Highways Act 1951 (TAS)

In the Supreme Court of Tasmania, the matter of Smith v. State of Tasmania [2023] TASSC 50 was heard, involving a dispute over the width of a newly created highway. The plaintiff, Mr. Smith, a landowner, challenged the state's determination of the boundaries of a highway that had been opened on his property. The crux of the case lay in the interpretation and application of the Highways Act 1951 (TAS), specifically the provisions concerning the width and boundary of highways. The legal issues at the heart of the case included whether the statutory presumption regarding the width of a highway applied to the facts of this case, and whether the state had correctly exercised its powers under the Act to determine the boundaries of the highway.

The court found that the statutory presumption of a highway's width, as set out in section 9 of the Highways Act 1951 (TAS), applied unless there was evidence to the contrary. In this instance, the state had not provided any evidence to rebut the presumption that the highway extended to 2.5 metres on both sides of the made way, including the earthworks. Consequently, the court held that the state's determination of the highway's boundaries was incorrect and that the highway's width should be as presumed by law. The court further noted that the state's failure to provide evidence to challenge the statutory presumption was a critical oversight in the process of determining the highway's boundaries.

The court ordered that the state rectify the boundaries of the highway in accordance with the statutory presumption, thereby extending the highway to 2.5 metres on both sides of the made way. The state was also directed to compensate Mr. Smith for any loss or damage caused by the incorrect boundary determination, including costs associated with legal proceedings. This decision underscores the importance of adhering to statutory provisions and providing evidence to challenge statutory presumptions when determining the boundaries of highways under the Highways Act 1951 (TAS).