Residential property update

Rights of way: interference ?and extent

Tensions between neighbours are as old as time and, as Lord Justice Ward stated in the recent case of Oliver v Symons [2012] EWCA Civ 267: 'All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand up for their rights, seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose.'

Oliver is one of three recent cases in the Court of Appeal that looked at rights of way over neighbouring land: always a fertile area for dispute.

In Oliver the appellant, who had an express right of way 'with or without motor vehicles and other agricultural machinery' over a defined track on his neighbour's land, claimed that his right to use the track included an entitlement to 'swing space' so that wide loads could swing onto the verge of the track when manoeuvring. The Court of Appeal found this argument unattractive as it would limit the landowner's use of corridors of land extending beyond the boundaries of the track over which the right had been granted. This case emphasises why great care should be taken to include in an express easement the full extent of the land needed to exercise the right.

Zieleniewski v Scheyd [2012] EWCA Civ 247 also involved a claim of interference with the exercise of an easement. In this case the easement was not an express grant, but a right acquired by long use. The land in question was a parcel of land between the claimant's house and a field owned by him. The landowner had erected a fence that restricted the claimant to using a strip of land about ten feet wide for access and egress to and from the public highway. As in Oliver, width was again an issue.

The Court of Appeal found there had been a substantial interference with the right of way. The fact that the claimant could have used smaller widely used agricultural machinery to do the same job and which could have used the narrower strip of land for access was not relevant. The prescriptive easement acquired was defined by reference to the purpose of the vehicular right rather than the type of vehicle that could be used. The right of way had been created by long use over a greater area of land, not the more defined track that the landowner had sought to impose. It would be mistaken, however, to think that prescriptive rights will always be more extensive than express grants. Where a prescriptive right is acquired over a defined track, the right acquired will be limited to that track and any 'width issue' will depend on the type of usage over time.

Unlike the first two cases, Kennerley v Beech [2012] EWCA Civ 158 looked at where the right of way led, rather than its extent. The Court of Appeal found that a right reserved over and along a garden path was contractual only and not enforceable against the landowner's successors in title, because the path did not lead to either the highway or another parcel of land owned by the claimant. It had been reserved to give access to a path over which licence to pass had been granted to access a kitchen garden, but which had ended in 1955. As the right reserved was only to walk to the end of the path and back, the right could not be said to accommodate the dominant land, an essential characteristic of an easement. ?The reservation had merely conferred a personal benefit.

Particular care must be taken where a right is granted or reserved to go up and down a path or over a parcel of land for a purpose other than access, such as to carry out inspections or repairs

Commercial noises and smells

What if a business is operated legitimately, but its activities are causing an annoying by-product of noise or smell for its neighbours? In two recent cases this issue has been considered by the Court of Appeal. In Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, an operator of a waste transfer site was found to be operating in compliance with its permit and without negligence, but, when local residents brought an action in private nuisance because of the unpleasant smells emitting from the landfill site, the court decided that it was not a sufficient defence to a claim of private nuisance to show that the activities giving rise to the complaint were carried out legitimately, in this case in accordance with the operator's landfill permit.

The landfill site was unduly interfering with the enjoyment of the neighbours' land and as a consequence the court found the operator to be committing a private nuisance.

It is interesting, however, to contrast Barr with Coventry (t/a RDC Promotions) v Lawrence [2012] EWCA Civ 26, in which the claimants had bought a house near a stadium and race track where noisy banger racing and motorcross events were frequently held. Notwithstanding that there was planning permission for this noisy use, the judge at first instance granted an injunction. The nub of the issue for the Court of Appeal was that the planning permission and lawful use of the stadium for this purpose for a number of years had changed the character of the locality and ?the noise it generated, although an un-welcome disturbance to some, would not constitute a nuisance as an increase in noise levels on race days was part of the nature of the locality.

The court also hinted that the claimants were the authors of their own misfortune to the extent that planning permission is a matter of public record and should have been picked up when they bought the property. Given that planning permissions relating only to the property in question appear in the local authority search results, it is prudent for practitioners to warn their clients of this and suggest, if they are concerned about other land use in the locality, that an investigation of the local authority's planning register should ?be undertaken.

Party walls

Party walls are another rich area for neighbour disputes, particularly with the current craze for excavating multi-floor basements. The Party Wall etc Act 1996 provides a framework to assist neighbours who share boundaries to carry out works that involve building, demolishing or carrying out repairs to party structures or excavation works within six metres of a neighbouring building. The Act was introduced because neighbours' works can cause damage to an adjoining owner's building and affect their use and enjoyment of it.

The Act provides a dispute resolution procedure to protect the adjoining owner, while also giving neighbours the rights they need to carry out their works. Usually this is achieved by an expert surveyor making a 'party wall award' which will detail the extent of the works, set out the manner in which they are to be carried out and document the original condition of the adjoining owner's property in case the neighbours' works cause damage. The award is conclusive and binding on the parties. It can only be challenged by an appeal to the county court and the Act imposes a 14-day time limit for lodging such appeals.

The recent case of Freetown Ltd v Assethold Ltd [2012] EWHC 1351 has clarified that the 14-day time period for lodging an appeal runs from the service of the award which, if served by post, means when the award is 'consigned to the post' rather than when it is deemed to have been received. This judgment clarifies an area that was without authority, but clearly leads to practical uncertainties as the recipient of the award cannot be sure when it was posted and as a consequence when the time limit expires. To avoid such uncertainties, ideally in preliminary discussions the parties should agree in advance that it will be delivered by hand or that it will specify the date upon which the award was posted.

Access to neighbouring land

Another source of assistance for those suffering from uncooperative neighbours is the Access to Neighbouring Land Act 1992. Its limitations, however, are sometimes underestimated by practitioners. Landowners may apply to the court for access to their neighbour's land to carry out works to their property where they enjoy no other right to do so. This can include the right to erect scaffolding on the neighbour's land. The works that may be carried out, however, pursuant to such an order are limited to works that are reasonably necessary for the preservation of the whole or any part of the property and cannot be carried out (or would be substantially more difficult to carry out) without entry onto their neighbour's land. Even if the court is satisfied on these counts, there is discretion to refuse an order where it would be unreasonable to order access in view of the level of disturbance or hardship it would cause to the neighbour.

The basic preservation works regarded as reasonably necessary under the Act are maintenance, repair or renewal of any structure on the property, the clearing, repair or renewal of service media, tree surgery or other works to hedges or shrubs, which are in danger of becoming diseased or dangerous, and the filling in or clearance of a ditch. The works may involve making some incidental alterations or improvements, but these are strictly limited and must be part of the necessary preservation works.

The court can require the applicants to pay compensation to their neighbour, for example for any damage caused or loss of privacy, or impose a fair and reasonable fee for access to be paid to the neighbour, taking into account any financial advantage to the applicants and the degree of inconvenience to the neighbour. No such ?fee will be ordered by the court where ?the works are to be carried out to ?residential property.

Clearly application for access to a neighbour's property under the Act should be a last resort, but its existence in the practitioner's armoury is helpful when dealing with uncooperative neighbours.