The claimant and defendant were the owners of properties on adjacent plots of land, both of which were undergoing extensive residential development. Cracks, possibly caused by the development work, appeared in the render on one of the walls of the claimant’s property. The claimant required access to a passageway on the defendant’s land in order to re-render it. Having been refused access, the claimant applied for an order under section 1 of the Access to Neighbouring Land Act 1992 for an access order, which the court could grant only if the works were reasonably necessary for the preservation of the land. The claimant contended that the rendering work being “maintenance, repair or renewal” constituted “basic preservation work” and, therefore, by section 1(4) was deemed reasonably necessary for the preservation of land. The defendant argued that: (1) the rendering work was not “basic preservation work” because the need for it had only arisen because of the claimant’s development work, and it was not “reasonably necessary” because it was merely decorative and not urgent; (2) refusal of the claimant’s application was required by section 1(3), which prevented the court from making an order if, by reason of the entry, the respondent to the application or any other person would suffer interference with, or disturbance of, his use or enjoyment as a result of the proposed access, which would make it unreasonable to grant an order, and (3) if the court did grant an access order, it should order payment of a licence fee under section 2(5) for the privilege of entering the land. Although no payment could be made under that provision if the works were to “residential land”, defined in section 2(7) as a dwelling, the defendant contended that during the period of redevelopment the claimant’s property was not a dwelling.
On the claimant’s claim—
Held, access order granted without a licence fee. (1) Works could be “Basic preservation works” for the purposes of section 1(4) of the Access to Neighbouring Land Act 1992 even if the damage requiring maintenance, repair or renewal had been caused by some voluntary act of the applicant. Works which could done at a later time than requested by the applicant could be “reasonably necessary”, as could works which were undertaken for aesthetic purposes. On any view, the works proposed by the claimant amounted to “maintenance, repair or renewal” and therefore fell within the definition of “basic preservation works”, and they were also reasonably necessary (paras 44, 53–54, 67, 131).
(2) In considering whether it was unreasonable to impose the access order on the respondent for the purposes of section 1(3) of the 1992 Act, the court needed not only to consider the extent of the interference or disturbance on the respondent, but also the detriment to the applicant if the order was denied. The Act provided the court with wide powers to make any order subject to conditions that would lessen the impact of the access and the works on the respondent or anyone else affected by the proposal. Therefore, where the respondent had a legitimate objection to the proposal it should consider how it could be mitigated through the terms of the order. In the present case the requirement in section 1(3) to consider the position of any person who might suffer with, or disturbance of, his use or enjoyment of the land was capable of extending to the defendant’s contractor. However, if the works were carried out in accordance with certain conditions, neither the defendant nor its contractor would suffer in any way that would make it unreasonable to grant an appropriately framed access order (paras 72–74, 87, 90, 93, 131).
(3) The fact that “residential land” was defined by reference to the concept of dwelling was not intended to focus the question onto whether or not the land was currently occupied as a habitation. Once a property had obtained the character of being residential land it retained that character until the property was used for something else. The claimant’s property, which had been used for 80 or 90 years as a residence, had been dwelt in for most of that period and was currently being worked on with a view to its remaining a private residence, was in the nature of residential land. The fact the claimant was a developer rather than an owner-occupier, did not affect that conclusion. Accordingly, there was no power to make an order for the payment of a licence fee pursuant to section 2(5) of the Access to Neighbouring Land Act 1992 (paras 206, 208–210, 212).
John de Waal QC (instructed by Dentons UK and Middle East LLP) for the claimant.
Mark Warwick QC (instructed by Kennedys Law LLP) for the defendant.