Access to Neighbouring Land

Disputes over access associated with performance of building work are not uncommon.

Section 140 of the Planning Development and Infrastructure Act 2016 (SA) (PDI Act) provides a framework for such disputes to be resolved by way of an application to the Environment, Resources and Development Court (Court).

Kempe v Esplin [2024] SAERDC 27 is the first decision of the Court under section 140 and, as such, provides useful guidance about the how the section is to be interpreted and what considerations will be taken into account.

The full decision is available to read here.

Background

Mr Kempe and Mr Esplin are owners of adjoining allotments. Mr Kempe resides on the land, and Mr Esplin leases out the property to tenants.

Mr Kempe had undertaken an unlawful extension of a deck area, as well as an extension of a verandah roof. The deck had also been enclosed with mini orb cladding material that was not located on the boundary.

In granting retrospective development approval, Alexandrina Council required Mr Kempe to undertake modifications to ensure that the cladding is relocated on the boundary. The nature of the works included removing 13 metres of the boundary fence, approximately 16 metres of the orb cladding, removing and then replacing the fascia and gutter, installing corrugated sheeting along the bounding, and pruning an existing tree on the adjoining land.

It was necessary for Mr Kempe to access Mr Esplin’s property to carry out the works. Mr Esplin denied access to his property.

Reasons for refusing access

• During a heavy rainfall event in 2020, stormwater from Mr Kempe’s gutter overflowed onto Mr Esplin’s property, allegedly causing extensive damage to the property. Mr Esplin was concerned that Mr Kempe would cause further damage to his garden and land, ‘through works, dismantling of gutters, and removal of posts’.
• The approved plans subject of the variation application were hand drawn by My Kempe, who is a licensed builder. Mr Esplin was concerned that the plans indicate an encroachment on his property.
• As Mr Esplin’s property was being leased out at the time of these proceedings, he was concerned that Mr Kempe’s work would impact the tenant’s right to quiet enjoyment, and the tenant would consequently demand a reduction in rent.

Interpretation of Section 140

Under section 140, if a person requires access to an adjoining allotment in order to carry out building work on their own land, they may serve a notice on the owner of the adjoining allotment requesting that they may be given access. The notice must be in the prescribed form and set out certain information including what, when, and by who the building work is to be carried out.

If access is denied by the landowner, an application may be made under s140(4) to obtain authorisation from the Court.

Section 140 is new in the sense that the repealed Development Act 1993 did not contain a similar provision.

Regard to explanatory material

The Court took the view that the wording of section 140(1)(b), specifically ‘any building work with respect to the relevant place’ is broad, and is ‘ambiguous or obscure’ enough to warrant regard to extrinsic material to assist in the interpretation of the provision.

In considering the second reading speech of Parliament, the Court found that section 140(1)(b) is intended to limit the scope of building work to that which is ‘adjacent to boundaries’, but without providing any more precision as to what is meant by ‘adjacent’

Reasonable reasons for access

It is well accepted that granting authorisation to a third party to access neighbouring land would infringe on the fundamental property rights of the landowner. That being said, the Court established factors that should be considered when determining if a request to access neighbouring land is reasonable:

• whether the work cannot be carried out or would be substantially more difficult or expensive to carry out without access to the adjoining land;
• the potential for damage to the property of the adjoining landowner and whether the person seeking access has the financial resources to compensate the adjoining landowner for any damage;
• the extent of the interference with the land of the adjoining landowner;
• the extent of the inconvenience likely to be suffered by the adjoining landowner, including the period over which the access is to take place; and
• the reasons provided by the affected neighbour for denying access in the first place and whether their concerns are valid or justified and the extent to which the concerns could be overcome by way of the imposition of conditions on any authorisation, if granted by the court.

In having regard to the above factors, the Court ultimately granted Mr Kempe authorisation to access Mr Esplin’s land. The interference with the land, in relation to the use of tools, potential damage to the land, and persons completing the building work must be carried out in such a way that would minimise disturbance to Mr Esplin’s property.

Take home messages

Whilst applications under section 140 will usually not involve councils, councils are often dragged into neighbourhood disputes in one way or another.

For front-line and customer-facing staff who may be contacted by a disgruntled neighbour, having an understanding of how an access dispute would ultimately be resolved by the Court, is likely to assist.

Should you have any questions or for more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8210 1297 or ppsaltis@normans.com.au.