Love thy neighbour – especially if you’re renovating! Using easements to your advantage.

There are a number of reasons why it’s a good thing to know your neighbours and be on good terms … but one situation that may not come immediately to mind is when you want to renovate or develop your property.  Having a good relationship with your neighbour can be the difference between a quick, hassle free project or a long, drawn out and sometimes costly experience.

More often than not when renovating or building, you or your contractors will need to access the neighbouring land to carry out works on your property.   Access onto adjoining property is commonly sought for construction purposes including, erecting scaffolding, a crane swing over the airspace of the adjoining property, drainage, electricity and roads.

This access is normally only temporary and access is only required during the construction or maintenance being carried out.  In order to access this land you will need to obtain consent.  This is when it pays to be on good terms with your neighbours!

But I can’t get consent!?!

If your neighbour is not agreeable to granting access other avenues are possible including obtaining an access order under the Access to Neighbouring Land Act 2000, or an easement under section 88K of the Conveyancing Act 1919 (NSW).

Neighbouring land access order

Under the Access to Neighbouring Land Act, the Local Court may order a “neighbouring land access order” or a “utility service access order” or both. When access is only required on a temporary basis then this is normally the preferred method.

Before granting orders, the Local Court must be satisfied that:

• access to the adjoining land is required for the purpose of carrying out work on your land (this applies when a neighbouring land access order is sought, as outlined below), or

• access to the adjoining land is required for the purpose of carrying out work on or in connection with the utility service located on the adjoining land (this applies when a utility service access order is sought, as outlined below), and

• a reasonable effort to reach agreement with every person whose consent to access is required has been made, and

• there has been at least 21 days’ notice of the lodging of the application and the terms of any order sought to the owner of the adjoining land and to any person entitled to use any utility service on which work is proposed.

Where an application for a neighbouring land access order is not available then you may need to apply for an easement.

Application for an easement under section 88K

If you need to obtain access through neighbouring land on a permanent basis for things such as drainage or utilities, you can apply to the Supreme Court for an order imposing an easement over the adjoining land, under section 88K(1) of the Conveyancing Act. However, you will need evidence to satisfy the court of:

• Reasonable necessity – the easement is reasonably necessary for the effective use or development of the land. Importantly, “reasonably necessary” does not mean “absolutely necessary”. The easement must be the preferred approach, when compared to the use or development without the easement.

• Public interest – the use of the land will not be inconsistent with the public interest. That is, the grant of the easement will not prevent or impact adversely upon any activity of the public.

• Compensation – the owner of the adjoining land and each other person having a registered interest in the land (such as a tenant or mortgagee) can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement.

• Negotiation – all reasonable attempts have been made to obtain the easement but have been unsuccessful.

The power of the court to grant an easement is discretionary, meaning that the court itself will need to be convinced that it is appropriate to grant the easement. In doing so, the court has generally approached its decisions by observing the burdening nature of section 88K, that is, the provision interferes with existing property rights of a landowner.

What if I have received an easement request from my neighbour?

If your neighbour has asked you to grant an easement over your land (such as an easement allowing them to run stormwater pipes through your property, for the benefit of their property), you do not have to consent – however if you unreasonably reject such a request, then the Courts may still be able to impose the easement, under the process outlined above.  Sometimes the Court will also impose the easement at some cost to you.

In the 2014 case of ABI-K Pty Limited v Frank Shi [2014] NSWSC 551, the property owner was approached by the neighbour to provide an easement for pipes to be laid along one boundary.  The property owner asked for an amount of $250,000 to be paid by way of compensation, which the neighbour refused.  The matter ultimately went before the Court, which not only ordered that the easement could be granted, but also found that the property owner was entitled to only $21,500 by way of compensation.  Further, the Court held that the property owner had unreasonably refused the initial request, and because the initial compensation offered was deemed adequate, the property owner was also ordered to pay the costs of the neighbour in making the application to the Court.

Costs

Court applications may be more costly than a negotiated agreement. The general rule when applying for an easement or an access order is that the costs are payable by the person seeking the easement or access so it definitely pays to reach an agreement with your neighbour if at all possible.