Neighbours and adjoining properties



No access and damages for delay



If access to or through adjoining land is required, the contract should clearly deal with responsibility for obtaining that access and any conditions of access. Where access to or through an adjoining property is required in order to get to the site, the principal will need to arrange for that access unless the contract places that obligation on the contractor.

On the other hand, if the contractor requires access to an adjoining property for its own convenience, or if the access provided by the principal is not sufficient to perform the works, then that will be a contractor's risk, unless the contract provides otherwise.

If a neighbour denies access and causes delay to the works, damages for the delay may be payable by the principal depending on the provisions of the contract and who is responsible for obtaining access.


Injunctions



Adjoining landowners with property endangered by building activities can obtain injunctions to protect their property from encroachment. For example, see Bendal Pty Limited v Mirvac Project Pty Limited (1991) 23 NSWLR 464 and Economy Shipping Pty Limited v ADC Building Pty Limited [1969] 2 NSWR 97.

There does not need to have been actual damage to a neighbour's property to obtain an injunction. A neighbour only needs to show that the manner and extent of the interference with their land, for example, their airspace, interferes with their ordinary use of their property. See, for example, Woollerton and Wilson Limited v Richard Costain Limited [1970] 1 WLR 411 and Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) VSCA 311.


Obtaining access to neighbouring land



If access to neighbouring land is required to undertake construction, but the neighbour refuses access, then legislation exists with the aim of assisting a party to gain access.

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