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[2026] NSWSC 84
Supreme Court of NSW
2026-02-18
Pike J
Original judgment source is linked above.
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 [2026] NSWSC 84
Hearing dates: 2 to 4 February 2026
Date of orders: 18 February 2026
Decision date: 18 February 2026
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision: (1) Amended statement of claim dismissed.
(2) Plaintiff pay the defendants’ costs of the proceedings.
(3) Any party seeking a different costs order to order 2 above should notify my Associate within seven (7) days whereupon I will, to the extent necessary, vacate or vary order 2 above and make directions for the determination of any special costs orders on the papers.
Catchwords: REAL PROPERTY — right of access — alleged obstruction of plaintiff’s access to land — construction of footpath adjacent to land — undeveloped land — where future development would require development consent — where land is situated on steep hill with cliff edge — where access by foot remains possible — proper construction as to s 6 of the Roads Act 1993 (NSW) — where statutory and common law rights subject to restrictions imposed by Roads Act 1993 (NSW) or other law
TORTS — private nuisance — alleged nuisance by loss of access to public road — whether substantial and unreasonable interference with plaintiff’s enjoyment of land — alleged historic vehicular access — where land has been left vacant and used for occasional picnic or barbeque
REMEDIES — where plaintiff sought declaration and mandamus — where plaintiff also sought restorative mandatory injunction
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 4, 5
Evidence Act 1995 (NSW), s 53
Roads Act 1993 (NSW), ss 5, 6, 7, 62, 138
State Environmental Planning Policy Transport and Infrastructure 2021 (NSW), cl 2.119
Cases Cited: Hunt Leather Pty Ltd & Anor v Transport for NSW [2025] HCA 53
Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33
Roberts v Rodier (2006) 12 BPR 23.453; [2006] NSWSC 282
Tanner v The Minister for Education and Training (2002) 119 LGERA 321; [2002] NSWLEC 40
Thomas v Symons [2013] NSWSC 490
Walsh v Ervin [1952] VLR 361
Texts Cited: P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co)
Sappideen and Vines, Fleming’s The Law of Torts, (11th ed, 2024, Thomson Reuters)
Category: Principal judgment
Parties: Clifffall Pty Ltd (Plaintiff)
Wollongong City Council (First Defendant)
Transport for NSW (Second Defendant)
Representation: Counsel:
B Rayment KC / M Sahade (Plaintiff)
D O’Connor (First Defendant)
A Shearer SC (Second Defendant)
Solicitors:
Oliveri Lawyers (Plaintiff)
Marsdens Law Group (First Defendant)
Clayton Utz (Second Defendant)
File Number(s): 2024/00140787
Publication restriction: Nil
Clifffall Pty Ltd (the plaintiff) owns undeveloped land known as 339 Lawrence Hargrave Drive, Clifton, NSW being Lot 10 of section 1 of Deposited Plan 2281 (Land).
The Land abuts the road reserve which forms part of Lawrence Hargrave Drive, Clifton. Lawrence Hargrave Drive is a designated “main road” and therefore a “classified road” under the Roads Act 1993 (NSW) (Roads Act).
The Grand Pacific Walk is intended to be a 60 kilometre footpath/cycleway stretching along the coastline of the Wollongong Local Government Area (Wollongong LGA). Sections of the Grand Pacific Walk have been constructed, and others are intended to be carried out in the future. Stage 2 of the Grand Pacific Walk was constructed between October 2022 and October 2023.
Part of Stage 2 is constructed in the road reserve adjacent to the Land. The plaintiff contends that the structure constructed as part of Stage 2 prevents any access to the Land from the adjacent Lawrence Hargrave Drive.
By amended statement of claim filed 24 June 2025, the plaintiff seeks various relief including an order in the nature of mandamus requiring the first and/or second defendants to grant the plaintiff access (whether on foot, in a vehicle or otherwise) to the boundary between the Land and Lawrence Hargrave Drive, in accordance with s 6 of the Roads Act, within 28 days of the making of the order.
In the alternative, the plaintiff advances a claim in nuisance against the defendants, and seeks a mandatory injunction requiring them to provide such access. The plaintiff also seeks declaratory relief.
The proceedings were heard on 2 to 4 February 2026. Brian Rayment KC and Marcel Sahade appeared for the plaintiff. David O’Connor appeared for the first defendant and Alan Shearer SC for the second defendant.
For the reasons set out below the plaintiff’s claim fails. The amended statement of claim should be dismissed with costs.
On the morning of 2 February 2026, I conducted a view pursuant to s 53 of the Evidence Act 1995 (NSW) of the Land and adjacent areas in the presence of representatives of the parties, the parties’ legal representatives and Kevin Pritchard, the second defendant’s surveyor expert.
The view commenced at the southern end of the Land where I observed the peg marking the south-western boundary of the Land and the Council owned land adjacent to it to the south. Mr Shearer SC for the second defendant also accessed the Land on foot from the road reserve to the south of the Land.
The view then proceeded north along the walkway to the northern boundary of the Land. I observed that the Land is undeveloped and presently has knee to waist high vegetation on it. The walkway is raised above the road reserve adjacent to the Land and is made of a steel structure. The Land slopes relatively steeply from where it abuts the road reserve to its eastern boundary.
