THE LAW AT PRESENT

4.1 There is currently no general right of entry upon neighbouring land in order to effect work upon one’s own property even if the proposed work consists of essential repairs.

4.2 Thus, unless a specific right to enter a neighbour’s land exists in law or has been created in one of the ways described below, a person who enters a neighbour’s property to effect repairs to his/her own property without the neighbour’s consent is a trespasser.

4.3 The situation identified above has been illustrated in the case of John Trenberth Ltd v National Westminister Bank Ltd¹ where the plaintiff and the first defendant owned adjoining properties. The defendant’s building was in a dangerous state and, moreover, was required by statute to be maintained in a safe condition. The repairs could only be carried out by going onto the plaintiff’s property. The defendant sought the plaintiff’s permission, giving full assurances that nothing adverse to the plaintiff would occur, and full indemnities in case it should. The plaintiff refused. The defendant found itself in a dilemma and proceeded to carry out the necessary repairs despite the plaintiff’s refusal of access. Such entry onto neighbouring land in the absence of the neighbour’s consent was held to be trespass. Predictably the plaintiffs were granted the injunction they sought as the defendants were trespassers and had no lawful excuse to continue the work on their building.

4.4 Trespass to land is the interference with another’s exclusive possession of property against that person’s will, regardless of whether any damage has been done.²

RIGHTS OF ACCESS IN PARTICULAR CASES

4.5 Although there is no general right of access to neighbouring land, a right of access may exist or be created in particular cases as described below.

Express rights

4.6 A landowner may grant an adjacent landowner an express right of entry onto the former’s land to enable the latter to carry out repair work, and to grant the right in such a way that it will bind successors in title of both parties. This constitutes an easement.³

4.7 An easement may also be created by a landowner who divests himself of part of his land, and expressly reserves an easement in favour of the land retained over the land granted away.⁴ It is also possible for a landowner to grant such a right to an adjoining landowner through a personal arrangement which will bind only the immediate parties, and not their successors in title. This may be done for example, by licence or contract.

4.8 As express rights will be created where an adjoining landowner has consented to giving access, if rights of the parties have been clearly set down, it is unlikely that this is an area in which disputes will arise except down the track, if the relationship changes or a successor is differently minded.

4.9 An easement may be acquired compulsorily by an individual obtaining an order under the Encroachment of Buildings Act 1922. The Act applies in cases where a building belonging to one landowner encroaches on the land of an adjoining owner. In such circumstances the court is empowered under s3(2)(b) to make an order granting the encroaching owner an easement over land on which the encroachment stands. An easement granted in this way could be used for the purpose of carrying out repair and maintenance work upon the encroaching building. Because of the specific circumstances which need to exist before such an easement will arise, the Encroachment of Buildings Act is unlikely to assist the majority of people involved in disputes of the kind under consideration.

Other Rights at Common Law

4.10 An implied easement may be created in one of the following circumstances under the common law

• where the parties intended to create an easement but did not do so formally;
• as an easement of necessity, without which the land cannot be used at all, such as when it becomes “landlocked” following sale of the surrounding property;
• under the rule in Wheeldon v Burrows⁵ following the transfer of part of a parcel of land, whereby rights necessary to the proper enjoyment of the land transferred, or rights which were continuous and apparent, will become easements over the land retained;
• by adverse possession or prescription; that is, by continuous use for a minimum of 20 years;
• under the principle of non-derogation from grant, whereby an easement is implied to prevent a grantor from using his own property in a way which interferes with enjoyment of the land granted; and
• under the doctrine of equitable estoppel, so that a landowner who stands by knowing that the neighbour is incurring expense in the belief that access will be granted, may be prevented from denying a right of access.

4.11 The foregoing will be of little assistance, however, in most neighbourhood disputes when it is borne in mind that, with only a couple of exceptions not relevant to the present discussion, implied easements cannot be created over Torrens land.⁶ Section 42 of the Real Property Act 1900 requires any interest in land, including easements, to be recorded in the folio of title. An exception is made for easements omitted or misdescribed.

