Access to Neighbouring Land Act 2000

The Act primarily affects three classes of person: (1) applicants who require access, (2) owners (including occupiers) of land to which access is sought, and (3) persons entitled to use utility services located on land they do not wholly own.

Applicants may be owners of the land on which work is to be carried out (s 7(1)) or persons carrying out work on another’s land with that person’s consent (s 7(2)). The Court may waive the consent requirement if appropriate (s 7(3)). For utility services, any person entitled (solely or jointly) to use a service or proposed service who does not own the whole or part of the land on which it is or will be located may apply (s 8(1)). A single applicant may seek both types of order in one proceeding (s 9).

The definition of “owner” is deliberately wide: it “includes a joint owner or an occupier” (s 3). Consequently mortgagees in possession, lessees and licensees may find themselves both entitled to apply and subject to orders. Successors in title to an owner who has been granted access are automatically bound by the order in the same way as their predecessor (s 23(2)).

Persons entitled to the use of a utility service on land owned by another are both potential applicants (s 8) and persons who must be given notice of any application that would affect their service (s 10(1)(b)). Registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies are treated as owners for notice and rights purposes where native title may exist (s 34(3)).

The Crown is bound in all its capacities (s 4), but the Act does not apply to national park land or certain Aboriginal areas (s 6). Because an access order does not create an interest in land capable of supporting a caveat (s 23(3)), title holders, purchasers and registered proprietors are indirectly affected through the non-registrable but nevertheless binding nature of the order on successors.

Local Court practitioners, surveyors, arborists, plumbers, electricians and project managers who routinely encounter boundary or service issues are affected in their professional practice. The Act also touches local councils when they act as owners or when their utility infrastructure is involved.

Applicants’ rights and duties. An applicant has the right to apply for an order even if an easement could be obtained under s 88K of the Conveyancing Act 1919, but not if access is already obtainable under any other statutory provision (ss 7(4), 8(2)). The applicant must give at least 21 days’ notice to the owner of the land, any other person entitled to use an affected utility service, and any other person the applicant believes will be affected (s 10(1)). The notice must set out the terms of the order sought. The Court may waive or vary the notice requirement (s 10(3)).

Once an order is made, the applicant gains a statutory licence to enter, remain, bring equipment and remove waste (s 20), but is under a mandatory duty to restore the land so far as reasonably practicable (s 21(a)) and to indemnify the owner against damage (s 21(b)). The applicant must comply with every condition of the order (s 28(1)(a)). The applicant bears the costs of the application unless the Court orders otherwise (s 27(1)), and the Court may take into account the reasonableness of any refusal of consent when exercising that costs discretion (s 27(2)(a)).

Owners’ rights and duties. An owner has the right to be heard on any application and to resist it on the grounds set out in s 15. If an order is made, the owner is entitled to the benefit of any conditions the Court imposes under s 16, including conditions directed to minimising loss, damage, inconvenience or loss of privacy, requiring insurance, or providing for reimbursement of reasonable expenses not recoverable as costs (s 16(2)). The owner must, however, permit access in accordance with the order and the Act (s 22). An owner who suffers loss, damage or injury (other than pure loss of privacy or inconvenience) may obtain compensation under s 26. An owner’s successor in title is bound by the order (s 23(2)).

Court’s rights and duties. The Local Court is given a broad discretion to make, vary or revoke orders (ss 11, 13, 16, 24) but is constrained by mandatory prerequisites (reasonable effort to agree, notice) and mandatory considerations (s 15). The Court may impose any condition it considers reasonably necessary (s 16(1)) and may vary or dispense with any of the default Division 2 obligations (s 16(2)(e)). It has power to order compensation at any time while the order is in force or after (s 26(3)), subject to the three-year limitation (s 26(4)).

Native title parties. Where an approved determination of native title exists, the registered native title body corporate must be given notice and enjoys the same rights and obligations as any other owner (s 34(1), (3)). Where native title may exist but has not been determined, notice must go to registered claimants and representative bodies (s 34(2)).

The only criminal sanction is contained in s 28(1): a person who obtains access under an order, or who is required to give access, must not fail to comply with a condition or requirement of the order or of Division 2 as applied to it. The maximum penalty is 5 penalty units. It is a defence if the other party to the order consented to the non-compliance (s 28(2)).

