Howard Finance Pty Ltd v Yarra City Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2018 00480

HOWARD FINANCE PTY LTD (ACN 122 783 804)	First Plaintiff
and
ROTUNDA HOLDINGS PTY LTD (ACN 005 671 527)	Second Plaintiff
v
YARRA CITY COUNCIL	First Defendant
and
THE REGISTRAR OF TITLES	Second Defendant
and
BUBBULL PTY LTD (ACN 117 363 658)	Third Defendant

---

JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 – 3 June 2020, 27 - 30 July 2020, 6 August 2020
DATE OF JUDGMENT:	25 September 2020
CASE MAY BE CITED AS:	Howard Finance Pty Ltd v Yarra City Council
MEDIUM NEUTRAL CITATION:	[2020] VSC 610

PROPERTY – Declarations sought that lane is not a public highway - Onus of proof - Whether presumption of dedication arose from long use by the public - Whether rebutted by evidence including as to installation of gate(s) - Alternatively whether lane was a road by reason of being a right of way under the Local Government Act 1989 (Vic) s 3 - No declarations made – Anderson v City of Stonnington (2017) 227 LGERA 176 applied – Mayberryv Mornington Peninsula Shire Council (2019) 59 VR 383 cited – Road Management Act 2004 (Vic) s 3, sch 5 sub-cls 1(4), 1(5).

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T Sowden	Nicholas O’Donohue Lawyers
For the First Defendant	Mr P Chiappi	Maddocks

Table of contents

Introduction

Onus of proof

Analysis

Public Highway

Legal framework
Laying out of the lane from 1851
Findings

Public use according to witnesses (from 1950s)
Findings

Physical features of lane
Findings

Gate(s)
1989-1990
Whether gate(s) earlier than 1970
Mr Willingham
Mr Butler
Submissions
Findings

Council role
Conclusion on public highway
Plaintiffs’ submissions
Council’s submissions
Analysis

Adverse possession

Right of way

Analysis

Conclusion

ANNEXURE A

HER HONOUR:

Introduction

The plaintiffs seek, inter alia, declarations that a lane located on the northern boundary of the plaintiffs’ land (the lane) is not a road or a public highway for the purposes of the Local Government Act 1989 (Vic) (the LGA), the Road ManagementAct 2004 (Vic), (the RMA) or the common law.

The (asphalt) lane separates number 13 Brunswick Street Fitzroy (number 13) from number 15 Brunswick Street Fitzroy (number 15). It spans the entire length of the two properties. It also connects Brunswick Street at the eastern end and a rear right of way at the western end. The right of way provides vehicle access from Fitzroy Street (via Princes Street) to the rear of buildings at numbers 11-17 Brunswick Street. The lane is some 40 metres in length and approximately 1.2 metres in width, and is depicted in Annexure A, in 1898,[1] and in 2019.[2]
[1]Expert report of Graeme Butler, 12 August 2019: Figure 42 taken from MMBW Detail Plan 1206 dated 1898. A 1935 update of the plan was also in evidence.
[2]Ibid: Figure 3 taken from Google Maps in 2019.

There are four issues raised:
·first, who has the onus of proof;
·secondly, whether or not the lane is a public highway consistent with the principles outlined in Anderson v City of Stonnington(‘Anderson’);[3]
·thirdly, whether the lane is a road because it is a ‘right of way’, consistent with the principles outlined in Mayberry v Mornington Peninsula Shire Council (‘Mayberry’); [4]
·fourthly, whether the plaintiffs were entitled to relief that the lane comprised part of their land on the basis of adverse possession.[5]
[3](2017) 227 LGERA 176 (‘Anderson’).
[4](2019) 59 VR 383 (‘Mayberry’).
[5]In their further amended statement of claim dated 4 June 2020, the plaintiffs had also sought a declaration that the Council was estopped from opening the lane to the public as a road, in part D of the prayer for relief. However, this claim was abandoned pursuant to an email from the plaintiffs’ counsel on 30 July 2020.
In fact, the crucial issue in the case was whether the lane was a public highway since the plaintiffs accepted that they had ‘lost the case’ if the lane was a public highway (the relevant concession).[6]
[6]Transcript of proceeding, 6 August 2020, 460.24-6.

The plaintiffs in the case were trustees of two superannuation funds. Doctors Dwyer and Dobson, gynaecologists, were directors of those trustees and became registered proprietors of number 13 on 23 October 1989 as tenants in common in equal shares. The doctors operated a medical practice at the premises following renovations completed in 1990. On 6 June 2007, the doctors transferred their interest in number 13 to the plaintiffs.

The first defendant , the Yarra City Council (the Council), has recorded the lane on its register of roads and opposed the relief sought on the basis, inter alia, that the lane was a public highway.

The second defendant, the Registrar of Titles, did not participate in the proceeding.[7]
[7]See correspondence from the Registrar of Titles dated 12 February 2018.

The third defendant, Bubbull Pty Ltd, was the registered proprietor of number 15. Given, in particular, the inclusion of claims for adverse possession, it was joined by orders dated 3 June 2020 following the commencement of the trial. It subsequently advised that it did not wish to participate in the proceeding, and that it would abide by any order of the court.[8]
[8]See correspondence from the third defendant’s solicitors, GP Lawyers, dated 18 June 2020.

The court conducted a view and received evidence from 14 witnesses. The plaintiffs called evidence from four lay witnesses,[9] including the two doctors, particularly as to the recent history of the lane since 1989. The Council called seven witnesses who gave evidence as to the use of the lane from the 1950s.[10] It also called Ian Gilbert from the Chief Executive’s Office of the Council.
[9]Peter Dwyer, Peter Dobson, Anastasia Mountjoy and John Dwyer.
[10]Anthony Orr, Steve Phillips, Phillip Phillipou, Miles Lewis, Michael Glynatsis, Gregory Hocking and Bronwyn Paltoglou.

Each party also called an expert witness with architectural qualifications. Thus, the plaintiffs adduced evidence from Mr Willingham, who gave evidence as to the historical laying out of the lane (which was largely uncontested). However, he also gave evidence as to when gates were installed at each end of the lane which was contested by the Council’s expert, Mr Butler.

For reasons expressed below I have determined that the lane is a public highway with the result that the proceeding will be dismissed.

Onus of proof

The declarations sought by the plaintiffs relevantly included:

A. Declarations that the lane … is not:
(i) a “road” within the meaning of the Local Government Act 1989;
(ii) a “road” within the meaning of the Road Management Act 2004;
(iii)a road or a public highway within the meaning of the common law.[11]

[11]In their further amended statement of claim dated 4 June 2020, the plaintiffs also sought relief in relation to the inclusion of the lane in the register of roads, at parts B and C of the prayer for relief. However, this relief only followed if the plaintiffs were successful in obtaining the declarations the subject of A: see paragraphs 16 and 17.

The plaintiffs’ position on onus was a little unclear. Although they accepted that they had the onus of proving the factual basis of any declarations sought,[12] they also cited a statement in Anderson which suggested that, but for a concession, the onus would have been cast on the defendant/council in that case.[13]
[12]Outline of submissions of the plaintiffs, 5 August 2020, [5].
[13]Anderson (n 3) 199 [86].

The plaintiffs also submitted that it was not onerous to discharge the onus in this case, since, in Mayberry, it was held that the plaintiff discharged its onus by tendering the relevant certificate of title (which did not identify the disputed land as a public highway or road).[14] The same reasoning was said to apply to this case.
[14]Mayberry (n 4) 389 [16].

The Council submitted that the plaintiffs had to exhaust the possibilities and show that the claim (that the lane is a public highway or road) cannot possibly be supported.[15]
[15]Citing Hume v Munro (No 2) (1943) 67 CLR 461, 474 (‘Hume’), quoted in Haritos v Commissioner of Taxation (2015) 101 ATR 259, 265 [24]-[25] (‘Haritos’).

The Council also noted that there was no title produced for the lane, so that Mayberry was not relevant.

Both parties accepted that, if the Council bore any onus of proof, a ‘presumption of dedication’ could still arise if long-use was established. In this event, the evidentiary onus would shift to whether there is sufficient evidence to rebut that presumption.

Analysis

It is well established that a plaintiff seeking declaratory relief has the burden of proof of any matter which is a necessary element of the declaration sought.[16] Thus, it is for the plaintiffs to exhaust the possibilities and show that the lane is not a public highway or road.[17]
[16]Haritos (n 15) 265 [24]-[25]. See also Mayberry (n 4) 389 [15].
[17]Haritos (n 15) 265 [24]-[25]; Hume (n 15) 474.

I also do not accept the plaintiffs’ submission that the current case can be analogised to Mayberry. The relevant party discharged the onus in that case by tendering copies of the relevant certificates of title which proved that they were registered proprietors of the disputed land, and thereby had indefeasibility of title under the Transfer of Land Act 1958 (Vic) (the TLA).

This does not assist the plaintiffs in the current case where no title was produced in respect of the lane itself, and it was common ground that the lane remained general law land despite the fact that numbers 13 and 15 were brought within the TLA.

Insofar as Anderson is concerned, the subject of that case was a lane in South Yarra abutting the ‘Lovers Walk’ walkway. A key feature of the case was that the parties had provided a statement of agreed facts which included a critical ‘long user agreed fact’ that:

The [Lane] has been used as a public pedestrian access to Lovers’ Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed as a laneway, or alternatively for a long period of time.

This fact was considered highly significant as highlighted in the following passages of the court of appeal’s decision:[18]

85 We agree with the applicants’ submission that the question of dedication cannot be considered in a mechanistic fashion and must be resolved on the basis of the evidence as a whole. However, the detailed evidentiary analysis that is usually required to determine the nature and duration of the public’s use of land, in order to determine whether an inference of dedication can arise, has been rendered unnecessary in this case by the Long User Agreed Fact. That fact, on its own, is sufficient to give rise to a presumption of dedication which has the effect of shifting the evidentiary focus to whether there is sufficient evidence to rebut the presumption.
86 Accordingly, in the present case, the question for the judge was not whether the respondents had adduced sufficient evidence to establish that one of the owners of the Lane, knowing that the public used the Lane, acquiesced in that use. Rather, it was whether there was evidence which rebutted the presumption of dedication. Furthermore, as the Long User Agreed Fact covers a period of public use which we have treated as having commenced in 1917, the applicants’ focus on VicTrack’s knowledge and conduct since it acquired ownership of the Lane on 30 June 1996 is misconceived.