The view then proceeded further north walking past the privately owned vacant land adjoining the Land, the adjacent Council owned land and the two developed blocks which adjoin the Imperial Hotel. I observed that each of those developed lots have driveway vehicular access across the walkway.
The view was completed in the lower carpark of the Imperial Hotel where I was able to observe the lower (eastern) area of the Land which appears to be relatively steeply sloping from top to bottom and covered in knee to waist high vegetation. At the eastern end of the Land is a cliff.
Pursuant to s 7 of the Roads Act, the first defendant, Wollongong City Council (the Council), is the roads authority for public roads within the City of Wollongong LGA, which includes the section of Lawrence Hargrave Drive immediately adjacent to the Land.
The second defendant, Transport for New South Wales (TfNSW), is a New South Wales Government agency responsible for enabling the effective planning and delivery of transport infrastructure.
On 28 March 2011, the Roads and Traffic Authority (as it then was) and the Council entered into an administrative agreement entitled “Limits of Maintenance Responsibilities” pursuant to s 62 of the Roads Act. Under this agreement and the provisions of the Roads Act, TfNSW has some functions in respect of Lawrence Hargrave Drive, including a concurrence role in respect of any proposal to carry out works in, on or over a classified road – see s 138 Roads Act.
On 10 December 2013, Council published a report on its visions for the Grand Pacific Walk, being a project intended to create a safe route for pedestrians and cyclists across the 60 kilometre coastline of the Wollongong LGA.
Stage 1 of the Grand Pacific Walk was constructed between Coalcliff and Stanwell Park over a few years between 2014 and 2020.
The Stage 2 design, undertaken around 2019, proposed to connect the southern side of Seacliff Bridge, Clifton with the existing shared path network at Mountain Road, Austinmer by constructing a 2.5 metre wide footpath on the eastern side of Lawrence Hargrave Drive between Moronga Park and 347 Lawrence Hargrave Drive, together with a viewing platform, car parking and associated landscaping.
On 13 February 2020, the Council provided updated concept design drawings to TfNSW seeking their in-principle acceptance of the proposed works.
On 27 February 2020, TfNSW provided a letter to Council providing its in principle acceptance (subject to conditions) of the then works proposed for Stage 2. The letter attached the concept design drawings which show that at that stage it was proposed that the relevant section of the walkway adjacent to the Land would be constructed of concrete. The plans also show two shaded rectangles from the walkway across the road reserve where it abuts the Land. Mr Rayment KC for the plaintiff suggested to Jeremy Morgan of the Council in cross-examination that this indicated that it was proposed at this time to construct a driveway across the road reserve to the Land. Mr Morgan, who was not involved in the planning at this stage, was unable to agree with this suggestion. I am unable to make any positive finding in this regard.
The letter from TfNSW also attached several photographs of the area at the time:
Community consultation for Stage 2 took place between July and August 2020. Plans were published on Council’s website on 16 July 2020.
On 15 July 2020, Council sent a letter to the previous owners of the Land (Mr Khouri’s father and uncles) which stated, relevantly:
Now that Stage 1 of the Grand Pacific Walk between Coalcliff and Stanwell Park is finished, we are planning the construction of the Clifton section of Stage 2.
Stage 2 extends along Lawrence Hargrave Drive from the southern side of Seacliff Bridge , Clifton to the existing shared path network at Mountain Road, Austinmer.
For the Clifton section, Council is proposing to construct a 2.5m wide footpath along the eastern side of Lawrence Hargrave Drive, between the existing footpath at Moronga Park to the existing footpath adjacent to number 347 Lawrence Hargrave Drive.
An Environmental Impact Statement is currently being undertaken, which requires an ecological investigation to assess the impact of the proposed path to existing vegetation.
A concept plan is enclosed for your information.
During construction you will see a construction work crew, their vehicles and equipment in the area.
The work crew will aim to minimise disruption, however there may be some traffic control requirements at times. We’ll contact you before we start to let you know what dates we ‘II be onsite.
If you have any further questions about the planned work or would like to provide comment, please contact Council through our website and follow the Join the Conversation link. Alternatively, you can email engagement@wollongong.nsw.gov.au orca/14227 7111.
Submissions close Monday 17 August 2020.
In November 2020, Council issued plans for approval, an environmental impact statement and an engagement report with respect to the community consultation undertaken.
On 1 December 2020, Council lodged a Development Application (DA) with respect to the proposed construction of part of Stage 2. The first part of the Stage 2 works is referred to in the TfNSW documents as stage 1. This first stage of Stage 2 included the area adjacent to the Land and was to be assessed under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The second stage of Stage 2 – which essentially covered each of the end sections of Stage 2 - was to be assessed under Part 4 of the EPA Act.
Notice was given to Roads and Maritime Services on 8 January 2021. Revised civil and structural drawings were sent by Council to TfNSW on 5 February 2021. These drawings now appear to show that what was proposed in the area adjacent to the Land was no longer a concrete pathway but steel decking which I assume was similar to what has actually been constructed. The decking was underpinned by concrete piers.
On 25 February 2021, TfNSW (formerly Roads and Maritime Services) confirmed its in principle acceptance (subject to certain requirements) of the first stage of the proposed works.
A construction certificate for the first stage of Stage 2 was issued by Council on 24 December 2021.
