Mayberry v Mornington Peninsula Shire Council

59 VR 383

MAYBERRY and Others v MORNINGTON PENINSULA SHIRE COUNCIL Supreme Court of VictoriaRichards J 4 February, 13–15 May, 14 June, 16 July, 23 August, 16 September 2019[2019] VSC 623Highways, streets and roads — Carriageway easement — Public highway — Whether private carriageway easement a public highway at common law — Narrow track through easement already a public highway — Whether inference that land owner intended entire easement to be a public highway — Dedication and acceptance — Legal principles — Onus of proof — Transfer of Land Act 1958 (Vic), s 42.Local Government — Roads — Declaration by Council of carriageway easement as a ‘public highway’ — Whether private carriageway easement a ‘road’ for the purposes of s 204 of Local Government Act — Whether easement a ‘right of way’ within the statutory definition of ‘road’ — Whether ‘right of way’ limited to public right of way — Whether decision affected by jurisdictional error — Local Government Act 1989 (Vic) ss 3, 204(1).Local Government — Whether power to declare road under Local Government Act limited by the Land Acquisition and Compensation Act 1996 (Vic) — Local Government Act 1989 (Vic), ss 3, 187, 204, 206, 207B, sch 5.

A narrow sandy track near the boundary of the plaintiffs’ properties lay within a wider corridor of land the subject of carriageway easements in favour of two adjoining properties.

Section 204(1) of the Local Government Act 1989 (Vic) (Local Government Act) provided that ‘A Council may, by notice published in the Government Gazette, declare a road in its municipal district to be a public highway for the purposes of this Act’. Section 3(1) of the Local Government Act relevantly provided ‘road includes (a) a street; and (b) a right of way; and (c) any land reserved or proclaimed as a street or road ...; and (ca) a public road under the Road Management Act 2004; ...’.

Acting under s 204(1) of the Local Government Act, the defendant Council declared the entire corridor a public highway. The parties believed that the effect of this declaration was to vest in the Council ownership of the land within the corridor. The plaintiffs accepted that the narrow track, but not the wider corridor, was a public highway at common law, but they claimed ownership of the land on either side of the track (disputed land).

The plaintiffs applied to the Supreme Court for judicial review of the Council’s decision declaring the corridor a public highway and sought declarations that it was not already a public highway at common law.

The plaintiffs contended the corridor was not a ‘road’ within the meaning of the Local Government Act, and that the phrase ‘right of way’ in para 3(b) of the definition of ‘road’ did not extend to a private easement. Therefore, the corridor could not be the subject of a declaration as a public highway. They contended also that the Council’s power to declare a road to be a public highway in s 204 of the Local Government Act was impliedly limited by the Land Acquisition and Compensation Act 1986 (Vic), and there was no power compulsorily to acquire, in effect, land owned by them.

doi: 10.25291/VR/59-VR-38359 VR 384

Held, declaring that the wider corridor was not a public highway at common law and otherwise dismissing the application.

Public highway

(1)
The narrow track was a public highway at common law but the disputed land in the corridor on either side was not: there was no intention by any former land owner to dedicate the entire corridor as a public highway. [5](a), [62], [68].
Anderson v City of Stonnington (2017) 227 LGERA 176, 188[40], [42], 188–9[43]–[45], 191[54] applied.
Consideration oflegal principles of dedication and acceptance of land as a public highway. [9]–[11].

Onus

(2)
In this case:
- (a)
  the plaintiffs bore the onus of proving the factual basis for the declaration they sought that the disputed land was not a public highway. [15]. They discharged that onus by tendering their certificates of title. [16].
  Haritos v Commissioner of Taxation [2015] VSCA 79[74]–[75] applied.
- (b)
  the onus of proving that the indefeasibility of the plaintiffs’ titles was subject to an exception for ‘any public rights of way’ in s 42 of the Transfer of Land Act 1958 (Vic), lay on the Council as the party asserting it. [17].
  Robinson v Cowpen Local Board [1893] 63 Law J Rep QB 235, 236; Everingham v Penrith Municipal Council (1916) 3 LGR (NSW) 74, 84; Batt v Burnie City Council [2018] TASSC 65[9] followed.
Road
(3)
The entire corridor was a ‘road’ for the purposes of the Local Government Act. A ‘right of way’, construed in the statutory context, included both public and private rights of way and a carriageway easement over private land. But for the inclusion of ‘right of way’ in the definition of ‘road’, the corridor in this case would not have been a road. [5](b), [76]–[86], [93], [98].
Templestowe Developments Pty Ltd v Boroondara City Council [1997] 1 VR 504, 517, 523 followed.
Consideration of whether a declaration under s 204 of the LG Act that a road was a public highway vested that highway in fee simple in the Council. [87]–[89].
By Richards J. It was surprising to find that Parliament had empowered a municipal council to declare a public highway over private land that had not been dedicated as a public highway at common law, with no provision for payment of compensation to the owners of the land. This was at odds with the care taken elsewhere to ensure that the owners of private land were duly compensated when their land was acquired or set aside for some public purpose. [94].

Compensation

(4)
A declaration under s 204 of the Local Government Act did not constitute an acquisition by compulsory process to which the Land Acquisition and Compensation Act1986 applied. [5](c), [101]–[107].

59 VR 385

(4)Connor v Bacchus Marsh Sewerage Authority [1967] VR 627; Treasury Gate Pty Ltd v Rice [1972] VR 148; Costante v City Preston[1994] 1 VR 379; Calabro v Bayside City Council [1993] 3 VR 688; Hazelwood Power Partnership v La Trobe City Council (2016) 218 LGERA 1 considered.

Jurisdictional error

(5)
The Council’s decision was not affected by jurisdictional error:
- (a)
  The decision was not legally unreasonable.
- (b)
  The Council did not fail to give proper, genuine and realistic consideration to a relevant consideration.
  [5](d), [116]–[121].
  Attorney-General (NSW) v Quin(1990) 170 CLR 1, 36; Minister for Immigration and Citizenship v SZJSS(2010) 243 CLR 164, 174–6; Barro Group Pty Ltd v Brimbank City Council(2012) 36 VR 281, 303–4[109]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Singh v Minister for Home Affairs (2019) 267 FCR 200, 216[61] referred to.

Application for judicial review

This was an application for judicial review of a decision of the Mornington Peninsular Shire Council to declare a corridor of private land to be a public highway under s 204 of the Local Government Act 1987 (Vic). The facts are stated in the judgment.

