Purpose of access

Developers carrying out construction often need to consider what access rights may be required over neighbouring land to ensure that their project can be delivered in accordance with the delivery programme.

Access to neighbouring land may be required on a temporary or permanent basis, and for a variety of reasons, such as access:

• over the neighbouring land’s airspace for operation of a crane;
• onto the neighbouring land for erection (and subsequent removal) of scaffolding, hoarding and temporary fences;
• onto and across the neighbouring land by the developer’s workers, with or without vehicles, plant, tools, equipment and materials;
• for drainage and running of services on or under the neighbouring land; or
• for installation (and subsequent detention) of subsurface work anchors.

Time is money. We have seen a number of projects stall due to difficult neighbours and the reluctance of statutory authorities to assist. Accordingly planning ahead and identifying any such access requirements early is critical. In part 1 of a 2 part series, we set out below our key takeaways for New South Wales.

Getting access

If the neighbouring landowner agrees to grant access, the developer may enter into an agreement with the adjoining landowner for temporary access, or an easement if permanent access is required.

If negotiations fail, the developer can seek access rights via the courts in NSW.

Statutory avenues in NSW

In NSW, temporary access rights can be granted under the Access to Neighbouring Land Act 2000 (NSW), and ongoing access rights may be granted by an easement under section 88K of the Conveyancing Act 1919 (NSW) or Section 40 of the Land and Environment Court Act 1979 (NSW).

A summary of each of the statutory based access order and easements available for developers in NSW are provided below:

Legislation	Access type	Summary
Access to Neighbouring Land Act 2000	Access order	Application can be made to the Local Court. Developers may apply for 2 types of access orders: Neighbouring land access order - entitles the developer (as applicant) to enter into the neighbouring land for the purpose of carrying out construction works which require access on the neighbouring land. Utility service access order - enables a person who uses a utility service that runs through neighbouring land to enter that neighbouring land to carry out work on the utility service. The Court will not make an access order unless it is satisfied that the developer has first made a reasonable effort to reach an agreement with the neighbouring landowner for the access sought. The Court may make an access order if it's satisfied that access to the neighbouring land is required by considering: can the proposed work be carried out or would it be substantially more difficult or expensive to carry out without access to the neighbouring land; and will granting the access rights cause unreasonable hardship to the neighbouring landowner. In granting an access order, the Court may impose conditions reasonably necessary in the circumstances. The developer must restore the neighbouring land to the same condition it was in before the access and indemnify the neighbouring landowner against damage to the land or personal property as a result of the access. Neighbouring landowners may seek compensation against the developer within (but not after) 3 years after the last date access occurred for losses arising from the access. This includes losses for damage to personal property, financial loss and personal injury, but not for loss of privacy or inconvenience suffered by the neighbouring landowner solely as a result of the access granted.
Conveyancing Act 1919	Easement	Application must be made to the Supreme Court. Section 88K provides the Court the power to make an order imposing an easement over the neighbouring land if the easement is reasonably necessary for the effective use and development of the developer’s land. To obtain an order for an easement certain prescribed criteria under the legislation must be satisfied, being: The easement must be reasonably necessary for the effective use or development of the developer’s land. The use of the developer’s land, which has the benefit of the easement, must not be inconsistent with the public interest. The neighbouring landowner and other parties that have an interest and estate in the neighbouring land must be adequately compensated for any loss or disadvantage that will arise from the Court imposing the easement. The developer has failed to obtain an easement of the same effect after making all reasonable attempts to do so.
Land and Environment Court Act 1979 (‘LECA’)	Easement	Application must be made to the Land and Environment Court. Section 40 is limited to circumstances where the Court has determined to grant or modify a development consent on an appeal or where an appeal is pending before the Court in relation to the granting or modification of a development consent. Section 40(4) of the LECA provides that the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 in the same way when dealing with application under section 40 of the LECA.

Conclusion

Key takeaways for developers to consider are:

• Identify any neighbouring access requirements early, and plan ahead in your project for any access requirements.

• Developers should first negotiate with the neighbouring landowner, and make a meaningful attempt to negotiate terms with the neighbouring landowner. What will be a meaningful attempt will depend on the facts of the particular situation, but it will need to be more than just sending an initial letter requesting access.

• Where negotiations fail and agreement is unable to be reached, there are statutory rights in NSW to break any impasse in negotiations, which will also help provide leverage in any negotiations with neighbouring landowners.

Watch out for next edition of The Lot where we’ll explore Victoria’s learnings on neighbouring access rights. Feel free to contact Bronwyn Badcock, Alex Foo or a member of the Maddocks NSW Property Team for more information.