What happens when someone else's private road is damaged in a disaster?
Last Updated 5 October 2023
Last Updated 5 October 2023
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.
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:
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.
Tip
If you are unsure whether the road is private or not, you can:
If you still cannot determine the category of road, see here for more information on where to get help.
This resource only provides information about what to do if a private road is damaged following a disaster. If you use a Crown or public road to access your property and it has been damaged in a disaster, you can read our resource “What happens when a Crown or public road is damaged following a disaster” to find out more.
If you are the owner of the private road that has been damaged following a disaster, you can see our resource “My private road was damaged by a disaster. What does this mean for me and other people using my road?” to find out more.
You might be eligible for free legal help from our lawyers. Making an online application is the quickest and best way to apply for free legal help – Apply Now.
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:
the road would be damaged; and
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.
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.
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.
If you have already suffered harm, you can make a claim for monetary compensation. You will need to commence your claim in the court in which it will be heard. This will depend on the amount of money that you are claiming from the owner of the private road. This resource explains which court you need to commence your claim in.
To commence your claim, you need to fill out a statement of claim form and file it with the court. A statement of claim is a written statement that sets out the facts of your case and what it is you are seeking. You can find a statement of claim form on the Uniform Civil Procedure Rules forms website: here.
The best way to draft a statement of claim is to write a series of numbered short paragraphs, each containing a separate fact that is central to your claim. If your statement of claim does not accurately outline your claim, or if parts of the claim are inadequate or do not comply with the rules, the court may decide to throw out part or all of your claim. You should spend enough time to get the statement of claim right the first time.
Navigating the courts can be complicated and costly. See here for information on how to access legal help.
As a starting point, if you do not own the private road nor have a registered easement (right of access) over the road, then you do not have a legal right to use it and the owner of the private road is permitted by law to prevent your access. For example, they may do so by erecting a fence or by expressly forbidding you from using the road.
It also means that you cannot make a claim in court that compels the owner of the private road to repair it, before your legal rights of access are established.
If there is no other way for you to access your property without using the private road, then you may be granted a right of access by the owner of the road or, if the owner does not agree, by a court. This is a type of easement, called an easement of necessity.
Once you have established a legal right to access the road (or if you already have an easement) you may be able to initiate repairs to the damaged road yourself. If you repair the road, the owner of the private road must contribute to the costs of repair, in the amount specified in the registered easement or, if no amount is specified, in equal proportions. Before you initiate repairs, you should seek legal advice to confirm that you are acting lawfully, as this will depend on the circumstances of the easement and the damage. See here for information on how to access legal help.
Alternatively, if you do not wish to initiate repairs to the damaged road yourself, once your right of access is established (or if you already have an easement) you are entitled to make a claim in court that could compel the owner to repair the road.
Seeking an order in court can be complicated and is costly. It is recommended that you seek legal advice before going to court. See here for information on how to access 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 assists eligible individuals, small businesses, community organisations and farms and other primary producers who have been impacted by natural disasters.
You can apply online for free legal help: Apply for help – Justice Connect. This is the quickest and most efficient way to check if you’re eligible and start the process of being matched with a lawyer. Once we receive your application, a member of our team will be in touch to guide you through the next steps.
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.
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This resource was last updated on 5 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. Please view our disclaimer for more information.