Bennett v Rowlins & Rowlins in the County Court at Brighton G00BN668
Access to Neighbouring Lands Act 1992 (“ANLA”)
Mr. Bennett lives in Brighton adjacent to his house is an undeveloped piece of land owned by the Defendants Mr. & Mrs. Rowlins who sold the property to Mr. Bennett. Mr. Bennett’s boundary wall is located along the full length of Rowlins (“Defendants”) land. It had started to crack and works of maintenance and preservation were required.
Mr. Bennett instructed Dr. Philip Antino of www.apaproperty.comto advise and a request under the ANLA was made. The Defendants refused access.
Mr Bennett instructed Ashley Bean of Thirsk Winton of www.thirskwinton.co.ukand despite numerous requests for access and obstructive responses proceedings were issued https://www.find-court-tribunal.service.gov.uk/courts/brighton-county-courtto gain lawful access to carry out works of maintenance and preservation.
The Defendants instructed Mr. Stuart Frame www.tanfieldchambers.co.ukwho is also an honorary member of www.fpws.org.ukbut not a member of the RICS www.rics.org
The Defendant’s land had not been developed (although planning permission had been obtained) so there were no legitimate concerns regarding inconvenience or nuisance arising but nonetheless, the objections continued.
It should have been a simple matter to resolve!!!!
The Defendants having instructed Mr. Philip Goacher of www.goacher.co.uka respected engineer to advise on the works specified by Dr Antino. The work specified the removal of localized areas of rendered brickwork down to the foundations and/or where sound and stable brickwork was found and then to reconstruct render and decorate. There was a genuine concern that the wall might require localized underpinning and of course that work would fall within the definition of maintenance and preservation. This was also challenged.
Mr Goacher claimed the wall did not require underpinning, it was never claimed that underpinning would be undertaken, it was simply a precaution in the event that when works started and if it was required everybody was aware of the possibility thus the works could proceed without any further delay.
As matters progressed over the forthcoming twelve months it was eventually conceded by the Defendants that there was a right of access and ultimately Mr Goacher accepted that there was a right to underpin the wall, although he believed it would not be necessary.
The wall had been built by a previous owner and as the date for the hearing neared, the Defendants had to accept the inevitable and agreed to a consent order.
In a nutshell, the Defendant’s approach was a forlorn hope, destined to fail and as a consequence, one can’t help but recognize the futility of this strategy and the terrible waste of time and money.
Once the works started, it was identified that the wall was actually constructed from hollow concrete blocks (not brickwork or solid blockwork) which had not been filled with reinforced concrete and thus probably the reason why the wall was cracking in several areas. Dr. Antino, therefore, amended the works to simply pouring in concrete and inserting reinforcing to stabilize the wall. This substantially reduced the works and only took 4 days to complete. Still another amazing result for the Bennetts and their team who persevered to ensure their statutory rights were protected and indeed exercised.
Experienced surveyors, lawyers and barristers that specialise in construction and property matters are/or should be fully aware that if a property owner intends to undertake works for maintenance and preservation of their property there is an unequivocal right of access onto and across a neighbouring property to execute those works, there are no grounds to refuse access. The neighboring owner whose land will be accessed can only negotiate reasonable terms of access. For example, no access during weekends or bank holidays. specific times of access.
Furthermore, the neighboring owner cannot specify or dictate the works, that remains with the property owner’s surveyor.
I hope that those less experienced practitioners can seek comfort from this blog and avoid a similar situation arising in the future, where they incorrectly seek to delay and/or prevent someone from doing exactly what Parliament had intended.