In brief - Courts may impose orders if agreement not reached
If negotiations to access neighbouring land fail, consider the criteria that must be met in order to obtain an easement or access order.
Obtaining easement and access orders
Developers, builders, contractors or landowners may require access to an adjoining property for the purposes of carrying out work on their own land or adjoining land, or carrying out work to a utility service. Where no agreement can be reached between the parties, other avenues are possible including an access order under the Access to Neighbouring Land Act 2000, an easement under section 88K of the Conveyancing Act 1919 (NSW), or an easement under section 40 of the Land and Environment Court Act 1979 (NSW).
Access onto adjoining property is commonly sought for construction purposes including installing rock anchors beneath the adjoining property, erecting scaffolding or hoarding on the boundary of the sites, a crane swing over the airspace of the adjoining property, drainage, electricity and roads.
Neighbouring land access order or utility services order preferred for temporary access
Under the Access to Neighbouring Land Act, the Local Court may order a "neighbouring land access order" or a "utility service access order" or both. This is generally the preferred approach where access is sought on a temporary basis, as it is relatively time and cost effective. In granting orders, the Local Court must be satisfied that:
- access to the adjoining land is required for the purpose of carrying out work on your land (this applies when a neighbouring land access order is sought, as outlined below), or
- access to the adjoining land is required for the purpose of carrying out work on or in connection with the utility service located on the adjoining land (this applies when a utility service access order is sought, as outlined below), and
- a reasonable effort to reach agreement with every person whose consent to access is required has been made, and
- there has been at least 21 days' notice of the lodging of the application and the terms of any order sought to the owner of the adjoining land and to any person entitled to use any utility service on which work is proposed.
Unlike a utility services order, a neighbouring land access order only permits access to adjoining property for the purposes of carrying out work on your land. A utility service access order is broader in application in the sense that if you are entitled to use a utility service (or a proposed utility service), and you need access to the adjoining land which the utility service runs through for carrying out work in connection with the utility service, then you may apply for an utility service access order.
The procedure required under the Access to Neighbouring Land Act is not available in all circumstances. For example, due to the nature of rock anchors being required to be installed on adjoining property, an access to neighbouring land order is not available and an easement may be required.
Supreme Court considerations regarding granting an easement under section 88K
You may apply to the Supreme Court for an order imposing an easement over the adjoining land, under section 88K(1) of the Conveyancing Act. However, you will need evidence to satisfy the court of:
- Reasonable necessity - the easement is reasonably necessary for the effective use or development of the land. Importantly, "reasonably necessary" does not mean "absolutely necessary". The easement must be the preferred approach, when compared to the use or development without the easement.
- Public interest - The use of the land will not be inconsistent with the public interest. That is, the grant of the easement will not prevent or impact adversely upon any activity of the public.
- Compensation - The owner of the adjoining land and each other person having a registered interest in the land (such as a tenant or mortgagee) can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement.
- Negotiation - all reasonable attempts have been made to obtain the easement but have been unsuccessful.
The power of the court to grant an easement is discretionary, meaning that the court itself will need to be convinced that it is appropriate to grant the easement. In doing so, the court has generally approached its decisions by observing the burdening nature of section 88K, that is, the provision interferes with existing property rights of a landowner.
Land and Environment Court preferred when seeking easement order
Like section 88K applications, an application for an easement can be made under section 40 of the Land and Environment Court Act which enables the Land and Environment Court to exercise the Supreme Court's jurisdiction under section 88K of the Conveyancing Act.
However, section 40 only applies to development applications or modification applications which have been determined or are pending before the Land and Environment Court. The Land and Environment Court also has power to modify any associated conditions of a development consent granted by it, in addition to granting an easement.
As a specialised valuation and development jurisdiction, the Land and Environment Court generally provides a quicker and easier approach to obtaining an easement, and is generally the preferred option if you are seeking an easement for the purposes of development.
The Civil Procedure Act 2005 (NSW) enables the transfer of proceedings between the Supreme Court and the Land and Environment Court. In determining whether proceedings are to be transferred to, for example, the Land and Environment Court, the Supreme Court must be satisfied that it is more appropriate for the proceedings to be heard in the Land and Environment Court. A transfer may be done by way of an application by any party to the proceedings, or be imposed by an order of the court.
However, prior to applying for a transfer, consideration must be given to cost and time implications while having regard to the proposed timeline of your development. In the event that an urgent easement is sought, it may be also possible to apply for expedition.
Costs and timing in easement or access order applications
Court applications may be more costly than a negotiated agreement. The general costs rule for obtaining an easement or an access order is that the costs of an application are generally payable by the person seeking the easement or access.
Applying for an easement can take many months of negotiation prior to commencing proceedings, in addition to the time required to prepare for and have the matter heard by the court. Expert costs are also likely to be incurred.
We have facilitated many agreements between parties where access to neighbouring land is required and an agreement can be reached. In the matters that have proceeded to court, we have found the Land and Environment Court to be the most effective and timely jurisdiction where that option is available.
Consider criteria for easement and access orders, and engaging a valuer
When you first realise that you may need access to neighbouring land, you should consider your options in the event negotiations fail so that your negotiations are based on the criteria you are required to meet in order to obtain an easement or access order. Engaging a valuer early on in negotiations may be useful if the matter proceeds to court and that evidence becomes important to any offers made and to the reasonableness of those offers.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.