Author: Rhian Arrenberg, Professional Support Lawyer, Real Estate Dispute Resolution, London
In this post, we explore an issue common to many development projects in England and Wales: that of gaining access to the development site to carry out the works, when the land over which access is required is not within the ownership or control of the landlord/developer. We look in particular at how development works can progress despite this difficulty and the possible options available to circumvent the problem.
It is a rare project that does not require access, at some stage, to a neighbour’s land in order to complete development works. Amongst many other things, access may be required in order to:
- erect scaffolding, whether on or oversailing a neighbour’s land;
- access parts of the development site on foot or by vehicle;
- dig footings for new buildings;
all depending on the nature and extent of the development works and site. In order to avoid a possible claim in trespass or nuisance, it is important for developers to identify, at the outset of a project, whether access to neighbouring land will be required, the length of time it will be required for and the extent of the access required, so that they can consider how to best achieve that within the development timetable.
How can developers secure access over land to which they do not have title?
Should the developer be unable to acquire, or have no interest in acquiring the neighbouring land, there are three options:
1. Party Walls etc Act 1996 (the “Party Walls Act”)
The Party Walls Act creates rights for developers to access land belonging to neighbours where works will interfere with or create party walls and party structures on or next to the boundary between the development site and the neighbouring land. Party wall specialists (usually surveyors, but assisted by engineers where appropriate) will identify the concerns and desires of both developer and neighbour, and prescribe a scheme of works that balances each party’s interests. A party wall award will include the amount of compensation payable to the neighbour in return for the access needed, and the requirements on the developer to make good damage etc.
2. Access to Neighbouring Land Act 1992 (the “Access Act”)
If the Party Walls Act does not apply, the Access Act allows a landowner to apply to Court for an ‘Access Order’ to allow access to a neighbour’s land of the neighbour has refused to allow access to the land, and the works are reasonably required for the preservation of the landowner’s land, and the works cannot be carried out, or would be made substantially more difficult, if access to the neighbouring land is not granted. If the Court does make an Access Order, it will set out strict conditions as to the hours in which works can be carried out, the details of the works to be carried out, the timescale for those works and the compensation payable to the neighbour. The big limitation of the Access Act is that access must be required for the purpose of carrying out preservation work, such as maintenance or repair works to structures, service media, hedges or shrubs etc. ‘Preservation’ does not include improvement works, and so the Access Act will not be appropriate for many elements of large scale new developments.
3. Negotiated access agreement/licence
Where neither the Party Walls Act nor the Access Act applies, the only other option is for the developer to seek and obtain the agreement of the neighbour to access the neighbouring land. Such agreement can be recorded in the form of a letter, licence or deed granting an easement for a specific purpose and a limited time, and the terms are freely negotiated between the parties. Well advised neighbours will know that their consent will have a ransom value, and so they will have a strong negotiating position in this respect. Should the ransom payment be too high, or if the neighbour takes an uncooperative or unreasonable stance, the developer’s only other option will be to modify the scheme so that access is no longer required.
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