Posted on March 10, 2026 by Dominic Smith and Liam Mulligan 7

Access to public roads – an absolute right?

In a recent decision, the NSW Supreme Court considered the nature and extent of the common law and statutory entitlement of a landowner to access a public road adjoining their land.

The case concerned an alleged obstruction preventing the landowner from accessing a public road. The obstruction was a boardwalk known as the “Grand Pacific Walk”, which was owned by the Council and was intended to be a footpath and cycleway extending for 60 kilometres along the coastline of the Wollongong local government area.

Part of the Grand Pacific Walk was constructed on the road reserve adjacent to land owned by the plaintiff, Clifffall Pty Ltd (Clifffal). Clifffall’s land – which was undeveloped and vacant – abutted the road reserve of a designated main road.  Cliffal contended that the walkway structure prevented any access to the land from the adjacent road and required the Council to remove the obstruction, asserting that it had a right to access the public road pursuant to s 6 of the Roads Act 1993 (NSW) (Roads Act).

The Council declined to remove the boardwalk. In turn, Clifffal brought a claim in the NSW Supreme Court seeking relief including:

• orders requiring the Council and Transport for NSW to grant access to Clifffal to the boundary between the land and the road,
• a claim of nuisance against the Council, and
• a mandatory injunction requiring the Council and Transport for NSW provide access to the road.

Decision

The Supreme Court dismissed the claim and held that the plaintiff was not entitled to access the road without having first obtained approval under s 138 of the Roads Act.

Right of access to a public road

One of the key issues in the case was the proper construction of s6 of the Roads Act, which provides:

(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 plaintiff contended that the words “those rights” in s 6(2) of the Roads Act refer to any rights of access conferred by the common law and that the purpose of s 6 is not to derogate from any common law rights.

The Court rejected this argument and followed the decisions in Tanner v The Minister for Education and Training (2002) 119 LGERA 321 and Thomas v Symons [2013] NSWSC 490, which had determined that the common law right (and statutory entitlement in s 6 of the Roads Act) of a landowner to access an adjoining road is “subject to such restrictions as are imposed by or under this or any other Act or law”. Accordingly, the Court found that neither the statutory right conferred by s 6(1) or the common law right are unqualified or absolute.

In this case, the Court found that the Council had carried out works in accordance with all relevant laws, including the requirement for development consent and the concurrence from Transport for NSW under s 138 of the Roads Act.

Nuisance

Clifffal also advanced a claim in nuisance, which was pleaded on the basis that it had an unqualified and absolute right to access the land by vehicle under s6 of the Roads Act (which the Court did not accept).

The substance of the claim was that, prior to the construction of the boardwalk, the land was accessible by road. Since the Council commenced the works to construct the boardwalk, the land was no longer accessible by road due to construction hoardings and, eventually, the boardwalk. The plaintiff plead that it had never consented to the works, that the works had caused the land to become landlocked and inaccessible, and that the works constituted a nuisance in so far as the plaintiff’s use and enjoyment of the land was diminished due to the lack of access.

The Council denied that any use or enjoyment of the land had been made, as the land was vacant and covered in waist high vegetation.

The Court held that the evidence did not demonstrate that the existence of the walkway structure on the road reserve constituted a substantial and unreasonable interference with the Clifffal’s enjoyment of the land. Accordingly, the claim in nuisance failed on the facts.

Implications

This decision is particularly relevant to councils because it confirms that an owner’s right to access an adjoining road is not unqualified or absolute.  The right (and any other common law right to similar effect) is subject to the other provisions of the Roads Act, and any other law. Vehicular access to a road is subject to the requirements in s 138 of the Roads Act and any incidental development consent required from the relevant Council.

You can read the Supreme Court’s judgment here: Clifffall Pty Ltd v Wollongong City Council [2026] NSWSC 84 

If you have any questions regarding this article, please leave a comment below, or contact Liam Mulligan on (02) 8235 9715 or Dominic Smith.