A correspondent has moved into an area that:

… has chronically poor road drainage, meaning any substantial and/or prolonged rainfall sees the drainage system overloaded and streets moderately flooded. The level of these waters, if not disturbed, doesn’t affect the neighbouring houses, but ignorant drivers who race through the flooded streets cause waves and push the waters into properties on either side of the street. Other vehicles often find the water too deep, and stall and become stuck on the street.

In the past, residents have tried to block the street with garbage bins, both to protect their properties, and the drivers, but have been abused by drivers. The area has a limited capacity for attendance by emergency services due to the number of streets affected, a very small Police presence, and the local SES Unit is about an hour away in good weather (and often busy with storm or flood response operations when this happens).

  • Does a member of the public have any powers to close a road to protect their property?
  • Does a member of the public have any powers to close a road to protect traffic?
  • If a driver disregards a road closure, do they have any responsibility for any damage they cause as a result?

I’m not sure of my correspondent’s jurisdiction so I’ll answer this with reference to NSW.  The answer is ‘No, a member of the public does not have the power to close a road’.  It is an offence to ‘without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place’ (Summary Offences Act 1988 (NSW) s 6).  In the circumstances described the people involved would argue, quite rightly that they had a ‘reasonable excuse’.

But warning people of danger is not the same as closing a road.  I said this as a comment to my earlier post, Assisting NSW police with road closures (January 7, 2014):

Here’s an example from 1880, Ned Kelly’s holding the populace of Glenrowan when one man escapes and flags down the train carrying police. Did he have any authority to stop the train? No, but it can’t be suggested it was illegal to flag down the train to tell the driver and the police that the tracks had been ripped up and Kelly was hold-up in Glenrowan.

So you’re driving along the freeway and you see a fire and you chose to stop and warn others; no authority is required. Of course the other driver’s commit no offence if they ignore you and travel past…

Equally if you know the road is flooded and try and draw that to driver’s attention then that is not closing the road, that’s telling them the facts.  The drivers, however, have no legal obligation to pay attention to your warning.

As for damage done by the drivers, if they damage the road they may be liable (Roads Act 1993 (NSW) s 102).  Equally they could be liable for damage to the property if the property owner could prove negligence but that would be difficult as the driver has a right to drive on a road (even a flooded road that is not formally closed – Road Act 1983 (NSW) s 5).   Further the property owner would need to demonstrate how the damage was caused by the driver and not the floodwaters.  My correspondent says ‘The level of these waters, if not disturbed, doesn’t affect the neighbouring houses, but ignorant drivers who race through the flooded streets cause waves and push the waters into properties on either side of the street’ but to actually have the relevant evidence to prove that may be harder to come by.