Reserved judgment.A A Walker for the plaintiffs. N M Wood for the defendant. RICHARDS J 1Peter and Janice Mayberry are the registered proprietors of 27 Spray Point Road, Blairgowrie. Their property backs onto 24 Foam Avenue, Blairgowrie, which is owned by Wesley and Jane Gault. A sandy track winds between Spray Point Road and Foam Avenue, along the south-western boundary of both properties. The track is between two and three metres wide, and is used by walkers and the occasional vehicle. It runs through a wider corridor, about ten metres across, which is the subject of carriageway easements in favour of two adjoining properties, at 29 Spray Point Road and 24 Foam Avenue.2On 28 November 2017, the Mornington Peninsula Shire Council resolved to declare the entire corridor as a public highway, under s 204 of the Local Government Act 1989 (Vic) (Local Government Act). The parties understand that the effect of that declaration, if gazetted, will be to vest in the Council ownership of all of the land within the corridor.3The Mayberrys and the Gaults accept that the track was already a public highway at common law. However, they dispute the Council’s position that the whole corridor was already a public highway. They assert their ownership of the disputed land on either side of the track. In this judicial 59 VR 386review proceeding, they seek declarations to the effect that the disputed land is not a public highway, that the Council’s decision was invalid, and that they are the owners of the disputed land.4The outcome of the proceeding turns on the resolution of the following issues:

(a)
Was the corridor already a public highway at common law?
(b)
Was the corridor a ‘road’ for the purposes of the Local Government Act?
(c)
If the corridor was a ‘road’, was the Council’s power under s 204 of the Local Government Act displaced by the Land Acquisition and Compensation Act 1986 (Vic) (Land Acquisition Act)?
(d)
If the Council had power under s 204 of the Local Government Act to declare the corridor to be a public highway, was its decision to do so affected by jurisdictional error?

5For the reasons that follow, I have decided that:

(a)
The track was a public highway at common law. The disputed land in the corridor, on either side of the track, was not a public highway. I was not satisfied that a former owner of the land manifested an intention to dedicate the entire corridor as a public highway.
(b)
The corridor is a ‘road’ for the purposes of the Local Government Act. The definition of ‘road’ includes ‘a right of way’. It is clear from the legislative history of the definition that ‘right of way’ includes both public and private rights of way and encompasses a carriageway easement over private land.
(c)
The Council’s power under s 204 of the Local Government Act was not displaced by the Land Acquisition Act. A declaration under s 204(1) is not an acquisition by compulsory process to which the Land Acquisition Act applies.
(d)
The Council’s decision was not affected by jurisdictional error.

6I will make a declaration to the effect that the disputed land is not a public highway at common law. The proceeding will otherwise be dismissed.

Was the corridor already a public highway at common law?

7The Council’s primary position was that the corridor was already a public highway at common law, and that the resolution merely confirmed its existing status. Annexure A is a cadastral plan that reflects the Council’s position. On this plan, the corridor is shown as ‘Patricia Avenue’.8The Mayberrys and the Gaults relied on a plan of survey that shows the 59 VR 387current location of the track within the corridor, which is depicted in Annexure B. Their position is that only the track, coloured white on the plan of survey, is a public highway.

Dedication and acceptance — legal principles

9The principles concerning the creation of a public highway at common law by dedication and acceptance were recently summarised by the Court of Appeal in Anderson v City of Stonnington:

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. In this context, ‘dedication’ means that ‘the owner of the land intends to divest himself of any beneficial ownership of the soil, and to give the land to the public for the purposes of a highway’.

...

The intention to dedicate land as a public highway may be express or may be inferred from the conduct of the landowner.1

10Many of the cases in which an overt act has been found to manifest an intention to dedicate land as a public highway have involved the designation of land as a road on a plan of subdivision.2 In other cases, where there is no identifiable act of dedication, an intention to dedicate may be inferred from evidence of longstanding public use of the land as a highway ‘without force, without secrecy and without permission’.3 Those cases, in which events take their course over many years, can pose difficult problems of proof, particularly where there have been multiple owners of the land. The common law’s response has been to presume an intention to dedicate where long user is established:

An inference of an intention to dedicate may arise from the manner in which the public uses the land, such as from open, unconcealed and uninterrupted user of the land as a right of way by the public with the acquiescence of the landowner. A finding that the landowner has acquiesced in the use of the land by the public requires a finding that he or she had knowledge of the user. However, proof of actual knowledge is not required. Long and uninterrupted user 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 user was with the knowledge and acquiescence of the owner.

Public user does not have to continue for any fixed minimum period before it can qualify as ‘long user’ and thereby give rise to a presumption of dedication. What constitutes ‘long user’ varies with the circumstances.

Where land has had multiple owners, a person who relies on long, uninterrupted user of the land to support an inference of dedication need not prove the identity

(2017) 227 LGERA 176, 188[40], [42] (Warren CJ, Maxwell P, Kyrou JA) (Anderson) (citations omitted).

For example, Permanent Trustee Company of New South Wales Ltd v Campbelltown Corporation(1960) 105 CLR 401, Templestowe Developments Pty Ltd v City of Boroondara[1997] 1 VR 504 (Templestowe Developments); Bass Coast Shire Council v King[1997] 2 VR 5.

Anderson v City of Stonnington (2016) 217 LGERA 179, 199[70] (McMillan J).

59 VR 388

of the owner ‘from whom the dedication, necessarily inferred from such a user, first proceeded’. This is because often this information will not be available. In such a case, ‘the proper inference is that there was a dedication from a person who could dedicate’, unless the inference is rebutted.4

11Once land has become a public highway through dedication and acceptance, it retains that status regardless of the attitude of subsequent owners, and whether or not they are aware of that status at the time of purchase. Dedication of land as a public highway, once accepted by the public, cannot be retracted or lost by disuse.5Onus of proof 12As will become apparent, the evidence does not reveal any distinct act of dedication of the corridor as a public highway. Rather, the Council submitted that an intention to dedicate the entire corridor as a public highway could be inferred from various matters, including evidence of the use of the track by members of the public. In these circumstances, it matters where the onus of proof lies.13The plaintiffs contended that the onus of proof lies on the Council, as the party asserting that the corridor is a public highway, to prove facts from which dedication can be inferred. They relied on a number of authorities, only three of which I consider to be on point:

(a)
In Robinson v Cowpen Local Board,6 the plaintiff claimed an injunction to restrain the defendants from preventing him from using a strip of land of which he was the owner. The defendant asserted that the public had acquired a right of way over the land. The trial judge held that it would be unreasonable to draw an inference from the evidence of ‘mere user’ that the owner had intended to dedicate the whole of the land to the public, but declared that the public had acquired a right of way over a footpath on the land. The Court of Appeal dismissed an appeal by the defendant, on the basis that it was for the defendant to satisfy the trial judge ‘on the facts proved by them’ that the public right of way existed all over the land, and they had not done so.7
(b)
In Everingham v Penrith Municipal Council,8 the plaintiff sought a declaration against the defendant council, that a portion of land owned by her was not a public road, and an injunction to restrain the council from interfering with her possession and enjoyment of the land. The council asserted that the land was part of an adjoining public road. The trial judge found in favour of the plaintiff, but an

Anderson(2017) 227 LGERA 176, 188–9[43]–[45].

