Easements and Access to Adjoining Land

27 May 2023 in Building and Construction Law | 4 min read | skip to FAQs

This brief article discusses easements and land access to adjoining land. The law provides a legal mechanism to obtain access to a neighbours’ property to facilitate the efficient and effective completion of building projects and the development and optimum use of land.

What is an Easement?

In simple terms, it is the legal right to use another person’s land, usually a neighbour, for a specific purpose, such as locating and accessing utilities or providing essential services. Once granted by the court, it is essentially permanent and is registered on the title of the land.

The Conveyancing Act 1919 (NSW) facilitates access to adjoining land through the creation of easements. Section 88K of the Act empowers the court to impose an easement over land if it is deemed reasonably necessary for the effective use or development of other land that will benefit from the easement. Please see our dedicated article on Section 88K applications.

Pursuant to the Conveyancing Act, an applicant seeking an easement must demonstrate that it is necessary for the optimal use or development of their land. This requirement ensures that the court carefully considers the impact of the easement on both parties involved. If the court finds the easement reasonably necessary and beneficial, it may impose the easement on the land in question, thereby granting the applicant a legal right to access the neighbouring land for the specified purpose. Any order of the Court for an easement will include an order for compensation for an amount the Court considers appropriate.

Positive Easements

A positive easement grants the right to enter another person’s land to allow something to be done on that land.

1. Rights of way
2. Rights to discharge water
3. Rights to occupy a pew in a church
4. Rights to use a kitchen to another’s land to wash and dry clothes
5. Rights to use a toilet on another’s land

Negative Easements

A negative covenant grants rights to prevent something from being done on the land. While these don’t expressly confer a right of entry, they may imply a right of entry when it is reasonably necessary.

1. Right to the flow of air through defined apertures
2. Right to receive light for a building
3. Right to the support of a building
4. Right to receive water through pipes

What is a Neighbouring Land Access Order?

In simple terms, it is the legal right to use another person’s land, usually a neighbour, for the purpose of construction activities. It provides temporary access during the construction process.

Building projects often necessitate access to neighbouring land for construction purposes. In NSW, Section 7 of the Access to Neighbouring Land Act 2000 (NSW) regulates and facilitate such access through neighbouring land access orders. 

The Access to Neighbouring Land Act empowers individuals or entities undertaking work on their own land to seek access to adjoining or adjacent land by applying to the Local Court for a neighbouring land access order. S7 of the Act specifically states, “A person who, for the purpose of carrying out work on land owned by the person, requires access to adjoining or adjacent land may apply to the Local Court for a neighbouring land access order.”  This provision ensures that individuals or organisations have a legal avenue to obtain access to neighbouring land necessary for their construction activities.

By applying for a neighbouring land access order, the applicant can seek permission from the court to temporarily access the neighbouring land for the duration of the construction work. This access is typically granted under certain conditions, such as providing adequate compensation to the owner of the adjoining land or addressing any potential damage, liability for risk and inconvenience caused during the construction process. The Access to Neighbouring Land Act aims to strike a balance between the rights of landowners and the practical needs of those undertaking building projects.

Key Takeaways

The Access to Neighbouring Land Act 2000 (NSW) and Section 88K of the Conveyancing Act 1919 (NSW) provide important legal frameworks for individuals and organisations involved in building projects that require access to adjoining land. These provisions recognise the need for cooperation between landowners and those undertaking construction activities, aiming to strike a balance between individual property rights and the broader community’s development needs.

Why choose BSM Sydney Construction Lawyers?

The building and construction lawyers at BSM Sydney Lawyers are renowned as experts in the building industry. We have worked with large construction projects through to small neighbour access disputes. Our highly experienced lawyers apply their skill and extensive knowledge to every construction matter and dispute. We listen carefully and provide clear and relevant advice. The construction lawyers at BSM Sydney Lawyer are attentive and responsive to every client and pride ourselves on our performance and results. Our senior construction lawyers offer a free 20-minute consultation to discuss your individual case.

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BSM Lawyer Sydney have offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.