Alexandrina Council v Foster - [2019] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
ALEXANDRINA COUNCIL v FOSTER
[2019] SADC 140
Judgment of Her Honour Judge Schammer
26 September 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
HIGHWAYS - DEFINITIONS AND GENERAL MATTERS - ROAD
Application for Minor Civil Review.
The Respondent commenced proceedings in the Magistrates Court against the Appellant claiming damages for breach of an alleged duty of care owed to him arising from the Appellant's failure to rehabilitate a portion of land adjacent to his property, resulting in loss and damage. The Magistrate found the Appellant had breached a duty of care it owed to the Respondent, resulting in foreseeable loss and damage to the Respondent and awarded damages to the Respondent in the sum of $12,000 plus costs.
Whether the portion of land is a 'road' within the meaning of s 42 of the Civil Liability Act 1936.
Whether the Appellant is immune from any liability to the Respondent.
Whether the Appellant owed the Respondent a duty of care having regard to all relevant factors.
Whether by application of s 32 of the Civil Liability Act 1936, the Appellant is not negligent in failing to take precautions against a risk of harm.
Held:
1. Affirming the decision of the Magistrate made on 16 April 2019.
2. Application for Review dismissed.
3. No order as to costs.
Civil Liability Act 1936 ss 32, 42; Magistrates Court Act 1991 s 38; Road Traffic Act 1961 ss 32, 42; Local Government Act 1999 ss 4, 208; Roads (Opening and Closing) Act 1991 ss 3, 4, referred to.
Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

ALEXANDRINA COUNCIL v FOSTER
[2019] SADC 140
Introduction

This is an application for review of the decision of a Magistrate in a minor civil action commenced by Phillip Foster (Mr Foster) against the Alexandrina Council (the Council).
Mr Foster brought a minor civil action against the Council wherein he claimed damages in the sum of $10,940 for the costs he claims to have incurred arising as a result of the Council’s neglect of an area of land between his property at 88 Swampy Crescent, Nangkita (the Foster property) and the Cox Scrub Conservation Park (Cox Scrub). That portion of land is owned by the Council and designated in the title as ‘Road Reserve’.
Mr Foster’s claim against the Council was based in negligence. Mr Foster claimed the Council owed him a duty of care to maintain this portion of land, to ensure its ongoing erosion did not undermine his adjacent property and cause damage to the fence on that property, and to ensure sand from that land was not deposited on his property, thus rendering portions of it unsuitable for agriculture. He claimed the Council had breached that duty of care, causing him loss and damage.
The Council denied liability on the basis that the portion of land was a ‘road’, such that it was not liable in tort for any alleged failure to maintain the land pursuant to s 42 of the Civil Liability Act 1936 (CLA). In the alternative, the Council denied it was negligent and/or responsible for any alleged erosion of the portion of land.
By a detailed and well-reasoned judgment dated 16 April 2019, the Magistrate awarded damages in favour of Mr Foster in the sum of $12,000 plus costs of $143 (the judgment). The Magistrate referred to the portion of land in question as ‘Ridge Road’. I will adopt the same terminology for ease of reference.
By way of summary, in entering judgment in favour of Mr Foster against the Council, the Magistrate found:
1.Since its closure by the Council in late 2008, Ridge Road had ceased to be a ‘road’ within the meaning of s 42 CLA.
2.The Council as the owner of Ridge Road owed a duty of care to Mr Foster, an adjoining property owner, to ensure that its acts or omissions did not cause damage to Mr Foster’s property.
3.From late 2008, the Council had failed to take any reasonable steps to rehabilitate Ridge Road and thus prevent its ongoing erosion by water.
4.Subsequent erosion of Ridge Road by water had caused damage to Mr Foster’s property by way of erosion and the depositing of sand upon it.
5.The damage to Mr Foster’s property was reasonably foreseeable.
The Magistrate determined the loss suffered by Mr Foster, being the cost to erect a new fence, the loss of use of some of his property and the cost to remove deposited sand, exceeded $12,000, being the jurisdictional limit of a minor civil claim in the Magistrates’ Court. The Magistrate awarded Mr Foster damages in the sum of $12,000 plus costs.