[18]Anderson (n 3) 199 [85]-[86].

Although the first sentence in paragraph 86 might suggest that the defendants in that case bore an onus, the court was not concerned with an overall onus question given the significance of the ‘long user agreed fact.’ Moreover, as the last sentence of paragraph 85 makes clear, this fact of itself gave rise to a presumption of dedication which thereby shifted the evidentiary focus to whether there was sufficient evidence of rebuttal.

The result is that, in accordance with well-established principles, the plaintiffs bear the onus to prove that the lane is not a public highway or road. The only qualification to this is that, given the Council in this case positively asserted that a presumption of dedication arose by long use it may, as proponent of this issue, bear an evidential burden.[19] Nevertheless, if the presumption arises, the evidentiary focus will again then shift to whether there is evidence of rebuttal, consistent with Anderson.
[19]St George Bank Limited v Quinerts Pty Ltd [2009] VSCA 245, [22].

Public Highway
Legal framework

The RMA defines ‘road’ to include ‘any public highway’, which in turn is defined as ‘any area of land that is a highway for the purposes of the common law’.[20]
[20]Road Management Act 2004 (Vic) s 3(1) defs ‘road’, ‘public highway’.

Subclause 1(4) of sch 5 to the RMA further provides, subject to limited exceptions, that a road vests in fee simple in the relevant municipal council.

Thus, as accepted by the plaintiffs, if the lane is a public highway it vests in the Council in fee simple and the plaintiffs cannot claim title by possession.[21] Consistent with the relevant concession, there would be no utility in considering the position under the LGA.
[21]Outline of submissions of the plaintiffs, 5 August 2020, [3].

Nevertheless, s 3(1) of the LGA also defines the concept of a ‘road’ to include:

…
(b) a right of way;
…
(ca) a public road under the RMA; and
…
(d) a passage.

In Anderson the court found that, although the trial judge made an error in relation to the applicability of (ca) of the above definition, she correctly found that the lane had been dedicated as a public highway. This in turn meant that the lane qualified as a road within the LGA even if it did not fall within any of the enumerated categories.[22] Further, that it qualified as a ‘way over which the public was entitled to pass’ and hence satisfied the essential feature of a ‘right of way’ under paragraph (b).[23]
[22]Anderson (n 3) 222 [200], although the lane in that case also accommodated vehicular traffic.
[23]Ibid [201].

The above reasoning would also appear to apply in this case (and the plaintiffs did not suggest otherwise) such that the lane would also be a road under the LGA if it has been dedicated as a ‘public highway.’ It is further unnecessary to consider whether the lane also qualified under (ca) - which appeared to be pleaded by virtue of paragraph 13 of the Council’s amended defence (though no submission was made in support of this).

Accordingly, consistent with the relevant concession, the plaintiffs will not be entitled to their declarations if the lane is classified as a ‘public highway’.

As highlighted in Anderson, a ‘public highway’ need not be a main road or even a thoroughfare. Rather, a highway is a way over which ‘all members of the public are entitled to pass and repass on their lawful occasions.’ [24]
[24]Anderson (n 3) 187 [39], citing City of Keilor v O’Donohue (1971) 126 CLR 353, 363 (Windeyer J).

A public highway is created at common law when two requirements are satisfied. First, a competent landowner must have manifested an intention to dedicate the land as a public highway and, secondly, there must be an acceptance by the public of that dedication.[25]
[25]Anderson (n 3) 187-8 [40].

Here there is no evidence of the express intention of the owner of the lane to dedicate the lane, and no other overt act such as the designation of the land as a road on a plan of subdivision.[26]
[26]See, e.g., Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401; Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504 (‘Templestowe’); Bass Coast Shire Council v King [1997] 2 VR 5.

Rather, the Council led evidence of open and ‘long use’ by the public. Thus long and uninterrupted use of the land by the public gives rise to a presumption of dedication such that, in the absence of evidence to rebut it, the inference will be drawn that the use was with the knowledge and acquiescence of the owner.[27]
[27]Anderson (n 3) 188 [43].

A key issue in this case was whether there was a dedication based on long use. Given the second limb of the test (i.e. acceptance) also turned on acts of the public, the first limb became highly significant.

The relevant principles concerning whether a relevant presumption will arise may be set out as follows:
·what constitutes ‘long user’ depends on the circumstances of each case, and there is no fixed minimum period.[28] However, long user has been found where there was only some 10 years of uninterrupted public use;[29]
·where a lane has had multiple owners, a person who relies on long use need not prove the identity of the owner from whom the dedication first proceeded;[30]
·in considering use it is also relevant to consider the layout of the road, e.g. whether it is well defined, fenced off, and leading from one highway to another;[31]
·evidence can further include contemporary maps and plans;[32]
·however, continual trespassing cannot create a public road. Rather, the evidence must raise an inference that the owner dedicated the road to the public.[33]
[28]Ibid [44]. See also Highways Act 1980 (UK) s 31, which presumes dedication after 20 years of actual public enjoyment as of right.
[29]Grand Surrey Canal Co v Hall (1840) 1 M. & G. 392, 404.
[30]Anderson (n 3) 188-9 [45].
[31]Everingham v Penrith Municipal Council (1916) 3 LGR (NSW) 74, 79, cited in Anderson (n 3) 190-1 [53]; Newington v Windeyer (1985) 3 NSWLR 555, 562 (‘Newington’).
[32]Newington (n 31) 562.
[33]Ibid 559, cited in Anderson (n 3) 189 [47].
In Anderson, the court found that the ‘long user agreed fact’ gave rise to a presumption that the lane had been dedicated as a public highway. As highlighted above, this then shifted the evidentiary inquiry to whether there was evidence which rebutted the presumption. Such rebuttal evidence may include:
·an explanation for the user which is inconsistent with an intention to dedicate;[34]
·evidence that the owner of the land granted permission or licence since permission is the antithesis of the right to enter which is the hallmark of the public highway;[35]
·a single act of interruption of the owner, which will be of more weight than many acts of enjoyment.[36]
[34]President of the Shire of Narracan v Leviston (1906) 3 CLR 846, 872 (‘Leviston’), cited in Anderson (n 3) 190 [52].
[35]Anderson (n 3) 189 [49].
[36]Leviston (n 34) 856.
In terms of the second limb of the test, public acceptance may be inferred from public user of the way.[37] Acceptance by the local authority is not essential.[38]
[37]Owen v O’Connor (1963) 9 LGRA 159, 169 (‘Owen’); Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401, 423.
[38]Owen (n 37) 169.

Finally, once land has become a public highway it retains that status irrespective of whether the title discloses that status. Its status cannot thereafter be changed and will not be affected by the public ceasing to use it.[39]
[39]Anderson (n 3) 191 [54].

In the present case, the Council submitted that an intention to dedicate was demonstrated by the historical evidence regarding the laying out of the lane, without any evidence of the owner seeking to confine its use by the public. It also relied on the direct evidence of public use from the 1950s.

The plaintiffs denied that any presumption of dedication arose, but said that there was evidence of rebuttal in any event. Such rebuttal evidence included the physical characteristics of the lane (which showed it was never intended to be anything other than private); the presence of a gate or gates; and the lack of council maintenance.

Consistent with the approach approved in Anderson, the question of dedication will not be considered in a mechanistic fashion, but will be resolved on the basis of the evidence as a whole. It was agreed by the parties that the evidence largely fell within five categories concerning: the laying out of the lane; the direct evidence of actual use; the physical characteristics of the lane; the presence of a gate or gates; and the role of the Council.

It is therefore necessary to engage in a relatively detailed evidentiary analysis before resolving the question of dedication and acceptance, below.

Laying out of the lane from 1851

The parties helpfully agreed on a relevant chronology surrounding the laying out of the lane.[40] This was largely based on the detailed historical evidence of Mr Willingham based on early survey plans, historical texts, and newspapers.
[40]A joint chronology was provided by the parties on 31 July 2020.

On 25 April 1842, William Underwood and Thomas Bennet acquired land with a frontage of 82 feet 6 inches to Brunswick Street in Fitzroy. The land was subdivided into 3 lots, the third lot having a frontage of 16 feet (the lot). According to Mr Willingham, the lot was likely to have been intended as part of a through road running from Little Brunswick Street (now Fitzroy Street) to Brunswick Street.

At some time between April 1843 and December 1850, the lot was acquired (or otherwise taken control of) by a Francis Clark, a butcher and proprietor of the Devonshire Arms hotel on Little Brunswick Street (now Fitzroy Street). There was no record of this conveyance.

On 4 January 1851, Mr Clark conveyed the lot to an Edward Grimes (via an interim purchaser, Henry George Ashhurst), reserving ‘a foot road or path way 4 wide on the N side of the land’ for Mr Clark’s benefit in his occupation of premises in Little Brunswick Street (a butcher shop) and for the Devonshire Arms hotel (constructed in 1843, and licensed in 1845).

As confirmed by Mr Willingham, this reservation effectively created the lane, a four-foot wide footway leading from Brunswick Street to align with Princes Street, from which the Devonshire Arms hotel and Mr Clark’s butcher shop could be accessed.

Mr Willingham opined that, from the outset, the footway was never configured as a public highway, rather it was a privately created thoroughfare for the exclusive benefit of Mr Clark. Its inception as an easement was also emphasized by the plaintiffs generally.

As highlighted by the Council, the lane was recorded in several sources in the 1850s, consistent with it existing as a separate physical thoroughfare. It was described as a ‘footway’ or ‘right of way.’

The Council also suggested that the lane provided ready access between two streets populated with houses and businesses. This was supported by the evidence of Mr Butler who identified the numerous people who lived and worked in Brunswick Street and Fitzroy Street from 1860. This included a boot company, who employed a large work force (and was located at what is now 20-22 Brunswick Street, from 1873). The potential for foot traffic further increased later with the opening of the Melbourne cyclorama in 1889, as well as St Vincent’s hospital in 1893.

