When a council builds new infrastructure on a road reserve can an adjoining landowner claim their right of access has been taken away? The NSW Court of Appeal’s recent decision in Clifffall Pty Ltd v Wollongong City Council (No 2) [2026] NSWCA 149 provides important guidance on where the line falls between public road rights and private access rights, with practical implications for councils across the state.

The Facts

Clifffall Pty Ltd owned undeveloped land at 339 Lawrence Hargrave Drive, Clifton. Between October 2022 and October 2023, Wollongong City Council constructed a raised walkway and cycleway (the “Walkway“) on the road reserve as part of the Grand Pacific Walk. The Walkway sat between Clifffall’s land and the road.

Clifffall argued that the Walkway impeded its right of access from the land to the road in breach of section 6 of the Roads Act 1993 (NSW), which 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“. Clifffall contended its land had effectively been rendered inaccessible by vehicle and sought orders requiring the Council to remove the obstruction.

The Two Distinct Rights

The Court of Appeal (Ball JA, with Kirk and Stern JJA agreeing) drew a critical distinction between two separate legal rights that councils and landowners often conflate:

1. The private right of access — an adjoining landowner’s right to cross the boundary between their land and the public road. This is protected by section 6(1) of the Roads Act 1993 and at common law.
2. The public right of passage — the right of any member of the public to pass along a public road, protected by section 5 of the Roads Act 1993.

The Court held that section 6(1) focuses on access “across the boundary”, namely it protects the ability to step from private land onto the road reserve and vice versa. It does not confer a broader right to have unimpeded vehicular travel across every part of the road reserve to reach that boundary.

The Boundary Is What Matters

Applying these principles, the Court found that Clifffall’s rights under section 6(1) had not been infringed. The Walkway was constructed “some distance from the boundary” between the road and the land. There was no impediment to access at the boundary itself. What had changed was Clifffall’s ability to drive a vehicle along the road reserve to reach the boundary.

The Court observed that the phrase “whether on foot, in a vehicle or otherwise” in section 6(1) is “not to be understood as conferring a right of access using a vehicle in all circumstances”.

The Right Is Not a Right to Have Works Carried Out

Drawing on Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104, the Court reaffirmed that the private right of access “is not a right to have public authorities carry out works to facilitate or improve the means of access”. A landowner cannot compel a council to build a driveway, bridge, or other facility to provide access where none presently exists.

Practical Tips for NSW Councils

This decision offers several important takeaways for councils planning and delivering infrastructure on road reserves:

• Understand the distinction between the two rights. When assessing the impact of proposed road reserve works on adjoining landowners, focus on whether the works will physically obstruct or impede access at the boundary between private land and the road.
• Do not assume regulatory compliance is a complete defence. Obtaining section 138 consent from the roads authority (and TfNSW concurrence for classified roads) and securing development consent under planning laws are necessary but not sufficient. These approvals do not authorise interference with private access rights at the boundary.
• Assess whether boundary access is genuinely affected. Before proceeding with road reserve infrastructure, consider whether the works will physically block or obstruct an adjoining owner’s ability to cross the boundary. If so, explore design modifications to maintain boundary access.
• Document the existing state of access. The factual findings about whether vehicular access was ever practically available proved significant in this case. Councils should document and photograph the existing state of access before commencing works, including the topography, vegetation, and any existing driveways or crossovers.
• Engage early with affected landowners. Wollongong Council offered to install a gate, steps, and a gravel path to maintain pedestrian access to Clifffall’s land, and undertook to do so at no cost. While this did not resolve the dispute, proactive engagement and practical accommodations can reduce the risk of litigation and demonstrate reasonableness.
• Remember that section 138 applies to councils too. Section 138(4) of the Roads Act 1993 provides that the consent requirement “applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person”. Councils are not exempt from the regulatory framework merely because they are the roads authority.
• Consider the nuisance exposure. Although Clifffall’s nuisance claim was rejected on the facts, the Court’s analysis confirms that interference with the public right of passage which causes a particular landowner special damage beyond that suffered by the general public may give rise to a claim in nuisance. Councils should be alert to this alternative cause of action, particularly where infrastructure works disproportionately affect a specific landowner’s practical access.