Key Points:

Choosing between an order for an easement or an access order will depend on multiple factors.

Development in highly populated areas is on the rise and with that comes the increasing need to access adjoining land. NSW legislation can assist developers in obtaining access to neighbouring land.

Getting access

When your development requires access to neighbouring land and the neighbour agrees to give you access, you might enter into an access licence (for short-term access) or an easement (for long-term access). Negotiations could be lengthy and sometimes you will need to pay compensation for any loss or disadvantage suffered.

But what do you do if negotiations fail? You can turn to the Conveyancing Act 1919 (NSW), the Land and Environment Court Act 1979 (NSW) (LECA) or the Access to Neighbouring Land Act 2000 (NSW).

Easements and access orders under statute

The key difference between easements and access orders is that easements are appropriate where long-term, ongoing, access is required, like a right of way. Access orders are more suitable when access is only required for a finite period.

The requirement to access adjoining land in large scale developments can arise in various contexts, for instance, to carry out construction works, including for swinging cranes or rock anchors.

Section 88K of the Conveyancing Act and section 40 of the LECA provide a means of obtaining access through easements. Section 40 is limited to circumstances where:

  • the Court has determined to grant or modify a development consent on an appeal; or
  • where an appeal is pending before the Court in relation to the granting or modification of a development consent.

Easements attach to both the burdened and benefited land and are registered on both parcels' title binding successors in title. Access orders operate in a similar way to a licence and grant temporary access rights.

The Neighbouring Land Act permits the issue of two types of access orders by the Local Court:

  • neighbouring land access order, which allows you to enter neighbouring land to carry out work on your own land; or
  • utility service access order, which grants users of utility services access to carry out work on that service.

Access orders have been utilised to carry out construction works, repair, maintenance, improvement, decoration and demolition.

Obtaining an easement under section 88K/section 40

To obtain an easement you must satisfy specified statutory criteria under the relevant legislation.

Reasonable necessity

Section 88K and section 40 require the easement to be “reasonably necessary” for the effective use or development of the benefited land. The Court will consider:

  • the capacity of the developer’s land for use or development;
  • the nature of the proposed development;
  • how the proposed development will be effected; and
  • the effect of the easement, if granted, on the servient tenement.

Public interest

Under section 88K(2) and section 40(4), the Court's powers to create easements can only be exercised if it is satisfied that the use of the benefitted land will not be inconsistent with public interest.

Compensation

Under section 88K(2), the Court must be satisfied that the burdened land owner can be adequately compensated for any loss or disadvantage that will arise from imposing the easement. Section 40 extends compensation to other persons having an interest in the land.

Obtaining an access order under the Neighbouring Land Act

To obtain an access order you must also meet statutory criteria, but they are less onerous.

Carrying out work and unreasonable hardship

Section 15 only requires the Court to consider:

  • whether the work cannot be carried out or would be substantially more difficult or expensive without access; and
  • whether the access would cause unreasonable hardship.

No public interest test or upfront compensation

There is no express public interest test under the Neighbouring Land Act and no compensation needs to be paid in order to obtain the access order.

Compensation

The Neighbouring Land Act does, however, contain safeguards for properties affected by access orders.

Under section 21 you can be required to:

  • restore the land to the same condition it was in before the access; and
  • indemnify your neighbour for any damage to the land or personal property.

The Court can require you to obtain insurance to cover works done pursuant to the access order.

Although, the Neighbouring Land Act does not require the payment of compensation up front, you should thoroughly document the condition of the site before access because under section 26, the Court can order you to pay compensation to a neighbour for losses arising from the access within three years after the last date of access.. This includes losses for damage to personal property, financial loss and personal injury but not for loss of privacy or inconvenience suffered by the neighbour solely as a result of granting the access order.

If you are the person seeking the right of access, comprehensive condition reports ought to be undertaken at the beginning and end of the work to ensure that you are not held responsible for damage not caused by you.

Matters to consider – advantages and disadvantages

Easements are more costly to obtain than access orders as you must apply to the Supreme Court or the Land and Environment Court, instead of the Local Court. On the other hand, access orders can become expensive if a claim for compensation over $40,000 is made and your matter is transferred to the Land and Environment Court.

If you require long-term access, you are likely to need an easement, as an easement will provide you with greater security where the adjoining land owner changes over time.

Access orders are more flexible as the Local Court can prescribe the terms of access and no compensation is payable up front but they are only appropriate for access for a specific period of time which does not need to run with the land.

Ultimately, deciding whether to pursue an order for an easement or an access order will depend on the type of access you require, how long you will need access, the value of that access to you and the value of the work to be undertaken. Both have advantages and disadvantages that you will need to weigh up.