Mr Willingham also accepted that the lane provided convenient access between places to the east and places to the west (though he considered that it was later closed off to prevent access after dusk by installation of gates, which is considered below).

On 5 July 1865, the (16 foot) lot was conveyed from Mr Grimes’ substitute executor to an Edward James Crockford, again reserving the right of footway for Mr Clark’s benefit.

On 5 June 1866, Mr Crockford sold to a Robert Byrne, ‘an allotment of land having a frontage of 12 feet to Brunswick Street Fitzroy by a depth along a four feet right of way to another right of way at the back of 132 feet (more or less)’ (as recorded in a receipt). The lane was excluded from this conveyance.

Mr Willingham gave evidence that Mr Crockford had also been acting as Mr Grimes’ executor, and was only an intermediate party in the conveyance from Mr Grimes’ estate to Mr Byrne. While the Council noted slight doubts as to the role of Mr Crockford, both parties ultimately accepted that the lane remained in the hands of Mr Grimes’ estate (including his later successors or assigns) and did not pass from there.

There is no evidence that Mr Grimes/his executors intended to retain the four foot lane for a private benefit after parting with the 12 foot lot. The physical characteristics of such a narrow piece of land had very little intrinsic utility. The reference to the lane as one of two ‘rights of way’ is also consistent with the lane being a thoroughfare.

At some point in 1866, Mr Byrne applied to bring the entire 16 foot lot, (which for some reason included the lane) under the Torrens system. However, this application was rejected on 19 May 1870 owing to concern as to whether Mr Clark was in possession of the land in 1851.

By 1871 the Westminster hotel was established on number 15. It was later put up for sale in December 1902 at which time an advertisement recorded that the hotel had a ‘right of way at side.’ The Council highlights that this suggests the footway was there to benefit the public ie it was not shut by a gate or restricted to invitees of different premises.

On 26 November 1875, number 15 was converted to the Torrens system. The title plan shows a ‘Way’ along the south boundary of the land.

On 6 April 1881, Mr Byrne made a second application to have the ’16 feet frontage to Brunswick Street, subject to an easement over the Northernmost 4 of it’, brought under the Torrens system.

On 3 April 1882, a new certificate of title was issued to Mr Byrne for an adjusted frontage of land 11 feet 11 inches wide ‘together with a right of foot way over the way delineated and coloured brown’. Thus the lane was not included in the new title but rather an easement was given instead. The reason for the grant of this right is unexplained. However, the Council says it is not inconsistent with an existing public right of way, citing Anderson.[41]
[41]Anderson (n 3) 199-200 [89].

On 28 June 1884 the Mercury and Weekly Courier reported that the Fitzroy City Council received a complaint from local boot makers, Roelens and Burdett, then of 14 Brunswick Street, calling attention to the ‘bad state of the lane.’ The City surveyor was asked to report on the issue.

Consistent with evidence of Mr Butler, this report tends to suggest that council was considered to be the custodian of the lane. However, as seen below, I am unable to also infer that this necessarily shows that the lane was being used and/or the extent of any use, including by employees of the boot makers.

On 5 June 1888, Mr Byrne consolidated his 11 feet 11 inches parcel with another narrow parcel of land to the south. This new certificate of title included reference to a ‘right of footway over the way delineated and coloured brown’ with the two lots now comprising number 13.

On 27 July 1892, a James Richard MacInerney became the registered owner of number 13 and constructed the current building in 1892/1893. The certificate of title recorded his entitlement as including ‘a right of footway over the way delineated and coloured brown on the said map’ consistent with the earlier grant of the easement.

On 7 April 1893, the Fitzroy City Press reported that:
·Dr MacInerney applied to the Fitzroy City Council ‘for permission to place a gate at the entrance to the passage through to Fitzroy Street’;
·the Fitzroy City Council denied the application on the ground that ‘the Council has no power to give permission to any person to enclose or obstruct any public lane or passage’;[42]
·Dr MacInerney ‘stated that something must be done in the matter, as the lane was a refuge of vagabonds and drunken persons at all hours of the night; and if a gate was refused a lamp would, no doubt, act as a substitute. This suggestion was met favourably, and a step in this direction will shortly be taken.’
[42](emphasis added).
The plaintiffs submit that the use complained of (vagrancy) cannot be said to be inconsistent with the easement given to Mr Clark who owned the Devonshire Arms hotel. Further, that both the Fitzroy City Council and Dr MacInerney were mistaken as to the status of the lane. However, the Council submits that this is further evidence of public use given the Fitzroy City Council’s position at the time was that the lane was a ‘public lane or passage.’

I consider that the response of the Fitzroy City Council to Dr MacInerney’s application supports that the lane was reputed to be a ‘public lane or passage.’ There is nothing to suggest a ‘mistake’ was made, particularly given that council had also been seen as custodian of the lane in 1884. In fact, similar such evidence was taken into account in Owen v O’Connor where the court drew an inference that the lane was ‘reputed a public lane’ by reason of a request to council to name it ‘College Lane’.[43]
[43]Owen (n 37) see especially 169.

On 16 November 1893, the Mercury and Weekly Courier reported an application to council ‘to erect three poles down Fitzroy Street to carry a current along a right-a-way to Brunswick-street, to light the shop of Mr Ziebell, chemist …’. Mr Butler agreed that if permission had been granted then that would have occurred at Mr Ziebell’s expense.

As reported by Mr Butler, in 1919 The Age newspaper reported on ‘The Fitzroy Vendetta’, where Constable Danaher was speaking to ‘Joe the Pieman’ when he heard a shot fired. Further shots then rang out. The two men then ‘ran along Brunswick-street to a lane leading from the Westminster Hotel to Fitzroy-street’ and spoke to a man who said he did not think the shots were fired in Victoria Parade. Joe the Pieman then called out ‘there goes a motor car.’ ‘The constable, who did not see the car, turned into a lane, and came to Fitzroy-street, where some people looking out of an upstairs window in the Devonshire Hotel [said] the shots were fired somewhere in the vicinity’.[44]
[44](emphasis added).

Mr Butler suggests that this supports that the lane was in open use in 1919. However, the plaintiffs suggested that Joe the Pieman would not be expected to have sought permission to enter the lane in the circumstances.

Findings

The key findings which can be derived from the above (largely agreed) chronology are that:
·the lane was created as an easement for the private benefit of Mr Clark in his occupation of the Devonshire Arms hotel and a butcher shop in 1851;
·there is no evidence that the true owner of the lane intended to retain it for a private benefit in 1866. Further, the reference to the lane as one of two ‘rights of way’ was consistent with its existence as a separate physical thoroughfare;
·the lane’s existence as a separate physical thoroughfare from the 1860s provided ready access between two streets populated with businesses and houses;
·there is no suggestion that the lane was closed off or inaccessible from 1851;
·the lane was reputed to be a ‘public lane or passage’ by 1893.
There was little evidence as to what happened in relation to the lane after 1919, and before the early 1950s.

However, as will be seen below, Mr Butler’s evidence (which I accept) was that the key document that records the physical changes on the site, being the Melbourne and Metropolitan Board of Works Detail Plan 1206 dated 1898 (the MMBW 1898 plan) and its 1935 update, did not show a gate on the footway between the 1890s and the mid-1930s.

Moreover, even if a gate was installed in the late 1930s or the 1940s (which Mr Butler said was possible), the evidence does not establish that it was ever locked, or even shut.

Public use according to witnesses (from 1950s)

The Council called a number of witnesses who gave evidence of their use of the lane from 1954 up until the early 2000s. Such evidence will also be assessed in the light of my finding of fact, below, that the lane was enclosed in around 1989/1990 when the doctors completed their renovations.

Steve Phillips lived on Brunswick Street and Gertrude Street. He used the lane both during the day and at night from around 1954 until 1972. He used the lane to go to school at Rathdowne Street primary school, to go to the exhibition building, to avoid the corner of Brunswick Street and Gertrude Street with its ‘rough’ hotels, to go to the hospital, and to access the milk bar situated at number 13. He recalled observing many of the people who lived in his parents’ boarding houses (at 27 and 29 Brunswick Street) using the lane to access the hospital. He also recalled public use of the lane to access the milk bar which had a side door in the lane that was used by ‘everybody’ as an entrance. He said his use of the front (Brunswick Street) entrance to the milk bar was ‘rare’. The lane was also used for deliveries to the milk bar. He was never prevented from using the lane and it was never closed off. There may have been a gate, but it was always open. He returned to the area in 1989 to find a gate closing the entrance of the lane.

Mr Phillips was an impressive witness with clear recollections of his use of the lane which he maintained under cross examination. For example, when it was suggested that he would only be going to the hospital infrequently, his response was that he was actually a Victorian Police boxing champion and therefore got into a ‘few scrapes.’ His memory of when the gate was shut was also consistent with the preponderance of the evidence in the case.

Phillip Phillipou was Steve Phillips’ younger brother. He has lived in Fitzroy his whole life, some 66 years. He used the lane during the day and night from the late 1950s until it was blocked off. He used the lane as a cut through to the hospital, the milk bar, the Carlton Gardens, and the Melbourne City Baths. He observed similar use of the lane by his family, neighbours, and members of the public. He could not recall whether there was a gate, but if there was it was not closed or locked. His evidence was that the lane was closed off at the same time as the plaintiffs carried out renovations on number 13. In his recollection, this was in the mid-1990s.

Again, Mr Phillipou was a generally straightforward witness who gave evidence of extensive use of the lane. Although there were some deviations with his account and that of his brother (for example, to his knowledge, the lane entrance was not used as an entrance to the milk bar), this is explicable by the passage of time. To the extent his evidence suggests that the lane was closed at the time of the renovations, it is consistent with the other evidence, cited below.

The Council called a number of other straightforward witnesses who gave evidence of extensive use of the lane, namely, Anthony Orr, Gregory Hocking, and Miles Lewis.

