Access to Adjoining Land and Easements

27 May 2023 in Building and Construction Law, Property Dispute Lawyers

Access to Adjoining Land and Easements

Building projects often necessitate access to neighbouring land for construction purposes or the placement of utilities. In NSW, the Access to Neighbouring Land Act 2000 (NSW) and the Conveyancing Act 1919 (NSW) regulate and facilitate such access through neighbouring land access orders and easements, respectively. 

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. Section 7 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.

In addition to the Access to Neighbouring Land Act, the Conveyancing Act 1919 (NSW) also plays a significant role in facilitating 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. An easement is a legal right to use another person’s land for a specific purpose, such as locating and accessing utilities or providing essential services.

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.

The Access to Neighbouring Land Act 2000 (NSW) and 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.

By providing a legal mechanism to obtain neighbouring land access orders and imposing easements, these laws aim to facilitate the efficient and effective completion of building projects and the development and optimum use of land.