A roads authority under the Roads Act 1993, or Crown Lands on behalf of the Minister administering the Crown Land Management Act 2016, may grant an easement (e.g. private right of way, right of carriageway and/or right of footway) over a public road, or a Crown public road in a new deposited plan, by using section 88B Conveyancing Act 1919 (see sections 88B(1) and (2)(a) Conveyancing Act 1919). The validity of the easement will not be questioned provided the roads authority or Crown Lands have signed the plan and section 88B instrument.

Care must be taken by the consenting authority to ensure that the roads being dealt with are not roads enclosed for cultivation under section 5.43Crown Land Management Act 2016 where public access is restricted for a specified period to facilitate cultivation of the land.

Notwithstanding their statutory obligations, the roads authority or Crown Lands may create a positive covenant for maintenance and/or repair of a public road or a Crown public road under sections 88BA(1) and (3) Conveyancing Act 1919, burdening the owner(s) of a lot or lots in a new deposited plan. This is so even though section 138 Roads Act 1993 states that a person must not dig up, disturb or otherwise interfere with a public road without consent of the appropriate roads authority. The land being the subject of the positive covenant must be clearly defined on the plan.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/

 

Publication Date: June 2025