The orders are to be subject to statutory conditions, including an obligation, so far as is practicable, to restore the land, and are to be of limited duration.

PART 1—PRELIMINARY

This Part contains the introductory, commencement and interpretative provisions of the proposed Act (clauses 1–3). It sets out the short title of the proposed Act and provides that it is to commence on a day or days to be proclaimed (clauses 1 and 2). Definitions are contained in clause 3. The Part also provides that the proposed Act will bind the Crown (clause 4).

PART 2—ACCESS ORDERS

Division 1—Applications for access orders and making of orders

The Division sets out who may apply for the access orders and confers jurisdiction on the Local Court to make the orders. A person who requires access to land adjoining or adjacent to the person’s land to carry out work on the person’s land may apply for a neighbouring land access order (clause 5).

A person who requires access to land to carry out work on a utility service (for example, a sewerage service) which the person is entitled to use but which is situated on land that the person does not own may apply for a utility service access order (clause 6). Both kinds of orders may be applied for by the user of the utility service or the owner of the land on which work is to be carried out. A neighbouring land access order may be applied for by some other person with the consent of the owner. A person who requires both kinds of order may apply for both orders at the same time (clause 7).

Notice of applications must be given to affected persons (clause 8).

The Local Court may grant an access order if it is satisfied that access is required for the specified purpose and that it is appropriate in the circumstances of the case (clauses 9 and 11). However, orders may not be made unless the Court is satisfied that a reasonable effort has been made to reach agreement by the relevant parties and that the required notice of the application has been given.

The types of work for which each kind of access order may be made are set out in the Division (clauses 10 and 12). The Court must consider the purpose and type of work proposed, whether the work cannot be carried out, or would be substantially more difficult or expensive to carry out, without the access and whether the access would cause unreasonable hardship to a person affected by the order (clause 13). Conditions may be imposed on an access order, including conditions relating to minimising inconvenience or loss of privacy and requiring the applicant to take out insurance (clause 14).

Matters to be included in access orders, such as the work to be carried out and the duration of the order are also specified (clause 15).

Division 2—Effect of access orders

This Division sets out the activities authorised by orders and the obligations of persons who obtain orders as well as those of the owners and occupiers of land subject to access orders. A neighbouring land access order authorises, for the purpose of carrying out work on land, a person to have access to and to remain on adjoining or adjacent land to that land, in accordance with the order (clause 16). A utility service access order authorises a person to have access to and to remain on land to carry out work on a utility service on that land in accordance with the order (clause 17).

Both kinds of order authorise the applicant to move materials, remove waste from the land and also authorise such persons as are reasonably necessary to carry out the work to have access to the land (clause 18). In turn the applicant is required to restore the land, as far as practicable, to the condition it was in before the access and to indemnify the owner against damage to the property arising from the access (clause 19). The owner must give access in accordance with the order (clause 20).

The orders do not bind anyone who was not a party to the proceedings for the order except a successor in title to an owner bound by an order (clause 21).

Division 3—Other provisions relating to access orders

The Division provides that an access order may be varied or discharged by a Local Court (clause 22) and that an order ceases to have effect on a date specified or if earlier discharged (clause 23).

An order for compensation for loss, damage or injury arising from access may be made by the Court when an order is made or at a later time (even if the order is no longer in force) (clause 24). The costs of an application are payable at the Court’s discretion (clause 25).

It will be an offence carrying a penalty of up to 5 penalty units (currently $500) to fail to comply with an access order and an additional remedy of damages will be available on failure to comply with an order (clause 26).

PART 3—TRANSFER OF PROCEEDINGS TO OTHER COURTS AND APPEALS

The Part provides for the transfer of proceedings from the Local Court to the Land and Environment Court if the amount of any compensation or damages is likely to exceed the Local Court’s civil jurisdiction and for the transfer of proceedings by the Land and Environment Court (clause 27).

The Part enables a Local Court to refer a question of law arising in proceedings for an access order to the Land and Environment Court (clause 28).

