Legal access through private property

Access through private land is a complex issue. Many private landowners in remote areas are jealous of their privacy and have legitimate security concerns.

Nevertheless, land titles and Common Law generally provide for public thoroughfare on private land, otherwise public or neighbourhood amenity may be curtailed by individuals with no right to do so.

Thoroughfares come in different forms: from public or Crown roads, rights of way or access, to easements for specific purposes.

When planning a trek or wilderness experience, once you leave formed and commonly used roads or tracks, it is necessary to aquaint yourself with legal rights you may or may not have.

Access rights generally have been resolved along dedicated trails, however if you are making up your own route, you may need to research legal access yourself. 

In NSW you can use to determine the status and alignment of public roads and rights of way.

In isolated areas, roads and tracks may not necessary follow exactly the alignment on the map. If you deviate from the map alignment you may negate your access rights.

It is easier to negotiate these issues if you are on foot. If you are on horseback or using a pack animal, it is much more problematic and you may face the problem of biosecurity. We will deal with these separately.

It is important to respect gates and fencing. Tradition and courtesy demands travellers leave gates as they find them. Locked gates generally signify denial of access.

Climbing over or through fences is not cool - find the gate and use it.

In some cases it is wise to contact the owner for permission to cross their property, however doing so may negate what access rights you do have.

Access through public land such as national parks is not necessarily guaranteed and in some cases policed.

Some questionable access alignments are regularly traversed by user groups to maintain traditional rights of way by ensuring continued use which will stand up in court if challenged legally. This applies to private as well as public land.

Access through traditional Indigenous lands are likewise complex and should be researched thoroughly in individual cases.

In all of the above, common courtesy and common sense will lubricate any likely friction. The best thing is to follow the precedents set by previous travellers.



NSW Roads Act 1993

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.