Corngate Investments Pty Ltd v Lukewood Pty Ltd
[2022] VSC 298
•6 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 202102485
BETWEEN:
| CORNGATE INVESTMENT PTY LTD (ACN 625 136 496) | Plaintiff |
| v | |
| LUKEWOOD PTY LTD (ACN 059 961 947) (as Trustee for the Veskoukis Superannuation Fund) | First Defendant |
| MARK ANTHONY SUTTON AND HELEN ROSS (as Trustees for the Sutton Superannuation Fund) | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22-23 March 2022 |
DATE OF JUDGMENT: | 6 June 2022 |
CASE MAY BE CITED AS: | Corngate Investments Pty Ltd v Lukewood Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 298 |
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REAL PROPERTY – Sale of land – Vendor obligations – Section 32 statement – Meaning of ‘no access to the property by road’ – Where property accessed via occupational crossing – Whether notice of rescission effective – Where ‘no access to property by road’ not established – Sale of Land Act 1962 (Vic) ss 32, 32C(c).
STATUTORY INTERPRETATION – Legislative intention – Vendor obligations required by ss 32 and 32C(c) of Sale of Land Act 1962 (Vic) – Meaning of ‘no access to the property by road’ – Where ‘road’ given ordinary meaning.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | WG Stark | Pauline Madden Conveyancing - Legal |
| For the First and Second Defendants | W Rimmer | Local Lawyers |
TABLE OF CONTENTS
Evidence............................................................................................................................................... 2
Background......................................................................................................................................... 2
History of the property................................................................................................................ 6
Use of the crossing........................................................................................................................ 8
Applicable principles...................................................................................................................... 10
Submissions...................................................................................................................................... 10
Plaintiff’s submissions................................................................................................................ 11
Defendant’s submissions........................................................................................................... 13
Is there ‘no access to the property by road’ within the meaning of s 32C(c) of the SLA?.. 17
Answers to the plaintiff’s questions............................................................................................ 30
HER HONOUR:
By contract dated 29 May 2018, the plaintiff agreed to purchase land from the defendants. It now asserts that there is no road access to the land, and that the defendants did not state this in their statement under s 32 of the Sale of Land Act 1962 (Vic) (‘SLA’). The defendants say that a gravel track provides road access.
Pursuant to s 49(1) of the Property Law Act 1958 (Vic), or at common law, the plaintiff seeks answers to the following questions:
(a) Does the statement provided by the defendants pursuant to s 32 of the SLA provide details of the road access to the property?
(b) If the statement provided by the defendants pursuant to s 32 of the SLA does not provide details of the road access to the property, was the Notice of Rescission served on the defendants on 5 May 2021 effective to terminate the Contract?[1]
[1]The answers are sought by originating motion and summons, both filed on 15 July 2021. The questions and their answers are outlined after the analysis below. The originating motion referred to service ‘by’ the defendants, it is common ground that this should refer to service ‘on’ the defendants on 5 May 2021.
The questions relate to the contract of sale for 297 Parwan-Exford Road, Parwan, Victoria, more particularly described as certificate of title Volume 10781 Folio 423 being Lot 1 on plan of subdivision PS513363C, (the ‘property’).[2] As shown in the image below from plan of subdivision PS513363C, the property is ‘axe-shaped’, abutting the Ballarat-Melbourne Railway to the south, with a thin strip of land extending east-west bounded by Lot 2 to the north.[3] At the western end of this thin strip, the property meets land marked ‘R1’ on the plan of subdivision.
[2]Affidavit of Pauline Madden, sworn 15 July 2021, Exhibit ‘PM-1’, 42.
[3]Ibid, 42.
A gravel track runs in a southerly direction from the land marked ‘R1’, over the Ballarat-Melbourne Railway, to meet Parwan-Exford Road.
The real issue in dispute is whether there is ‘no access to the property by road’ within the meaning of s 32C(c) of the SLA. The answer to this question is no. That is, there is road access to the property. Consequently, the rescission notice served by the plaintiff was ineffective to terminate the contract.
Evidence
The plaintiff relies on the affidavits of its solicitor, Pauline Madden, sworn on 15 July 2021 (‘first Madden affidavit’) and 25 October 2021 (‘second Madden affidavit’).
The defendants rely on the affidavit of their solicitor, David Cocks, affirmed on 10 September 2021 (‘Cocks affidavit’).
I conducted a view of the property on the first day of trial.
Background
On 22 May 2018, prior to the plaintiff and defendants entering into a contract of sale, the defendants signed a s 32 SLA vendor statement (‘vendor statement’) in respect of the property. It stated:
The vendor makes this statement in respect of the land in accordance with section 32 of the Sale of Land Act 1962.
This statement must be signed by the vendor and given to the purchaser before the purchaser signs the contract. The vendor may sign by electronic signature.
The purchaser acknowledges being given this statement signed by the vendor with the attached documents before the purchaser signed any contract.[4]
[4]Vendor statement contained in Exhibit PM-1 to the First Madden affidavit, 34.
The vendor statement includes provision for road access. Clause 3.2 says:
Road Access
There is NO access to the property by road if the square box is marked with an ‘X’.[5]
[5]Ibid, 35.
It is common ground that the defendants did not indicate that there was no access to the property by road. That is, the square box was left unmarked.
On 29 May 2018, the contract of sale for the property was signed by the defendants, having been signed by the plaintiff the day before.[6] The price agreed was $3,500,000, with a deposit of $700,000 payable as two $350,000 sums on 29 May 2018 and 1 December 2018 respectively.[7] The balance of $2,800,000 was due on settlement, identified as 36 months from the day of sale.[8]
[6]Contract of Sale contained in Exhibit PM-1 to the First Madden affidavit, 23.
[7]Ibid, 25-6.
[8]Ibid, 25.
According to the parties, the plaintiff paid the $700,000 deposit pursuant to the contract.[9]
[9]First Madden affidavit, [23]; Plaintiff’s Written Submissions filed 2 March 2022, [2]; Defendants’ Written Submissions filed 2 March 2022, [2].
While the exact circumstances are not provided in evidence, at some point Ms Madden became aware of issues concerning what she describes as an ‘occupational rail crossing’, over the Ballarat-Melbourne Railway. She deposes the following:
I am informed by VicTrack and believe that:
a.an ‘occupational crossing’ is for the use of the landowner whose land was acquired for the purpose of the railway and by this acquisition was cut off from access to that property.
b.The right to cross does not become ‘as of right’ to the new owners of the subdivided land.
