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[2026] NSWCA 149
respondent. Appeal dismissed. The appellant was ordered to pay the costs of the first and second respondents: [60].
The Court distinguished a landowner’s right to cross from adjoining land onto a public road from the ability to travel along the road reserve to reach that crossing point. Section 6 protects the former, not a general right to convenient or vehicular access. The Walkway made it harder for vehicles to reach the Land’s boundary, but did not block the boundary itself. The Court therefore dismissed the appeal, while clarifying that road-work consent and planning approval do not automatically override private rights.
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2,255 words · generated 07/10/2026
Clifffall Pty Ltd owned undeveloped land at 339 Lawrence Hargrave Drive, Clifton. The property, about 411 square metres, slopes steeply from its road-reserve boundary towards a cliff at its eastern edge. It was covered with vegetation and had previously been used occasionally for family picnics and to grow and pick wild vegetables. Earlier development applications had not proceeded, and no new application had been submitted by the time of the appeal [5]–[6].
The Council constructed a raised walkway and cycleway as part of stage 2 of the Grand Pacific Walk, a planned coastal footpath and cycleway through the Wollongong local government area. The relevant section was built on the road reserve between the Land and the bituminised part of Lawrence Hargrave Drive used by motor vehicles. Stage 2 was constructed between October 2022 and October 2023 [10]–[11]. The road reserve was agreed to form part of the public road for the purposes of the Roads Act 1993 (NSW).
Clifffall claimed that the Walkway obstructed its statutory right of access under s 6. Its position on appeal was that it had previously been able to drive from the Road onto the Land, and that the Walkway had removed that ability. It argued that the restriction was caused by the Council’s decision to build the Walkway, rather than imposed by or under an Act or law, and that its access right should be restored [33].
There were important evidentiary limits. The primary judge was not satisfied that historical vehicular access had occurred. The photographs showed a car parked on the road reserve, not on the Land, and the Land’s steepness and vegetation raised practical difficulties for vehicle access [7], [54]. The Court of Appeal did not need to resolve those evidentiary questions because it regarded the scope of the right as dispositive.
The primary judge dismissed both the s 6 claim and a separate nuisance claim. Clifffall appealed only the s 6 conclusion, not the nuisance conclusion [4]. The Court of Appeal dismissed the appeal and ordered Clifffall to pay the Council’s and TfNSW’s costs [59]–[60].
The Court started with the common law. A landowner adjoining a public road has a private right of access from the land to the road. But that is not the same right as the public’s general right to pass along the road. Ball JA drew on authorities including Marshall v Blackpool Corporation, Walsh v Ervin and Shellharbour Municipal Council v Rovili Pty Ltd to explain that the private right is focused on access at the boundary between the adjoining property and the public way [36]–[37], [46].
The distinction is consequential. A physical obstruction at a property’s boundary may interfere with the private access right. By contrast, an obstruction further along the public way may interfere with a person’s use of that way, without blocking the boundary crossing itself. Attorney-General v Conservators of the Thames illustrated the difference: piers made a wharf less readily approachable, but the private access right remained because access at the boundary had not been blocked [38]. W. H. Chaplin & Co., Limited v Mayor the City of Westminster similarly distinguished stepping from premises onto the highway, a private right, from using the highway after reaching it, which engages the public right [39]–[40].
The Court treated s 6(1) as reflecting, rather than substantially enlarging, the common law right. The text gives an adjoining owner a right to access “across the boundary between the land and the public road”. Ball JA considered that wording to pick up the essential boundary element of the common law right. The provision did not create a broader right to obtain practical access to the road in general [50]–[51]. The Bill’s explanatory note did not suggest that a major change to the common law was intended, and the Court reasoned that such a change would be expected to be made clear in the legislation [51].
The words “whether on foot, in a vehicle or otherwise” did not alter that conclusion. They recognise that access may be exercised in different ways, but do not assure that every kind of access is physically possible. Whether a person can use a particular mode depends on the land’s topography and the nature of the road [52]. For example, the Court observed that a road too narrow for vehicles would not, for that reason alone, infringe the access right.
Applying that construction, the Walkway did not obstruct crossing the boundary between the Land and the road reserve. It instead impeded vehicles from travelling over the road reserve to reach a place from which they might cross onto the Land. The Court likened that situation to the impediment to navigation in Conservators of the Thames: inconvenience in approaching the boundary was not the same as removing the boundary access itself [53].
The Court also clarified a point about statutory and planning approvals. It considered that the primary judge had erred to the extent he treated s 138 of the Roads Act and planning laws as permitting restrictions on the common law or s 6(1) right. Section 138 sets conditions that must be met before work may be carried out on a public road; it does not authorise that work regardless of other legal obligations. Likewise, planning consent does not, without more, authorise a breach of another law or private right [49]. That clarification did not change the outcome, because the Court found no infringement of the boundary right in the first place.
Finally, the Court distinguished the s 6 claim from a claim in nuisance. A landowner may suffer particular damage from a nuisance on a public road and may have a claim on that basis, but such a claim is not the same as interference with the private access right at the boundary [48], [55]. Clifffall’s nuisance claim had been rejected below and was not appealed, so that ruling was not reconsidered.
The judgment describes the common law position as an established private right for an owner of adjoining land to access the public road at the boundary. The right is distinct from the public’s right to use the road and must be exercised consistently with the public’s rights and the ordinary obligations applying to road users [36]–[37]. Cases such as Walsh and Cobb v Saxby illustrate situations in which obstructions at the land-road interface interfered with the private right [42]–[44].
The judgment also describes a separate category: a person may have a nuisance claim where obstruction of a public road causes that person particular damage beyond that suffered by the public generally. That form of claim should not be conflated with the private boundary access right [48]. The Court relied on Owen v O'Connor for the distinction.