Ibid 191[54].

[1893] 63 Law J Rep QB 235.

Ibid 236 (Lord Esher MR).

(1916) 3 LGR (NSW) 74.

59 VR 389

(b)
appeal to the Full Court of the Supreme Court of New South Wales was allowed. Gordon J was the only judge who dealt expressly with the onus of proof, saying:
it must not be forgotten that the onus lies on the defendant to prove facts from which the Court will draw the inference that the owner at the time having power to dedicate, did dedicate this lane as a public highway.9
(c)
Everingham was followed in Batt v Burnie City Council,10 another case in which the owner of land asserted her title against a council that claimed the land was a public highway at common law. Wood J held:
The dedication and acceptance have to be proved as facts. The onus lies on the party making the claim of highway in respect of land to prove facts from which the court can draw the inference that the owner, at the time, did so dedicate the land.11

14The Council pointed out that the plaintiffs were seeking a declaration that the disputed land is not a public highway. It submitted that, applying well established principles, the plaintiffs bear the onus of proof of any matter that is a necessary element of the declaration sought.12 It disputed the persuasiveness of the authorities relied on by the plaintiffs.15I accept the Council’s submission that the plaintiffs bear the onus of proving the factual basis for the declaration that they seek, that the disputed land is not a public highway. I am conscious that the plaintiffs did not seek that declaration until late in the proceeding, and that they are also concerned with the validity of the Council’s decision. However, the validity of the decision is moot if — as the Council submitted — the entire corridor was already a public highway at common law.16In my view, the Mayberrys and the Gaults have discharged their onus by tendering copies of the relevant certificates of title, which prove that they are the registered proprietors of 27 Spray Point Road and 24 Foam Avenue respectively. Under s 41 of the Transfer of Land Act 1958 (Vic), the certificate of title is conclusive evidence that the person named as proprietor is the proprietor of the land and holds the estate described. As I discuss below, neither certificate of title identifies the corridor as a public highway or road.17The indefeasibility of the plaintiffs’ titles is subject to the exceptions set out in s 42 of the Transfer of Land Act, one of which is ‘any public rights of way’.13 I consider that the onus of proving that this exception applies to the land lies on the person who asserts it — in this case, the Council.9

Ibid 84.

[2018] TASSC 65.

Ibid [9]. Everingham is cited as authority, although the citation given — (1916) 16 SR(NSW) 238 — is that of a report of an evidentiary ruling made in relation to the appeal. The Full Court’s decision on appeal is reported at (1916) 3 LGR (NSW) 74.

Haritos v Commissioner of Taxation[2015] VSCA 79[24]–[25] (Osborne JA, Ferguson and Kaye JJA agreeing). See also Plaintiff M47/2018 v Minister for Home Affairs(2019) 265 CLR 285, 299–300[39] (Kiefel CJ, Keane, Nettle and Edelman JJ).

Transfer of Land Act 1958 s 42(2)(c).

59 VR 39018This conclusion is consistent with the approach taken in each of Robinson, Everingham and Batt, where the person asserting that a public highway had been dedicated bore the onus of proving it against the owner of the relevant land. It is also consistent with the approach taken by Ashley J in Templestowe Developments.14 Although onus of proof was not specifically addressed in that case, his Honour found that the land in question was not a public highway because there was insufficient evidence of dedication and acceptance.15 In other words, his Honour considered whether it had been proved that the land was a public highway, and not whether the plaintiff had proved that it was not a public highway.

The titles 19The land that is now 27 Spray Point Road and 24 Foam Avenue was part of a much larger parcel of land that was the subject of a Crown grant to Denis Keogh on 1 December 1879. The parent title was volume 1160 folio 802 of the Register of Titles. The land is located between Melbourne Road and a section of the Mornington Peninsula National Park adjoining Spray Point and the Blairgowrie ocean beach.20On or about 2 December 1924, Albert Edward Rogan became the registered proprietor of this land. Over the following decades, Mr Rogan and then his estate subdivided and sold parts of the land; the parent title was cancelled part by part, and new certificates of title were issued.21The dealings that are relevant here start with plan of subdivision LP 11454, lodged on 12 May 1926. The plan subdivided a section of the land, on the south-eastern side, into 111 separate lots and two roads, Foam Avenue and Beach Avenue. Lots 95, 96 and 97 in this subdivision, on the north-western side of Foam Avenue, later became 26 and 24 Foam Avenue. This plan of subdivision did not include any road through what was lot 96, where the disputed corridor is now.22Mr Rogan lodged a second plan of subdivision, LP 17893, on 15 April 1948. This plan subdivided another portion of the land, on the north-western side, into 97 lots. There were several roads shown on the plan, including Spray Point Road and Koonya Avenue, running from Melbourne Road towards the ocean, connected by Patricia Avenue. The Patricia Avenue shown on this plan of subdivision meets Spray Point Road opposite what is now the Mayberry property, 27 Spray Point Road.23There remained a section of the land that was not subdivided, between the south-eastern side of Spray Point Road and the 1926 subdivision. This section included the land that later became 27 and 29 Spray Point Road.24On 9 September 1949, Mr Rogan transferred lot 95 and part of lot 96 — that is, 26 Foam Avenue — to John George Hill, by instrument of transfer 2251208. 14

[1997] 1 VR 504.

Ibid 518, 522.

59 VR 391The instrument of transfer granted a right of carriageway in the following terms:

together with a right of carriageway over the roads coloured brown on Plan of Subdivision No 11454 and 17893 lodged as aforesaid and over the road coloured brown on the map herein.

There is a map on the instrument of transfer that shows Spray Point Road and Ocean Avenue,16 with the corridor between them coloured brown, as shown in Annexure C. The transfer and the creation of the easement were registered on 20 September 1949.

