Prime London Holdings 11 Ltd v Thurloe Lodge Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Nicholas Thompsell |
| Judgment Date | 14 February 2022 |
| Neutral Citation | [2022] EWHC 303 (Ch) |
| Docket Number | Case No: PT-2020-000942 |
| Court | Chancery Division |
[2022] EWHC 303 (Ch)
Mr Nicholas Thompsell
sitting as a Deputy Judge of the High Court
Case No: PT-2020-000942
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr John de Waal QC (instructed by Dentons UK and Middle East LLP) for the Claimant
Mr Mark Warwick QC (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 14 January 2022, 17–19 January 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Contents
| Heading | Commencing Paragraph |
| 1. Background | 1 |
| 2. The access order requested | 7 |
| 3. Evidence considered | 18 |
| 4. The legal test for granting an access order | 24 |
| 5. Question 1. Are the works reasonably necessary? | 32 |
| 5.1 Ambiguity in section1(2)(a) | 33 |
| 5.2 Are the proposed works “basic preservation works”? | 41 |
| 5.3 Are the proposed works “reasonably”? | 50 |
| 6. Question 2. Is access to the Defendant's land necessary? | 68 |
| 7. Question 3. Would the order cause interference with, or disturbance of, the use or enjoyment of the Defendant's land? | 70 |
| 8. Question 4. If the order is granted, would the respondent or any other person occupying the land suffer hardship? | 76 |
| 9. Question 5. Would the interference, disturbance or hardship occur to such a degree that it would be unreasonable for the court make the order? | 82 |
| 9.1 How should Question 5 be approached? | 84 |
| 9.2 The objection based on use of the Passageway | 95 |
| 9.3 The objection based on Health and Safety responsibilities | 108 |
| 9.4 The objection based on insurance | 113 |
| 9.5 The objection based on the Defendant's contractor's reaction | 117 |
| 9.6 The objection based on use of the Direct Route | 128 |
| 10. Conclusion in relation to whether an order should be made | 131 |
| 11. Compensation | 133 |
| 11.1 The courts powers in relation to compensation | 133 |
| 11.2 What types of compensatable loss might be suffered? ………….. | 137 |
| 11.3 Additional costs in managing the rebuilding project | 144 |
| 11.4 Delay to the Defendant's building project | 148 |
| 11.5 Delay in the Claimant's ability to monetise its investment | 149 |
| …11.6 Damage to the Claimant's property | 155 |
| 11.7 Substantial loss of privacy or other substantial inconvenience | 156 |
| 11.8 Provision for expenses of the application? | 163 |
| 11.9 Time of payment and security for payments | 165 |
| 12. Consideration | 170 |
| 12.1 The requirement for consideration | 171 |
| 12.2 Is the Claimant's land residential land? | 173 |
| 12.3 Dwelling and dwellinghouse in other contexts | 178 |
| 12.4 The intent of the legislation | 192 |
| 12.5 Conclusion in relation to the meaning of residential land | 203 |
| 12.6 How should a licence fee be determined? | 213 |
| 13. The terms of the order | 236 |
| 13.1 Principles behind the framing of the order | 236 |
| 13.2 Summary of the terms of the order | 243 |
| 14. Conclusion | 261 |
Background
This judgment deals with an application made under section 1 of the Access to Neighbouring Land Act 1992 (“ ANLA” or “ the Act”). Although the Act has been in force for almost 30 years, I understand that this is the first time that its provisions have been considered in the High Court. I believe it may have been considered a number of times in the County Court, however, the only published decision to which counsel were able to refer me was a decision of HHJ Bailey in the Central London County Court in BPT Ltd v Patterson [2016] All ER (D) 229.
The fact that it has not been necessary to bring this matter to the High Court before is a testament to the sound principles on which the Act has been drafted, and perhaps also to the common-sense and neighbourliness of most landowners in England and Wales (the jurisdictions where the Act applies). It may be hoped that this common-sense and neighbourliness will continue for another 30 years, in which case this judgment may remain the sole authority on the Act for some time. Bearing this in mind, I will do my best to set out fully my understanding about how the Act should be interpreted and applied.