The statutory context includes s 5, which addresses the public’s right of passage along a public road, and s 6, which addresses the adjoining owner’s right of access across the boundary. The Act’s stated objects distinguish those two rights [14]–[15]. Sections 32 and 67 provide examples of statutory provisions that can affect access across the boundary, with compensation provisions applying in specified circumstances [16]–[17].
The Court’s contribution in this appeal was to explain that s 6(1) should not be read as a broader guarantee of practical access to a public road. Its focus remains access across the land-road boundary [50]–[51]. It also clarifies that “whether on foot, in a vehicle or otherwise” does not guarantee access by every mode in every physical setting [52]. On the relationship between approvals and private rights, the Court explains that s 138 consent and planning approval do not automatically displace other legal duties or private rights [49].
At [51], Ball JA said the section’s reference to access “across the boundary” picks up an essential element of the common law right. In plain English, the statutory right protects the crossing from the adjoining property onto the public road. It is not a general guarantee that a person can reach that crossing point by any chosen route or vehicle.
At [52], the Court said that whether the right can be exercised on foot, by vehicle or otherwise depends on the land’s topography and the road’s nature. In plain English, the statute identifies possible methods of access, but it does not make physically impracticable access available as a matter of right.
At [53], the Court found that the Walkway was some distance from the boundary and that there was no impediment to access at the boundary itself. In plain English, the walkway affected how vehicles could move across the road reserve; it did not block the Land’s edge.
At [55], the Court stated that Clifffall’s ability to cross the boundary had not been interfered with, while its use of the road reserve to reach that boundary had been affected. In plain English, the Court considered the complained-of obstacle to concern use of the public road, not the protected private crossing right.
At [49], the Court explained that s 138 and planning consent do not authorise a breach of other legal obligations or private rights. In plain English, obtaining the relevant public approvals is not, by itself, a complete answer to a claim that separate legal rights have been infringed.
The reasoning is most directly relevant where an owner of land adjoining a public road alleges that a structure or work on the road reserve has restricted access under s 6(1). The key factual question under this judgment is where the obstruction sits in relation to the boundary. An obstruction that physically prevents crossing at the boundary raises a different issue from one that makes it harder to travel along the road reserve to reach that crossing [51], [53]–[55].
The decision is also relevant where an owner asserts that s 6 guarantees access by vehicle. The Court’s reasoning makes the physical characteristics of the land and road important to that question. A steep block, a narrow road, or a need to construct a driveway may bear on whether vehicle access is physically possible and what kind of access is being claimed [52], [54].
The decision does not resolve every dispute involving interference with access. It distinguishes, rather than decides, a claim that a public-road nuisance causes particular damage to an adjoining owner. The judgment records that Clifffall’s nuisance claim had been rejected below and was not appealed [55]. A fact pattern involving that kind of claim therefore requires separate analysis under the principles relevant to nuisance, rather than treating s 6 as the only possible framework.
The decision also matters where parties rely on road-work consent or planning approval as an answer to a private-rights claim. The Court states that those approvals do not automatically authorise a breach of other legal obligations or private rights [49]. The judgment does not, however, decide whether a private right was infringed in circumstances where a work physically obstructs the boundary.
This judgment is dated 28 July 2026. The supplied judgment contains no later decisions applying or distinguishing it, so subsequent treatment cannot be established from the provided source.
The Court itself relied on and discussed earlier authorities. It applied the common law approach described in Marshall v Blackpool Corporation and adopted in Shellharbour Municipal Council v Rovili Pty Ltd [36], [46]. It discussed Walsh v Ervin, Owen v O'Connor, Attorney-General v Conservators of the Thames, Chaplin and Cobb v Saxby to explain the difference between boundary access and use of a public way [37]–[48].
The Court also referred to Owners Corporation Strata Plan 533 v Random Primer Pty Ltd in support of its explanation that statutory or planning consent does not, without more, authorise a breach of other legal rights [49]. It noted earlier first-instance constructions of s 6 in Thomas v Symons and Tanner v The Minister for Education and Training as part of the procedural and interpretive background [24]–[25].
The judgment did not decide whether a different structure, located at the actual boundary, would infringe s 6(1). It identified boundary obstruction as materially different, but the facts before the Court involved a Walkway some distance from that boundary [47], [53].
The Court did not determine whether Clifffall had been able to drive onto the Land before the Walkway was built. The primary judge had not found that it had, and the Court of Appeal considered the evidence insufficient to reach that conclusion. It did not need to decide the issue because the scope of s 6 was dispositive [54].
The judgment did not determine the outcome of any future development application, driveway proposal, or request for consent under s 138. It records that a driveway could theoretically be constructed, subject to relevant approvals, and that the slope and watercourse would make the work substantial [11]. Whether approvals would be granted was not before the Court.
The Court also did not decide what remedy would be appropriate if a future claimant established an infringement. Its comments about mandatory relief, the Walkway’s community benefit, the Council’s undertaking, and a possible damages remedy were expressly unnecessary to the disposition of this appeal [56]–[58]. The judgment therefore leaves open how relief would be framed in a case where the boundary right had actually been infringed.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Clifffall Pty Ltd v Wollongong City Council (No 2) [2026] NSWCA 149
Hearing dates: 9 July 2026
Date of orders: 28 July 2026
Decision date: 28 July 2026
Before: Kirk JA at [1]
Stern JA at [2]
Ball JA at [3]
Decision: (1) Appeal dismissed;
(2) The appellant pay the costs of the first and second respondents.
