Love Thy Neighbour, By Allowing Access for Repairs

Document Cited in Related
DOI10.3366/elr.2022.0792
Author
Pages438-443
Date01 September 2022
Published date01 September 2022
INTRODUCTION

Angus and Brenda are neighbours. A side-wall of her house is built right to the boundary with his land. The harling is crumbling and Brenda wants to repair it. Can she come onto Angus’s land to do so? With his permission she can. But if he refuses access? Baron David Hume, in his lectures at the University of Edinburgh in 1821–22, said:

[An] owner’s interest must yield sometimes to the immediate interest even of an individual where this is out of all proportion to the owner’s interest in preventing the interference, or where the matter in question, though immediately concerning an individual, does at the same time, in its consequences, though remotely, concern the neighbourhood too … On the like ground I think it may be maintained with respect to conterminous properties in a Burgh, which in many instances, owing to the crowded situation of the building, cannot be repaired without some temporary interference, as by resting ladders on the next area, that this slight and temporary inconvenience must be put up with, from the necessity of the case.1

This statement, however, appeared forgotten until highlighted in Kenneth Reid’s The Law of Property in Scotland2 where he ascribes the right to common interest. There is no reference to Hume in the recently rediscovered Edinburgh Sheriff Court case of Brydon v Lewis3 from 1958, where it was held that the owner of a lower tenement flat seemingly had a servitude of necessity enabling access through the garden belonging to the upper flat in order to carry out repairs to a wall. But Hume’s statement is mentioned in Soulsby v Jones, where Lord President Carloway commented that it was “sound in principle”.4

Thus Brenda can point to Inner House authority allowing her to take access. What though are the exact parameters of this right? Unlike a servitude of access, it would not stop Angus from building on his land. This is clear from Soulsby, where the principal argument that such a servitude had been created by acquisitive prescription was unsuccessful. Assuming, however, that access is permissible, how can it be taken? And for how long? What ancillary rights are there, such as to leave equipment while the work is ongoing?5 Is compensation payable and, if so, in what circumstances? These and other questions remain unanswered. This contrasts with the position in England and Wales where the matter is governed by the Access to Neighbouring Land Act 1992. This legislation was recently considered by the High Court in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd.6

 THE ACCESS TO NEIGHBOURING LAND ACT 1992

The 1992 Act is based on a Report of the Law Commission of 1985.7 The impetus for the project which led to it was a “steady trickle of cases in which members of the public or their Member of Parliament have approached the Lord Chancellor’s Department”8 or the Law Commission directly about problems arising out of an absence of right to enter a neighbour’s land at common law. Following consultation, however, the Law Commission concluded...

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