How to help your clients manage a private roads dispute in New South Wales

Roads in NSW are predominantly governed by the Roads Act 1993 (NSW) (the Roads Act). Under the Roads Act, roads are broadly defined as public and private. 

A public road is defined under the Roads Act as:

‘(a) any road that is opened or dedicated as a public road, whether under this or any other Act or Law, and

 (b) any road that is declared to be a public road for the purposes of this Act’

A private road is defined under the Roads Act as ‘any road that is not a public road’.

In addition to the Roads Act, a private road is defined as:

(a) A road on or over land owned by a person other than the Crown or a local authority. Usually, the land is owned by the owner of the land which is serviced by the road.

(b) A road restricted to use by a limited class of person (i.e., not all members of the public) or to a limited period of time.

It is important to establish that the road in question is a private road before investigating the liabilities and requirements of a landowner (see our resource, “Establishing the Category of Road”, for guidance).

There are several categories of public road, defined under the Roads Act, including but not limited to:

• A Crown road – as a ‘public road declared to be a crown road‘. These roads are often called ‘paper roads‘ and are land corridors set aside for access; and
• A classified road – for example, a main road; highway or tourist road.

At section 5(1) of the Roads Act, it is established that members of the public have the right to ‘pass along a public road (whether on foot, in vehicle or otherwise) and to drive stock or other animals along the public road.’

This same right is not awarded in respect of private roads. Access to private roads is restricted. For example, members of the public do not have the right to access a private road without an appropriate easement or agreement. 

To establish a right to access and/or use a private road an easement must be established.

Disaster events in NSW have caused extensive damage to roads used by people to access their property or maintain their business. People often require access to private roads to access their own property, for stock movement and for safe evacuation. After a road has been damaged by a disaster road users can find themselves in disputes as to whose responsibility it is to bear the cost and labour of repairing the private roads, and whether or not a road user has a continued right to use a damaged private road.

A landowner has a duty of care to repair a private road where it has been damaged by a disaster where it is reasonably foreseeable for harm to occur to an invitee or trespasser. This precedent is set out in the Civil Liability Act 2002 (NSW) and case law.

If there is a registered easement to access the private road by neighbours, the landowner’s liability is not diminished. The costs of maintenance and repair in respect of an easement that gives a right of vehicular access or personal access are to be borne by the persons concerned in the proportions specified in the easement or in equal proportions if unspecified.

Taking action

• For disputes as to determining private road liability, claims may be brought in the Supreme Court of NSW. 
• For disputes regarding a breach of liability resulting in personal injury, claims may be brought in the competent jurisdiction dependent on the monetary amount claimed. A claim for any breach of liability resulting in personal injury is to be brought within 3 years from the date the negligence occurred as required by the Limitation Act 1969 (NSW).