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Lawbite: How does your garden grow?

  • United Kingdom
  • Litigation and dispute management
  • Other
  • Real estate

13-02-2017

BPT Limited v Patterson (unreported)

A rare reported decision under the Access to Neighbouring Land 1992 (“the Act”). Section 1 of the Act allows the Court to make access orders. These orders give property owners a right, in certain circumstances, to access a neighbour’s land to carry out works to their own land. It is under this Act that BPT made an application.

In this case, BPT owned residential property in North London but were refused an order allowing them to enter onto their neighbours’ property to carry out works to a tree. The lime tree grew on their land, but access was required, to the next door property, in order to carry out pruning work. BPT argued the access and the pruning of the tree was necessary for the preservation of their property.

The Court needed to carry out a balancing exercise between the need for the works to be carried out to preserve BPT’s property and the interference, disturbance and/ or hardship caused to the adjoining owners, the Pattersons. The (one of many) odd things about this case is that the tree was causing subsidence damage to both properties.

There was no dispute that access would be required for the works to be carried out but the Pattersons did not agree that the works were reasonably necessary in the first place. The Pattersons argued, supported by expert evidence, that whilst the works might alleviate the existing subsidence it would only replace it with a real risk of heave. They said the works would leave BPT’s property no better preserved. Further the existing subsidence and potential heave if the works were to be carried out were suffered by both parties and therefore the works would cause hardship to the Pattersons’ use and enjoyment of their property as well.

The Court agreed with the Pattersons and found that the works were not reasonably necessary but, even if they were, it would be unreasonable for the Court to make the order as the works would cause interference, disturbance and hardship to the Pattersons in their use and enjoyment of their property.

KEY POINTS

The 1992 Act provides one means by which a property owner can access a neighbour’s land. However, Developers should note it does have its limitations. It only applies to works necessary for the preservation (maintenance, repair etc) of the property owner’s land and this does not include improvement works.

Interestingly, BPT tried to argue that interference, disturbance and/or hardship caused “by reason of the entry” meant the minimum disturbance caused by having two workmen cutting branches over their land and then clearing up the debris over a two day period and not any future damage caused by the works themselves. The Court felt that interpretation would lead to an absurd result. It therefore stated that the words “by reason of the entry” should be read as if they were followed by the words “for the works”.

These disputes can be particularly difficult as the Court are dealing with neighbours who may have an existing long standing relationship and who have to face the possibility of a future relationship to maintain. Both parties took issue with the others’ past behaviour and actions over the previous 9 or so years. The Court made it clear, however, that these actions had no bearing on its findings in the matter.