…
I have also obtained information from the VicTrack website which confirms among other things that:
a.Occupational rail crossings were provided for the exclusive use of the landowner including visitors and others accessing the property,
b.Most importantly that subdivision or sale of the original property ”cannot confirm any rights on the purchaser of the subdivided land to use and enjoy the benefits of the crossing, which was provided for the owner of the total land at the time of the construction of the railway. It is the responsibility of the subdivider of the land to arrange alternative appropriate legal access”, and
c.If a change of use of the crossing occurs and/or substantially increases the burden on the crossing, the crossing will be terminated. For example where a business has been established on one side of the crossing that now requires additional vehicular movements across the crossing, the right is automatically terminated and the alternative access must be arranged.[10]
[10]First Madden affidavit, [14], [17].
By letter dated 5 May 2021, Ms Madden wrote to Mr Cocks stating as follows:
We enclose notice of rescission under section 32K of the Sale of Land Act 1962.
In view of our client’s decision to rescind the Contract, please return the deposit paid by our client forthwith.[11]
[11]Letter from Ms Madden to Mr Cocks dated 5 May 2021 contained in Exhibit ‘PM-1’ to the first Madden affidavit, 76.
The enclosed notice of the same date provides:
TAKE NOTICE THAT the purchaser named in the Contract, Corngate Investment Pty Ltd herby [sic] gives you notice that:
1. The Vendor Statement provided by you prior to the execution of the Contract pursuant to section 32 of the Sale of Land Act 1958 [sic] (VIC) (‘the Vendor’s Statement’) states that the Property has road access (Clause 3.2).
2. In fact, the Property does not have road access, requiring access to be obtained via an occupational railway crossing, which does not carry with it automatic access to the Property.
3.As a result of the false information contained in the Vendor’s Statement, the purchaser elects to rescind the Contract forthwith, and as a result the Contract is now at an end.[12]
[12]Notice of Recission of Contract contained in Exhibit ‘PM-1’ to the first Madden affidavit, 77.
Mr Cocks deposes that the plaintiff failed to settle on 31 May 2021, by reason of its purported rescission.[13] At 5:03 pm that day, the defendants served a notice of default and rescission on the plaintiff.[14] It included the following:
[13]Cocks affidavit, [20].
[14]Ibid, [20].
SCHEDULE
…
7.Particulars of default: Failure to settle on the due date under the Contract of Sale
8.Interest rate: 12%
9.Legal costs: $990.00
Take notice that you are in default under the contract referred to in the schedule and that the particulars of default are specified in Item 7 of the schedule.
Take further notice that the vendor intends to exercise their contractual and other rights unless:
1. The default is remedied; and
2.Interest on the amount due under the contract at the rate specified in item 8 is paid; and
3. Costs specified in item 9 are paid;
within 14 days of service of this notice upon you.
Take further notice that unless the default is remedied and interest and costs paid in accordance with this notice, the contract will be rescinded pursuant to the contract.[15]
[15]Notice of Default and Recission contained in Exhibit ‘DC-12’ to the Cocks affidavit (bold in original).
Mr Cocks says the plaintiff did not remedy the default within the time frame contemplated by the notice of rescission, and on 15 June 2021, the defendants treated the contract as having come to an end, giving them the right to retain the deposit.[16]
[16]Cocks affidavit, [20].
Mr Cocks deposes that on 27 July 2021 he received an email from Assad Niazmand of VicTrack.[17] It states as follows:
Our records shows [sic] that the crossing is a Section 36 occupational crossing over the railway line at Parwan.
There is an email from VicTrack at 2010 to the Melton Shire Council stated:-
An inspection of the crossing that the owner of 297 has gated access into his property. On the ground the only access available to the adjoining property, 295 Parwan-Exford Road is also through this gate.
When “OCC CROSSING” is displayed on Rail map, it represent [sic] what’s known as an occupation crossing (details can be found …).[18]
[17]Cocks affidavit, [15(b)].
[18]Email contained in Exhibit ‘DC-6’ to the Cocks affidavit.
According to Mr Cocks, the defendants have offered the property for sale since the contract came to an end and have received expressions of interest of approximately $1.8 million.[19] The defendants anticipate making a substantial loss as a result of the plaintiff’s failure to comply with the notice, in respect of which they intend to bring a counterclaim.
[19]Cocks affidavit, [21].
History of the property
Mr Cocks deposes that to enter the property there is access off Parwan-Exford Road. Following the exit of Parwan-Exford Road, one heads in a northerly direction and crosses the rail line upon which the Ballarat line V/Line service runs via a level crossing, after which one turns to the east and enters the property. A driveway then extends along the narrow strip of land, with the neighbour’s property to the north and the rail line to the south.
According to Mr Cocks, aside from when trains are travelling along the rail line (and the boom gates are down), access over the crossing and into the property is entirely unfettered.[20] However, as is discussed later in these reasons, Counsel for the defendants conceded that access to the property was not unfettered.[21]
[20]Ibid, [12].
[21]Transcript of Proceedings, Corngate Investments Pty Ltd v Lukewood Pty Ltd & Anor (Supreme Court of Victoria, S ECI 2021 02485, Ierodiaconou AsJ, 22 & 23 March 2022) 94 (‘Transcript’).
The rail line is owned by Victorian Rail Track (‘VicTrack’). According to research by Mr Cocks, the first rail line was created on 12 June 1884 and the second rail line on 23 September 1886.[22] He believes that a direct rail line from Melbourne to Ballarat has operated since 1889.[23] The rail line, running in an east-west direction, appears to have bisected Crown Allotments 21A, 21B and 22A (in the Parish of Mooradoranook, County of Grant), which were bounded by the Werribee River to the north, and primarily the Parwan-Exford Road in the south.[24]
[22]Cocks affidavit, [9].
[23]Ibid.
[24]Ibid, Exhibits ‘DC-6’, ‘DC-7’ and ‘DC-8’ to the Cocks affidavit. Crown Allotment 22A appears to have been bounded at the south by a smaller government road branching from the Parwan-Exford Road.
It appears that in 1890, the area of land comprising the property was part of certificate of title Volume 2635 Folio 886, which was in common ownership with the land to the south of the rail line.[25] What appears to be a historical map of the area provided to Mr Cocks by Assad Niazmand, shows, in the area of the current level crossing, the marking ‘Occupation Xing completed on 22.04.03”. [26]
[25]Cocks affidavit, [15(c)].
[26]Ibid, [15(b)].
According to Mr Cocks, the land on either side of the rail line remained in common ownership until 1966, when it was subdivided.[27] At that time, the land north of the rail line became Lot 1 and Lot 2 on plan of subdivision number LP071798.[28]
[27]Cocks affidavit, [15(d)]. It appears that in 1943, certificate of title Volume 6605 Folio 951 (of around 839 acres) was issued and parent title Volume 2635 Folio 886 (of around 886 acres) was cancelled. However, certificate of title Volume 6605 Folio 951 continued to encompass the land both north and south of the rail line, including that which eventually became the property.
[28]Ibid, Exhibit ‘DC-8’ to the Cocks affidavit.
