In this blog, Icon Surveyors will be considering whether or not a neighbour who owns the ground floor flat and garden can prevent a building owner who owns the top floor flat from gaining access to the garden to erect scaffolding needed to carry out a Loft Conversion.
This is a very tricky question as the "right to access a neighbour’s land depends on a number of factors".
The first question to consider is whether or not the proposed works fall under the Party Wall etc. Act 1996? For the Act to apply the conversion would have to involve a boundary wall. That is to say, the flat in which the loft conversion is to be built would form part of terraced or semi-detached property. In this situation, Party Wall Notice(s) would have to be served on the adjoining owners. If an adjoining owner does not consent with the works or access to their land as specified in the building owners Notice, the Act provides that an adjudication of the matter (s)in dispute is carried out by an appointed surveyor, or, depending on the severity of the disagreement, two or three surveyors. The surveyor(s) will draw up a Party Wall Award within which will be terms and conditions as to access to an adjoining owner's property, the time and manner in which the works must be carried out and provisions ensuring the adjoining owner is compensated for any damage or unnecessary inconvenience.
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 to erect scaffolding to carry out the loft conversion...
- The first is by way of an Access 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; when and where the scaffolding may be put up, how long it may stay up, undertakings as to any damage caused as a result of the scaffolding, compensation for access and loss of use or inconvenience. This is not an exhaustive list and the parties will agree to 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 an 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-
a) 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.
Notice: This blog is not an authoritative interpretation of the law; it is intended as a general guide.