Introduction
When it comes to development projects, timing is everything—and that includes when to bring your lawyer on board. Access issues created by construction activities (such as crane operation, rock anchors, scaffolding, and temporary boundary use) can seem like routine construction logistics, but they are in fact legal minefields. Engaging a lawyer early—ideally at the DA stage—is crucial to protecting your project from disputes, costly delays, and even Supreme Court litigation.
Why Access Matters
Access arrangements are often the hidden backbone of a development’s progress. They allow builders to physically enter, extend, or overhang parts of neighbouring land to complete works safely and efficiently. Common access examples include:
- Installing rock anchors beneath an adjoining property
- Erecting scaffolding or hoarding on or over the boundary line
- Swinging a crane boom and materials over a neighboring site
- Laying drainage, power, or communication services through another property
Each of these actions, no matter how temporary or minor they may seem, involves encroaching — literally or legally—on someone else’s land. Without proper agreements in place, those “minor” encroachments can become major disputes.
The DA Trap: Conditions You Can’t Ignore
Many Development Applications across Australia’s states and territories contain explicit conditions requiring the developer to obtain access arrangements early—often before construction begins. Ignoring these conditions or leaving them to be addressed later can expose you to:
- Breach of DA conditions, potentially leading to stop work orders
- Rejection or suspension of construction certificates
- Prolonged delays in site access negotiations
- Costly civil claims from neighbours disputing access
Failing to meet these early DA access requirements is one of the most common mistakes developers make. By the time construction managers realise they need access approvals, cranes are booked, trades are scheduled, and neighbours are hostile—creating the perfect storm for disputes.
The Cost of Getting It Wrong: A Supreme Court Reality Check
A warning example comes from the NSW Supreme Court case of Bendal Pty Limited v Mirvac Projects Pty Limited and Anor (1991). The matter concerned a crane swinging over a neighbour’s property, which was found to be unlawfully encroaching on the neighbour’s adjoining airspace. The court held that even without physical damage, such interference breached property rights and required either the neighbour’s consent or a proper legal agreement. The developer would have accrued substantial legal fees to argue the matter in the supreme court. After losing, the developer was ordered to remove the crane by way of injunction, leaving them to bear the additional expense of relocating it. Worse still, repositioning the crane could mean it would swing over another neighbour’s land—forcing them to seek airspace access approval anyway, and leaving them in a far more costly and time-consuming position than if they had secured approval at the outset.
Common Mistakes Developers Make
- Leaving access negotiations too late – waiting until construction starts creates pressure, poor leverage, and hostile negotiations with neighbours.
- Assuming implied consent or verbal agreements will suffice.
- Failing to read DA conditions closely – missing early access approval clauses can inadvertently breach planning law.
- Skipping legal drafting – DIY agreements or email “consents” often fail to meet statutory requirements and collapse under legal scrutiny.
- Overlooking insurance implications – insurers may deny coverage if access is obtained improperly, especially in the event of damage or trespass claims.
Engage a Lawyer Early: Your Best Insurance Policy
Engaging a property or construction lawyer before you finalise your construction plan, submit a DA, or deploy equipment provides several advantages:
- Accurate identification of access needs during design.
- Legally sound licences or deeds negotiated with neighbours.
- Alignment with DA and planning authority requirements.
- Avoidance of breaches that stall certification or occupation.
- Peace of mind – knowing your risk exposure is covered.
Early legal engagement transforms access from a reactive headache into a proactive project control tool. As with most things in development law, it’s not just about solving problems—it’s about preventing them.
