judge was at pains to stress, “the precept to ‘love thy neighbour’ is one that owners of neighbouring properties would do well to abide by”. This rather idealistic comment suggests that the judge either has a strong sense of irony or has not encountered many neighbour disputes in the past.
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