How to help your clients manage a private roads dispute in New South Wales
Resources for community lawyers on the disaster frontline - October 2023
What is this resource?
This resource is for legal workers supporting people dealing with a private roads dispute in disaster affected areas in New South Wales (NSW). This information is relevant for people who:
- own land which has a private road passing through it used by other people to access their own properties (acting for the landowner);
- use a private road owned by someone else to access their own properties (acting for a road user); or
- have a legal agreement (registered easement) that grants them the right to use a private road owned by someone else (acting for a road user).
This resource will assist in identifying whether a client or someone else you are helping is dealing with a legal problem relating to private access roads and if so, what their options are.
Why do private road disputes arise after disasters?
Disputes often arise in relation to roads on private properties in rural areas as access to properties can be poor and the repair of a damaged road can be very labour intensive and expensive.
Disasters can exacerbate existing issues with private access roads and create new damage.
Private roads often have several parties with competing registered interests, making the determination of responsibility difficult.
Download the guidebook
We have compiled the complete “How to help your clients manage a private roads dispute in New South Wales” resource into this guidebook. It can be downloaded to assist you when you may need or prefer to work offline.
Purpose of this resource
Justice Connect is coordinating the delivery of pro bono legal help to disaster-affected communities across Australia. We’re working closely with other organisations like legal aid commissions, community legal centres and law societies to ensure that people can access legal help as quickly and seamlessly as possible.
We’ve seen first-hand how legal need shifts during disasters and crises. In the wake of disasters and extreme weather events, people, small business owners, and not-for-profit organisations can face unexpected legal problems. If left unresolved these legal problems can have serious consequences for people’s financial stability, relationships, health, and wellbeing. In these times of crises, people need ready access to legal support.
That’s why we’re creating resources to support community legal workers deliver place-based services to disaster affected communities. Through our Disaster Legal Support Resource Hub community lawyers can find high-quality legal information quickly, take steps to resolve their client’s legal problems, and refer their clients for pro bono legal support before their problems escalate.
If you have a client that you’d like to refer for pro bono legal support, visit our website.
Private road dispute background
Legislative background
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:
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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.
Right to access private roads
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.
Disputes arising
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).
1. How to establish the category of road, road boundaries and ownership
On this page we provide guidance on how to establish the category of road, road boundaries and road ownership, including how to find and use online search and mapping tools.
2. Acting for the landowner
On this page we provide guidance how to advise and act for your client if they are the landowner of a damaged private road. This section includes:
- a landowner’s duty of care to invitees and trespassers on a damaged road;
- whether a landowner should repair their damaged road;
- costs disputes with interested parties to the damaged road; and
- a landowner’s risk of exposure to civil litigation.
It also contains downloadable template letters to assist you help your client.
3. Acting for a road user
On this page we provide guidance on how to advice and act for your client if they are a user of someone else’s private road. This section includes:
- a landowner’s duty of care to invitees and trespassers on a damaged road;
- whether a road user can compel a landowner to repair a damaged road;
- a road user’s rights to access private roads; and
- personal injury claims.
It also contains downloadable template letters to assist you help your client.
4. Alternative dispute resolution
On this page we provide guidance on methods of alternative dispute resolution that could be available to your client to resolve their private roads dispute. This section explains the merits of different types of alternative dispute resolution and your role as a legal representative.
5. Commencing a claim in court
On this page we provide guidance on the relevant jurisdictions and types of claims available to your client dealing with a private roads dispute.
Refer someone to Justice Connect
If you’re a professional working with communities affected by disasters, and you’d like to connect your client with pro bono legal help or seek assistance for your own organisation, please make a referral to Justice Connect.
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 full disclaimer here: Disclaimer and copyright for our Disaster Legal Support Resource Hub – Justice Connect.