The law of real property has not kept pace with modern living conditions which often necessitates access to or over another person’s property. Generally, the common law does not permit such access, except where an easement or other formal right of access exists. The Commission recommends statutory reform in this area of the law to allow a person to apply to the court for access over an adjoining or adjacent property in certain circumstances. The main features of the Commission’s recommendations are as follows:

A person should have the right to apply to a Local Court for an order for access to or over adjoining or adjacent land in two situations.

Neighbouring land access order: This order is sought by a person requiring access in order to carry out work (for example, repair or demolition work) on his or her own land.

Utility service access order: This order is sought by a person requiring access to carry out work on a utility service (for example, a sewerage service) situated on neighbouring land, where the applicant is entitled to the use (solely or jointly) of that service.

The applicant for an order must give at least 21 days notice of the lodging of the application to persons who may be affected by the order.

An order for access does not create a permanent right. It expires on the date specified in the order unless revoked earlier by the court. If the property subject to the access order is transferred during the time the order is in force, the order binds successors in title.

The court, in granting the order, may impose terms and conditions on the access order. These terms and conditions should assist in avoiding or minimising loss, damage, injury, inconvenience or loss of privacy caused by the order.

The Local Court is the preferred forum for the resolution of routine “neighbour disputes”. It is, therefore, appropriate for the Local Court to have jurisdiction to make access orders. If a dispute involves compensation or damages exceeding the jurisdiction of the Local Court, the magistrate must transfer proceedings to the Land and Environment Court. Questions of law may also be transferred to the Land and Environment Court. An appeal from a decision of a Local Court is made to the Land and Environment Court, on a question of law only, within 30 days after a decision to grant or not to grant an access order.

The court has a discretion to determine the payment of the costs of the application. In making a determination, the court has a discretion to take into account any attempts made by the parties to reach agreement before the proceedings, whether the refusal to allow access was reasonable in the circumstances, and any other matters it considers relevant.