Tight sites create tight problems. If your project needs a crane to overswing or weathervane, rock anchors or tiebacks that extend below a boundary, temporary scaffolding or fencing, monitoring equipment, survey works, services investigations, or a laydown area, you may need to use a neighbour’s land, airspace, or subsurface.
The problem starts when a neighbouring owner refuses access, even on a temporary basis.
“But can’t I just put the crane up anyway?” No, not if you don’t want to end up in court.
Developers and contractors in Queensland do have options. Negotiated access deeds remain the preferred pathway, but the law also provides a way to obtain court-ordered access in certain circumstances.
The first line of defence: negotiate an access deed early
Access deeds play a central role in managing construction projects. They are contractual licences that let a developer or contractor use neighbouring land on agreed terms.
Well-drafted access deeds address issues such as:
- the scope of access (airspace, subsurface, or physical entry);
- timing and duration;
- compensation;
- insurance and safety obligations; and
- make good and reinstatement requirements.
They allow the parties to control commercial outcomes and reduce the risk of delay, dispute, and injunctive relief that can disrupt a project’s critical path.
Not all negotiations succeed. Some neighbours refuse access outright, and others seek terms that are commercially unworkable. When that happens, the question is whether the court can step in.
Court-ordered access: the statutory right of user
In Queensland, section 180 of the Property Law Act 2023 (Qld) provides a framework known as a “statutory right of user.” It allows a party to apply to the court for an order granting access to neighbouring land where agreement cannot be reached.
The court does not grant these orders lightly. An applicant must satisfy several criteria before access will be imposed on an unwilling neighbour.
The access must be reasonably necessary
The applicant must demonstrate that the proposed access is reasonably necessary for the effective use of their land. This involves more than convenience.
Courts expect evidence that:
- alternative methods have been considered;
- those alternatives are impractical or inefficient; and
- the proposed method represents the most appropriate solution.
For example, if a crane is required, the applicant should address whether other crane types or construction methods could avoid the need for access to the neighbouring property.
This requirement often involves detailed evidence from project managers, engineers, crane operators or other experts.
The proposal must align with planning approvals
The court will consider whether the underlying development is consistent with planning approvals. In practice, this requirement is usually satisfied by demonstrating that a development approval or building approval has been obtained.
While approval does not authorise trespass, it does support the legitimacy of the proposed works.
The access must be consistent with the public interest
Applicants must show that granting access aligns with the public interest. This may include demonstrating that the proposed approach:
- reduces overall construction time;
- minimises disruption to the broader community; or
- represents the safest and most efficient construction method.
The court may also weigh the impact on other neighbouring properties, and whether similar access has already been agreed with other neighbours and on what terms.
Compensation must be given
Even where the court grants access, the applicant must compensate the affected landowner.
While it is the most common form, compensation is not limited to monetary payment. It can include:
- reimbursement of costs;
- rectification works;
- temporary relocation expenses; or
- other practical measures to address inconvenience.
A successful application will essentially always involve paying compensation. That payment is what secures access to the affected landowner’s property.
Reasonable attempts to negotiate must have been made
The applicant must demonstrate that genuine, reasonable efforts were made to obtain consent before applying to the court, and that those efforts were unreasonably rejected.
This requirement places significant emphasis on pre-application conduct. Courts expect to see, for example:
- clear communication with the neighbour;
- draft access deeds;
- evidence of negotiation; and
- a record of any refusal.
Poor engagement or a “one and done” approach can undermine an application.
Practical realities of court applications
Although the statutory right of user provides a pathway, it is not a quick fix.
Applications require substantial evidence, including expert material, cost analysis, and detailed project information. They also involve legal costs and time delays. Even in the most straightforward cases, the timeframe to obtain a hearing can extend from several weeks to months.
For projects operating on tight programmes, that delay can be significant. It can expose contractors to liquidated damages, prolong preliminaries, and create downstream contractual issues.
The outcome also isn’t entirely within the applicant’s control. The court decides both whether access will be granted and the terms on which it occurs.
The court of last resort
The availability of a court-based solution doesn’t diminish the importance of early planning. In practice, the strongest statutory right of user applications are supported by well-documented, reasonable negotiations.
Developers and contractors should:
- identify access requirements early in the project lifecycle;
- engage with neighbours before works commence;
- document all communications and offers;
- prepare draft access deeds that reflect reasonable terms; and
- consider the evidentiary requirements of a potential application from the outset.
Approaching access issues proactively often avoids disputes altogether. Where agreement cannot be reached, that preparation materially improves the prospects of a successful court application.
