Access to Neighbouring Land Act 1992

Access order is the central concept: an order made by the court under section 5 authorising entry onto land (called the “subject land”) that is adjoining or adjacent to the land on which the applicant wishes to carry out work. The order must specify the work, the dates of entry, and particulars of the subject land (section 6(1)). The court’s power to impose terms and conditions is broad, covering precautions, insurance, compensation (except for pure privacy or inconvenience loss), and security.

Subject land is defined in section 3 as “land in respect of which entry is sought under this Act”. It is the land the applicant wants to enter. The Act does not require that the subject land be owned by a particular person; the definition is neutral. The applicant must be seeking entry for the purpose of carrying out work on “other land” - that is, the applicant’s own land (section 5(1)(a)). That other land must be adjoining or adjacent to the subject land (section 5(1)(b)).

Owner is defined in section 3 to include occupier. This extends the obligation to permit entry and the right to notice and compensation to tenants and other occupiers, not just registered proprietors. The Act does not require the applicant to determine who has legal title; an occupier can be the owner for the purposes of the Act.

Work is defined expansively in section 5(3). It includes not only repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures, but also inspection to ascertain whether such work is required, making plans, ascertaining the course of drains, sewers, pipes or cables and renewing, repairing or clearing them, ascertaining whether any hedge, tree or shrub is dangerous, dead, diseased, damaged or insecurely rooted, replacing, removing, felling, cutting back or treating any hedge, tree or shrub, clearing or filling in ditches, and any work necessary or incidental to the above. Despite this breadth, the court must be satisfied that the work is “reasonably necessary for the preservation of the land” (section 5(2)(a)). That qualifier narrows the scope considerably. The work must serve preservation of the applicant’s land, not mere convenience, aesthetic improvement, or value enhancement unrelated to preservation.

Unreasonable hardship is the overriding ground for refusal. Even if the applicant proves the work is necessary for preservation and cannot practicably be done without entry, the court must refuse if satisfied that entry would cause unreasonable hardship to any person affected by the order. The term is not defined. The court has discretion to weigh the applicant’s need against the burden on the neighbour.

Substantially more difficult or expensive is the alternative test in section 5(2)(b). The applicant need not show impossibility, only that without entry the work would be substantially more difficult or expensive. This sets a relatively low threshold compared to a necessity test, but the court will still assess what “substantially” means in the circumstances.

Preservation is not defined, but the examples in section 5(3) (repair, maintenance, renewal, clearing ditches, treating dangerous trees) suggest a focus on preventing deterioration or addressing hazards. Purely cosmetic work is unlikely to satisfy the test.

The Act directly affects landowners and occupiers in Tasmania, primarily residential neighbours but also commercial and rural landowners. The applicant must own or occupy the land that needs preservation work. The respondent is the owner (including occupier) of the subject land from whom consent is required. Because the Act binds the Crown (section 4), government owned land is not exempt from access orders. This includes land held by state departments, instrumentalities, and local councils. The Act affects tenants especially because “owner” includes occupier. A tenant of the subject land may be the person whose agreement is required and who must permit entry. Conversely, a tenant of the applicant’s land may need to apply under the Act to access neighbouring land. The Act also affects persons who have entered into agreements that purport to restrict a party’s ability to apply for an access order. Section 12(2) renders such agreements void. This overrides private contractual arrangements. For example, a lease or licence that prohibits the tenant from seeking court ordered access to a neighbour’s land would be unenforceable to that extent. The Act does not bind persons who are not parties to the proceedings (section 12(1)). This means that an access order cannot directly authorise entry onto land owned by a person who was not joined as a party. The applicant would need to bring proceedings against the correct owner. The courts affected are magistrates and the Magistrates Court, which have jurisdiction to hear applications, impose terms, enforce orders, and award damages. The Supreme Court may become involved if proceedings are transferred because an important question of law arises (section 11). The Act also permits a limited category of professionals to be affected: servants, agents and other persons authorised by the applicant are entitled to enter the subject land if reasonably necessary for the work (section 7(1)(c)). This includes tradespeople, contractors, and consultants. They must comply with the order’s terms and conditions. The Act does not require them to be individually named in the order, but the order may specify limits on numbers.

Applicant’s rights: the principal right is to enter the subject land in accordance with the access order (section 7(1)(a)), to bring onto, leave on and remove from the land such materials, plant and equipment as are reasonably necessary (section 7(1)(b)), and to leave on and remove waste (section 7(1)(c)). The applicant also has the right to have servants, agents and others enter the land for the work (section 7(1), final clause).