The Application for Review
By its Application for Review, the Council seeks an order that the judgment be rescinded and that instead judgment be entered in favour of the Council, together with an order for costs.
The Grounds of Appeal are that the Magistrate erred:
1.In finding that Ridge Road was not a ‘road’ within the meaning of s 42 CLA.
2.In not finding that s 42 CLA gave the Council immunity with respect to Mr Foster’s claim.
3.In the alternative, in finding the Council owed Mr Foster a duty of care to take steps to remediate Ridge Road in that the Magistrate:
(a)    Did not consider all relevant factors including s 32 CLA;
(b)    Did not consider the burden of the defendant taking precautions to avoid the risk of harm;
(c)    Did not take into account evidence that the estimated cost, in 2008, to remediate Ridge Road was $257,917; and
(d)    Ignored or did not consider the scope of any alleged duty having regard to earlier damage sustained to Ridge Road caused by others prior to its closure.
The Procedure on Review
Section 38 of the Magistrates Court Act 1991 (MCA) outlines the procedure to be followed in the determination of minor civil actions in the Magistrates Court and provides a mechanism whereby a party dissatisfied with a judgment given in a minor civil action may apply to the District Court for a review of the matter.
Section 38(7) of the MCA states:
38—Minor civil actions
(7)The following provisions apply to such a review by the District Court:
(a)subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab)if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)    in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)    rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)     if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The Hearing
The Council filed and served a Written Case on Review pursuant to District Court Supplementary Rule 230.
In addition, brief oral submissions were made at the hearing of the review by Mr S Grenfell, General Manager of the Council. Mr Grenfell had represented the Council at the trial before the Magistrate and gave evidence before the Magistrate.
Mr Foster appeared at the hearing and made brief oral submissions in opposition to the Application for Review.
In addition, in accordance with leave granted by me, Mr Foster subsequently submitted to the court various photographs depicting the signs at each end of Ridge Road. At the same time, Mr Foster submitted a two-page document containing written submissions in opposition to the Application. As the Council has not had the opportunity to reply to those written submissions, which were not provided pursuant to any order or leave of the court, I have disregarded them for the purposes of these Reasons.
The Council was given leave to submit any further material upon which it sought to rely relevant to the estimated cost to rectify the ongoing erosion of Ridge Road. I did not receive any such further material.
Factual Background
Many of the relevant background matters were not in dispute.
Mr Foster purchased the Foster property in 2004.
Cox Scrub lies to the north of the Foster property. Ridge Road runs adjacent to the south-western boundary of Cox Scrub, with part of it immediately adjacent to the northern boundary of the Foster property, such that it effectively divides part of the Foster property from Cox Scrub.
Until October 2008, Ridge Road was deployed as a public road. It was a dirt road, used only by four wheel drives, motor cycles and pedestrians.
By Council Motion made on 20 October 2008, the Council determined to close a portion of Ridge Road and other roads in the general area pursuant to s 32 of the Road Traffic Act 1961 (RTA).[1]
[1] Exhibit D2.
In making the Motion, the Council considered information presented at a meeting of Council on 4 August 2008, the Minutes of which record that there had been negotiations for Council to rehabilitate significant gully erosion on a section of Ridge Road and then permanently close that road, such that it would then be handed to the Minister to be subsumed as part of Cox Scrub.
The Council had regard to a letter from a Ranger dated 7 November 2007, which in part stated:[2]
The area (Ridge Road reserve adjacent the south western boundary of Cox Scrub Conservation Park) currently presents a significant threat to the integrity of Cox Scrub CP. Running across the contours, the long and deep erosion gully is progressively widening, as it provides a natural channel for water runoff. Exacerbating this impact is the disturbance by off road motor vehicles that are attracted to the area. While the cost and effort required to stabilise and rehabilitate the site is substantial, the quantum will blow out exponentially over time …
[2] Exhibit P4.
It is apparent from the Minutes, and subsequent emails,[3] that the intention was for the area of road closed to be rehabilitated/revegetated and then included in Cox Scrub.
[3] Exhibit P7.
Council also had regard to material pertaining to the impact and benefits associated with the closure. The economic impact was said to include the cost of stabilising the road reserve by constructing headwalls, advertising costs, the erection of gates, stiles and signage, such costs being ‘offset by the removal of long term maintenance commitment’.[4]
[4] Exhibit P4, page 38 of 79.
