Party walls In the second of her two articles, Jane Ballantyne discusses developers’ access rights under the legislation and the position at common law
The Party Wall etc. Act 1996 is not always able to deal with all access issues that arise when developing land and property. This is particularly so for sites in built-up areas.
Often, access issues cannot be resolved and legislation or case law cannot assist. It is then necessary for the developer and the neighbouring owners to enter into a commercial deal or for adjustments to be made to the proposed scheme should a satisfactory agreement not be forthcoming.
Access to adjacent land
Section 8 of the 1996 Act enables a developer to access adjacent land to carry out work that is covered by the Act this is an important feature of the legislation. However, situations that are not dealt with under the Act include:
? Scaffolding oversailing a neighbouring building or land that is being used in connection with work that does not fall within the Act’s jurisdiction, even if the scaffolding does not physically stand on the adjoining owner’s land.
? Cranes oversailing neighbouring land or buildings, even where these will not be used to carry loads over the neighbours’ land or property.
? Access for work to a boundary wall that stands on the building owner’s land but for which access to neighbouring land is required to execute the work.
Neither statute nor common law grants a right to enter another party’s land or airspace without that party’s express permission. This applies whatever the purpose, except for work that comes under the 1996 Act. However, this will generally catch work to a shared structure or work of preservation under the Access to Neighbouring Land Act 1992.John Trenberth Ltd v National Westminster Bank Ltd (1979) 253 EG 151 illustrates this point.
NatWest required access to Trenberth’s land to carry out vital repairs to its building. Trenberth refused access, but NatWest none the less went onto Trenberth’s land and began the work, which included the erection of scaffolding.
Trenberth sought and obtained an injunction. The court considered NatWest’s action to be a tort of trespass that it could not authorise, even if, as NatWest argued, the work was almost complete.
An example of work that is not covered by either of the statutes is that of raising up an existing boundary wall (so that it is entirely on the land of the party that wants to carry out the work), requiring scaffolding either standing on or cantilevered above the neighbouring property.
The developer will need the express permission of the neighbour to undertake this work. If the neighbour refuses to grant permission, the developer will have to find an alternative way of raising the wall or may be forced to cancel the project. Even if the scaffolding is purely for the safety and protection of the adjoining property or owners, a right of access is not automatic.
Oversailing cranes
The same is true of oversailing cranes. Many oversail the airspace of adjacent land only for safety reasons. When not in operation, cranes must be able to swing round their circumference to offer the least resistance to winds. When in use, it is often possible to avoid swinging crane loads over adjacent land.
The most influential case in this respect is Anchor Brewhouse Developments Ltd v
However, the judge granted an injunction for the removal of the oversailing cranes, holding that the oversailing constituted a trespass and that a claim for damages was inappropriate because there were no special circumstances under which the trespass could continue.
The judge went on to state that he thought it would be convenient for the courts to be able to allow developers to use neighbours’ land:
“to enable property developments to be expeditiously and economically completed, to allow, on proper commercial terms, some use to be made by the developer of the land of neighbours.“
He said, however, that a court had no such power, and although granting the injunction, said that to do so “sticks a little in my gullet”.
1992 Act
The 1992 Act came about because of the position at common law illustrated by John Trenberth.
It was introduced to assist property owners that need to carry out work to preserve the whole or a part of their land that would necessitate access to neighbouring land, but for which they cannot obtain permission. The Act allows such property owners to apply to the court for access where this has clearly been requested and refused.
However, the definition of preservation can be limited. The decision to grant access is at the discretion of the court, which has to take into account the effects on the adjoining owner of doing so. The court can award compensation for any inconvenience caused to the adjoining owner, the quantum of which is determined by the court.
The purpose of the Act is clear, but court applications have time and cost implications. There is also uncertainty as to whether the court will grant an access order. It is therefore necessary to have a well-considered application containing all relevant details.
Access agreements
Where neighbours agree to grant access, the agreement should be documented in a licence that binds both parties.
In some cases, the adjoining owner will ask for some form of payment. Many will reach a sensible commercial agreement. Some may reach a reciprocal agreement, with or without an exchange of money, where the adjoining owner wants to develop its site in the future.
A licence should be drawn up whatever the form of access. As with all contracts, consideration should be made. If the adjoining owner does not request payment, the consideration can be a peppercorn licence fee of, say, £1, which should be set out in the licence.
The financial demands of neighbours can be too high and may outweigh the benefit of obtaining the necessary access. In such cases, a developer will have to reconsider its scheme, either building within its boundary line or using cranes with fixed jibs rather than those with the more costly luffing jibs.
Other types of complaint
Hunter v Canary Wharf Ltd [1997] AC 655 concerned a claim for damages for the interference with television reception following the construction of the
The House of Lords held that no actionable nuisance had arisen and there was no right to receive a TV signal. However, this is the type of complaint that can be made by neighbours with regard to the construction of developments.
Never too early
Access issues can take a long time to resolve and need to be considered early in the planning stages of the construction phase of the development.
Appendix 3 of Practical Neighbour Law Handbook, published by the RICS, contains a number of draft licence agreements that are useful reference documents.
Parties should note that if an agreement is created as a deed, it will be binding on successors in title. If it is instead executed as a licence, it will be relevant only to the parties that entered into it.
Why this matters |
The Party Wall etc. Act 1996 and the Access to Neighbouring Land Act 1992 are the two main statutes granting property owners access to neighbouring land to carry out construction works. The law allows only restricted access and only in certain circumstances. If the work in question is not covered by statute, neighbouring owners have an absolute right to refuse a request for access to their land. The parties can agree a commercial settlement, but the neighbours may demand a sum of money in return for granting access, the quantum of which they can decide. Property owners have rights over the airspace above their land and property as far as it is necessary for the ordinary use and enjoyment of the land and the structures on it: see Lord Bernstein v Skyviews & General Ltd (1977) 241 EG 917. Oversailing a crane without permission is a common law tort of trespass. Case law has shown that a court will grant an injunction to remove a crane if it trespasses over another’s airspace and that damages are not an appropriate solution. An injunction will usually be granted even if no damage is being caused. The number of neighbourly issues that arise in connection with development sites illustrates that the manner in which the work is to be executed needs to be considered early in the project and a developer should not rely on neighbours granting their consent. The manner of working may need to be changed, but this can increase the costs of a project, so this needs to be factored into the overall development costs. The scheme itself may need to be changed if it proves physically impossible to build it without access to neighbouring land. This may, of course, affect the developer’s profit margin. |
Further reading |
Party Walls Law and Practice Practical Neighbour Law Handbook RICS Guidance Note, Party Wall Legislation and Procedure |
Jane Ballantyne is a partner at Malcolm Hollis LLP
