This gives limited right of access to a neighbours garden/land to carry out "basic preservation works". Until this Act was passed, adjoining owners had virtually no right to go onto their neighbour's land under any circumstances unless it was contained in the Title Deeds. The Title Deeds may well contain a right to go onto your neighbour's land to maintain e.g. drains, pipes and wires particularly if your is a house on a new estate. The right given by the Act has strict rules attached to it. Written notification must be given to the next door garden owner and it is enforceable by Court Order if access is denied.
What does "basic preservation works include"? In the case of gardens:
"the clearance, repair or renewal of any drain, sewer, pipe or cable
so comprised or situate;
the treatment, cutting back, felling, removal or replacement of any hedge, tree, shrub or other growing thing which is so comprised and which is, or is in danger of becoming, damaged, diseased, dangerous, insecurely rooted of dead; filling in, or clearance of any ditch ……."
It should be noted that the Act does apply to party walls.
For access to the Act click on the following link:
For the full text of the Act click on the following link:
This Act applies to both existing and new walls, but what is a "wall" is not defined by the Act. This means that whether or not your boundary is a "wall" is a matter of fact. What you would think of as traditional walls built of brick, concrete or stone are probably going to be accepted as "walls". Thus more flimsy structures such as wooden fencing; post and wire fencing and the like will probably not be covered by the Act. Certainly hedges and other living structures will not. This does not mean these cannot be covered by some other means eg. your Deeds; long usage between properties or by agreement.
If you click on the link to the Act itself you will see there are three main definitions in relation to boundaries between properties which can be summarised as follows:
"Party Wall" this is a wall that separates buildings on either side of the boundary even though it is only built next to the boundary, or which actually forms part of a building and straddles the boundary between two properties. Clearly each case will vary as to the situation on the ground, but just because the foundations of a wall cross the line of the boundary does not automatically mean it is a "party wall".
"Party fence wall" this does not mean a fence in the usual sense. It is a wall that does not form part of a building but which does straddle the boundary.
" Party structure" this is intended to cover a floor partition between flats and maisonettes that are approached by separate staircases or entrances. So like a party wall they form part of a building.
The Act applies to the "owner" of the property involved which includes a tenant whose tenancy lasts for more than a year.
The Act creates new rights, responsibilities and procedures covering three main kinds of work:
a) The construction of new walls which either straddle, or are next, the boundary of the land.
b) The carrying out of repairs to walls which are party fence walls or the outside walls of buildings.
c) Excavations that may affect your neighbours land or buildings.
The Act provides details of the requirements as to the notices to be given by neighbours carrying out such work; the rights of entry onto neighbours land to do the work and resolution of difference and conflicts between neighbours in situations covered by the Act. You read the text of the Act for these and seek the advice of a specialist chartered surveyor if in doubt.
If a wall or fence has been wrongly built on your land by your neighbour, this is a legal trespass. You can obtain a court injunction against your neighbour telling him to remove the wall/fence and you can sue him for damages. Although there is a right of self help and you could demolish the wall, be very careful. This right ceases when an injunction has been obtained from the court or refused by the court in the case of Burton -v- Winters (1993) a wall encroached on a garage but the court refused an injunction. It was held by the court that the right of self help died with the refusal of the injunction and the plaintiff was sent to prison for 2 years for demolishing the wall contrary to the Court Order.
If the Title Deeds state the height of any wall/fence and/or the materials to be used and it is built contrary to either specification, then you would be able to take legal action. Again this should only be done as a last resort.
Although there is no general obligation on the garden owner to fence his land, even where the garden is next to the public highway, if he has animals on the garden, then he must fence to prevent the escape of the animals onto the public highway. The Highway Authority can come onto your land an fence it off to protect the public. If your animals stray either onto the highway or a neighbouring owners land, then you could be responsible for the damage that they cause.
You will need planning permission to build a fence or wall 1 metre high where it is next to the public highway or public footpath. On the other boundaries you will need planning permission if it is more than 2 metres high. You should always enquire of your local planning authority before erecting a fence or wall.
Traditionally owners have put deterrents to trespassers on their wall or fence and if it is a party wall just on their side. You will often have seen spikes or broken glass or barbed wire on the top of walls.
However, if the wall/fence borders the public highway, then the local authority has powers to protect the public by having the deterrent removed if it thinks it could cause a danger to highway users. If the deterrents causes a nuisance or by your negligence injures a passer by, then they may be able to sue you. Err on the side of caution because if the deterrent is considered to be excessive you could open yourself up to a criminal prosecution for an injury caused.
There are some interesting discussions on trespass, walls and fences in the discussion forum.
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Last Modified: November 12, 2010