On 4 June 2022, TfNSW and the Council entered into a Works Authorisation Deed in relation to the proposed works. This was one of the requirements stated by TfNSW in its in principle acceptance. The “Background” is stated in the following terms:
A. The Developer [Council] has received planning approval for the works from the relevant consent authority.
B. The Developer proposes to undertake the works within and/or adjacent to a road or road reserve.
C. TfNSW has statutory authority under the Roads Act 1993 (NSW) to authorise or carry out the Works.
2.2 **TfNSW’**s role - TfNSW will use its reasonable endeavours to notify the Developer of:
(a) the need for environmental assessment of the Works, if required under the Environmental Planning and Assessment Act 1979 (NSW), within 5 Business Days of commencement of this agreement. TfNSW must notify the Developer of the anticipated costs and timeframe for any necessary assessment;
(b) acceptance of Design Documents referred to in clause 3, or reasons for nonacceptance, within 20 Business Days of receipt;
(c) acceptance of Management Plans referred to in clause 3, or reasons for nonacceptance, within 10 Business Days of receipt; and
(d) approval of a road occupancy within 10 Business Days of receiving notice of a proposed start date for the road occupancy, unless TfNSW considers that the Developer has not fulfilled its obligations under this deed, or that the Works will cause undue disruption to traffic or conflict with other work.
On 17 June 2022, TfNSW provided its concurrence under s 138(2) of the Roads Act in respect of the detailed design plan for the works.
Construction work was carried out between 31 October 2022 and 19 October 2023.
I extract below a photograph taken during construction of the walkway from a point south of the Land looking north towards the Land.
Another photograph, taken from the Land looking south, appears below:
Extracted below are two more recent photographs depicting the structure:
I have extracted immediately below part of the survey plan prepared by Mr Pritchard, TfNSW’s surveyor depicting the various lots, Lawrence Hargrave Drive and the road reserve between them.
The power pole shown on the survey plan in the road reserve above the Land is the power pole visible in the second photograph above.
We act for Clifffall Ply Limited, the owner of land being Lot 10 Sec 1 DP 2281 known as 339 Lawrence Hargrave Drive, Clifton NSW 2515.
It has come to our attention that Council has recently constructed a walkway/cycleway/viewing platform with associated fencing between our client’s property and the public road; with the consequence that our client is denied access (whether on, in a vehicle or otherwise) across the boundary between the land and the public road.
Our client is entitled, as of right, to such access under section 6 of the Roads Act 1993 (NSW).
You are required to remove the obstruction and grant access in accordance with the Act.
In the event that no favourable response is received within 21 days, our client reserves the right to commence legal proceedings without any further notice given. In that event you will be held liable for court costs and legal costs.
Plaintiffs’ Claim
- As we have previously indicated, Council would be willing to undertake to make all reasonable accommodations to the footpath to enable the construction of a driveway at the Property at such time as the Plaintiff (or any subsequent transferee of the Property) procures all necessary consents for the construction of a driveway at the Property (the Undertaking).
- Having regard to the matters above, Clifffall will be unsuccessful in its claim and the Court will find:
21.1 there has been no interference with Clifffall’s use of the Property, in particular in view of the fact that it is not able to develop the Property; and
21.2 it is Clifffall’s responsibility as the proprietor of the Property to construct a driveway and it cannot shift that responsibility to the Council.
Offer for Construction of Footpath
- Notwithstanding the above, without admission to liability, in the interests of avoiding further litigation, our client is prepared to:
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.
- Enclosed is a copy of the plans containing details of the above proposed works.
- Please let us know if Clifffall would like our client to proceed with those works.
- Our client has made a further open offer in respect of resolving the proceedings below. The offer for the construction of the footpath is separate to that offer and open to Clifffall to accept separate to the offer below in respect of the proceedings.
Counsel for the Council confirmed at the hearing that those two offers were appropriately described as undertakings and remained open in the sense that Council continued to offer them.
The letter also contained an open offer to settle the proceedings on certain terms.
The plaintiff’s solicitors responded by letter dated 4 November 2025. The offer to settle the proceedings was, obviously enough, not accepted by the plaintiff.
The response relevantly stated that the right afforded by s 6 of the Roads Act is not dependant on any development or planning controls. It was also said that the offer of pedestrian steps to allow pedestrian access is not sufficient because “steps would not allow access by the use of a vehicle, a horse or a wheelchair”.
The parties were in dispute as to whether the Land was likely able to be developed.
The issue is said to be relevant to the nuisance claim and whether there has been a substantial and unreasonable interference with the plaintiff’s Land.
In its defence, the Council contended that the size of the Land is 411 square metres and unable to be developed as it does not meet the minimum lot size requirements under the Wollongong local Environment Plan 2009 (the LEP). In response to the nuisance claim the Council again relied on the allegation that the Land could not be developed.
