An application has never come before the High Court, and I would suggest that’s because most neighbours manage to resolve access between themselves without litigating on the matter. However, this particular case deals with ‘super prime’ London re-developments worth £50m - £75m and therefore litigation risks and costs may not have been such an issue as would otherwise be the case.

In my opinion, the Act often proves a useful and balanced legal tool to address a practical and everyday problem: can you access a neighbour’s land when you need to do work to your own property?

Often ‘common-sense’, and significant legal costs, mean that the owner (A) who needs to do the work and the owner (B) whose land needs to be accessed agree a temporary licence to facilitate A’s access. This often addresses any legitimate concerns of B and tries to resolve them. This may also include a payment, to reflect the ‘inconvenience’ or a ‘goodwill gesture’.

If, on rare occasions, the parties can’t agree then the Act allows A to apply to the County Court for an order giving them access to B’s property.

In this case, Prime London (A) wanted to carry out rendering works (they said re-rendering works) to a flank wall of their building and claimed that they needed access to Thurloe Lodge’s (B) property to do so. Thurloe Lodge refused access and Prime London made an application under the Act. Of relevance is the fact that Thurloe Lodge was also carrying out works to their building.

The judgment has set out very clearly the five questions a court – and therefore the parties – should consider when contemplating pursuing litigation. This is incredibly helpful for the parties and allows us to assess the merits of the claim and prospects of success against the backdrop of the questions the court will consider, as well as how a court should exercise its powers in arriving at the necessary answers.

5 Questions to consider:

• Question 1: Are the works reasonably necessary for the preservation of the whole or any part of the claimant's land?

• Question 2: Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land?

• Question 3. If the order is granted, would the respondent (i.e. the Defendant in this case) or any other person suffer interference with, or disturbance of, his use or enjoyment of the servient land?

• Question 4. If the order is granted, would the respondent or any other person occupying the land suffer hardship?

• Question 5. Would the interference, disturbance or hardship occasioned by reason of the entry onto the land occur to such a degree that it would be unreasonable for the court to make the order?

Here, the re-rendering and repainting of the exterior wall was considered reasonably necessary; the layout of the two building sites meant that access to Thurloe Lodge’s land was the most practical way of carrying out that work. The Judge decided that ‘hardship’ was a high threshold to meet and could potentially be compensated financially, and that the court should take a rounded view of balancing the potential hardship against the necessity of the works.

The Judge stressed that the conduct of the parties is relevant. Prime London had been constructive in their approach to the Thurloe Lodge, whilst Thurloe Lodge sought to ‘find problems rather than solutions’. The Judge stated that such a strategy can have cost implications and may lose the sympathy of the court.

The Judge also set out useful guidance as to how ‘consideration’ or a ‘licence fee’ for access can be calculated (thousands not millions of pounds!).

In his concluding remarks, the Judge was clear to point out that "If this case has proven anything, it has proven that the Biblical precept to "love thy neighbour" is one that owners of neighbouring properties would do well to abide by”.

Slightly idealistic perhaps, but a useful lesson for all before embarking in litigation.

So where does this leave us?

·        Obviously, each case is fact-sensitive, but it does indicate that it may be relatively easy for a claimant to show that the proposed works are reasonably necessary.

• Whether a defendant would suffer hardship should be assessed in light of the court’s (and the parties’) ability to mitigate that hardship. The court’s wide discretionary powers may render this a high hurdle for a defendant to overcome.

• Whether it would be unreasonable for the court to make the order is key. It will come down to the extent of the hardship to the defendant against the detriment caused to the claimant in the event the application was refused.

If you have any questions or queries in relation to the above, or you are contemplating relying upon the Act for access to your neighbour’s land and require tactical advice (or to oppose such an application), please contact Simone Ritchie on s.ritchie@woodstocklegalservices.co.uk