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Where am I now? Lawlink > Law Reform Commission > Publications > 5. Recommendations and Proposals for Reform
Report 71 (1994) - Right of Access to Neighbouring Land
5. Recommendations and Proposals for Reform
CONCLUSIONS
5.1 As discussed in this Report, the absence of a general right of access by private persons to an adjoining property gives rise to some potentially serious problems. The Commission acknowledges the premise that the privacy and security of property owners should not be unreasonably eroded. However, in some cases the law should intervene and assist a person seeking to gain access to a neighbouring property, where that neighbour’s consent is not forthcoming. Such a step should be exercised with caution, because in the Commission’s view the grant of a right of access should not be automatic. Rather, it is something to be determined in each case, giving careful consideration to balance the interests of the affected landowners.
5.2 Following from DP 22, this Report has focused on the practical difficulties that arise between landowners who desire access to property neighbouring their own. In the absence of an easement creating a right of access, or a specific agreement between the neighbours allowing access, the law protects a landowner from incursions onto his or her property (regardless of the necessity of such entry), through the law of trespass. Although some may view any change in this position as simply legitimising trespass, the Commission believes the law should provide access rights in appropriate circumstances.
5.3 While the precise need for and nature of the access will differ in each case, as will the effect on and level of interference to the neighbouring property, the issue is ultimately one of access. The reforms discussed in this Report highlight the different approaches that various jurisdictions have taken. Although the type of right granted may range from a licence to an easement, and the conditions precedent to the granting of the right may not be identical, all the reforms or proposed reforms considered in this Report are designed for the same purpose - to allow one landowner to use a neighbouring landowner’s land for a purpose that will benefit the first landowner.
5.4 This Report recommends that legislation similar to the Tasmanian Access to Neighbouring Land Act 1992 be enacted in New South Wales and a draft Bill modelled on the Tasmanian Act is annexed to this Report. The legislation provides the court with sufficient discretion to address the rights of competing landowners. Although the Bill contains guidelines in relation to the type of work for which access can be sought, it does not limit the type of work for which access can be sought, so different and varying situations can be accommodated. Generally speaking, the Commission sees no need to limit the type of work for which access is sought, if the court subjects such access to reasonable and appropriate conditions and safeguards.
5.5 In those cases where easements or other rights of access do not exist, problems with access may be minimised or may not even occur, if neighbouring landowners are able to reach agreement about the terms of access between themselves. The necessity for legislative intervention arises where such agreement is not possible. The Access to Neighbouring Land Bill offers court redress to a person who fails to obtain the neighbouring landowner's consent, but only after personal attempts to reach an arrangement have been made.
RECOMMENDATION 1
In the absence of an easement, agreement for an easement, or any other agreement providing access over adjoining or adjacent land, a landowner should have a right to apply to a court for access to that land. Land should be defined to include air space and subsoil.
A right of access to another person’s land should be available in two specific instances. The first is where a person wishes to carry out work on the person’s own land, and the second is for the purpose of carrying out work on a utility service on neighbouring land where the applicant being entitled to the use of that service. An access order should not only permit the owner of the land, or the user of the utility service to enter the land which is the subject of the access order, but also the employees and agents of the applicant who are required to carry out the work specified in the order.
An access order should be single and specific. It should not burden the property indefinitely, but be of limited duration, providing a reasonable period of time for carrying out the work specified in the access order. Because of the temporary nature of the order, it would not be necessary to register the order on the title of the affected property. However, if the property changed ownership during the time in which the order was in effect, the order would bind the successor in title.
Neighbouring land is defined for the purposes of this Report as land that adjoins or is adjacent to an applicant’s land. It includes the air space and subsoil of that adjoining property. Where access is sought over a utility service that traverses through land other than the applicant’s, neighbouring land is defined as including any land which accommodates that utility service.
RECOMMENDATION 2
The court should have a discretionary power to make an order for access. In exercising its discretion the court should take into account:
a) the type of work for which access is sought;
b) whether the work cannot be carried out, or would be substantially more difficult or expensive to carry out, without entry onto the adjoining land; and
c) whether the entry would cause unreasonable hardship to any person affected by the access order.