In its reply, the plaintiff admitted the approximate size of the Land but denied that the Land cannot be developed. Further, it was alleged that:
1. In respect of paragraph 4(b) of the defence, the plaintiff admits the approximate land size of the plaintiff’s land but denies that the land cannot be developed and says further that in addition to the development permitted with consent under the Wollongong Local Environmental Plan 2009:
(1) Development of the site also includes “Exempt” development as that term is used in clause 1.15 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (which may be carried out subject to the code and without development consent from the consent authority) and accordingly includes development (but not limited to) such matters as set out in Part 2, Division 1 including:
a. Barbecues and other outdoor cooking structures (subdivision 7);
b. Cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses (subdivision 9);
c. Carports (subdivision 1 0);
d. Earthworks, retaining walls and structural support (subdivision 15);
e. Flagpoles (subdivision 20);
f. Letterboxes (subdivision 25);
g. Mobile food and drink outlets (subdivision 27 A);
h. Pathways and paving (subdivision 28);
i. Playground equipment (subdivision 29);
j. Rainwater tanks (below ground) (subdivision 33);
k. Street library (subdivision 378);
I. Water features and ponds (subdivision 40);
m. Stages or platforms for private functions (Div 2, subdivision 8)
The relevant provisions of the LEP were not in dispute.
The Land is zoned C3 – Environmental Management under the LEP. The minimum lot size requirement under the LEP is 999 square metres.
In respect of Zone C3, the LEP states:
1 Objectives of zone
• To protect, manage and restore areas with special ecological scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
2 Permitted without consent
Home occupations
3 Permitted with consent
Animal boarding or training establishments; Bed and breakfast accommodation; Building identification signs; Business identification signs; Community facilities; Dwelling houses; Environmental facilities;
Environmental protection works; Extensive agriculture; Farm buildings; Farm stay accommodation;
Forestry; Home-based child care; Home businesses; Home industries; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Roads; Secondary dwellings; Tank-based aquaculture
4 Prohibited
Industries; Local distribution premises; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3
(1) This clause applies to land in the following zones
Zone RUl Primary Production,
Zone RU2 Rural Landscape,
Zone C3 Environmental Management.
(2) Development consent must not be granted for the erection of a dwelling house on land to which this clause applies, and on which no dwelling house has been erected, unless the land is -
(a) a lot created in accordance with clause 4.1, or
(b) a lot created before this Plan commenced that met the minimum lot size specified to permit the erection of a dwelling house under Wollongong Local Environmental Plan 1990 in effect immediately before that commencement, or
(c) a lot created before this Plan commenced that is at least the minimum lot size specified for that lot by the Lot Size Map; or
(d) land that will be a lot in a subdivisions for which development consent was granted or approval under Part 3A of the Act was given before this Plan commenced and on which the erection of a dwelling house would have been permissible immediately before that commencement, or
(e) an existing holding with an area of not less than 10 hectares, or
(f) a lot that was created after 30 April 1971 but before 23 February 1984 and which has an area of not less than 20 hectares, or
(g) a lot that was created on or after 23 February 1984 but before the commencement of this Plan and which has an area of not less than 40 hectares, or
(h) a lot that was created before the commencement of this Plan, but only if the subdivision requirements for the land, or number of dwelling houses to be erected on the land, were specified in Schedule 2 to the Wollongong Local Environmental Pion 1990 immediately before that commencement.
Note.
A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008 or clause 4.2.
(3) Land ceases to be an existing holding for the purposes of subclause (2) (e), if an application for development consent referred to in subclause (2) is not made in relation to that land before 31 December 2012.
(4) Despite any other provision of this clause, development consent may be granted for the erection of a dwelling house on land in a zone to which this clause applies if-
(a) there is a lawfully erected dwelling house on the land and the dwelling house to be erected is intended only to replace the existing dwelling house, or
(b) the land would have been a lot or a holding referred to in subclause (2) had it not been affected by-
(i) a minor realignment of its boundaries that did not create an additional lot, or
(ii) a subdivision creating or widening a public road or public reserve or for another public purpose.
(5) In determining whether to grant consent for the erection of a dwelling house, the consent authority must consider the extent to which the development is likely to affect the environmental and ecological conservation of the land with respect to the extent of clearing required for the development, including any clearing required for the provision of infrastructure, access and any asset protection zone identified for the land in a bush fire risk management plan in force under the Rural Fires Act 1997.
(6) In this clause existing holding means all adjoining land, even if separated by a road or railway, held in the same ownership-
(a) on 30 April 1971, and
(b) at the time of lodging a development application for the erection of a dwelling house under this clause, and includes any other land adjoining that land acquired by the owner since 30 April 1971.
Note.
The owner in whose ownership all the land is at the time the application is lodged need not be the same person as the owner in whose ownership all the land was on the stated date.
It was not in dispute that the size of the Land was smaller than the minimum lot requirement size, but the plaintiff was reliant on Council’s discretion to depart from the terms of the LEP.
Peter Khouri stated that he thought, based on what he had been told, that the Land could be developed. The source of his belief, and the basis for it, was not disclosed. No expert planning evidence was called as to the likelihood of approval being granted. Indeed, no plans were put forward setting out, even in rough terms, how it was proposed that the Land would be developed.
Council led evidence from Jeremy Morgan, the current Manager of Project Delivery for the Council. Mr Morgan stated at [65] of his affidavit:
Having regard to the entire suite of controls and requirements identified at paragraphs 60 to 64 above, Council considers that it will be practically impossible for Clifffall to develop the [Land] for most uses.
It emerged in cross-examination that this was Mr Mogan’s opinion having been an applicant for development approval. He is not a planner and is not involved in the Council considering whether or not to grant development consent. It is difficult in these circumstances to place any great weight on the statement made by Mr Morgan.
