Obtaining access to adjoining land is sometimes a critical part of the building process. Given apartment buildings are commonly located in areas where development activity is more common, owners corporations should be aware of their rights to refuse requests for access to common property by builders. Set out below are the relevant provisions for some key jurisdictions.
New South Wales
In NSW, a party seeking to obtain access to neighbouring land can either:
1. obtain an order for access under the Access to Neighboring Land Act 2000 ( ANL Act ); or
2. apply to the Supreme Court of NSW under the Conveyancing Act 1919 for an order imposing an easement over land if it is reasonably necessary for the effective use or development of the applicant’s land.
Of the two processes, the ANL Act provides a simpler and cheaper alternative by enabling an access order to be made by a Local Court. The order provides a landowner with the right to enter land, remain on land and/or store materials on land. However, this interest is a temporary and unregisterable right of access.
An easement under the Conveyancing Act is defined as a right held by one property owner to make use of the land of another for a limited purpose (eg a right of passage). The order creates a permanent or temporary registerable easement and its scope is defined in the easement.
Similarly, in Queensland a landowner can apply to the Supreme Court under the Property Law Act for an easement in similar terms to that provided under the Conveyancing Act in NSW. However, Queensland does not have any equivalent of the ANL Act.
In late 2010, the Victorian Law Reform Commission recommended the adoption of legislation similar to that detailed above for NSW. Those recommendations have not yet translated into legislation.
Australian Capital Territory
The ACT currently does not have any equivalent provisions to those detailed above for NSW.
Posted by Chris Kerin