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.