Access to Neighbouring Land: High Court considers approach for determination of access order applications (Prime London Holdings 11 Ltd v Thurloe Lodge Ltd – 2022)

Where an application is made for an access order under the Access to Neighbouring Land Act 1992 (“ANLA 1992”), the High Court provides guidance as to the Courts’ approach to determination of the application and how ‘residential land’ should be defined.

The background

Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] concerns two super-prime neighbouring properties, situated close to the Victoria & Albert Museum in Kensington, London and worth between £50-£75m. Both properties are undergoing substantial redevelopment, sharing a private drive which provides access to each. Owners of the properties have already had a disagreement over the shared driveway, resulting in a lack of cooperation on other issues.

Amberwood House required external render, which in turn required the erection of scaffolding in a passageway running between both properties and within the boundary of Thurloe Lodge. Two options were presented in respect of scaffolding, the first bringing scaffolding in through Thurloe Lodge and the second cantilevering it over Amberwood House. An application for an access order was made by Prime, the owners of Amberwood House, under s. 1 ANLA 1992.

Thurloe Lodge’s owner objected to the application on a number of grounds, arguing that, amongst other points:

1. the passageway was needed by them to move their own building materials around their site;
2. the passageway was a fire escape route;
3. two contractors could not work on a single site; and
4. use of the passageway for Amberwood’s scaffolding presented insurance issues.

In addition to a claim for consideration, Thurloe Lodge claimed £3m in compensation in the event that Prime was permitted onto the site, arguing that this would cause a 15-week delay in its own works as its contractor would not work on site alongside Prime.

The decision

The High Court granted the access order to Prime, dismissing Thurloe Lodge’s arguments. The access order could only be made where works involved maintenance, repair or renewal of property on the dominant land. If the owner of servient land as a respondent to an access order application can present sufficient evidence that interference or disturbance of its use or enjoyment of the servient land was sufficient to make the grant of an access order unreasonable, an access order may not be made.

Compensation may be payable to the owner of the servient land in respect of loss, damage or inconvenience caused, together with consideration in respect of financial advantage gained by the applicant by its carrying out of works. This consideration is not payable where property constitutes ‘residential land’.

The compensation claim by Thurloe Lodge was rejected, the High Court determining that compensation should be calculated by reference to the cost of works supervision which resulted in a much smaller sum. Its consideration claim was also dismissed. Amberwood House is a residential dwelling, and the consideration provisions under the Act did not therefore operate.

Advice and action for landlords

This is the first decision of its kind to set down the approach Courts will take to determination of an access order application, finding that Thurloe Lodge’s objections were insufficient to evidence that grant of the order would be unreasonable.

Crucially, the decision states that access orders are likely to be made only where the affected property is situated within the dominant land. To have the application dismissed, servient landowners must demonstrate that grant of the order would be unreasonable as a result of interference or disturbance of its use or enjoyment of the land. Landlords should also note that consideration provisions will not operate in respect of residential properties.