In some instances the courts may impose an easement or access order when conflict arises over access to neighbouring land and negotiations between the parties have failed.
For example, if a house is built up against or very close to the neighbouring property, it may be necessary for the owners to enter the neighbouring land to repair, maintain and develop their own property.
The ability for the courts to make these orders is very valuable to land owners as it offers an alternate pathway should their neighbours deny them access to maintain their own property.
How do I obtain easement and access orders?
Where the neighbours are not able to strike up a mutual agreement, the courts may impose an access order under the Access to Neighbouring Land Act 2000 (NSW) or an easement under section 88K of the Conveyancing Act 1919 (NSW).
In 2000, the Access to Neighbouring Land Act (“the Act”) was introduced in New South Wales to resolve disputes between neighbours where negotiations to access neighbouring land have failed.
Neighbouring land access orders and utility service access orders
Under the Access to Neighbouring Land Act 2000, in cases where agreement between parties is not possible, the Local Court can impose a either:
- a Neighbouring Land Access Order; or
- a Utility Service Access Order
A neighbouring land access order allows one party to access to the neighbouring land for carrying out work on their own land. These orders are most common where only temporary access is required.
A utility service order permits a person who uses a utility service (such as water, gas or electricity) that runs through the neighbouring land to enter that land to carry out work on the utility service. For instance, this may be repairing or maintaining plumbing, drainage or electrical work.
When granting an access order, the Local Court must be satisfied that:
- access to the adjoining land is genuinely needed to carry out work on your own land;
- access to the adjoining land is required to carry out work on or about a utility service located on the joining land;
- that the party seeking access has made a “reasonable effort” to reach agreement with every person whose consent is needed to access the property and do the work;
- whether the access would cause unreasonable hardship to a person affected by the order; or
- without access to the neighbouring land the work sought would be more difficult or expensive for the applicant to carry out the work.
The person seeking access must also give at least 21 days’ notice to the owner of the neighbouring land and any other person entitled to use the utility service affected by the order.
The jurisdiction of the Supreme Court in the granting of easements under the Conveyancing Act.
Alternatively, individuals may apply for an easement under section 88K(1) of the Conveyancing Act 1919.
An easement is the right to use the property of another for a specific purpose such as water, electricity or drainage.
In accordance with section 88K of the Act, the courts can impose an easement over the land if they are satisfied that:
- the easement over the land is “reasonably necessary” for the effective use or development of other land that will benefit from the easement;
- the use of the land will not interfere with public interest;
- the owner of the land will not be “burdened” by the easement; and
- all reasonable attempts have been made by the person seeking access for the order to obtain the easement.
Who can apply for an access orders?
The following persons may apply for an Access Order:
- a landowner who requires access to neighbouring land in order to carry out work on their own land;
- a person who is not the owner of the land on which the work is to be carried out, IF the landowner’s consent is obtained. This might include a builder, a developer or other landowner’s consultants; and
- a person who requires access to neighbouring land to carry out work on a utility service which the person is entitled to use, and which is positioned on land that he does not own.
If you require assistance accessing neighbouring land or negotiating with a neighbour about access, please feel free to contact George Vlahakis or Dan Willcockson.