Council’s position is also complicated by the fact that, as set out above, nothing has really been put forward, by or on behalf of the plaintiff, as to how it would seek to develop the Land.
In the circumstances, I am not really in any position to make an assessment as to whether the plaintiff is likely to obtain development approval to develop the Land in some way.
The parties were at odds as to the proper construction of s 6 of the Roads Act.
Section 6 provides:
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 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. Further, it was said that s 6(2) is apparently designed to make it clear that the purpose of s 6 is not to derogate from any common law rights.
The defendants contended that the words “those rights” in s 6(2) of the Roads Act is intended to pick up not only rights conferred by the common law but also the right referred to in s 6(1).
The construction propounded by the defendants is supported by first instance authority: Thomas v Symons [2013] NSWSC 490 at [43] where Windeyer AJ stated:
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.
[100] In this respect, it is not in dispute that immediately prior to the compulsory acquisition the Applicant, as the owner of land adjoining that public road, had a private right of access between his land and the adjoining road. This right of access has long been recognised at common law. Additionally, it is now recognised by statute, the Roads Act 1993, s 6 providing as follows:
(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.
[101] By virtue of s 6(2), this statutory entitlement is additional to the common law right but both the statutory and common law right or entitlement are declared to be “subject to such restrictions as are imposed by or under this or any other Act or law”. Although I shall presently return to consider other relevant provisions of the Roads Act, I should at once note that it has not been suggested in the present case that there is any relevant derogation from the statutory and common law rights of access vested in the owner of land adjoining a public road.
In addition to contending for its construction of s 6, the plaintiff also argued that even if the construction propounded by the defendants is accepted, it has not been suggested that either the statutory or the common law rights were derogated from by some other Act or law.
In these circumstances, I pressed Mr Rayment KC for the plaintiff as to whether he contended that the decisions of Windeyer AJ and Bignold J were plainly wrong, such that I should not follow them, or whether he advanced that submission formally, accepting that I was bound to follow those decisions and that any challenge would be pursued on appeal.
Mr Rayment KC’s original response was that I only needed to consider the correctness of what Windeyer AJ and Bignold J said if I was against the plaintiff on the second issue – namely whether it has been demonstrated that the statutory or common law rights were derogated from in the present case. I understood the position ultimately reached was that I was not being invited to find that Windeyer AJ or Bignold J’s decisions should not be followed and no detailed submissions were addressed by Mr Rayment KC by reference to either judgment.
In case I be wrong in this understanding, I consider whether I should follow Windeyer AJ and Bignold J.
I proceed on the basis that I should follow Windeyer AJ and Bignold J’s decision unless I am convinced that the decisions are plainly wrong: see P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co) at [33.430] and [33.440].
I am far from convinced that the decisions are plainly wrong. I agree with them. The text of s 6(2) strongly supports the construction reached by each of Windeyer AJ and Bignold J.
Before the comma in s 6(2), the section speaks of a “right referred by this section” and “any right of access that is conferred by the common law” – in each case the singular “right” is referred to. The first reference is obviously a reference to the “right” conferred by s 6(1). There is no other right conferred by the section.
The section then refers, after the comma, to “those rights” – expressed in the plural – which is obviously, having regard to the ordinary meaning of the words used, a reference to each of the two categories of rights: a statutory right of access conferred by s 6(1) and a common law right of access. If “those rights” were confined to common law rights, the statutory right in s 6(1) would be left unqualified and effectively absolute. That would mean an adjoining owner could exercise access without regard to other provisions of the Roads Act, including requirements for consent to carry out works on a public road. Such a construction would undermine the regulatory scheme of the Act and create inconsistency within it.
The construction propounded by the plaintiff finds no support in the plain meaning of the words used. Nothing was otherwise really said in support of the construction propounded by the plaintiff.
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.
As is apparent from the chronology set out above insofar as it concerns TfNSW, the role of TfNSW was confined to expressing its concurrence with the works being carried out in the exercise of its statutory function under s 138 of the Roads Act.
Mr Shearer SC for TfNSW referred to these matters in his opening address on the morning of the first day of the hearing. Mr Shearer SC also referred to [11] of the amended statement of claim which alleged, relevantly, that:
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.
Mr Rayment KC for the plaintiff then accepted that on the evidence he could not maintain that allegation as against TfNSW. He later accepted that the words “and or second” and the “(s)” after “defendant” in [11] and also in [16] were not pressed.
I then pressed Mr Rayment KC for the plaintiff as to what, if any, relief was maintained against TfNSW. In response it was indicated that the declaratory relief in 1A of the relief claimed in the amended statement of claim was maintained although no cause of action was identified against TfNSW.
I understood from the response on behalf of the plaintiff that the declaration was said to have some utility to either quell the dispute as to the proper construction of s 6 of the Roads Act and/or with one eye to the future in circumstances where it is likely that TfNSW’s concurrence may be sought in order to remove the works that are said to have created the nuisance.
I am not satisfied that there is any cause of action maintained against TfNSW and the proceedings as against it should be dismissed.
As dealt with above, I reject the plaintiff’s proposed construction of s 6 of the Roads Act. In these circumstances the proposed formulation of the declaration is problematic. There are other problems with it as well which I also set out later in these reasons.
