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Property Law News, November 2010

Neighbourhood disputes: Access to Neighbouring Land Act 2000 

Do you need to obtain access over your neighbour's property but you're not sure what your rights are?

The Access to Neighbouring Land Act 2000 commenced on 1 January 2001. It regulates lawful access to private property for practical purposes, and allows for such access without the need for a temporary easement to be applied for.  The Act provides an alternative to the often complicated or more expensive avenues available to parties seeking access to a neighbouring property under the Encroachment of Buildings Act 1922 and s88K of the Conveyancing Act 1919.

Under the Access Act, the Local Court may make either:

  • A Neighbouring Land Access Order; or
  • A Utilities Service Access Order, 
  • where up to 21 day notice has been given to the owner of the adjacent property and to any other person who might be affected by the access.  The Court will make such order only where it is satisfied that: 
  • The access sought is reasonably necessary; and
  • Is for the purposes of carrying out certain prescribed works such as construction and work on utility services such as pipes and drains. 

Section 12 of the Act contains a non-exhaustive list of works that may be permitted to be done on neighbouring property under an access order.  These include:

  1. Building works, including alteration; 
  2. Repairs / maintenance; 
  3. Demolition of buildings or other structures; 
  4. Inspections ahead of planned works; 
  5. Checking pipes and drainage; 
  6. Pruning and maintaining trees and other plants. 

An applicant will be required to show that they have attempted, unsuccessfully, to negotiate access to the neighbouring property with its owner before an access order will be made. The Court may order that certain conditions be fulfilled by the applicant if the order is granted, such as the minimisation of damage to the neighbour and their property, securing any building site or taking out insurance cover.  The order itself may restrict the dates and times that access may be exercised.

If the applicant causes any loss or damage to the neighbour's property, beyond mere ‘inconvenience', the Court will order that the applicant compensate the neighbour.  The costs of an application for an access order are generally payable by the applicant.

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