Catchwords: LOCAL GOVERNMENT – roads – right of access between public road and adjoining private land –discussion of right of access at common law and under s 6 of the Roads Act 1993 (NSW) – distinction between private right of access and public right to use public road – whether appellant’s private right of access infringed by construction of Grand Pacific Walk – no relevant restriction of private right to cross the boundary between road and land
Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 20
Corporations Act 2001 (Cth)
Crown and Other Roads Act 1990 (NSW)
Local Government Act 1919 (NSW)
Public Gates Act 1901 (NSW)
Roads Act 1993 (NSW) ss 3, 5, 6, 7(4), 29 to 32, 67 to 69, 138
State Roads Act 1986 (NSW)
Traffic Safety (Lights and Hoardings) Act 1951 (NSW)
Width of Streets and Lanes Act 1902 (NSW)
Cases Cited: Attorney‑General v Conservators of the Thames (1862) 1 Hem & M 1; 71 ER 1
Clifffall Pty Ltd v Wollongong City Council [2026] NSWSC 84
Cobb v Saxby [1914] 3 KB 822
Marshall v Blackpool Corporation [1935] AC 16
Owen v O'Connor (1963) 63 SR (NSW) 1051
Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8
Rose v Groves (1843) 5 Man & G 613; 134 ER 705
Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104
Tanner v The Minister for Education and Training (2002) 119 LGERA 321; [2022] NSWLEC 40
Thomas v Symons [2013] NSWSC 490
W. H. Chaplin & Co., Limited v Mayor the City of Westminster [1901] 2 Ch 329
Walsh v Ervin [1952] VLR 361
Woodyer v Hadden (1813) 5 Taunt 125; 128 ER 634
Texts Cited: Explanatory Note to the Roads Bill 1993 (NSW)
Category: Principal judgment
Parties: Clifffall Pty Ltd (Appellant)
Wollongong City Council (First Respondent)
Transport for NSW (Second Respondent)
Representation: Counsel:
MV Sahade with P Conway (Appellant)
D O’Connor with M Connor (First Respondent)
A Shearer SC with J Chen (Second Respondent)
Solicitors:
Oliveri Lawyers (Appellant)
Marsdens Law Group (First Respondent)
Clayton Utz (Second Respondent)
File Number(s): 2026/91661
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Clifffall Pty Ltd owns undeveloped land known as 339 Lawrence Hargrave Drive, Clifton, NSW (the Land). Between October 2022 and October 2023, as part of the Grand Pacific Walk, Wollongong Local Council (the Council) constructed a raised walkway and cycleway (the Walkway) on the road reserve which forms part of Lawrence Hargrave Drive (the Road) and which lies between the Land and the bituminised section of the Road used by motor vehicles.
Section 6(1) of the Roads Act 1993 (NSW) (the Act) provides that “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”. Section 6(2) provides that “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”.
Clifffall commenced proceedings against the Council and Transport for NSW (TfNSW) claiming that the construction of the Walkway impeded its right of access from the Land to the Road in a way which infringed its rights under s 6. It contended that the reference to “those rights” in s 6(2) of the Act referred to any right of access conferred by the common law but did not qualify the right provided by s 6(1). It advanced an alternative case that even if its construction of s 6 was wrong, its statutory right of access had not been derogated from by some other Act or law. The primary judge rejected Clifffall’s construction of s 6 and concluded that Clifffall’s rights under s 6 had not been infringed. The primary judge also rejected Clifffall’s claim in nuisance against the Council, and dismissed Clifffall’s proceedings.
Clifffall appealed to this Court. Its argument was that: (1) it had a right under s 6(1), and prior to the construction of the Walkway the ability, to access the Land by vehicle from the Road; (2) as a consequence of the construction of the Walkway, it is no longer able to exercise that right; (3) contrary to the conclusions of the primary judge, that restriction is not imposed “by or under this or any other Act or law” but resulted from the decision of the Council to build the Walkway; (4) it was entitled to have its right of access restored and it was a matter for the Council how the Council chose to do that.
The Court (Ball JA, Kirk and Stern JJA agreeing) held, dismissing the appeal**:**
Marshall v Blackpool Corporation [1935] AC 16; Walsh v Ervin [1952] VLR 361; Owen v O'Connor (1963) 63 SR (NSW) 1051; Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104, applied.
Woodyer v Hadden (1813) 5 Taunt 125; 128 ER 634; Rose v Groves (1843) 5 Man & G 613; 134 ER 705; Attorney*‑*General v Conservators of the Thames (1862) 1 Hem & M 1; 71 ER 1; Cobb v Saxby [1914] 3 KB 822, discussed.
Attorney*‑General v Conservators of the Thames* (1862) 1 Hem & M 1; 71 ER 1, discussed.
KIRK JA: I agree with Ball JA.
STERN JA: I agree with Ball JA.
BALL JA: This appeal concerns the scope and effect of s 6 of the Roads Act 1993 (NSW) (the Act) which gives the owner of land adjoining a public road a right of access across the boundary between the land and the road. The appellant, Clifffall Pty Ltd (Clifffall), owns undeveloped land known as 339 Lawrence Hargrave Drive, Clifton, NSW (the Land). It claims its right of access from the Land to Lawrence Hargrave Drive (the Road) has been impeded in a way which infringes its rights under s 6 by the construction by the first respondent, Wollongong City Council (the Council), of a raised walkway and cycleway (the Walkway) on the road reserve which forms part of the public road and which lies between the Land and the bituminised section of the Road used by motor vehicles.
The primary judge (Pike J) concluded that Clifffall’s rights under s 6 had not been infringed. The primary judge also rejected Clifffall’s claim in nuisance against the Council. As a result, he dismissed Clifffall’s claim: see Clifffall Pty Ltd v Wollongong City Council [2026] NSWSC 84 (the primary judgment or PJ). Clifffall appeals the primary judge’s conclusions in relation to s 6. It does not appeal the primary judge’s conclusion in relation to its claim in nuisance. For the reasons that follow, the appeal must be dismissed.
The Land was acquired by Clifffall in December 2020 for consideration said to be $500,000. Clifffall is controlled by Mr Peter Khouri and his wife. It acquired the Land from Mr Khouri’s father and two uncles, who had bought the land in the early 1980s: PJ[17].