The Commission agrees with the reasons put forward by the English and Tasmanian Law Reform Commissions that a discretionary scheme is preferable to a scheme allowing an automatic right of access in certain circumstances. The Commission believes that whilst general guidelines for granting access can be established, it would be impossible for legislation to define every conceivable circumstance for which access may be required, whereas a discretionary scheme has the flexibility of addressing each case on its merits.
In the Commission’s view, an alternative means of access should not automatically exclude the right to access under consideration in this Report. If an alternative means does exist, the court should take into consideration the convenience and expense involved in taking it. Obviously an order allowing access will have some effect on the landowner over whose land access is granted. In exercising its discretion, the court needs to balance the competing interests of landowners, and if one of them is to suffer unreasonable or unnecessary hardship as a result of an order for access, then the court must consider whether such an order should be made.
Whether access is required to facilitate work on a person’s own property, or to facilitate work on a utility service on neighbouring property, the Commission does not believe the type of work for which the access is sought should be limited by legislation. In both cases, guidelines should exist to assist the court, but not to limit the nature of the work.
RECOMMENDATION 4
In making an order for access, the court must be satisfied that:
a) the applicant has made a reasonable effort to reach agreement with the person/s affected by the order regarding the work to be carried out; and
b) the person seeking access must first have served on the person whose agreement to the entry is required, a notice describing the work intended to be performed.
A central theme to the Commission’s recommendations in this Report is the importance of neighbours taking steps to resolve any dispute over access between themselves, prior to making application to the court for access. Such a step not only encourages neighbours to build a better relationship, but it also prevents the court from being deluged with a flood of applications for court ordered access.
“Reasonable effort to reach agreement” does not mean that a third party has to be involved in any mediation of the problem prior to making application to the court. It is entirely a matter for the parties themselves. The Commission’s emphasis is that some attempt to resolve the matter has been made.
A further prerequisite to making a court application for access is that the applicant has to serve a notice of his or her intention to make application to the court for access at least 21 days before making such application. This puts the neighbour on notice and could stimulate an agreement without having to involve the court.
RECOMMENDATION 5
The court must have the power to impose such terms and conditions on an access order as appear reasonably necessary in the circumstances. Such terms and conditions should include but are not limited to the following:
a) conditions imposed to avoid and/or minimise any loss, damage or injury caused by reason of the order authorising access;
b) conditions imposed to avoid and/or minimise any inconvenience and loss of privacy;
c) any necessary precautions and safeguards, including the taking out of any appropriate public liability insurance.
The order must also specify the land to which it permits access, the work and the times during which work is to be carried out, and the date of the commencement and cessation of the access order.
Each application for access will differ. If the neighbours have had to approach the court to determine the issue then they are unlikely to be able to resolve the conditions of the access themselves. As a safeguard to the landowner over whose land access is sought, the court needs to be able to specify the conditions of the access, so as not to inconvenience that landowner any more than necessary. At the same time the court has to be reasonable in the conditions it imposes on the applicant.
RECOMMENDATION 6
A court may order that compensation be paid for any loss, damage or injury, including damage to personal property, financial loss and personal injury, to the owner or person in occupation of the subject land.
The landowner seeking access has to be responsible for his or her actions on the neighbouring property. The applicant must bear in mind that he or she is only on the neighbour’s property at the discretion of the court, and must take care not to harm the neighbour’s property or person. The person benefitting from the access order should be liable for any loss or damage that ensues from that order. Consequently, it may be appropriate for public liability insurance to be taken out by the applicant. Compensation for inconvenience is not recommended by the Commission. Although a degree of inconvenience and loss of privacy may follow as a result of an access order, on balance, the Commission believes that generally this should not prevent an access order from being made, nor should it be a ground for compensation. Recommendation 2 of this Report (and clause 13(b) of the draft Bill) provide that if the access order would cause unreasonable hardship to a person affected by the order, then the order should not be made. Issues of inconvenience and loss of privacy would undoubtedly be taken into account by the court in determining whether the order should be made.