Anthony Orr moved to Fitzroy in 1970. Between 1970 and 1989, he used the lane most days to get to and from his work at the Commonwealth Centre on the corner of Spring Street and Latrobe Street in Melbourne. He would also use the lane if he went home for lunch. He used the lane at night (unless there were ‘suspicious people’ using the lane). His use of the lane was never challenged, and he recalled seeing other people using the lane. There may have been a gate at the Brunswick Street entrance to the lane but it was never closed. He moved offices in 1989 (to Preston and Box Hill) and did not return to the lane until 1992, at which time it was closed by a gate.

Gregory Hocking lived in Fitzroy and used the lane between 1971 and the early 1990s. He used the lane to explore Fitzroy on foot. From 1973 he started using the lane once or twice a week on his walk to and from work on Russell Street. From 1983, when he no longer worked in the city, he used the lane for shopping and filmgoing, especially to access the RMIT Glasshouse Cinema on Swanston Street. He believed that he used the lane at night, but did not have a specific independent recollection. Over the approximately 20 years he used the lane, there was a gate at the east end, but it was never closed; it remained back against the wall of number 13. He could not remember the precise date when he stopped using the lane, but remembered it being around the early 1990s. He found it unlikely that the lane was closed off by 1990, but could not contradict this proposition.

Professor Miles Lewis worked at the architectural faculty of the University of Melbourne and held a Chair in that faculty between 2001 and 2012. He took student tours and other tours through Fitzroy and along the lane between 1978 and the early 1990s. He said that his use of the lane was never challenged by anyone. There may have been a gate, but it must have been open every time he used it. He gave evidence that he stopped conducting the tours in approximately 1993, but conceded that this end date was not precise. He did not disagree with the suggestion that the lane was closed off in 1990.

Michael Glynatsis operated a service station on Brunswick Street opposite the lane from 1985. He used the lane from early 1985 to access the bank on the corner of Victoria Parade and Fitzroy Street, as well as to access St Vincent’s hospital, to go to the chemist, travel agents, newsagencies, and to get takeaway food. He used the lane to drop off keys and invoices to doctors at the hospital whose cars he serviced. He also used the lane at night.

In 1986 Mr Glynatsis bought 17 Brunswick Street to operate as a restaurant. During his renovations on the property he used the lane frequently to provide access to the rear of his property. Mr Glynatsis operated the restaurant for more than a year from about 1988 to about 1989. He used the lane during the running of the restaurant to access the rear of the restaurant. The lane was used by people making deliveries to the restaurant who would park in Brunswick Street and use the lane to take trolleys to the rear of the restaurant. That was easier than having them climb the stairs at the front of the restaurant.

Mr Glynatsis had a tendency to exaggerate, and at one point suggested that he just ‘threw in’ that he made 10-20 trips through the lane each day. He also appeared to have a history of conflict with the owners of number 15, and strong views about them having personal use of the lane (which he apparently shared with Ms Paltoglou). Although I am prepared to accept that he generally used the lane, I have treated his evidence with care. I am also unable to rely on his vague evidence as to when the lane was blocked which he thought was ‘around 1994 or 1995.’

Bronwyn Paltoglou owned the Metropole hotel business at 44 Brunswick Street between December 1995 and November 2015. She claimed that she used the lane from 1998 to early 2000. She said that she used the lane between July 1998 and July 1999 for delivery of catering to hospital staff. She also claimed that she used the lane to access St Vincent’s hospital in 1999 and early 2000 after her husband became ill. She was not clear on the exact date that access was blocked off, but gave evidence that sometime in the early 2000s there was a new fence cutting across the rear of the lane.

Ms Paltoglou was not an impressive witness, and appeared to be intent on giving evidence favourable to the Council regardless of its accuracy. She was clearly motivated by strong views , saying at one point: ‘I really object to people taking over property that doesn’t belong to them.’

Her evidence that the lane was open in the late 1990s to the early 2000s was against the weight of the evidence in the case and is rejected. I am fortified in this approach given the only other suggestion that the lane was open this late was contained in a filed witness statement of a Mr Kachami who claimed to use the lane from 2003. However the Council announced on 29 July 2020, without explanation, that Mr Kachami would not be called. Given the unexplained failure to call Mr Kachami, I am entitled to more readily reject Ms Paltoglou’s evidence on this matter.[45]

Findings

[45]Jones v Dunkel (1959) 101 CLR 298.

My findings in relation to this category of evidence are as follows:
·that members of the public used the lane as a public pedestrian access from 1954 without any express permission or leave;
·that there was no interruption to such use until around 1989, that is, the use was continuous;
·that such use was not prevented by the owner of the lane;
·that Mr Hocking recalled a gate being at the east end from 1973, but it was never closed;
·that the preponderance of the evidence was otherwise that people did not recall if there was a gate, but that, if there was, it was never closed;
·that such use occurred both day and night; and
·that the lane was used for purposes which included travelling to school, the exhibition building, the Carlton Gardens, the hospital, the Melbourne City Baths, offices in town, and to the RMIT cinema.
Physical features of lane

The lane has been described as ‘long, narrow, and cavernous’ by Dr Dobson who also raised concerns about drug users. However, others appeared to find the lane attractive, with one lay witness describing it as ‘a bit mysterious.’ Mr Butler also described the lane as ‘uncommon.’

The buildings on both sides are some five and a half metres high so light is restricted. There is an old external light fitting and a porcelain insulator still attached to the northern wall of number 13. Mr Butler suggests that the evidence of wiring may mean that the application for electricity made by the pharmacist, Mr Ziebell (in 1893), succeeded, but this is unknown.

There is a ‘commit no nuisance’ sign on the north wall of number 13 (on the south side of the lane). There is also a sign painted on number 15, though it cannot be seen as it is partly covered by the gate post. Mr Butler suggests that it may read ‘service entry’ but it is not clear. He further considered that it may have directed the public to an entrance located in the lane. Under cross examination he accepted that it could have directed people to an entrance run by the chemist.

The cellar to number 13 is also accessed by means of a chute that opens directly onto the lane. The cover to this chute was wooden, but was replaced with metal during the doctors’ renovations. Mr Willingham accepted that it was common to put access to a cellar in a lane.

The northern wall of number 13 facing onto the lane has 6 windows. These are large Victorian sash windows set approximately half a metre above ground level. As only one window is obscured, anyone using the lane is able to see into the building if the blinds/curtains are open. The evidence of Dr Dobson was that the windows needed to be open during the summer for ventilation, so that it was important for the privacy of obstetrical and gynaecological patients that the lane be fenced off. The evidence of Mr Willingham was that the windows were not protected by security devices which led him to a conclusion that the footway was closed off to the public after dusk.

However, Mr Butler suggested that the lane acted as a lightwell given the presence of the two high buildings, and that the windows onto the lane were the only way the buildings would get light into their rooms. It was also not uncommon to have windows on to rights of way. This view was also shared by Mr Willingham under cross examination.

There are also barred and screened windows in the south wall of number 15 opening onto the lane.

As described above, the lane was in existence prior to the construction of the building at number 13 which was constructed in 1892/1893. The building is of double brick construction, and comprises two storeys, facing Brunswick street. There is a front door located onto Brunswick Street. The ground floor now serves as a medical practice, but has previously been occupied by a number of businesses, including a pharmacy (originally), and a milk bar (by around 1946) which later shut at an unknown time. There is also a first floor residence accessible by way of a side door, which opens into the lane, situated in a recessed porch entrance with iron gates in front of it.

Mr Willingham opined that the architect’s concept involved the integration of the lane into the ground floor plan of the shop and residence using the lane to facilitate pedestrian access to the dwelling and yard at the rear, as well as to use the space to give natural light to several windows incorporated into the north wall.

However, Mr Butler’s evidence conflicted with Mr Willingham as to the ‘architect’s intention.’ He noted that the MMBW 1898 plan did not show any intention to use the lane as part of the rear yard given the whole yard was fenced and separate from the lane. Further, he considered that the gated porch access via the lane suggested that it faced a public domain. The Sands & McDougall directory also suggested that this side entry was used by persons who lived above the shop or had a separate entry given that, at times, there were two different addresses listed in respect of number 13.

There were some intrusions into the lane. Thus, the MMBW 1898 plan shows that there was a down pipe located at both the east end and west end of number 13, and two downpipes at a porch/veranda on number 15. There was some conflict in the evidence as to whether this was significant, or even permissible. However, having viewed the lane, I do not consider the downpipes would hinder pedestrians from passing through the lane (a view also shared by Mr Butler).

Findings

The plaintiffs submit that the court should draw the inference that the lane was never intended to be anything other than a private road. Emphasis was placed on the evidence of Mr Willingham that the lane was integrated into the design of the shop/residence. Emphasis was also placed, inter alia, on the position of the windows; the narrowness of the lane and lack of light; that the cellar opens into the lane; and that utilities such as downpipes intrude into the lane.

The Council rejects this and says, inter alia, that windows to a lane are not uncommon and allow light and air; that the width and length was sufficient for customers of Mr Clark; that the lack of illumination was not significant given there was no illumination in 1851 and council in 1893 regarded the lane as public even without light; that the cellar access does not indicate a private space; further that the downpipes did not render the lane unsafe for public users.

The Council further submitted that the provision of access to the front door of the first floor residence, within a porch with heavy lockable gates that opens out onto the lane, indicates a public way. Further, that the signs are inconsistent with a private lane.

I do not consider that the position of the windows or access to the cellar are significant. Consistent with the evidence of Mr Willingham, it was not uncommon to have windows onto rights of way, while it was common to put access to a cellar in a lane. There are also windows with low sills facing onto Brunswick Street which is clearly a public road.

The narrowness, lack of illumination, and presence of downpipes are all equivocal in circumstances where the lane has been able to be used by the public as a thoroughfare, consistent with the other evidence in the case. They do not show, of themselves, that the lane was never intended to be anything other than a ‘private’ footway.

In terms of the signs, consistent with the evidence of Mr Butler, the ‘entry sign’ may have directed the public to the separate entrance though this is speculative where it is difficult to even read the sign. The ‘commit no nuisance’ sign is more consistent with public use. However, it could also be consistent with the original easement.