The Land is approximately 411 square metres in area. It slopes relatively steeply from where it abuts the road reserve (on which the Walkway is constructed) to its eastern boundary, where there is a cliff down to the ocean: PJ[11], [13]. It is currently covered in knee to waist high vegetation. It has been used in the past on occasions for family picnics and to grow and to pick wild vegetables. There have been some previous development applications in respect of the Land, but none was pursued. The proceedings were commenced on 16 April 2024 but were adjourned for an extended period in 2025 to enable Clifffall to consider lodging a further development application to develop the Land. However, no such application was submitted. According to evidence given by Mr George Khouri, one of the previous owners of the Land, “conceptuals and design sketches” were prepared, but a new geotechnical report was required to lodge a new DA and in order to obtain that report “a truck machine was required in order to bore holes which cannot occur”: PJ[104].
It was and is possible to access the Land by foot both before and after the construction of the Walkway. It is unclear whether it was possible to access the Land by a motor vehicle before the Walkway was constructed. The primary judge, who had the benefit of a view, made the following findings in the context of his discussion of Clifffall’s claim in nuisance:
[116] Insofar as it is contended that there has been historical vehicular access, I am not satisfied on the evidence that there has been any. The two photographs put into evidence show a car parked on the road reserve. Any suggestion of vehicular access onto the Land encounters the fact that the Land is relatively steeply sloping, covered in vegetation and bounded to the east (ocean side) by a vertical cliff.
[117] Such access as there has been, has been by foot. That foot access to the Land is still possible from the area to the south of the Land in the manner demonstrated by Mr Shearer SC for [Transport for NSW] during the site visit. …
The Road is a designated “main road” and therefore falls within the definition of “classified road” as that term is defined in the Act. The Council is the “roads authority” for the Road: see s 7(4) of the Act.
The Walkway forms part of stage 2 of the Grand Pacific Walk, which is intended to be a 60-kilometre footpath/cycleway stretching along the coastline of the Wollongong Local Government Area. Stage 2 was constructed between October 2022 and October 2023. The relevant part of the Walkway is adjacent to the bitumen road and constructed on the road reserve. Parts of it are raised because of the topography of the land on which it is constructed. Set out below is a plan showing the location of the Land and Walkway relative to the Road which is taken from the primary judgment:
The area shaded in grey shows the extent of the road reserve. It was common ground that the whole of the road reserve forms part of the public road for the purposes of the Act. The area of the Walkway marked in hand with vertical lines is not raised. It can be seen from this diagram that it would be possible, subject to relevant approvals, to construct a driveway from the western boundary of the Land north of the watercourse across the road reserve in front of No 341 and then across the unraised portion of the Walkway onto the bitumen road. It is apparent from photographs in evidence that a substantial amount of work would be involved in constructing the driveway because of the slope of the Land and the location of the watercourse.
22.1 vary the railing at the commencement of the elevated boardwalk in the vicinity of 341-345 Lawrence Hargrave Drive to install a gate;
22.2 behind the gate install steps from the elevated boardwalk into the road reserve in the vicinity of 341-345 Lawrence Hargrave Drive to install a gate; and
22.3 install a gravel path along the road reserve to 339 Lawrence Hargrave Drive.
Objects of Act
The objects of this Act are—
(a) to set out the rights of members of the public to pass along public roads, and
(b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and
…
(h) to regulate the carrying out of various activities on public roads.
5 Right of passage along public road by members of public
(1) A member of the public is entitled, as of 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.
(1A) The right conferred by this section extends to the right of passage of members of the public in a light rail or other railway vehicle.
(2) The right conferred by this section does not derogate from any right of passage 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.
(3) For example, those rights are subject to such restrictions as are imposed—
(a) by or under the road transport legislation within the meaning of the Road Transport Act 2013, or
(b) by or under section 5.43 of the Crown Land Management Act 2016.
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.
32 Rights of adjoining landowners in relation to the fixing of levels
(1) If the fixing of the levels of a public road results in loss of access across the boundary between the road and land adjoining the road, the roads authority must restore access between the road and that land.
(2) If the varying of levels so fixed results in loss of access across the boundary between a public road and land adjoining the road, the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access.
Part 4 deals with the closure of public roads. Part 5 deals with the classification of public roads. Section 67 (contained within Part 5) provides that an order declaring a road to be a freeway, transitway or controlled access road may restrict access to or from the freeway, transitway or controlled access road. Sections 68 and 69 provide for the payment of compensation in some circumstances to the owner of land if access across the boundary between the land and the road is restricted as a consequence of the order.
Part 6 deals with roadwork. Part 7 deals with the protection of public roads, Part 8 deals with the regulation of traffic by the roads authority and Part 9 deals with the regulation of works, structures and activities on public roads. Section 138 (contained in Part 9) provides:
Works and structures
(1) A person must not—
(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.
Maximum penalty—10 penalty units.
(2) A consent may not be given with respect to a classified road except with the concurrence of TfNSW.
(3) If the applicant is a public authority, the roads authority and, in the case of a classified road, TfNSW must consult with the applicant before deciding whether or not to grant consent or concurrence.
(4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person.
(5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.
1A. A DECLARATION that, pursuant to section 6 of the Roads Act (NSW) the plaintiff as owner of [the Land], 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 known as Lawrence Hargrave Drive.
…
- Further, and in the alternative, an injunction requiring the first and or second defendant(s) to remove the ongoing nuisance constituted by the construction works so as to grant the plaintiff access to Lawrence Hargrave Drive, Clifton NSW 2515 from the plaintiff's land being [the Land] in accordance with the plaintiff's right pursuant to section 6 of the Roads Act (1993), within 28 days of the making of this order…
11 Since around September 2023, the first and or second defendant(s) has or have constructed a walkway/cycle-way/viewing platform with associated fencing ("construction works") between the Plaintiff's Land and the adjoining road.
12 The defendants or either of them did not seek the consent of the plaintiff, and the plaintiff did not provide consent, in respect of the construction works.
13 The construction works has caused the Plaintiff's Land to become landlocked and inaccessible by foot and by vehicle from the public road.
14 On or around 19 September 2023, the plaintiff's legal adviser sent a letter to the first defendant requiring the removal of the obstruction caused by the construction works and to grant the plaintiff access in accordance with section 6 of the Roads Act 1993 (NSW).