Thereafter, Council staff commenced evaluating the work necessary to rehabilitate Ridge Road (and the other roads), in preparation for the Council to divest itself of those roads, so they could be incorporated into Cox Scrub.
A report was drafted at or about that time, which indicated an estimated Final Project Cost for the work to repair erosion on Ridge Road at a cost of $257,917. The report states the work would be broken up into small sections, identifying the worst and most significant sections, with the worst section treated first. The entire project was expected to take two years. The Report noted:[5]
Current: The extent of the erosion of along Ridge Road covers a distance of 1200 metres in length. Currently the erosion is still within the road reserve; however; it is starting to under mine adjacent property fences. The soil is non-wetting sand with little or no clay (plasticity Index[PI]) to hold or bind the sand particles together. There is no chance of re-vegetating the site in its present state as it is acting as stormwater drainage channel.
Methodology: The only way to repair and prevent further erosion is to fill in the erosion/channel and re-vegetate to bind the sandy soils …
[5] Exhibit P8.
Subsequently the Council issued a Notice under s 32 RTA confirming its proposal to close the roads. The Notice stated:[6]
NOTICE IS HEREBY GIVEN under s 32 of the Road Traffic Act 1961 that Alexandrina Council proposes to close the following roads:
Ridge Road which runs adjacent the south western boundary of Cox Scrub Conservation Park from the junction of Coles Crossing Road to the intersection of Bonds Road near Ashbourne-Gawler Road being approximately 4 km.
…
The road closures will apply to all motor vehicles apart from emergency services vehicles. The road locations are indicated on the sketch plan.
The road reserve closures are, in part, to fulfil a Significant Environmental Benefit associated with road works requiring native vegetation clearance adjacent to the intersection of Nangkita Road and Goolwa-Ashbourne Road to improve safety and improve sight distance. It is a requirement by Alexandrina Council to satisfy Native Vegetation Council requirements, and aims to secure and protect threatened vegetation on severely degraded road reserves exacerbated by poor off road vehicle behaviour. The road closures will allow works to proceed to repair sites of erosion and rehabilitate areas of degraded vegetation. All property access to local landowners has been considered.
…
[6] Exhibit D1.
A Notice was also published in The Southern Argus in similar terms.[7]
[7] Exhibit D9.
The Council then erected signs at each end of Ridge Road. At the eastern (Bonds Road) end the Council erected a sign which states:[8]
NO ENTRY
ROAD CLOSED
BY ORDER OF ALEXANDRINA COUNCIL
EXPIATIONS APPLY INCLUDING LOSS OF DEMERIT POINTS
Exempt Vehicles:
[8] Exhibit D5, copy of photograph taken on 18 July 2017.
Emergency Services, Council vehicles and Council approved vehicles …
Mr Foster produced four photographs that he took shortly prior to the hearing on 9 August 2019 at the Bonds Road end of Ridge Road. The photographs depict this sign, which is now surrounded by numerous thick bushes and large boulders.
Mr Foster forwarded to the court photographs depicting the signs installed by the Council at the other, western end of Ridge Road (Coles Crossing Road end). In addition to a sign identical to that at the eastern end, there is a sign which simply states ‘ROAD CLOSED’ and depicts pictures of a cyclist and horse rider in red circles with a red line struck through each circle. There is also a third sign which reads:
Nature Conservation Area
ALEXANDRINA COUNCIL ENVIRONMENTAL ACTION PLAN
Respecting, protecting & restoring our local natural environment
Penalties Apply for Unauthorised Access & Damage to Vegetation
In addition, various barriers, such as large boulders, and concrete fence posts were installed to prevent access to Ridge Road. The closure was also gazetted.
There was no dispute that Ridge Road is no longer used by vehicles, although initially four-wheel drivers had at times gained entry by removing some of the physical barriers which were designed to prevent such access. Further, Mr Foster gave evidence before the Magistrate, which he accepted, that Ridge Road was no longer used by pedestrians and that they could not use it, because of its erosion. [9]
[9] T 9.12-19.
Mr Grenfell also gave evidence at the trial, which was accepted by the Magistrate, that although not prohibited by the closure of Ridge Road, pedestrians did not and in fact, could not use Ridge Road.[10]
[10] Judgment [48].
