NATURE OF REFORM IN OTHER JURISDICTIONS
4.1 Developments in other jurisdictions reveals that a reappraisal of property related rights is taking place. In both the United Kingdom and Tasmania, specific legislation exists which permits access to neighbouring land in certain circumstances.1 In New Zealand the Property Law Act 19522 allows the District Court to authorise a landowner to enter on adjoining land for the purpose of erecting, repairing, adding to or painting a building, wall, fence or other structure on an applicant landowner’s land. In the Canadian provinces of British Columbia and Manitoba3 the courts have the discretion to permit an owner to enter adjoining property to carry out repair work and the like.
4.2 The legislative reform recommended by the Commission in this Report is closely modelled on the Tasmanian legislation, which is similar to the English legislation. The following paragraphs examine these pieces of legislation. Both pieces of legislation arose from recommendations made by the Law Reform Commissions in those respective jurisdictions.4
Class of applicant and respondent
4.3 The Tasmanian and English legislation does not restrict the class of person able to apply for an order for access, and nor does it restrict the class of persons against whom an order for access may be made. It is in the applicant’s interest to seek that the access order be made against all those persons who are likely to be affected by the order, regardless of whether those persons have legal title to the affected property or not. The English legislation specifically provides for those cases where the applicant does not know or cannot reasonably ascertain the name of any person whom he or she wishes to make a respondent to the application for access.5
Type of work authorised by the order
4.4 The Tasmanian and English schemes differ in what type of work can be authorised pursuant to an order for access. Following the recommendations of the Law Commission,6 the English Act only allows access for the purpose of preservation work where such work cannot be carried out, or would be substantially more difficult to carry out, without access to the neighbouring land (s 1 (2(a)-(b)). The Act’s definition of preservation work excludes work to be done for its own sake;7 however, there is some discretion for the court to allow work incidentally involving improvement work to the land.8 The requirement that the work to be done, is to be substantially more difficult to carry out without access, implies that the court may refuse an application for access where it is simply more convenient to carry the work out via a neighbouring property. Although the Law Commission accepted that there was a case for allowing access for work involving no element of preserving existing property (ie improvements and alterations done for their own sake or land development generally)9 it was reluctant to take this further step.10
4.5 In formulating it’s recommendations, the Tasmanian Commission considered that this approach was too restrictive and the English Commission had provided insufficient reasons why new building work should be excluded. The Tasmanian Commission recommended that the kind of work that an access order could authorise should be left in the hands of the tribunal determining the matter, which could take into account all of the relevant circumstances and considerations and impose any restriction that was necessary. The resultant legislation does not limit the type of work for which access may be sought although it attempts to provide an exhaustive list11 of the work for which access may be sought, including the repair and renewal of buildings, ascertaining the course of drains, sewers or pipes and repairing or clearing them, and replacing any tree or shrub.
Discretionary scheme
4.6 Both the English and Tasmanian legislation reflect recommendations made by the respective Law Reform Commissions that a discretionary scheme accommodating private rights of access was a more satisfactory and reasonable solution for those affected than an automatic right of access. The Tasmanian Commission12 felt that there were too many difficulties involved in defining the work an automatic right of entry would cover, when a discretionary scheme would be sufficiently wide enough to cover all possibilities. The English Law Commission13 favoured a discretionary scheme over an automatic or limited automatic right because of its flexibility and safeguards, and believed that there would be misgivings over the creation of a general right of access. Both pieces of legislation allow the court to impose conditions14 on access orders, in order to provide safeguards for those affected by the order. The legislation also allows the court the discretion to refuse to make an order for access where the court considers that entry would cause unreasonable hardship to any person affected by the proposed order.15
4.7 Both Commissions believed that the right of access should be a “one-off” right, as a permanent right of access would essentially amount to an easement, which would be inconsistent with the discretionary scheme that was proposed.16 The Tasmanian Commission did suggest that there may be circumstances where a permanent right of access might be justified. For instance, where the applicant landowner’s property needs periodic attention to maintain it in a safe condition, it may be unreasonable to require a fresh application for access each time. The Commission did acknowledge that such a right would be restricted to exceptional circumstances.17 The legislation that was enacted in these jurisdictions has made the right of access a singular right.
Compensation
4.8 One condition that can be attached to an order for access (for which both the Tasmanian and English legislation provide) is the requirement that some form of compensation be payable to the person over whose property access is granted.