In 2003, Lot 1 on plan of subdivision number LP071798 was further subdivided into what is now Lot 1 and Lot 2 on plan of subdivision PS513363C.[29] On plan of subdivision PS513363C, under a heading ‘Vesting of Roads and/or Reserves’, ‘R1’ is inserted as an ‘identifier’, and ‘Melton Shire Council’ is marked as the corresponding ‘Council/Body/Person’. Under another heading, ‘Easement Information’, a legend provides that ‘R’ corresponds to an ‘Encumbering Easement (Road)’.[30] However, the corresponding table is left blank.
[29]Ibid, Exhibit ‘DC-9’ and ‘DC-10’ to the Cocks affidavit.
[30]Ibid, [15(d)-(f)].
The defendants became the registered proprietors of the property on 26 March 2010.[31]
[31]Exhibit ‘PM-1’to the first Madden affidavit, 39.
Use of the crossing
Since becoming registered proprietors, the defendants have frequently passed over the rail line using the level crossing, as that is the only access to the property.[32]
[32]Cocks affidavit, [11].
It appears that in or around 2021, the defendants engaged Farren Group, land surveyors, to survey the property and prepare a re-establishment plan of survey. Mr Cocks deposes that a copy of the re-establishment survey, dated 3 September 2021, identifies that the gravel track giving access to the driveway on the land is in three parts:
(a) in the Parwan-Exford Road reserve: gravel track from the edge of the bitumen of the sealed road to its boundary with the land in the titles for the rail line;
(b) in the rail line land: a gravel track on either side of the rail line infrastructure, constituting the crossing; and
(c) the area marked R1 on PS513363C.[33]
[33]Ibid, [16].
The image below is provided as part of the survey:[34]
[34]Exhibit ‘DC-11’ to the Cocks affidavit.
According to Ms Madden, the gravel track from Parwan-Exford Road extending over the crossing has no road signage or name, and is not a road recognised by the Melton City Council nor by VicRoads.[35] Additionally, the trains operating along the line are the V/Line Velocity trains and they travel at a faster speed than the metropolitan trains.[36] Moreover, there is a sign on the crossing showing that contact must be made by telephone with ‘Train Control’ in certain circumstances named on the sign.[37]
[35]Second Madden affidavit, [3].
[36]Ibid, [3(b)].
[37]Ibid, [7].
As shown in a photograph exhibited to the second Madden affidavit, the sign states as follows:
NOTICE
Before transferring livestock or heavy machinery
1. Obtain permission from train control on Ph. [telephone number]
2. Quote ref No AO 45187
3. When the crossing is clear advise train control.[38]
[38]Exhibit ‘PM-A’ to the second Madden affidavit.
Applicable principles
Subsection 49(1)of the Property Law Act 1958 (Vic) follows:
(1)A vendor or purchaser of any interest in land, or their representatives respectively, may apply to the Court, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the Court may make such order upon the application as to the Court may appear just, and may order how and by whom all or any of the costs of and incident to the application are to be borne and paid.
Section 32 of the SLA states as follows:
32 Statement of matters affecting land being sold
(1) A vendor under a contract for the sale of land must give to a purchaser, before the purchaser signs the contract, a statement signed by the vendor that contains the matters and attaches the documents specified in this Division.
(2) For the purposes of subsection (1), a vendor may sign the statement to be given to a purchaser under this section by electronic signature.
Subsection 32C(c) of the SLA provides:
32C Matters relating to land use to be disclosed in section 32 statement
A section 32 statement must contain the following matters in relation to the use of the land—
…
(c)if there is no access to the property by road, a statement that there is no such access;
Submissions
The parties each provided written and oral submissions.
Plaintiff’s submissions
The dispute is whether there is ‘access to the property by road’. The plaintiff’s evidence shows that the land does not have direct road access. Rather, access is gained via a ‘private driveway’ from Parwan-Exford Road and an occupational crossing.[39]
[39]Plaintiff’s Written Submissions, [17].
The area of land marked ‘R1’ is not a road recognised or maintained by the local Council.[40] It is unclear whether the area is vested in Melton City Council as a ‘road’ or as a ‘reserve’, but it is more likely to be a reserve.[41]
[40]Ibid, [21].
[41]Transcript, 20.
In relation to the question of whether there is road access, the plaintiff notes the inclusive definition of ‘road’ in s 3(1) of the Local Government Act 1989 (‘LGA 1989’). Additionally, sub-s 8(5) of the Road Management Act 2004 (‘RMA 2004’) explicitly reserves the right of members of the general public to pass along a road, subject only to ‘any restrictions, limitations or conditions which may be specified under this Act or any other Act or law’. The plaintiff argues that accordingly, the issue is whether there are in fact any such ‘restrictions, limitations or conditions’.[42] In this instance, the occupational crossing places limitations on access.
[42]Ibid, 119; Plaintiff’s Written Submissions, [33].
It is said to be clear from the material on the VicTrack website and s 36 of the Lands Compensation Act 1890 (‘LCA 1890’), that the occupational crossing is to be maintained only for the accommodation of the ‘current owner’ of each of the lands being acquired who is to be compensated.[43]
[43]Transcript, 26.
The plaintiff refers to the dictionary definition of ‘access’. The VicTrack website confirms that the occupational crossing right is terminated once the land on both sides of it ceases to be owned by the same person, and it is the responsibility of the subdivider of the land to arrange alternative appropriate legal access. There is no evidence that the defendants have provided, in the vendor statement or elsewhere, that they have arranged alternative appropriate legal access.
VicTrack had the right to terminate the occupational crossing when the original owner changed, and there is only access until VicTrack terminates it.[44] Access to the property is not unfettered.[45] The signage associated with the occupational crossing places limitations on access, and the occupational crossing does not allow commercial access to the land. A larger, more expensive rail crossing would be required for that purpose. VicTrack says an occupational crossing will be terminated if a change of use of the crossing occurs and/or substantially increases the burden of the crossing, as was likely to happen here, making the land unsuitable for the plaintiff’s purposes. The evidence in the first Madden affidavit is that the plaintiff intends to run a sports facility. Therefore there is no unfettered access to the land.
[44]Ibid, 118.
[45]Ibid, 8 and 9.
The plaintiff, as purchaser, will not have access to the land by the turn off that crosses the occupational crossing. That crossing would have been terminated once the plaintiff became the owner of the land. Alternatively, it would have been terminated when the plaintiff attempted to commence business that was proposed to be operated on the land.
The defendants’ vendor statement does not provide details of the lack of road access to the property. The parties agree, and that statement is clear, that there is no statement to the effect that there is no access to the property by road. Consequently, the defendants breached s 32 of the SLA. Therefore, the plaintiff elected to rescind the contract by serving the notice of rescission. Due to service of the notice, the contract is at an end and the plaintiff is entitled to a return of its deposit.
