Statutory regimes
An application to the Court might be required for a grant of access or to remedy a trespass. There are different Statutes that deal with those issues:
| Conveyancing Act 1919 – Section 88K | Access to Neighbouring Lands Act 2000
| Encroachment of Building Act 1922 | |
| Notice | No notice required | 21 days written notice (although Court can waive that requirement in special circumstances) | Retrospective – an application can only be made after trespass has occurred. |
| Jurisdiction | Supreme Court of NSW Note – recourse is also available in the Land and Environment Court Act 1979 (NSW) but limited to appeal on development consent. | Local Court of NSW (If over $100k, NSW Land and Environmental Court) | Land and Environmental Court of NSW (unless existing NSW Supreme Court proceedings are on foot) |
| When to apply | If an easement is required, the following questions should be made: 1. Is the proposed easement reasonably necessary for the effective use or development of the applicant’s land? The Test of ‘reasonable necessity’ should be considered. 2. Will the applicant’s use of their land be inconsistent with the public interest? 3. Can the neighbouring land owner be adequately compensated for any loss or disadvantage that they might suffer if an easement is granted? 4. Has the applicant taken all reasonable steps to obtain an easement? 5. Will the Court exercise its discretion and impose an easement in the circumstances? | The criteria is non-exhaustive. Orders can be sought when: 1. Carrying out construction, repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures; 2. Inspections for the purpose of establishing whether any such work is required; 3. Making plans incidental to such work; 4. Establishing the course of drains, sewers, pipes or cables and renewing, repairing or cleaning them; 5. Determining whether any tree or shrub is dead, diseased or dangerous (ie insecurely rooted); 6. Replacing, removing, cutting or treating a tree or shrub; 7. Clearing or filling in ditches; 8. Access land for any utility services; 9. Carrying out any work relating to the above. | Applicant can apply for relief in the following circumstances: 1. Compensation 2. Transfer of lease or grant of easement; 3. Removal of encroachment
Either party can bring an application, however there is a reverse onus. Encroachment must be proven to be not intentional or negligent and relief will not be granted the whole of property, only the relevant land. |
| Compensation/ remedy | If an easement is granted, compensation will invariably be ordered to be paid for the imposition of the Easement (s 88K(2)(b))
| An applicant is not entitled to loss of privacy or inconvenience for loss of access, however an applicant will be entitled to compensation for loss, damage to personal property, financial loss and personal injury arising from the access.
The Court will determine on the merits of each case. The Act does not specify when Orders will be given. Orders made on a conditional basis provided: 1. The property is returned to as close to as it was prior to access; and 2. Indemnity is given. | Minimum Compensation minimum shall be the land value or in any other case three times land value. The Court will look at the circumstances such as value of land, who made application; character and purpose of encroaching building; loss and damage of both parties and circumnutates encroachment was made. If compensation is above the minimum the Court will consider factors such as value or whether the land is improved or not; the loss and damage; and, circumstances of encroachment. |
| Costs | Court has discretion as to how costs are paid, although there is a presumption that the Applicant pay the costs of the proceedings. | Applicant to pay costs but the Court does have discretion to make orders as it sees fit | No presumption that applicant pays costs. The Court will consider any offers and conduct of the parties in the circumstances. |
| Limitation period | Unlimited provided application made by owner. | 3 years after the last date on which access occurred. | Unlimited although adverse possession may be claimed by an encroaching owner if they have occupied the encroached land for 12 years or more. |