Can I access my neighbour’s airspace? by Robecca Cunningham
The common law position
The Court in Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 (Bendal) confirmed that a trespass to the airspace over land only occurs if the nature and height of the trespass ‘may interfere with any ordinary uses of the land which the occupier may see fit to undertake.’ In this case an encroachment by protective mesh screens that were ‘projecting from a high-rise building site and movement of materials from ground level to heights above the screens’ were found by the Court to be a continuing trespass.
Neighbouring Land Access Orders
The Access to Neighbouring Land Act 2000 (the Act) enables owners of land that require access to adjoining or adjacent land (including persons carrying out work on behalf of the owner) to apply to the Local Court for a neighbouring land access order. Persons entitled to the use of a utility service who are not the owners of land on which it is located, and who require access to carry out works on the utility service, are also able to apply to the Court for a utility access order.
Negotiation is required before making an application to the Local Court
The jurisdiction of the Local Court to make a neighbouring land access order is only enlivened if it is satisfied that access to adjoining or adjacent land is required for the purpose of carrying out work on land.
The Court must not make an order for access unless:
1. there has been reasonable effort made to reach agreement; and
2. the party seeking access has provided at least 21 days notice of its intention to file an application for access orders to be made.
Local Court to consider particular matters in determining an application
In accordance with the Act the Court is required to consider:
1. 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, and
2. whether the access would cause unreasonable hardship to a person affected by the order.
In deciding to grant an injunction the Court in Bendal considered that the hardship claimed was incurred as a result of the defendant’s own conduct which involved a deliberate choice to use a lower cost construction method which required encroachment into the neighbouring airspace.
If you are planning works which require access to neighbouring lands we can assist with early negotiations to avoid expensive project delays.
Need to access your neighbour’s airspace? Get in touch with Shaw Reynolds Lawyers to discuss the considerations today.