Fact Sheet

November 2015 | ISSN 2201-1978 www.lpi.nsw.gov.au

Access to neighbouring land

If you own a house that is built right up against, or However a court will have discretion to waive the
very close to the boundary between your property requirement for the owner’s consent if the owner’s
and your neighbour’s property, then in order to consent has been unreasonably withheld, the owner
properly repair or maintain your house you may cannot be located or for other similar reasons.
need to enter your neighbour’s land. For example if
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you want to repair the side of the house that is built
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2. Utility service access order

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close to or along the boundary you will need to carry

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A utility service access order enables a person who

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out the repairs from your neighbour’s land. uses a utility service that runs through neighbouring

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land to enter that neighbouring land to carry out

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However, the law states that you cannot enter your

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work on the utility service.

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neighbour’s land without your neighbour’s consent.

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To do so would constitute a trespass. Also a court
For example, if a sewer line that services a house

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runs through a neighbouring property and becomes
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blocked at some point of the line on that property,

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you onto the land. As a result, you may not be

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then the access order allows entry onto the property

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able to properly maintain or repair your house or
in order to fix the blockage.

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even comply with a council order that you carry out
repairs. Other utility services that the order can apply to are

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To overcome these problems and to provide a
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In the future it may become necessary to add other

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solution, the Access to Neighbouring Land Act 2000

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services by regulation.

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(NSW) (Act) was introduced.

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How does
service access order?

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The Act entitles a person to make application to a
local court for an order enabling that person to enter The applicant can be anyone that is entitled to use
neighbouring land. There are two types of orders the utility service. This means the applicant doesn’t
that may be applied for. have to be the owner of the land or even have the
consent of the owner of the land.
1. Neighbouring land access order
A neighbouring land access order entitles the
applicant to enter neighbouring land for the purpose
of carrying out work on the applicant’s own land.

An applicant will normally be the owner of the land,

but may also be an occupier of that land, applying
with the consent of the owner. This ensures that
people such as tenants and other occupiers of
a property are able to make applications where
necessary.
What notice must be given for What criteria does the court
an access order? consider?
In both cases, the applicant must give at least 21 days In reaching a decision the court considers two main
notice of their intention to lodge an application. The issues:
notice must include the terms of the order sought.
1. Whether the proposed work cannot be carried
out or would be substantially more difficult or
The notice must be served on the owner of the land
expensive to carry out without access to the
to which the access order is sought, any person
neighbouring land.
entitled to use a utility service on which work is
proposed and any other person who the applicant 2. Whether granting the proposed access would
believes will be affected by the order. cause unreasonable hardship to the neighbour
affected by the order.
This ensures that occupiers of the adjoining land will
Unless a court is satisfied about these two issues the
be given notice of the application and that where
application will not be granted.
a utility service serves several properties (such as

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often occurs with sewer lines for a row of terrace
houses), all the other users of the service will also

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Can conditions be imposed?

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receive notice.

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Yes, if a court decides to make an order for access

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In many cases the service of a notice of intention to
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reasonably necessary in the circumstances. Conditions

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commence an application may be a catalyst for the

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parties to be able to resolve the dispute themselves that could be imposed are, but not limited to,

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and the intended application may not need to be

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conditions for the purpose of avoiding or minimising

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actually lodged. loss or damage to the neighbour or any other person,

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land or property; for the purpose of avoiding or

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minimising inconvenience or loss of privacy to the

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What land cannot be the subject
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neighbour or any other person; specifying precautions
an application?
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An application for an access order cannot be
d and safeguards; and requiring the taking out of
insurance by the applicant against risk.

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made in respect of land that has been reserved or

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An access order must specify the date from which

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dedicated under Part 4 of the National Parks and access is permitted and the date when access ceases

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Wildlife Act 1974 (NSW) i.e. national parks, historic to be permitted and if relevant, the time during

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sites, state conservation areas, regional parks, nature

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which access is permitted.

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reserves, karst conservation reserves, Aboriginal

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areas and land declared as an Aboriginal place.
Are there any other safeguards?