25Mr Rogan transferred the land that is now 29 Spray Point Road17 to Seddon Francis John Kirwan and Alice Maude Kirwan on 30 November 1954. Instrument of transfer 2697541 also granted a right of carriageway:

over the land coloured brown on the said plan and known as Spray Point Road and over the road coloured brown hatched.

The map on the instrument of transfer showed Spray Point Road coloured brown, and the corridor between Spray Point Road and Ocean Avenue18 coloured brown and hatched, as shown in Annexure D.

26Following this transfer, both 26 Foam Avenue and 29 Spray Point Road had the benefit of a carriageway easement over the corridor between Spray Point Road and Foam Avenue, along the north-eastern boundary of both properties. At this time, Mr Rogan still owned 24 Foam Avenue, which was part of the 1926 subdivision, and 27 Spray Point Road, which was still part of the parent title.27On 1 October 1959, Mr Rogan transferred part of lot 96 and all of lot 97 — that is, 24 Foam Avenue — to Betty Delaney, by instrument of transfer A832129. The land transferred included part of the corridor. The transfer noted that the land was subject to the easements set out at the foot of the certificate of title. Both the certificate of title and title plan 258637W show an area of land coloured blue that is encumbered by the easements. There is no mention of a road over the corridor in the transfer, the certificate of title, or the title plan.28The parent title records that Mr Rogan died in March 1964 and that letters of administration of his estate were granted to Mary Lorna Black. On 30 June 1969, Mrs Black transferred the land that is now 27 Spray Point Road to herself and Patricia Aileen Barclay. The land transferred was described in the transfer as ‘the land coloured red and blue on the plan annexed hereto together with a right of carriageway over Spray Point Road’. The encumbrances on the land were described ‘as to the land coloured blue — all 16

For some reason the road that is shown on plan of sub-division LP 11454 as Foam Avenue, and is now called Foam Avenue, was referred to as Ocean Avenue in this document.

In 1970 this land was re-subdivided, and one corner of 29 Spray Point Road became part of 32 Foam Avenue.

This instrument of transfer also referred to Foam Avenue as Ocean Avenue.

59 VR 392easements affecting same’. The plan annexed to the transfer showed the area coloured blue, which corresponds with the corridor. The word ‘road’ was written and crossed out on the blue area on the plan, as shown in Annexure E. Both the certificate of title and title plan 614743Q show the blue area that is affected by the easements, but do not describe it as a road.29The Mayberrys became the registered proprietors of 27 Spray Point Road on 5 July 1979. The Gaults purchased 24 Foam Avenue some years later, and became the registered proprietors on 22 March 2010. The Council’s case is that the whole of the corridor was a public highway before the Mayberrys became the owners of 27 Spray Point Road in 1979.The carriageway easements 30As noted, Mr Rogan granted two carriageway easements over the corridor: the first in 1949, in favour of what is now 24 Foam Avenue, and the second in 1954, in favour of 29 Spray Point Road.1931The plaintiffs submit that these grants indicate that the corridor was not then a public highway. They argue that there would have been no need to create private rights of way if the land was already a public highway. This submission requires attention to the nature of a carriageway easement, and its interaction with a public right of way.32At the time the easements were granted, the Transfer of Land Act 1928 (Vic) was in force. Section 69 of that Act provided:

Whenever any such certificate of title as aforesaid contains the words ‘Together with a right of carriage-way over’ [specifying or describing the road or roads over which the easement is created and referring to a map endorsed whereon such road or roads is or are coloured brown] such words shall have the same effect and shall be construed as if there had been inserted in such certificate of title the words contained in the Sixth Schedule.

33The Sixth Schedule to the Transfer of Land Act 1928 provided:

Creation of Right of Carriage-way in a Transfer of Freehold Land.

Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.

34A very similar form of words is used in the Transfer of Land Act 1958 to 19

In 1970, there was a further subdivision of 29 Spray Point Road and 32 Foam Avenue, so that a corner of the land that had been part of 29 Spray Point Road became part of 32 Foam Avenue. As a result of this subdivision LP84902, 32 Foam Avenue also has the benefit of the carriageway easement granted to 29 Spray Point Road, although no part of it abuts the corridor.

59 VR 393describe a right of carriageway.20 Since 2017, the consent of the local council has been required for the registration of a new right of carriageway.21 There was, however, no such requirement in 1949 or 1954, when the easements were granted and registered.35The essential characteristics of an easement include that there must be a dominant and a servient tenement, and that the easement must accommodate the dominant tenement.22 This distinguishes a grant of a carriageway easement from the dedication of a highway to the public at large. A private right of way is ‘a very different thing’ from a public road or highway.2336One difference is that the owner of the dominant tenement can undertake works on the easement to give effect to the right of carriageway by, for example, removing vegetation, grading land or creating or maintaining a road.24 The right to undertake works is ‘limited by what is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement’.25 It is also limited by the planning controls that apply to the land.2637At common law, a public highway and a private right of way can coexist over the same land.27 That appears to have been the position in 1949 and 1954, when the easements were created. It is no longer the case in Victoria, due to the operation of sch 5, cl 14 of the Road Management Act 2004 (Vic) (Road Management Act). That clause now provides that a private right of way or easement cannot develop or co-exist with a public right of way over the same land, or revive on the discontinuance of a public road over that land.38Similarly, the discontinuance of a road by a council now has the effect of extinguishing any carriageway easements over that road.28 This has been the position in Victoria since s 528 of the Local Government Act 1958 was amended in 1965.29 When the easements were created in 1949 and 1954, however, the discontinuance of a road would not necessarily have extinguished any easements over the same land.3020

Transfer of Land Act 1958 s 72(3) and Twelfth Schedule.

Transfer of Land Act 1958 s 73B, inserted by the Land Legislation Amendment Act 2017 (Vic) with effect from 20 September 2017.

Riley v Penttila[1974] VR 547, 557.

Rangeley v Midland Railway Company(1868) LR 3 Ch App 306, 311.

Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315, 333 (Brooking J); Mantec Thoroughbreds Pty Ltd v Batur(2009) 25 VR 507, 525–6[89]–[91] (Habersberger J) (Mantec Thoroughbreds) .

Mantec Thoroughbreds(2009) 21 VR 507, 526[92].

In this case, for example, the Mornington Peninsula Shire Planning Scheme applies a Vegetation Protection Overlay to the corridor.

Attorney-General v Esher Linoleum Company Ltd[1901] 2 Ch 647.

Local Government Act 1989 (Vic) ss 207B(3) and 207C.

