Neighbours and adjoining properties

No access and damages for delay

If access to or through adjoining land is required, the contract should clearly deal with responsibility for obtaining that access and any conditions of access. Where access to or through an adjoining property is required in order to get to the site, the principal will need to arrange for that access unless the contract places that obligation on the contractor.

On the other hand, if the contractor requires access to an adjoining property for its own convenience, or if the access provided by the principal is not sufficient to perform the works, then that will be a contractor’s risk, unless the contract provides otherwise.

If a neighbour denies access and causes delay to the works, damages for the delay may be payable by the principal depending on the provisions of the contract and who is responsible for obtaining access.

Injunctions

Adjoining landowners with property endangered by building activities can obtain injunctions to protect their property from encroachment. For example, see Bendal Pty Limited v Mirvac Project Pty Limited (1991) 23 NSWLR 464 and Economy Shipping Pty Limited v ADC Building Pty Limited [1969] 2 NSWR 97.

There does not need to have been actual damage to a neighbour’s property to obtain an injunction. A neighbour only needs to show that the manner and extent of the interference with their land, for example, their airspace, interferes with their ordinary use of their property. See, for example, Woollerton and Wilson Limited v Richard Costain Limited [1970] 1 WLR 411 and Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) VSCA 311.

Obtaining access to neighbouring land

If access to neighbouring land is required to undertake construction, but the neighbour refuses access, then legislation exists with the aim of assisting a party to gain access for works.

In NSW, a party can apply for a land access order to carry out construction works which require access on neighbouring land (Access to Neighbouring Land Act 2000 (NSW)).  The constructing party needs to attempt to gain their neighbour’s consent before seeking the order.  The types of works a land access order can be made for in NSW includes construction work, repair, maintenance and improvements, for carrying out inspections or making plans in connection with such work.  Similar legislation which enables parties to gain access to adjoining land exists in Queensland (Property Law Act 1974 (Qld)), Tasmania (Access to Neighbouring Land Act 1992 (Tas)), Western Australia (Building Act 2011 (WA)) and the Northern Territory (Law of Property Act 2000 (NT)).

In Victoria, a party is allowed access to neighbouring land for the purpose of protection work only, not building work as in NSW (Building Act 1993 (Vic)).  Protection work means certain kinds of work to protect the adjoining property from any damage from the building work.  Whether or not protection work is required is up to the determination of the relevant building surveyor (Tsaganas v Building Practitioners Board (Review and Regulations) [2016] VCAT 1732).  The erection of an overhead crane to be used for building works is not an example of protection works and is an actionable trespass (Janney & Ors v Steller Works Pty Ltd [2017] VSC 363).

In South Australia, the Development Act 1993 (SA) allows a party to gain access to adjoining land in limited circumstances, such as for work that affects the stability of adjoining land or boundary or for the purposes of constructing, repairing or performing other necessary work in relation to a party wall between properties. In these circumstances, consent is required from the neighbouring owner. The Development Act 1993 will be repealed when the Planning, Development and Infrastructure Act 2016 (SA) commences. South Australia will have the same approach to NSW to accessing neighbouring land.  This will provide for broader access rights to adjoining land for example in order to inspect for the purposes of a proposed development and any building work with respect to the party’s property.  Similar to NSW, consent will need to be sought from the adjoining owner before a party may apply to the court for authorisation.