The Part also provides for a right of appeal in proceedings for an access order from a Local Court to the Land and Environment Court (clause 29).

PART 4—MISCELLANEOUS PROVISIONS

The Part contains miscellaneous provisions.

Contracting out of the proposed Act is to be prohibited (clause 30).

Notices under the proposed Act are to be given personally or by post addressed to the last known place of residence or business of the person (clause 31).

Proceedings under the Act are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone (clause 32).

A power to make regulations for the purposes of the proposed Act is included (clause 33).

The Land and Environment Court Act 1979 is amended to confer jurisdiction on it in relation to transferred proceedings and appeals (clause 34 and Schedule 1).

The proposed Act is to be reviewed as soon as possible after the period of 5 years from the date of assent to the proposed Act (clause 35).

PART 1—PRELIMINARY

1. Short title

2. Commencement

3. Definitions

4. Act binds Crown

PART 2—ACCESS ORDERS

Division 1—Applications for access orders and making of orders

5. Persons who may apply for a neighbouring land access order

6. Persons who may apply for a utility service access order

7. Person may apply for both orders

8. Notice of application for access order to be given to owners of affected land or services

9. Jurisdiction to make neighbouring land access orders

10. Types of work for which neighbouring land access orders may be made

11. Jurisdiction to make utility service access orders

12. Types of work for which utility service access orders may be made

13. Matters to be considered by Court

14. Conditions of access orders

15. Form of access orders

Division 2—Effect of access orders

16. General effect of neighbouring land access order

17. General effect of utility service access order

18. Authority to carry out ancillary activities

19. Restoration of land and indemnity for damage

20. Owner’s obligations

21. Persons bound by access order

Division 3—Other provisions relating to access orders

22. Variation and revocation of access orders

23. When access orders cease to be in force

24. Compensation

25. Costs

26. Failure to comply with access order

PART 3—TRANSFER OF PROCEEDINGS TO OTHER COURTS AND APPEALS

27. Transfer of matters to other courts

28. Referral of questions of law by Local Courts

29. Appeals from decisions of Local Courts

PART 4—MISCELLANEOUS PROVISIONS

30. Contracting out of Act prohibited

31. How notices may be served

32. Proceedings for applications or offences

33. Regulations

34. Amendment of Land and Environment Court Act 1979

35. Review of Act

SCHEDULE 1—AMENDMENT OF LAND AND ENVIRONMENT COURT ACT 1979

An Act to enable courts to make orders permitting access to land by persons not otherwise entitled to that access for the purpose of carrying out work on their own land or carrying out work on utility services on that land; and for other purposes.

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Access to Neighbouring Land Act 1994.

Commencement

2. This Act commences on a day or days to be appointed by proclamation.

Definitions

3. In this Act:

“access order” means a neighbouring land access order or a utility service access order;

“exercise” of a function includes the performance of a duty;

“function” includes a power, authority or duty;

“land” includes a stratum of air or a stratum of soil below the surface of the earth;

“neighbouring land access order” means an order made under this Act authorising access to adjoining or adjacent land;

“owner” includes a joint owner and an occupier;

“utility service” means a sewerage, drainage, water, gas, electricity or telephone service or other service prescribed by the regulations for the purpose of this definition;

“utility service access order” means an order made under this Act authorising access to land to carry out work on a utility service.

Act binds Crown

4. This Act binds the Crown in right of New South Wales and also, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

PART 2—ACCESS ORDERS

Division 1—Applications for access orders and making of orders

Persons who may apply for a neighbouring land access order

5. (1) A person who, for the purpose of carrying out work on the person’s land, requires access to adjoining or adjacent land may apply to a Local Court for a neighbouring land access order.

(2) A person who is not the owner of the land on which work is to be carried out may apply for a neighbouring land access order with the consent of the person on whose behalf the work is to be carried out.

(3) The Local Court may waive the requirement for consent under subsection (2) if it thinks it appropriate to do so in the circumstances.

