Access to Neighbouring Land Act 2000 - Owners Request for Access to Neighbouring Land to undertake works - some recent matters

09/08/2023

For many years we have been involved in Applications by an Owner of land for access to the Neighbour’s land to carry out work on the Owner’s land.

The Application is pursuant to the Access to Neighbouring Land Act 2000 (the Act).  

We have acted for land Owners seeking access from the Neighbours to allow access and we have acted for Neighbours who have been requested to grant access. 

Recently in the last few years we have considered Applications for either a Land Owner or Neighbour including the following few cases in which we acted for the Neighbour:

1.       Coogee (2 matters).

2.       Erskinville.

3.       Mosman.

4.       Neutral Bay.

5.       Stanmore.

When acting for the Owner seeking the Order or the Neighbour in relation to a request of an Owner, one needs to consider numerous matters including but not limited to whether the Owner has jurisdiction to bring a claim which is brought under Access to Neighbouring Land Act 2000 No 2 [NSW] (“Access to Neighbouring Land Act”):

Consideration of the requirements of the Access to Neighbouring Land Act include:

(a)      The provision of Notice of Application giving at least 21 days notice of the lodging of the Application and the terms of any Order sought (unless the Local Court waives the requirement as to Notice).

(b)      Whether there has been any attempts at resolution by the Owner to obtain consent of the Neighbour to an appropriate Order.

(c)      Section 12 which sets out the types of work for which a Neighbouring Land Access Order could be made.

(d)      Section 15 which specifies matters to be considered by Local Courts.

(e)      Section 16 which refers to conditions of Access Orders.  This includes what are appropriate conditions in relation to any Access Order including but not limited to payment of costs (in particular the Neighbour’s costs).

We can advise initially mostly in general terms which are applicable to you circumstacnes, the parameters of possible Orders and the appropriate conditions to enable our client to consider his or her position.  Most often this leads to an agreed resolution.

Section 15 of the Act states:

“Matters to be consider by Local Court

Before determining an Application for Access Order the Local Court is to consider the following matters:

(a)      Whether the work cannot be carried out or would be substantially more difficult or expensive to carry out without access to the land the subject of the Application.

(b)      Whether the access would cause unreasonable hardship to a person affected by the Order.”

It is critical to consider each of the matters referred to in Section 15 whether we are engaged by an Owner or a Neighbour.

We consider the facts and the evidence available firstly as to whether the work could be carried out or it would not be substantially more difficult or expensive to carry out the work without an Access Order, and secondly whether the access would cause unreasonable hardship to a person affected by the Order.

Very recently we advised a Neighbour involved in a case in which we effectively established that the access would cause unreasonable hardship to the Neighbour who would be affected by the Order in relation to access for part of the works sought by the Owner.  The Owner did not proceed with the claim relating to that part of the works to be undertaken and access was not allowed for that part of the Neighbour’s land which was likely to be adversely affected by the Owner’s works and no access was granted to that part of the land.

Additionally we consider the matters referred to in Section 16 of the Act.  One always needs to consider the actual risks and precautions and safeguards that could be obtained to protect those risks.

There is a question of costs and the question of reimbursement by the Applicant of any expenses reasonably incurred by the Neighbour in excess of those costs which would not be recoverable as costs under Section 27 of the Act.

The case of Watpac Constructions (NSW) Pty Limited v Council of the City of Sydney [2014] NSWLEC 163 provides some insight into the Court’s requirements as to the extent of the Orders that one would expect to be necessary to protect the neighbour from the risks associated with access.  Without limiting those matters they include:

1.       Those matters referred to in Section 16(2) of the Act which are applicable.

2.       Duration (period) and the terms of access.

3.       The appropriate certification required from appropriate Consultants at different stages throughout the process for example, where scaffolding is required certification is required at separate stages undertaken before works commence after installation of the scaffolding and before undertaking the works, during the period of works being undertaken and following removal of the scaffolding.

4.       Bank guarantees and bonds.

5.       Insurances required including public liability insurances.

6.       The persons/entities undertaking the works and the licences and insurances required by persons undertaking the work including the neighbour’s interest on such insurance.

7.       Costs and Expenses of the Neighbour.

In some of the matters referred to above in which we acted for the Neighbour:

1.       Agreement was reached as to the terms of access; or

2.       The Owner did not proceed with the Application for Access; or

3.       The matters were only resolved on the day or just prior to the day of Court.  Mostly we were not acting for the Owner seeking access but were engaged by the Neighbour.  In each of those cases, the Owner agreed to terms and conditions required by the Neighbour to protect the Neighbour’s property and the risks associated with the works, and Orders were made that the Owner pay the costs of the Neighbour.

By way of example in relation to the two matters that were at Coogee:

1.       We acted on behalf of an Owner of a property about which two separate requests for access orders under the Access to Neighbouring Land Act were made by two separate neighbours.

2.       In relation to one of those matters, agreement was only reached essentially at the hearing of the Application on the terms that had been offered by our client early in the process, a long time before the Owner filed the Application for Access under the Access to Neighbouring Land Act.  The matter was for relatively a simple work process.  The Owners paid our client’s costs which were assessed at approximately $60,000.

3.       In relation to the second matter, the Owner adjacent to our client’s land sought crane access through the air space above our client’s land and building. We spoke with Lawyer for the Applicant as to the position in particular, relating to our client’s requirements to safeguard as far as possible and to protect our client from damage to our client’s property and injury to any person as a result of the operation of the crane which involved appropriuate insurance.

The initial reaction was that it was somehow inappropriate that we sought those conditions when the Developers Lawyers spoke with us.  Shortly thereafter, terms were agreed generally in accordance with our original requested conditions on a relatively cost effective basis and certainly without any significant delay. 

In other matters, some Owners who did not agree to our clients’s conditions eventually did not proceed with the Application for access.

All in all there are many issues that need to be considered. 

We have also had matters in which we have advised the Neighbour as to the risks associated with access requests. Notwithstanding our advice, the Neighbour has agreed to the Owner’s request for access to be allowed with some conditions however not all conditions that would be required to cover the damages if there was a disaster.  Some of these Owners and Neighbours take into consideration the relationship of the Owner with the Neighbour.

If you are seeking an Order or there has been a request for an Order for access you need to consider the matters.  Please contact Richard Watson, Accredited Specialist in Commercial Litigation Building and Construction by contacting his Personal Assistant Shereen Da Gloria to discuss the matter and seek appropriate timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.