THE REFERENCE

1.1 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 the Chamber Magistrates group, Community Justice Centres (hereafter referred to as CJCs), the Public Solicitor’s Office and four community legal centres identified matters suitable for inclusion in the Commission’s Community Law Reform Program.

1.2 During December 1986 and January 1987, the Commission distributed a Community Law Reform Program pamphlet designed 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, and problems created by large trees and noise.

1.3 The response to the pamphlet caused the Commission to seek one reference on dividing fences and another on neighbour and neighbour issues. A Report on Dividing Fences was published in 1988.¹ A Discussion Paper entitled Neighbour and Neighbour Relations² was released in April 1991. As a result of the response to this Discussion Paper (hereafter referred to as DP 22), and further work undertaken by the Commission, it was decided to publish two reports. This Report considers the existing law relating to:

• private rights of access to neighbouring land to maintain and repair fixtures on one’s own property; and
• private rights of access to neighbouring land to carry out work on utility services on that neighbouring land.

The second Report will focus on disputes relating to noise and trees.

WIDER CONCEPT OF "NEIGHBOUR"

1.4 DP 22 focussed primarily on relationships between residential neighbours. The Commission has given this distinction further consideration and has decided that there is no reason in principle, why the concept of “neighbour” for the purposes of this reference should not include commercial or industrial neighbours. Over-sailing cranes on city building sites were raised as a particular problem affecting commercial neighbours, where in the absence of permission from the neighbouring landowner for the crane to enter that neighbouring airspace, a trespass occurs. If such permission cannot be obtained, the construction may be indefinitely delayed, resulting in considerable cost to the developer. The recommendations in this Report thus extend to all neighbours, not only residential neighbours.

CONSULTATION AND SUBMISSIONS

1.5 The Commission sought submissions from both the general public and specific interest groups. Departments and organisations including the Land Titles Office, the Law Society of New South Wales, the Board of Surveyors and the Council for Community Justice Centres responded to the Discussion Paper. Although the Commission did not receive many submissions overall, the responses received supported legislative reform of the area of law under consideration.

1.6 As part of its consultation process on the reference, the Commission also conducted a “phone-in” on 18 October 1991. The Commission received over 300 calls on the day and the number of follow-up calls and submissions was overwhelming. The “phone-in” was given extensive media coverage on Sydney radio stations and newspapers. The results of the “phone-in” provided the Commission with valuable information concerning the range of problems occurring within the community and the varied experience of those seeking resolutions of these problems both inside and outside the legal system.

ISSUES COVERED IN THIS REPORT

1.7 People buy houses and land for privacy and security. Many believe that they should have the right to deny entry to their property to anyone they choose. Modern living conditions, the desire of property owners and that of the public generally, to keep properties maintained or developed, and the need to rectify problems that have arisen where utility services pass through a neighbouring property, are among reasons why property related rights need to be reassessed. Inroads into this area of law have already taken place. There are, for example, statutory rights of entry allowing the Crown and its agents to enter private property without the consent of the owner. Further, recent court decisions have permitted a “trespass” subject to payment.³

1.8 In practical terms, the number of occasions on which the lack of access to a neighbouring property actually causes problems may not be great. Neighbours may be able to negotiate a solution themselves, perhaps involving the payment of money by the landowner seeking access. Unfortunately, this spirit of compromise will not exist between all neighbours and a refusal of access may not only lead to a deterioration of the relationship between the neighbours, but also of the property, which in turn may risk the health and safety of those neighbours.

1.9 This Report considers the question of access to neighbouring land for two main reasons.

• The first is where the access is sought for the purpose of doing something to a person’s land from neighbouring land. Some examples of this include the repair or maintenance of existing property, such as eaves, or the undertaking of new building work on that property, but only as a result of being able to enter and work from the neighbouring land.
• The second issue is where access is sought to do work on neighbouring property, for the benefit of one’s own land. The particular instance referred to in the Discussion Paper and this Report is where a person solely or jointly uses a utility service pipe that is not directly connected to the main, but traverses neighbouring property before reaching the main, and that service is in need of repair, but can only be repaired by working on the service on the neighbouring property. In a number of cases an easement may exist allowing access to that service, in favour of the property or properties being served. There are cases however, where there is no such right, and the neighbour’s permission to enter the land may not be forthcoming.

1.10 Various reform measures have been introduced in other jurisdictions. The Access to Neighbouring Land Act 1992 (Tas) and the Access to Neighbouring Land Act 1992 (England and Wales), enable persons who wish to carry out work on their land, to obtain access to neighbouring land to do so. Section 180 of the Property Law Act 1974 (Qld) empowers the court to grant a landowner a “statutory right of user” (a right in the nature of an easement) to do such work in certain circumstances.

