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 twenty business days before the building work is commenced, serve on the owner of the affected land or premise 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 (General) Regulations 2017 (SA) r 64(2a)(b) 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, she or he may still be responsible for injury 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. If the owner of land proposes to build or convert an existing structure into a party wall, the building owner must serve notice on the adjoining owner describing the proposed wall. If the adjoining owner then consents to the building and its positioning, the cost of the building must be shared by the two owners in proportion to the use that each owner is likely to have of the wall. The owners must then register easements of support in respect of the party wall with Land Services SA. The costs of this should be borne by the building owner. The building owner must take all reasonable steps to protect adjoining land and carry out work causing as little inconvenience as possible to the adjoining owner [Planning, Development and Infrastructure Act 2016 (SA) s 147].

A new feature of the Act is that a building owner has a right to install flashings between two buildings (including a building on an adjoining allotment). The building owner can also install the flashing so that it overlaps the boundary between the two buildings [s 148(2)].

The building owner has a right to enter onto other premises to conduct building work in relation to party walls or stabilising structures and must give written notice to the adjoining owner of the proposed date and time [s 149(2)]. In an emergency the 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 [Planning, Development and Infrastructure Act 2016 (SA) 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 that they be given access [Planning, Development and Infrastructure Act 2016 (SA) s 140(2)].

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

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

If the 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 (the 'ERD Court') for an authorisation to gain access [under s 140 of the Planning, Development and Infrastructure Act 2016 (SA)].

If the ERD Court considers it reasonable to do so, it can issue an authorisation permitting access on a specified basis, and on specified conditions (if any).

A person must insofar as is reasonably practicable, minimise disturbance to the land, and is liable to pay reasonable compensation on account of any loss or damage caused by doing so [ss 140(9)-(10].

Section 140 of the Act 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.