At the hearing before me, Mr Foster gave evidence that no one uses Ridge Road. Mr Grenfell did not disagree with that proposition, or the proposition that Ridge Road was effectively inaccessible at present, albeit he stated it could be re-opened and then made accessible.[11]
[11] Appeal transcript 8.31-9.25.
There are photographs depicting the state of Ridge Road in 2017[12] and 2018.[13] Those photographs speak for themselves. The claimed ‘road’ resembles a dry creek or river bed, with large crevasses and sporadic vegetation growth throughout. In its current form, it is effectively incapable of use by vehicles of any description or pedestrians. It has been left to the mercy of the elements, and over time, it has taken a form very different from that it took when first excavated.
[12] Exhibit P12.
[13] Exhibits D10 and P12.
Sometime in or after 2008, a new road was constructed a short distance to the north of Ridge Road. That road can be seen in the overhead photograph tendered as Exhibit D6, being the solid straight area of excavation apparent on that photograph. The narrower, irregular area of excavation under it, is Ridge Road.
Mr Grenfell gave evidence, which I accept, that this new road was put in place by the environmental council, the owners of Cox Scrub, to enable access for emergency services into Cox Scrub.
When Mr Foster bought his property, there was a fence along the northern boundary as depicted in the photographs tendered before the Magistrate as Exhibit P3 and marked ‘Pre-2008’. Those photographs show an area of the fence leaning away from Ridge Road and towards his property. From his observations of those photographs, the Magistrate concluded that the fence was being undermined as a result of a combination of vehicle use of Ridge Road and erosion. The fence was in very poor condition. The photographs also show Ridge Road to be in a very poor state, although there are visible tyre tracks on the photographs consistent with it still being accessible to off road vehicles at that time.
Mr Foster gave evidence that in about 2009 he built a new fence two and a half to three metres back from the northern boundary of his property, being the original fence line. He moved the fence back into his property, thinking there would be some continued erosion along Ridge Road, but that it would be reduced, such that it would not encroach on the new fence.
The Magistrate accepted the evidence of Mr Foster that since 2009 he had observed consistent, continuing erosion along Ridge Road, such that in parts that erosion has reached the new fence he constructed inside the true boundary of his property. He produced photographs from a similar (but not the same) location as those taken pre-2008, to demonstrate the change in Ridge Road during that approximate ten-year period.[14]
[14] Exhibit P11.
The Magistrate found that although there was some damage to the Foster property caused by stock and the presence of kangaroos, the underlying and substantial cause of the erosion under the fence was the erosion of the scour in Ridge Road, which had caused the collapse of previously stable ground adjacent to the fence. The Magistrate also found that since Ridge Road was closed, sand from the gully along Ridge Road had been deposited onto the Foster property.[15]
[15] Judgment at [29] and [32], noting the Council had produced a bundle of photographs, Exhibit D10, upon which it relied to demonstrate that the damage was due to causes other than erosion by water, and had argued that any sand deposited on the Foster property had occurred prior to the closure of Ridge Road.
These findings are not the subject of the Application for Review, and were readily available to the Magistrate having regard to all of the evidence.
Similarly, the Magistrate’s findings as to what damage had been sustained by Mr Foster as a result, and his determination of the quantum of that damage, are not the subject of the Application for Review, and such findings were readily available to the Magistrate.
Grounds 1 and 2 – s 42 CLA

Section 42 CLA states:
42—Liability of road authorities
(1)A road authority is not liable in tort for a failure—
(a)    to maintain, repair or renew a road; or
(b)to take other action to avoid or reduce the risk of harm that results from a failure to maintain, repair or renew a road.
(2)In this section—
road means a street, road or thoroughfare to which public access is available to vehicles or pedestrians (or both), and includes—
(a)     a bridge, viaduct, busway (including the O-Bahn) or subway;
(b)     an alley, laneway or walkway;
(c)     a carpark;
(d)     a footpath;
(e)     a structure associated with a road;
road authority means—
(a)     a body or person in which the ownership of a road is vested by statute, or to which the care, control and management of a road is assigned by statute; or
(b)     if the road is on land of the Crown—the Crown or the Minister responsible for the care, control and management of the land; or
(c)     any other public authority or public body that is in fact responsible for the care, control and management of a road;
vehicle includes—
(a)     a motor vehicle;
(b)     a bicycle;
(c)an animal that is being ridden;
(d)     an animal that is being used to draw a vehicle,
but does not include a tram or other vehicle (except an O-Bahn bus) that is driven on a fixed track.
