There is no general right of access to neighbouring land in Tasmania, even if access is required to effect emergency repairs to one’s own house or property.
Whilst some entries to a person’s land by other people will be allowed, other entries will no be allowed, and may be prevented or give rise to legal action for compensation. It is the occupier of land who has the right to refuse permission to anyone wishing to enter his or her land in most circumstances.
Certain public authorities have powers of entry for reasons ranging from simple convenience to matters of public health and safety.
Under certain circumstances, a neighbour or other person has a right to enter a piece of land. Sometimes the occupier can take this right away, and sometimes not. The occupier may allow any person to come on to the land for a particular purpose. That person then becomes a licensee or invitee. Permission may normally be withdrawn at any time. After permission is withdrawn, the person is obliged to leave immediately or be considered a trespasser.
If a neighbour has a right of way across the land (a type of right called an “easement”), the right cannot normally be ended except by the agreement of both the adjoining landowners. Where a neighbour does have a right of way, he or she is restricted to simply crossing over the land. Any other use of the land is not allowed. Normally a right of way will exist by prior agreement of the neighbouring owners (or the owners before them) and will be written into the land title documents. Sometimes the right of way will exist because of a long custom to use the land for, say, a shortcut.
License to enter
In some situations, permission to enter can be implied. There is implied permission (known as a “licence”) to enter the land for the purpose of coming to ring the front door, or delivering goods.
If a neighbour is building or repairing a dividing fence, then the neighbour and any workmen have a right to come on to the adjoining land if this is necessary for the purpose (s44(1), Boundary Fences Act, (BFA)). An exception is if the land being entered is “in crop” or is “garden, orchard, plantation, shrubbery, or pleasure ground”. If this is the case permission of the owner or occupier is required (s44(2)).
A person is entitled to enter land within 1.5 kilometres of any land of which he or she is a owner, if he or she finds a fire burning on that land on a day declared to be a total fire ban or where the fire has been lit in contravention of the Fire Service Act 1979 (Tas).
There is no implied permission to enter a neighbour’s land to retrieve something that has crossed the boundary (for example, a ball, or a kite, or an animal).
Access to Neighbouring Property for repairs and work
The Access to Neighbouring Land Act 1992 (Tas) empowers courts to make access orders for access to neighbouring property. The Magistrates Court handles applications for court orders for access. The contents and conditions of access orders are contained in section 5 of the Act.
The court must be satisfied of two factors in deciding to grant an access order:
- the work for which entry is sought is reasonably necessary for the preservation of the land in respect of which the work is to be carried out; and
- the work cannot be carried out or would be substantially more difficult or expensive to carry out without entry to the land in respect of which entry is sought.
However, the court must refuse if entry to the land would cause unreasonable hardship to any person affected by the order. Access orders can pertain to a range of matters including:
- carrying out work of repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures; and
- inspection for the purposes of ascertaining whether any such work is required; and
- making plans in connection with any such work; and
- ascertaining the course of drains, sewers, pipes or cables and renewing, repairing or clearing them; and
- ascertaining whether any hedge, tree or shrub is dangerous, dead, diseased, damaged or insecurely rooted; and
- replacing any hedge, tree or shrub; and
- removing, felling, cutting back or treating any hedge, tree or shrub; and
- clearing or filling in ditches or
- any work that is necessary for or incidental to any of the above reasons.
Access orders only need to be sought if a neighbouring property owner does not agree to entry onto their property. Access orders are not a first step. Asking your neighbour, and talking person to person is the first step to take. Court ordered access orders are a last resort.
Trespass is an offence under the Police Offences Act 1935 (Tas). A trespasser may be asked by the occupier to leave, and be shown the way out. An occupier may forcibly remove a trespasser, but not with more force than is reasonably necessary, otherwise it may be an assault and allow the trespasser to sue the occupier. This risk should be avoided and the police called if a trespasser refuses to leave.
An occupier may sue a trespasser in order to obtain compensation for any damage caused. Most often so little damage is caused that it is not worth the time and expense of suing. If damage has been caused, then an action for compensation can be taken in a Court of Petty Sessions as part of a prosecution for trespass. If, however, the same person repeatedly trespasses, or seems likely to do so, the occupier can ask the Supreme Court to order that person not to do so again, that is, an “injunction”.
In very urgent cases when the repeated trespass is serious, an injunction, known as an “interim injunction”, can be obtained quickly from a Supreme Court from a judge in chambers. The services of an experienced lawyer will be necessary and the cost will be considerable unless legal aid can be obtained.