The plaintiff also made submissions concerning the application of sub‑s 32K(4) of the SLA. However, during the hearing, Counsel for the defendants clarified that in this proceeding the defendants are not relying upon sub‑s 32K(4) of the SLA.[46] It was noted that such a defence would require greater evidence and a full trial.
[46]Ibid, 74.
Defendant’s submissions
Section 32C(c) of the SLA requires a negative disclosure of something that is not the case, namely that there is no access to the land by road, if that be the case. It does not impose a positive disclosure obligation to provide particulars of the access to the property by road. The defendants were not required to provide particulars of the road access to the plaintiff. While s 32C(c) of the SLA should be given a beneficial interpretation, that does not mean that the principles of statutory construction are loosened.[47]
[47]Transcript, 77.
All that s 32C(c) of the SLA requires to be disclosed is if there is no legal right, enjoyed by owners and occupiers of the property, to access the property by vehicles from the public road network. That is to say, there is an obligation to disclose that the property is legally landlocked, or may become so after the purchaser completes the contract of sale.[48] This is particularly important if it looks to a purchaser, on an inspection of the property, as if there is road access to the property by means of the physically made carriageway, when in reality the purchaser will acquire no legal right to use it.
[48]Defendants’ Written Submissions, [18].
Subsection 32C(c) of the SLA does not require a vendor to specify details of access to the property by road, such as naming the road or identifying the source or nature of rights. In this respect, it is significant that other sections of the SLA do go so far as requiring a vendor to disclose details in a s 32 statement. For example, a description of encumbrances and particulars of non-compliance in s 32C(a) of the SLA, details of insurance in s 32B of the SLA, a statement specifying the name of any applicable planning scheme and other nominated planning information in s 32C(d) of the SLA, particulars of notices in ss 32D(a) and (c) of the SLA, particulars of building permits issued in the last seven years in s 32E of the SLA, and specifying information about the imposition of any ‘growth areas infrastructure contribution’ in s 32G of the SLA.
The onus of establishing that there was no access to the property by road, enlivening the vendors’ disclosure obligation, rests with the plaintiff. The plaintiff is unable to discharge its onus on the balance of probabilities on the evidence in this case. The evidence does not support the contention that there is no access to the property by road. Access to the property by road is from the Parwan-Exford Road, then by the occupational crossing to the area of land marked R1, from which both gates across the driveways on the property and on Lot 2 of the same plan of subdivision are accessed. There was manifestly vehicular access to the property from the Parwan-Exford Road to the property on the day the sale, by way of the occupational crossing.
In accordance with s 24 of the Subdivision Act 1988, the land marked ‘R1’ is vested in Melton City Council as a road, or at least as land reserved for the purpose of a road.[49] It can be accepted that it is not on the register of roads and therefore Melton Shire Council does not have to maintain it. However, that does not mean that in law the area is not a road.[50]
[49]Transcript, 37.
[50]Ibid, 53.
While it is true that access to the property is not ‘unfettered’, there is no evidence before the Court that any road access anywhere is unfettered.[51] That the signs either side of the railway place restrictions on use of the occupational crossing does not make a difference to the status of the track as a ‘road’ within the meaning of s 32C(c) of the SLA.[52]
[51]Ibid, 94.
[52]Ibid.
For there to be ‘access to the property by road’ within the meaning of s 32C(c) of the SLA, the means of access to the property by vehicle must be supported by legal rights which owners and occupiers of the property from time to time can enforce. To prove there is no access to the property by road, the plaintiff must demonstrate on the balance of probabilities that either:
(a) there is no legal right of any kind to use the occupational crossing to access the property by vehicle, so that the defendants’ use of the occupational crossing has been as trespasser; or,
(b) that the defendants’ use of the occupational crossing for vehicular access to the property is pursuant to a right that was personal to the defendants, so they were merely licensees of the rail crossing owner, namely VicTrack.
It is inherently implausible to suggest the owners and occupiers of the property have been using the occupational crossing in the past as trespassers, given that it has been in place since 1903. There are many other such crossings nearby that have also been in place for long periods of time. They have been used openly by owners and occupiers of the land to access their land, and the railway owners have maintained and upgraded the crossing over the years since 1903. The railway owners have, for example, installed lights, bells, boom gates, signs, and other infrastructure.
If it is suggested that the defendants and their predecessors in title have been using the occupational crossing pursuant to a licence, it is incumbent upon the plaintiff to establish that licences have been granted or ought to have been obtained. The plaintiff has not established, and indeed there is no evidence to suggest, that is the case.
VicTrack’s own information about occupational crossings published on its website points to s 36 of the LCA 1890 as the origin of the grant of occupational crossings to landowners. Here, as the occupational crossing was first granted in 1903, the applicable statute would have been the LCA 1890. The material on the VicTrack website is equivocal regarding the issue before the Court, and does not of itself assist the plaintiff in discharging its onus. If the plaintiff seeks to rely on the limitations on rights of termination asserted on VicTrack’s website, it is incumbent upon it to substantiate those assertions by reference to legislation or applicable legal principles.
In the current circumstances, the right of access provided by the LCA 1890 accommodates the ‘owners and occupiers’ of land and thus is a right appurtenant to the severed land, not merely a personal right. A right-of-way is a type of road. It is unnecessary that the right be characterised as amounting to an interest in land It is sufficient that s 36 of the LCA 1890 grants all owners and occupiers legal rights of access to the property in perpetuity. That section grants owners and occupiers on the Werribee River side of the railway, which includes the property, rights to access the severed land. There are no words limiting the class of owners or occupiers to just those who retained ownership of two parts of a larger parcel of land severed by the rail line.[53]
[53]Defendants’ Written Submissions, 46
Section 36 of the LCA 1890 refers to ‘any cases where damages may be sustained by the owner of lands’. The ‘damages’ encompass two types of scenarios: severance of one portion of land from other lands of the owner; or, difficulty of access (that is, where the land becomes landlocked).[54] The latter applies here. A purpose of the occupational crossing is to avoid land being landlocked, another purpose, manifested on the face of s 36, is to avoid the need to pay compensation.[55]
[54]Transcript, 89–90.
[55]Ibid, 93.
The defendants say the occupational crossing is therefore a ‘road’ itself within the meaning of sub‑s 32C(c) of the SLA, being a right of carriageway accommodating owners and occupiers of the land originally severed. Alternatively, it is at least legal access from the Parwan-Exford Road, as of right, thus affording ‘access by road’ to the property. The defendants say that whether the crossing is itself characterised in law as a road, or simply affords legal access to the property by the Parwan-Exford Road, is a legal nicety that is unnecessary to decide. They say that the plaintiff fails if it cannot establish that there is no legal right appurtenant to the defendants’ ownership or occupation of the land to access the property with vehicles.