Council submits that the Magistrate erred in finding that Ridge Road is no longer a ‘road’ within the meaning of s 42 CLA, meaning that it has no liability to Mr Foster for any alleged failure to maintain, repair or renew Ridge Road. The Council submits that the Magistrate therefore erred in finding it did not have immunity with respect to Mr Foster’s claim.
Council submits that the Magistrate erred in considering a dictionary definition of the word ‘thoroughfare’ which was inapplicable. It submits that the Magistrate erroneously disregarded the fact that Ridge Road is and remains a ‘public road’ within the meaning of the Local Government Act 1999 (LGA) and the Roads (Opening and Closing) Act 1991 (ROC Act).
If Ridge Road is a ‘road’ within the meaning of s 42 CLA, the Council cannot be found liable in negligence for any damage caused to the Foster property due to its failure to maintain, repair or renew Ridge Road.
The Magistrate concluded that the definition of ‘road’ in s 42 CLA imports, for the first part, the ordinary meaning of the words ‘street, road or thoroughfare’ which are not otherwise the subject of definition in the CLA.[16]
[16] Judgment [41].
The Magistrate concluded that Ridge Road, since its closure, was not a ‘street’, having regard to the Oxford English Dictionary definition of ‘street’, namely ‘a paved road’.
He concluded Ridge Road was no longer a ‘road’, within the usual meaning of that word, because the damage caused to it meant it had lost ‘the character of being a way from one end of it to the other’ such as to allow passage by any person, or vehicle, horse or other animal carrying a person.[17] The Magistrate also concluded that Ridge Road, since its closure, was no longer a ‘thoroughfare’ within the meaning of the Oxford Dictionary, as it was not ‘a road, street, lane or path forming a route between two other roads or streets, or between two places; a public way unobstructed and open at both ends; a passage or way through’.[18]
[17] Judgment [44].
[18] Judgment [46]-[47].
The Magistrate found that since Ridge Road was closed, public access to it was not available to motor vehicles, as such access was prohibited by the terms of the closure and was physically impossible in light of the signs and other physical barriers erected by Council. Further, the Magistrate concluded that despite pedestrian access not being prohibited by virtue of the Council’s closure of Ridge Road, as Ridge Road was now not ‘a street, road or thoroughfare’, given his earlier discussion as to the ordinary meaning of those words, it was not a ‘road’ within the meaning of s 42 CLA. The Magistrate concluded the immunity under s 42 CLA was therefore not available to the Council.
In challenging those findings, the Council relies on three separate but related arguments.
Ridge Road was closed pursuant to s 32 RTA. The terms of that closure only prohibited access to Ridge Road to all motor vehicles and motor cycles, not pedestrians.[19] Council submits that as pedestrian access remains available to Ridge Road, it remains a ‘road’ within the meaning of s 42 RTA.
[19] Exhibits D1, D2 and D9.
Further, Council submits that Ridge Road remains a ‘public road’ within the meaning of the LGA and is therefore a ‘road’ as defined under the ROC Act.
Finally, Council submits that unless and until a Road Process Order is made under the ROC Act, Ridge Road remains a ‘road’ within the meaning of that Act, and therefore, also, within the meaning of s 42 CLA.
For the reasons that follow, I reject each of these related contentions.
