My private road was damaged by a disaster. What does this mean for me and other people using my road?
Last Updated 5 October 2023
Last Updated 5 October 2023
This resource is for people in New South Wales (NSW) who:
own land that has a private road passing through it, which other people use to access their own properties; and
whose private road has been damaged 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 someone who fails to repair their private road and how they can do so.
If you know that you own your road, find out about your options below.
If a road that passes through 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.
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 a private road that you use, but do not own, has been damaged following a disaster, you can see our resource “Someone else’s private road that I use was damaged following a disaster. What are my rights?” 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:
This means that if you own a private road, you may be responsible for any harm that occurs to other people and/or their property when using the road. This is the case regardless of whether you knew that someone is using your road or whether you knew the road is damaged. So, it is important that you repair the damaged road.
If you do not know whether the road has been damaged following a disaster it is important that you seek help from a lawyer.
If you are found to be responsible for harm by a court because you did not take action to repair your private road following a disaster, when you knew or should have known it was damaged, you may be required to pay compensation, known as damages, to the person harmed by the damaged road.
Note
If you are renting out your property, the responsibility to repair the private road damaged following a disaster may be transferred to your real estate agent. Your arrangement with the real estate agent may require them to conduct regular inspections of the property, including the road.
It is important that you do not assume you have transferred responsibility to your real estate agent. You should take action yourself or seek legal help to ensure both you and your real estate agent are performing your obligations.
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 someone holds a registered easement over your private road, you as the owner (and not the holder of the registered easement) are responsible for any harm caused to someone by using your 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 your road.
If you think that someone else has an easement over the road, you should check whether that easement is registered. This is because for you to rely on the 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 need to contribute will depend on:
If there is a registered easement over a private road that you own, it is still your responsibility to repair the road.
It is important that you review the terms of the registered easement before asking anyone to contribute to the costs of repairing your road. Make sure you keep any receipts or invoices in relation to the maintenance or repair of the road.
If the holder of the registered easement does not contribute to the costs of repair, you may demand payment of the amount they owe in writing. If they do not contribute within 7 days of receiving your demand, you may recover the costs by taking them to court.
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.
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If you (as the owner) do not repair the private road if it is damaged following a disaster, you may breach your duty of care. You may also be held responsible by a court for any harm caused to people and/or their property when using your road.
Another person that uses your private road to access their own property does not need to actually be harmed to take action.
This means that if you do not repair a private road that you own, someone may initiate legal action against you.
If you cannot afford to repair your private road, it is still important that you take action. This is because during the time that the road remains damaged, you may be liable for any harm or injury caused to other users by your private road, whether or not you can afford to repair it.
Consider what help might be available to you. The NSW Government has a list of the types of financial support available for people affected by disasters here. Navigating what help is available can be complicated. You may be able to access free help from a lawyer who can help you navigate the next steps.
Making an online application is the quickest and best way to apply for free legal help –
Apply Now.If you and someone else have a dispute about whose responsibility it is to repair the road that you cannot resolve directly or through alternative dispute resolution, you can start a claim in the Supreme Court of NSW.
Making a claim in court can be complicated and is costly. It is recommended that you seek legal advice before commencing a claim.
Making an online application is the quickest and best way to apply for free legal help – Apply Now.
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.
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
Takes less than 8 minutes
(4.4 star rating)
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.