The defendants’ current rights of access are legal rights of a proprietary nature, that is, capable of enforcement against VicTrack by any owner or occupier of the property at all times after the crossing was first installed, including the plaintiff had it completed the sale. They are not merely private rights enjoyed by the defendants personally, which the purchaser would have to renew for itself by way of further licence if it wished to continue to use the occupational crossing. Nor is the right conferred on the defendants and the purchaser casual or terminable at will.
Is there ‘no access to the property by road’ within the meaning of s 32C(c) of the SLA?
The principles of statutory construction are well-established. The ‘starting point for ascertainment of the meaning of a statutory provision is … the text of the provision considered in light of its context and purpose’.[56] The ‘duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’.[57]
[56]SAS Trustee Corp v Miles (2018) 265 CLR 137, 149 [20]; Azizi v Director of Public Prosecutions [2022] VSCA 71 [52].
[57]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].
Turning first to the text of s 32C(c) of the SLA. It places an obligation on vendors. If there is ‘no access to the property by road’, the vendor must include a statement that there is no such access.
What is the meaning of ‘no access to the property by road’ in s 32C(c) of the SLA?
‘Road’ is not defined in the SLA. The Macquarie Dictionary defines ‘road’ as ‘a way, usually open to the public for the passage of vehicles, persons, and animals’.[58]
[58]Macquarie Dictionary (online at 26 May 2022) ‘road’ (def 1).
The defendants submit, relying upon Templestowe Developments Pty Ltd v City of Boroondara,[59] that in other statutory contexts, ‘road’ is typically given a broad construction, extending to public and private roads, as well as ‘paper roads’ marked on title only.[60] In that case, Ashley J determined that the disputed land was a ‘road’ for the purposes of s 206 of the LGA 1989 – regardless of whether or not it was also a ‘public highway’ at common law.
[59][1997] 1 VR 504.
[60]Defendants Written Submissions, [64]; Transcript, 87, citing Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504, 523.
It appears that there is not an accepted common law meaning of ‘road’. Rather, ‘public highways’ recognised at common law may have included rights of way colloquially referred to as ‘roads’. In Anderson v City of Stonnington,[61] the plaintiffs sought a declaration that a lane was ‘not a “road” within the meaning of the common law’.[62]
[61](2016) 217 LGERA 179.
[62]Ibid 182.
In determining that issue, McMillan J said:
The term ‘road’ has a well-known colloquial meaning but, in a legal sense, it is a creature of statute, created to assist the various levels of government in managing and maintaining a complex network of transportation. For the purposes of the common law, the term ‘public highway’ should be taken to mean all public rights of way, including those rights of way that may colloquially be described as ‘roads’.
In this way, the terminology of the common law differs from that adopted by the statutes. Under the [LGA 1989], a ‘public highway’ is a sub-set of the broader category of ‘roads’. It is ‘simply a road with a particular characteristic’, there being other roads without that characteristic. The [RMA 2004] adopts a similar taxonomy. According to the definition of ‘road’ in s 3(1) of that Act, the term ‘road’ includes ‘any public highway’ (which is itself defined to mean a public highway within the meaning of the common law), as well as ‘any ancillary area’ and ‘any land declared to be a road under section 11 or forming part of a public highway or ancillary area’. This suggests that, for the purposes of the [RMA 2004], there may be land that is treated as a road but is not regarded as a public highway by the common law, as would be the case with any land that is or forms part of an ancillary area, as designated by a road authority under s 18.[63]
[63]Ibid, [29], [30] (citations omitted).
Her Honour later concluded that:
The common law has long recognised the right of the public to pass and repass along a public highway, whereas the authorities do not recognise a ‘road’ within the meaning of the common law, other than as a possible substitute for the term ‘public highway’. The common law does not recognise a ‘road’ as a right of way that can arise over land.[64]
[64]Ibid, 197 [59] (citations omitted).
The RMA 2004 defines ‘road’ inclusively to mean ‘any public highway; any ancillary area; any land declared to be a road under s 11 or forming part of a public highway or ancillary area’.[65] On the other hand, ‘public road’ is not defined inclusively. Rather, it has a specific definition in s 17 of the RMA 2004. That definition includes (c) roads ‘declared under s 204(1) of the [LGA 1989]’, and (g) ‘municipal road declared under s 14(1) [of the RMA 2004]’. Subsection 17(3) of the RMA 2004 provides:
[65]RMA 2004, s 3(1) (definition of ‘road’).
Subject to section 14(7), the relevant coordinating road authority must register on its register of public roads a road in respect of which the road authority has made a decision that the road is reasonably required for general public use.
Example:
A road set aside as a road in a plan of subdivision registered under the Subdivision Act 1988 is not a public road for the purposes of this Act unless and until a decision is made under subsection (3).
Section 19 of the RMA 2004 provides that a road authority must keep a register of public roads. It is common ground here that the gravel track is not on the register.
Section 128 of the RMA 2004 provides for the abrogation of obsolete common law road classifications:
The distinction at common law between carriageways, footways and bridleways as it applies in relation to roads on Crown land or freehold land vested in a Commonwealth public authority, a State public authority or a municipal council is abrogated by virtue of this section.
Subsection 3(1) of the Road Safety Act 1986 (‘RSA 1986’) defines ‘road’ as meaning:
(a)an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles;
…
The above refers to a ‘road’ as being for public use, which may be helpful here. However, the purpose of the RSA 1986 is focused on public use of roads, so the context of the legislation is very different to the SLA.
None of the statutory definitions above apply to the SLA.
In relation to context, as the defendants submit, sub-s 32C(c) of the SLA differs from other obligations under Part II Division 2 of the SLA, in that they require ‘particulars’ to be given,[66] descriptions to be given,[67] and specific information to be provided in the statement.[68] In contrast, sub‑s 32C(c) of the SLA requires ‘a statement that there is no such access’, the practise being that a tick box is either marked, or left unmarked.
[66]SLA ss 32A(a), (b), 32B(a), 32C(a), 32E.
[67]Ibid, s 32C(a).
[68]Ibid, s 32C(d), 32F.
The SLA does not expressly state its purpose. However, the obligations placed upon the vendor in Part II Division 2 regarding the sale of land, and the legislative history of s 32 and sub‑s 32C(c) of the SLA, confirm that they are consumer protection provisions.
The obligation in s 32 of the SLA for the vendor to provide a statement of certain matters was implemented upon the recommendations of the Dawson Committee of Inquiry into Conveyancing Practice in Victoria (‘Committee’).[69] I gratefully adopt the following summary of the purpose and outcomes of the Committee in relation to s 32 obligations given by Derham AsJ:
… In 1978, the [Committee] was established to examine all aspects of conveyancing in Victoria and to make recommendations for any necessary or desirable changes to existing conveyancing laws and practices. In its final report, the Committee concluded that ‘it is desirable that present practice be varied so as to place upon the vendor the onus of providing sufficient information to disclose any defects in title, any mortgages, charges or encumbrances and any restrictions upon the use of land in question’.