Local Government (Amendment) Act 1965 (Vic) s 9. See Treasury Gate Pty Ltd v Rice[1972] VR 148, 166–7; Costante v City of Preston[1994] 1 VR 379, 382–3 (Costante).

The plaintiffs submitted that the combined effect of s 517 of the Local Government Act 1946 (Vic) and s 304 of the Land Act 1928 could have been to extinguish any private rights of carriageway over a road discontinued under s 304. I accept the Council’s submission that these provisions applied only in respect of a road over Crown land, and have no application in this case.

59 VR 394The track 39As mentioned, there is a sandy track that runs through the corridor from Spray Point Road to Foam Avenue. The evidence about the track is significant in determining whether the entire corridor was already a public highway. It is convenient to start with a description of what is there now, from the observations I made during a view on 4 February 2019.40Opposite 27 Spray Point Road there is an unsealed road marked Patricia Avenue, running off Spray Point Road to the north-west. It is slightly offset and does not align with the corridor. Spray Point Road is also unsealed and the corners of the easement are not marked.41The track is about a single vehicle wide, and runs roughly along the south-western side of the corridor, in a south-easterly direction towards Foam Avenue. The track does not follow a straight line, but meanders between Spray Point Road and Foam Avenue.42There is a fence along the south-western side of the corridor, where it borders 29 Spray Point Road. Towards the rear of 29 Spray Point Road there is a gateway off the easement, which could be used for vehicle access. At the time of the view, there was a small bush growing in front of the closed gate and it did not look like a vehicle had been through there for some time.43The north-eastern boundary of the corridor is not marked in any way on the Mayberry property. On either side of the track the corridor through the Mayberry property is well vegetated, mainly with native vegetation, except for an area that has been cleared for vehicle access and parking at the rear of the Mayberrys’ house.44The south-western side of the corridor continues along the boundary of 26 Foam Avenue, which is also fenced. There is a pedestrian gate off the easement into the back garden of 26 Foam Avenue. There is currently no vehicle access from the corridor to 26 Foam Avenue.45A footpath leads from the track to the rear of the Gaults’ house, past a survey peg that Mr Gault said marked the edge of the easement over their property. The boundary of the easement over the Gault property is otherwise unmarked. The track provides vehicle access to the Gault property.46There is a slope across the corridor, and the track runs along the lower part. At the Spray Point Road end of the corridor, the land slopes upwards towards the Mayberrys’ house. The slope becomes steeper towards the Foam Avenue end of the corridor, where it is quite pronounced.47Mr Gault pointed out a retaining wall that the Gaults built between their house and the track. It appears to run along the edge of the corridor, perhaps extending slightly into it. At that point, the track is well below the upper part of the corridor and there is substantial vegetation between the track and the 59 VR 395retaining wall.48Mr Gault also pointed out vegetation they had planted along the corridor, including moonahs and casuarinas. The plants along either side of the track at the Gaults’ end of the corridor are well established and look to be part of a well-tended and attractive garden that extends up the slope towards the house. Several of the casuarinas have now grown to a height that provides a screen between the Gaults’ house and their neighbours at 26 Foam Avenue.49The track emerges onto Foam Avenue at the south-eastern end of the corridor. The southern corners of the corridor can be identified from a survey peg on the boundary with 26 Foam Avenue and a concrete post bearing the number 24. On the other side of Foam Avenue, an unsealed road marked Patricia Avenue runs to the south-east, in direct alignment with the corridor.50Mr Mayberry’s evidence was that the track was there and had been available for use by the public since at least July 1979, when he and Mrs Mayberry became the owners of 27 Spray Point Road. There is evidence that it had existed for some years before that.51Both parties relied on aerial photographs to show the existence and position of the track over the years. The earliest photograph, dating from 1939, is of poor quality. Spray Point Road and Foam Avenue are visible, but it is not possible to see whether there was a track between them along the corridor. In the next photograph, from 1960, a track is faintly visible along the corridor, through what looks to be dense vegetation. The track is better defined in the next photograph, taken in 1971. Aerial photographs from then until 201831 all show the track in more or less the same position it occupies now, although the density of the surrounding vegetation varied over the years.52It is not possible to tell the precise dimensions of the track from the aerial photographs, or whether those dimensions have varied over time. Mr Mayberry’s evidence was that the track had been in the same place since at least July 1979, although he accepted that there had been minor variations caused by vehicles driving over it. Mr Gault confirmed that there had been no significant change in the location of the track since March 2010, although some of the vegetation had been replanted and had grown during that time.53The Council drew attention to a number of the submissions made in 2017, in response to its proposal to declare the corridor to be a public highway, which referred to the existence of the track over many years:

(a)
The President of the Spray Point Wild Coast Area Conservation Group said that ‘Members and their families have been travelling along it by foot or vehicle for over 50 years to get to and from the back beach, visit neighbours, go to the Koonya Store, and undertake

The remaining photographs were dated 1972, 1987, 2000, 2003, 2005, 2007, 2009, 2010, 2011, and then each year from 2013 to 2018.

59 VR 396

(a)
other pursuits’.
(b)
The Roads Convenor of the same group noted ‘a common law right of way by use over many decades on foot or vehicle. Long term residents can provide supporting comment on this long term usage’.
(c)
One long term resident made a hand written submission in which he said ‘I have been using that section of Patricia Avenue for ingress and egress since I acquired land on Beach Avenue in the year 1961’.
(d)
Two other submitters wrote of having holidayed in Foam Avenue for decades: one for nearly 40 years, the other for over 60 years. Both said that they had always used that section of Patricia Avenue, including to access the Spray Point Road carpark and the back beach.
(e)
Another submitter had lived in the area for almost 30 years and in that time had been able to walk through Patricia Avenue without hindrance. He added:
When this proposal first came to attention it was widely discussed in the area by the local residents and I remember vividly some older residents, in their 80s, who said they have been walking through that pathway since childhood days.
(f)
A neighbour who had lived nearby since 2002 said that her family had used the track ‘on a regular basis both in a vehicle or on foot’. She added:
To be frank we are very surprised that the status of the road is in some doubt as to the best of our knowledge this has been a public thoroughfare since the original subdivision in the 1920s.
The basis for this assertion was not clear from the submission.
(g)
Several other submitters wrote more generally of the track having been used by the public for many years.