4.12 Easements over Torrens land can be created only in the way provided by s46, that is, by executing a transfer.⁷

4.13 Rights, such as easements, attaching to land will not cease to exist simply because no claim in respect of the right was made in the primary application to bring land under the provisions of the Real Property Act 1900. Thus, failure to record the easement on the certificate of title will not extinguish it.⁸ An implied easement created prior to the burdened land being brought under the Torrens system, and not recorded in the register, may therefore constitute an exception under s42 (1) (b).⁹

4.14 An easement created in the manner prescribed by s46 and noted on a Certificate of Title but omitted by error from a subsequent Certificate of Title is an example of an omission that can be rectified.¹⁰

DEFECTS IN THE PRESENT LAW

4.15 Despite the prevalence of particular cases where rights of access may exist as described above, few of these will assist the person seeking such access to effect repairs to his/her own property without the neighbour’s co-operation. In other words, in the absence of a general right of access and since the express/implied creation of such rights is not of much practical use, it is necessary to consider whether the prevailing law should be reformed to overcome inherent difficulties.

LAW REFORM IN OTHER JURISDICTIONS

United Kingdom and Tasmania

4.16 Following a working paper published in 1980 and considerable consultation thereafter, the UK Law Commission published its Report No 151 entitled Rights of Access to Neighbouring Land in December 1985. The Law Commission considered the same problem of whether an occupier of land should have some means of obtaining access to neighbouring land to enable the carrying out of work to his/her own property and took the view that the law should be changed. However no legislative action has been taken on the recommendations to date.

4.17 Case for reform. The Law Commission’s main argument in favour of reform was based on the fact that:

the absence of any general right of access to neighbouring land means that properties throughout the country are liable to deteriorate for want of repairs and maintenance with consequential financial loss to their owners and some detriment to the public, who have an interest in the maintenance in good repair of the country’s stock of housing and other buildings.¹¹

4.18 Case against reform. The case against reform identified by the Law Commission was based on the argument that:

a landowner is entitled to exclude from his land any person whose entry is unwelcome for whatever reason; and that the giving of a general right of access would constitute an unjustifiable erosion of this fundamental principle.¹²

Those who advance this argument often quote the old maxim “An Englishman’s home is his castle” as justifying their stand on this issue.

4.19 Recommendations. Attempting to strike a balance between the arguments for and against reform, the Law Commission maintained its view on the need for reform but considered that “the reform should be limited both in its nature and scope”. Accordingly the Law Commission’s principal recommendation was that:

The law should be changed so as to enable a person to obtain a right of access to neighbouring land for the purpose of carrying out work to his own land. This right of access should arise only by virtue of an order made on an application made to a court.

4.20 The UK Law Commission’s other recommendations were:

1. The type of work should be limited to “preservation work”, as opposed to building works generally and should be reasonably necessary. In other words, it should include any work that is intended to preserve an applicant’s property.
2. The scheme should, in general, permit entry to any neighbouring land of any description.
3. Every access order should specify (a) the work for which, (b) the land to which and (c) the timing within which access is to be authorised.
4. The successful applicant should be required to automatically indemnify the neighbour against any loss or damage to land resulting from the entry and to make good any damage so far as it is reasonably practicable.
5. The court should have power to impose conditions on access orders with a view to minimising the neighbour’s inconvenience and loss of privacy, reducing security risks, the risks of financial loss, physical damage or personal injury and ensuring that the work is done properly and quickly, awarding compensation, if appropriate. This power should specifically enable the imposition of conditions to deal with matters such as the method of work, precautions and safeguards to eliminate or reduce the risk of damage or injury, re-imbursement of fees and expenses reasonably incurred by the neighbour in connection with the access, compensation for loss, the giving of security and the neighbour’s supervision of the work.
6. The nature of the right of access should be a “one-off” right - ie that the right of access granted should not be a permanent right but rather should subsist only for the purpose of carrying out the particular project for which the right was sought.
7. There should be no restrictions on the categories of persons entitled to apply for access.
8. There should be no restrictions on the categories of persons capable of being treated as neighbours under the scheme.
9. The County Court (which is the equivalent of the District Court in New South Wales) should have initial, unlimited and exclusive jurisdiction in access proceedings, with power for the proceedings to be transferred to the High Court (which is the equivalent of the Supreme Court in New South Wales).
10. The power of the court to grant an access order should arise only if it is satisfied that the work for which access is sought is reasonably necessary for the preservation of the property and cannot be done without that access being granted.
11. The rights created by an access order should be enforceable in the same way and to the same extent as if they arose out of a contractual arrangement expressly created between the parties.
12. Costs should be decided in accordance with the court’s normal discretion exercised in accordance with existing principles.