4.9 Section 2 of the English legislation defines what terms and conditions may be imposed on the access order, and includes compensation for “any substantial loss of privacy or other substantial inconvenience”; and such payment for the privilege of entering the neighbouring land, as appears fair and reasonable in all the circumstances, having regard to the likely financial advantage of the order to the applicant,18 and the degree of inconvenience likely to be caused to the landowner. This section raises some difficult questions of causation, and does not apply to residential land. It is not apparent from a reading of the Act what type of orders will be made under this section. The annotations to the Act comment that because the commercial purpose of the applicant is irrelevant, estate owners will be able to take advantage of the section.19 Further, those owners of properties which are zoned both residential and commercial may argue in some instances that repairs are residential and will therefore not attract any payment of compensation. The example given in the annotations is where a property consists of shops with flats above them, and the landlord needs access to adjoining land to repair the roof, which he or she argues is “residential”. On that basis a landlord may escape payment.
4.10 The legislation departs in a number of respects from final recommendations made by the Law Commission. The Commission recommended that compensation should not be available for inconvenience on the basis that any compensation should reflect only actual loss and damage suffered as a result of the access, and further, there was no accurate means by which the court could be assisted to determine a figure payable.20 The Commission was of the view that a measure of inconvenience is something that simply must be endured as a fact of modern life, and in those situations where that inconvenience is considered to be intolerable, an access order would probably not be granted by a court. The Report recommended that compensation be payable for financial loss caused by the exercise of the right of access, but compensation for financial damage stemming from the doing of the work should not be recoverable as part of the same claim, but rather should be enforceable at general law if it amounted to a nuisance.21
4.11 The Commission also recommended that there should be no compensation available for any financial advantage gained by the applicant, essentially because of the difficulties that lie in assessing what that value would be, and the fact that the scheme was designed to prevent the respondent to an access order from sustaining loss caused by the access, not to reduce the benefit to the applicant of being able to repair his or her property.22
4.12 The Tasmanian Commission recommended that there be no restriction on the heads of compensation awarded by a tribunal, as it may be appropriate to order compensation for personal injury; nuisance and inconvenience; physical damage to personal property or for financial loss. The English proposals restricted the heads of compensation to loss, damage or injury which the neighbour suffers as a result of the access. The Tasmanian recommendations were made on the basis that occasions may arise where it may be appropriate to award compensation outside those heads.23 The Tasmanian Act however, excludes compensation for any loss of privacy or for any inconvenience that the owner of the land subject to the access order may suffer solely as a result of the entry authorised by the order, or solely by reason of making the order.24 The Act does provide for compensation to be payable to the owner of land over which access is sought, for loss, damage or injury, including damage to personal property, financial loss and personal injury.25
Jurisdiction
4.13 The Tasmanian legislation allows authorisation of the access order to be made by a magistrate or the Small Claims Division of the Magistrates Court. The English scheme permits an application for access to be made to a county court.
OTHER TYPES OF REFORM
4.14 As well as the reform discussed in the preceding paragraphs, other legislation exists in those jurisdictions which could assist a person to gain access over another’s property. Such reform concentrates on allowing the creation of permanent rights of access, in the form of easements, or the like, over neighbouring land. The Commission does not believe that this type of right needs to be created where access to a neighbouring property is sought.
4.15 In Queensland and Tasmania, a “statutory right of user” in the form of an easement, licence or other right can be conferred on one landowner at the expense of another, for the purpose of the first owner using the latter’s property.26 In the United Kingdom,27 recommendations have been made that an “appurtenant right” should be obtainable by a landowner against another landowner, thereby enabling the former either to do something on the other’s land, or require the latter to do or refrain from doing something on his or her land, or to pay or contribute to the cost of works which would benefit his or her own land. In New Zealand, in the case of “landlocked” land, a benefit of an easement over surrounding land can be granted to the “landlocked” landowner.28
4.16 Such rights can only be granted if specific conditions are met,29 including whether the proposed use for the affected land is consistent with the public interest (the English proposals require the use of the land to be in the public interest); whether the owner of the affected land can be adequately compensated (New Zealand only provides for compensation at the court’s discretion); and whether the landowner has been unreasonable in refusing to accept the obligation sought by the other landowner. Despite these conditions, the court or tribunal to which the application is made, appears to retain a wide discretion in respect of the purpose for which a “statutory right of user” or “appurtenant right” can be granted. For instance, the Queensland legislation allows the right to be in the nature of a right of way, access to land, and the right to place any utility service across, through or under land.
SUMMARY
4.17 The need for occasional access over adjoining land is a major problem affecting neighbours, and a number of jurisdictions have enacted or recommended reform to overcome the situation where such access is not otherwise available.