NON-COURT BASED AND COURT BASED RESOLUTION OF ACCESS DISPUTES

1.11 The reforms proposed in this Report should be regarded as remedies of last resort. Finding a mutually acceptable solution with the neighbouring landowner is the first step, and mediation of any consequent problems should be attempted prior to litigating them. As pointed out by the Law Society in its submission,⁴ the most appropriate forum for any neighbour dispute is the one most able to provide a suitable remedy quickly and inexpensively. Since the establishment of CJCs in 1980, mediation with the guidance of trained mediators has proved to be the quick and inexpensive means of resolving many “backyard” disputes. Such resolution is conducted on an informal basis, without the procedures and expense associated with a court-based resolution. Most importantly, any settlement that is reached has been determined and accepted by the neighbours themselves.

1.12 Unlike parties to other forms of disputes, neighbours live in close proximity to each other and have a continuing relationship; they cannot simply walk away from each other after a dispute has been resolved. Often, intractable disputes will arise between them that cannot be resolved outside the court process. The recommendations made in this Report are designed to assist the individual and the court where litigation appears to be the only solution. It is not just the intractable nature of some disputes that makes them unsuitable for mediation; the issues themselves maybe beyond the scope of the services offered by a mediator.

1.13 Complex issues concerning property law may be involved, which require analysis of legal principles, and in the case of some utility services, the enforceable apportionment of costs in respect of maintenance or relocation. The trained personnel at a CJC may not have the relevant expertise in property law, with the result that mediation of such disputes may not be a practical solution in some cases.⁵

1.14 Traditionally where persons have sought a court based resolution, the determination of property rights has been within the jurisdiction of the Supreme Court. DP 22 raised for consideration whether other more accessible and less expensive forums to resolve disputes between neighbours over access should be available. These included the Land and Environment Court, the District Court, the Local Court and a new tribunal which would only deal with neighbour disputes.⁶

1.15 The concept of a specialised “Neighbour Tribunal” was not supported in the submissions to the Commission on the ground that it would merely duplicate the service already provided by the Local Court. The proposal to make the Land and Environment Court the relevant jurisdiction for handling these disputes was also not generally supported; in particular, the Land and Environment Court⁷ did not want its jurisdiction increased to accommodate these types of disputes. The Local Court system was considered the most appropriate forum for resolving such access disputes between neighbours. The draft legislation attached to this Report recommends that given the Land and Environment Court’s powers, and the nature of the disputes that it regularly adjudicates, it should at least be a court of appellate jurisdiction.

OUTLINE OF THIS REPORT

1.16 Chapter Two of this Report examines the general history and current problems surrounding access to neighbouring land and looks at changing judicial attitudes which are enabling a more pragmatic approach to be taken in this area. Chapter Three considers the particular problems raised in DP 22 in respect of utility services. Chapter Four looks at the reform that has taken place in other jurisdictions to enable a person to gain access over neighbouring land. Chapter Five discusses the Commission’s recommendations for reform.

1. New South Wales. Law Reform Commission Dividing Fences (Report 59, 1988). The Commission’s recommendations in that Report form the basis of the Dividing Fences Act 1991, which was assented to on 17 December 1991 and commenced in February 1992. A media release by the Minister for Local Government, Mr Peacocke, dated 24 September 1991 stated that “the Act is intended to give a clearer way of identifying the need for and type of fence required between properties and the contribution required by neighbours to the cost”.

2. New South Wales. Law Reform Commission Neighbour and Neighbour Relations (Discussion Paper 22, 1991).

3. See Dupen & Anor v K W Semken Pty Limited & Ors (unreported) Supreme Court, NSW, 21 May 1986, Bryson J, ED 5126/86; LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd, (1991) 24 NSWLR 490; Bendal Pty Ltd v Mirvac Projects Pty Ltd, (1990) 23 NSWLR 464; and Meriton Apartments Ltd v Baulderstone Hornibrook Pty Ltd (unreported) Supreme Court, NSW, 9 March 1992, Young J ED 4940/91. See also Fritz Schroder & Anor v Eventang Pty Limited & Ors (unreported) Supreme Court, NSW, 4 March 1994, Windeyer J ED 1212/94.

4. The Law Society of New South Wales, Submission and Comments, (hereafter Law Society Submission) (November 1991) at 11.

5. This is recognised by Community Justice Centres, see Community Justice Centres Council, Submission, (9 July 1991) at 3.

6. Only five submissions received by the Commission gave specific comments on the resolution of access disputes between neighbours, namely the Law Society of New South Wales, the Council of Community Justice Centres, the Australian Dispute Resolution Association, the Board of Surveyors, and the Land and Environment Court.

7. Land and Environment Court, Submission, (26 September 1991).