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Which court
The local court is empowered to determine
Yes, the Act contains safeguards for the property
affected by the access order. It provides that a
person granted an access order to neighbouring
applications for access orders. land is required to restore the neighbouring land
to the same condition as it was in before the
What preliminary steps must be permitted work was carried out and indemnifies
the neighbouring owner against any damage which
taken? might arise as a result of the access.
A court will not make an access order unless it
is satisfied that the applicant has first made a
reasonable effort to reach agreement with the
applicant’s neighbour for the access sought. This
ensures that only genuine disputes are brought
before the court.
What about consent authority When must an application be
approval? transferred to the Land and
The granting of an access order to do work does Environment Court?
not mean that any consent by a consent authority
that would normally be required for the work does In three situations as stated below.
not apply. 1. If the amount of compensation or damages
involved in a matter is likely to exceed the amount
If consent authority approval is needed for the of the local court’s monetary jurisdiction which is
particular type of work for which access has been $100,000.
granted then that approval must still be obtained.
Similarly, if any work or activity is prohibited by 2. If a question of law arises in a hearing. In this case
another law then nothing in the Act operates to the local court has the option of referring the
negate that prohibition. question to the Land and Environment Court.
3. An appeal on a question of law from a decision

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of the local court. In this case the appeal must
Can an order be varied or revoked?
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be made to the Land and Environment Court.
Yes, an access order can be varied or revoked by a

i n e ct The Land and Environment Court has expertise

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local court on application by the applicant or by any

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in deciding all issues concerning land and is the

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other person affected by the order. This ensures that appropriate forum for such matters to be referred.

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any matters that arise after the order is made can be

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acted upon by reviewing the order where necessary.
Are with in

Can compensation be ordered? n

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As well as access to neighbouring land problems,

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Yes. One of the most important provisions of the Act the Act also provides for apportioning costs of

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is that it authorises the court to order an applicant

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repair and maintenance of shared utility services.

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who has been granted an access order to pay For example, there are many households that share

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compensation to the owner of the neighbouring the use of a sewer line or a water pipe. When a
land for loss or damage caused by the access. blockage occurs in the line or pipe there is usually

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Compensation may be sought by the neighbouring confusion as to who is liable to pay for the cost

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of fixing the problem. Is it all the households that

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owner after the date that the access order was

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made, but must not be sought more than three years share the service or only the household on whose

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land the blockage has occurred, or is it some other

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after the date on which the last access under the

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order occurred. combination?

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Compensation is not payable for loss of privacy or
inconvenience suffered by the owner as a result of that each user of a shared utility service be equally
the access order. responsible for the costs of its maintenance and
repair. However, where the need for maintenance or
repair is caused by the deliberate act of one of the
Can costs be awarded? users then liability will rest with that user alone.
Yes, the court can make an order as to costs
although the costs of an access order are usually
payable by the applicant unless the court makes an
order to the contrary. When making a contrary order,
the court may consider the attempts made by the
parties to reach agreement before the proceedings
and whether the refusal to grant the desired access
was reasonable.
Has Native Title been considered?
As this Act deals with land it is necessary to also
make provision for those parcels of land where
native title might exist.

When any such parcel is the subject of an access

application, the Act provides for the giving of notice
of the application to the relevant native title body
corporate or native title claimant. It also provides
that in respect of a parcel of land where there is an
approved determination that native title exists, a
registered native title body corporate has the same
rights and responsibilities under the Act as any other
owner of land.

Who uses this Act?

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This Act is mainly used by neighbours in residential

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situations but can also be used in relation to

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commercial, industrial, or rural property and may

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be utilised to solve commercial disputes as well as

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neighbourhood problems.

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Where can I get a copy of the iAct?
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All NSW legislation can be viewed and downloaded

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at www.legislation.nsw.gov.au a service provided by

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the NSW Parliamentary Counsel’s Office.

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Legislation can also be viewed and downloaded at

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http://www.austlii.edu.au the site of the Australasian

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Legal Information Institute (AustLII) which provides

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free access to Australian legal materials.

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More information

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For further information on access to neighbouring
land please contact your local court. The contact
details of your local court can be found at
http://www.service.nsw.gov.au/nswgovdirectory/
local-courts

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