The evidence of Mr Willingham as to the intention of the architect (that the lane was incorporated into the design of the building) is also not supported by objective evidence. First, the MMBW 1898 plan does not show the footway to be part of the rear yard (rather, the rear yard is fenced off from the footway). Secondly, the inclusion of the separate recessed ‘front door’ entry point protected by lockable gates tends to suggest that the designer regarded the right of way as accessible by the general public. Thirdly, given the application of Dr MacInerney in 1893, the building must have been designed and constructed without a gate.

I therefore consider that the building was designed to optimise its aspect to the lane (which was already there).

Moreover, there was nothing to suggest that the layout of number 13 shed any light on the intention of the owner of the lane.

Overall, then, I am unable to be satisfied that I should draw the inference that the lane was never intended to be anything other than ‘private.’ Many of the features are equivocal. If anything, the inclusion of an extra front entrance onto the lane (which later had a separate address) suggests that there was to be unfettered public access through the lane.

Gate(s)

There was clear objective photographic evidence that, by 1970, there was a gate in place at the front of number 13 (at the eastern end). It is a chain wire gate and is some 1.78 metres high and 1.01 metres wide (approximately 5 feet 10 inches by 3 feet 3 inches). The evidence of the doctors, as well as a former secretary, Ms Mountjoy, was that this gate was generally kept locked from the time of settlement save when it was used for access by numbers 13 and 15, particularly for access to rubbish bins.

However, two issues arose on the evidence: first, whether there was a gate installed at the back (western end) so as to close access to the lane by around 1989-1990 during the doctors’ renovations; secondly, whether there was a gate or gates installed earlier than 1970.

1989-1990

Doctor Dwyer gave evidence that the doctors put a roller door in, replaced a dilapidated fence, and enclosed the back of number 13 in 1989/1990.

Doctor Dobson’s evidence was that the lane was not accessible after completion of renovations because it was closed off at both ends. It was always locked at the east end and the western end was now fenced.

The principal of the builder who carried out the works commencing in 1989 was a Mr John Dwyer (brother to Dr Dwyer). His evidence was that he arranged for a roller door to be installed at the rear, and on either side of the roller door he erected a paling fence. Further, that the fence to the north of the roller door completely enclosed the western end of the lane so that the only means of access was through the roller door. He stated that ‘once the work was completed the lane was enclosed with the rear of 13 Brunswick and there was no fence separating the two.’

In oral evidence he also said that the fence added stability to the roller door and that he would have noticed if the back fence had not remained in place after 1990, as he went there on many occasions since 1990 and parked in the car park.

Ms Mountjoy’s evidence was also that the western end of the lane was fully enclosed with the rear of number 13. Thus the only means of leaving the property from the rear was through the roller door which was kept locked when not in use.

Each of these witnesses were straightforward. There was no reason to doubt their evidence that the lane was enclosed, and inaccessible to the public, from about 1989-1990.

Whether gate(s) earlier than 1970

Regardless of the date of installation, there was no evidence at all that any gate was locked, or even closed. Moreover, there was positive evidence from the lay witnesses, above, that from 1954 until 1989 any gate was never closed, day or night. The precise date of installation may, in such circumstances, be of less significance but, given the extensive evidence led, will be resolved below.

The resolution of whether there were gates installed earlier than 1970 turned on an examination of the two expert witnesses. It also turned on 3 issues: first, whether there was an early timber gate installed prior to the current gate at the eastern end of the lane; secondly, when the current gate was installed; and finally whether there was a gate at the western end installed earlier than 1989.

Mr Willingham

As indicated already, Mr Willingham was an architectural historian and conservation architect. He is a registered architect in the state of Victoria and a fellow of the Royal Historical Society of Victoria, with a Master of Architecture from the University of Melbourne.

In his first report of 24 May 2019, Mr Willingham opines that the existing metal gate replaced an earlier timber panelled gate. His reasons were, first, that the installation of the current gate was ‘ad hoc.’ Secondly, that the condition of the current timber posts suggests that the posts were in place previously. More particularly, that they were there prior to the construction of the Westminster Club hotel in 1903 given the north post had been modified to fit against the bluestone base of that building. Thirdly, that there was part of an old Norfolk latch still in place on the north post.

Mr Willingham further cited an MMBW plan of drainage from 1900. He said that a line drawn across the east entrance to the ‘footway’ on the Brunswick Street frontage suggested that the lane may have been closed off at this point.

However he also observed that the MMBW 1898 plan indicates that there was no gate at the eastern or western ends of the footway, though in oral evidence he said that the updated 1935 survey indicated a gate by reason of a dotted line.

He concluded that the timber gates were installed between 1893 (when Dr MacInerney first applied) and in 1903 when the new premises at the Westminster Hotel was erected. He suggested that Dr MacInerney and Mr Ziebell ‘dissented’ from the Fitzroy City Council’s direction.

In his second report of 24 October 2019, Mr Willingham finds further support for his views about there being an earlier timber gate by relying primarily on two matters.

First, he identifies that page 74 of an 1894 MMBW field book show a straight line across the eastern end of the lane (though there is no such line at the right of way at the western end.)

Secondly, he points to a timber plug in the mortar course with a single nail hole in it currently in the brick wall of number 13. He also highlights two holes at the bottom in the bluestone plinth. He considers that the timber plug and the two holes were in the same vertical plane and provided further evidence of a former wooden gate. He considered that the gate would have been hung on the right hand side so that the ‘commit no nuisance’ sign would be exposed during daylight hours.

He opined that the timber gate was likely in place by 1894 within 18 months of the construction of Dr MacInerney’s residence.

Mr Willingham also considered that the current woven wire metal gate was likely installed in the late 1920s or 1930s to replace the earlier timber gate. He considered that both of the timber posts which originally supported the first gate had been altered, but survived in place to the present time.

He records that the gate was not of a standard as illustrated in catalogues of wire mesh gates of the 1930s, and considered that it was made to order. He also considered that the state of deterioration of the woven mesh found on the existing metal gate was similar to the deterioration of the existing wire mesh at his own home, and said that his gates were installed in 1932-1933.

Mr Willingham also opined that the western end was closed off with a timber gate ‘logically installed’ at the same time as the gate to the east. He appeared to base this view on a photograph taken in 1970 which he claimed showed a light coloured timber post at the western end similar in size and height to those surviving at the eastern end.

He further considered that there was a matching metal gate installed across the western end of the footway to prevent pedestrian access after dusk. Again he relies on the ‘scant photographic evidence’ which indicated that originally there was a timber gate at the western end with one timber post still in place in 1970.

He concluded that Dr MacInerney and Mr Ziebell had lockable timber gates built across each end of the lane to prevent pedestrian access at night, which were built between 1893 and 1903, and later replaced by non-standard metal gates in the 1920s or 1930s by fixing the new metal gates to the existing timber posts that held the original timber gates.

Mr Willingham was clearly in possession of a great deal of historical information about the Fitzroy area, including information relating to number 13. However, having taken the opportunity to assess his demeanour and responses, I found his evidence to be, at times, unresponsive and over confident, especially insofar as the gates were concerned. He appeared particularly concerned to find support for his views that Dr MacInerney and Mr Ziebell ‘dissented’ and must have arranged for installation of gates.

There were also unsatisfactory aspects to his testimony, for example:
·he suggests at one point that the lane was closed off as early as 1853 based on the fact that a line is shown on the 1853 survey. However, this was contrary to his view that no gate was there until 1893. It was also contrary to his other evidence that the 1853 survey did not show fence lines but rather property boundaries;
·while initially appearing to accept that it was not safe to form the view that there was a gate based solely on the plan of drainage document, he later said that it would be safe;
·he suggests that there were wooden gates at both ends despite accepting the fact that none of the contemporaneous documents he identified in either of his reports indicated the closing of the lane at the west end;
·he claimed to be ‘confident’ that there was a gate post shown in the photograph of the west end of the lane which matched the east end posts, though the image was very grainy and unclear.
Mr Willingham was a careful and detailed historian as is reflected in the thorough approach in his first report. Nevertheless, insofar as his evidence about the gates is concerned, I have generally preferred that of Mr Butler.

Mr Butler

Mr Butler is a heritage consultant with a Bachelor of Architecture from the University of Melbourne, majoring in history. He has experience in heritage studies in Fitzroy and elsewhere.

In relation to the timber gate Mr Butler relevantly opined that:

There is no evidence that, as claimed, a timber gate preceded the existing chain wire gate, with the associated timber gate frame resembling two parts of a cut-down colonette rather than a gate post because of the double stop-chamfering. The posts have not been fixed in a standard manner, with the chamfers on exposed edges, and do not match, underscoring the view that the gateway was crudely assembled from reclaimed materials that could include the gate.

He further found no evidence that the timber gate assembly pre dated the construction of number 15 in 1903, and noted that any framing at any time would have to be shaped around the stone base of that building.

He considered that there was no evidence of an earlier timber gate; in fact there was evidence to the contrary in the MMBW detail plans and surveys.

In relation to the plan of drainage 1900 he says:[46]

The MMBW Property Service Plans or Plans of Drainage (POD) for 13 Brunswick St, such as portrayed in the Willingham report p.37 (Refer to Figure 23 also ATTACHMENT 8: Detail of MMBW Plan of Drainage 1900), also emanated from these surveys but are now only available as scanned images which reduce the detail of the original plan. CIS Services, Burwood Victoria advise me that plans are `cleaned up’ before issuing to eliminate artefacts from the scanning process which also affects their accuracy.
The updated MMBW DP 1026 (Refer to Figure 25) shows that the `Single Line’ delineating the building line on the Plan of Drainage for 13 Brunswick St was in fact a dashed line before scanning and cleaning of the image. The plan does not show a similar line at the west end of the footway, indicating the footway was not gated, as being readily accessible from the west and the east ends (refer Figure 3).
The Detail Plans were typical updated up to World War Two, with minor changes shown in surveyor’s field books, such as `new shed’, `shed removed’, `V(erandah) covered’ etc. (refer to Figure 25 and Figure 24)
None of the various versions of MMBW Detail Plan 1026 show gates on the footway, with the later updated plan showing a dashed delineation of the building line, as is done with other unfenced properties further north, while the existing gate is set well in from the building line.

