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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.

Judges Comments and Opinions regarding Dr. Antino

  • The party wall world is relatively small, the stage of this world contains a number of well-known players, Mr Antino is one of these well-known players and so are his owners instructing solicitor Mr Ashley Bean of Thirsk Winton

    HHJ Bailey - [2016]
  • The Claimants have a very experienced legal team comprising Mr David Mayall of lambchambers & Mr Ashley Bean of thirsK winton and their surveyro Dr. Philip Antino. The evidence in particular of the Defendant’s plans for both the Accessway and the plans and how it impacted upon the Claimants business was important information that The Defendants ahd not provided when requested.

    HHJ Freedland QC - [2021]
  • "Mr Antino is a palpable witness, Mr Antino's explanation of the unique attributes of the "Thompson Plan" greatly assisted the Court to understand the location and extent of the claimants’ boundaries” (Best & Best v Perkins & Dennis in the County Court at Luton).

    HHJ Hildyard - [2015]
  • The appeal was a preliminary hearing of two points in respect of an Award served by Mr Antino and a surveyor appointed by Mr Antino under s.10(4) on behalf of the Building Owners the Appellants. HHJ Luba QC sitting in the Central London County Court held "In my judgment the Award is valid, the use of s.10(4) was the appropriate procedure given the Building Owners refusal to appoint a surveyor. A dispute had arisen that satisfied s.10 procedures, The Award is an impressive piece of work". Schmid v Hulls and Athananasou).

    HHJ Luba QC - [2016]
  • “Mr Antino is an acknowledged expert in the field of party wall issues.”

    HHJ Murfitt QC 2013 - [2015]
  • “I have known Philip for many years as a surveyor, he is a very good surveyor, as this book shows he is a very good author and this book can only advance his reputation”

    HHJ Philip Bartle QC - [2012]
  • “In the appeal of an ex-parte Award served by Mr Antino on behalf of the respondents, in my judgment the respondent is correct. Mr Antino’s contention that it is not a matter for negotiation directly between one surveyor and the other surveyor’s client. Since I have determined that the ex-parte Award was valid the court is still able to determine the Award and under the statutory powers to modify the Award if appropriate. I am grateful to Mr Antino suggesting that I now determine the Award issue “I accept that Mr Antino’s hourly rate is not in my judgment unreasonable. It follows that the fee set out in the ex-parte Award had been properly justified and I therefore award Mr Antino’s fees”. (Bansal v Myers Romford County Court).

    HHJ Platt - [2007]

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