There are many reasons why you may need access to your neighbours’ land. For example, you might need to carry out work on your own property or other work, such as cutting back trees or branches.
If the neighbour refuses permission and there are no title documents that give you a specific right of entry, you might have to consider applying for an Access Order under the Access to Neighbouring Land Act 1992 (“the Act”).
The Act was introduced to try to limit the number of disputes that the Courts saw in the early 1990s concerning issues between neighbours that ought not to have been reaching the Courts.
This note does not cover rights you might have if you want to undertake building work, which may be covered under the Party Wall Etc Act 1996.
The Act was introduced because English law does not provide a general right entitling a person to enter neighbouring land, even if they only want to carry out works on their own property.
Therefore, situations frequently arose where neighbours were left to try and resolve the problem amongst themselves. Often, one of the neighbours would demand a payment of money in order to agree to access, which was out of proportion with the work that needed to be done. In the worst cases, where an agreement could not be reached, a party’s property would have to fall into disrepair or even become uninhabitable.
What would an access order cover under the Act?
The Act enables a party to apply to the County Court for an Access Order over neighbouring land if they want to carry out works to their property in certain circumstances.
An application can be made for works in relation to residential and non-residential land.
The Act does not contain a definition of land but excludes highways.
What are some of the limitations of the Access to Neighbouring Land Act?
The Act may not be of use if a person needing access to their neighbours’ land needs access in the following circumstances:
- Various conditions have to be satisfied if you are going to obtain an Access Order. For example, you will only be successful if you can show that the works relate to existing structures or items on your land. The Act does not give you access to enable new development.
- The applicant will have to incur the costs of obtaining a Court Order. This can take a long time, and there may be a delay of up to a year before the matter even reaches Court. In addition, the terms of any Access Order are not guaranteed. That is why it’s much better if the parties can reach agreement.
- There may also be a financial consequence because if the Court grants an Access Order, it can order the applicant to pay compensation to the neighbouring property. Where the applicant’s land is commercial and not residential, the Court can also order the applicant to pay for the privilege of access.
Who can apply for an access order?
The applicant does not need to be the landowner requiring work. That is usually the case, but it doesn’t have to be.
The Act can be used, for example, by a tenant of a commercial property who needs access to the neighbouring land to carry out its obligations to keep its building in repair. For example, a tenant or its contractors might need to erect scaffolding to paint the exterior or repair the roof, and this might be a case where the Act applies.
How would I apply for an access order?
You would need to engage with your neighbour and put in a written request for access. The Court will expect to see that you have tried to engage with the neighbour before it is willing to grant an access order.
The written request to the neighbour should include details of the work that you wish to carry out, why it is necessary, how it will be carried out, and why access is reasonably necessary to carry it out.
The request should also include, the proposed date, how long the work might take including any preparation and clearing up time, the type of access required (for example any scaffolding or equipment or machinery onto the neighbouring land) and whether access is simply by the neighbour or by a third party, names and addresses of any contractors who will need access and who will be carrying out the work and any operations on the land, the extent of the neighbouring land which is going to be effected, the effect the access order may have on the use of their land and their enjoinment of it, an assessment of any safety issues to be addressed if that’s relevant, whether there might be any interference or possible damage to the neighbouring land and how this might be limited during the works and remedied afterwards, details of any insurance to be taken out by the applicant in respect of any possible injury to property or persons, plans and drawings showing the applicants and the neighbouring land and the works to be carried out and whether there are any easements which affect the works and which need to be considered.
If the neighbour refuses to engage or refuses consent, the next stage would be to engage a property dispute solicitor and apply to the Court for an access order. The neighbour would be the defendant to that claim and could become liable to pay costs if the application is successful.
When will the Court grant an access order, and what kind of work is permitted by an access order?
The Court is likely to grant an order if it’s satisfied that both of the following apply:
- That the works are reasonably necessary for the preservation of the whole or any part of the applicants’ land, and;
- The works cannot be carried out (or would be substantially more difficult to carry out) if access to the neighbouring land is not granted. The Court will not make an Access Order if it is satisfied that if it were to make the order, the works would unreasonably interfere with the use or enjoinment of the land by the neighbour, or the works would cause hardship to the neighbour or anybody occupying the land next-door.
What works are reasonably necessary for the preservation of land?
The Act does not define what works are reasonably necessary for the preservation of land. However, case law shows that the following are likely to be treated as reasonably necessary:
- Maintenance repair or renewal of building structures, drains, sewers, pipes or cables, cutting back hedges, trees or shrubs and clearing ditches.
- Works that the Court thinks are fair and reasonable in all the case circumstances, even if the works incidentally involve some adjustment, alteration or improvement to the applicant land or demolishing the whole or any part of a building or structure comprised in or situated on the applicants’ land.
In addition, where any works are reasonably necessary for preserving land, anything that is required for, incidental to, or consequential and carrying out those works shall be treated as being reasonably necessary.
If it is reasonably necessary to inspect the applicants’ land to ascertain whether works may be reasonably necessary to preserve it or to make a map or ascertain the course of service media in connection with carrying out reasonably necessary works, that inspection will be deemed to be reasonably necessary works.
When deciding whether or not to make an order, the Court will undertake a balancing exercise and weigh up the impact of allowing access for one party as against the terms of an access order for the other party and how the terms of an order can be framed to reduce the adverse effect of the works.
What might an access order cover?
The order is likely to cover details of the work that can be carried out, the area of neighbouring land that they can enter and when the work may be carried out. An order can impose on the applicant or the respondent terms and conditions as a Court thinks are reasonably necessary to avoid or restrict any loss, damage, injury, inconvenience or loss of privacy that might otherwise be caused. The Court might also include provisions as to how and when the works are undertaken, who may undertake the works and precautions.
An applicant should also be aware that the Court can order them to pay the other party for any expenses reasonably incurred in connection with the application that are not otherwise recoverable as costs.
The Court can order the applicant to give security for any sum that might become payable to the other party arising out of the Access Order or any of its terms and conditions.
Can I refuse my neighbours’ request for access to my property?
There may be circumstances, depending on the work that the neighbour wishes to do to their land, which entitles you to refuse access, but if the works fall within the ambit of the Act, then a refusal should be taken very seriously. It is recommended that you obtain specialist legal advice from a neighbour dispute solicitor before refusing access. If a refusal is deemed unreasonable, then the neighbour has the right to apply to the Court for an access order under the Act.