[46](emphasis added).

With regards to the bolded sentence of the first paragraph above, Mr Butler footnotes a personal communication with Jo Lamborn, Assistant to the Managing Director Senior Administration Officer at CIS Services.

Counsel for the plaintiffs objected to the first two paragraphs above. He objected to the first paragraph on the basis of hearsay. He also objected to the conclusions expressed in the second paragraph as a speculative conclusion, based on hearsay, and outside of Mr Butler’s area of expertise.

While the Council admitted that the reference to the personal communication was hearsay, it submitted that the evidence was admissible on the basis that it provided information about the plans being relied upon. The second paragraph was also a statement of opinion that stands separately to any advice from CIS.

In terms of the first paragraph, I consider that the first sentence was sufficiently based on Mr Butler’s experience in circumstances where his evidence was that a dotted line can become a continuous line in the scanning process having scanned a lot of things himself. However, I consider that the second (bold) sentence is hearsay. Further, although evidence of the basis of an expert’s opinion may be admissible under s 60 of the Evidence Act 2008 (Vic),[47] I do not consider that it provides a basis for an expert’s opinion in this case for reasons given below. It is thereby irrelevant and inadmissible.
[47]See, eg, Quick v Stoland Pty Ltd (1998) 87 FCR 371, 377-8; Govic v Boral Australian Gypsum Ltd (2015) 47 VR 430, 447 [77].

In terms of the second paragraph, I consider that the first sentence of the second paragraph is an opinion which is not based on Mr Butler’s training, study or experience but, rather, appears to be based on the hearsay statement immediately preceding it. I therefore consider it to be inadmissible based on the opinion rule under s 76 of the Evidence Act. However, the second sentence is not objectionable and is apparently based on Mr Butler’s assessment of an updated 1935 plan.

I therefore will not admit the sentences in bold above.

In terms of lines generally, Mr Butler said:
·that the plan of drainage was an image only done by individual plumbers without uniformity, and that the line could designate a building line;
·there was no specific symbol for a gate on its own though there was a symbol for a fence (by cross hatching);
·the dashed line used in the 1935 published plan was also used north of the Westminster Hotel which clearly just demarcates the building line. It is also not recessed as the gate is;
·there is a contradiction between pages 73 and 74 of the sketch plans with one showing a line and the other one not, because they are only sketch plans, not published plans.
In terms of gate materials:
·he maintained that whichever framing you had it would have to fit around the next door bluestone building so it does not point to any particular date;
·he emphasized that you would normally have chamfering on all corners (which the gate did not) suggesting second hand assembly;
·he agreed that the Norfolk latch does not match the gate, but says that the latch could work with the gate (though it may not at the moment);
·he maintained that a plug put into mortar was not going to carry a gate and that the plug could have been used for a service pipe. Further, that it was abnormal to bed the posts into the ground given the expense;
·he noted that the present gate covers up both signs, which suggested that it is a much later addition to the lane.
A summary of his findings as to the metal gate included:

The footway chain wire gate type could be from as early as the Edwardian-era when commercially advertised gates or guards had a similar format, size and construction. However as with the ad-hoc fixing of the gate to the adjoining walls, both gate and framework could be second hand and redeployed to this site, with the first evidence of a gate there being 1970.
…
The key document that records the physical changes on the site, the Melbourne and Metropolitan Board of Works (MMBW) Detail Plan 1206 and the survey plans that helped form and update it, do not show a gate on the footway from the 1890s through until the mid 1930s.
…
The `Commit No Nuisance’ painted wall sign on the north wall of 13 Brunswick St and the `Entry’ sign painted on the south wall of 15 Brunswick St, are further evidence that the footway was open to the public during the Victorian-era and Edwardian-era when these signs were typically created…The present chain wire gate prevents public access to allow these signs to be read and observed by the public. Even when in an open position the gate would be fixed against one of the signs and the north gate post covers part of the other.
The gateway post-dates the sign and the signs themselves may be as early as 1893 (south wall of footway) when Dr MacInerney’s shop & residence was built and 1903 (north wall of footway) when 15 Brunswick St. was erected.

In oral evidence he said that the metal gate could have been made any time from 1914 onwards, but this does not tell you when it was installed since the gate could have been made to order or sourced from wreckers.

He did not consider that the state of deterioration helped in ascertaining a date given second hand materials were used and the gate was located on a busy road where things rust easily.

His evidence was that ‘you could argue, if you want to speculate’ that a gate might have been put there after World War 2 given the material shortages. He also suggested that it was probably done ‘at the earliest’ during World War 2 but there was no actual evidence until 1970. Under cross examination, he agreed that it might have been installed in the 1940s.

He considered that there was simply no evidence of a gate at the west end, which was not shown in the MMBW 1898 plan.

Mr Butler showed respect for much of the reports of Mr Willingham suggesting they were generally ‘detailed and comprehensive.’ However, he considered his report to be ‘speculative’ when determining the date of the closure of the lane. His disagreement was evidence based and measured and is generally to be preferred.

Submissions

The plaintiffs submitted that the court should accept the evidence of Mr Willingham as to the presence of earlier timber gates, as well as the installation of the current gate.

In particular, they submitted that the report of Mr Butler failed to deal with the disused Norfolk latch. Additionally, that it was unlikely that the gate was sourced from wreckers given that it was especially made. Finally, that the plug was evidence of the presence of an earlier gate in circumstances where Mr Butler could not otherwise identify the purpose for the plug (and where there were images of gates from catalogues where posts were laid into the ground).

The plaintiffs also submitted that there was judicial authority for the proposition that if there is a line across a map it means that the area is closed.[48]
[48]Citing Newington (n 31) 560.

The Council submitted that the contention of there being a gate or gates to the lane before the existing metal gate should be rejected. It is further not possible to be confident of there being a gate in the lane before 1970.

Further, it submitted that, even if there had been a gate, there is no evidence of it being closed against public use. The presence of a gate of itself is thereby not inconsistent with the lane being a public highway.

Findings

I am unable to be satisfied that there was previously a wooden gate at the east end of the lane.

None of the matters relating to the gate materials suggested by Mr Willingham are persuasive. The fact that the assembly was ‘ad hoc’ is just as consistent with Mr Butler’s opinion that the gate was crudely assembled from reclaimed materials. The crude assembly is also consistent with the gate being sourced from wreckers. The fact that the north post had been modified to fix against the bluestone base does not indicate any date of construction. Insofar as the latch is concerned, there was a conflict in the evidence since, although Mr Willingham did not believe it ever secured the current gate, Mr Butler suggested that the latch could work but it may not at the moment. In any event, the inclusion of the latch is consistent with the fact that whoever put up the gate used whatever was to hand. I am unable to draw an inference from this that there must have been an earlier gate. Finally, Mr Willingham’s evidence concerning the plug was speculative in circumstances where it is impossible to know what it was used for. To the extent necessary, I also prefer the evidence of Mr Butler that a single nail hole into a plug in the soft mortar course would not provide the requisite support in circumstances where the cheapness of the construction meant it was unlikely that the posts were inserted into the ground.

In terms of lines, I am generally unpersuaded that anything categorical can be drawn from the existence of lines on the various surveys given the inconsistencies identified above. The passage relied on in Newington v Windeyer (‘Newington’) suggests that the line in that case tended to indicate that access was blocked.[49] However, the court goes on to say that ‘it would be unsafe to draw an inference that it was.’[50]
[49]Ibid.
[50]Ibid.

Returning to this case:
·insofar as there is specific reliance on the 1900 MMBW plan of drainage Mr Willingham accepted that there was no legend indicating a gate as it was all related to sanitary fixtures;
·in terms of the line on the eastern end in the field notes at p 74, Mr Willingham accepted that the published version was the preferred version. There was also no straight line at the east end on p 73 of the field book notes;
·finally, in terms of the dotted line on the 1935 update of the MMBW 1898 plan, Mr Willingham suggests that a gate may be depicted by a dotted line though it is not shown in the position of the present gate, and a similar dotted line is used north of the hotel for a boundary line – which was clearly not a gate.
I therefore generally accept the evidence of Mr Butler that the key document which records the physical changes on the site was the MMBW 1898 plan as updated in 1935, which did not show a gate from the 1890s to the mid-1930s. I also consider that the fact that the present gate prevents the signs being read suggests that the gate was only added subsequently, consistent with the evidence of Mr Butler.

In terms of a gate at the west end, a photograph in 1970 is not evidence of what existed in 1903. In any event, the image was so grainy it was not possible to say that there was a post there. There was also no reason for the east and west gates to match in circumstances where the east gate posts had been altered. There was no other evidence of a gate there in any of the surveys, even on Mr Willingham’s evidence.

In terms of the metal gate, the deterioration does not shed light on when it was installed in circumstances where Mr Willingham did not have expertise on dating deterioration levels. The evidence about his own fence was speculative and without precision.

I have given consideration to the possibility raised by Mr Butler that the gate could have been installed in the 1940s given austerity measures. However, the evidence was speculative in character, and there was no objective evidence to suggest that a gate was actually installed at that time.

Further, although the lay witnesses, above, gave evidence to the effect that there ‘may have been a gate’, the witness who positively recalled a gate only used the lane from 1973 (being Mr Hocking).

There is also no evidence to suggest that the installation of the gate was effected by the true owner of the lane.