Persons who may apply for a utility service access order

6. (1) A person who, either solely or jointly, is entitled to the use of a utility service but who is not the owner of the whole or part of the land on which it is located and who requires access to that land for the purpose of carrying out work on the utility service may apply to a Local Court for a utility service access order.

(2) A person may apply for a utility service access order even if there is an easement or other right of access to the land concerned to carry out the work.

Person may apply for both orders

7. A person who requires access for both purposes referred to in sections 5 and 6 may apply to a Local Court for both a neighbouring land access order and a utility service access order.

Notice of application for access order to be given to owners of affected land or services

8. (1) An applicant for an access order must give at least 21 days’ notice of the lodging of the application and the terms of any order sought:

(a) to the owner of the land to which access is sought under the application; and

(b) to any other person entitled to the use of any utility service on which work is proposed to be carried out; and

(c) to any other person the applicant has reason to believe will be affected by the order.

(2) The Local Court may direct that notice of an application be given to a person or that notice be given in a specified manner.

(3) The Local Court may waive or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

9. (1) A Local Court may make a neighbouring land access order if it is satisfied that, for the purpose of carrying out work on land, access to adjoining or adjacent land is required and it is satisfied that it is appropriate to do so in the circumstances of the case.

(2) The Court must not make a neighbouring land access order unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work; and

(b) that the applicant has given notice of the application in accordance with section 8.

Types of work for which neighbouring land access orders may be made

10. (1) A neighbouring land access order may be made for one or more of the following purposes in connection with the other land:

(a) carrying out work of repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures;

(b) inspections for the purpose of ascertaining whether any such work is required;

(c) making plans in connection with such work;

(d) ascertaining the course of drains, sewers, pipes or cables and renewing, repairing or clearing them;

(e) ascertaining whether any hedge, tree or shrub is dangerous, dead, diseased, damaged or insecurely rooted;

(f) replacing any hedge, tree or shrub;

(g) removing, felling, cutting back or treating any hedge, tree or shrub;

(h) clearing or filling in ditches;

(i) carrying out any work that is necessary for, or incidental to, anything referred to in paragraphs (a)–(h).

(2) This section does not limit the kinds of work with respect to land for which a neighbouring land access order may be made.

Jurisdiction to make utility service access orders

11. (1) A Local Court may make a utility service access order if it is satisfied that access to land is required for the purpose of carrying out work on a utility service situated on the land and it is satisfied that it is appropriate to do so in the circumstances of the case.

(2) The Court must not make a utility service access order unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work; and

(b) that the applicant has given notice of the application in accordance with section 8.

Types of work for which utility service access orders may be made

12. (1) A utility service access order may be made for one or more of the following purposes:

(a) carrying out work of repair, maintenance, improvement, adjustment or renewal of the utility service;

(b) connecting or disconnecting the service;

(c) inspections for the purpose of ascertaining whether any such work is required;

(d) making plans in connection with any such work;

(e) carrying out any work that is necessary for, or incidental to, anything referred to in paragraphs (a)–(d).


(2) This section does not limit the kinds of work with respect to a utility service for which a utility service access order may be made.

Matters to be considered by Court

13. Before determining an application for an access order the Local Court is to consider the following matters:

(a) whether the work cannot be carried out or would be substantially more difficult or expensive to carry out without access to the land the subject of the application;

(b) whether the access would cause unreasonable hardship to a person affected by the order.

Conditions of access orders

14. (1) The Local Court may specify such conditions in an access order as, in its opinion, are reasonably necessary in the circumstances.

(2) Without limiting subsection (1), the conditions may include the following kinds of conditions:

(a) conditions imposed for the purpose of avoiding or minimising loss, damage or injury to the owner of the land to which access is granted or to any other person or to any other land or other property;

(b) conditions imposed for the purpose of avoiding or minimising inconvenience or loss of privacy caused to the owner of the land to which access is granted or to any other person;

(c) specified precautions and safeguards;

(d) the taking out of insurance cover by the applicant against such risks, if any, as may be specified;

(e) a condition varying or dispensing with any or all of the provisions of Division 2.


