Batt v Burnie City Council - [2018] TASSC 65

[2018] TASSC 65

COURT: SUPREME COURT OF TASMANIA

CITATION: Batt v Burnie City Council [2018] TASSC 65

PARTIES:  BATT, Christa Ann
  v
  BURNIE CITY COUNCIL

FILE NO:  95/2006
DELIVERED ON:  20 December 2018
DELIVERED AT:  Hobart
HEARING DATE/S:  14, 15 August 2017
JUDGMENT OF:  Wood J

CATCHWORDS:

Highways – Creation and extinction of highways – Dedication – What constitutes dedication – Generally – Common law doctrines of dedication and acceptance – Whether land is a "public right of way" – Onus lies on the party making the claim of a highway – Whether intention to dedicate is to be inferred from historical plans and evidence of public user – Dedication not established.

Land Titles Act1980 (Tas) ss 40(1) and 40(3)(c).
Local Government Act 1962 (Tas), s 363.
Permanent Trustee Company of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401; Headlam v Casimaty [1952] Tas SR 47; Clarence City Council v Howlin [2012] TASSC 26; Everingham v Council of the Municipality of Penrith (1916) 16 SR (NSW) 238; Newington v Windeyer [1985] 3 NSWLR 555, referred to.
Aust Dig Highways [1017]

REPRESENTATION:

Counsel:
             Plaintiff:  S Wright
             Defendant:  K Pitt QC, G Tremayne
Solicitors:
             Plaintiff:  S Wright
             Defendant:  Tremayne Fay and Rheinberger

Judgment Number: [2018] TASSC 65
Number of paragraphs: 116

Serial No 65/2018
File No 95/2006

CHRISTA ANN BATT v BURNIE CITY COUNCIL

REASONS FOR JUDGMENT WOOD J

20 December 2018

Christa Ann Batt is the owner of property at Camdale, near Burnie in Tasmania. This property is on the eastern banks of the Cam River close to the bridge near the mouth of the river. The property faces the river with a property behind which has frontage to Scarfe Street. Scarfe Street is parallel to the river. The property is Lots 54 and 56 on folio 54 and folio 56 of volume 52539 of the Register. The address of Ms Batt's property is known as 18 Scarfe Street which is misleading because it does not front onto Scarfe Street at all. Access to the plaintiff's property is via an unmade road which runs at right angles from Scarfe Street, and leads towards the river. It is alongside the northern boundary of the property that has street frontage, and the northern boundary of Ms Batt's property and leads towards the river. On the other side of the access road is industrial premises, operated by Aus-Tech Composites Pty Ltd.
Ms Batt and her husband purchased the property in 1999 and lived there with their young family. In September 2002, the property was transferred into her name as part of a matrimonial settlement. In 2003 Ms Batt was having "issues" with Aus-Tech about the road, including her access being impeded and the conditions of the road. She wrote to the Burnie City Council seeking recourse and was informed by the Council in a letter from the Manager Environmental Services that, "as this is an unmade road, Council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] TASSC 65
Decision Date: 20 December 2018

CaseChat Overview and Summary

The dispute in Batt v Burnie City Council involved the claimant, Batt, challenging the Burnie City Council regarding the status of a particular piece of land. Batt argued that the land had been dedicated as a public right of way, while the council maintained that it had not. The matter was brought before the court to determine whether the land in question had indeed been dedicated as a public right of way. The court was required to consider the legal principles surrounding dedication and acceptance of public highways, specifically focusing on whether the land was dedicated as a "public right of way." The central issue was whether the council had the intention to dedicate the land as a public highway, and whether this intention could be inferred from historical plans and evidence of public use.

The court examined the common law doctrines of dedication and acceptance, emphasising that the onus was on the party asserting the dedication, in this case, Batt, to prove the existence of a highway. The court looked into the historical plans and evidence of public use to assess if they supported the claim of dedication. Ultimately, the court found that there was no clear evidence to establish that the land had been dedicated as a public right of way. The historical plans and evidence of public use did not convincingly demonstrate an intention to dedicate the land as a public highway. Therefore, the court ruled against Batt's claim, holding that the land had not been dedicated as a public right of way.

Consequently, the court dismissed Batt's claim, concluding that the council was not obligated to treat the land as a public highway. The court's decision hinged on the absence of sufficient evidence to infer an intention to dedicate the land as a public right of way from historical plans and public use. As a result, the council was not bound by any obligation to maintain the land as a public right of way.

Orders