The claim in nuisance was pleaded in very short form in the amended statement of claim. As set out elsewhere in these reasons, the claim was originally pleaded against both defendants, but the facts alleged against TfNSW as constituting nuisance were not pressed during the hearing.
The relevant allegations in the amended statement of claim may be summarised as follows:
(a) prior to around September 2023, the Land was accessible from Lawrence Hargrave Drive, Clifton [10]; (b) since around September 2023, the Council has or have constructed a walkway/cycleway/viewing platform with associated fencing (construction works) between the Land and the adjoining road [11]; (c) no consent of the plaintiff was sought or given for the construction works [12]; (d) the construction work has caused the Land to become landlocked and inaccessible by foot and by vehicle from the public road [13]; and (e) the construction works constitutes an ongoing nuisance to the plaintiff in respect of the use and enjoyment of land insofar as its right is denied under s 6 of the Roads Act [17].
No particulars were provided of [17] of the amended statement of claim and none were sought. The Council’s defence to [17] includes an allegation that the plaintiff has not made use and enjoyment of its land.
A reply was filed on 14 August 2024.
Nothing contained in the reply appears to bear on the use of the Land and the nuisance claim more generally.
The affidavit evidence on behalf of the plaintiff was quite general and brief.
Peter Khouri’s affidavit of 14 August 2024 exhibited several historical photographs of the Land which included one occasion on which a vehicle belonging to Mr Khouri’s father parked on the road reserve above the Land. This is evidenced in the photograph below.
George Khouri’s affidavit refers to his and his brothers’ families and friends often driving onto the Land to have picnics, as well as stating that “there was a vegetable patch and we would grow and collect watercress, and we would also pick wild spinach, which grew on the land”.
Peter Khouri’s affidavit of 5 June 2025 contained various paragraphs as to why the plaintiff wanted access to the Land, including to comply with ongoing legal obligations concerning the removal of noxious weeds. Objection was taken to each of these paragraphs by the Council and the parties agreed that the paragraphs were to be treated as a submission and not as evidence of the truth of the matters asserted.
Affidavits were also made by Peter Khouri and George Khouri shortly prior to the hearing on 28 January 2026 and 27 January 2026 respectively. Each was admitted without objection.
Paragraph 7 of Peter Khouri’s affidavit relevantly stated:
I have childhood memories (of around the age of 14 or 15) of at least two distinct occasions of my family having barbeques on the site – I say two because I remember a small gas barbeque and another being a small rectangular charcoal barbeque.
George Khouri’s affidavit expanded on the evidence he gave in his earlier affidavit concerning family picnics. He recalled visiting the land at least once every three to four months to have a barbeque on the Land using a portable charcoal or gas barbeque. This continued up until the commencement of COVID. In relation to the vegetable patch, he recalled that “our family had watercress, onions, garlic, wild spinach and tomatoes growing on the Land which we would pick and eat fresh when visiting the [Land] for barbeques”.
Both Peter Khouri and George Khouri were cross-examined.
The relevant aspects of Peter Khouri’s evidence may be summarised as follows:
(a) whilst he maintained that the Land could be developed he had not made an application to Council to develop the Land because of time and money; (b) he wanted access to the Land that he had always had for 40 years, he wanted to develop the Land, to put a cottage on there and to retire there which he believed he was allowed to do. He also stated:
This land is our land. We’ve always drive onto the site. We’re just trying to drive onto the site to enjoy the barbeques we had, the picnics we had, all the things we used to do on the site. So I can clean it, get rid of the noxious weeds. My father used to go on the site with a tractor with – or get people to do that sort of thing. That’s why I haven’t done it as yet.
(c) the two occasions of family barbeques were 40 years ago; (d) he still remembers when his father used to call the companies to clear the land because he’d probably get a notice from Wollongong Council and then he would say let’s go to the land and have a picnic – “Many times, many, many times”; (e) he knew where “our land was and I knew where we stood and we used to play with the football and everything else on the site”; (f) it wasn’t at the top of the road where they had the barbeques – “it was in the land itself” – although he agreed that it is highly unlikely that they would have a picnic on a heavily sloping property. He also agreed that it was difficult to know where the precise boundaries of the Land were; (g) the car parked in the picture exhibited to his affidavit was his father’s and was parked on the road reserve and he would park there “or he’d drive all the way down sometimes”; and (h) he did not accept there was pedestrian access for his mother who “can’t walk right now and my father in law who has a degenerative Parkinson’s disease”. He did not know that if there were proper steps that would resolve the problem.
At the commencement of the oral evidence of George Khouri, Mr Rayment KC sought to lead evidence from George Khouri as to whether there was ever an occasion when he caused a tractor to enter the Land and whether notices were received from the Council about weeds. The evidence was objected to on the basis that the evidence was new, the Council was taken by surprise and could not deal with it. Mr Rayment KC ultimately did not press the questions.
In cross-examination, Mr George Khouri admitted that the proceedings were adjourned last year for a period to enable the plaintiff to determine the lawfulness and feasibility of development of the Land and conceptuals and design sketches were prepared. A new geotechnical report was required to lodge a new DA and a truck machine was required in order to bore holes which cannot occur.
With this factual background I turn now to determine the claim in nuisance.
No detailed submissions were made as to the test for a private nuisance.