Section 4 of the LGA contains the following relevant definitions:
public road means—
(a)any road or land that was, immediately before the commencement of this Act, a public street or road under the repealed Act; or
(b)any road—
(i)that is vested in a council under this or another Act; or
(ii)that is placed under a council's care, control and management as a public road after the commencement of this Act,
but not including an alley, laneway, walkway or other similar thoroughfare vested in a council; or
(c)any road or land owned by a council, or transferred or surrendered to a council, and which, subject to this Act, is declared by the council to be a public road; or
(d)any land shown as a street or road on a plan of division deposited in the Lands Titles Registration Office or the General Registry Office and which is declared by the council to be a public road; or
(e)any land transferred or surrendered to the Crown for use as a public road that was, immediately before the transfer, held by a person in fee simple or under a lease granted by the Crown,
(and includes any such road that is within the boundaries of a public square);
reserve means community land reserved or dedicated as a reserve or designated by the council as a reserve;
road means a public or private street, road or thoroughfare to which public access is available on a continuous or substantially continuous basis to vehicles or pedestrians or both and includes—
(a)a bridge, viaduct or subway; or
(b)an alley, laneway or walkway;
For Ridge Road to fall within the definition of ‘public road’ at sub-paragraphs (c), (d) or (e), it must have been declared by Council to be a ‘public road’. Mr Grenfell submitted that the fact Ridge Road was shown in Council records as a ‘road reserve’ amounted to such a declaration, but did not provide any further explanation as to why or how this was so.
The LGA does not contain a definition for the term ‘road reserve’.
I can find nothing in the LGA which supports the submission that simply because Council designates Ridge Road to be a ‘road reserve’ this amounts to a declaration that Ridge Road is a ‘public road’ under the LGA.
Further, pursuant to s 208(4) and s 208(5) LGA:
(4)A council must cause a copy of a resolution declaring a road or land to be a public road, or preserving an easement under subsection (3), to be published in the Gazette.
(5)A resolution declaring a road or land to be a public road will not take effect until publication under subsection (4).
There was no evidence before either the Magistrate or the Court that there has been such a resolution, and if so, that such resolution has been published in the Gazette.
In my view, sub-paragraph (a) of the definition on ‘public road’ does not apply in this matter.
Turning to the definition of ‘public road’ under sub-paragraph (b). For Ridge Road to be a ‘public road’ within the meaning of sub-paragraph (b), it must first be a ‘road’ within the meaning of the LGA. If this was not a requirement, this sub-paragraph could simply have used the terminology ‘land’ as used in sub-paragraphs (c), (d) and (e). It did not.
By reference to the definition of ‘road’ in the LGA, two requirements must be satisfied; first it must be a ‘street, road or thoroughfare’, and second, public access must be available on a continuous or substantially continuous basis to vehicles, pedestrians or both. In my view, it fails to meet either of those two tests.
As to the first requirement, the Magistrate referred to the ordinary meaning of the terms ‘street’, ‘road’ and ‘thoroughfare’ in his Judgment. He did so in the context of his interpretation of s 42 CLA and, in my view, he was entitled to do so having regard to the definition of ‘road’ as set forth therein, which also has as a prerequisite a requirement that the land in question be ‘a street, road or thoroughfare’, as a starting point.
In addition to the dictionary definitions referred to by the Magistrate, I note that the meaning of the word ‘road’ in the Macquarie Dictionary is:
1.a way, usually open to the public for the passage of vehicles, persons, and animals.
2.any street so called.
3.the track on which vehicles, etc., pass, as opposed to the pavement.
In the Australian Pocket Oxford Dictionary, ‘road’ is defined to mean:
way prepared for pedestrians, riders and vehicles to travel on, way of getting to, way one means to take, route …
In my view, Ridge Road, in its present form, is not a ‘road’ within the ordinary meaning of that word. It is not a way, line or path between two separate places, intended for either vehicles, animals carrying persons, cyclists or pedestrians to use to get from one location to another. It serves no such purpose.
The fact that it is not, by law, officially closed to pedestrians does not, in my view, mean that it remains by default a ‘road’ as that word is properly understood.
Further, Ridge Road is not a ‘street’, within the ordinary meaning of that word, being a ‘paved road’.
Finally, Ridge Road is not a ‘thoroughfare’ within the ordinary meaning of that word, as, on Council’s own admission, it cannot, in is present state, be used by vehicles or pedestrians, as a path or way to get from one point to another, nor, in my view, could it be so used by cyclists, or animals carrying persons, having regard to its state as evident in the photographs and the physical barriers preventing access to it.