15 The first defendant has failed or refused to remove the obstruction caused by the construction works.
16 The construction works of the first and or second defendant(s) impermissibly interferes with the plaintiff's right pursuant to section 6 of the Roads Act 1993 (NSW) and the defendants, or either of them, as the roads authority has or have a duty to provide the plaintiff with the said right.
At trial, Clifffall’s principal argument was that the reference to “those rights” in s 6(2) of the Act referred to any right of access conferred by the common law but did not qualify the right provided by s 6(1). That right was infringed because, as a consequence of the Walkway, it was no longer possible to drive onto the Land from the road reserve. Clifffall advanced an alternative case that even if its construction of s 6 was wrong, its statutory right of access had not been derogated from by some other Act or law.
As the primary judge observed, the construction of s 6 for which Clifffall contended was inconsistent with the construction adopted by Windeyer AJ in Thomas v Symons [2013] NSWSC 490 and Bignold J in Tanner v The Minister for Education and Training (2002) 119 LGERA 321; [2022] NSWLEC 40. In both cases, the court held that the reference to “those rights” was a reference to the common law rights and to the rights referred to in s 6(1). As Windeyer AJ said at [43] in a passage quoted by the primary judge at PJ[66]:
The argument of counsel for the defendant was that there was access as of right under s 6(1). The argument of counsel for the plaintiff was the right was qualified by s 6(2). The drafting is not good, but on consideration I think that under s 6(2) “those rights” means the s 6(1) right and any common law right. The Princes Highway where it passes the plaintiff’s property has been classified pursuant to s 47 of the Roads Act as a Highway. It would appear that pursuant to s 9 of the Roads Act, Wollongong Council is the road authority for the Princes Highway in the relevant section of the road here. Thus it is the consent authority under s 138 for giving consent to any work on the road which would include constructing a driveway over the footpath or gutter. However, pursuant to s 138(2) the Council as roads authority can only give consent with the concurrence of the Roads and Maritime Services as the highway is a classified road. That authority has indicated it is unlikely to give consent. [emphasis in original]
The primary judge did not understand that Clifffall was submitting that those decisions were plainly wrong and should not be followed: PJ[70]. In any event, his Honour thought they were correct: see PJ[76] to [78].
Accordingly, the issue was whether the right conferred by s 6(1) was subject to “restrictions as are imposed by or under this or any other Act or law”. On that question, the primary judge said:
[78] I do not accept the plaintiff’s construction of s 6. Neither the statutory right conferred by s 6(1) or the common law right are unqualified or absolute.
[79] In the present case, the work which it is alleged obstructs the right of access was carried out by the relevant roads authority (the Council) in accordance with all relevant laws, including development consent granted by the Council and concurrence from TfNSW in accordance with s 138 of the Roads Act.
[80] In the present case, the restrictions relevant to the Land also include cl 2.119 of the State Environmental Planning Policy Transport and Infrastructure 2021 (NSW) (SEPP T&I). Lawrence Hargrave Drive is a “main road” being a type of “classified road”. The clause provides:
2.119 Development with frontage to classified road
(1) The objectives of this section are -
(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and
(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.
(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that -
(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and
(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of -
(i) the design of the vehicular access to the land, or
(ii) the emission of smoke or dust from the development, or
(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and
(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
[81] The provisions of that clause contain a number of separate and cumulative matters as to which satisfaction must be reached in respect of vehicular access to the land, otherwise consent must not be granted: Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 at [27] per Preston CJ. [emphasis in original]
In his Honour’s view, that disposed of Clifffall’s claim against the Council under s 6 of the Act. In addition, the primary judge was not satisfied that any cause of action was being maintained against TfNSW. Accordingly, he concluded that the proceedings against it should be dismissed: PJ[87].
After considering and rejecting the nuisance claim, the primary judge turned to the relief sought by Clifffall. In relation to the declaration sought by Clifffall, his Honour said:
[127] The declaration is predicated on the plaintiff’s construction of s 6 which I do not accept.
[128] Further, it is not clear to me that there would be any utility in making a declaration in the present case. The concern of the plaintiff was to have vehicular access to the Land. Had I been satisfied that the plaintiff was entitled to such access, the appropriate relief would be moulded injunctive relief to seek to bring about that outcome.
[129] The form of the declaration is also problematic at least insofar as it seeks to cut across [TfNSW’s] statutory powers, including its powers under s 138 of the Roads Act concerning concurrence in respect of works.
[140] Notwithstanding this history, had I been satisfied that the claim in nuisance succeeded, I would not have dismissed the plaintiff’s claim because of deficiencies in the forms of relief propounded. I would have been concerned to mould appropriate injunctive relief. Such relief would need to account for the fact that development consent would likely be required for the removal or modification of the existing structures where they abut the Land and also TfNSW’s concurrence role under s 138 of the Roads Act.
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.
3 Remit the matter back to the learned trial judge for final orders in accordance with the reasons of this Court;
4 In the alternative to Order 3 above, the parties be directed to bring in short minutes of final orders in accordance with the reasons of this Court;
Clifffall’s argument on appeal was straightforward and involved the following propositions:
It had a right under s 6(1), and prior to the construction of the Walkway the ability, to access the Land by vehicle from the Road;
As a consequence of the construction of the Walkway, it is no longer able to exercise that right;
Contrary to the conclusions of the primary judge, that restriction is not imposed “by or under this or any other Act or law”. It resulted from the decision of the Council to build the Walkway;
Consequently, it was entitled to have its right of access restored. From its point of view, it was a matter for the Council how the Council chose to do that.
A substantial part of the debate during the hearing of the appeal focussed on the question whether prior to the construction of the Walkway, Clifffall had been able to drive on to the Land from the Road and whether, if it had, it could be said that its right to do so under s 6(1) has been lost as a consequence of action taken by the Council by or under s 138 of the Act, as the primary judge apparently found. Something more will be said about those issues later in this judgment. There is, however, a prior question, which was raised by TfNSW but not properly addressed by Clifffall and which, as will become apparent, is dispositive of the appeal, and that is the scope of the right conferred by s 6(1).