Enforcement is otherwise civil. The Court may, in addition to any penalty, order payment of damages for breach of a condition or of Division 2 obligations; such an order is enforceable as a Local Court judgment under the Civil Procedure Act 2005 (s 28(3)–(4)). Compensation orders under s 26 are likewise enforceable as judgments (s 26(5)).

Costs of the original application are dealt with under s 27. The default rule that the applicant pays may be displaced after the Court considers the parties’ conduct, including whether refusal of consent was unreasonable (s 27(2)(a)). The 2008 amendments repealed the former paragraph (b) and broadened the residual discretion to “any other matter the Court thinks fit” (s 27(2)(c)).

Proceedings for orders or offences are summary before the Local Court (s 37). Where the amount of compensation or damages exceeds the Local Court’s jurisdictional limit in debt recovery, the proceedings must be transferred to the Land and Environment Court (s 29(1)). That Court may transfer the matter back (s 29(2)) and, while seized of the matter, exercises the same jurisdiction as the Local Court (s 29(4)).

Appeals lie to the Land and Environment Court on a question of law against a decision to grant or refuse an access order (s 31(1)). The appeal must be filed within 30 days (s 31(2)). Either court may suspend the operation of any order pending appeal (s 31(3)) and may later terminate that suspension (s 31(4)).

Questions of law arising in Local Court proceedings may be referred to the Land and Environment Court, which then remits its decision; the Local Court cannot act inconsistently with it (s 30).

The Act is expressly subordinate to other legislation. Section 5(1) provides that nothing in the Act enables work or activity for which consent or authority is required under another Act without that consent, nor activity prohibited by another Act. An application is barred if the required access is itself prohibited by another Act (s 5(2)).

The statute sits alongside the Conveyancing Act 1919. An applicant may seek an access order even though an easement could be imposed under s 88K, but may not do so if access is already available under any other statutory provision (ss 7(4), 8(2)). An access order does not create an interest in land sufficient to support a caveat under the Real Property Act 1900 (s 23(3)).

Interaction with the National Parks and Wildlife Act 1974 is one of exclusion: the Access to Neighbouring Land Act does not apply to reserved land, historic sites, state conservation areas, regional parks, nature reserves, karst conservation reserves, Aboriginal areas or declared Aboriginal places (s 6).

Native title is accommodated through s 34, which imports the definitions and notice machinery of the Native Title Act 1993 (Cth) and the Native Title (New South Wales) Act 1994. A registered native title body corporate has the same rights and obligations as any other owner (s 34(3)). Service on native title claimants or representative bodies must follow s 103(3) of the Native Title (New South Wales) Act 1994 (s 36(2)).

Jurisdictional overlap with the Land and Environment Court is managed by the transfer and referral provisions in Part 3 (ss 29–31). Compensation and damages proceedings that exceed the Local Court’s monetary limit must be transferred; questions of law may be referred; appeals on questions of law lie to that Court.

The Civil Procedure Act 2005 supplies the enforcement mechanism for compensation and damages orders (ss 26(5), 28(4)) and defines the monetary jurisdiction that triggers mandatory transfer (s 29(1)).

Section 32 deals with joint liability for repair of shared utility services but is expressly subject to any contract with the service provider and to the provisions of any other Act. Section 33 contemplates regulations prescribing model access agreements that may apply rights and obligations under the Act, yet emphasises that parties are not required to use them and that consensual access remains possible outside the Act.

Finally, s 35 voids any contractual term that would prevent or restrict a person from applying for an access order. This overrides earlier agreements and prevents parties from contracting out of the statutory scheme.

The Act has been amended on several occasions, each narrowly focused. The 2000 amendments (No 93) adjusted the prohibition on applying where access is available under other Acts (ss 5, 7, 8). The 2006 amendments (No 120) updated references to the Land and Environment Court’s jurisdiction consequent on civil procedure reforms and repealed the former paragraph (b) of s 6.

The most significant changes were made by the Dividing Fences and Other Legislation Amendment Act 2008 (No 72). That Act substituted s 27(1) and (2)(a), removing the former paragraph (b) which had referred to “any other matter it thinks fit” and replacing it with a broader residual discretion while retaining the conduct and reasonableness factors. The substitution was made expressly retrospective to applications filed before the amendment but not so as to disturb prior determinations (Sch 1 cl 2). The 2008 Act also inserted s 39 and Schedule 1 (savings and transitional provisions) and amended s 38 to confer rule-making power on the Local Court Rule Committee.

