Published: Fri, 12 Oct 2018
Access to Neighbouring Land Act 1992
The Access to Neighbouring Land Act 1992 is a law that enables persons to have access to neighbouring land in order to carry out work necessary for the preservation of their own land or other similar purposes.
1. Why was it introduced? (Political/Sociological Context)
Before the Access to Neighbouring Land Act 1992 was introduced, failure to get on with a neighbour meant that it was almost impossible for persons to carry out repairs to their own property if they needed access to the neighbour’s land for these purposes. The inability to carry out repairs meant that the value of the property of those affected deprecated and there was a negative impact on their ability to sell the property. It also posed a danger to the health and safety of the person affected and the public in general.
In such cases there was a clash of two interests – the private interest of owners to peacefully enjoy their property without interference on behalf of their neighbours and the public interest in ensuring that the country’s housing and building stock can be maintained. In most cases the work that needed to be done on properties which required access to the neighbour’s land was relatively minor, such as repair of gutters, replacement of tiles and painting of window frames, and therefore, did not interfere with the right of the neighbour to enjoy his own property.
2. What was the aim of the Act? (Legal Context)
Prior to the adoption of the Access to Neighbouring Land Act 1992, there was no general right enabling a landowner to enter neighbouring land to carry out work to his own land. In cases where such access was needed, the applicable law was common law. At common law, if one needed access to their neighbour’s land in order to carry out repairs to their own property, in the absence of a specific right, such as an easement or a covenant, one had to ask their neighbour for a permission. Otherwise, the person in question was considered a trespasser, which rendered them liable to civil proceedings at the suit of the occupier. The underlying idea of the law prior to the Act was that rights to land trumped all other interests, including safety concerns. The overall objective of the Access to Neighbouring Land Act was to change this underlying idea.
The only ways in which a right of access existed prior to the Act was through rights created expressly by virtue of an easement, covenant, contract or licence or by rights not created expressly, such as easements of necessity, quasi-easements, easements acquired by long usage, estoppel rights and access to protect land from a nuisance arising on it or to protect an easement, enjoyed over it. The only statutory right to access was under the London Building Act 1939. It allowed an owner, whose property was subject to the 1939 Act to have access to his neigbour’s land to do repair on the structures on the boundary between the two pieces of land or to deal with a dangerous structure. The Access to Neighbouring Land Act 1992 sought to simplify the law on the right to access a neighbour’s land for the purposes of repair by creating a general right to access, instead of a variety of rights, which were only applicable to specific cases and arose rarely.
The Law Commission Report No. 151 recommended that a new system was introduced by which the courts would be given powers to grant a right of access over a neighbour’s land in limited circumstances and with safeguards to protect the neighbour’s interest. According to the Law Commission, the limited cases in which such a right could be granted were carrying out repair and/or preservation work. Improvement and alteration work were not to be allowed unless they were needed so that the essential repair work can be done. The Act adopted most of the Law Commission’s recommendations.
3. What main changes did it make to the law?
By virtue of s. 1(1), the Access to Neighbouring Land Act 1992 introduced a general right enabling a landowner to enter neighbouring land to carry out work to his own land. The Act therefore, created a right to access to neighbour’s land for those persons who were not covered by specific rights, such as easements or covenants, and could not obtain permission to carry out repair work from their neighbours.
The Access to Neighbouring Land Act 1992 imposed certain restrictions on courts in relation to granting access orders. Under s. 1(2), the court has the power to grant access orders only in cases where it is satisfied that the work was necessary for the preservation of the whole or part of the dominant land and the work cannot be carried out or would be substantially more difficult to carry out without entry upon the servient land. Under s. 1(3), the court cannot grant an access order if the neighbour or any other person would suffer interference with their use or enjoyment of the servient land or the neighbour or any other person in occupation of the servient land would suffer hardship.
S. 1(4) sets out the activities for which one can apply for an access orders under the Access to Neighbouring Land Act 1992 – maintenance, repair or renewal of a building; clearance, repair or renewal of a drain, sewer, pipe or cable; filling in or clearing a ditch and removal or replacement of a dead or insecurely rooted plant, which poses a danger. Under s. 1(5), the work is still lawful in cases where it incidentally involves the making of some alteration, adjustment or improvement of the land or the demolition of a building or structure comprised in or situated upon the land.
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