In order to prevent an applicant remaining liable for compensation indefinitely, the Commission suggests that an action for compensation may not be brought three years or more after the last date on which access occurred under the access order.
Given that the circumstances of each application will be different, it is not appropriate that the applicant automatically assume responsibility for the costs of the application. In determining the issue of costs, the court should take into account the attempts to reach agreement between the parties prior to coming to court, and whether the neighbour’s refusal to grant access has been unreasonable in the circumstances. If for instance, the access is only for a very short period of time and will cause no real inconvenience, but the neighbour has refused to allow access except for payment of large sums of money, then consideration should be given to apportioning the costs of the application.
RECOMMENDATION 8
Persons entitled to apply for a neighbouring land access order should include the owner of the land on which work is to carried out, and a person who has the consent of that owner. In the case of a utility service access order, the class of applicant should include a person who is entitled to the use of the service, either solely or jointly, but who is not the owner of the whole or part of the land on which that service is located.
In the case of a neighbouring land access order, the class of applicant should be wide enough to include a person who is not the owner of the land, for example, a tenant. Although in such a case the consent of the owner should be obtained, provision should be made for situations where that consent is unobtainable. In the case of a utility service access order, an application for access should be able to be made by the user of the service, in the capacity of sole or joint user, where that user is not the owner of the whole or part of the land on which the service is located.
Because the owner will not be the occupier in every case the applicant should seek to join the person in occupation of the subject property as well. An applicant should exercise caution and include anyone likely to be affected by the access order. In those cases where the relevant parties cannot be located to be served with an application for an order for access, the applicant should be able to apply for substituted service.
RECOMMENDATION 10
The Local Court is the most appropriate jurisdiction to hear applications for access, at first instance. In cases where the compensation or damages to be awarded is beyond the jurisdiction of the Local Court, the matter must be transferred to the Land and Environment Court. The Local Court may also refer questions of law to the Land and Environment Court. An appeal from a decision of the Local Court on a question of law only, may be made to the Land and Environment Court, within 30 days after the decision to grant, or not to grant an access order has been made.
Although most real property issues are currently dealt with by the Supreme Court, the Commission believes that the Local Court is the more appropriate jurisdiction to deal routinely with the type of order proposed in this Report. There is no reason why a magistrate cannot deal with these applications provided comprehensive legislative guidelines exist. This recommendation is made as part of the Commission’s general proposal that issues affecting “neighbours” should be able to be resolved in more accessible and less expensive forums. A magistrate should have the discretion to refer matters to higher courts in appropriate circumstances, for example, where the possible amount of compensation involved would exceed the jurisdiction of the Local Court. Given that the Land and Environment Court constantly deals with building and development applications, planning, land valuations and environmental matters, the Commission believes that this jurisdiction is the most suitable to refer questions of law, and matters on appeal arising from questions of law. The Commission does not consider this recommendation as burdensome on the Land and Environment Court, it makes sensible use of an existing jurisdiction to determine access disputes without having to create a unique tribunal to deal with such matters.
The Commission believes that for the purposes of the reforms recommended in this Report, the Crown should generally be treated in the same manner as any other person, and be bound by the requirements of any new or amending legislation. There may, of course, be some exception to this rule, for instance, where the Crown already has a statutory right of access.
RECOMMENDATION 12
Joint users of a utility service should contribute in equal proportions to the repair and maintenance of such services, except in cases where the need for repair or maintenance is caused by the deliberate or wilful act of one of the users. In the latter case, total liability rests with the user at fault without any prejudice to the right to claim damages.
Each user of a utility service has the use and enjoyment of that service, and as a consequence, the Commission believes that the maintenance and repair of that service is the responsibility of all users. Although this position is not currently reflected at law, the Commission recommends that the position can be simply rectified by amendment to the Plumbing and Drainage Regulation (September 1989). The Regulation should state that costs are to be apportioned for the repair and maintenance of the service, rather than leaving one user to pay and then seek whatever contribution he or she can from the other users of the service. An exception to joint liability should exist where the repair or maintenance is required as a result of a deliberate act, and, in that case the person responsible should be solely liable.
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