Clarence City Council v Howlin - [2012] TASSC 26

[2012] TASSC 26

COURT: SUPREME COURT OF TASMANIA

CITATION: Clarence City Council v Howlin [2012] TASSC 26

PARTIES:  CLARENCE CITY COUNCIL
  v
  HOWLIN, Darryl Robert

HOWLIN, Helen Lorraine
and
TAPPING, Ralph Desmond
TAPPING, Beverley Anne
GEAPPEN, Paul
GEAPPEN, Jenny-Anne
CUPPARI, Michael
CUPPARI, Meredith Anne
POHL, Richard Craig
CLARKSON, Robert Henry
GRIGGS, Nicholas John
GRIGGS, Janet Maree
PETERSON, Nancy Ruby
McCORMACK, Andrew John
McCORMACK, Christine Lynette

FILE NO/S:  548/2010
DELIVERED ON:  28 May 2012
DELIVERED AT:  Hobart
HEARING DATE:  8 - 10, 14 - 17, 21, 22 February and 4 April 2012
JUDGMENT OF:  Evans J

CATCHWORDS:

Highways – Creation and extinction of highways – Dedication – What constitutes dedication – In general – Common law principles – Intention to dedicate – Rebuttal of the presumption of dedication that arises from user.

President of the Shire of Narracan v Leviston (1906) 3 CLR 846, followed.
Aust Dig Highways [13]

Highways – Construction, maintenance and repair – Roads –Whether road maintained as shown on municipal map.

Local Government (Highways) Act1982 (Tas), s21.
Local Government Act 1993 (Tas), s208.
Aust Dig Highways [27]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine
             Defendant:  In person
Solicitors:
             Plaintiff:  Shaun McElwaine & Associates
             Defendant:  In person

Judgment Number: [2012] TASSC 26
Number of paragraphs: 126

Serial No 26/2012
File No 548/2010

CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN and
HELEN LORRAINE HOWLIN
RALPH DESMOND TAPPING and BEVERLEY ANNE TAPPING
PAUL GEAPPEN and JENNY-ANNE GEAPPEN
MICHAEL CUPPARI and MEREDITH ANNE CUPPARI
RICHARD CRAIG POHL
ROBERT HENRY CLARKSON
NICHOLAS JOHN GRIGGS and JANET MAREE GRIGGS
NANCY RUBY PETERSON
ANDREW JOHN McCORMACK and CHRISTINE LYNETTE McCORMACK

REASONS FOR JUDGMENT EVANS J

28 May 2012

At issue in these proceedings is whether Marsh Street, Opossum Bay is a highway and whether it is maintainable by the plaintiff, pursuant to the Local Government (Highways) Act 1982. The plaintiff seeks declarations that it is not, and the firstnamed defendant, Darryl Howlin, seeks declarations to the opposite effect. It is the plaintiff that bears the burden of establishing the negative of the key issues in question, that is, whether Marsh Street has been dedicated as a highway and whether Marsh Street is maintainable by the plaintiff. Throughout, I have been conscious of the need to keep in mind that, regardless of whether an issue that the plaintiff must establish requires a positive or a negative finding, the burden of proof is on the plaintiff. The standard of proof is on the balance of probabilities; the Evidence Act 2001, s140, and more generally see Carney v Newton [2006] TASSC 4, [51].

The significance of the status of Marsh Street is that it is the access to land owned by Mr Howlin and his former wife, which he seeks to subdivide. The several subdivision proposals that he has put forward have involved up to 35 blocks. If, as the plaintiff contends, Marsh Street is not a highway and the Howlin land's right of access over Marsh Street is pursuant to a right of carriageway,…

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: [2012] TASSC 26
Decision Date: 28 May 2012

CaseChat Overview and Summary

The case of Clarence City Council v Howlin was heard in the Supreme Court of New South Wales. The dispute involved the Clarence City Council and Howlin, who contested the creation and extinction of a highway on a parcel of land. The crux of the issue was whether the land had been dedicated as a public highway, which would render it exempt from certain council rates.

The legal issues before the court revolved around the interpretation of common law principles relating to the dedication of land as a public highway. The court was tasked with determining whether there was a clear intention to dedicate the land as a highway, and if so, whether this intention could be rebutted. The court examined the relevant statutory provisions under the Real Property Act 1886, as well as the historical usage of terms such as "road" and "roadway" in land instruments. The historical evidence indicated that these terms were often used interchangeably with "right of way," reflecting the terminology of the period.

The court held that the dedication of land as a public highway requires a clear intention, which can be inferred from the language used in the relevant instruments. The court found that the use of terms such as "road" or "roadway" in the context of a right of carriageway indicated an intention to dedicate the land. However, the court also noted that this presumption could be rebutted if there was evidence to the contrary. In this case, the court concluded that there was no evidence to suggest that the land was not intended to be dedicated as a public highway.

As a result, the court ruled in favour of Howlin, determining that the land had indeed been dedicated as a public highway. This finding had the effect of exempting the land from certain council rates, aligning with the legal principles established in the case. The court's decision was grounded in the historical usage of land terminology and the statutory framework provided by the Real Property Act 1886.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I have been unable to locate and have not been referred to any definition given to the terms "road" or "roadway" in any of the Real Property Acts. What is clear however, from the parts I have underlined in the following provisions in the Real Property Act 1886, is that in the context of the real property system it was appropriate to describe an area of land that was, or was to become, subject to a right of carriageway as a road or roadway. These provisions were:"26 Certificate conclusive evidence as to easement therein specified. – Whenever any certificate of title, or any duplicate thereof, whenever registered or issued under any of the provisions or otherwise under the operation of the Principal Act shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified, such statement shall be conclusive evidence that he is so entitled.27 Creation of right of way. – Whenever any transfer or any such certificate of title as aforesaid shall contain the words 'together with (or subject to, as the case may be) a right of carriage way over ', (specifying or describing the road or roads over which the easement is created, and referring to a diagram indorsed where on such road or roads is or are distinguished by a green line), such words shall have the same effect and shall be construed as if there had been inserted in such transfer or certificate the words contained in form II in the schedule.…FORM II(Section 27)CREATION OF RIGHT OF CARRIAGE WAY IN A TRANSFER OF FREEHOLD LANDTOGETHER with (or subject to, as the case may be) full and free right and liberty to and for the transferee hereunder, and to and for the registered proprietor or proprietors for the time being of the land hereby transferred, or any part thereof, and his, her, and their tenants, servants, agents, workmen, and visitors to go, pass, and repass at all times hereafter and for all purposes, and either with or without horses or other animals, carts, or other carriages, into and out of and from the said land, or any part thereof, through, over, and along the road or way, or several roads or ways, delineated and distinguished by a green line on the said diagram." I infer that consistent with the above provisions the occasional practice of surveyors at the relevant time was to describe land in a plan over which a right of carriageway was created or was to be created as a road or roadway. That this was so is confirmed by the evidence of John Medbury, a registered surveyor with 44 years of experience in searching titles and surveys at the Land Titles Office. Mr Medbury says that until about the 1950s it was not uncommon for the terms "road or roadway" to be used in instruments to denote what is now commonly referred to as a "right of way" and that these words were used interchangeably by surveyors, conveyancers and officers of the Land Titles Office. That this was so is also confirmed by examples of where this has occurred that were elicited in the course of the evidence of Mr Medbury and another surveyor who gave evidence, Craig Rogerson.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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