The right to access public roads: the NSW Court of Appeal clarifies

Background

Clifffall Pty Ltd (the Appellant) owns an undeveloped block of land at 339 Lawrence Hargrave Drive, Clifton, NSW (Land) which adjoins Lawrence Hargrave Drive. Between October 2022 and October 2023, as part of the Grand Pacific Walk project, Wollongong City Council (the Council) constructed a raised walkway and cycleway (Walkway) along Lawrence Hargrave Drive in the road reserve between the boundary of the Land and the carriageway (i.e. the bituminised section of the Road used by motor vehicles). Transport for NSW (TfNSW), as the relevant concurrence authority, granted concurrence to the Walkway under s 138(2) of the Roads Act.

The Appellant commenced proceedings against the Council and TfNSW in the Supreme Court of NSW claiming that the construction of the Walkway impeded the right of access conferred by section 6 of the Roads Act, which states:

6 Right of access to public road by owners of adjoining land

(1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road.

(2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.

The Appellant contended that the qualification of “those rights” in section 6(2) of the Roads Act referred to the common law right of access only, and not the right provided by section 6(1) or, in the alternative, its statutory right of access had not been derogated from by some other Act or law. The Appellant also claimed the Walkway constituted a nuisance.

The Appellant's claim was dismissed. The primary judge (Pike J) rejected the Appellant's construction of the Roads Act and concluded that the Appellant's right of access under section 6(1) was qualified by section 6(2) and the Walkway was constructed in accordance with all relevant laws. The primary judge also rejected the Appellant's claim in nuisance against the Council, finding that it had not been demonstrated the Walkway constituted a substantial and unreasonable interference with the plaintiff’s enjoyment of the Land for purposes that are ordinary.

The NSW Court of Appeal

The Appellant’s sole ground of appeal was as follows:

The learned trial judge erred in law in construing section 6(2) of the Roads Act 1993 (NSW) and applying section 138 as restricting or qualifying the right conferred by section 6(1), when, on the proper construction of both provisions, section 138 does not limit or affect that right.

At hearing, the Appellant contended that it had a right under section 6(1) of the Roads Act to access the Land by vehicle from the Road, that this right had been interfered with by the Walkway, and that the Walkway was not permitted by the exception in section 6(2) because it had not been imposed "by or under this or any other Act or law". On that basis, the Appellant considered it was entitled to have its vehicular access restored.

It was common ground that the whole road reserve formed part of the road for the purposes of the Roads Act. In that context, the Court of Appeal found that the right under section 6(1) is not materially different from the established common law right of private access from land to an adjacent public road, a right that is separate and distinct from the general public right to use the road. Drawing on a series of historical authorities concerning the scope of these rights, the Court noted that the private right of access is concerned with the passing from the premises to the road, at the boundary, and that interferences with the ability to get to the point of access do not engage the common law right of access.

The Court also confirmed that the phrase “whether on foot, in a vehicle or otherwise” in section 6(1) of the Roads Act is not to be understood as conferring a right of access using a vehicle in all circumstances and that there was a recognition that a right of access may be exercised in a variety of different ways, and whether each of those ways is possible will depend on the topography of the land and the nature of the public road. By way of example, a right of access is not infringed merely because the public road is too narrow to permit a vehicle to travel along it.

The Court indicated that the Roads Act provides specific exceptions to the common law right (for example, sections 32 and 67) which permit interference with access at the boundary, such as by changing the road level, and which require compensation to be paid to affected landowners. However, those exceptions did not apply here. Crucially, the Court also held that compliance with section 138 of the Roads Act and applicable planning laws does not, of itself, override the right of access in section 6, and that, to the extent the primary judge had found otherwise, that was incorrect.

Applying these principles to the facts, the Court concluded that the Walkway did not infringe the Appellant's rights because the Walkway was constructed some distance from the boundary and did not affect the Appellant’s right to cross the boundary, and does not obstruct the boundary itself.

The Court found that the Appellant's real complaint was that the construction of the Walkway prevented the Appellant from using the Road to gain vehicular access to the Land. The Court observed that one issue with this argument was that the primary judge did not make any finding that the Appellant was able to drive across the boundary before the Walkway was constructed and, in fact, made findings suggesting the opposite. The Court also observed, more fundamentally, that this argument confused the private right of access with the public right to use the road. Accordingly, the Court concluded that any claim the Appellant had was a claim in nuisance on a public road that caused it particular damage and whilst this claim was brought before the primary judge, it was rejected for several reasons, including that the Walkway did not amount to a substantial interference with the Appellant's use of the Land. This finding was not appealed.

The Court considered that this conclusion was sufficient to dispose of the appeal but also observed, in obiter, that even if the Appellant’s section 6 claim had succeeded, it was open to doubt whether the mandatory injunction sought by the Appellant (requiring the First and/or Second Respondent to remove the Walkway) would have been an appropriate remedy.