The decision draws an important distinction between a landowner’s private right of access and the public’s right to use a road

The decision relates to the scope of section 6 of the Roads Act 1993 in Clifffall Pty Ltd v Wollongong City Council (No 2) [2026] NSWCA 149, and provides welcome clarification for councils, developers and adjoining landowners.

The dispute

Wollongong City Council constructed part of the Grand Pacific Walk within the road reserve adjoining the applicant’s land.

The applicant argued that the works prevented vehicular access to its property and therefore infringed its statutory right of access under section 6 of the Roads Act.

The Court rejected that argument.

What does section 6 actually protect?

Section 6 provides that the owner of land adjoining a public road is entitled, as of right, to access across the boundary between the land and the public road.

The Court held that this wording is critical.

The statutory right protects the ability to cross the boundary between the land and the public road. It does not guarantee practical, convenient or direct vehicular access to the land.

In other words, there is an important difference between:

• a right to cross the property boundary; and
• a right to drive to that boundary using the road reserve.

The former is protected by section 6. The latter is not.

The Court’s reasoning

The Court explained that section 6 largely reflects the common law right of access rather than creating a new and broader statutory entitlement.

Importantly, the phrase:

“whether on foot, in a vehicle or otherwise”

does not create an absolute right to vehicle access in every circumstance. Rather, it simply recognises that access may occur in different ways depending on the nature of the land and the adjoining road.

Where road works merely make access less convenient, require a new driveway, or change the way vehicles approach a property, that does not necessarily amount to an infringement of section 6.

An important clarification on section 138

The Court also clarified that obtaining consent under section 138 of the Roads Act, or development consent under planning legislation, does not automatically override private property rights.

Statutory approvals authorise the carrying out of works under the relevant legislative scheme. They do not, of themselves, extinguish private legal rights where those rights have otherwise been infringed.

Although the landowner ultimately failed in this case, that aspect of the judgment will likely be significant in future disputes involving public infrastructure and adjoining landowners.

Why this decision matters

This decision is likely to become the leading authority on section 6 of the Roads Act.

For councils, it confirms that road upgrades, shared paths, cycleways and similar public infrastructure will not breach section 6 simply because adjoining owners lose convenient vehicle access.

For landowners, it confirms that inconvenience is not the legal test. The relevant question is whether the works interfere with the ability to cross the boundary between the land and the public road.

That distinction may determine the outcome of future disputes involving road design, public infrastructure and access rights.