Can you obtain access to neighbouring property to undertake building work on your property?

28/10/2015

Under the Access to Neighbour Land Act 2000 (the Act) in certain circumstances you can obtain access through your neighbour’s property to enable you to undertake building work on your property.

In appropriate circumstances a Court could make an Order in relation to the following works:

1. Carrying out work of construction, repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures,
2. Carrying out inspections for the purpose of ascertaining whether any such work is required,
3. Making plans in connection with such work,
4. Ascertaining the course of drains, sewers, pipes or cables and renewing, repairing or clearing them,
5. Ascertaining whether any hedge, tree or scrub is dangerous, dead, diseased, damaged or insecurely rooted,
6. Replacing any hedge, tree or scrub,
7. Removing, felling, cutting back or treating any hedge, tree or scrub,
8. Clearing or filling in the ditches,
9. Carrying out any work that it is necessary for, or, incidental to anything referred to in paragraphs (a) – (h) above.

A case will be determined having regard to the evidence.  The Local Court will have to be satisfied that access to adjoining or adjacent land is required and it is appropriate to make the Order in the circumstances of the case.  This will involve a review of the specific facts and requirements for access.  This must be by way of appropriate evidence on your behalf. 

Before determining an Application for an Access Order, the Local Court is to consider (based on the evidence) whether:

(a)        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; and,

(b)        whether such access would cause unreasonable hardship to your neighbours.

The Court if satisfied on the basis of the evidence then may make the Access Order subject to appropriate conditions.

Richard Watson and the solicitors at Watson & Watson can advise as to the requirements and likely outcome.  However, it is very important that with the knowledge of what a Court may allow, you should attempt to negotiate a satisfactory outcome.  This will save the significant costs that will be incurred if you have to proceed with a Court application to obtain an Access Order to allow you and your builder to attend on the neighbour’s property to enable access to your property to carry out works of the nature as referred to above. 

Your neighbour must allow you access in accordance with the Orders.  It is critical that when drafting the Orders that the Orders cover all necessary possibilities as your neighbour may seek to restrict you to comply strictly with the terms of the Order.

Should any difficulty arise throughout the period of the Access Order it can be varied and/or revoked by the Local Court on either your application or your neighbour’s application.

If you obtain an Access Order and as a result of the works or access you or your builder cause loss or damage to your neighbour’s property as a result of the access, the Local Court (or if the claim exceeds the jurisdiction of the Local Court a higher Court) can award compensation to your neighbour.   The neighbour has 3 years to make such a claim.  It is very important that you make take all necessary care and your builder has adequate insurance to cover such eventualities. 

We have extensive experience in relation to obtaining access, negotiating terms and conditions including payments or obtaining Access Orders on behalf of owners and also acting on behalf of owners of adjacent property in negotiating appropriate terms and defending claims for Access Orders.  Watson & Watson have advised relating to claims including scaffolding, rock and excavation, stablisation, maintenance, painting, rendering and repairing existing structures. 

If you have difficulties in building works such as that as referred to above, it may be open for you to obtain the access order.  Careful consideration must be given to your circumstances, the terms of the orders sought and the consequences.  If you have any concerns please telephone Richard Watson, experienced Building & Construction Lawyer at Watson & Watson to seek an initial advice in relation to your difficulties.