Before addressing that question directly, it is necessary to say something about the common law, since, as will be explained, properly understood, s 6(1) is not to be understood as creating a right which is substantially different from the common law right.
At common law, a landowner has a private right of access from their land to an adjacent public road. That right was recognised in Woodyer v Hadden (1813) 5 Taunt 125; 128 ER 634 and in Rose v Groves (1843) 5 Man & G 613; 134 ER 705. The right was described in these terms by Lord Atkin in Marshall v Blackpool Corporation [1935] AC 16 at 22, in a passage quoted with approval by this Court (Clarke JA; with whom Samuels and Meagher JJA agreed) in Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 (Shellharbour) at 108:
… The owner of land adjoining a highway has a right of access to the highway from any part of his premises. … The rights of the public to pass along the highway are subject to the right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.
The plaintiff as the owner of freehold land adjoining the road, which was and is a public highway, had and has a right (subject to any statutory interference therewith) to free and uninterrupted access to the highway from any point on his land contiguous with the highway, and from the highway to any point on his land contiguous therewith. This is a private right, which the plaintiff enjoys as an adjoining landowner … It is not to be confused with, and is in fact quite distinct from, the public right which he or any other member of the public has to use the surface of the highway itself for the purposes of lawfully passing and repassing thereon; … The two rights – the private right of access and the public right of passage – may be infringed by the one obstruction.
The Fishmongers’ Company say that they have a right to this wharf, coupled with a right of access to the river; and I agree that, if this access were taken away, they would … be entitled to an injunction. But, in truth, the access is not blocked up. The wharf will not be as readily and easily approached, and perhaps not at all by the same route; but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access. Persons who frequent either this or any other wharf will be impeded, to a certain extent, in the navigation of the river; but that is an injury to the general right of navigation. It amounts only to this, that the Plaintiffs’ goods will have to take a longer and less convenient course in coming up to their wharf; an inconvenience the same in kind, though not in degree, as that which the rest of the public will be exposed to. The right interfered with is not the private right of access, which still remains, but the right of approaching from a distance, which forms part of the public right of navigation.
A person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway, and if any obstruction be placed in his doorway, or gateway, or, if it be a river, at the edge of his wharf, so as to prevent him from obtaining access from his own premises to the highway, that obstruction would be an interference with a private right. But immediately that he has stepped on to the highway, and is using the highway, what he is using is not a private right, but a public right.
Now, what is the plaintiffs' right in this respect? Their right is so to use this portion of the highway for loading or unloading their goods as to enjoy the highway reasonably in common with other members of the public entitled to its use. The highway is a thing which under the statute is to be, among other things, lighted, and lighted if necessary by fixed obstructions placed in the highway, and it appears to me that the plaintiffs' right in respect of the highway is to enjoy that reasonably with all other members of the public, and that they cannot set up an individual interest in the right to use the highway, which they enjoy in common with other members of the public, against the reasonable use by the defendants of the statutory authority given to them to obstruct the highway by lamp-posts where they think it necessary. I agree that the local authority must not so use their power as to commit a nuisance.
Two examples of cases in which landowners have been successful in relying on the common law right are Cobb v Saxby [1914] 3 KB 822 (Cobb) and Walsh.
In Walsh*,* an owner of land adjoining a highway alleged that his right to access the highway by motor vehicle through a gate on his property had been interfered with by the defendant, the owner of land on the opposite side of the highway, who had ploughed the road and allowed it to remain ploughed for a period of time. In awarding nominal damages to the plaintiff, Scholl J said (at 364):
In my opinion, the prevention of the possibility of access for motor vehicles for some months does amount to such an interference. It was a substantial diminution of the effective content of the plaintiff’s right, even though, as I said in my interim judgment, there is no evidence that the plaintiff wanted to use the gate at [the relevant location] for access by motor vehicle except on the one occasion. Thus, even if there had been no evidence that the plaintiff ever wanted so to use it during the period of the obstruction by ploughing, I think there would have been an infringement of his right, entitling him to nominal damages.
There is no need for a declaration of the plaintiff’s right, which is vindicated by the award of damages; and as to an injunction, the interference ceased in 1947, some two years before the issue of the writ. There was thereafter, and is, no threat by the defendant to repeat that or any other interference with the plaintiff’s right of access.
In my opinion the contentions raised by the defendant's counter-claim are well founded. It is said on his behalf that the existence of these boards in their present position constitutes an invasion of the private rights which the defendant possesses by reason of the contiguity of his premises to the public highway. It is well settled law that the owner of land adjoining a highway has the private right of passing from his premises on to the highway, and if that right is obstructed and he brings an action against the person causing the obstruction, he is not in the position of a member of the public who complains of an obstruction to the highway which specially affects him, but he is a person who has a cause of action by reason of the interference with or obstruction to his private right. Although no authority precisely in point has been cited, I am of opinion that the owner of a house adjoining a public highway has precisely the same rights, as regards the highway, with respect to the wall of his house as he has in the case of a door or other entrance leading from his house on to the highway. He has the right to do anything he likes to the wall, for example to display advertisements upon it, and if these rights are invaded or obstructed, he has, in my opinion, a good cause of action against the person causing the interference with his rights. …
As is apparent, in both cases what was impeded or interfered with was the possibility of access, or passing from the premises to the road, at the boundary between the landowner’s property and the public road. By contrast, as is apparent from Conservators of the Thames and Chaplin, impediments or interferences with the ability to get to that point of access do not engage the common law right of access.
