Acting for a road user

Private road disputes - October 2023

  • Disasters
  • Disaster affected person
  • NSW

What is this resource?

This section will assist in identifying whether your client is dealing with a legal problem in relation to their use of a private road that has sustained damage following a disaster which is owned by someone else.

It will also explain what their options are for dealing with it.

A road user does not have the right to access their neighbour’s private roads without an appropriate easement or agreement. To establish a right of access and/or use of a private road, an easement must be established.

A road user is owed a duty of care by the landowner, even if they are not a registered easement holder. The road user may consider alternatives to going to court in order to recover damages due to personal injury incurred by a landowner’s breach of their duty of care to repair the damaged private road.

This resource includes:

  • a flowchart
  • determining whether there is an easement and reviewing easement terms
  • landowner’s duty of care and personal injury claims
  • template letters

Flowchart: acting for a road user

Is there an easement?

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.

You will need to determine whether the road user holds a registered easement relating to the road.

To do this, review the title search you obtained when establishing road ownership. In addition to current owner(s) of the property and the land description, it will show any registered interests, including easements, relating to the land and their terms.

This section includes:

  • common types of easements relevant to private road disputes
  • reviewing easement terms
  • notifying interested easement parties
  • what if there is no easement

Common easements

To have a valid easement there must be a benefited parcel and a burdened parcel of land, referred to as the dominant and servient tenements respectively. This is shown in the diagram below:

There are various types of easements that may be relevant to private roads. The most common, and discussed for the purposes of this resource, is an easement for the right of carriageway and an easement of necessity.

Right of carriageway

A right of carriageway is also known as a right of way. A right of carriageway is a particular type of easement which provides one party the right to travel over the land of another. 

Schedule 8, Part 1 of the Conveyancing Act 1919 (NSW) provides for the standard construction of expression for a right of carriageway:

‘Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any part thereof.’

Easement of necessity

An easement of necessity arises when land is ‘landlocked’, meaning to access the land you must travel over someone else’s land. An easement of necessity does not arise when there are other options to access the site.

An easement of necessity is an easement created by implied grant or reservation and without which the dominant tenement could not be used. No easement of necessity is implied where alternative rights exist, for example, if an alternative access exists, even though that access may be indirect or inconvenient. An easement of necessity ceases if the necessity ceases. An easement of necessity may only be used for purposes appropriate to the use of the land at the time the easement arose.

There are strict prerequisites for an easement of necessity, and they are only available in circumstances where absolutely required.  

Reviewing easement terms

If there is an easement, it is crucial to review the relevant easement terms to confirm the repair and maintenance requirements and who is responsible, as well as the proportion the costs are to be shared.

If there is a registered easement to access the private road by neighbours, as per Schedule 8B(7) of the Conveyancing Act 1919 (NSW), 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.

It is important to review the terms of the registered easement prior to requesting the landowner repairs the road and determining the proportional costs to be paid by the road user who is also a registered easement holder.

If there is no reference to cost proportions, in accordance with Schedule 8B, section 7 of the Conveyancing Act 1919 (NSW), it is to be in equal proportions.

Notifying interested easement parties

Following damage to a private road where an easement is registered on title, a road user who is an interested easement party can:

  1. Inform the owner of the private road that it has been damaged. A template letter is provided below to be completed with the relevant details:
Justice Connect Template – Notice of DamageDownload PDF (53 KB)

2. If the landowner does not take action to repair the road after the road user (who is an interested easement party) has given them a reasonable opportunity to do so, the road user (who is an interested easement party) can initiate alternative dispute resolution (ADR) or make a claim in court. 

Following the repair, the subsequent courses of action are:

  1. Costs agreed

If the costs are agreed, the landowner may undertake the required repairs for the road in accordance with any easement terms and provide an invoice to the other easement holder(s) to make the payment.

2. Costs not agreed

If the relevant easement parties are not agreeable with costs required for repair, the landowner may serve a letter of demand on the relevant easement parties. 

If the parties continue to disagree on the costs of repair and amounts payable by the easement parties, discussions/negotiations may commence between relevant parties regarding the liability for costs of maintenance and repair of the road and who is responsible for completing the repairs. It is highly recommended and preferred the parties engage in ADR methods prior to commencing a court claim.

Alternative dispute resolution options are set out on this page:

If ADR is unsuccessful in resolving the costs dispute, the road user and/or relevant easement parties may bring a court claim in the relevant jurisdiction to determine costs owed.

