Prime London Holdings 11 Ltd v Thurloe Lodge Ltd
This recent case concerns Amberwood House in South Kensington, a former home of Dame Margot Fonteyn. You may have read about the property in the press, or seen it featured on either Channel 4's Britain’s Most Expensive Houses or Extraordinary Extensions with Tinie Tempah (although you may not admit to it!). The case is the first High Court decision as to the interpretation and effect of the Access to Neighbouring Land Act 1992 and offers useful guidance in cases where access is contentious.
The Claimant owns Amberwood House and the Defendant owns neighbouring Thurloe Lodge. Both are undergoing very substantial redevelopment, although the redevelopment of Amberwood House is at a more advanced stage. The Claimant required access to the Defendant's land to re-render and paint the flank wall of Amberwood House. The parties having fallen out in 2019, access could not be agreed.
The 1992 Act enables the Court to grant an “access order” where one landowner wishes to enter land belonging to another. The order can only be made if it is “reasonably necessary” for the preservation of the whole or part of the applicant's land and the works are impossible, or substantially more difficult, without access. The Court can impose terms (such as restricting access to certain dates and times), award compensation (which could include delays to the adjoining owner's works, additional project management costs, loss of privacy or damage to property by way of example) and, in the case of non-residential land as per provisions in the legislation, require that consideration is also paid (being a fair and reasonable sum for the privilege of entering the adjoining owner's land). The court will refuse to grant an access order if it is satisfied that the works would interfere with the adjoining owner's rights to enjoy its land or would cause it hardship
The court found that it had to consider five questions in order:
- Are the works reasonably necessary for the preservation of the whole or any part of the claimant's land?
- Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land?
The answer to both questions must be yes, otherwise the Court has no jurisdiction.
- If the order is granted, would the adjoining owner whose land is accessed or any other person suffer interference with, or disturbance of, his use or enjoyment of the servient land?
- If the order is granted, would the adjoining owner or any other person occupying the land to be accessed suffer hardship?
If the answer to both those questions is no, then the Court should grant an order, although the judge retains a discretion as to the terms of the order. If the answer to either question is yes, then the court needs to consider:
- Would the interference, disturbance or hardship occasioned by reason of the entry onto the land be to such a degree that it would be unreasonable to make the order?
In this case the order was granted with conditions. The works were properly considered works of preservation, the location and character of the properties being considered relevant. It was common ground that the works could not be done without access.
When considering the effect of an access order on the adjoining owner "and any other person", this could include an occupier of the adjoining land, such as the Defendant's contractor. However, the Court did not accept that there would be any substantial delay to the Defendants’ own building works. Any prejudice that the Defendant would suffer was not such as to make it unreasonable for the Court to grant the order. On the issue of "hardship", this connoted more than mere inconvenience and could include financial hardship. However, the Act provided for payment of compensation and potentially consideration. Where the adjoining owner was compensated under the terms of the order, it cannot be said to have caused financial hardship.
There were certain matters here which would require financial compensation (such as the costs incurred by the Defendant in having a suitable professional oversee the works) which, if they could not be agreed, would need to be determined once the works had been completed. No consideration was found to be payable, because the case concerned access facilitating works to residential land. It did not matter that the property had not been occupied for a substantial period and was undergoing substantial redevelopment; once a property was characterised as residential land it retained that character until the property was used for something else (such as commercial or agricultural use) and does not attract any additional consideration which may otherwise be awarded in the case of works to non-residential land.