Summary of Recommendations of UK Law Commission on Rights of Access to Neighbouring Land (Report No 151)

Our principal recommendation

(1) The law should be changed so as to enable a person to obtain a right of access to neighbouring land for the purpose of carrying out work to his own land. This right of access should arise only by virtue of an order made on application to a court.

The work for which access should be available

(2) The types of work for which access should be available under the scheme should be limited to preservation work. Other types of work should fall outside the scheme.

(paras 4.2-4.6)

(3) “Preservation work” should include any work that is intended to preserve an applicant’s property. It should thus include the inspection, decoration, cleaning, care, maintenance and repair of any building, fence, wall or other thing constructed on or under the land, including the strengthening of foundations, damp-proofing and the making good of lost support or shelter.

(para 4.7)

(4) Improvements and alterations done for their own sake should not count as preservation work. However, improvements and alterations that were merely incidental to the carrying out of work that did count as preservation work should be covered.

(para 4.8)

(5) Demolition of a structure (or any part of one) and its rebuilding or replacement should be capable of being treated as preservation work; but an access order should be available for rebuilding or replacement work following demolition only if the work amounted to preservation work.

(paras 4.9-4.11)

(6) The scheme should also apply to non-structures. So it would cover preservation work to trees, hedges and other natural growths.

(para 4.12)

(7) The right of access should, if granted, also permit access to anyone reasonably assisting the applicant in connection with the work; it should also permit the placing on the neighbouring land of materials, plant and equipment needed in the course of the work and any waste arising from the work.

(para 4.13)

The property to be entered

(8) The scheme should, in general, permit entry to any neighbouring land of any description

(paras 4.14-4.16)

(9) The scheme should not authorise the making of an order against the Crown.

(para 4.17)

(10) The scheme should not apply so as to afford access to the highway

(para 4.18)

(11) No exception should be made for agricultural land.

(paras 4.19-4.20)

(12) The scheme should not contain any provisions restricting or excluding its application in cases where the access required was either to repair a structure built by the applicant on or close to the boundary or else would be impeded or blocked by something already on the neighbouring land.

(paras 4.21-4.26)

Automatic provisions

(13) The following provisions should be contained in every access order:

(a) The work: this provision will describe the work for which access is authorised;



(b) The land: this provision will describe the land access to which is authorised;

(c) Timing: this provision will include the dates on or between which access is to be allowed.


(paras 4.2,4.34 and 4.39)

Automatic obligations

(14) The following obligations should attach to every access order:
(a) Access: the neighbour to be required to permit the applicant to have the access (and any other facilities) provided in the order;

(b) Making good: the applicant to be required to reinstate fully the property entered and make good any damage so far as reasonably practicable;

(c) Indemnity: the applicant to be required to indemnify the neighbour against any loss or damage to the land resulting from the entry

(paras 4.31,4.50 and 4.106)

Conditions of access

(15) The court should have power to impose conditions on any access order, with a view to minimising the neighbour’s inconvenience and loss of privacy; to reducing security risks and the risks of financial loss, physical damage or personal injury; to ensuring that the work is done properly and quickly; and to awarding compensation if appropriate.

(para 4.28)

(16) This power should specifically enable the imposition of conditions dealing with the following matters:


(a) Method of work: this condition would be that work should be done in a particular way.

(b) Precautions and safeguards: this condition relates to the prescribing of precautions and safeguards to eliminate or reduce the risk of damage or injury, or to take account of security risks. It is to be wide enough to provide for the taking out of insurance cover.

(c) Neighbour’s supervision of work: this condition would be that the work should be done under the neighbour’s supervision.

(d) Reimbursement of fees and expenses: this condition would be that the applicant should pay any fees and expenses reasonably incurred by the neighbour in connection with the access.

(e) Giving security: this condition would be that the applicant should be given security for any payment that might become due from him in connection with the access.

