Marshall v Council of the City of Wollongong

The case of Marshall v Council of the City of Wollongong dealt with a dispute over the existence and creation of a right of way over land owned by the Council. The applicants, Marshall, sought to establish a right of way over land that was originally shown on a Deposited Plan but was not practicable, and which had been used for many years without the consent of the Council. The Council opposed the grant of the right of way, arguing that it was not possible to grant such a right over Community Land. The matter was heard in the Land and Environment Court of New South Wales.

The key legal issues the court needed to decide were whether the applicants had established the existence of a prescriptive right of way over the land in question, and if so, whether the court had the power to grant such a right of way under section 88K of the Conveyancing Act 1919 (NSW), despite the limitations on the Council's powers to deal with Community Land. The court had to balance the applicants' need for access with the Council's obligations in managing Community Land.

In determining these issues, the court found that the applicants had established the existence of a prescriptive right of way over the land in question, as the use of the land for access had been continuous, open, and notorious for the requisite period. The court also found that section 88K of the Conveyancing Act did not preclude the granting of a right of way over Community Land in this case, as the primary purpose of the provision was to facilitate access to land, and the grant of the right of way would not interfere with the Council's ability to manage the land for its intended purpose. The court therefore granted the applicants' application for a right of way over the land in question.

The court's decision in this case provides guidance on the interaction between prescriptive rights of way and the management of Community Land by local councils in New South Wales. The final orders of the court granted the applicants a right of way over the land in question, subject to certain conditions designed to protect the interests of both parties.