(3) The Court may impose a condition providing for the reimbursement by the applicant of any expenses reasonably incurred by the owner of the land to which access is granted that are not recoverable as costs under section 25.

Form of access orders

15. An access order is to specify:

(a) the land to which it permits access; and

(b) the work which may be carried out; and

(c) the date on or from which access is permitted and the date when access ceases to be permitted and, if appropriate, the times during which access is permitted; and

(d) any conditions specified by the Local Court; and

(e) the provisions of Division 2, as applying to the order.

Division 2—Effect of access orders

General effect of neighbouring land access order

16. (1) A neighbouring land access order authorises, for the purpose of carrying out work on land, a person to have access to adjoining or adjacent land in accordance with the order.

(2) Unless the Local Court varies or dispenses with any or all of the authorities and obligations set out in sections 18–21, a neighbouring land access order also authorises the actions, and imposes the obligations, set out in those provisions.

General effect of utility service access order

17. (1) A utility service access order authorises a person to have access to land to carry out work on a utility service on the land concerned in accordance with the order.

(2) Unless the Local Court varies or dispenses with any or all of the authorities and obligations set out in sections 18–21, a utility service access order also authorises the actions, and imposes the obligations, set out in those provisions.

Authority to carry out ancillary activities

18. An access order authorises:

(a) the access to and the remaining on the land concerned of such persons authorised by the applicant as are reasonably necessary to carry out the work; and

(b) the applicant to bring on, leave on and remove from the land such materials, plant and equipment as are reasonably necessary for carrying out the work; and

(c) the applicant to remove from the land any waste that may arise from carrying out the work.

Restoration of land and indemnity for damage

19. The applicant must:

(a) restore the land concerned to the same condition it was in before the access, so far as is reasonably practicable, before the date specified in the order for that purpose; and

(b) indemnify the owner of the land to which access is granted against damage to the land or personal property arising from the access.

Owner’s obligations

20. The owner of the land to which access is granted must permit access to the land in accordance with the order and this Act.

Persons bound by access order

21. (1) A person who is not a party to the proceedings for an access order, or expressly bound by the order, is not bound by the access order.

(2) However, a successor in title to an owner of land to which access is granted is bound by that order in the same way as that owner.

Division 3—Other provisions relating to access orders

Variation and revocation of access orders

22. A Local Court may vary or revoke an access order on application by the applicant for the order or by any other person affected by the order.

When access orders cease to be in force

23. (1) An access order ceases to have effect on the date specified in the order or on revocation under section 22.

(2) The cessation or revocation of an order does not affect the previous operation of the order.

(3) The cessation or revocation of an order does not prevent the enforcement by the owner of the land to which access is granted of any conditions of the order or obligations of the applicant imposed by this Act.

Compensation

24. (1) A Local Court may order that a person to whom an access order is granted pay compensation to the owner of the land to which access is granted for loss, damage or injury, including damage to personal property, financial loss and personal injury arising from the access.

(2) Compensation is not payable under this section for loss of privacy or inconvenience suffered by the owner solely as a result of access authorised by the access order or solely because of the making of the order.

(3) An order for compensation may be made at any time and may be made whether or not the order is in force.

(4) An action for an order for compensation may not be brought 3 years or more after the last date on which access occurred under the order.

(5) Any such order is enforceable as if it were a judgment for that amount by a Local Court exercising jurisdiction under the Local Courts (Civil Claims) Act 1970.

Costs

25. (1) The costs of an application for an access order are payable at the Local Court’s discretion.

(2) In determining whether the whole or part of the costs of an application for an access order are payable by a party, the Court may consider the following matters:
(a) any attempts by the parties to reach agreement before the proceedings;

(b) whether the refusal to consent to access was unreasonable in the circumstances;

(c) any other matter it thinks fit.

Failure to comply with access order

26. (1) A person must not fail to comply with a requirement of an access order that is applicable to the person.

Maximum penalty: 5 penalty units.

(2) It is a defence to an offence under this section if the other party to the order affected by the breach consented to the breach of the order.