Prime London Holdings 11 Ltd (“ the Claimant”) is the owner of the property called Amberwood House (and for the purposes of ANLA is referred to as the “ dominant property”). This property sits in a prime position in South Kensington at the end of a private road opposite the Victoria & Albert Museum. Whilst the building was used in the 19 th century as a school, it was substantially redeveloped in the 1920s or 1930s as a private house and its inhabitants have included some well-known residents including Dame Margot Fonteyn.
Amberwood House is currently being redeveloped by the Claimant to become what Estate Agents call a “super prime” property – it was recently featured on the television programme “ Britain's Most Expensive Homes”. The redevelopment has involved removing all of the interior walls and fittings, leaving only the external walls, digging out two or three levels of basement and then refitting it to a very expensive standard. This substantial project is now reaching its end. The Claimant will look to sell the property at a profit, although it is possible that any sale may be delayed until the Claimant has settled its differences with Thurloe Lodge Limited (“ the Defendant”).
The Defendant is the owner of the adjacent property, which is known as Thurloe Lodge (and which for the purposes of ANLA is referred to as the “ servient property”). This is the subject of a similarly scaled project, again involving the substantial rebuilding and enlargement of the original building. This project is not as advanced as that at Amberwood House. Broadly it is at the stage where the so-called “shell and core” works have been completed and the contractors are starting to turn their attention to the internal fit out.
Up to the middle of 2019 the two parties were on good terms and cooperated with each other. However, they have fallen out and now are deeply mistrustful of one another. They are in dispute about rights over the short private road which gives access to both properties, which is owned by a sister company to the Claimant. At one point the matter that I am now considering was being case-managed alongside this dispute.
The access order requested
The Claimant has requested access to the Defendant's land under ANLA in order to carry out works on the north wall of Amberwood House. This wall is set right on the boundary of the land on which Amberwood House sits. Its exterior can only be worked on from a narrow passageway between the two buildings (“ the Passageway”) which is on land in the ownership of the Defendant.
The Claimant says that this access is needed in order to re-render and repaint the wall.
The precise details of what the Claimant wishes to do and why the Claimant needs access are not spelt out on the face of the Claim Form served by the Claimant. This only requests access “to carry out certain works reasonably necessary for the preservation of the Claimant's property”.
As the claim was commenced in the County Court, and has throughout been dealt with under Part 8 of the Civil Procedure Rules (“ CPR”), the matters in question have not been the subject of formal Particulars of Claim and Particulars of Defence which would have served to clarify the matters in issue between the parties had the action been pursued under Part 7 CPR. However, the Claimant did provide a form of particulars of claim which set out the grounds on which the Claimant claimed to be entitled to the order and which had attached to it a Method Statement explaining the work to be done and the method proposed for doing it. Although headed as “Draft Particulars of Claim” this document was signed on behalf of the Claimant and included a statement of truth on the part of the Claimant. The document was accompanied by a method statement drafted by the proposed scaffolding contractors, which included a description of the works to be done, an explanation of how these works were proposed to be carried out, and a risk assessment, method statement and rescue plan.
Before the Claimant began working at the property, the wall was a rendered wall. After both parties had dug their respective basements it was found that the render had cracked. The Defendant allowed the Claimant onto its property to deal with this. The Claimant's contractor determined that the damage to the render was so extensive that it should not be patched, but rather should be removed in its entirety and proceeded to remove this render. Not long after this removal was completed, the parties fell out and the Claimant was ordered off the Defendant's land. Consequently the wall has remained unrendered since then.
Since the service of the original Claim Form the Claimant has amended its proposals for how the works are to be done, responding to objections made by the Defendant.
The original method that it proposed (“Method 1”) involved:
(a) taking scaffolding materials through Thurloe Lodge;
(b) constructing a scaffold in the Passageway (“ the Scaffolding”) which would be accessible from a roof on the Claimant's own property which would be used as a means of access while the work is undertaken for the Claimant's workforce and building materials;
(c) undertaking the work from the Scaffolding;
(d) dismantling the Scaffolding and removing it through Thurloe House; and
(e) making good any damage caused to the Passageway before leaving the site.
In response to objections to the Defendant about the blocking of the Passageway and the proposed...
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