54Based on the aerial photographs and the submissions made to Council, I am satisfied that the track has been used by the public since at least 1960, both as a footpath and for vehicle traffic. I am unable to make any finding as to whether the track existed before that date. Some of the submissions suggested that there was at least a footpath there in the 1940s and 1950s. However, those submissions are untested hearsay and of insufficient weight to satisfy me, on the balance of probabilities, that the track was in use as a public way before 1960.The plaintiffs’ concession 55The plaintiffs accepted that the track is a public highway. They made this concession in the face of the evidence of longstanding and uninterrupted use of the track by the public, which gave rise to a presumption that the 59 VR 397track had been dedicated by a previous owner of their land.32 There is no evidence to rebut that presumption, and so the proper inference is that the track was dedicated by a person who could dedicate it.56Having made that concession, the plaintiffs maintained that there was no evidence of express dedication of either the track or the corridor. The Council contends that it should be inferred from the evidence that the entire corridor, not only the track, was dedicated as a public highway.Was the corridor dedicated as a public highway? 57It is clear enough that Mr Rogan did not dedicate the corridor as a public highway in 1926, when he lodged plan of subdivision LP 11454. At that time, s 211 of the Transfer of Land Act 1915 (Vic) required the map of land being subdivided to ‘exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for the use of the purchasers’. The 1926 plan of subdivision shows no road through lot 96, where the corridor now lies.

58Nor is the corridor shown as a road on plan of subdivision LP 17893, lodged in 1948, in respect of land to the north-west of Spray Point Road. That plan delineated a road called Patricia Avenue, connecting Spray Point Road and Koonya Avenue, opposite the land that is now 27 Spray Point Road. The south-eastern side of Spray Point Road is an unbroken line, with no break to indicate a road where the corridor now meets Spray Point Road.59The Council submitted that an intention to dedicate the entire corridor as a public highway could be inferred from the following:

(a)
In 1949, and again in 1954, Mr Rogan granted a carriageway easement over the whole of the corridor. The area of land that is subject to these private rights of way is defined, with precision, in the title documents for both the dominant and the subservient tenements. The owners of 26 Foam Avenue and 29 Spray Point Road had a right of way over the whole of the corridor, despite the existence of vegetation and the slope across the corridor.
(b)
The instruments of transfer that created the carriageway easement described the corridor as a ‘road’.
(c)
The public have walked and driven between Spray Point Road and Foam Avenue, along the corridor, since at least 1960, possibly earlier.
(d)
Successive owners of 27 Spray Point Road and 24 Foam Avenue have not sought to differentiate between the public right of way over the track and the private carriageway easement – by, for example, fencing the track. On that basis, this case is indistinguishable from

Anderson(2017) 227 LGERA 176, 188–9[43]–[45], extracted at [10] above.

59 VR 398

(d)
Attorney-General v Esher Linoleum Company Ltd,33 in which dedication was inferred from the existence of a public right of footway along the length of a private right of carriageway.
(e)
The location and dimensions of the track within the corridor are inherently imprecise and disputable. They have only recently been surveyed and, before then, were not precisely defined. It is apparent from the aerial photographs that the vegetation on either side of the track has changed over time, and it is likely that the contours of the track have also changed.
(f)
Later title documents refer to the corridor as a ‘road’. The Council relied in particular on the title plans for 29 Spray Point Road and 26 Foam Avenue, and the plan of subdivision LP 84902 for 29 Spray Point Road and 32 Foam Avenue, lodged in 1969.

60The Council argued that the most natural inference to be drawn from these matters is that Mr Rogan intended to dedicate the whole of the corridor as a road. It was most likely, the Council submitted, that the previous owner (who the plaintiffs accept must have dedicated the track) dedicated the precisely defined area of land that had already been encumbered with a carriageway easement.61Against this, the plaintiffs submitted that the inference should not be drawn because:

(a)
The creation of private rights of carriageway over the corridor did not give rise to an inference of intention to dedicate the corridor as a road. The carriageway easements were created for the benefit of the owners of 26 Foam Avenue and 29 Spray Point Road, not for the public at large.
(b)
Although it was not conclusive, the creation of the carriageway easements was an indication that Mr Rogan did not intend to dedicate the land as a road. If that had been his intention, the plaintiffs submitted, there would have been no need to create the easements.
(c)
The reference to the corridor as a ‘road’ in the 1949 and 1954 transfers simply reflected the language prescribed by the Transfer of Land Act 1928 for the creation of a right of carriageway. It was not evidence of an intention to dedicate the land as a public highway.
(d)
The corridor was not referred to as a ‘road’ in the instruments that transferred 24 Foam Avenue and 27 Spray Point Road out of the parent title, in 1959 and 1969 respectively. The plaintiffs emphasised that the word ‘road’ was crossed out in the transfer for 27 Spray Point Road. The titles for both properties note the easement over the corridor but do not refer to it as a ‘road’.

[1902] 2 Ch 647.

59 VR 399

(e)
This case is distinguishable from Esher Linoleum on two grounds. The first is that, unlike the footpath in that case, the track did not exist before the easements were created. The second is that, since the easements were created, successive owners have maintained vegetation along the corridor that has confined the public traffic to the track.

62Overall, the plaintiffs submitted that there was not sufficient evidence to demonstrate an implied dedication of the entire corridor. I agree. I am not satisfied, on the balance of probabilities, that Mr Rogan or any later owner dedicated the entire corridor as a public highway.63The earliest that I can be confident that the track was in public use was 1960, after the creation of the private easements. Since 1960, the location of the track within the corridor has been more or less the same. There remained vegetation over the rest of the corridor that, along with the natural contours of the land, kept public traffic to the track. There is no evidence that the disputed land has in fact been used by the public. For those reasons, this case is different from Esher Linoleum, and the presumptions made in that case cannot be made here.64The creation of the carriageway easements in the 1949 and 1954 transfers is neutral — it neither manifests nor negates an intention to dedicate the corridor as a public highway. The Court of Appeal observed in Anderson that a carriageway easement added value to land in a manner that a public right of way did not; in part, because easement rights were ‘much more secure and enduring’ than public rights that could be revoked by the statutory discontinuance of a road.34 It is difficult to reconcile that observation with the position, since 1965, that the discontinuance of a road has had the effect of extinguishing any easement over the road.35 I need not attempt that reconciliation here, because the observation reflected the position in 1949 and 1954, when the easements were created.65The terms of the relevant instruments of transfer are another reason why I consider the grant of the easements to be a neutral factor. Both transfers also granted rights of carriageway over roads delineated in the earlier subdivisions: the 1949 transfer over Foam Avenue and Spray Point Road and the 1954 transfer over Spray Point Road. It appears that Mr Rogan thought there was something to be gained by granting rights of carriageway over roads that he had already dedicated to public use. It follows that his creation of carriageway easements over the corridor did not necessarily negate an intention to dedicate the corridor as a public highway.66I accept that the reference to the corridor as a ‘road’ in the transfers that created the easements, in 1949 and 1954, did no more than use the language prescribed by the Transfer of Land Act 1928. I do not consider it to be evidence 34

Anderson(2017) 227 LGERA 176, 199–200[89].