(3) In addition to any other remedy, a Local Court may make an order for payment of damages by a party to the proceedings who fails to comply with a requirement of an access order or of Division 2 as applied to that order.

(4) Any such order is enforceable as if it were a judgment for that amount by a Local Court exercising jurisdiction under the Local Courts (Civil Claims) Act 1970.

PART 3—TRANSFER OF PROCEEDINGS TO OTHER COURTS AND APPEALS

Transfer of matters to other courts

27. (1) A Local Court must order the transfer of the whole or any part of the proceedings to the Land and Environment Court, if the amount of any compensation or damages involved is likely to exceed the amount of the Local Court’s jurisdiction in an action for the recovery of a debt under the Local Courts (Civil Claims) Act 1970.

(2) The Land and Environment Court may at any stage of proceedings transferred under subsection (1) order the transfer of the whole or any part of the proceedings back to the Local Court.

(3) A transfer of proceedings under this section may be made on the Court’s own motion or on the application of a party to the proceedings.

(4) The Land and Environment Court has, in respect of proceedings transferred under this section and in addition to any other jurisdiction and functions it has, the same jurisdiction and functions as are conferred on a Local Court by or under this Act (other than section 28 and 29).

Referral of questions of law by Local Courts

28. (1) If, in proceedings before it under this Act, a question of law arises, a Local Court may decide the question or refer it to the Land and Environment Court for decision.

(2) If a question of law is referred to the Land and Environment Court by a Local Court, the Local Court must not make an order or a decision to which the question is relevant until the Land and Environment Court has decided the question.

(3) On deciding the question, the Land and Environment Court must remit its decision to the Local Court and that Court must not proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Land and Environment Court.

(4) A reference under this section is to be made in accordance with rules of the Land and Environment Court.

Appeals from decisions of Local Courts

29. (1) A party to proceedings before a Local Court for an access order may appeal to the Land and Environment Court, on a question of law, against a decision to grant or not to grant an access order.

(2) The appeal must be made within 30 days after the decision to grant or not to grant an access order is made.

(3) If a party to proceedings before a Local Court appeals to the Land and Environment Court under this section, either the Local Court or the Land and Environment Court, may suspend, until the appeal is determined, the operation of any order or decision made in the proceedings.

(4) The Local Court may terminate a suspension of the operation of an order or a decision suspended by it. The Land and Environment Court may terminate a suspension of the operation of an order or a decision suspended by it or by a Local Court.

PART 4—MISCELLANEOUS PROVISIONS

Contracting out of Act prohibited

30. Any agreement, whether made before or after the commencement of this section, which would have the effect of preventing or restricting a person from applying for an access order is void to the extent that it would have that effect.

How notices may be served

31. A notice under this Act may be given to a person personally or by post addressed to the last known place of residence or business of the person to whom the notice is addressed.

Proceedings for applications or offences

32. Proceedings for applications or an offence against this Act are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

Regulations

33. (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) In particular, the regulations may make provision for or with respect to service of notices or orders where the owner of land or any other person cannot be found.

(3) The Governor may make rules for or with respect to regulating the practice and procedures of Local Courts in proceedings under this Act.

Amendment of Land and Environment Court Act 1979

34. The Land and Environment Court Act 1979 is amended as set out in Schedule 1.

Review of Act

35. (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

(3) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

(1) Section 19 (Class 3—land tenure, valuation, rating and compensation matters):

After section 19 (e), insert:

(e1) proceedings under sections 27, 28 and 29 of the Access to Neighbouring Land Act 1994;

(2) Section 36 (Delegation to assessors):

(a) In section 36 (1) (a), after “paragraph (b)”, insert “or subsection (1B)”.

(b) After section 36 (1A), insert:


(1B) The Chief Judge may not direct under this section that proceedings under section 27, 28 or 29 of the Access to Neighbouring Land Act 1994 are to be heard and disposed of by one or more assessors.

(3) Section 39 (Powers of court on appeals):

After section 39 (7), insert:

(8) This section does not apply to proceedings under section 28 or 29 of the Access to Neighbouring Land Act 1994.