Revised ground anchor provisions in NSW: return of simple contracts for ground anchors under a neighbouring property

Developers and contractors in residential development can return to relying on simple contracts with neighbours for rights to use their land for temporary ground (or rock) anchors after a new design order came into effect in New South Wales.

Previously, the Particulars for Regulated Design Order 2021 (2021 D&BP Order) required ‘regulated designs’ for ground anchors under neighbouring properties to include evidence of a registered easement for the ground anchors, which we wrote about here.

That order has now been replaced by the 2022 D&BP Order, which took effect on 2 March 2022 and, along with Design and Building Practitioners Amendment (Miscellaneous) Regulation 2022 (NSW), introduced Part 3, Division 3A into the Design and Building Practitioners Regulation 2021 (New Ground Anchor Provisions).

Overview of the New Ground Anchor Provisions

The New Ground Anchor Provisions have provided practical relief by expanding upon the type of document that can be relied on for the installation of an encroaching ground (or rock) anchor in residential construction, to include (in addition to a registered easement) a licence agreement, deed or other document that permits the installation of a ground anchor on the neighbouring land and shows the proposed location of the encroaching anchor (ground anchor installation right document).

Consistent with the 2021 D&BP Order, if the neighbouring land is a public road, a consent under section 139 of the Roads Act 1993 from the appropriate roads authority sufficiently permits the installation of a ground anchor on the neighbouring land under the New Ground Anchor Provisions.

Prior to commencing any building work on a development, the contractor must provide to the NSW Building Commissioner a ‘ground anchor installation right document’ as well as a document detailing the methodology for the use and release of the impermanent ground anchors.  The details in the second document depend upon whether the ground anchor is a “removable” (i.e., with a permanent anchorage in the ground with a removable reinforcement tendon) or “temporary” encroaching ground anchor.

For a “removable” encroaching ground anchor, the contractor must provide the NSW Building Commissioner a document detailing the process for the removal of the removable reinforcement tendon and the timing the removal will occur.

For a “temporary” encroaching ground anchor, the contractor must provide the NSW Building Commissioner a document detailing the process for destressing the temporary encroaching ground anchor and the timing the destressing will occur.

Then the contractor must provide evidence to the NSW Building Commissioner that a ground anchor has either been destressed (if “temporary”) or has had the removable reinforcement tendon removed (if “removable”) before applying for the occupation certificate for the development or before completion of the development if an occupation certificate is not required.

The relaxing of the requirement for an easement is a welcome development and should make it easier to progress projects requiring the support of neighbouring properties.

For more information or assistance with rock anchor issues in NSW, contact a member of our Construction and Infrastructure team in NSW.

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