Without an access deed in place, any access to a neighbouring property will likely be considered a trespass, potentially exposing the trespassing party to significant costs or damages. An access deed is required irrespective of what type of access is needed, be it air, subsurface or simply on the land itself.
Planning ahead
The most effective way to manage access deed risk is to address it early. During the tender and planning stages, project teams should assess whether neighbouring access is required, what form that access will take, and who will be responsible for securing it. This article covers six considerations developers and contractors should address when negotiating access deeds:
Getting the scope of access right
The starting point in any access deed negotiation is defining the scope of the licence. This involves more than simply identifying that access is required. Parties need to clearly articulate what type of access is sought, how it will be exercised, and when and where it will occur.
Developers and contractors should carefully consider the purpose of the access. For example, a crane overswing licence may need to distinguish between passive oversail and active load movement. Similarly, rock anchors may be temporary or permanent, which can have different implications for a neighbour.
Equally important is defining the physical extent of access. Is the licence limited to airspace, subsurface intrusion, or a specific portion of land? The deed should describe this with precision (often by reference to height, depth, or location) and, ideally, include a marked-up plan to avoid ambiguity.
Failing to clearly define the scope of access invites dispute. It also creates risk that if the works undertaken fall outside the permitted licence, the contractor would likely be found to be trespassing, despite having an executed access deed.
Who can access and when
Two areas that regularly require careful negotiation are:
- who can access the neighbouring land; and
- when that access can occur.
From a developer’s perspective, access should extend to all parties who reasonably need it, including their builder and the builder’s subcontractors, consultants, and agents. Limiting access too narrowly can create inefficiencies or require repeated approvals. This is simple to manage in an access deed, but easy to overlook.
Timing is equally critical. While neighbours may prefer access to be limited to standard working hours, construction activities such as crane operations or anchor installations may require flexibility, including access after hours or on weekends, for example when a crane weathervanes when not in use. If the deed does not accommodate this, the contractor may face constraints that affect programme and cost.
Duration and extensions
Access deeds typically operate for a defined term, with a commencement and expiry date. However, construction programmes rarely proceed exactly as planned. Parties should therefore address whether the licence can be extended, on what terms, and for how long.
Compensation may also need to increase if access continues beyond the original term. Leaving this unresolved can force renegotiation at exactly the point when the neighbour has the most leverage, particularly mid-project, when the project’s success depends on that access continuing.
Compensation and commercial terms
Compensation is often the most sensitive aspect of an access deed negotiation. The appropriate amount will depend on factors such as:
- the duration of access;
- the nature and intensity of the intrusion; and
- the type of neighbouring property.
Compensation structures can vary widely. Some arrangements involve a lump sum payment, while others adopt periodic payments or staged instalments.
Access deeds also commonly include non-financial consideration. For example, as part of the commercial deal, neighbours may seek (or the developer may offer) enhanced protections for the neighbouring property, renovations or repairs to parts of the property, building washdowns or landscaping works.
The contract should also address responsibility for the neighbour’s legal costs. If these are not capped or clearly defined, they can become an unexpected and open-ended expense.
Safety, insurance, and risk allocation
Neighbours will expect protection against the risks construction activities create. Access deeds typically require compliance with work health and safety laws and environmental obligations, as well as appropriate insurance coverage.
Public liability insurance is particularly important, as it should respond to property damage or personal injury affecting the neighbour and users of their land. Neighbours may also require evidence of insurance, or even request to be noted as an interested party on the builder or developer’s insurance policies.
Beyond insurance, indemnities play a central role in allocating risk. These provisions often require the contractor to indemnify the neighbour for loss or damage arising from the access. However, these clauses must be carefully negotiated. Broad, unqualified indemnities can expose contractors to disproportionate risk, particularly where the loss is not caused by their actions.
A well-drafted indemnity should be limited to loss arising from the exercise of the access rights or the contractor’s fault (not just any damage that happens to occur to the property during the access period), and reduced to the extent of any contribution by the neighbour.
Make good and dilapidation
Most access deeds impose obligations to “make good” any damage caused to the neighbouring property. This typically includes repairing physical damage, reinstating removed items, and restoring the property to its original condition.
Dilapidation reports are commonly used to support this process. By documenting the condition of the property before and after the works, they are intended to provide an objective basis for assessing damage and avoiding disputes.
The deed should also permit access for dilapidation inspections and any required remedial works.
Caution: terms to avoid
While each project presents its own challenges, certain red flags consistently arise in access deed negotiations. These include:
- unilateral rights for the neighbour to revoke access;
- overly broad discretions that allow works to be stopped arbitrarily; and
- security or indemnity provisions that are disproportionate to the risk.
Developers and contractors should approach these provisions with caution. Accepting them without scrutiny can undermine the commercial viability of the project or create exposure that is difficult to manage.
Managing access in your construction projects
Construction contracts should clearly allocate responsibility for negotiating and entering into access deeds, and specify which party bears the associated costs. They should also address the consequences of delays or failures in obtaining access, including entitlement to extensions of time or variations.
Where agreement cannot be reached with a neighbour, statutory avenues may be available to compel access. However, these processes are typically slow and expensive. They should be treated as a last resort rather than a substitute for early, proactive negotiation.
If you are planning a project that may require access to neighbouring land, or are currently negotiating an access deed, seeking early legal advice can help you identify risks, negotiate workable terms, and avoid costly disputes