See [38] above.

59 VR 400of an intention to dedicate the land as a public highway. This conclusion is reinforced by the fact that both the 1959 transfer for 24 Foam Avenue, and the instrument that transferred 27 Spray Point Road out of the parent title in 1969, note the existence of the easements over the corridor, but do not refer to it as a road.67I place no weight on the description of the corridor as a ‘road’ in subsequent documents, such as the title plans for 29 Spray Point Road and 26 Foam Avenue, the plan of subdivision for 29 Spray Point Road, and the Department of Environment, Land, Water and Planning cadastral plan. These documents might evidence acceptance by others of an assumed dedication, but they do not in my view manifest an intention on the part of the owner to dedicate the corridor as a public highway.68I find that the whole corridor was not dedicated as a public highway. It follows that the disputed land was not already a public highway at common law when the Council decided to declare the corridor as a public highway for the purposes of the Local Government Act.

Was the corridor a ‘road’ for the purposes of the Local Government Act?

69Section 204 of the Local Government Act provides:

(1)
A Council may, by notice published in the Government Gazette, declare a road in its municipal district to be a public highway for the purposes of this Act.
(2)
A Council may, by resolution, declare a road that is reasonably required for public use to be open to public traffic.
(3)
A road does not become a public highway by virtue of a Council resolution made under subsection (2).

70The parties were agreed that a valid exercise of the Council’s power under s 204(1) is conditioned on the existence of a ‘road’, as a matter of jurisdictional fact.36 The Local Government Act defines ‘road’ to include:

(a)
a street; and
(b)
a right of way; and
(c)
any land reserved or proclaimed as a street or road under the Crown Land (Reserves) Act 1978 or the Land Act 1958; and
(ca)
a public road under the Road Management Act 2004; and
(d)
a passage; and
(e)
a cul de sac; and
(f)
a by-pass; and
(g)
a bridge or ford; and
(h)
a footpath, bicycle path or nature strip; and
(i)
any culvert or kerbing or other land or works forming part of the road ...37

City of Enfield v Development Assessment Commission(2000) 199 CLR 135, 148[28] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Plaintiff M70/2011 v Minister for Immigration and Citizenship(2011) 244 CLR 144, 179–80[57] (French CJ), 194[107] (Gummow, Hayne, Crennan and Bell JJ).

Local Government Act 1989 s 3.

59 VR 40171The Council contended that the corridor was a ‘road’ within this definition in two ways:

(a)
first, the carriageway easements were a ‘right of way’ within paragraph (b) of the definition; and
(b)
secondly, the corridor was otherwise a ‘road’.

72The plaintiffs disputed both contentions.What is meant by ‘right of way’ in the definition of ‘road’? 73The Council submitted that the words ‘right of way’ in the definition of ‘road’ include a private right of way in the form of a carriageway easement. It relied on the description of the rights conferred by a carriageway easement, in what is now the Twelfth Schedule of the Transfer of Land Act.38 It also relied on authorities to the effect that a ‘right of way’ is synonymous with a ‘right of carriageway’.39 It submitted that it is enough that the right of way exists on paper, regardless of its physical characteristics on the ground.40 The Council placed particular emphasis on the reasoning in Templestowe Developments, in which Ashley J rejected an argument that the definition of ‘road’ in the Local Government Act is restricted to public roads.74The plaintiffs argued that ‘right of way’ does not include a private carriageway easement that is not used by members of the public as a road. They submitted that all of the other examples referred to in the definition are either roads that members of the public have a right to use, or are types of physical roads or structures that form part of roads, and are capable of being used by members of the public as a road. They relied on the maxim noscitur a sociis (the meaning of a word or phrase is to be derived from its context) to submit that ‘right of way’ means a physical right of way that is being used by members of the public. They also relied on the presumption that, where a provision is capable of more than one meaning, the meaning to be preferred is that which least interferes with private property rights.41 In relation to Templestowe Developments, they pointed out that the case concerned land that had been dedicated as a road in a plan of subdivision, and not a private carriageway easement. They relied on the Court of Appeal’s decision in Anderson, which left open the question of whether a ‘right of way’ is a ‘road’ within the definition in s 3(1).4275The principles to be applied in construing the relevant provisions are well established.43 The process of statutory construction begins and ends with 38

See [33]–[34] above.

Mantec Thoroughbreds(2009) 25 VR 507, 521[65]; Anderson(2017) 227 LGERA 176, 222[201].

Templestowe Developments[1997] 1 VR 504, 523–4; Bass Coast Shire Council v King[1996] 2 VR 5, 16–18.

R & R Fazzolari Pty Ltd v Parramatta City Council237 CLR 603, 619–20[43]–[44] (French CJ); Obeid v Victorian Urban Development Authority[2012] VSC 251[89]–[95].

Anderson(2017) 227 LGERA 176, 222[201]–[202].

Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355, 384[78] (McHugh, Gummow, Kirby and Heydon JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7[46]–[47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd(2012) 250 CLR 503, 519[39]; Certain Lloyds Underwriters v Cross(2012) 248 CLR 378, 389[24]; and Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd[2016] VSCA 328[47]–[55] (Colonial Range).

59 VR 402the text of the statute. The primary object is to construe the provisions so that their legal meaning is consistent with the language used and the legislative purpose of the statute. Legislative purpose is determined by considering the text of the relevant provisions in the context of the entire statute, as well as the existing state of the law, the mischief that the statute was intended to remedy, the history of the legislative scheme and the extrinsic materials.4476Taken in isolation, the words ‘right of way’ in the definition of ‘road’ are capable of meaning a public right of way, or a private right of way, or any right of way, whether public or private. However, words take their meaning from the context in which they are used. In this case, that context includes not only the current definition of ‘road’, but also the history of that definition in the Local Government Act.

Context — legislative history

77When the Local Government Act was first enacted in 1989, it defined ‘road’ to include:

(a)
a private road; and
(b)
a street (including land reserved or proclaimed as a street under the Land Act 1958); and
(c)
a passage; and
(d)
a cul de sac; and
(e)
a public highway; and
(f)
any land described or used as a road by the owner in relation to a transfer or conveyance which grants a right of way over the land; and
(g)
any footpath, bicycle path, nature strip or any other matter or thing forming part of a road.