A summary of the UK Law Commission recommendations is reproduced at Appendix 1.

4.21 Using the UK Law Commission proposal as a model, the Tasmanian Law Reform Commission released its report on Private Rights of Access to Neighbouring Land in 1985 recommending a scheme whereby persons could apply to an appropriate tribunal for access rights to neighbouring land in order to carry out work on their own land. Legislation is likely to be introduced in Tasmania in 1991 to give effect to the Tasmanian Law Reform Commission’s recommendations which are identical in essence to the UK Law Commission’s recommendations.

THE UK LAW COMMISSION’S RECOMMENDED SCHEME - AN OPTION FOR NEW SOUTH WALES?

4.22 There is a strong argument that the present law needs to be more flexible. Access should be available to carry out repairs or maintenance to fixtures on one’s own property provided a neighbour’s privacy can be protected. For this reason the concept of an automatic right of entry would be unacceptable. The better option would seem to be that a right of access be available in certain circumstances on application to an appropriate Tribunal. The Tribunal should be able to impose certain conditions on the applicant.¹³ If it is agreed that in certain circumstances a right of access should be available, the discretionary scheme suggested by the UK Law Commission would also seem appropriate for introduction in New South Wales.

QUESTIONS FOR DISCUSSION

• Is it appropriate to have a scheme whereby a person may be granted a right to enter neighbouring land?
• Should a person have an automatic right to enter neighbouring property in order to undertake work or should the grant of access be subject to the discretion of a Tribunal?
• What limitations or conditions should be placed on a grant of access to neighbouring property? Are the limitations suggested by the UK Law Commission adequate? If not, why not? Should they be expanded or reduced?
• If the discretionary model is adopted, what should be the scope of the discretion? Is it sufficient that the court needs to be satisfied that the preservation work is reasonably necessary and that it cannot be done without the access being granted or should the courts discretion be limited by other factors.
• Should there be limitations on the scope of the work that may be done on a neighbouring property (eg restricted to urgent maintenance/repair other than, say, re-modelling or should it be extended to include new building work)?
• Should there be any restriction on the type of land to which access may be sought?
• Should air space be expressly included in the legislation?
• Should compensation be restricted to payment for loss, damage or injury as a result of the access or should it be left open to the Tribunal? Should there be other non-compensatory licence fees?
• If access is required repeatedly should an application be made each time it is required, (ie should the scheme provide “one off” access only), or are there some instances where a continued right of access would be justified?
• Should the class of applicant (ie persons applying for access) be unrestricted or should it be restricted to particular categories?
• Should the class of respondents (ie the neighbours) be restricted to legal owners only or should it include:

  - those in occupation of any part of the land or premises who would be affected by the access sought, or

  - those who fear a real risk of damage which if not made good would substantially reduce the value of the estate or interest in the land owned by someone not falling into the category of occupier?

• If the class of “respondents” extends to occupiers (as opposed to owners) should it be limited to those in occupation:

  - by virtue of having some interest in the property, or

  - only those who would have a right to sue for trespass in respect of the access sought?

• What should happen if the land to be entered is not at the relevant time occupied by anyone?

FOOTNOTES

1. (1979)39 P & CR 104.

2. In Entick v Carrington (1765) 95 ER 807 at 817 it was stated that:

(O)ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.

4. For example a right of way.

5. [1879] 12 Ch D 31.

6. Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 (CA).

7. Jobson v Nankervis (1943) 44 SR (NSW) 277; Kostos v Devitt [1979] ACLD 516.

8. Auerbach v Beck (1985) 6 NSWLR 424 at 446; Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] 2 NSWLR 1 at 11.

9. Beck v Auerbach (1985) 6 NSWLR 454 at 463.

10. James v Registrar General [1968] 1 NSWLR 310.

11. The Law Commission Rights of Access to Neighbouring Land Report 151, (1985) at p7.

12. Ibid at p9.

13. This is consistent with the UK Law Commission proposal.