Applicant’s duties: the applicant must make good the subject land so far as reasonably practicable before the date specified in the order (section 7(2)(a)). The applicant must indemnify the owner of the subject land against damage to the land or personal property resulting from entry authorised by the order (section 7(2)(b)). The applicant must comply with all terms and conditions imposed by the court under section 6(2), such as taking out insurance, working only on specified days and hours, and taking specified precautions. The applicant must also pay any compensation ordered under section 6(2)(g) for loss, damage or injury, and reimburse any expenses reasonably incurred by the owner that are not recoverable as costs (section 6(4)(a)). The applicant may be required to give security for amounts that might become payable (section 6(4)(b)). Failure to comply with any requirement of the access order or of section 7 is an offence (section 9) and may result in an order for damages (section 8).

Owner of the subject land’s rights: the owner (including occupier) has the right to compensation for loss, damage or injury, including damage to personal property, financial loss and personal injury, as ordered by the court (section 6(2)(g)). The owner is also entitled to have the applicant give security for potential amounts (section 6(4)(b)). The owner may apply to the court for variation or discharge of the order (section 10(1)). The owner is not entitled to compensation for loss of privacy or for inconvenience suffered solely as a result of the entry authorised by the order or solely by reason of the making of the order (section 6(3)). This is a significant limit: the court cannot compensate for annoyance or loss of seclusion per se.

Owner’s duties: the owner must permit the applicant to take any action specified in the access order (section 7(2), final clause). This includes allowing entry, the bringing of materials, etc. The owner must not obstruct or hinder the work, subject to terms and conditions. Failure to permit entry as ordered could expose the owner to an order for damages under section 8.

Court’s powers: the court may impose terms and conditions under section 6(2), order compensation, require reimbursement of expenses, require security, and vary or discharge the order under section 10. The court may also transfer proceedings to the Supreme Court under section 11(1). The court may enforce compliance by ordering damages under section 8, and may refer offending conduct for summary conviction under section 9.

The Act creates two main enforcement mechanisms: criminal and civil. Section 9 states that a person who fails to comply with a requirement of an access order that is applicable to them is guilty of an offence and, in addition to any other remedy, is liable on summary conviction to a fine not exceeding 5 penalty units. A penalty unit in Tasmania is currently (as of 2025) indexed, but the Act does not fix the dollar amount; the fine is at the statutory maximum of 5 units. The offence applies to both the applicant (for failing to make good, failing to indemnify, breaching conditions) and the owner (for failing to permit entry). The phrase “in addition to any other remedy” indicates that the criminal penalty does not preclude civil damages. Section 8(1) empowers the court to make an order for payment of damages by a party who fails to comply with a requirement of an access order or of section 7. This is a civil remedy available in the same proceedings or separately. The court does not need to prove mens rea beyond the failure to comply. Enforcement of a damages order is via the procedure under section 92A of the Justices Act 1959 (section 8(2)). That section provides for enforcement of fines and orders in the Magistrates Court. The Act does not specify a limitation period for bringing a complaint for the offence, but summary proceedings would generally be subject to the time limits in the Justices Act 1959. The court may also use its powers under section 10 to vary or discharge an order if non compliance occurs, particularly if the applicant has failed to comply with conditions. For example, if the applicant causes damage and does not make good, the owner may apply to vary the order to require additional security or to suspend access. The Act does not provide for injunctive relief to stop work, but the court’s power to vary or discharge could effectively suspend the order. Additionally, the general law of trespass would remain available if a person enters land outside the scope of the access order. The Act does not oust common law remedies for unauthorised entry. The presence of criminal liability means that intentional obstruction by the owner could result in a fine, but the Act does not create a power of arrest or entry by police. Enforcement relies on court orders.