As to the second requirement, for Ridge Road to fall within the definition ‘road’ in the LGA, it must be ‘available on a continuous or substantially continuous basis to vehicles, pedestrians or both’. I accept that Ridge Road is not legally closed to pedestrians. Notwithstanding this, I am not satisfied that Ridge Road is ‘available’ to pedestrians in its current state and the physical barriers to access, including signs at each end which state ‘No Entry’ and ‘Road Closed’, rather than ‘No entry to vehicles only’.
As such I am not satisfied that Ridge Road is ‘available on a continuous or substantially continuous basis to vehicles, pedestrians or both’.
If I am wrong and Ridge Road is a ‘public road’ within the meaning of s 4 LGA, because, as the Council argued, it has been designated as such, that, in my view, does not assist the Council in its argument that it is a ‘road’ within the meaning of s 42 CLA (to which I will return shortly).
As to the arguments based on the ROC Act, it is clear that it was intended at the time Ridge Road was closed, to permanently close it under the ROC Act, once it was rehabilitated.[20]
[20] Exhibit P7 – emails.
Section 3 of the ROC Act defines ‘road’ for the purpose of that Act, to mean:
(a)a public road within the meaning of section 4 of the Local Government Act 1999; or
(ab)an alley, laneway, walkway or other similar thoroughfare vested in a council; or
(b)in relation to a part of the State not within a council area—
(i)a road or street delineated and shown on a public map or plan of the State as laid out for public purposes by the Crown; or
(ii)a road or street opened under this Act or any other Act relating to the opening of new roads and streets; or
(iii)a road or street transferred or surrendered to the Minister of Local Government or the Crown by the owner or lessee for use as a public road or street; or
(iv)a road or street declared or dedicated under any other Act to be a public road or street,
and includes part of a road …
Pursuant to s 4 of the ROC Act, a road may be opened or closed by a road process order made by the relevant authority, confirmed by the Minister and notified in the Gazette in accordance with that Act. No such process orders have been made with respect to Ridge Road.
Council therefore argued that Ridge Road was and is a ‘road’ under the ROC Act. However, it can only be a ‘road’ under that Act if it is either a ‘public road’ under the LGA or ‘an alley, laneway, walkway or other similar thoroughfare’.
As outlined previously, Ridge Road, since its closure, is not, in my view, a ‘public road’ within the meaning of s 4 of the LGA.
Further, in my view, it is not ‘an alley, laneway, walkway or other similar thoroughfare’, given its lack of practical accessibility to the public.
If I am wrong, and as a matter of definition under s 4 of the LGA, Ridge Road is a ‘public road’ and therefore a ‘road’ under s 3 of the ROC Act, that does not, in my view, mean that it is a ‘road’ within the meaning of s 42 CLA.
I agree with the reasoning of the Magistrate, that in order for Ridge Road, since its closure, to be a ‘road’ within the meaning of s 42 LGA, it must be a ‘street, road or thoroughfare’, which words must be interpreted having regard to their ordinary meaning.
I agree with the Magistrate’s reasoning that Ridge Road, in its current form, is not a street, nor a road, nor a thoroughfare within the ordinary meaning of those words, as to be any of those three things, it must be capable of being used by either vehicles or pedestrians as a means to get from one point to another. There is no dispute that in its present form, Ridge Road cannot be used and is not used by pedestrians, despite there being no lawful prohibition to the same. Vehicles are prohibited by law from accessing it.
As such, while it is a portion of land that is theoretically ‘available to pedestrians’, it is not a ‘street, road or thoroughfare to which public access is available to vehicles or pedestrians’.
Even if, as argued by council, Ridge Road is a ‘public road’ under s 4 LGA and therefore a ‘road’ under the ROC Act, that does not, in my view, assist the Council to bring Ridge Road, in its present form, within the meaning of s 42 CLA.
In making this decision, I note the purpose for which s 42 CLA was enacted, namely to give legislative effect to and to restore the Highway Immunity Rule, following the decision of the High Court in Brodie v Singleton Shire Council.[21]
[21] (2001) 206 CLR 512.
At common law, the rule had, as its premise, that a highway authority, responsible for the maintenance, repair and restoration of roads, was not liable for damage sustained to road users in circumstances amounting to nonfeasance. The essence of the rule is that a highway authority may owe to an individual road user a duty of care, breach of which will give rise to a liability in damages, when it exercises its powers, but it cannot be made so liable in respect of a mere failure to act. It had, at its core, public policy and financial reasons.