4.18 The Commission favours the reform which allows a discretionary scheme of access such as exists in Tasmania and England and Wales. In particular, the flexible scheme which exists in Tasmania, which does not restrict the type of work that can be permitted by an access order, but leaves it to the discretion of the court to determine what is an appropriate application in the circumstances.
4.19 The Commission does not support the English step of allowing compensation for any loss of privacy or inconvenience that an access order may give rise. In the Commission’s view there is no accurate means by which a court could assess an appropriate figure. Although some infringement of privacy will always be present whenever an order for access is made, the Commission does not believe this should prevent an order from being made. A measure of inconvenience is an inevitable consequence of modern social and physical proximity.
4.20 The Commission also believes in the importance of attempting to reach an arrangement with the affected neighbour prior to making an application to the court for access. This premise is supported in the legislative reforms discussed in this chapter. The Tasmanian legislation makes an attempt to reach an agreement with the neighbouring landowner, (and failing this, at least providing that neighbour with notice of an intention to apply to the court for access) a condition precedent to the court making an order for access. Whilst the English legislation does not have as specific a requirement, the legislation implies that some discussion with the affected neighbour should have taken place, since an application for access is made by a person who does not have the consent of some other person to that entry.
FOOTNOTES
1. See Access to Neighbouring Land Act 1992 (England & Wales); and Access to Neighbouring Land Act 1992 (Tas).
2. Section 128.
3. For British Columbia see Property Law Act, RSBC 1979, c.340 s 30: and for Manitoba see Law of Property Act, RSM 1987, c.L90 s 39(2).
4. See England and Wales. The Law Commission Rights of Access to Neighbouring Land (Report 151 1985); and Tasmania. Law Reform Commission On Private Rights of Access to Neighbouring Land (Report 42 1985).
5. Access to Neighbouring Land Act 1992, s 4(3).
6 Reasons given by the Commission for limiting an access order to only allow this type of work included; that the actual complaints about lack of access which had given rise to the reference only related to preservation work; that an order for access for the purpose of preservation work would be more readily accepted by neighbours than an order permitting access for other types of work; and that the proposed access scheme depended on the relevant work being “reasonably necessary”. The degree of necessity in the case of preservation work would generally be greater than where the work was for the purpose of improving the property, thereby enhancing its value. See LCR 151 at para 4.4.
7. Section 1(4) states:
(4) Where a court is satisfied on an application under this section that it is reasonably necessary to carry out any basic preservation works to the dominant land, those works shall be taken for the purposes of this Act to be reasonably necessary for the preservation of the land; and in this subsection “basic preservation works” means any of the following, that is to say-
(a) the maintenance, repair or renewal of any part of a building or other structure comprised in, or situate on, the dominant land;
(b) the clearance, repair or renewal of any drain, sewer, pipe or cable so comprised or situate;
(c) the treatment, cutting back, felling, removal or replacement of any hedge, tree, shrub or other growing thing which is so comprised and which is, or is in danger of becoming, damaged, diseased, dangerous, insecurely rooted or dead;
(d) the filling in, or clearance, of any ditch so comprised;
but this subsection is without prejudice to the generality of the works which may, apart from it, be regarded by the court as reasonably necessary for the preservation of any land.
8. Section 1(5).
9. LCR 151 at para 4.4.
10. LCR 151 at para 3.28.
11. S 5(3)(a)-(h).
12. Tas LRC 42 at 12.
13. LCR 151 at para 3.35 and 3.42.
14. See Access To Neighbouring Land Act 1992 (Tas), s 6; and Access To Neighbouring Land Act 1992 (E&W), s 2.
15. See Access To Neighbouring Land Act 1992 (Tas), s 5(2); and Access To Neighbouring Land Act 1992 (E&W), s 1(3).
16. LCR 151 at para 4.63.
17. Tas LRC 42 at 14.
18. A complex formula for ascertaining what that financial advantage may be is contained in s 2(6).
19. Chapter 23 Current Law Statutes Annotated at 23-7.
20. LCR 151 at para 4.52-4.54.
21. LCR 151 at para 4.51.
22. LCR 151 at para 4.58.
23. Tas LRC 42 at 14.
24. Section 6(3).
25. Section 6(2)(g).
26. See Property Law Act 1974 (Qld) s 180 and the Conveyancing and Law of Property Act 1884 (Tas), s 84J (1)-(7).
27. England and Wales. The Law Commission Appurtenant Rights (Working Paper No 36 1971).
28. Property Law Act 1952 (NZ), s 129B.
29. See Property Law Act 1974(Qld) s 180(3); Conveyancing and Law of Property Act 1884(Tas) s 84J; and WP 36 at para 118.