More information regarding court claims is provided here:

What if there is no easement?

Section 5(1) of the Roads Act 1992 (NSW) establishes that members of the public have the right to ‘pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road’.

The same right is not awarded in respect to private roads. As such, a neighbour of someone with a private road cannot use that private road without an appropriate easement or agreement. If the road user does not have a right to access their neighbour’s private road, and they have not suffered personal injury in using the road then they do not have standing to bring a claim regarding the landowner’s liability. To establish a right to access and/or use a private road, an easement must be established.

Where there is no easement applicable to the private road dispute, the road users’ access may be prohibited by the landowner by means such as erecting gates or locking existing gates.

You should advise a client early in the process that they do not have the ability to commence a claim in situations where they have no legal right to access the road and do not qualify for an easement of necessity.

Applying for an easement of necessity

If the road user must use the road to access their property as there is no alternative way to access their property, the road user should first approach the landowner and request that they grant an easement.

If a landowner is not agreeable to creating an easement, the road user may apply to the court for an easement of necessity. The process to apply for an easement of necessity is granted under section 88K of the Conveyancing Act 1919 (NSW) which sets out the following:

    1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
    2. Such an order may be made only if the Court is satisfied that –
      1. Use of the land having the benefit of the easement will not be inconsistent with the public interest;
      2. The owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement; and
      3. All reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
    3. The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.

The process for an application for an easement of necessity is outside the scope of this resource. See the following section on how to make a referral to Justice Connect for pro bono legal assistance.

How to make a referral for pro bono legal assistance

Justice Connect connects eligible individuals, small business owners and primary producers and community organisations affected by disasters like floods, bushfires, cyclones, and other extreme weather events, with free legal help.

We may be able to match your client with one of our pro bono lawyers for assistance with a private road dispute.

Refer someone to Justice Connect

I need to refer someone – Refer to Justice Connect

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.

Personal injury claim

A road user is owed a duty of care by the landowner, even if they are not a registered easement holder. If the road user sustains personal injury because the landowner breached their duty of care, in failing to repair the private road when they knew or should have known that that the road was damaged, the landowner may be required to pay damages to the harmed road user.

A road user may consider alternatives to going to court to recover damages.

This section includes:

  • Personal injury claims

  • Relevant law and regulation, including:

    1. Civil Liability Act 2002 (NSW)
    2. Duty of care owed to invitees and trespassers
    3. Duty of care owed to neighbours
    4. Delegation of duty of care
  • Initiating a dispute

Personal injury claim and landowner duty of care

Landowner duty of care extends to usage of private roads.

A landowner owes a duty of care to invitees or trespassers to avoid orreduce reasonable harm. Therefore, a landowner of a private road will owe a duty of care requiring repair of a disaster damaged road if it is reasonably foreseeable to the landowner that harm may occur to an invitee or trespasser if they use a damaged private road. 

It is unlikely that damage occurring from a weather event mitigates the landowner’s liability and responsibility.

If a private road owner is determined to be responsible for harm by a court as a result of not taking action to repair the private road following a disaster, when the owner knew or should have known it was damaged, the owner may be required to pay damages to the harmed person.

Not knowing that the road is damaged may not be enough to escape responsibility.

This is established in the Civil Liability Act 2002 (NSW) and case law.

If there is an easement over the 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 and is still responsible for repairing the road.

Relevant law and regulation

Civil Liability Act 2002 (NSW)

According to the Civil Liability Act 2002 (NSW), Section 5B, which establishes a landowner’s duty of care:

    1. A person is not negligent in failing to take precautions against a risk of harm unless –
      1. The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
      2. The risk was not insignificant, and
      3. In the circumstances, a reasonable person in the person’s position would have taken those precautions.

2. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –

        1. The probability that the harm would occur if care were not taken,
        2. The likely seriousness of the harm,
        3. The burden of taking precautions to avoid the risk of harm,
        4. The social utilities of the activity that creates the risk of harm.

Duty of care owed to invitees and trespassers

One of the leading statements on the extent of the duty of care owed by a landowner was made by Justice Deane in the High Court in Hacksaw v Shaw (1984) 155 CLR. In this case, Justice Deane stated:

“Where the visitor is lawfully upon the land, the mere relationship between the occupier on the one hand and the invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to her or him.

When the visitor is on the land as a trespasser, the mere relationship of the occupier and the trespasser in which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required. The additional factor or combination of factors which may … supply the (required) degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence”

A private road landowner will be liable for harm or damage caused to a trespasser or invitee if there is a reasonably foreseeable risk of harm or damage occurring (Hacksaw v Shaw).