In interpreting s 42 CLA, regard must be had to its legislative purpose. The interpretation of s 42 CLA urged upon the Court by the Council invites an interpretation going beyond the intention of the legislature, namely to provide an immunity to highway authorities from civil liability to road users arising from a failure to maintain, repair or restore a road.
I agree with the Magistrate’s finding that Ridge Road, as closed, in its present condition, is not a ‘road’ within the meaning of s 42 CLA. The Council is not immune from liability in negligence to Mr Foster due to its failure to maintain, repair or renew Ridge Road.
Ground 3
Section 32 CLA states:
32—Precautions against risk
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Council submitted that the Magistrate failed to have regard to s 32 CLA in his finding that the Council had breached a duty of care owed to Mr Foster.
The Magistrate found that when it closed Ridge Road to vehicles in 2008, Council was on notice that unless action was taken to fill the gully caused by erosion, exacerbated by vehicle activity, that erosion would continue and that as a result, material eroded would be deposited on neighbouring land. He concluded therefore that the risk of harm which did eventuate, namely the damage to the new fence on the Foster property and the depositing of sand onto the Foster property, thus rendering portions of it unusable for agriculture, was reasonably foreseeable.[22]
[22] Judgment [37].
These findings were available to the Magistrate on the evidence and I agree with those findings.
The Magistrate made no specific reference in his judgment to s 32 CLA.
However, the Magistrate expressly referred to the estimated Project Cost to rehabilitate Ridge Road, and the various observations of Council personnel that without rehabilitation, the damage to Ridge Road would continue, and specifically, the observation of the Ranger, which informed Council’s deliberations in resolving to close Ridge Road, namely:[23]
While the cost and effort required to stabilise and rehabilitate the site is substantial, the quantum will blow out exponentially over time.
[23] Exhibit P4.
As such, although, on its face, the cost of rehabilitation is significant when compared to the quantum of Mr Foster’s claim, the cost was in fact less than that ultimately likely to be incurred, if action was deferred.
There was social utility in the Council taking active steps to rehabilitate Ridge Road, not only to prevent the risk of foreseeable damage to the Foster property, but to preserve the integrity of Cox Scrub.
Further, despite the stated intention of Council in closing Ridge Road, being to enable Council ‘to proceed to repair sites of erosion and rehabilitate areas of degraded vegetation’,[24] this never occurred. There is no material before the court as to why, however, one may consider that the Council considered the expected costs of the project exceeded any potential liability it faced with respect to foreseeable damage to neighbouring property.
[24] Exhibit D1.
I reject Council’s contention that there was no evidence that Council was aware of risk of undermining to the fence on the Foster property once Ridge Road was closed, having regard to the contents of Exhibit P4, specifically at paragraph 17.1.5 on page 40 of 79 and Exhibit P8.
The fact that the Council took steps to close Ridge Road was insufficient to fulfil its duty of care to Mr Foster to prevent the risk of foreseeable loss and damage being sustained by him due to continued erosion of Ridge Road by water.
It is irrelevant that Council did not encourage the activities of four wheel drivers and other motorists which contributed to the erosion of Ridge Road prior to its closure. Having properly taken the step to close Ridge Road to vehicle access, Council knew that further erosion by water damage to Ridge Road was likely if it did not take steps to rehabilitate it.

While Mr Foster was the likely primary beneficiary of any such action, he was not the only beneficiary, having regard to the likely ‘blow out’ in the cost to Council over time if no such action was taken and the significant public benefit achieved associated with the ongoing preservation of Cox Scrub.
In the circumstances, I find that the risk was significant and that a reasonable person in the position of the Council would have taken appropriate precautions to guard against that foreseeable risk.
Summary
1.Ridge Road, as closed, in its present form, is not a ‘road’ within the meaning of s 42 CLA.
2.The Council is not immune from liability in negligence to Mr Foster for any failure to maintain, repair or renew Ridge Road.
3.The Council owed Mr Foster a duty of care to take steps to prevent further erosion, by water, of Ridge Road, and it breached that duty of care.
Orders
1.The judgment of the Magistrate delivered 16 April 2019 is affirmed.
2.The Application for Review is dismissed.
3.No order as to costs.