Locked Out: How Access Problems in NSW Off-the-Plan Properties Lead to Legal and Financial Woes

Updated 31 October 2026

Off the Plan Potential Problem #46: Access Problems

How can access problems affect an off-the-plan purchase?

Access problems can prevent a buyer from using a home, car space or shared facility as expected. The issue may concern legal entitlement, defective construction or practical suitability. Check the contract, title documents and physical layout together. The available remedy depends on the particular problem, supporting evidence and when action is taken.

A driveway that looks usable does not establish a permanent right to cross a neighbour’s land. Equally, owning a car space does not establish that your vehicle can safely reach or use it.

What legal access should your lawyer check before exchange?

Ask your lawyer to identify the route from the public road to your proposed lot and confirm the legal basis for every part of it. Review the title, draft plans, proposed easements and relevant strata documents. Verbal assurances that everyone uses a driveway are not a substitute for properly established rights.

Check the registered owner and seller’s authority, and obtain current title searches identifying mortgages, caveats and registered leases. Refresh searches before settlement. For an easement, examine its route, permitted users and vehicles, restrictions and maintenance obligations. A lawyer should also compare the final registered documents with what the contract promised.

How do you check whether a car space will actually work?

Confirm both your entitlement to the space and its practical usability. Parking may form part of your lot, be a separate lot or depend on common-property rights. Check dimensions, columns, turning room, ramp gradients, clearance and any mechanical stacker restrictions. A painted bay number alone does not establish the legal entitlement.

The NSW parking guidance distinguishes resident, visitor and emergency spaces. Do not count visitor parking as your allocated space. Provide your vehicle’s dimensions before signing and obtain technical advice where manoeuvring is doubtful. Check stacker weight and height limits, operating costs and what happens during breakdowns.

Must every new apartment be fully accessible for disability needs?

Accessibility obligations depend on the building classification, applicable construction requirements, planning conditions and any contractual promises. They do not mean every apartment, parking bay or internal layout will meet every person’s mobility needs. Check the whole journey from the street or car park to the dwelling with an appropriately qualified access consultant.

The NCC addresses relevant common-area access; the federal Premises Standards have their own application limits. Specific requirements may also arise from the development consent. Check thresholds, door clearances, lifts, controls and accessible parking where relevant.

As at 31 October 2026, NSW’s current code is NCC 2022 Amendment 2; NCC 2025 is scheduled for adoption on 1 May 2027. The edition applicable to a project depends on approval and certification timing.

What should you check about gyms, pools and shared entrances?

Establish who owns each advertised facility, who may use it and what conditions apply. A pool or gym shown in marketing may be common property, part of another stage or operated under a separate arrangement. Review the contract, by-laws and management documents for access rights, hours, fees and responsibility for maintenance.

Ask whether access starts at settlement or only when a later stage opens. Check fob allocation, visitor arrangements, lift availability and any shared entrance serving commercial premises. Preserve specific marketing claims and have important promises reflected in the contract; the ACCC’s guidance explains misleading real-estate representations.

Can the developer change parking or access arrangements?

Some changes are permitted by the contract, while others may breach it or trigger statutory protections. A qualifying material change can give a materially prejudiced buyer cancellation or compensation rights if they would not have contracted knowing of it. Do not assume every altered car space satisfies the statutory definition.

The Registrar General explains an important exception: contract-compliant changes to the specific location or area of parking or storage in a proposed strata scheme are excluded from material particulars. That does not automatically excuse removing an underlying entitlement.

A buyer generally has fourteen days from service of the relevant change notice or registered documents to exercise these rights. Alternative statutory compensation is capped at 2% of the price and must be claimed within the applicable fourteen days and before completion. That cap does not govern every possible contractual or misleading-conduct claim.

What happened when a developer removed a promised car space?

In Chong v Tasman 61 BH Pty Ltd, the NSW Supreme Court distinguished changing a car space from removing it altogether. The outcome depended on the wording and interaction of the contract’s clauses. The decision shows why buyers must identify their promised inclusions and obtain advice before responding to changes or termination notices.

In Chong v Tasman 61 BH Pty Ltd [2026] NSWSC 837, buyers contracted for a Norwest townhouse, garage and separate car space. The registered strata plan placed the car space in a separate utility lot. The specific variation clause permitted alterations, but not complete removal of the space from the property being sold.