In Hunt Leather Pty Ltd & Anor v Transport for NSW [2025] HCA 53 (Hunt Leather), Gageler CJ relevantly stated at [12]-[13]:
[12] The concern of private nuisance at common law is with the protection of proprietary interests in land. The standard description of a private nuisance is accordingly that of an “unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connexion with it”. Other descriptions of a private nuisance have described it in terms of an interference with use and enjoyment of land that is “wrongful” or “undue”.
[13] What do these references to an “unlawful” or “wrongful” or “undue” interference with use and enjoyment of land entail? No doubt, an actionable interference must be substantial: neither trivial nor transient. But what more is required?
[94] The development of the test for the tort of private nuisance, particularly since the nineteenth and early twentieth centuries, has been concerned with balancing the competing interests of occupiers of proximate land, usually neighbours, in their enjoyment of their land. That is why the harm that is the concern of the tort of private nuisance is the diminution in the utility and amenity value of land rather than the personal discomfort of, or personal injury to, those who are occupying the land. As will be seen below, the balance, or “give and take”, in the enjoyment of neighbouring land was struck by reference to the ordinary uses of land in the relevant locality, which involves consideration of both the purpose of the use and the means by which the purpose is achieved.
[95] From the perspective of a plaintiff, it has been established since Walter v Selfe that a claim for interference with the plaintiff’s right to land can only be brought for private nuisance if there is “material discomfort and annoyance for the ordinary purposes of life to a [person’s] house or ... property”. That principle, also well recognised in Australia, requires for a claim for private nuisance that a plaintiff establish a substantial interference with the plaintiff’s enjoyment of land for purposes that are ordinary, in the sense that the purposes are consistent with the reasonable expectations of the locality as to the use of that land.
[107] In Walsh v Ervin [1952] VLR 361 at 362 Sholl J said:
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 purpose of lawfully passing and repassing thereon …
(Citations omitted) See also Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104, at 108-109 per Clarke JA. That private right of the plaintiff concerning her land is one which is protected by the tort of nuisance.
[108] It is only a substantial and unreasonable interference with the right of access which amounts to the tort of nuisance.
The paramount problem in the law of nuisance is therefore to strike a tolerable balance between the conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his or her property without undue subordination to the reciprocal interests of the other.
There are, in my view, a number of difficulties with the claim in nuisance.
First, having regard to the pleaded allegation in [17] of the amended statement of claim, the claim appears to be predicated on the basis that the plaintiff has an unqualified and absolute right to access the Land by vehicle under s 6 of the Roads Act, which has been denied. This is in turn predicated on the construction of s 6 advanced by the plaintiff.
For the reasons set out above, I do not accept this construction of s 6. Both the statutory and common law rights are subject to such restrictions as are imposed by or under the Roads Act or any other Act or law.
Further, at a factual level, it has not been demonstrated that the existence of the structure on the road reserve near to where it abuts the Land constitutes a substantial and unreasonable interference with the plaintiff’s enjoyment of the Land for purposes that are ordinary.
The evidence on behalf of the plaintiff – which I have summarised above - suggests that the Land has primarily been left as a vacant block, used for the occasional picnic and barbeques where a small portable gas barbeque was used. There is also some evidence of the picking of wild spinach and some growing of crops. However, there is no probative evidence that such activities could not be undertaken now. The position is the same in relation to the exempt development activities. As the plaintiff’s practical use of the land remains essentially unchanged, the alleged interference does not rise above a mere inconvenience or dissatisfaction.
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.
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 TfNSW during the site visit. Foot access would also be assisted by the existing open undertaking of Council to install a gate on the side of the walkway and construct steps down to the road reserve where it abuts the Land.
Any foot access to the Land, both historically and now, needs to deal with the fact that, again, the road reserve to the Land and the Land itself is sloping, making access difficult.
I am not satisfied that it has been demonstrated by the plaintiff that there has been any substantial and unreasonable interference insofar as the walkway structure is said to interfere with the future development of the Land. I have set out earlier in these reasons the position, insofar as I am able to determine it, in relation to whether the Land can be developed.
I turn now to consider whether, had any cause of action been established, any relief would be appropriate.
The first relief sought was a declaration in the following terms:
A DECLARATION that, pursuant to section 6 of the Roads Act (NSW) the plaintiff as owner of Lot 10 Section 1 in Deposited Plan 2281 known as 339 Lawrence Hargrave Drive, Clifton NSW 2515 (“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.
The declaration is predicated on the plaintiff’s construction of s 6 which I do not accept.
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.
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.
Second, relief in the nature of mandamus was sought in the following terms:
Pursuant to section 65 and or section 69 of the Supreme Court Act (1970), an order in the nature of mandamus requiring the first and or second defendant(s) to grant the plaintiff access (whether on foot, in a vehicle or otherwise) across the boundary between the plaintiff’s land being Lot 10 Section 1 in Deposited Plan 2281 known as 339 Lawrence Hargrave Drive, Clifton NSW 2515 and the public road known as Lawrence Hargrave Drive, in accordance with section 6 of the Roads Act (1993), within 28 days of the making of this order.
Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right: R v The Commissioners of Inland Revenue; in Re Nathan. The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner.
Apart from the fact that the claimed relief is predicated on the plaintiff’s construction of s 6 (which I do not accept), the relief is misconceived. No public duty is identified in the amended statement of claim. This is attributable to s 6 of the Roads Act not giving rise to a public duty nor any failure on behalf of the Council to discharge their legal obligations.
