Construction projects rarely operate in isolation from the surrounding world.
In dense urban environments, developers and contractors need to interact with neighbouring land, decide whether to swing a crane, install rock anchors, or simply move materials.
Access to the necessary surrounding land is sometimes treated as an afterthought, something to resolve once the project is underway. That approach creates unnecessary legal and commercial risk.
Securing an access deed early helps you manage key risks and identify potential disputes, along with their cost and delay implications, before they arise.
Access rights and trespass
An access deed is a contractual agreement that grants temporary permission to use another person’s land.
In construction, it is typically a tripartite arrangement between the developer, the head contractor, and the neighbouring owner, giving a licence to enter or encroach on that land for defined purposes.
The need for access arises in a wide range of common scenarios. These include crane overswing into neighbouring airspace, subsurface encroachments such as rock anchors or tiebacks, scaffolding or fencing, site access routes, material storage, and even ongoing monitoring or maintenance activities.
Despite how routine these activities are, the underlying legal position is strict. Long-held property law principles in Australia mean landowners have rights not only to the surface of their land, but also to the airspace above and the soil beneath it, subject to reasonable use and enjoyment. Any unauthorised intrusion into that space, whether above or below ground, can constitute trespass.
Trespass is actionable even where no damage occurs. A developer or contractor can be liable to pay compensation for trespass without any proof of harm, and the absence of damage is not a defence.
The real consequences of getting it wrong
The courts have consistently taken a firm approach against unauthorised access to private land. They have shown a willingness not only to award compensation or damages to the aggrieved neighbour, but also to grant injunctions halting the trespass.
Two cases illustrate this:
- In Graham v K D Morris & Sons Pty Ltd [1974] Qd R 1, a crane jib swung over a neighbouring property while in weathervane mode when not in use. The builder argued that it could not prevent the movement and that damages would be sufficient. The court disagreed and granted an injunction, forcing the builder to stop the trespass. The judge was critical of the builder’s failure to seek permission early, describing it as a “cavalier attitude”.
- In Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52, a developer installed rock anchors beneath a neighbour’s land despite express objections. The court ordered the removal of those anchors within 14 days, even though doing so created significant technical and safety challenges.
For developers and contractors, the implications are serious. An injunction can halt critical works immediately while a removal order may require costly rework. In either case, the disruption can derail the construction program and expose the project to delay claims and liquidated damages.
Commercial risks extend beyond the dispute
Where a construction contract places land access risk on the contractor, delays caused by an access dispute are unlikely to qualify as an extension of time, because they stem from the contractor’s own failure to secure the necessary permissions. That exposure can mean liquidated damages, prolongation costs, and unrecoverable expenses such as plant hire and idle labour.
There are also insurance implications to consider. Trespass is an unlawful act, and many policies exclude cover for deliberate or unlawful conduct. If something goes wrong while a contractor is operating without proper access rights, it may find itself without insurance protection at all.
Why early engagement matters
The most effective way to manage access risk is to engage with neighbours as early as possible. Do not assume access will be granted on request. Instead, treat it as a negotiation process that requires time, information, and flexibility.
Early engagement achieves several things.
First, it reduces the risk of last-minute leverage. If negotiations happen late, for example when a crane is due on site or critical works are about to begin, neighbours may recognise their bargaining position and demand more onerous terms or higher compensation.
Second, it allows time to address concerns. Neighbours are more likely to cooperate where they understand the project, the duration of access, and the measures in place to manage impacts such as noise, safety, and damage.
Third, it creates a record of reasonable conduct. If negotiations ultimately fail, showing that reasonable attempts were made to reach agreement matters, particularly if court intervention becomes necessary.
The flexibility of access deeds
One of the advantages of an access deed is its flexibility. The terms can be tailored to the specific project and the nature of the required access.
Common provisions include the scope of access (for example, defined airspace or subsurface areas), permitted works, access times, duration, and compensation. The deed can also address practical matters such as safety obligations, insurance requirements, make good obligations, and indemnities.
Compensation, in particular, is not limited to monetary payments. While financial compensation is common, it can also take other forms, such as property repairs, cleaning, or reinstatement works. This flexibility can help bridge gaps in negotiations and reach commercially sensible outcomes.
The alternative is rarely attractive
Where agreement cannot be reached, legislation provides a pathway to seek court-ordered access, such as a statutory right of user application under section 180 of the Property Law Act 2023 (Qld).
However, this process is not a quick fix.
An application requires evidence that the access is reasonably necessary, consistent with planning approvals, in the public interest, and that reasonable attempts to negotiate have been made. It also takes time and money, brings uncertainty, and still requires a successful applicant to pay compensation to the neighbour.
A proactive approach to access
In a construction environment, time, cost and coordination all matter. Securing an access deed early is not just good practice. It is essential.
That means identifying early whether neighbouring land will be required, engaging with those neighbours well before construction, and formalising arrangements through an access deed that reflects the realities of the project.
By taking these steps, developers and contractors do more than avoid disputes, as they protect the program, manage commercial risk, and secure the certainty needed to deliver projects efficiently.
