What happens when private access roads are damaged in disasters? (NSW)

October 2023

  • Disasters
  • Disaster affected person
  • NSW

What is this resource?

This resource is designed to support community workers and volunteers to connect disaster affected communities with appropriate services. It will help you identify when someone you’re helping has a legal problem, suggest first steps and refer them for legal support before their problem escalates. 

 

   Private Roads and Disasters

Disaster events in NSW have created extensive damage to roads used by people to access their property or maintain their business. People often require access to other people’s private roads to access their own property, for stock movement and for safe evacuation in times of crisis.

Disasters can exacerbate existing issues with private access roads, change access requirements and create new road damage.

After a road has been damaged in a disaster, road users and owners often find themselves in disputes as to who’s responsibility it is to shoulder the cost of repairing it and whether a road user has a continued right to use a damaged private road that someone else owns.

Some examples

A landowner with a private road

Carol owns a private road that runs through her property. Its been damaged by flood water. Her neighbours sometimes use it and are telling her she needs to get it repaired. Carol can’t afford the costs of repair and doesn’t need the road herself.

A landlocked neighbour

When the area floods, Peter can’t access their property via main roads. His neighbour has a private access road which he can use to get home. The new owner of the private access road has prohibited him from using it and locked the gate.

Shared use of a private road

Maria has a private road running through her property that 6 other people use. A landslide has made it unsafe to drive on. It’s going to cost Mary $300,000 to repair it. Mary’s caseworker wants to assist her negotiate with her neighbours to share the cost.

Damaged Council road

James can only access his property one way, using a road maintained by the Council. Its flooded and James can’t start work repairing his flood damaged home. The Council has not started work nor applied for a grant from the government to pay for repairs.

If someone that you are helping has a road passing through their property that has been damaged by a disaster and that road is used by other people, then they probably have a legal issue.

If someone that you are helping uses a neighbour’s road to access their property and the road has been damaged by a disaster, then they probably have a legal issue.

An overview of the law

  1. There are three main categories of roads: private roads, public roads, and Crown roads.

     

  2. Generally, it is the responsibility of the government for maintaining Crown and public roads. After a declared disaster event, local Councils coordinate public and Crown road repairs.

     

  3. The person that owns a private road is responsible for maintaining it and may be responsible for any harm or damage sustained by other people using the road when it’s been damaged by a disaster.

     

  4. Neighbours can have certain legal rights to access and use private roads, these are called easements.

     

  5. If someone has an easement over someone else’s road, they must contribute to the costs of repair in the proportions specified in the easement or, if not specified, in equal proportions.

     

  6. Generally, if a neighbour does not have an easement to use a private road, then they have no right to use it and can be prohibited from doing so by the owner. However, if there is no other way for them to access their properties, a lawyer can help them apply for an easement in Court.

Where to get legal help?

Self-help resources

These resources can be viewed online or downloaded for printing. If you think that your client has a legal issue relating to private access roads, these resources can help.

My private road was damaged by a disaster. What does this mean for me and other people using my road?

This resource is designed for landowners whose private road was damaged in a disaster and is used by others to access their own properties. It explains:

  • How to work out road category and ownership
  • Do I need to repair my road?
  • Do others need to contribute to the costs of repairs?
  • What happens if someone is harmed or injured on my private road?

Someone else’s private road that I use was damaged following a disaster. What are my rights?

This resource is designed for road users that use another person’s private road to access their properties.

  • How to work out road category and ownership
  • What are my rights of access to someone else’s private road?
  • Can I compel the owner of the private road to repair it?
  • What happens if someone is harmed or injured on my private road?

The Crown or public road I use to access my property was damaged following a disaster. Can I make the owner repair it?

This resource is designed for road users who’s access to their properties has been impacted by damaged Crown or public roads.

  • How to work out road category and ownership
  • Is my local council responsible for repairing the damaged road?
  • What can I do if the local council has not taken action?

How to make a referral for pro bono legal help

LawAccess NSW

LawAccess is a free government service that provides legal information and referrals, including to Legal Aid NSW, for people with a legal problem in NSW. See their website for more information on how they can help.

Justice Connect

Justice Connect can provide free legal advice and ongoing representation in certain matters to eligible individuals, small business owners and primary producers affected by disasters like floods, bushfires, cyclones and other extreme weather events. We may be able to match your client with free legal assistance to help with disputes or to assist them better understand their legal rights and obligations.

Refer someone to Justice Connect: https://justiceconnect.org.au/refer/

  This resource was last updated on 31 October 2023. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. You can read our disclaimer in full here: Disclaimer and copyright for our Disaster Legal Support Resource Hub – Justice Connect.