Owners (or in the case of a strata, the owners corporation) own the land below the surface of their property.

Commonly, when a developer needs to excavate the property next door (say to build a basement carpark), they need to install ground anchors under neighbouring property. These are also sometimes also called shoring anchors. These anchors are normally used to hold in place the excavated wall until transfer beams (which are typically part of the concrete basement roof and floor slabs) are in place

If a developer wants to install ground anchors under your land they need your consent. It is actually a trespass if a developer installs ground anchors under your land without your consent and if they do so you could obtain an injunction from the Court to prevent such trespass without needing to show that any damage has occurred (provided such injunction is applied for promptly after the anchors were installed).

Consent should be documented in the form of a licence agreement. The licence agreement should also cover other important things such as compensation, safety and amenity issues, dilapidation reports and repairs, the process by which the ground anchors must be de-tensioned or removed as well as insurances and indemnities to be provided by the developer and similar. However, developers are not unknown to ask their neighbours to quickly sign a licence or consent document (often in return for a case of beer or a bottle of scotch) and suggest the owner (or owners corporation) does not need to get legal advice on the document. However, such documents frequently provide inadequate or no compensation and fail to adequately address the safety, amenity and other issues involved.

Most people are unaware that they are entitled to compensation for providing a ground anchor licence (or consent to ground anchors). Even fewer would know the amount of compensation which is commonly negotiated. The amount often relates to the number of anchors installed. Owners (or owners corporation) should also be reimbursed for any legal fees, managing agents fees and fees payable to relevant consultants in connection with granting such a licence.

It is worth keeping in mind that it is not appropriate for the owner (or owners corporation) to use the developer’s need for ground anchors to undertake their development as a way to seek to stop a development occurring as developers can seek the right to install ground anchors under various acts. This includes via the Local Court under the Access to Neighbouring Land Act or the Supreme Court Land and Environment Court under section 88K of the Conveyancing Act 1919.

Accordingly, we usually suggest seeking to negotiate with the developer first. In our experience, mutually agreeable arrangements can generally be made. However, be aware that owners (and owners corporations) are under no obligation to allow ground anchors to be installed under their land unless ordered to do so by the Court.

Also be aware developers may withdraw from negotiations after the owner (and owners corporations) has incurred legal and other costs. Accordingly, we often suggest the owner (and owners corporations) require the developer to lodge a security deposit before commencing such negotiations to cover the owner’s (or owners corporation’s) costs in the event negotiations break down.

This article is for general information only and not legal advice. Legal advice should be obtained before taking any action or otherwise rely upon the content of this article in any way.

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