The Act expressly references two other Tasmanian statutes. Section 8(2) provides that orders for damages made under the Act may be enforced in the manner provided by section 92A of the Justices Act 1959. That provision sets out the enforcement regime for monetary orders in the Magistrates Court. The Act does not create its own enforcement machinery for damages; it piggybacks on the Justices Act. Section 13(1) allows rules to be made under the Supreme Court Civil Procedure Act 1932 for proceedings transferred to or from the Supreme Court under section 11. That ensures procedural consistency for higher court involvement. Section 15 originally directed that the Act be administered by the Minister for Justice until an order under section 4 of the Administrative Arrangements Act 1990 is made. That provision is transitional and now likely spent; current administrative responsibility is determined by the Administrative Arrangements Act. Section 16 amends the Magistrates Court (Small Claims Division) Act 1989 to incorporate changes; that is a consequential amendment not affecting the substantive operation of the Access to Neighbouring Land Act. The Act also interacts with the common law of trespass. An access order provides a statutory defence to an action for trespass, provided the applicant acts within the scope of the order. Entry outside the order’s terms (for example, entering on a day not authorised, or bringing excessive materials) would not be protected, and the owner could sue for trespass. The Act does not affect any easement or other proprietary right that already authorises access. If the applicant already holds a right of way or a right to enter under a covenant, the statutory procedure is unnecessary. However, section 12(2) voids any agreement that would prevent or restrict a person from applying for an access order. This overrides freedom of contract to the extent that a contract purports to exclude the statutory right. It applies to agreements made before or after commencement. This is a significant limitation on private ordering: a lease or licence cannot validly prohibit the tenant from seeking an access order. The Act does not interact with fencing, water, or planning legislation. It is a standalone code for court ordered access. It does not confer any right to enter a highway (section 5(1)(a) excludes highways). The Act applies to “land” as defined in the Acts Interpretation Act 1931, which would include buildings and structures but not public roads.

According to the text of the Act as published on the official Tasmanian legislation website, the Access to Neighbouring Land Act 1992 has been amended by one identified amending instrument: No. 53 of 2003. That amendment inserted a reference to “the Magistrates Court” into the definition of “the court” in section 3, and amended section 11(2) to refer to the Magistrates Court as the destination for transfers back from the Supreme Court. The amendment appears to have been applied from 25 September 2003. The original Act, enacted in 1992, defined “the court” simply as “a magistrate”. The 2003 amendment expanded the definition to include the Magistrates Court as an alternative judicial body, likely reflecting changes in the Magistrates Court Act or procedural streamlining. Section 16 of the Act notes that the amendments effected by that section have been incorporated into the authorised version of the Magistrates Court (Small Claims Division) Act 1989. That is a technical amendment. No other amendment history is evident in the source text. The Act commenced on a day to be proclaimed. The precise proclamation date is not stated in the source. The Act received Royal Assent on 25 November 1992. It is currently in force. The regulations power under section 14 has not been exercised in any publicly notable way; no specific regulations are referenced in the source. The Act has remained largely unchanged for over two decades, suggesting that judicial interpretation and practice have developed without the need for legislative revision beyond the 2003 amendment. The absence of substantial amendment may indicate that the Act operates effectively in its niche or that it is rarely used.

The source text of the Access to Neighbouring Land Act 1992 does not reference any cases. No litigation is cited in the Act. External research (beyond the source) would be needed to identify judicial interpretations, but the instructions require us to rely only on the source. Therefore, this section must note that the Act itself contains no reference to court decisions. However, we can discuss the kinds of disputes that are likely to arise under the Act based on its language. The key phrases likely to generate litigation include “reasonably necessary for the preservation of the land” (section 5(2)(a)). The meaning of “preservation” is not defined. Does it include upgrading a structure to prevent future damage, or is it limited to remedying existing deterioration? Would replacing a roof with a more durable material be preservation, or improvement? The court would need to draw a line. Another phrase likely to be contested is “substantially more difficult or expensive” (section 5(2)(b)). What counts as “substantial” is fact dependent. A small increase in cost might not satisfy the test. The overriding “unreasonable hardship” ground in section 5(2) also invites litigation. Factors such as the duration of access, the nature of the work, the impact on the neighbour’s use and enjoyment, and the availability of alternative routes would be relevant. The exclusion of compensation for loss of privacy or inconvenience under section 6(3) may lead owners to argue that their hardship is not solely due to entry or the order but also to specific acts of the applicant, so as to obtain compensation. The court must parse the causal connection. Section 12(2), voiding agreements that restrict applications, could be litigated where a contract expressly prohibits seeking access. A party seeking to enforce such a clause would need to argue that the clause is not a restriction on applying but on the scope of work, or that it falls outside the Act’s ambit. The transfer provision in section 11 is itself a litigation related mechanism: if a party believes an “important question of law” arises, they may apply to transfer to the Supreme Court. The Act gives the Magistrates Court the initiative to do so on its own motion. That may occur if the case involves a novel point of statutory interpretation. Because the Act is narrow, reported decisions are sparse.

