THE REFERENCE

1.1 On 23 December 1987 the Commission was given a reference to inquire into and report on:

1. The laws which define and regulate relationships between people who live on neighbouring land with particular reference to:

(a) access to neighbouring land for the purposes of maintaining fixtures and services required by an adjoining property;

(b) easements for joint services, including joint connections for sewerage and drainage;

(c) problems caused by trees; and

(d) noise control as it affects neighbours.


2. Any related matter.

1.2 Implicit in the reference is the need to consider the issues of dispute resolution and the availability of appropriate remedies and forums to deal with conflicts between neighbours.

1.3 A “neighbour” may be a shop, factory or other commercial or industrial establishment in the community which may create significant problems for a residential neighbour. However, the scope of this reference is limited to relationships between residential neighbours; ie, neighbours in adjoining houses as well as neighbours within blocks of flats and units.

BACKGROUND TO THE REFERENCE

1.4 The proposal to seek a reference on neighbour and neighbour relations originated from a conference convened by the Commission in 1983 at which representatives from Chamber Magistrates, Community Justice Centres, the Public Solicitor’s Office and four Community Legal Centres identified matters suitable for inclusion in the Community Law Reform Program. Many of the matters identified concerned disputes between neighbours.

1.5 In December 1986/January 1987 the Commission distributed a Community Law Reform Program Pamphlet intended to encourage members of the community and interest groups to articulate their views on aspects of the law which they thought required modification. Specifically, the distribution of pamphlets was meant to produce suggestions which would give direction to the choice of references made in the Community Law Reform Program. Many of the suggestions received involved problems associated with dividing fences, joint use of services available to adjoining properties, problems created by large trees and noise. The response to the pamphlet caused the Commission to seek a reference on Dividing Fences and a Report on this topic was published in 1988.¹ Since most of the other suggestions related to disputes between neighbours they were amalgamated together in the Neighbour and Neighbour Relations reference which is the subject of this Discussion Paper.

PURPOSE OF THE DISCUSSION PAPER

1.6 The purpose of this Paper is to provoke thought and to encourage debate and feedback on the issues identified in the terms of reference. The options for reform presented in the Discussion Paper are preliminary suggestions only. There may be other options or suggestions for reform that have not yet been canvassed by the Commission. Comments and submissions on the contents of the Discussion Paper as well as on other matters related to the reference will be of great assistance to the Commission in formulating its final recommendations to the Attorney General. To assist in formulating your responses, the Discussion Paper contains a series of questions at the end of each chapter. The questions reflect the main issues which have been brought to the Commission’s attention but should not be taken as the only matters on which views are sought.

OUTLINE OF THIS PAPER

1.7 The Discussion Paper is divided into seven chapters with one chapter devoted to each issue identified in the terms of reference. The common element that binds the various issues raised in this Discussion Paper is that they involve the relationships between people who live on neighbouring land.

1.8 Chapter 2 focuses on the problems that arise with residential noise. Excessive noise is one of the greatest sources of community friction, particularly in concentrated urban areas. The scope of the Noise Control Act 1975 in controlling noise in the community is examined, as well as the practical shortcomings of its enforcement and some tentative suggestions for reform.

1.9 Chapter 3 deals with the issue of neighbourhood disputes relating to trees. Some of the common problems discussed include physical damage caused by tree roots, obstructed light, obstructed views and the emerging problem of obstruction by trees of light for solar energy. Again, some tentative suggestions for reform are made.

1.10 Chapter 4 deals with access to neighbouring land for the purpose of maintaining fixtures on one’s own property. The current law provides that unless an easement or an agreement with the neighbour exists, a person has no right to enter adjoining land even though it may be necessary for proper maintenance. The chapter examines the current law and proposes that some flexibility be introduced in circumstances where access for maintenance of fixtures has been refused by an adjoining owner. The proposal for reform is based on a consideration of reforms undertaken in other jurisdictions and tends to follow the recommendations made by the UK Law Commission.

1.11 Chapter 5 deals with access to neighbouring land for maintaining services to one’s own property. Whereas the issue in Chapter 4 is fixtures on one’s own property, Chapter 5 is concerned with services to one’s property. Some properties are serviced by means of pipes for sewerage or drainage passing through neighbouring land. If no valid easement was ever created authorising such an arrangement, the owner of the neighbouring property may not only refuse access to repair, but may actually apply to the court for an order to have the pipes removed. The proposed option for reform is the same as that suggested in Chapter 4.

1.12 The issues raised in Chapter 5 lead to the overlapping issue of easements for joint services which is the subject of Chapter 6. Easements for joint services usually arise in terrace houses when services are not connected to sewerage mains by individual pipes but by a joint service. In such circumstances unless a valid easement exists an adjoining owner could interfere with the service even though the consequences can be very inconvenient. The inadequacies of the present law are considered and options for reform are suggested in the light of recommendations by the UK Law Commission, which already have been implemented in Queensland, Tasmania and New Zealand with some modifications. It is proposed that a landowner should be able to apply to a Tribunal which would have a discretion to grant the application after a number of factors have been considered. In examining joint services the paper also looks at the issue of apportionment of costs. Consideration is given to the possibility of laying down strict guidelines for the apportionment of costs between affected joint service owners.

1.13 Chapter 7 deals with the overriding matter of dispute resolution. Disputes over the particular issues discussed in this paper are often symptomatic of a more general problem with the relationship between neighbours. It is for this reason that while considering the appropriate forums to deal with the various issues identified in Chapters 2-6, Chapter 7 focuses quite strongly on the concept of alternative dispute resolution. In the second reading speeches on the Community Justice Centres (Pilot Project) Bill 1980, neighbourhood problems were identified as those most suitable for mediation, since, they involved people in a continuing relationship and where the “cost and emotional upset” of dealing with the dispute in a court would be “entirely disproportionate to the results achieved” in court.

FOOTNOTES

1. New South Wales Law Reform Commission, Dividing Fences Report (LRC 59) 1988.