The decision in Shellharbour, a case on which Clifffall placed considerable weight, is consistent with these authorities. In that case, the landowner owned land on the shores of Lake Illawarra. The only means of access to the land was at a level crossing across a railway line. The State Rail Authority gave notice that it intended to resume the easement by which that access was exercised. The only other possible means of access was to build a bridge across a creek which formed the southern boundary of the property to connect with a road owned by the Council. The landowner sought the consent of the Council to build the bridge, which was refused. The landowner then commenced proceedings seeking a declaration that the Council was bound to consider and to determine the development application, or alternatively, a declaration that the Council could not lawfully refuse its consent. In holding that the landowner was not entitled to that relief, Clarke JA said (at 109-110):
In the present case it is important to emphasise that the right is one of access and that, subject to special statutory provisions, the landowner is entitled to the removal of any obstructions which interfere with that right of access. It is not a right to have public authorities carry out works to facilitate or improve the means of access.
There is, for instance, no common law right in the landowner which enables him to require a public authority to provide access to the highway where none presently exists.
What the respondent wishes to do is to construct a bridge across the creek to provide it with access to the highway from his land. It is not seeking to remove an obstruction which prevents, or hinders, its common law right of access. It wishes to build a bridge which would run, on the assumed state of facts, from within its land to the road. This facility is to enable the occupier to have vehicular access to its land at a point where none presently exists.
The common law right does not avail it in these circumstances. The respondent has, and continues to have, access from the edge of its land onto the highway (albeit that that access is, on the assumption upon which we are asked to act, in the middle of the creek). Nothing that the appellant has done interferes in the slightest with that access. It would be different if the appellant had constructed a wall in the centre of the creek which prevented free access from one side to the other. But nothing of that sort has occurred. (emphasis added)
Clifffall placed emphasis on the highlighted passage. However, that statement must be understood in the context where it was an agreed fact that the boundary ran along the middle of the creek. What Clarke JA is to be understood as saying in that passage, then, is that the position would have been different if the Council had constructed a wall along the boundary.
As is apparent from what already has been said, the private right of access across the boundary between private land and a public road must be distinguished from “the right of a person to sue in his own name for individual damage suffered through a nuisance to a public highway” (to use the words of Scholl J in Walsh at 363). As Sugerman J explained in Owen v O'Connor (1963) 63 SR (NSW) 1051 (Owen) at 1060-1:
The circumstance that a man is a frontager to a highway which is obstructed by the erection of works, or to which some other nuisance is committed, may of itself have the consequence that the frontager suffers particular damage beyond that which is suffered by the rest of the public. Of this a number of illustrations have been cited in argument--Spencer v London & Birmingham Rly Co (1836) 8 Sim 193; Beckett v Midland Rly Co (1867) LR 3 CP 82; Cook v Bath Corporation (1868) LR 6 Eq 177; Lyons, Sons & Co v Gulliver [1914] 1 Ch 631; Blundy, Clark & Co Ltd v London & NE Rly Co [1931] 2 KB 334; Medcalf v R Strawbridge Ltd [1937] 2 KB 102. Included amongst these are cases upon which Mr Riley has strongly relied in which the plaintiff has been deprived altogether of a mode of access to his premises previously available (e.g. Cook v Bath Corporation (1868) LR 6 Eq 177) or even put at risk that his "entrance into the wider world beyond" might be prevented (Spencer v London & Birmingham Rly Co (1836) 8 Sim 193). Cases of this class, which are illustrative of particular damage suffered by an individual in consequence of a public nuisance affecting passage upon the highway, are to be distinguished from cases of interference with a landowner's right of access as between his land and an adjoining highway, which is a private right of property—See Fritz v Hobson (1880) 14 Ch D 542, at p. 554; W H Chaplin & Co Ltd v Westminster Corporation [1901] 2 Ch 329, at pp. 334-335; Walsh v Ervin [1952] VLR 358, at pp. 362 et seq.
The Act provides specific exceptions to the common law right (and the right under s 6(1)). One example is s 32. Another is s 67. Both those sections permit interference with the boundary between the road and the land adjacent to the road. Both provide for compensation to be payable to landowners whose rights of access are affected. However, to the extent that the primary judge suggested that the combined effect of s 138 of the Act and the planning laws was to permit the Council to place restrictions on a landowner’s rights at common law or under s 6(1), that was an error. Section 138 sets out necessary conditions that must be satisfied before work can be carried out on a public road. But it does not say, and it cannot be interpreted as saying, that if the Council (or anyone else) satisfies those conditions then it is authorised to undertake that work irrespective of any other legal obligation placed on it. Similarly, development consent obtained in accordance with planning laws will satisfy the requirements of those laws, but that does not mean that that consent authorises any other breach of the law or the private rights of a person affected by the development the subject of the consent: see Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8 at [43] (Kirk JA; with whom Gleeson and Mitchelmore JJA agreed). Consequently, the obtaining of consent under s 138 and compliance with the planning laws does not operate as a legal restriction on the common law right or the right granted by s 6(1).
Clifffall’s claim is, of course, under s 6(1) of the Act, not the common law. However, as adverted to above at [35], the right conferred by s 6(1) should not be seen as being substantially different from the right conferred by the common law. It is not unusual for statutes to encapsulate a common law right or obligation and at the same time preserve the common law. An example is some of the obligations placed on company directors by the Corporations Act 2001 (Cth). Another is s 20 of the Australian Consumer Law, in sch 2 to the Competition and Consumer Act 2010 (Cth) (dealing with unconscionable conduct “within the meaning of the unwritten law”).
In the present case, in identifying the right as a right of access “across the boundary between the land and the public road”, the section is picking up an essential element of the common law right. The focus is on the boundary, and not on some more general right to be able to obtain practical access to a public road. Although the Explanatory Note for the relevant Bill only says that “[g]enerally speaking” the Bill was not intended to make major changes to the legislation it consolidated, and says nothing about the common law, it is to be expected that something would have been said if s 6(1) was intended to make a major change to the common law right. In fact, all that the Explanatory Note says in relation to cl 6 (that became s 6) is “This Part (clauses 1-7) contains certain formal provisions together with a statement of objects of the proposed Act (clause 3), statements of the rights of passage and access that attach to public roads (clauses 5 and 6) and provides for the establishment of certain roads authorities for the purposes of the proposed Act (clause 7)”. Moreover, if a major change was intended, it is to be expected that the nature of the new right would have been spelt out in the legislation, particularly since it could have far-reaching consequences for the bodies that are responsible for public roads.
