Entry, access and privacy

Entry

Trespass

The law of trespass is available to anyone who is an ‘occupier’ – not just to the owner of the property. Under the law of trespass, if someone enters the property without permission you can ask them to leave. If they refuse to go when asked, they are trespassing and you can use reasonable force to remove them. If you use more than reasonable force however, you may be committing an assault and can be charged, or even sued by the trespasser.

A person invited on to your property, for example for a garage sale or an open house inspection, is only entitled to be there for that purpose and their right to remain evaporates as soon as you ask them to leave. A person who enters with a particular purpose (for example, a door-to-door salesman or a neighbour visiting) has an implied right to come onto your property and up to your door. But as soon as you withdraw your consent by asking them to leave, they must do so, as they are now trespassing.

Rather than resorting to force to remove the trespasser, you can call the police immediately and ask them to come and remove the trespasser and charge them. Under the Inclosed Lands Protection Act 1901 (sections 4, 4A), where the land is fenced or enclosed, there are various penalties for unlawful entry and offensive conduct. With or without a fence, you may also be able to sue the trespasser if damage or injury has been caused.

Where an object enters the property without permission or with permission but the permission is withdrawn, the object's owner should remove it immediately or risk being sued in trespass for any damage it causes. To retrieve the object, permission must be asked to enter the land for this purpose.

If the trespass by a person or object happens repeatedly and all other measures have failed, you may wish to apply to the Supreme Court for an injunction that orders the trespass to stop. Any breach of this order is a contempt of court and will be dealt with severely. If the injunction is needed urgently to prevent serious consequences, you may apply for an interim injunction that will operate immediately and continue in force until the court can hear the main injunction matter.

Proceedings in the Supreme Court can be costly, lengthy and complex. If you are considering this action, get legal advice. Often the better option is mediation. See Disputes and how to resolve them.

Hot Tip: Who is an occupier?

The ‘occupier’ is a term used often in legislation. It refers to who is actually occupying, or residing, in the property. So depending on the circumstances, it may be the owner or tenant or licensee or someone authorised by them, to occupy the premises. Being an occupier does not carry with it any particular property rights.

Nuisance

Nuisance occurs where there is an unintentional but continual activity that causes damage and interferes with the normal enjoyment of your property. It does not normally cover loss of sunlight or view except if it causes actual damage. Examples of nuisance, like leaking water or damage from tree roots are dealt with in following sections.

You can sue for compensation for damage caused by the nuisance or apply for an injunction but, like trespass, the law can be quite complex and proceedings can prove costly. Other alternatives to resolve the dispute should be considered.

Negligence

Under the law of negligence, each person has a duty of care not to cause injury to people or their property. The level of this duty is that of a reasonable person, exercising foresight and caution. If you fail to take reasonable precautions to prevent reasonably foreseeable harm and the harm happens, you can be sued for damages.

For example, if your dead tree overhangs the neighbour’s veranda where they often sit and yet you do nothing about it, it is reasonably foreseeable that one day the tree will fall and hurt them. If it does, you may be liable in negligence for the damage and the injury.

Again, the law of negligence can be quite complex. If your dispute concerns possible negligence, get legal advice.

Entry for fencing work

An adjoining owner who carries out fencing work under the Dividing Fences Act 1991 (section 20)may enter the adjoining land at any reasonable time, to carry out the work.

Access

Access orders

Under the Access to Neighbouring Land Act 2000 (Part 2 Access Orders) a person can make an application to the Local Court for an order allowing entry onto neighbouring land.

There are two types of orders you can apply for:

  • a Neighbouring Land Access Order
  • a Utilities Land Access Order.

A Neighbouring Land Access Order allows an applicant to enter neighbouring land for the purpose of carrying out work on the applicant’s own land. This includes work such as:

  • construction and demolition
  • inspection
  • removing, felling, cutting back or treating hedges, trees and shrubs and
  • ascertaining the course of drains, pipes and cables to renew, repair or clear them of blockages (section 12).

Before granting the order the Local Court must be satisfied that the applicant has tried to reach agreement with the person(s) whose consent is needed and that 21 days notice of the application has been given. Waiver of the notice period can be granted if the court thinks it appropriate in the circumstances (sections 10-11).

A Utilities Land Access Order allows an applicant to enter neighbouring land for the purpose of carrying out work on a sewerage, drainage, water, gas, electricity or telephone service. Anyone entitled to use the utility can apply for the order (sections 3 and 8). It applies to work such as:

  • construction
  • repair
  • improvement
  • connecting and disconnecting the service
  • carrying out inspections (section 14).

A person can apply for either or both orders. The orders can contain specific conditions outlining particular safeguards and precautions to be taken that minimise loss (including loss of privacy), damage and injury to the owner. They can also contain conditions regarding reimbursement for any expenses incurred by the owner. Failure to comply with any condition in the order can result in a fine of up to $550 and a payment of damages. A separate order for compensation can also be made for any loss or injury resulting from the access (sections 9, 16, 26, 28).

In all cases, the Act requires the applicant to restore the land, as much as reasonably practicable, to its previous condition and to indemnify the owner against any damage to land or personal property that results (section 21).

A Local Court decision regarding an order can be appealed, on a question of law only, to the NSW Land and Environment Court. The appeal must be lodged within 30 days of the decision being made(section 31).

Easements/Rights of way

An easement is a right over part of someone else’s land for a particular purpose, for example, as a right of way to cross a neighbour’s land. It may arise from a longstanding custom of use or it may be formally created by an agreement like a deed or by a planning instrument or court order. Formal easements or rights of way are registered and recorded on the Certificate of Title.

Easements may be created for various purposes, like allowing access to properties, to convey services, for support of awnings, to erect signage or to protect the flow of air or water. Encroaching buildings and even sewerage or drainage pipes on someone else’s land can be the subject of easements.

In NSW the Conveyancing Act 1919 sets out the requirements for creating, modifying and extinguishing easements. Applications for a court order creating an easement are made to the Supreme Court, and in limited circumstances, to the Land and Environment Court (Conveyancing Act 1919, section 7 and Land and Environment Court Act 1979, section 40).

Under section 88K of the Conveyancing Act 1919 the court can create an easement if it is satisfied that:

  • the use will not be inconsistent with the public interest
  • the owner of the land burdened can be adequately compensated for any resulting loss or other disadvantage
  • all reasonable attempts have been made by the applicant to obtain the easement.

An easement can be modified or extinguished by agreement, like a deed of release, or by court order. Examples of easements that can be extinguished by court order are those where the use of the land and the neighbourhood has changed, making the easement obsolete; or where the easement has not been used for at least 20 years (Conveyancing Act 1919, section 89).

Under section 89 a person can apply to the court for an order declaring whether an easement exists over particular land, and its nature and extent and also for an order to enforce an easement.

Privacy

Under the Crimes Act 1900, section 547C peeping or prying on another person in or near a building, without reasonable excuse is an offence attracting a fine of up to $220 or three months’ imprisonment. What is considered to be peeping or prying will depend on the circumstances of the case. If you feel uncomfortable about the neighbour’s behaviour call the police.

Offensive language or behaviour or exposing yourself within view or hearing of a public place or a school is an offence under the Summary Offences Act 1988, sections 4, 4A and 5. The law does not consider your home or yard to be a public place. The road or path or bus stop outside your home is, however.

If you live in strata, residential tenancy, retirement village or residential park accommodation, specific obligations apply concerning your neighbour’s privacy and safety. See Property rights and neighbours for more information.