In any event, my findings may be expressed as follows:
·I am unable to be satisfied that there was previously a wooden gate at the eastern end of the lane prior to the installation of the current metal gate;
·consistent with the evidence of Mr Butler, the key document that records the physical changes on the site, being the MMBW 1898 plan as updated to 1935, does not show a gate on the footway from the 1890s through until the mid-1930s;
·I am unable to be satisfied that the gate was installed prior to 1970, though it was possible that it was installed in the 1940s;
·the lay evidence, above, positively suggests that any gate at the eastern end was not generally locked or shut (day or night) even if it was there from 1954 up until 1989;
·there was also no evidence that any gate at the eastern end was locked or shut at any time prior to 1954;
·I am also unable to be satisfied that there was ever a gate at the western end prior to the enclosure of that end by a fence installed in 1989/1990.
Council role

The factual findings surrounding this issue may be shortly stated as follows:
·there was no evidence to suggest that the Council ever maintained the lane;
·there was also evidence that the Council inspected the property during the 1989 renovations and raised no issue in relation to the fencing in of the lane;
·it was only in 2004 that the lane was placed on the Council’s Road Register.
·the Council only took steps against the plaintiffs to remove obstructions in the lane by issuing proceedings in the Magistrates’ Court in 2014.[51]
[51]Which proceedings have been discontinued on the basis of undertakings by the plaintiffs that they will remove obstructions if unsuccessful in this proceeding.
Conclusion on public highway
Plaintiffs’ submissions

The plaintiffs emphasize that the origin of the lane is an easement and say that any use in the 19^th and 20^th centuries can be attributed to the dominant tenement or, at least, it cannot be said that the use did not conform with the private rights conferred by the easement. They cite, inter alia, President of the Shire of Narracan v Leviston (‘Leviston’)[52] for the proposition that if use is attributable to an agreement then that negatives dedication.
[52] Leviston (n 34).

The plaintiffs say that each of the three instances of alleged use in the 19^th and early 20^th centuries do not support long use, and it cannot be said that they are inconsistent with the easement. Thus, they claimed that Joe the Pieman was a criminal (although there was no evidence of this), and that the constable had a licence to enter. This was also just one use. The court can also not draw an inference that the employees of the boot factory were using the lane because it could be just smell, noise or visual appearance that was the subject of the complaint. Both Dr MacInerney and the Fitzroy City Council were very likely mistaken as to the council’s interest in the lane, and the application does not evidence any use of the lane that is inconsistent with the easement.

The plaintiffs submit that the evidence of early use is all equivocal. They relied on Templestowe Developments Pty Ltd v City of Boroondara (‘Templestowe’), where the court considered that it was not possible to infer on what basis members of the public were using the relevant land.[53]
[53]Templestowe (n 26) 522.

From the 1950s, the plaintiffs conceded that there was use broader than that consistent with the original easement (which they say was later abandoned). However, first it was explained; secondly, a gate had been erected which, combined with the other indices of private ownership, constitutes evidence of rebuttal.

In terms of explanation, the use was consistent with having through traffic for the operation of the milk bar and pharmacy (with access down the side), as well as for deliveries.

As well as the gate, the plaintiffs further relied on the physical layout and council attitude as rebuttal evidence.

Thus the gate was an unequivocal sign of private ownership given it is visibly not a council gate.

There was also the physical layout which included the windows and the ‘entry’ sign which suggested private use.

In terms of council attitude, the plaintiffs highlighted that in Anderson, the court of appeal noted that the expenditure of public moneys on the road was itself evidence of dedication.[54] The plaintiffs further submitted that the Council had tolerated assertions of ownership since the 1940s (by the gate) according to the Council, and much earlier according to the plaintiffs.
[54]Anderson (n 3) 200 [92].

The plaintiffs submitted that, looked at overall, a reasonable person traversing the lane ought to have considered it to be private land.

Council’s submissions

The Council accepts that an easement is not evidence of dedication to the public, and that the lane was initially established for the use of owners and invitees of the two dominant tenements.

However, the inevitable consequence of an open ended lane providing a convenient access point is that it will be used by the public. It highlighted that the lane sits between many destination points. Further, that the case was factually distinguishable from Templestowe which did not involve a path connecting between two points, but a little park. It was also distinguishable from Newington where the disputed land was used as a private garden.

The Council submitted that the lane was recorded on the plans before 1881 in the same way as a road. It also submitted that the court can have regard to maps and plans, citing Newington.[55]
[55]Newington (n 31) 562.

The Council submitted that by the time of the MMBW 1898 plan, there had been 47 years of use consistent with the way the lane was shown in the various surveys. Simply because it was impossible to adduce direct evidence from live witnesses does not mean dedication cannot be shown through other ways.

The Council relies on the three examples of public use. First, it invited the court to infer that the bootmakers were interested in access and were not invitees of Mr Clark. Secondly, it placed emphasis on the contemporaneous recognition by the Fitzroy City Council that there was a public right of way when Dr MacInerney made his application (citing Owen v O’Connor[56]). Finally, it submitted that the fact the constable ran down the lane during the incident with Joe the Pieman was consistent only with unobstructed public use.
[56]Owen (n 37).

The Council submitted that evidence of the laying out of the lane together with these three uses was sufficient. However, even if they were not, given there was a formed defined thoroughfare, it will take less time to establish dedication and acceptance thereafter.

The Council also submitted that use from the 1950s onwards is enough of itself. That use was expansive and not explained by anything other than dedication e.g. use to go to a primary school, the hospital, the bank, the Carlton Gardens, and the RMIT cinema, had nothing to do with access to a milk bar or private access to a pharmacy.

The Council also submitted that, even if a gate was there from the 1950s, it was not established that the gate was the work of the owner of the lane or that it was ever closed.[57] The Council submitted that, even if the gate was there, it carries no weight given the unfettered, uncontrolled and uninterrupted use.
[57]Citing Leviston (n 34) 868.

The Council further accepted that it has not maintained/paid attention to this small lane, but that this was not determinative.

The Council concluded that if the onus was on the plaintiffs they had not established facts necessary to draw an inference that the owner did not dedicate. Further, even if the plaintiffs’ onus was limited to a rebuttal of the presumption arising from long and uninterrupted use, they had not established facts which counter the clear inference that there was public use with the knowledge and acquiescence of the owner.

Analysis

Given the case is highly fact intensive, other cases can have only limited utility. For example, in the case of Newington, the disputed land was described as like a ‘private garden’ which is immediately distinguishable from the open thoroughfare the subject of the present case.

The original grant of the easement in this case suggests that the use of the lane was initially given to further a private agreement. However, this does not prevent there being a subsequent dedication.[58]
[58]Grand Surrey Canal Co v Hall (1840) 1 M. & G. 392.

There is no evidence that the true owner of the lane intended to retain it for a private benefit in 1866. Further, the reference to the lane as one of two ‘rights of way’ was consistent with its existence as a separate physical thoroughfare.

The earlier surveys also show that the lane was clearly marked out as a separate physical thoroughfare giving access to a number of destination points. My findings about the gate, above, further suggest that access was free and unrestricted.

The fact that an easement was granted in 1882 is equivocal. In Anderson, the court found that the granting of easements did not rebut the presumption in that case since the easements provided private rights which ‘added to, and complemented, the rights they enjoyed as members of the public.’[59] Thus the owners of the relevant land were able to use the lane in two capacities, namely as owners of the relevant land pursuant to rights of easement, and secondly as members of the public pursuant to the status of the lane as a public highway.[60]
[59]Anderson (n 3) 199-200 [89].
[60]Ibid 200 [90].

Consistent with human mortality, there is no direct evidence of use prior to the 1950s. Moreover, although the lane may have been identified in the same colour as a road it was not described as such (rather as a ‘footway’ or ‘way’).[61]
[61]cf Owen (n 37) 168; and Newington (n 31) 559.

In terms of the three early examples of use relied on by the Council, I am unable to infer that the lane was being used and/or the extent of any use from the 1884 boot factory complaint. As highlighted by the plaintiffs, the complaint about the ‘bad state of the lane’ could relate to the visual state of the lane, and does not necessarily support use. The incident involving Joe the Pieman confirms that the lane was open and accessible, but is a ‘one off’ use only.

However, as I have already found, the circumstances surrounding Dr MacInerney’s application suggest that the lane was reputed to be a ‘public lane’ by 1893. I am fortified in this approach given the earlier 1884 complaint (to the Fitzroy City Council) suggests that the council was seen as the custodian of the lane. The ‘Joe the Pieman’ incident further confirms the ongoing status of the lane as a public open thoroughfare as at 1919.

However, although such findings are consistent with use by the public I do not consider them to be sufficiently unequivocal to find that a presumption of dedication was made out by 1919 in circumstances where there is limited evidence as to the actual use of the lane.

These findings nevertheless provide a factual foundation in which to assess the evidence of later use. There is also no evidence of any restriction being placed on the public use of the lane between 1919 and 1954 (although a gate may have been installed during the 1940s, there is no evidence that it was ever locked, or even shut).

From 1954 until 1989, as highlighted already, there is extensive evidence that members of the public continuously used the lane as a public pedestrian access way, both day and night, without any express permission or leave. That use (over some 35 years) was not prevented by the owner of the lane, and included travelling to school, the exhibition building, the Carlton Gardens, the hospital, the Melbourne City Baths, offices in town, and to the RMIT cinema.

I do not accept that there is some explanation for this use consistent with a private benefit as suggested by the plaintiffs. It is true that there was some use coextensive with private use of number 13, including by deliveries and use of the milk bar. Such use may be attributable to the 1882 easement (although as will be seen below, the plaintiffs did not rely on this easement). However, the use extended well beyond the private use of number 13 given the wide range of destinations described that had nothing to do with access to the milk bar or private access to the pharmacy.

To the extent the onus lies on the plaintiffs, they have not established any facts from which to draw an inference that the owner did not thereby dedicate the lane by 1989. In any event, the Council has positively satisfied me that this direct evidence of long and uninterrupted use, of itself, gives rise to a presumption of dedication. The inference can further be drawn that the use was with the knowledge and acquiescence of the owner of the lane.

I am satisfied that the presumption arises on the basis of the use from 1954 until 1989 alone. However, such a presumption is further strengthened when taken in conjunction with the reputation the lane already enjoyed as a ‘public lane.’

