Activities that affect stability of land or premises

Where building work affects the stability of other land or premises, the building owner must, at least 20 business days before the building work starts, serve on the owner of the affected land or premises a notice of intention to perform the building work and the nature of that work. The notice of intention must be in the prescribed form, which is Form 1 - Initial Notice to Owner of Affected Site [see Planning, Development and Infrastructure Act 2016 (SA) s 139 and Planning, Development and Infrastructure (General) Regulations 2017 (SA) reg 64(2a) and Schedule 10A].

The building owner must take every precaution to protect the neighbouring land or premises, including taking any actions required by the council, and must complete other work that the adjoining owner is authorised to require. Even where a building owner complies with these requirements, they may still be responsible for damage resulting from negligent building work [Planning, Development and Infrastructure Act 2016 (SA) s 139 and s 148(3)].

A party wall cannot be built without the written consent of the adjoining owner [s 147]. A party wall is defined as "a wall built to separate 2 or more buildings or a wall forming part of a building and built on the dividing line between adjoining premises for their common use" [s 3].

A landowner who proposes to build a party wall or convert an existing structure into a party wall must serve notice on the adjoining owner describing the proposed wall [s 147(1)(a)]. If the adjoining owner consents to the building and its positioning, the cost of the building must be shared by the 2 owners in proportion to the use that each owner is likely to have of the wall [s 147(1)(b)]. The owners must then register easements of support in respect of the party wall with Land Services SA. The cost of this should be borne by the building owner [s 147(1)(e)].

Building owners have both rights and responsibilities in respect of party walls [s 148]. A building owner has a right to:

Before exercising any of these rights in respect of a party wall, a building owner must provide written notice (by personal or postal service) to the adjoining owner of the details of the proposed work and when it is to commence [s 148(4)]. Written notice is not required if the adjoining owner consents in writing to the proposed work [s 148(4)].

A building owner must make good any damage to adjacent premises (including contents) caused by exercising their rights in respect of a party wall [s 148(3)]. An adjoining owner may by written notice require a building owner who is proposing to conduct building work in respect of a party wall to carry out other work as reasonably necessary for the convenience of the adjoining owner, at the adjoining owner's expense [s 148(5), (6)]. The building owner must comply unless the work would cause them loss, damage, undue inconvenience or delay [s 148(5)].

A building owner carrying out building work on a party wall must take all reasonable steps to protect adjoining land and premises and cause as little inconvenience as possible to the adjoining owner [s 148(7), (8)].

A building owner has a right to enter and remain on the land or premises of an adjoining owner to conduct building work in relation to a party wall but must give written notice to the adjoining owner of the proposed date and time [s 149(2)]. In an emergency, notice must be given as early as possible. The building owner, accompanied by a police officer, may even break into the premises of the adjoining owner if necessary [s 149(3)].

Access to neighboring land for building work (general provision)

If a person reasonably requires access to neighbouring land in order to carry out building work, the person seeking access to the adjoining allotment may serve notice on the owner requesting access [s 140(2)].

The notice must be in the prescribed form (Form 1 - Access to Neighbouring Land) and must include:

[See Planning, Development and Infrastructure (General) Regulations 2017 (SA) reg 64A(1), Schedule 10B]

If the adjoining owner does not respond to the notice within 10 business days, or responds to the notice by refusing access or proposing alternative arrangements for access that are considered to be unreasonable, the person seeking access may apply to the Environment, Resources and Development Court (ERD Court) for an authorisation to gain access [Planning, Development and Infrastructure Act 2016 (SA) s 140(4)].

If the ERD Court considers it reasonable, it can issue an authorisation permitting access on a specified basis and on specified conditions (if any) [s 140(5)].

A person must, insofar as is reasonably practicable, minimise disturbance to the land, and is liable to pay reasonable compensation for any loss or damage caused [s 140(9), (10)].

Section 140 does not limit the ability of a person to gain access to land under an agreement with the owner or occupier of the land, or the operation of section 139 outlined above.