Fitzgerald and Octopus Group Pty Ltd v Chief Executive, Dept of Tourism, Fair Trading and Wine Industry Development

[2005] QDC 235

IN THE DISTRICT COURT  [2005] QDC 235

OF QUEENSLAND

BRISBANE REGISTRY  No. D3925/04

BETWEEN:             NIGEL FITZGERALD

  

AND

  

OCTOPUS GROUP PTY LTD

Appellants

AND:  CHIEF EXECUTIVE

  

DEPARTMENT OF TOURISM, FAIR

  

TRADING AND WINE INDUSTRY

  

DEVELOPMENT

Respondent

BEFORE HIS HONOUR JUDGE I. McG. WYLIE Q.C.       

JUDGMENT

Delivered:      20 May 2005

1. This appeal is against the decision of JE Gallaghan QC, member of the Commercial and Consumer Tribunal, confirming the original decision of the respondent rejecting an application by the appellants for a restricted letting agent’s licence which would authorise the agent to perform its relevant activities in more than one building complex as defined in Schedule 3 of the Property Agents and Motor Dealers Act 2000. By s 111(4)(a) such authority can only be authorised if –

“(i)each building complex is on land contiguous to land on which another building complex in relation to which the letting agent is, or is to be,  authorised to perform the activities is situated.”

While s 111(4) defines the word “contiguous” in s 111(4)(a) thus –

“land is ‘contiguous’ with other land only if the parcels of land have a common boundary that is not separated by a public road.”

1. The application was made to enable the appellants to pursue the management rights to two building complexes – collectively known as Arbour on Grey – one of which is on each of two corner blocks of land facing Grey Street at the intersection of that street and Ernest Street, South Brisbane.  Two questions arise for decision –

   (i)         Is the relevant portion of Ernest Street a “public road”; and

   (ii)       What is the meaning of “contiguous”?

2. Both Grey Street and Ernest Street have long been in existence.  Grey Street was a main thoroughfare into the city and trams and buses ran along it.  Ernest Street crossed it at right angles, connecting Cordelia Street and Stanley Street.  So much is within my knowledge and experience.  The 1988 World Exposition took place in that area of South Brisbane and changed its face.  The Southbank Corporation Act 1929 established the Corporation and provided that it represented the State (s 8).  It exercises its objects, functions, powers and duties in respect of the area shown in Schedule 2 to that Act.  The two building complexes are built on land which is part of the Corporation area and the roads (as now existing) are also in that area.  Again, it is within my experience that the ordinary motorist may drive along Grey Street and Ernest Street within the area without apparent restriction and without seeking permission from the Corporation.

1. The term “public road” is not defined anywhere in the Southbank Corporation Act nor is it defined in the Acts Interpretation Act 1954 for the purpose of all Acts. There are, of course, statistics which for their own purposes specially define a term such as “road” or “public road”. However it would be wrong to rely on any such special definition in the search for an answer to the present question.

1. The South Bank Corporation Act does in Part 3, Division 2, deal with road closures, surrenders, vestings and titling “other than roads” but is not in any way helpful to search for an answer to the present problem.  Part 6 is more helpful.  Section 40 provides for the permanent closure of any road in the Corporation area.  That having occurred, s 41 provides for the opening of roads in the Corporation area.  Section 41(1) commences by defining the meaning of “road” in that section:

“’road’ means (for the purposes of the definition ‘access’ only) –

(a)       a street or a road dedicated to public use … and

(b)an access way that permits the movement of people and, where appropriate, vehicles.”

“Access” in that section “means practical means of entry and exit for persons and, where appropriate vehicles, from a road that abuts the area or Southbank lot concerned …” Section 41(3) then provides that roads in that defined sense “may be opened under this Act”.  I will not set out the following subsections.

1. The appeal commenced with the appellant’s recognition that Ernest Street (which is between the two complexes) is a road under the control and/or ownership of the Southbank Corporation and so not a “public road” as it has not been dedicated to the use of the public.  The respondent’s submission was that “the land which severs the complexes” (Ernest Street) “is a public road”.

1. The decision of the High Court in Permanent Trustee of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401 was referred to. There the question was quite different to that here as the NSW Act served a quite different purpose to either of the Queensland Acts. The judgments of Kitto, Menzies and Windeyer JJ contain numerous observations as to what might make a “public road” or “a road the public is not entitled to use”. The most significant are those of Windeyer J – a noted legal historian – at p 420 –

“It is the public right to use the land as a way, rather than its physical nature, that makes land a highway (Harrison v. Duke of Rutland (1)).  At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication.  With some exceptions, any landowner, absolutely entitled in fee simple is, at common law, competent to dedicate land as a road.  The main exceptions are mortgagors, who require the consent of their mortgagees, and trustees and bodies corporate if they are not empowered to do so.”

And that at p 422 –

“It has been said that any act which unequivocally indicates an intention on the part of the owner of land to abandon to the public right of passage over it will be effectual as a dedication …  But once the intended dedication had been accepted by the public a public right of way, a public road, a highway came into existence (Attorney-General v The City Bank of Sydney (1920) 20 SR (NSW).  The landowner could no longer deny to the public what he had dedicated.”

1. At the initial hearing, the respondent noted that the part of Ernest Street in question is situated on land owned by the Corporation and is 23.5 metres wide – over 100 links wide in the very old surveying measurement.  Ms Gray, the Corporation’s special projects manager, gave evidence before the Tribunal (at p 16) which I consider establishes that the Corporation still regards the relevant part of Ernest Street as belonging to it.  It does not seem to have taken any positive step to disabuse those members of the public as to any mistaken views held as to their “right to use” the roadway.  I am not prepared to find on the balance of probabilities that it has abandoned its ownership of the relevant part of Ernest Street.  It has not yet evinced its intention to dedicate it, even if it allows the Brisbane City Council some parking policing right.

1. I do not agree with Mr Gallagher QC, the member, that, for the purposes of s 11 of the Licensing Act, a road does not have to be dedicated as a public road to be a “public road”.  It is still in my view a “private road” although it may be that others than the Corporation and its licensees may use it without apparent objection.

1. However contentious that result may be from the appellant’s viewpoint, the more serious question is whether or not the two complexes on corners of the intersection are “contiguous”.  Mr Gallagher QC was not satisfied that they were because the two parcels of land are separated by Ernest Street and do not have a common boundary.  He said –

“In my opinion, the clear meaning of the word in section 11 is “touching or sharing a common border”.  I do not think that such common border can be founded on a legal right to a shared common easement.  That is clearly not envisaged by the reference in sub-sec(s) to a common boundary not separated by a public road.  I agree with the submission of the Chief Executive that a common right of access over third party land does not convert non-contiguous land to land that shares a common boundary.”

The member was not satisfied that the easements or the Corporation through which the easements (underground tunnels) were located provided a common boundary.

1. “Contiguous” in s 111(5) is used in its ordinary sense.  The Maquarie Dictionary gives two senses of the word:

“1.        touching, in contact.

2.        in close proximity without actually touching; near.”

These definitions are almost the same as mentioned in the Oxford English Dictionary.  In my opinion the two boundaries in Ernest Street, being separated by more than the length of a cricket pitch, are not so close to each other as to permit the two parcels of land to be described as “adjoining” or so close to each other that some small separation is of no moment.  “Contiguous” is not the same as the looser “neighbouring”.

1. It may be that two building complexes on the same parcel of land and separated by a “private road” would fall within s 111(4) but here the complexes are not on the same land and are not “contiguous” because they do not have a common boundary and they  are not separated by public road.

1. The appeal is dismissed.

1. I invite written submissions as to what, if any, order as to costs I should make.