Duty of care owed to neighbours

In Burnie Port Authority v General Jones Pty Ltd (1994) (High Court) the appellant was found liable for damages caused by the negligence of its independent contractor. The contractor was carrying out unguarded welding operations which resulted in a fire spreading to adjoining cold rooms occupied by the respondent and ruining the respondent’s frozen vegetables.

In Weber v Greater Hume Shire Council (2019) (NSWCA), Greater Hume Shire Council operated a waste disposal site. A fire ignited in the tip and quickly spread, reaching Gegorery where it destroyed homes and personal possessions of several residents including the appellant. It was held:

    1. The most likely cause of the fire was spontaneous combustion, however it was not necessary for the Court of Appeal to be satisfied on the balance of probabilities that spontaneous combustion was the cause. The only other likely causes were the lensing effect of glass and arcing of a vehicle battery. As such, the Court of Appeal considered it was more probably than not that one of these was the cause of the fire.
    2. The Council failed to take a number of precautions to avoid the risk of fire igniting and spreading from the tip. Within the tip, these precautions included reducing dried vegetation in the tip and slashing the glass between the piles of waste and between the waste and boundary fence. Other precautions which the Court of Appeal accepted should have been taken by the Council included compacting and covering the waste and maintaining a fire break around the tip.
    3. It was still necessary to consider whether the limited resources available to Council meant that those precautions were beyond those which should have been reasonably undertaken. For that purpose, this required considering the burden of adopting those precautions only at waste disposal facilities operated by the Council, and not on other land owned or occupied by the Council. In this respect, while the evidence showed that the tip operated at a loss (as expected), there was evidence that the Council received unallocated grants and maintained a waste management fund, for which the actual expenditure prior to the fire was less than the budgeted expenditure.

      This indicated that here had been ‘ample funds’ available to the Council to take all the identified precautions. Consequently, the Court of Appeal concluded there was no evidence that the Council was reasonably precluded from taking those precautions.

In McInnes v Wardle (1931) (High Court) a contractor was engaged by the defendant to fumigate rabbits. The normal practice was to clear the bracken fern by burning. The contractor lit a fire which escaped to the plaintiff’s neighbouring property and caused damage. Judgement was awarded to the plaintiff and it was determined the landowner was negligent. The court pointed out that:

  1.  
    1. Grass and scrub are usually very dry during the Australian summer and that fires spread with great rapidity. It was observed that the statutory prohibitions against lighting fires during summer months demonstrated that the defendant should have foreseen and guarded against the danger of burning ferns and undergrowth as a means of controlling rabbits.


Delegation of duty of care

In Yeung v Santosa Realty (2020) (Victorian Supreme Court) it was held the duty to inspect, detect and report on obvious hazards had been delegated by the owner to the real estate agent. This decision confirms the legal proposition that the duty of a landlord to take reasonable precautions (by routine inspection of rental premises) to avoid foreseeable risk of injury can be delegated by engaging a competent contractor (managing real estate agent).

Initiating a personal injury claim

A private road owner may be required to pay damages to a harmed person where the owner is determined to be responsible for the respective harm resulting from the use of the road.

The road user may consider alternatives to going to court in order to recover damages due to personal injury incurred by the landowner’s breach of their duty of care to repair the private road. Alternative dispute resolution options are set out on this page:

Where the parties are unwilling to resolve any relevant disputes through ADR processes, legal action through a court may be initiated.

  Limitation Date

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).

Any disputes regarding private road liability may be brought in the Supreme Court of NSW and any claims made for a breach of liability may be brought by application in the competent jurisdiction dependent on the monetary amount claimed. 

How to advise and act for your client when bringing a claim against a landowner to recover damages is outside the scope of this resource. See the following section on how to make a referral to Justice Connect for pro bono legal assistance.

More information regarding court claims is provided here:

How to make a referral for pro bono legal assistance

Justice Connect connects eligible individuals, small business owners and primary producers and community organisations affected by disasters like floods, bushfires, cyclones, and other extreme weather events, with free legal help.

We may be able to match your client with one of our pro bono lawyers for assistance with a private road dispute.

Refer someone to Justice Connect

I need to refer someone – Refer to Justice Connect

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.

  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 view the full disclaimer here: Disclaimer and copyright for our Disaster Legal Support Resource Hub – Justice Connect