On 9 October 2014, the Land and Environment Court handed down judgment in Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney [2014] NSWLEC 163 to grant a neighbouring land access order in favour of Watpac enabling it to use community land for construction access to an adjoining commercial development site.

This decision is significant in clarifying the scope of application of a pragmatic remedy that is available to landowners, developers and contractors to obtain access to a neighbour’s property. It makes clear that such orders are capable of being made with respect to community land, notwithstanding the existence of restrictive plans of management relating to that land.

The Access to Neighbouring Land Act 2000 (ANL Act) allows a landowner, or another person with the landowner’s consent, to obtain court orders authorising a temporary right of access to enter a neighbour's property for the purpose of carrying out work either on the landowner's own land or a utility service on the neighbour's land.

Watpac, the Applicant in this case, is a contractor carrying out construction works on a commercial development site in Sydney City. The development was underway and demolition of a former building was progressing when the Council realised it lacked the power to continue with an agreement it had made to authorise use of adjoining Council owned community land for construction access purposes.

In order to continue the construction works, Watpac required access to the adjoining land to:

  • erect scaffolding and hoarding for the safety of workers and pedestrians; and
  • allow construction trucks to deliver materials to and remove waste from the site.

During the proceedings, the Council opposed the making of an access order, arguing that the Court did not have power to grant access under the ANL Act because there was no properly adopted plan of management for the community land, with the consequence that the nature and use of the land could not be changed.

Justice Biscoe held that the plan of management had been properly adopted and did apply to the community land, despite the Council’s misdescription of the land as Crown land and consequential failure to assign a particular category of community land. Accordingly, although the Council could not itself permit the land to be used for construction access purposes, the Court did have power to make an access order under the ANL Act.

The proceedings were commenced in August and were expeditiously dealt with by the Court over the course of approximately 2 months.

This decision is a reminder that landowners, developers and contractors do have capacity to access a neighbour’s land by way of a relatively fast and effective solution in the event of a land access dispute. It also demonstrates that, similar to court granted easements under s 88K of the Conveyancing Act 1919, the solution can apply even in cases where the adjoining land is community land.