The 2007 amendments (No 94) were largely technical: they updated references to the Local Court following its reconstitution, adjusted the appeal and referral provisions, and made minor drafting clarifications to ss 7–9, 11, 13, 24, 26–28, 29–31, 37 and 38.

These changes were driven by the need to align the Act with the uniform civil procedure reforms of 2005–2008, to rationalise costs principles in neighbour-dispute legislation (the same amending Act altered the Dividing Fences Act), and to ensure that the statutory review required by s 40 could be informed by a coherent procedural framework. The 2008 costs amendment reflects a legislative judgment that courts should have flexibility to sanction unreasonable refusals of access while still protecting applicants who have behaved responsibly.

The five-year statutory review required by s 40 was to be undertaken after the date of assent (12 May 2000) and the report tabled within 12 months after the end of that period. No further substantive policy expansion has occurred; the amendments have remained procedural and jurisdictional.

The Act itself contains no reported cases or specific controversies; it is a short, practical statute that has generated little appellate litigation. The text does, however, flag several points of potential contention that have been the subject of judicial or academic comment in analogous access and neighbour-law contexts.

The “reasonable effort to reach agreement” precondition (ss 11(2)(a), 13(2)(a)) raises questions about what constitutes sufficient negotiation. The statute does not prescribe a minimum period or particular steps, leaving the Local Court to assess the matter on the evidence. Disputes can arise as to whether an applicant’s single letter or telephone call satisfies the test, or whether an owner’s outright refusal absolves the applicant from further attempts.

The s 15 mandatory considerations—whether the work cannot be carried out or would be substantially more difficult or expensive without access, and whether access would cause unreasonable hardship—invite balancing exercises that can be fact-sensitive. What counts as “substantially more difficult” is not quantified; similarly, “unreasonable hardship” is not defined and may encompass financial, physical or emotional impacts.

The interaction with native title (s 34) has been a source of procedural caution. The requirement to notify registered claimants and representative bodies where native title may exist, and the deeming of a registered native title body corporate to have the rights and obligations of an owner, can add layers of notice, delay and cost. Service must follow the stricter regime in s 103(3) of the Native Title (New South Wales) Act 1994.

The prohibition on contracting out (s 35) renders void any clause in a contract, lease or easement that seeks to preclude an application for an access order. This has implications for carefully drafted development agreements and boundary treaties that pre-date the Act.

Controversy also surrounds the non-registrable nature of an access order (s 23(3)). A purchaser of the burdened land may discover only after settlement that a successor-in-title obligation exists (s 23(2)), yet the order cannot be caveated. This creates a due-diligence gap.

The 3-year limitation on compensation claims (s 26(4)) runs from the last date on which access occurred, not from the date damage is discovered. This can trap unwary owners who do not realise the extent of damage until after the period has expired.

Finally, the power to vary or dispense with Division 2 obligations (s 16(2)(e)) gives the Court wide latitude but creates uncertainty for parties who must predict at the application stage which of the default restoration, indemnity and owner-permission rules will actually apply.

Most practitioners assume that an access order automatically carries an indemnity and restoration obligation. In fact those obligations only apply “unless the Local Court varies or dispenses with” them (ss 18(2), 19(2)). An inattentive consent order that is silent on the point may inadvertently relieve the applicant of the s 21 duties.

The definition of “owner” includes an occupier (s 3). A tenant or licensee in occupation can therefore be both an applicant and a person bound to permit access. This can produce the surprising result that a residential tenant is required to allow entry onto the leased premises for work on the landlord’s adjacent land.

Section 23(3) states that an access order does not confer an “interest in land” sufficient to support a caveat. Yet s 23(2) binds successors in title. Purchasers’ solicitors who rely solely on a title search may miss an existing order. A prudent conveyancer must make specific inquiries of the vendor about any access orders.

The 21-day notice period in s 10(1) is measured from the lodging of the application. If the application is amended, fresh notice may be required; the Act is silent on this point, leaving it to the Court’s general power under s 10(2) to direct the giving of further notice.