Insofar as it was alleged that there was a rebuttal by reason of the gate, in Anderson the court referred to the remarks of Barton J in Leviston wherein his Honour cited with approval the statement of Stephen CJ in a charge to the jury in Lawson v Weston as follows:[62]

…any open or distinct circumstances, done or caused by the owner, indicating and notifying an intention not to dedicate, will be strong evidence against the dedication.
…
The act or circumstances must be, in fact, for the purpose of exercising the right of dissent, and notifying that right to the public. The putting up of a fence across the road, so as to prevent access to it, would be one of the strongest instances of such an act; and, if there were a gateway left in it, but the gate was generally or often kept locked, the inference from the act would remain the same. The erection of such a fence, however, with a slip rail in it at the point of intersection with the road, or a gate secured by a hasp only, may have been for no purpose of dissent and obstruction. It may have been, possibly, for the very purpose of saving the right of the public, while at the same time protecting the owner, by preventing cattle from trespassing over the land on either side.

[62]Lawson v Weston (1850) 1 Legge 666, 668, quoted in Leviston (n 34) 867-8 and Anderson (n 3) 190 [51].

In this case I was not able to be satisfied that there was any gate at the eastern end until 1970. There was also nothing to suggest that the gate was installed by the owner of the lane. However, even if the gate was installed in the 1940s (or even in the 1930s as Mr Willingham says), the evidence does not establish the reason for the installation. Although one may infer that it was initially intended to serve some purpose of discouragement, the evidence does not establish that it was ever locked, or even shut. I am certainly unable to be satisfied that it was ‘generally or often kept locked’ consistent with the above passage cited in Anderson. In fact, I am positively satisfied, based on the lay evidence, that it was not generally shut or locked, day or night, from 1954 until 1989 to prevent public access.

In such a case, I am unable to be satisfied that the installation of the gate at the eastern end served any purpose of ‘dissent’ by the owner of the lane.

In terms of the physical layout, as found above, there was nothing to suggest that the true owner of the lane was responsible for the ‘laying out’ of number 13 in terms of its relationship with the lane. In any event, many of the features are equivocal and certainly do not provide any evidence of ‘rebuttal.’ If anything, the inclusion of an extra front door onto the lane suggests that there was to be unfettered public access through the lane.

Finally, I accept that there is no expenditure of public funds for maintenance which would provide evidence of dedication and acceptance.[63] However, as in Anderson , I do not consider this to be determinative.
[63]Anderson (n 3) 200 [92].

The plaintiffs have thereby not established any facts to rebut the clear inference that the public use was with the knowledge and acquiescence of the owner. Rather, I am satisfied that the owner has manifested an intention to dedicate the lane as a public highway by 1989.

Given such substantial evidence of public use I am further satisfied that the second limb of the test is established i.e. there had been acceptance of the dedication prior to 1989.

In such circumstances, the lane had already become a public highway by 1989 such that its status could not be affected by the closure of the lane.

I am therefore positively satisfied that the lane is a public highway within the meaning of the common law.

Consistent with the relevant concession, the plaintiffs are not entitled to the declarations sought, and the proceeding must be dismissed.

Adverse possession

As confirmed by the relevant concession, it was common ground that the plaintiffs’ claim for adverse possession of the lane could not succeed if the lane was a public highway.[64]
[64]Outline of submissions for the plaintiffs, 5 August 2020, [3]; Transcript of proceeding, 1 June 2020, 14.31.

Having been found to be a public highway, the lane vests in fee simple in the Council,[65] and always remains a public highway irrespective of the actions of the plaintiffs.[66]
[65]Road Management Act 2004 (Vic) sch 5 sub-cls 1(4), 1(5).
[66]Ibid sch 5 sub-cl 2(1)(b); Anderson (n 3) 191 [54].

The declarations sought on the basis of adverse possession must therefore be refused.

Right of way

Given the lane is a public highway it is unnecessary to consider this matter in circumstances where the parties did not provide detailed submissions in any event. However, I will provide a brief summary of my views for the sake of completeness.

The Council submitted in the alternative, that if the lane was not a public highway, then it was still a road for the purposes of the LGA by reason of one or both of the easements granted over the lane. Thus it constituted a ‘right of way’ ((b) of the LGA definition of ‘road’) or a ‘passage’ (for the purposes of the same definition at (d)).

The Council relied upon Mayberry, where Richards J found that a privately owned corridor of land in Blairgowrie, which was encumbered by a right of carriageway in favour of two adjacent lots, was a ‘road’ for the purposes of the LGA.

The Council relied on the 1851 easement, where a right to pass over the lane was reserved for the benefit of the owner and invitees of Mr Clark’s premises at the Devonshire Arms hotel and a nearby butcher shop; and the 1882 easement, where a right of footway was granted over the lane in favour of number 13.

In written submissions, the plaintiffs submitted that the provisions of s 204 of the LGA were not complied with, such that the privately owned lane was not made a ‘road’ for the purposes of the LGA.

Insofar as the 1882 easement is concerned, the plaintiffs suggested that the Registrar of Titles did not have power to confer or register an easement over an unregistered parcel of land. Further, indefeasibility did not apply to the lane given that there is no title to it.

Insofar as the 1851 easement was concerned, the plaintiffs submitted that the easement was no longer operable, and that the businesses previously run at the dominant tenements have long ceased operating. Thus, reliance on the easement for the purposes of the LGA would be ‘artificial’.

Analysis

The plaintiffs’ submission concerning s 204 is misconceived. Subsections 204(1) and 204(2) provide that a municipal council may declare a road to be a public highway for the purposes of the LGA; or declare a road that is reasonably required for public use to be open to public traffic. However, the making of such a declaration is not a precondition for the lane to be a ‘road’ (the subject of the declaration sought). Rather, as submitted by the Council, if the lane is a ‘road’ for the purposes of the LGA, then the powers under s 204 become enlivened.[67]
[67]And see Mayberry (n 4) 400 [70].

Returning to Mayberry, her Honour examined the legislative history of the LGA. Despite some unwillingness (given the potential interference with private property rights),[68] she ultimately determined that ‘right of way’ in the LGA definition of ‘road’ included a ‘private right of way’.[69]
[68]Ibid 407 [94].
[69]Ibid 403 [84]-[85]; citing a similar view expressed by Ashley J in Templestowe (n 26) 517, 523.

Although I share some of the concerns expressed by her Honour, it was not suggested that this court should adopt a different approach. However, the reasoning will only be applicable if there is a valid easement.

In terms of the 1882 easement, the certificate of title to the dominant tenement (number 13) produced by the plaintiffs records a right of footway over the lane. Although the lane is general law land, the provisions of the TLA[70] and the policy of title by registration suggests that the said title provides conclusive evidence of the easement regardless of whether the Registrar should have given it.[71]
[70]See Transfer of Land Act 1958 (Vic) s 41.
[71]Riley v Pentilla [1974] VR 547, 573.

However, this point would only arise if the lane was not a public highway. In such circumstances, the fifteen year limitation period for an action to recover land[72] would have commenced in 1989/1990 when the lane was enclosed. Any rights of the owners of the lane would be extinguished,[73] such that the plaintiffs would own and occupy both number 13 and the lane. Given there would be unity of seisin, the easement would thereby be extinguished[74] and there would be no ‘right of way’ for the LGA definition to attach to.
[72]Limitation of Actions Act 1958 (Vic) s 8.
[73]Ibid s 18.
[74]Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] 2 NSWLR 1, 9; Roe v Siddons (1888) 22 QBD 224, 236.

Insofar as the 1851 easement is concerned, both parties were in agreement as to its creation even though no titles were produced in respect of the dominant tenements (being the butcher shop and the Devonshire Arms hotel). However, in closing the plaintiffs suggested that the easement had been abandoned given the cessation of the businesses despite leading no evidence about the identity or knowledge of the owners of the dominant tenements, and contrary to their position in opening.[75]
[75]The plaintiffs’ written opening submissions stated there was no reason to suppose that the lane was not currently burdened by the 1851 easement: Outline of submissions of the plaintiffs, 23 September 2019, [12].

The relevant principles relating to the abandonment of easements were recently stated by the court of appeal in Hampshire Automotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd:[76]

[Abandonment] turns on the intention of the owner of the dominant tenement. Mere non-user, even for an extended period of time, is not conclusive evidence of abandonment of a right of way, although it may provide evidence of abandonment. The relevant question is whether the owner of the dominant tenement, or its predecessors in title, intended to forever forego the rights provided by the easement and not assert them again.

[76][2019] VSCA 77, [136] (‘Hampshire’).

The court also emphasized that the decision of the High Court in Treweeke v 36 Wolseley Rd Pty Ltd,[77] demonstrated the need for unequivocal evidence establishing an intent to forever abandon the enjoyment of the easement.[78]
[77](1973) 128 CLR 274
[78]Hampshire (n 76) [137].

As submitted by the Council, the cessation of a dominant tenement business is not evidence that the subsequent owners of the dominant tenement had formally abandoned, or even ceased using, the easement. There is simply no evidence to justify abandonment prior to 1989.

Insofar as post 1989 is concerned, there is no evidence at all, and certainly no ‘unequivocal’ evidence establishing an intent to forever abandon the enjoyment of the easement. There is no title adduced to show who the relevant owners were,[79] nor was evidence led to show that they even had knowledge of the easement.[80] There was also no evidence led about the knowledge, or opportunities for knowledge, that the owners had of the use of the lane by the doctors.[81]
[79]Though Mr Phillipou appeared to suggest that the hotel now forms part of the hospital.
[80]Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315, 337-8, cited in Hampshire (n 76) [105].
[81]And see Hampshire (n 76) [141].

An additional issue is that an easement remains enforceable at common law until it is removed from title pursuant to s 73 of the TLA.[82] In circumstances where I have not even sighted the title I am unable to be satisfied that the easement has been abandoned.
[82]Riley v Pentilla [1974] VR 547.

In such circumstances I would be satisfied that the lane was a ‘right of way’ within (b) of the LGA definition of a ‘road’ by reason of the 1851 easement. If the lane was not a public highway, the plaintiffs would not be entitled to a declaration that the lane is not a road for the purposes of the LGA.

Conclusion

The proceeding will be dismissed.

Absent agreement, I will hear from the parties on the question of costs.

ANNEXURE A

The MMBW 1898 plan: Melbourne and Metropolitan Board of Works Detail Plan 1206 dated 1898.

Google Maps, 2019.

[2020] VSC 610

25 September 2020