What happens when someone else’s private road is damaged in a disaster?

What is this resource?

This resource is for people in New South Wales (NSW) who:

• use a private road owned by someone else to access their own property and that road has been damaged following a disaster; or
• have been injured on a private road owned by someone else due to damage on the road following a disaster; or
• have had their property damaged by a private road owned by someone else due to damage incurred following a disaster.

This resource explains who is responsible for repairing private roads that have been damaged following a disaster. It also explains when a person can make a claim against a road owner who fails to repair their private road and how to do so. 

Finding out who owns the road

If a road that you use to access your property is damaged following a disaster, it is important to know whether the road is privately owned, or is a Crown or public road, managed by the government. This is because the responsibility for repairing the road depends on who owns it. 

There are three categories of road in NSW:

• Public roads;
• Crown roads; and
• Private roads.

A private road is any road that is not opened, declared or dedicated as a Crown or public road under the law. Most of the time, a road that passes through or over a person’s land is a private road.

Is the owner of the private road required to repair it, if it is damaged following a disaster?

Landowners owe a “duty of care” to people that are on their property to avoid or reduce harm, which extends to private roads on their property. This means that landowners will be responsible for harm caused by a damaged private road that they own, if it is reasonably foreseeable that harm may occur to someone else and/or their property if they use it.

If a private road is affected by a disaster, it may be reasonably foreseeable that:

1. the road would be damaged; and
2. if the landowner does not repair the road, someone using it may be harmed.

Once you have determined that the road in question is a private road, you can determine who may be responsible for repairing it.

If you use a private road owned by someone else to access your property, the owner of the road may be held responsible for any harm that occurs to you while using it, if the road is affected by disaster and the owner has not taken action to repair the private road even though they knew or should have known it was damaged.

If a private road that you use to access your own property has been damaged, you can:

• inform the owner of the private road that it has been damaged; and
• if they do not take action to repair the road after you have given them a reasonable opportunity to do so, assess your legal options. See below for information on what your options are, where to make a claim and how to access legal help.

What happens if I hold a registered easement over the road?

An easement is an arrangement that gives someone the right to access and use land for a specific purpose, while the legal title or ownership of the land remains with the owner. 

If there is a registered easement over a private road, the owner (not the holder of the registered easement) is still responsible for any harm caused to someone using the road if it is damaged following a disaster. 

However, the person who holds the registered easement has an obligation to share the costs of repairing the road. 

If you think you might hold a registered easement over someone else’s private road, you should check whether the easement is registered. This is because in order to rely on an easement, it must be registered. An easement is registered when it is recorded on the property’s land title certificate or is established by a court order. 

The specific amount the easement holder needs to contribute will depend on:

• the proportions specified in the terms of the registered easement or any documents that have modified the terms of the registered easement; or
• if no proportions are specified, the costs will be divided equally between the owner and the holder(s) of the registered easement.

This means that even if you hold a registered easement over a private road that you use, it is still the owner’s responsibility to repair the road. However, you may be required to contribute to the costs of repair. 

What if the owner does not repair the private road, if it is damaged following a disaster?

If the owner does not repair the private road if it is damaged following a disaster, they may have breached their duty of care. They may also be held responsible by a court for any harm caused to people and/or their property when using the private road. 

You do not need to wait to be harmed before taking action. How you take legal action will depend on whether or not you have suffered any harm.

Before taking legal action against the owner of the private road, try to resolve the problem directly with the owner. You can write them a letter notifying them of the damage to the road and asking it to be repaired. 

However, if the owner has not repaired the road after you have given them a reasonable opportunity to do so, there are further options. 

You may consider alternatives to going to court, such as alternative dispute resolution. For more information on alternative dispute resolution in NSW, see this resource.

If you or the owner of the road do not wish to participate in alternative dispute resolution, you can initiate legal action.

Have you suffered harm or damage?

Where to get help

What if I am not in NSW?

This resource is for people in New South Wales. If you are not in NSW, you still might be eligible for free legal help from our lawyers.