Compensation under s 26 cannot include loss of privacy or inconvenience “solely” resulting from the authorised access or the making of the order (s 26(2)). The word “solely” invites argument about mixed causes of loss. An owner who suffers business interruption that is partly privacy-related and partly physical damage may still recover for the latter.

The Act does not prescribe a form of access order. Section 17 sets out what must be specified, but the Local Court’s practice notes or rules made under s 38(3) should be consulted. An order that omits the applicable Division 2 provisions (s 17(e)) may be defective.

Model agreements contemplated by s 33 have never been prescribed. Parties who rely on the “model form” that was once circulated informally may inadvertently create rights and obligations under the Act that they did not intend.

The prohibition on applying where access “may be obtained or granted under any other provision of an Act” (ss 7(4), 8(2)) is broader than many realise. It is not limited to easements; it catches any statutory right of entry (for example, under environmental or heritage legislation) that could achieve the same practical result.

Finally, the 5-penalty-unit offence in s 28 is rarely prosecuted, yet the civil damages remedy in s 28(3) is enforceable as a judgment. A landowner who simply locks the gate after an order has been made may find themselves liable for damages without ever facing a criminal charge.

Pre-application stage. Before filing, the prospective applicant must make a reasonable effort to reach agreement with every person whose consent is required (ss 11(2)(a), 13(2)(a)). This should be documented by correspondence that sets out the proposed scope of work, dates, times, insurance and restoration proposals. Keep a file note of all conversations.

Identify every person who must receive notice under s 10(1): the owner of the land, any other person entitled to use an affected utility service, and anyone else the applicant has reason to believe will be affected. Where native title may exist, comply with s 34 and the service rules in s 36(2).

Prepare draft terms of the order sought, including the precise work, dates, hours, conditions, and a statement that Division 2 applies unless varied.

Making the application. File in the Local Court in the district where the land is situated. Pay the prescribed filing fee. Serve the notice at least 21 days before the hearing date unless the Court has directed otherwise or waived the requirement (s 10). Service may be personal or by post to the last known residence or business (s 36(1)).

If the respondent does not appear, be prepared to prove service and to satisfy the Court of the s 11 or s 13 prerequisites and the s 15 matters.

At the hearing. Lead evidence on the two mandatory considerations in s 15. Address any hardship claimed by the respondent and propose concrete conditions under s 16 (insurance, bond, supervision, confined hours, photographic record of pre-access condition). Be ready to justify why the work cannot reasonably be done without access.

If seeking to dispense with or vary any Division 2 obligation, explain why that is reasonably necessary.

After the order is made. Ensure all persons bound by the order receive a copy. Comply strictly with every condition, including any requirement to take out insurance or to give further notice. Keep a detailed contemporaneous record of entry dates, persons present, equipment used, work performed and condition of the land on departure.

Restore the land on or before the date specified in the order (s 21(a)). If damage occurs, notify the owner promptly and negotiate or pay the indemnity (s 21(b)).

If compensation is likely to be claimed, diarise the three-year limitation from the last date of access (s 26(4)).

If you are the owner receiving notice. Do not ignore the application. File any evidence of hardship or alternative means of carrying out the work. Consider whether a counter-proposal for conditions (insurance, security for restoration, confined access corridor) would make the order acceptable. If the applicant has not made reasonable efforts to agree, put that squarely before the Court.

After the order is made, permit access in accordance with its terms (s 22). Keep your own photographic or video record of the land before, during and after access. If damage occurs, notify the applicant in writing and, if necessary, apply for compensation under s 26 or damages under s 28(3).

Ongoing compliance. Both parties should retain the original order and any variation. If circumstances change, either party may apply under s 24 to vary or revoke the order. A successor in title should obtain a copy of any existing order at the time of purchase.

Where utility services are jointly used, remember the joint-liability rule in s 32: an owner who repairs a shared service may recover a proportionate share from co-users provided the repair was not caused by that owner’s fault and subject to any contract with the service provider.

By following the notice, negotiation and evidence disciplines set out in the Act, both applicants and owners can minimise the risk of adverse costs orders under s 27 and avoid the civil and criminal sanctions in s 28. The statute rewards preparation, reasonableness and meticulous documentation.