Accessing adjoining land to carry out construction work

In many instances, property owners and/or property developers will need to access neighbouring land in order to undertake construction works on their own land, or to carry out work to services which service their own land.

In the normal course, in the first instance discussions with the adjoining land owner should take place. Unless the required access is to be very temporary (for example, for a one-off occasion for a short period of time) where the access is critical for the project, it is preferable for there to be a written agreement between the parties setting out the terms of the agreement and the obligations of each party. Having a formal agreement in place can minimise the risk of the consent being withdrawn, as well as help avoid disputes either during the time of access or once the access is no longer needed. Examples of issues which can be addressed in any such access agreements include:

• restrictions on how the access is able to be exercised.
• times during which access is to be granted.
• the manner in which access is to be granted.
• action to be taken in order to avoid unnecessary damage to the adjoining property.

Common examples of the need for access for construction works include:

• the installation of rock anchors beneath the adjoining property in order to shore up the property whilst excavation works take place.
• erecting scaffolding or hoarding over the boundary of sites.
• crane swing over the air space of the adjoining property.
• access to drainage and electricity services.

In the event that an agreement cannot be reached between parties, there are two different ways in which the Courts can grant access to a neighbouring property. They include:

1. Access to Neighbouring Land Act

The Local Court of New South Wales may make a ‘neighbouring land access order’ or a ‘utility service access order’ or both. This is usually the preferred approach where access is sought on a temporary basis. It is a relatively time and cost effective strategy for obtaining access. For a Court to grant such an order, it must be satisfied that:

• access to the adjoining land is required for the purpose of carrying out work on the applicant’s land.
• access to the adjoining land is required for the purpose of carrying out work on or in connection with a utility service where it is located on the adjoining land.
• a reasonable effort to reach agreement with the persons whose consent to access is required has been made.
• there has been at least 21 days’ notice of the lodging of the application and the terms of any orders sought.

A neighbouring land access order only permits access to the adjoining property for the purposes of carrying out work on the applicant’s land. A utility service access order is broader in its application in that if the applicant is entitled to use a utility service (or a proposed utility service), and the applicant needs access to the adjoining land through which the utility service runs for carrying out work in connection with the utility service, then the applicant may apply for a utility service access order.

The Access to Neighbouring Land Act is not available in all circumstances. Where something needs to be done on a permanent basis, then an access to neighbouring land order may not be available and an easement may be required.

2. Supreme Court Order Granting an Easement Under the Conveyancing Act

A person may apply to the Supreme Court for an order imposing an easement over the adjoining land under Section 88K of the Conveyancing Act. In order for the Court to make such an order, the Court needs to be satisfied that:

• the easement is reasonably necessary for the effective use or development of the land. It needs to be noted that ‘reasonably necessary’ does not mean ‘absolutely necessary’. The easement must be the preferred approach, compared to the use or development without the easement being granted.
• the use of the land will not be inconsistent with the public interest, that is, the grant of the easement will not prevent or impact adversely upon any activity of the public.
• the owner of the adjoining land and any person having a registered interest in the land (such as a tenant or mortgagee) can be adequately compensated for any loss or disadvantage arising from the granting of the easement.
• all reasonable attempts have been made to obtain the easement, but have been unsuccessful.

As the power to grant the easement is discretionary, the Court needs to be convinced it is appropriate to grant the easement. In considering an application for an order for an easement to be granted, the Court is conscious of the fact that an easement interferes with the existing property rights of the adjoining land owner.

Court applications will most likely be more costly than a negotiated agreement. Further, the general costs rule when applications are made for an access order, or an easement, is that the costs of all parties to the application are generally payable by the person seeking the easement or access order.

As it is a precondition to either of the above applications that negotiations have been initiated and have been unsuccessful, it could take many months of negotiations prior to the commencement of proceedings. Experts such as valuers may also need to be engaged as part of the process in order to support an application and to show that reasonable negotiations have failed (for example the adjoining land owner demanding an amount of compensation in excess of what is reasonable compensation for the easement or access order).

It is therefore important to commence any such process as soon as possible rather than leaving it to the last minute.

At Solari & Stock, we have been involved in numerous negotiations and the finalisation of agreements between adjoining land owners to facilitate access orders, as well as negotiations and applications in relation to the seeking of orders through the Supreme Court for the granting of easements under the Conveyancing Act. For further information, please contact our Commercial & Property Team.