“No Trespassing” – What happens when access to adjoining land is required for construction work

Trespass to land is the unauthorised entry into another person’s land. It may take place below the surface of the ground or it may extend into the airspace above the ground. Damage does not need to arise for an action to constitute trespass; it occurs when one person enters into another person’s land.

Trespass arises in a construction context when a builder or developer needs to access neighbouring land in order to properly and efficiently undertake construction works. The two most common requirements for access to neighbouring land is the installation of rock anchors under the surface of the ground, and the operation of a tower crane above the ground.

The most common way of resolving a builder or developer’s access requirements is by the landowners negotiating a licence agreement which provides the builder or developer will be permitted the access required in exchange for certain assurances and protections and usually an amount for compensation.

The negotiation of such licence agreements gives rise to a number of issues, some of which are quite complicated, and it is not unusual for both parties to engage solicitors to assist in the negotiations and draft the licence agreement.

The issues which commonly arise in the negotiation of access to neighbouring land include:

Airspace licence / oversailing licence

The main concern which arises in relation to airspace access is the risk of damage or injury arising due a failure in the crane however there may also be a component of inconvenience and nuisance. Negotiations in relation to accessing airspace usually take into account:

  • The specifications of the crane, including its height, type and load capacity.
  • The hours of operation.
  • Operational issues such as noise, dust or debris and whether this will impact upon the use of the adjoining land whether that be for residential purposes or commercial purposes.
  • The types of loads, the weight, and frequency of loads passing through the airspace.
  • The process of installation and removal of the crane.
  • The duration of time the crane will be used on the site, allowing for delays in construction.
  • Whether the crane will be left to weathervane.
  • Engineering certification for the foundations and installation of the crane.
  • The physical condition of the crane, whether it has been regularly maintained and is safe to operate. Whether arrangements have been made for periodic safety inspections of the crane.
  • Whether the crane supplier and operator hold the necessary licences and insurance and whether the adjoining owner is noted as an “insured person” on the insurance policy.

Access for scaffolding

Where access is sought for the purpose of erecting scaffolding, this also represents a risk however the main concern is usually inconvenience and loss of enjoyment to the adjoining land. This usually involves a consideration of:

  • The specification of the scaffolding, location and the extent of the protrusion into the adjoining land.
  • Operational issues such as noise, dust or debris and whether this will impact upon the use of the adjoining land whether that be for residential purposes or commercial purposes.
  • The process of installation and removal of the scaffolding.
  • Whether the scaffolding supplier and installer holds the necessary licences and insurance.

Installation of rock anchors

Excavation and the installation of rock anchors is often of primary concern for an adjoining landowner because there is risk that damage will occur to structures on the adjoining land.

Also, where rock anchors are de-stressed and left in position there is likely to be an additional excavation cost in the future if the adjoining owner decides to develop its property.

The following matters need to be taken into consideration:

  • Two dilapidation reports should be prepared for the adjoining land, one prior to excavation commencing and the second on completion of the work.
  • The review of any geotechnical reports obtained by the builder or developer.
  • Review of engineering drawings showing the specification, number, location and depth of the rock anchors.
  • Whether the anchor system is temporary/removable or permanent/de-stressed.
  • The installation of measuring equipment such as ground vibration monitoring.

The purpose of having two dilapidation reports is to compare the condition of the adjoining land prior to the installation of the rock anchors to the post installation condition and to prove that damage has occurred as a result of the installation of the rock anchors.

Access across the neighbouring land for vehicles, plant and equipment or storage

Sometimes there is restricted access to the construction site and there are significant commercial benefits to accessing the site via the adjoining land. Sometimes space on site is limited and free space on adjoining land provides the builder and developer with an opportunity to store equipment or materials.

Where this situation arises:

  • The area of the adjoining land which may be accessed should be clearly defined on a plan of the adjoining land.
  • The adjoining landowner should advise its building insurer of the proposal prior to entering into an agreement.
  • Conditions will likely need to be imposed on how the area may be used so as to protect the adjoining landowners safety, privacy, and enjoyment of the adjoining land.

The licence agreement

Some of the usual clauses which appear in the licence agreement include:

Compensation – Usually the adjoining landowner is paid an amount of compensation which covers, the reasonable legal fees and consultant fees incurred by the adjoining landowner and a licence fee. The amount of the licence fee is a matter for agreement however there are various ways of calculating this and if agreement cannot be reached other options are available such as determination by a mutually agreed valuer.

Indemnities – The adjoining landowner usually requires an indemnity for loss and damage caused by the builder or developer. Usually the indemnity excludes loss which arises from the actions of the adjoining landowner itself.

Insurance – The insurance the builder or developer is required to have in place should include, as a minimum, public liability insurance.

Program for works – Sometimes an adjoining landowner will require a review of the works program.

Sale of the adjoining land – Sometimes a construction project may take some time to complete and the adjoining landowner may want to sell the land whilst the access agreement is in effect. An access agreement does not run with the land and if the adjoining land is sold before the construction work is completed the agreement will need to be assigned or novated to the purchaser of the adjoining land. It is not uncommon for the builder or developer to require a term in the access agreement that the adjoining owner to disclose the access agreement to a potential purchaser and use best endeavours to ensure the purchaser accepts the assignment or novation of the agreement.

What if an agreement cannot be reached?

It is worth keeping in mind that it is not appropriate for landowner to use the developers need for access as a way to try and stop a development occurring as developers can have rights available to them to reasonably use another person’s land under various laws such as the Access to Neighbouring Land Act 2000.

If agreement cannot be reached, the NSW Local Court may order a ‘neighbouring land access order’ under the Access to Neighbouring Land Act 2000 (NSW). It is also noted that the NSW Supreme Court may order an easement under section 88K of the Conveyancing Act 1919 (NSW).

The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.

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