Several provisions contain traps for the unwary. First, the requirement that the work be “reasonably necessary for the preservation of the land” (s 5(2)(a)) is easy to overlook. Many applicants may think any maintenance or improvement qualifies, but the Act is not a general licence to access a neighbour’s land for renovations or landscaping that are not preservation oriented. If the work is cosmetic or purely desirable, the court must refuse the order. Second, even if the work qualifies, the court must refuse if satisfied that entry would cause “unreasonable hardship” to any affected person (s 5(2), proviso). This is a mandatory bar. The applicant bears the onus of disproving unreasonable hardship? The Act is silent on burden, but likely the applicant must satisfy the court that hardship is not unreasonable. Third, compensation for loss of privacy or inconvenience solely from the entry or the order is not payable (s 6(3)). An owner cannot demand a payment simply for tolerating the intrusion. They can only get compensation for actual loss, damage or injury to property or person, or financial loss. Fourth, the applicant must serve a notice describing the work and conditions before applying, and must make reasonable efforts to reach agreement (s 5(4)). Failure to do so is a jurisdictional bar; the court cannot make an order unless the applicant can show compliance. The Act does not specify what constitutes “reasonable efforts”, so the court will assess on the facts. A rushed phone call might not suffice. Fifth, the access order does not bind persons who are not parties to the proceedings (s 12(1)). If the applicant does not identify and join the correct owner or occupier, the order may be ineffective as against a later discovered owner. Sixth, any agreement that would prevent or restrict an application is void (s 12(2)). This means a neighbour cannot force an applicant to waive the statutory right as a condition of granting voluntary permission. But it also means a tenant cannot agree in a lease to never apply; such a clause is void and unenforceable. Seventh, the order must specify an end date (s 6(1)(b) and s 10(2)). If the work is not completed by that date, the order ceases, and the applicant cannot continue without a new order. This creates pressure to estimate time accurately. Eighth, the indemnity obligation under s 7(2)(b) is strict: the applicant must indemnify against damage resulting from entry. This is not limited to negligence; it is a form of strict liability. The court may require insurance to cover this. Ninth, the court may dispense with or vary any of the actions authorised or required under s 7(1)(b), (c) or (2) (s 7(3)). This means the standard authorisations (bringing materials, leaving waste, making good) can be modified or removed. The parties must read the order carefully rather than rely on defaults. Tenth, the penalty for failing to comply (s 9) is only 5 penalty units, which is relatively modest. But the court can also order damages, and the criminal conviction may have reputational effects.

Compliance with the Act involves two distinct phases: obtaining an access order, and then performing the work in accordance with the order. For a person seeking access, the first step is to attempt to negotiate with the owner or occupier of the subject land. Section 5(4) requires the applicant to serve on the owner a notice describing the work intended to be performed and the conditions the applicant is prepared to accept. The applicant must then make reasonable efforts to reach agreement on any counter proposals, conditions, and modifications. If agreement is reached, no court order is needed, and the parties can agree on compensation and terms privately. If agreement cannot be reached, the applicant may apply to the Magistrates Court for an access order. The application should include evidence demonstrating that: (a) the work is reasonably necessary for the preservation of the applicant’s land; (b) the work cannot be carried out, or would be substantially more difficult or expensive, without entry on the subject land; and (c) entry would not cause unreasonable hardship to any affected person. The applicant should also attach a copy of the notice served and evidence of the efforts to reach agreement. The court will then consider the application and may make an order specifying the work, the dates of entry, and the land details. The court may impose terms and conditions such as requiring insurance, limiting working hours, requiring precautions, and ordering compensation or reimbursement of expenses. The applicant must comply with those terms strictly. Before entering, the applicant should ensure that the order is in effect, that the specified dates have commenced, and that any required security or insurance has been obtained. The applicant must bring onto the land only materials and equipment that are reasonably necessary, and must leave waste only as authorised. During the work, the applicant must make good the subject land so far as reasonably practicable before the date specified in the order. That may involve repairing any damage caused, restoring landscaping, and removing waste. The applicant must also indemnify the owner against damage to the land or personal property resulting from the entry. The owner of the subject land must permit the entry and not obstruct the work. If the owner believes the applicant is exceeding the scope of the order, the owner may apply to the court for variation or discharge under section 10. The owner should document any damage or loss to claim compensation. If either party fails to comply with the order, the other party may apply to the court for damages under section 8 or may bring a complaint for the offence under section 9. Professional advice from a lawyer or a conveyancer is advisable before applying.