This blog is not an authoritative interpretation of the law; it is intended as a general guide.
In this blog, Icon Surveyor’s will consider what an ‘Access Licence’ is, why they are used and how to obtain one.
What is an Access Licence?
In the simplest of terms, an ‘Access Licence’ is the granting of a written permission to a building owner to have access to a specific part of an adjoining owner’s land, at a specific time, for a specific duration at a compensatory cost.
Under section 8 of the Party Wall ect. Act 1996, any building owner who under section 2 of the Act, exercises their rights to carry out Notifiable works under sections 1, s.2 or s.6 of the Act, has a statutory right to gain access to an adjoining owner’s land. In these circumstances, unless otherwise agreed between the parties after a notifiable consent has been granted by an adjoining owner to a building owner, the agreed terms of such access will be determined by the appointed surveyor(s) and included to form a part of the terms of the Party Wall Award.
Why an Access Licence is required?
If the proposed works do not fall under the Act, access to a neighbour’s garden can be refused and any building owner who fails to obtain consent and enters onto the land would be trespassing. Although access can be denied there are two ways in which a building owner may obtain access.
The first is by way of a License Agreement between the parties. This can be drawn up by a surveyor or solicitor. It can be in the form of a License, Agreement and/or Deed. The terms and conditions should include; why access is needed, the duration required, the details of persons and/or vehicles permitted to access the adjoining land, the times access will be permitted, undertakings as to any damage caused as a result of the access and compensation for access and loss of use or inconvenience. This is not an exhaustive list and the parties will agree the terms in accordance with their individual circumstances.
If an adjoining neighbour refuses to enter into a license agreement, depending on the circumstances of the case, a building owner may be able to obtain and Access Order from the court.
The second is to apply to the Court for an Access Order under the Access to Neighbouring Lands Act 1992. However, this Act generally applies to access to a neighbour’s property for the purpose of carrying out preservation works that include maintenance, repair or the renewal of a building. In addition, the Court will only grant an order if it is satisfied that the works are ‘reasonably necessary’ for the preservation of the relevant land and they can only be carried out or it would be very difficult for the works to be carried out without access to the adjoining land. Before granting an order, the court must also take into consideration any hardship that may be caused to the adjoining neighbour.
It is important to note that the only proviso for ‘improvement’ works under the Access to Neighbouring Lands Act 1992 can be found in subsections 1(5) and (6) which provide;
“if the court considers it fair and reasonable in all the circumstances of the case, works may be regarded for the purposes of this Act as being reasonably necessary for the preservation of any land(or for the purposes of subsection (4) above, as being basic preservation works which it is reasonably necessary to carry out to any land) notwithstanding that the works incidentally involve-
- The making of some alteration, adjustment or improvement to the land
In other words, if it can be shown to the court that the loft conversion is incidental to or consequential on the carrying out of those works they shall be treated for the purposes of the Act a ‘reasonably necessary’ for the preservation of the building owners land. However, this is rare.
If an adjoining neighbour refuses to enter into a license agreement and the court refuses to grant an Access Order, unless the works fall under the Party Wall etc. Act 1996, the building owner will have to find an alternative way to carry out the works.
Icon Surveyors are happy to provide a free consultation to any building or adjoining owners who may be affected by the subject matter raised in this blog.