It follows from what I have said that the appeal must be dismissed. There is no reason why Clifffall should not pay the Council’s costs. There is a question whether it was necessary for TfNSW to play an active role in the proceedings given that no orders were sought against it. However, in circumstances where Clifffall chose to join TfNSW to the appeal knowing the position and continued to maintain that it was a proper party because it had an interest in any orders made by the Court, it is appropriate that Clifffall should pay its costs as well.
Accordingly, the orders I propose are:
Appeal dismissed;
The appellant pay the costs of the first and second respondents.
**********
Clifffall Pty Ltd
Wollongong City Council (No 2)
Appeal dismissed. The appellant was ordered to pay the costs of the first and second respondents: [60].
The phrase “(whether on foot, in a vehicle or otherwise)”, is not to be understood as conferring a right of access using a vehicle in all circumstances. Rather, the inclusion of the phrase in a description of the right is a recognition that a right of access may be exercised in a variety of ways. Whether each of those ways is possible will depend on the topography of the land and the nature of the public road. For example, the right of access is not infringed because the public road is too narrow to permit a vehicle to travel along it: cf Owen at 1062 concerning the Common Law right.
Understood in that way, Clifffall’s rights under s 6(1) of the Act were not infringed by the Walkway. The Walkway is constructed some distance from the boundary between the Road and the Land, like the piers in Conservators of the Thames*.* As in that case, Clifffall’s real complaint is that, as a consequence of work carried out on the Road its ability to use the Road to gain vehicular access to the Land has been restricted, and in this case will require the construction of a driveway, which itself will require development approval and approval under s 138 of the Act. But none of that means that its right to cross the boundary between the Road and the Land has been restricted in the relevant sense. As is apparent, at the boundary between the Land and the road reserve there is no impediment to access. Instead, the Walkway operates to restrict the ability of vehicles to get to the point of the road reserve where they might access the Land.
Clifffall submits, in effect, that its rights to drive across the boundary have been restricted because previously it was able both to drive to, and to drive across, the boundary from the Road (that is, the road reserve) to the Land and now it is not. One difficulty with that submission is that the primary judge did not make any finding that Clifffall was able to drive across the boundary before the Walkway was constructed. What findings his Honour did make on the subject suggest the opposite. Clifffall did not seek to challenge those findings. Moreover, on the evidence before this Court, it is not possible to reach a conclusion on the issue. There is one photograph in evidence which shows a parked motor vehicle before the Walkway was constructed. However, the unchallenged finding of the primary judge was that that vehicle was parked on the road reserve adjacent to the Land, where the Walkway has now been constructed. Other photographs suggest that the topography of the Land may be such that it would be difficult to drive a motor vehicle safely on to it absent the construction of a driveway.
However, it is not necessary to consider these difficulties further because there is a more fundamental difficulty with the submission and that is that it confuses the private right of access across the boundary between land and a public road and a nuisance on a public road which causes a landowner particular damage. As has already been explained, Clifffall’s ability to cross the boundary between the Land and the road reserve has not been interfered with. What has been interfered with is its right to use the road reserve to obtain access to that boundary. As a result, any claim Clifffall had was a claim in nuisance on a public road that caused it particular damage. Clifffall did bring a claim of that type, but it was rejected by the primary judge for several reasons, including that the Walkway did not amount to a substantial interference with Clifffall’s use of the Land: see particularly PJ[114]ff. There is no appeal against that conclusion.
Those conclusions are sufficient to dispose of the appeal. However, one other point should be mentioned. The primary judge indicated that if he had been satisfied that Clifffall’s claim in nuisance should succeed, he would not have dismissed the claim because of the failure of Clifffall to formulate an appropriate form of injunction but would have “been concerned to mould appropriate injunctive relief”: PJ[140]. His Honour did not deal specifically with the position if the claim under s 6(1) had succeeded, although presumably he would have adopted the same approach. However, whether or not that would be appropriate is open to doubt. The final form of order that Clifffall proposed was an order that the Council “take all lawful steps to remove the obstruction”. However, it is difficult to see that a court would make that order. The Walkway was constructed following a process of community consultation. The previous owners of the Land were put on notice of the proposal to build the Walkway, although they may well not have understood the precise impact of the Walkway on the Land. The Walkway obviously is of some benefit to the local community, and the Council has given an undertaking to make modifications which will facilitate foot access to the Land. There must be a real question whether in those circumstances TfNSW would give its consent to the removal of the relevant part of the Walkway and whether taking all those matters into account a court would grant an injunction in the terms sought by Clifffall.
On the other hand, there would be difficulties in formulating a mandatory injunction requiring the Council to provide vehicular access to the Land. As Clarke JA pointed out in Shellharbour, the right of access is not a right to have public authorities carry out works to facilitate or improve the means of access. Moreover, what means of access would be suitable depends on how the Land is developed (assuming that development is possible and undertaken). An appropriate form of mandatory injunction should only be formulated once it is known how the Land is to be used.
Of course, there is nothing to prevent Clifffall from seeking to develop the Land and proposing a method of vehicular access as part of that development. It is a matter for the Council and, to the extent that the proposal involves work on the Road, TfNSW whether they approve the development or not. But as Clifffall rightly accepts, any mandatory injunction requiring the construction of a driveway would be subject to the same constraints. The only real practical difference is who may be responsible for paying for the relevant work. But that suggests that any remedy that Clifffall might have had should have sounded in damages and not a mandatory injunction. However, in view of the conclusions I have reached, it is not necessary to pursue these issues further.
(2002) 119 LGERA 321