The third form of relief sought was a restorative mandatory injunction. As originally sought, paragraph 2 of the relief claimed in the amended statement of claim provided:
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 Lot 10 Section 1 in Deposited Plan 2281 known as 339 Lawrence Hargrave Drive, Clifton NSW 2515 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.
The first defendant should be ordered to do all such things as are necessary (including seeking the concurrence of the second defendant under s 138 of the Roads Act) to remove the obstruction constituted by the doing of the work, thereby landlocking the plaintiff’s land and in order to restore to the plaintiff its rights under s 6 of the Roads Act.
A vice with this revised formulation, as was pointed out in closing address was that it would expose the Council to breach of the order and therefore contempt of court if TfNSW refused to provide its concurrence. This is because, as drafted, the injunction required the Council to do “all such things as are necessary” to bring about a specific result – namely removing the obstruction constituted by the work. The obligation is expressed in outcome-based terms. Accordingly, if the obstruction were not removed, the Council would be in breach of the order, even if failure resulted from matters beyond its control, such as refusal of concurrence by TfNSW. Furthermore, disobedience of an injunction carries serious consequences, an injunction must be framed in clear, precise and unambiguous terms. A person bound by the order must be able to ascertain with sufficient certainty what is required of them. An order that imposes strict liability for achieving a result, without regard to matters outside the party’s control, lacks the necessary clarity and certainty.
I pressed Mr Rayment KC on whether he wished to present any revised formulation of injunctive relief. Mr Rayment KC requested some time to provide a reformulation, either doing it in writing or with the benefit of an overnight adjournment. I subsequently gave Mr Rayment KC an adjournment of approximately 30 minutes to seek to reformulate the relief sought.
The revised formulation was “an injunction requiring the first defendant to take all lawful steps to abate the ongoing nuisance constituted, both the construction works so as to grant the plaintiff access, both pedestrian and vehicular to Lawrence Hargrave Drive, Clifton”.
Mr Rayment KC made it clear at the time, however, that he had no possibility of drawing the more complicated provision that he wished to draw in the time that I permitted (approximately 30 minutes). He requested that rather than make final orders I give the parties a period to agree appropriate orders after the publication of my judgment.
Given my conclusions on liability, the formulation of any injunctive relief obviously does not arise. In taking the approach that I did at the hearing in pressing the plaintiff on any reformulated relief sought I was seeking to deal with all the issues at the one time and thus avoid the additional time and cost in the parties seeking to agree orders after judgment. This is in circumstances where, prior to the hearing, the defendants had raised their concerns with the relief sought and those concerns could and should be dealt with by the plaintiff.
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 .
All of the plaintiff’s claims fail. The amended statement of claim should be dismissed with costs. If any party seeks a different costs order they should notify my Associate within 7 days whereupon I will, to the extent necessary, vacate the costs order and make directions for the determination of any special costs orders on the papers.
The Court orders that:
Amended statement of claim dismissed.
Plaintiff pay the defendants’ costs of the proceedings.
Any party seeking a different costs order to order 2 above should notify my Associate within seven (7) days whereupon I will, to the extent necessary, vacate or vary order 2 above and make directions for the determination of any special costs orders on the papers.
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Amendment to typographical error in paragraph 14
Clifffall Pty Ltd
Wollongong City Council [2026] NSWSC 84
(1949) 78 CLR 389
(2002) 119 LGERA 321
(1989) 16 NSWLR 104
The view which I take along with Windeyer AJ and Bignold J also finds some support in words which are used in relation to a right of passage along a public road. The right under s 5(1) includes a right “to drive stock or other animals along the public road”. By analogy with the argument advanced by the plaintiff in relation to s 6, that right – including for a member of the public to pass along a public road on foot – would not be able to be derogated from. Many traffic laws, for example would be inconsistent with this right.
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.
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.
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:
Any future development of the Land would require development consent. Whether development consent would be granted is a matter of conjecture and would require Council to exercise its discretion to depart from existing planning controls.
More importantly, Council has undertaken that in the event that development consent is granted for the construction of a driveway, Council will make all reasonable accommodations to the footpath to enable construction of a driveway to the Land. No submissions were advanced on behalf of the plaintiff as to why this undertaking did not adequately deal with vehicular access in the event development consent is granted.
I am also not satisfied that there has been any substantial and unreasonable interference insofar as vehicular access is required to enable further geotechnical testing to be carried out. The matter was briefly referred to by George Khouri. He is not a current owner of the Land. Peter Khouri – one of the directors of the plaintiff - made no mention of it. There is no suggestion that Mr George Khouri has any particular qualifications in this regard. No detail was given as to what testing was required to be carried out and what access was required.
Insofar as any future vehicular access was concerned, it was not in dispute that consent would be required, including TfNSW’s concurrence under s 138 of the Roads Act as work would likely be required on a public road (s 138(1)(a)) and/or a structure on a public road being removed or interfered with (s 138(1)(c)). It is likely that this would form part of any application by the plaintiff to develop the Land. In the event that consent was obtained, Council has undertaken to install a driveway across the walkway to the Land.
In all of the circumstances, I am not satisfied that the claim in nuisance has been made out.