Access to Neighbouring Land Act

[angelicangel]

I have been assigned to argue that the erection of a new building can qualify as "basic preservation works" under the access to neighbouring land act 1992. I have looked through many resources, books, cases, journals, and have found very few resources to enable me to argue this, I have found this task impossible! I'm planning to approach the question in saying that the second stage of constructing is 'maintenance' towards half the building which was built before the access was requested. Any help would be fantastic! Am I on the right track?

[happyjo]

I am assuming you are a trainee solicitor or law student.

If so, try

www.traineesolicitor.co.uk

Post your question with discretion, they blast you out of the water if you question refers to any course work.

Good luck hun

J

[angelicangel]

Thanks for your help.
No its not for any course work, its a group competition.

[buildersmate]

I will admit to ignoring the question first-off because it looked like a plea to shortcut your homework.
I'm not surprised you couldn't find any resources as case law because I don't believe that it is the true intention of the Act. If the purpose of the group exercise is to test your ability to construct and present a persuasive argument 'against the odds' then I can understand it.

As you've found the relevant part of this Act is clause 4:

Where the court is satisfied on an application under this section that it is reasonably necessary to carry out any basic preservation works to the dominant land, those works shall be taken for the purposes of this Act to be reasonably necessary for the preservation of the land; and in this subsection �basic preservation works� means any of the following, that is to say�
(a) the maintenance, repair or renewal of any part of a building or other structure comprised in, or situate on, the dominant land;
(b) (c) (d) [deleted as not relevant to your situation]
but this subsection is without prejudice to the generality of the works which may, apart from it, be regarded by the court as reasonably necessary for the preservation of any land.

I agree with your proposed approach as being one way of arguing it (maintenance = renewal of any part of a building). The only bind is there would need to be something there already. A pile of stones, perhaps? - you are maintaining a pile of stones by renewing them.

The only alternative I can suggest is picking up on the words 'preservation of the land'. If you could argue that constructing a new building helps with preserving of the land underneath (from erosion by rain?, from contamination in the event of nuclear fallout?, [you could create several scenarios], then the wording of the Act seems to fit your case.

I guess it depends whether this a 'management exercise in persuation skills'

[buildersmate]

[AB cut short my final sentence]
............ in which some tongue in cheek arguments might earn you extra brownie points, or a properly constructed legal argument.
Hope that helps, BM

[Gmcd01]

Here's a long shot, does it involve a crane arm and some dodgy Peter Pan references?

[angelicangel]

No it does not.
I was not looking for an answer or for people to research for me as I have done this myself, or to cut my homework. I just wanted to see if people thought I was on the right track wih my argument.

After further research I think I will use my argument, as it seems the best to use.
Thanks.

[Gmcd01]

By the way, my answer wasn't flippant. The area you're looking at is a fairly niche one, as I'm guessing you're finding out. The BPP national moot competition had a first round question, written by a colleague, that concerned the same area. If that was the case, I would have had a model answer. I will suggest this:
s1(2)(a) allows access for what is �reasonably necessary for the preservation of the whole or any part of the dominant land�:
s1(4) is not an exhaustive proposition.
Further, it is a fundamental principle of statutory interpretation that we read the words of a statute in light of the spirit and purpose of that statute: Inland Revenue Commissioners v McGuckian [1997] at 1005
The Act has two purposes: (1) to facilitate the efficient use of land; (2) to facilitate the elimination of dangerous situations: s.1(4)(d).
Reading s.1(2)(a) in the light of these purposes, the works proposed by Pan Properties Ltd are within the scope of the Act.
Court discretion: s.1(2); public benefit in realising potential of land; a misconception of the nature of ownership; practice in other jurisdictions.

I hope that abbreviated suggestion makes sense; I know that it was a winning argument when framed correctly.

[buildersmate]

The trouble was that you asked a very obscure question that few people (me included) knew anything about.
I chose to research it as you had done and try and provide at least an alternative.
It would have nice to have had some sort of reply that acknowledged that - but hey, that's life.
Good luck with the project. BM

[angelicangel]

Thankyou everyone for your help (Builders mate) included. Thank you for offering a model answer, however I would not want to be unfair on any of the other groups, but your suggestion was most helpful.
I am sorry builders mate if you feel snubbed, I assure you this was not intended. In all honesty, I have never studied property and was feeling quite desperate after the lack of cases etc and put the question up on here. I now feel guilty, as although it is only for fun and we can ask teachers and friends etc, I feel like using answers from you all would be a little unfair. Perhaps this is because of my pride and stubborness in being ashamed to ask for help.

Thank you

[angelicangel]

I will let you all know what argument I used and how I got on!
Thanks

[millyhesmith]

I have just been given an almost identical moot question. Did you have any luck in finding anything helpful? I am struggling!