(f) Compensation: this condition would be that the applicant should pay compensation for any loss, damage or injury which the neighbour suffers as a result of the access. But no compensation should be payable for nuisance or inconvenience or for the access itself; nor should the enhanced value of the applicant’s property (or any consequential reduction of the value of the neighbouring property) arising from the access be relevant for the purposes of assessing compensation.

(paras 4.29-4.61)

The nature of the right of access

(17) A right of access granted under the scheme should not be a permanent right, but should subsist only for the purpose of carrying out the particular project of work for which the right of access was sought. It would thus be a “one-off” right.

(paras 4.62-4.64)

The applicant

(18) There should be no restrictions on the categories of person entitled to apply for access under the scheme.

(paras 4.65-4.67)

The neighbour

(19) There should be no restrictions on the categories of person capable of being treated as neighbours under the scheme: the applicant would be free to make respondent to his application anyone whose interest in the neighbouring land appeared to him to be such as to make it necessary that he be bound by an order.

(para 4.73)

(20) Only a person who was a party to an access order would be bound by it. The effect of a neighbour’s being so bound would be to prevent him bringing any action in trespass in respect of the applicant’s entry on the neighbouring land in accordance with the order.

(para 4.73)

(21) A person who was not a party to the order would not be bound by it and should be able, for example, to sue the applicant in trespass even though the applicant had entered the neighbouring land in accordance with the access order.

(para 4.73)

(22) An applicant should, however, be entitled to apply to the court, at any time before completion of the work, for any person to be joined as a party to the access proceedings.

(para 4.74)

(23) It should be possible for any party to the access proceedings to apply at any time for the access order or conditions to be varied, suspended or discharged.

(para 4.76)

(24) In a case where, because the neighbouring land is unoccupied, the applicant does not know whom to make respondent to his application, he should be able to apply ex parte for an order on satisfying the court that he has taken such steps to identify respondents as are reasonable in the circumstances.

(paras 4.77-4.79)

(25) An applicant should, in general, enjoy no special immunity against actions in nuisance. He should, however, be immune from an action in nuisance brought on the ground that the exercise of the right of access pursuant to an order would interfere with the respondent’s easements over the neighbouring land.

(paras 4.80-4.83)

(26) An applicant entering land pursuant to an access order should be immune from prosecution under any provision making it a criminal offence either to trespass, or to enter, or be, on that land without the respondent’s consent.

(paras 4.84-4.87)

Jurisdiction

(27) The county court should have an initial, unlimited and exclusive jurisdiction in access proceedings, with power for the proceedings to be transferred to the High Court.

(paras 4.88-4.93)

(28) There should be no preliminary procedure (involving notices and counter-notices) operating prior to the access application.

(paras 4.94-4.95)

Getting the access order

(29) The scheme should contain no detailed guidelines as to the court’s exercise of its power to grant access. However, this power should arise on its being satisfied that the work for which access is sought:

(a) is reasonably necessary for the preservation of the land to which the work is to be carried out; and

(b) cannot be done (or would be substantially more difficult or expensive) without that access.


The power should then be exercised in favour of the applicant unless the respondent satisfies the court that, despite any terms and conditions that the court may be prepared to attach to the order, entry by the applicant would cause such hardship that it would be unreasonable to make an order. If, but only if, the respondent is able to satisfy the court on this point, the order should be refused.

(paras 4.98-4.105)

Enforcement of the order

(30) The rights created by an access order should, in principle, be enforceable in the same way and to the same extent (but without the need for separate proceedings) as if they arose out of a contractual right of access expressly created between the parties.

(paras 4.107-4.109)

Costs

(31) In deciding the question of costs, the court should have its normal discretion, which it should exercise in accordance with existing principles, including those applicable where any party is legally assisted.

(paras 4.113-4.118)

Contracting out

(32) The power of the court to make an access order should not be capable of being excluded or restricted by any agreement, whether made before or after the legislation comes into force.

(paras 4.119-4.120)