The Committee came to this conclusion based on the belief that the principle of caveat emptor had its limitations in Victoria since a purchaser does not always have ‘the same ease of access to the information as does the vendor, to satisfy himself that a good title, free from encumbrances and other restrictions, can be obtained from the vendor’. These statements clarify that the basis for placing the onus on vendors is to facilitate access to information regarding the land in question that would otherwise be difficult for purchasers to obtain.
The Committee’s Report was endorsed by the (then) Attorney-General of Victoria in the second reading speech for the Sale of Land (Amendment) Bill 1982 (Vic). This Bill proposed the amendment of the [SLA] to introduce the principle of caveat vendor, now encapsulated in s 32, so that ‘vendors of land are under an obligation to supply sufficient information relating to the property to a purchaser prior to obtaining a signature to a contract of sale’. The requirement of a vendor’s statement was ultimately inserted in the [SLA] by the Sale of Land (Amendment) Act 1982 (Vic). In 2014, the Sale of Land (Amendment) Act 2014 (Vic) made important amendments to s 32 in order to ‘reform, simplify and modernise the provisions’. Notwithstanding these amendments, the purpose of a ‘vendor’s statement’ or ‘section 32 statement’ remains to allow purchasers of land to gain important information regarding that land.[70]
[69]Victoria, Parliamentary Debates, Legislative Assembly, 14 September 1982, 222–223 (John Cain, Attorney‑General); Law Institute of Victoria v Maric [2006] VSC 361, [63].
[70]Snapper Holdings Pty Ltd v Lentini [2018] VSC 800, [78]–[80] (citations in original); As previously noted by J Dixon J, the Dawson Report is relevant when interpreting the legislative purpose of SLA since Interpretation of Legislation Act 1984 (Vic) s 35(b)(iv) allows consideration to be given to ‘any matter or document that is relevant including but not limited to … reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies’. See Long Forest Estate Pty Ltd v Singh [2020] VSC 604, [161] note 36.
J Dixon J stated, and I gratefully adopt, the following statutory interpretation principles:
Applying these principles, I first note that the provisions of Part II of the [SLA] are consumer protection provisions. Section 32 was first introduced into the [SLA] by the Sale of Land (Amendment) Act 1982 (Vic). It provided a list of matters required to be contained in a vendor’s statement that included ‘[p]articulars of any notice order or approved proposal affecting the land’: the progenitor for the present-day s 32D(a). The Attorney — General in the second reading speech did not refer in any way to Commonwealth laws, departments or authorities. Rather, the source of the notion of a vendor’s statement was identified as the final report of the Dawson Committee of Inquiry into Conveyancing Practice in Victoria, delivered in August 1980 (‘Dawson Report’).
The Dawson Report did not suggest that a vendor’s statement would include information provided by Commonwealth departments or agencies. Its emphasis was on the enquiries commonly made in the ordinary conveyancing transaction for a purchaser to satisfy themselves as to the vendor’s title and other matters affecting the land to be conveyed. The report found that the caveat emptor approach that then applied in Victoria had its shortcomings, and relevantly concluded:
The Committee has reached the conclusion that it is desirable that present practice be varied so as to place upon the vendor the onus of providing sufficient information to disclose any defects in title, any mortgages, charges or encumbrances and any restrictions upon the use of land in question.[71]
[71]Long Forest Estate Pty Ltd v Singh [2020] VSC 604, [161], [162] (citations omitted).
During the second reading speech for the Sale of Land (Amendment) Act 1982, the Attorney-General stated:
The proposals contained in the Bill make four important changes to conveyancing practice in Victoria.
The first three of these proposals amend the [SLA] to implement the recommendations made by the [Committee].
…
The second substantial change to conveyancing practice effected by the Bill is to provide for the principle of caveat vendor, that is, that vendors of land are under an obligation to supply sufficient information relating to the property to a purchaser prior to obtaining a signature to a contract of sale. Under the present law, the conveyancing transaction proceeds upon the principle of caveat emptor, that is, the onus is placed on the purchaser to make his own searches concerning the property in question. Furthermore, under present law, there is no obligation upon a vendor to provide any information, except as to latent defects of title or quality, if the purchaser does not seek it.
The committee's view was that the caveat emptor approach has its shortcomings because a purchaser does not have the same ease of access to the information as does the vendor to satisfy himself that a good title, free from encumbrances and other restrictions, can be obtained from the vendor.
The Bill, therefore, implements the committee's recommendation that the present practice be varied so as to place upon the vendor the onus of providing sufficient information to disclose any defects in title, any mortgages, charges or encumbrances and any restrictions upon the use of the land in question.
Proposed section 32(2) lists the matters to be provided by the vendor to a purchaser prior to a contract being signed by the purchaser, and to be included in the contract of sale. As I mentioned earlier, the proposed new contract of sale is designed to provide buyers with the caveat vendor protection contained in the Bill.[72]
[72]Victoria, Parliamentary Debates, Legislative Assembly, 14 September 1982, 222–223 (John Cain, Attorney‑General).
Section 32 of the SLA must therefore be interpreted as a consumer protection provision designed to provide transparent and accurate information to prospective purchasers of land.
The Sale of Land (Amendment) Act 1989 (‘Amendment Act’) amended vendor disclosure obligations pursuant to s 32 of the SLA.[73] Relevantly, it inserted the text that is now in sub‑s 32C(c).[74] Section 1(a) of the Amendment Act includes the following purpose.
[73]At the time, the disclosure requirements were contained in one section: SLA s 32. In 2014, the requirements were expanded across SLA ss 32A-K.
[74]Sale of Land (Amendment) Act 1989, s 5(1)(f); Sale of Land (Amendment) Act 2014, s 4. When it commenced in 1989 the disclosure obligation regarding road access was contained in SLA s 32(ec). That subsection was substituted by s 32C(c) in 2014.
Purpose
1. The purpose of this Act is to amend the Sale of Land Act 1962 to
(a)require vendors of land to disclose additional information to prospective purchasers; and
…
The explanatory memorandum for the Sale of Land (Amendment) Bill 1989 states (with respect to the amendments to s 32 of the SLA):
Clause 5 outlines additional information and warnings about statutory charges, planning provisions, essential services and credit charges to be provided by a vendor to a purchaser before the latter signs a contract for the sale of land.[75]
[75]Explanatory Memorandum, Sale of Land (Amendment) Bill 1989 (Vic), cl 5.
The second reading speech reveals the mischief that the Amendment Act was designed to address:
The Bill provides additional consumer protection to purchasers of real estate in Victoria. Unfortunately the Bill has become necessary because of the actions of a small number of rural developers which have highlighted deficiencies in the existing legislation that have the potential to affect most real estate transactions in Victoria.
