If there is a close boundary between your property and your neighbour’s property, temporary access to your neighbour’s property may be required if you intend to carry out works to your property, such as renovations.
Obtaining access
If you and you neighbour agree to terms of access, it is beneficial for both parties to enter into a licence agreement to set out the terms of the access including, the length of time and any agreed compensation. However, if initial negotiations between yourself and your neighbour fail, you make need to seek a statutory order to permit access.
Access orders
Access orders are more appropriate if the access sought is temporary. In the event the access required is long term (for example a right of way) an easement may be more suitable. Under the Neighbouring Land Act 2000 (Act), the Local Court can grant an order permitting access for the purposes of carrying out work. Section 12 of the Act outlines the type of work and includes constructions, repairs, maintenance, alteration, renewal or demolitions of buildings.
The Act provides for two types of orders being:
- Neighbouring land access order; and
- Utility service access order
Firstly, a neighbouring land access order allows the applicant to enter neighbouring land for the purpose of carrying out works to the applicant’s land. A utility service access order permits entry into neighbouring land to repair or maintain a utility service by a person who uses the utility service. Common utility services providers can apply for access orders.
Obtaining an access order under the Act
Before the Court will consider granting an order, the applicant must take the following steps:
- Reasonable steps to reach an agreement: The Act makes it clear that the Court must not grant an access order under the applicant has ‘made a reasonable effort to reach agreement with every person whose consent to access is required’.
- Notice requirement: Before lodging an application, the applicant must have served a notice at least 21 day prior to the owner of the land (to which access is sought) or in the case of a utility service access order to the owner of the land and to any other purpose entities to the use of the utility service.
Matters to be considered by the Court
Pursuant to s 15 of the Act, the court will consider:
- Whether the proposed work cannot be carried out or would be substantially more difficult or expensive to carry out without access to the neighbouring land; and
- Whether granting the proposed access would cause unreasonable hardship to the neighbour affected by the order.
Both of the criteria above must be satisfied in order for the court to grant an access order. However, the access order may be varied or revoked by the court which allows the court to deal with any issues that arise after the order is made.
Will compensation or costs be awarded?
The court may order an applicant to pay compensation to the owner of the neighbouring land for the loss or damage caused by the access; however compensation is not payable for privacy or inconvenience. It is important to note that the Court can order you to pay compensation for loss and damage that arises within 3 years of the access.
Costs are usually borne by the applicant unless the court makes a contrary order. The court will make a contrary order by considering the attempts made by both parties in reaching an agreement before the dispute was brought before the court and whether the refusal to grant access was reasonable.
Conclusion
The Access to Neighbouring Land Act 2000 (NSW) (Act) is a pathway to allow applicants to seek any order from the court to permit access to a neighbours land for the purposes of carrying out work.
Ultimately it is best to attempt to reach any agreement and seek out terms of the same in a Access Deed.
Our team at Matthews Folbigg can provide you with advice regarding Access Deeds or obtaining an order under the Act. We can also advise you on other more long term methods, such an obtaining easements over your neighbours property and the advantages and disadvantages of same.
Contact Information
For further information or if you require assistance please contact our Property Law team or email info@matthewsfolbigg.com.au
