If you intend to carry out work on your land and buildings which might require access over your neighbour’s land or air space, then the recent case of Little v Matthew & Others is a salutary lesson in following the rules as doctors in a medical practice found out to their cost.

The doctors wished to demolish an annexe which formed part of their premises and create a new education centre on the site of the former annexe. The only problem was that in carrying out the works scaffolding had to be erected on their neighbour’s (Mr Little) land. After being approach for consent to erect the scaffolding Mr Little refused permission. Notwithstanding the refusal the doctors carried on with the building project and their building contractors put up scaffolding on Mr Little’s land. The scaffolding blocked Mr Little’s vehicular access over his own land. Mr Little commenced court action and initially claimed £98,000 in damages although this figure rose to nearly £200,000 by the time of the trial. He also claimed what are called exemplary damages. The trespass on Mr Little’s land continued for a period of 31 weeks.

In court the doctors admitted there had been a trespass, but any loss or inconvenience suffered by Mr Little was minimal. The judge in the case confirmed that Mr Little was fully entitled to refuse consent for the scaffolding to be erected but considered that Mr Little had seriously inflated the value of his claim. In the end the judge awarded Mr Little £300 per week compensation for the trespass. He also awarded exemplary damages of £2,500 against the doctors on the basis they knew Mr Little had refused consent and they continued to trespass anyway. The judge took a dim view of the doctors’ actions.

The right way to proceed.

If you want to undertake work which will require access to a neighbour’s land, then there are three main possible options available to you.

  1. If you proposed works will potentially interfere with or create party walls and party structures on or next to the boundary between you and your neighbour’s land, then you might be able to use the Party Walls etc Act 1996 to your benefit. A party wall surveyor will be appointed and review the scope of the proposed work and takes account of each party’s interests. A party wall award will be made which sets out the scope of the work and any compensation to be paid to the neighbour in return for access. Any damage caused to the neighbour’s property must be put right.
  2. If you only need access to carry out maintenance or repair works to part of your building, then it might be possible to take advantage of the Access to Neighbouring Land Act 1992. This Act only allows you to carry out works of preservation. Any works of improvement are specifically excluded. If you do need to carry out preservation works, and your neighbour refuses you can apply to the court for an Access Order which will set out in detail the exact scope of the works allowed and a timescale and perhaps hours of work. If your neighbour has unreasonably refused your request the court can sometimes award costs against your neighbour.
  3. Negotiate an agreement for access with your neighbour. Depending on the extent and value of the proposed works such agreement can be a simple agreement or exchange of letters setting out the scope of the works, the duration of the works and details of any compensation to be paid to the neighbour or alternatively a deed of easement containing all relevant terms. Be prepared to deal with a neighbour who may seek to extract a ransom for their consent or just be unhelpful or unreasonable. If their demands are too much you will need a Plan B which will normally require amending your plans. If you decide to proceed regardless you face the substantial risk of court action being taken by your neighbour which may not just result in damages but an injunction to stop you carrying on the work.

This article is for general information only and is not offering legal advice. We do not accept responsibility for any loss suffered as a result of acts or omissions taken in respect of this article.