In recent years sales advertising techniques favoured by some such developers have tended to be targeted towards unskilled low-income earners lured by visions of country life and encouraged by the cheap, deceptively simple formal sale requirements. In many cases no prior legal advice is sought, leaving purchasers oblivious to local planning policies which might prevent residential occupation or certain other forms of land use. In others, little or no investigation has been performed to assess the availability and cost of connecting services such as water, sewerage, power and so forth.
…
The policy underlying the proposed amendments is that significant reforms in the selling process are needed to ensure that consumers are provided with greater, more timely, and more effective advance disclosures concerning the use to which land forming the subject of a term contract may be put; details of mortgages, particularly where land is to be purchased on terms; the cost of vendor credit, so that the purchasers may readily compare various credit terms available to them from different sources and avoid the uninformed use of credit, and information on whether essential services are connected to the land.
As a result of helpful suggestions made by the opposition parties during debate in the Legislative Council, the original Bill has been modified in its application of the cooling-off provisions to some farming properties and in relation to disclosures about planning and building controls, connected services, road access and details of finance offered by vendors.[76]
(bold added)
[76]Victoria, Parliamentary Debates, Legislative Assembly, 24 May 1989, 1948 (Tom Roper, Minister for Planning and Environment).
It appears that the text analogous to s 32C(c) of the SLA was included as an amendment in the Legislative Council moved by the opposition.[77] The amendment was said to be based on the same principle described in relation to the previous amendment, that it was ‘asking too much of a vendor to expect him or her to supply a list of essential services connected to the land’. It was considered more appropriate to include ‘a list of specific services and to have the vendor indicate in each case whether they are connected to the land’. Regarding road access, the opposition considered that the vendor should explain the position so there could ‘be no doubt about it’.[78] In subsequently discussing the Sale of Land (Amendment) Bill 1989 in the Legislative Assembly, the Attorney-General commented:
On the issue of protecting people, I advise the House that there have been some shonky attempts to sell land to people before they have a proper opportunity of seeing the land and knowing what they can do with it. This is an important social step in protecting people from the unscrupulous end of the market.[79]
[77]Victoria, Parliamentary Debates, Legislative Council, 11 May 1989, 807 (Haddon Storey).
[78]Ibid.
[79]Victoria, Parliamentary Debates, Legislative Assembly, 26 May 1989, 2206 (Andrew McCutcheon, Attorney-General).
As such, it is apparent that consistent with the purpose of s 32 of the SLA, consumer protection was an aim of the amendments (including that which later became s 32C(c) of the SLA), while balancing the extent of obligations placed upon the vendor.
Section 32C of the SLA states that the ‘section 32 statement must contain the following matters in relation to the use of the land’ (italics added). Sub-section 32C(c) of the SLA must accordingly be read in this context, namely that s 32C of the SLA relates to the use of land. This practical element is consistent with the consumer protection purpose of the provision.
Returning now to the meaning of ‘no access to the property by road’ in sub‑s 32C(c) of the SLA. The next issue is the meaning of ‘access’ within the subsection. The Macquarie Dictionary defines ‘access’ as ‘way, means, or opportunity of approach or entry’.[80]
[80]Macquarie Dictionary (online at 26 May 2022) ‘access’ (def 1).
In line with the consumer protection purpose of the legislation, it must be assumed that the access is lawful. If there is no lawful way to approach the property by road, then there will be ‘no access’ within the meaning of sub‑s 32C(c) of the SLA. This interpretation is consistent with the mischief sub‑s 32C(c) of the SLA seeks to address. There may be circumstances where it appears, on an inspection, there is road access to a property, however that does not give lawful access. For instance, where there is a way to the property over private road and it is subject to a licence that has not been granted.
The next issue is the meaning of ‘road’ in sub-s 32C(c) of the SLA. As discussed above, the SLA does not contain a definition of ‘road’. There is nothing to suggest, nor was it contended, that ‘road’ should be limited to ‘public road’. The SLA does not contain any limitation on the word ‘road’ such as by reference to other legislation or ‘public road’. The ordinary meaning of ‘road’ should apply. That is, ‘a way, usually open to the public for the passage of vehicles, persons, and animals’.[81]
[81]Macquarie Dictionary (online at 26 May 2022) ‘road’ (def 1).
Here, the evidence is of a gravel vehicle track leading to the entrance of the property. It runs from the Parwan-Exford Road, across the railway lines, and through the reserve marked ‘R1’. From R1, there is entry to the property. The gravel track is a ‘road’ within the ordinary meaning described above.
The next issue is whether, in the circumstances of the occupational crossing, there is no lawful access to the property. The land of the occupational crossing is vested in a public authority, namely VicTrack. Neither party contends that the gravel track across the occupational crossing is a public road or that members of the public have a right to use it.
Turning now to the nature of the occupational crossing. For the purpose of the ruling, it may be accepted it was constructed in about 1903. At that time, the LCA 1890 was applicable. Section 36 of the LCA 1890 provided:
It shall be lawful for the Board at any time in any case where damages may be sustained by the owner of lands required for the works or undertaking by reason of the severance of such lands from other lands of such owner, or difficulty of access thereto, to give notice to the claimant of its intention to make and maintain any gate bridge or easement road right-of-way crossing passage or other work. And the Board shall be bound to make and at all times thereafter to maintain the said gate bridge easement road right-of-way crossing passage or work for the accommodation of the owners and occupiers of the said lands. And the magistrates arbitrators surveyors valuators or jury in estimating the compensation to be paid shall have regard to such gate bridge easement road right-of-way and work in reduction of the amount which would be otherwise awarded.
There was dispute between the parties as to the interpretation of s 36 of the LCA 1890. The plaintiff says that it only provides for a licence for the registered proprietor of the land at the time, and any further licence must be negotiated with VicTrack. The defendants say that s 36 creates a statutory right-of-way, which runs with the land in perpetuity.[82]
[82]Transcript, 95 and 101.
The words of the statute are consistent with the right to use the crossing running with the land. The obligation to maintain the crossing is stated to be ‘at all times thereafter’. It is ‘for the accommodation of the owners and occupiers of the said lands’. On the other hand, the provision for notice in s 36 of the LCA 1890 is to the ‘owner’ of the land.
Section 36 of the LCA 1890 is now reflected in sub‑ss 43(2) and (3) of the Land Acquisition and Compensation Act 1986 (‘LACA 1986’):
(2) If any person claims compensation under this Act for any loss or damage caused by the severance of the land acquired from other lands of that person, or the difficulty of access to those other lands, the Authority may give notice to that person of its intention to make and maintain a gate, bridge, easement, road, right-of-way, crossing, passage or other work.
(3)Once a notice is given, the Authority and its successors must make and maintain the gate, bridge, easement, road, right-of-way, crossing, passage or work for the accommodation of the owners and occupiers of the lands concerned.
