Good morning, my name’s Cameron Marshall, I’m a partner at OMB Solicitors. Today I’m going to talk about what happens when you, as an owner of land, have a development happening next door and you get a request for access to your property.
It’s a very common occurrence on the Gold Coast, development is what built this city and it will continue to do it in the future. That said, it when someone comes and asks you for access to your land, what do you do? Well, there’s a few things you can do, and I’m going to go through those today with you.
So the first thing is don’t panic, okay? It’s a very common occurrence of a developer wanting access, especially for swing plans for cranes over a neighbour’s land, okay. So first thing, don’t panic, it’s common. We at OMB can help you out and deal with it.
That brings me to step two. What do you do? You come and see OMB Solicitors and we will help negotiate what they call a access deed if you wish to give access to your property and that brings me to a little bit of the law on this situation is, firstly, you own your land, you don’t have to give access to the developer next door if you don’t want to.
I’ll raise one caveat with that, there is legislation, the Property Law Act, which does provide that a landowner is able to seek access through the access of the legislation, if it is essential for the use of their property to have to be able to access your land, okay.
So there is a provision in the law that allows access to be sought through the courts, but that’s granted only after a certain process is satisfied and criteria are ticked off. So I’m not going to go through that today, but I just wanted to step one is you don’t have to give access. But there are some caveats to that statement.
The next part I wanted to discuss is why would you give access to a property owner wanting access to your land? Well, there’s a few reasons. The first one, and it’s an important one, is it gets you a seat at the table, so to speak, of the development next door. So a tenant of law that goes back for hundreds of years is a landowner can do what they want with their property, okay.
So if someone’s wishing to build a development next door to your property, as long as it’s compliant with the appropriate approvals, they can do so. You have limited right of objection to what happens on their land because it is their land.
However, if they want access to your land, then you get a seat at the table to be able to have a say in things that you otherwise may not get a say in. I’ll give you an example, work hours. The development approval will have a work hours from the council.
You may decide if you, say, operate a business or if you’re a body corporate, that you may wish for a little bit quieter period from a 6:30 start that’s allowed and want to push it out to say, 7:30.
You could negotiate with the landowner next door to be able to be a part of the access provisions that those hours of work are changed, otherwise you wouldn’t get it. Another thing you normally would be able to negotiate is an indemnity.
If something happens and damages your property, you get a right of indemnity, usually under the deed of access as a condition of you providing access to the property.
That means if something happens to your land or your property, you’ve got an easier right of compensation and a right of recovery against the developer next door.
Another reason is compensation, compensation can be sought and asked for and is commonly given when a developer is wanting access to a property. Of course it can’t be unreasonable, but it allows some type of compensation for you giving up the right of the use of your land for a period of time.
There’s also insurances cover, you can make sure that are taken so the developer has the appropriate cover in the case that something goes wrong, hopefully it won’t, but if it does, you want to ensure that they’ve got appropriate cover.
There’s other things that can go into the deed, but generally it is a way of ensuring protection for your property as a trade off for the use of your land for a period of time.
It’s not an indefinite period of time, of course it’s up to you how long it extends, but it’s usually for the extent of the development. So if a landowner next door is wanting access to your property, don’t panic, come and see OMB solicitors and we can walk you through the process without stress.