On 15 July 2026, Richmond J held the vendor’s attempted termination invalid and ordered specific performance requiring transfer of both lots. This was a contract-specific remedy, not an automatic cancellation or compensation entitlement for every parking change. Caveats also require advice about the purchaser’s interest and contractual restrictions.

What should you inspect and record before settlement?

Arrange an independent inspection when access is available and compare the completed property with the contractual plans and specifications. Test the routes you will actually use, rather than inspecting only the apartment interior. Record discrepancies promptly, obtain appropriate technical evidence and ask your lawyer to assess them before relevant notice periods expire.

• Inspect pedestrian entrances, ramps, lifts, doors and thresholds.
• Check the allocated bay, driveway clearance and turning space safely.
• Test keys, fobs and lawful access to promised facilities.
• Preserve dated photographs, measurements, plans and correspondence.

A building inspection may need input from a surveyor, traffic engineer or access consultant. Keep receipts for necessary alternative parking or accommodation; recovery requires a legal basis and proof of loss.

Can you refuse settlement because access is unsatisfactory?

An access complaint does not automatically entitle you to withhold settlement, retain part of the price or terminate the contract. Your lawyer must assess the defect, contractual obligations and statutory rights. Acting without a valid basis can expose you to default consequences, while settling without advice may affect available remedies.

Under NSW’s off-the-plan regime, purchasers cannot be compelled to complete within twenty-one days after receiving the registered plan and associated registered documents. Use that period for comparison and advice. An occupation certificate does not replace checking private access rights or contractual promises. Record any negotiated rectification, retention or extension in writing.

Who is responsible if the problem appears after completion?

Responsibility depends on whether the problem concerns your lot, common property, defective building work or a separate contractual promise. Notify the relevant parties promptly and check the strata plan and by-laws. The owners corporation generally maintains common property, but a claim against a builder or developer requires its own legal assessment.

NSW strata guidance explains repair responsibilities. For eligible building warranty claims, the usual periods are six years for major defects and two years for other defects, measured from completion of the work, with a limited extension for breaches becoming apparent late in the period. An access problem is not automatically a major defect. Report unsafe exits or serious hazards immediately.

Should you complain to Building Commission NSW, NCAT or a court?

The appropriate forum depends on the legal claim and remedy sought. Building Commission NSW assists with qualifying building complaints; NCAT has specific home-building and strata powers. Disputes about land-sale contracts, easements or orders compelling completion may require a court. A complaint does not itself stop a limitation period from running.

Use Building Commission NSW’s complaints guidance, NCAT’s home-building information and its strata orders guidance to identify the relevant pathway. Mediation may be required for particular strata applications, subject to exceptions. Seek urgent legal advice if a deadline is approaching, access is blocked or the vendor threatens termination.

How can buyers reduce access risks before committing?

Make essential access requirements part of the purchase assessment before exchange. Explain your vehicle, mobility and daily-use needs to your lawyer and technical advisers, and ask for clear contractual protection where necessary. A suitable property needs both enforceable access rights and a layout that works for its intended use.

Budget for investigations and scrutinise variation clauses rather than relying on a sales brochure. Avoid assuming that future neighbours or the owners corporation will approve changes after settlement. Contact Christine Manolakos and CM Lawyers to review the contract, title arrangements and options for resolving an access problem.

General information, not advice about your circumstances. Have a property lawyer check the contract, title and proposed response, and obtain appropriate technical advice before you act.

Key resources

• Registrar General’s off-the-plan guidance — disclosure, changes, deadlines and purchaser remedies.

• NSW strata parking guidance — parking entitlements and common-property rules.

• NSW National Construction Code guidance — applicable editions and certification requirements.

• NSW inspection reports guidance — independent inspections and their limitations.

• NSW strata repair guidance — lot and common-property responsibilities.

• Building Commission NSW complaints guidance — defects, warranties and time limits.

• NCAT home-building guidance and strata orders guidance — distinct Tribunal pathways.

• ACCC real-estate guidance — misleading representations about property.

• Chong v Tasman 61 BH Pty Ltd [2026] NSWSC 837 — judgment about removal of an off-the-plan car space.

• CM Lawyers — Off-the-plan purchases — contract review and conveyancing for off-the-plan buyers.

• CM Lawyers — Property contract reviews and fees — Have the contract reviewed before you sign or bid.