The Land Acquisition and Compensation: Proposals for New Land Acquisition and Compensation Legislation Report (‘Morris Report’) was among the ‘most important’ reviews for the purposes of the Land Acquisition and Compensation Bill 1986.[83] The Morris Report recommended that any new legislation needed to include a provision akin to s 36 of the LCA 1890:
A provision, along the lines of s. 36 of the Lands Compensation Act, enabling an Authority to enter into a legally binding commitment to erect and maintain a bridge or provide a crossing or right-of-way across its land to reduce damages caused by severing other land. (For example stock bridges have been built across the Hume Freeway.) The commitment will have the effect of reducing damages for severance.[84]
[83]Victoria, Parliamentary Debates, Legislative Assembly, 8 May 1986, 2015 (Frank Wilkes, Minister for Housing).
[84]Stuart Morris, Land Acquisition and Compensation: Proposals for New Land Acquisition and Compensation Legislation. Report to the Minister for Planning (Report, January 1983) 99 [709].
There are some differences between s 42 of the LACA 1986 and s 36 of the LCA 1890. The former does not refer to ‘at all times thereafter’. However, it does refer to the ‘Authority and its successors’ which suggests an ongoing obligation. As with s 36, it states the crossing is ‘for the accommodation of the owners and occupiers’ and then refers to the ‘lands concerned’. This is consistent with the obligation being to the owners of the land, that is, not just the registered proprietor at the time, but successive owners and occupiers of the land.
The LACA 1986 came into force after the occupational crossing, and rights acquired under the LCA 1890 continue to apply. Section 14 of the Interpretation of Legislation Act 1984 provides that the repeal of an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision.
The defendants refer to the Rail Management Act 1996 and say, correctly, that s 67L of the Rail Management Act 1996 confers on the Secretary of the Department of Transport a power to close private crossings, extinguishing any ‘private crossing right’ and any interest in land that relates to that right in the nature of an easement or right-of-way.[85] ‘Private crossing right’ is defined to mean ‘any right to use or have maintained a private crossing arising from or by reason of the giving of a notice to a person under section 43(2) of the [LACA 1986] or any corresponding previous enactment’.[86]
[85]Rail Management Act 1996 ss 67L and 67U.
[86]Ibid, s 67J.
However, an owner or occupier of ‘private crossing adjoining land’ that used the crossing or had a private crossing right immediately before the closure becomes entitled to claim compensation.[87] The defendants say that the fact that such a power, subject to compensation, was necessary, shows that Parliament interpreted s 36 of the LCA 1890 as conferring valuable access rights on land owners in perpetuity. There is no evidence to suggest that at the time the defendants made the vendor statement (or indeed at any time since), the defendants were on notice that the Secretary intended to exercise the power in s 67L of the Rail Management Act 1996.
[87]Ibid, s 67V. ‘Private crossing adjoining land’ means ‘land adjoining land on which a private crossing is situated’. To be clear, this would not necessarily entitle the owner of the property to compensation.
There is no evidence of VicTrack providing a licence to use the occupational crossing. If the plaintiff’s construction of s 36 of the LCA 1890 is accepted, then VicTrack would need to keep itself updated as to each time there was a new owner or occupier of the land, and there would be no obligation to maintain the occupational crossing unless a new licence was negotiated. There is no evidence at all to suggest this is the case. Indeed, it was evident from my view that the occupational crossing is maintained by VicTrack. It was evident from my view that the gravel track is regularly used. It was not, for instance, overgrown with vegetation.
Neither party contends that s 36 of the LCA 1890 creates a general right of the public to use the occupational crossing. On the other hand, neither party contends that the public would be trespassing by using the crossing, or indeed the gravel track. I am not satisfied that the public could not lawfully access and use the gravel track for passage. There is no evidence that the gravel track is not usually open to the public. Indeed the evidence suggests the track is usually open to the public. The gravel track fits within the dictionary definition of a road, discussed above. That is, a way usually open to the public for the passage of vehicles, persons, and animals.
Access across the occupational crossing was not restricted, save by a boom gate and a sign. It has been described above. The plaintiff says the sign means there is no ‘unfettered access’. Subsection 32C(c) of the SLA does not state the road needs to provide ‘unfettered access’. The issue rather is where there is no lawful access. At any rate, the signage does not prohibit use of the crossing. Rather, it outlines a process to ensure that the transfer of livestock or heavy machinery over it is done safely. This may be inferred from the notice which requires the user, as a first step, to ‘obtain permission from train control’ on a stipulated phone number. The second step is to quote a reference (presumably the occupational crossing location). The third is ‘when the crossing is clear advise train control’.
I considered whether to invite VicTrack to make submissions but have decided it is unnecessary as I am not making any finding as to whether VicTrack is obliged to maintain the crossing for the benefit of the defendants. That is not the controversy here. The finding is that the language of s 36 of the LCA 1890 is consistent with the right to use the crossing running with the land. Further submissions would result in additional costs and delay. There is no evidence before me that VicTrack would change the position which it and is predecessor body have maintained for over 100 years, namely providing access to the land via the road over the occupational rail crossing. An email dated 26 July 2021 from VicTrack to Mr Cocks states that the crossing is a s 36 occupational crossing.[88] The same email refers to an earlier one, that VicTrack sent to Council in 2010. Apparently the 2010 email referred to an inspection of the crossing indicating ‘the owner of 297 has gated access into his property. On the ground the only access available to the adjoining property, 295 … is also through this gate’. It is convenient to add here that the permit for the subdivision does not make any reference to VicTrack.
[88]Exhibit ‘DC-6’ to the Cocks affidavit.
For completeness, I will reference the land identified as R1. The parties agree that it is not common property. There is no owners corporation registered. The land is vested in Melton City Council. The only purpose for that must be for a right-of-way into the properties. It is not the case that as a consequence of R1 there is no access to the property by road.
It is the plaintiff’s responsibility to prove there is no legal access to the property by road and it has failed to discharge that burden.
In conclusion, the s 32 statement here provided for the defendants to mark by an ‘X’ if there was no such access, and the defendants did not. The defendants were not required to do so. I find it is not the case that there was no access to the property by road at the relevant time, that is, the time that the defendants made the vendor statement. I should add that there is no suggestion that any relevant circumstances have changed since that date regarding road access.
Answers to the plaintiff’s questions
The answers to the questions in the plaintiff’s originating motion and summons are as follows:
(a) Does the statement provided by the defendants pursuant to s 32 of the SLA provide details of the road access to the property?
No, however the defendants as vendors were not required by sub‑s 32C(c) to provide this information.
(b) If the statement provided by the defendants pursuant to s 32 of the SLA does not provide details of the road access to the property, was the Notice of Rescission served on the Defendants on 5 May 2021 effective to terminate the Contract?
No.
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