Over the past decade, the building and construction industry in Australia has experienced unprecedented growth, making it the fourth largest contributor to the national economy. With new commercial and residential developments commencing almost daily, the likelihood of disputes materialising between the respective stakeholders is on the rise.
In my experience in the field of building and construction litigation, I have noticed that a large proportion of disputes that arise between the stakeholders of a development relate to instances where a party wants to access a neighbouring property.
The reasons why parties require access to a neighbouring property vary. Individuals sometimes require access merely for a few hours to have their contractors finalise works that cannot be completed on their side of the fence. Corporations may want to secure permanent rights to pass through their essential services, such as water and electricity. Government bodies may need an easement so that they can subdivide a parcel of land. No matter what the reason, the ability to access an adjacent property is a crucial factor in whether or not a developer chooses to go ahead with a project.
This short paper will outline some of the methods open to parties seeking to obtain access to a neighbouring property for the purposes of developing their own.
TALK TO YOUR NEIGHBOURS
The simplest and most cost-effective way to gain access to your neighbours land is to discuss the matter with them and obtain their permission to do so. If permission is granted, the agreement for you to access their land should be recorded in writing to protect you from any future complications.
Not all neighbouring property owners however will be forthcoming with their consent at first. This should not stop you from continuing open dialogue. In my experience with these types of matters, most disputes that continue along the path of negotiations conclude with a carefully drafted deed between the parties outlining the terms of access over the parcel of land.
An alternative approach would be to offer monetary compensation in exchange for the access rights.
SHORT TERM ACCESS ORDER FROM THE LOCAL COURT
Should negotiations prove fruitless, and you require urgent short term access to the neighbouring property to carry out works, it may be suitable to lodge an application in the Local Court of New South Wales seeking orders pursuant to the Access to Neighbouring Land Act 2000 (NSW) (‘ANL’).
Section 7 ANL allows a party to apply to the Local Court for a neighbouring land access order to permit them to enter an adjoining or adjacent property ‘for the purposes of carrying out work’. The Act specifies the types of works for which neighbouring land access orders may be made. These include carrying out work of construction, repair or maintenance of building, carrying out inspections to ascertain whether works are required, making plans about works, ascertaining the course of drains and more.
Prior to lodging an application under the ANL, an applicant is required to give the adjoining property owner 21 days’ notice of the lodging of the application and the terms sought therein. A failure to do so may lead to a costs order or worse the dismissal of your application.
The Local Court determines an application by considering (i) whether the work cannot be carried out or would be substantially more difficult or expensive to carry out without access to the neighbouring property and (ii) whether the access would cause unreasonable hardship to a person affected by the order. In Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney  NSWLEC 163, Judge Biscoe considered these factors before authorising the applicant to access 399A George Street, Sydney, for a period of two years, to carry out development works.
The ANL Act does not permit a landowner to seek compensation per se for access to their land. The Local Court may only order compensation for actual losses, for example, damage to personal property, financial loss and personal injury. Compensation is not payable for any inconvenience or loss of privacy suffered because of an access order.
The applicant must pay for the costs of an application unless the Local Court rules otherwise. In deciding whether or not a respondent should be liable for any costs associated with an application, the Local Court takes into consideration the conduct of the parties, including any attempts to reach an agreement prior to the commencement of the proceedings or any other matter it thinks fit.
SUPREME COURT ORDER UNDER SECTION 88K CONVEYANCING ACT 1919 (NSW)
Short term access orders to carry out specific works on a neighbouring property may not always be a suitable solution for a developer. In many instances, a developer will need to secure permanent access rights over an adjoining parcel of land before commencing works. This is particularly common in cases where the subdivision and development of a parcel of land are contemplated. An easement is a section of land registered on a property title, which gives someone a permanent right to use the land for a specific purpose even though they are not the land owner. An example is a shared driveway.
Section 88K of the Conveyancing Act 1919 (NSW) (‘CA’) gives the Supreme Court power to make an order imposing an easement over land.
Before permanent access rights are granted, an applicant must be able to persuade the Court that the factors outlined in section 88K(1) and (2) CA are satisfied.
Firstly, section 88K(1) CA obliges an applicant to show that the proposed easement is reasonably necessary for the effective use or development of their land. In 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998)43 NSWLR 504 at , the phrase ‘reasonably necessary’ did not translate to ‘absolute necessity…something less may suffice’.
Secondly, section 88(K)(2)(a) CA the Court must be persuaded that the use of the land having benefit of the easement will not be inconsistent with the public interest. Bryson in Kent Street Pty Ltd v Sydney City Council (2002) NSWSC 268, noted that ‘Public interest, when applied to the facts, is a public interest in fulfilling the categorisation of the land given to it by the plan of management’.. The easement must not impede, or adversely affect, any activities or rights belonging to the public and ultimately ‘preserve the status quo for years to come’ as showcased in Marshall v The Council of the City of Wollongong (2000) NSWSC 137.
Thirdly, section 88K(2)(b) CA requires the applicant to show that the owner of the land burdened by the easement can be adequately compensated for any loss or disadvantage that will arise from the proposed easement. Compensation is not limited to the value of land. All other matters being equal, compensation may include the diminished market value of the affected land, associated costs that would be caused to the owner of the affected land, loss of proprietary rights, allowances for subsequent repair and maintenance and any damages for loss of amenities (loss of peace and quiet).
Finally, section 88K(2)(c) obliges the applicant to exhaust all reasonable avenues before turning to the Court for an 88K CA order. The applicant must sufficiently inform the respondent of the precise nature of the orders sought and provide them with an opportunity to consider their position. This is followed up by the applicant opening negotiations with a suitable monetary offer reflective of the losses that could be suffered by the respondent. If negotiations stall, the applicant is not required to tender additional offers that may potentially meet the respondent’s desires – a reasonable offer is all that is required.
Section 88K(5) obliges the applicant to pay the costs of the court proceedings unless the Court orders otherwise. A respondent may lose this privilege if it engages in unreasonable conduct that has increased the costs associated in the proceedings.
If you would like to discuss anything about accessing your neighbours land to develop your own, please do not hesitate to contact me by:
Phone: (02) 9232 4466
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