Usually, when a home-owner wants to carry out works or repairs to their property but needs access to a neighbouring property to undertake those works, it is a case of that homeowner informing the neighbour of the nature of the work to be carried out and seeking their permission to do so. Indeed, it may well be that the homeowner has the necessary rights to access their neighbour’s land reserved in their deeds.
There are however occasions where, for whatever reason, relations between neighbours can become strained and which may mean that the neighbour is not prepared to give the homeowner permission to access their property. The homeowner may be able to rely on the provisions of the Access to Neighbouring Land Act 1992 (“the Act”) to obtain an Access Order, which would entitle them to gain access to the neighbour’s land to carry out the works.
The Act enables the homeowner to gain access to adjoining or adjacent land for the purposes of carrying out “basic preservation works”. Under section 1(4) of the Act, these include:
- maintenance, repair or renewal of a building;
- clearance, repair, or renewal of a drain, sewer, pipe or cable;
- filling in or clearing a ditch;
- felling, removal or replacement of a tree, hedge or other plant that is dead, diseased, insecurely rooted or which is likely to be dangerous; and
- such other works as the Court may deem necessary for the preservation of any land.
If the homeowner needs rights of access to be granted then an application has to be made to the County Court. Having reviewed the application, the Court will grant an Access Order where it is satisfied that the works are reasonably necessary for the preservation of the whole or any part of the homeowner’s land and they cannot be carried out (or it would be substantially more difficult to carry them out) if access to the neighbour’s land was not granted (section 1(2) of the Act).
The Court will not grant an Access Order if granting access to the neighbour’s land would result in an interference with, or disturbance of, the neighbour’s enjoyment of their land or the neighbour suffering hardship to such a degree that notwithstanding any term or condition that may be imposed in the Access Order, it would be unreasonable to make that Order (section 1(3) of the Act).
An Access Order, if granted, will include details of the nature and extent of the works that may be carried out on the neighbour’s land and when those works can be carried out as well as details of any compensation that is to be paid to the neighbouring landowner for any loss, damage or inconvenience they may suffer. The Access Order may also include other conditions, for example, in the case of commercial property, details of any fair and reasonable sum that is to be paid by the homeowner to the neighbour for the “privilege” of being granted access to the neighbour’s land (section 2 of the Act). Any of the terms of an Access Order can be varied, discharged, suspended or revived by the Court.
While the Access Order is in effect, it is binding on anyone who subsequently purchases the interest of the neighbour in that land. If the homeowner or the neighbour contravenes or fails to comply with the terms of the Access Order, they can be ordered by the Court to pay damages to the “innocent party”.