There was no separate definition of ‘private road’ or ‘public highway’.

78A carriageway easement was clearly covered by paragraph (f) of this definition, and may also have fallen within paragraph (a).79This definition was deleted by the Local Government (Miscellaneous Amendments) Act 1993 (Vic), and replaced with the following definition:

‘road’ includes—

(a)
a street; and
(b)
a right of way; and
(c)
any land reserved or proclaimed as a street or road under the Crown Land (Reserves) Act 1978 or the Land Act 1958; and
(d)
a passage; and

Colonial Range[2016] VSCA 328[47]–[48].

59 VR 403

(e)
a cul de sac; and
(f)
a by-pass; and
(g)
a bridge or ford; and
(h)
a footpath, bicycle path or nature strip; and
(i)
any culvert or kerbing or other land or works forming part of the road.

80At the same time, a ‘public highway’ was defined to be a ‘road which is open to the public for traffic as a right, irrespective of whether the road is in fact open to traffic’. It included a road declared to be a public highway under s 204(1) and a road which becomes a public highway under s 24(2)(c) of the Subdivision Act 1988 (Vic). The definition of ‘public highway’ gave clarity to provisions of the Local Government Act concerning public highways. Those provisions included s 203, which had the effect of vesting a public highway in fee simple in the local council.81The 1993 amendment thus removed the references to a ‘private road’, a ‘public highway’ and ‘any land described or used as a road by the owner in relation to a transfer or conveyance which grants a right of way over the land’ from the definition of ‘road’. In their place was a single reference to a ‘right of way’.82The definitions of ‘road’ and ‘public highway’ have since been amended to include a public road under the Road Management Act.83The plaintiffs submitted that the exclusion of the reference to a ‘private road’ from the definition supported their argument that a ‘right of way’ does not include a private right of carriageway. I do not agree that the amendments had that effect. I can discern no legislative intention to narrow the definition of ‘road’. Rather, the intention appears to have been to clarify the definition.45 This was achieved by using ‘right of way’ to refer to each of a private road, a public highway, and land over which a right of way had been granted by a transfer or conveyance.84This legislative history does not support the plaintiffs’ argument that a ‘right of way’ is limited to a public right of way because the other paragraphs of the definition of ‘road’ all have some public flavour. In Templestowe Developments, Ashley J was of the view that not all paragraphs of the definition are necessarily of a public character.46 I share that view, in light of the legislative history of the definition.85Read in the context of that history, it appears that the meaning of ‘right of way’ in the definition of ‘road’ in s 3(1) of the Local Government Act includes a private right of way, such as a carriageway easement over private land.86This would mean that a municipal council can, under s 204 of the Local 45

In introducing the Local Government (Miscellaneous Amendments) Bill 1993, the Minister said that there were ‘amendments to clarify the road provisions’: Victoria, Parliamentary Debates, Legislative Council, 28 October 1993, 812 (Mr Hallam, Minister for Local Government).

Templestowe Developments[1997] 1 VR 504, 517, 523.

59 VR 404Government Act, declare any carriageway easement over private land to be a public highway, or to be a road that is reasonably required for public use to be open to public traffic. There are few constraints on the exercise of the powers in s 204. One important constraint is the need for strict compliance with the procedures prescribed by the Local Government Act.47 More generally, a council must exercise the power lawfully — reasonably, in good faith, and for the purpose for which it was conferred.

Interference with private property rights

87As noted, the plaintiffs submitted that the preferable interpretation of ‘right of way’ was the one that least interfered with private property rights. Before turning to that argument, it is necessary to identify the extent to which a declaration that a carriageway easement is a road would interfere with private property rights. The parties conducted the case on the basis that the effect of gazetting the Council’s declaration would be to vest the corridor in fee simple in the Council. I am not sure that this is so.88The relevant provisions, which are convoluted and spread across the Local Government Act and the Road Management Act, are as follows:

(a)
On the gazettal of a declaration under s 204(1) the road becomes a public highway for the purposes of the Local Government Act — a ‘road which is open to the public for traffic as a right, irrespective of whether the road is in fact open to traffic’.48
(b)
Section 205 of the Local Government Act provides for a Council to have the care and management of certain roads:
- (1)
  A Council has the care and management of—
  - (a)
    all public highways vested in the Council; and
  - (b)
    all roads that are the subject of a declaration under section 204(2); and
  - (c)
    all public highways on Crown land and roads vested in a Minister (other than freeways and arterial roads within the meaning of the Road Management Act 2004 and public highways and roads vested in a public authority); and
  - (d)
    all roads that the Council has agreed to have the care and management of.
- (2)
  This section is subject to the Road Management Act 2004.
(c)
Until 2004, s 203 of the Local Government Act provided that a public highway vested in fee simple in the Council of the municipal district in which it was located. A ‘public highway’ in the Local Government Act has, since the 1993 amendments, encompassed both a public highway at common law and a road declared to be a public highway

Local Government Act 1989 (Vic) ss 207A(c), 223; Costante[1994] 1 VR 379, 383; Templestowe Developments[1997] 1 VR 504, 515–16.

Local Government Act 1989 (Vic) s 3(1) — definition of ‘public highway’.

59 VR 405

(c)
under s 204(1).
(d)
The former s 203 of the Local Government Act was repealed in 2004, by the Road Management Act. Schedule 5, cl 1(4) of the Road Management Act now provides that a road vests in fee simple in the municipal council of the municipal district in which it is located, upon becoming a road.
(e)
The definition of ‘road’ in the Road Management Act differs from that in the Local Government Act. The Road Management Act defines ‘road’ to include:
- (a)
  any public highway;
- (b)
  any ancillary area;49
- (c)
  any land declared to be a road under section 11 or forming part of a public highway or ancillary area;
(f)
For the purposes of the Road Management Act, a ‘public highway’ means ‘any area of land that is a highway for the purposes of the common law’.50 There is scope for argument whether land that has been declared to be a public highway for the purposes of the Local Government Act, but which is not a public highway at common law, is excluded from the definition of ‘road’ in the Road Management Act. Resolution of this argument would require careful attention to the context of the Road Management Act, including the fact that the definition of ‘public road’ in s 17 includes a road that is declared under s 204(1) of the Local Government Act.
(g)
Section 11 of the Road Management Act enables a road authority — which includes a municipal council — to declare and name a road:
- (1)
  A road authority may by notice published in the Government Gazette declare a road under this Act over—
  - (a)
    any land owned by the road authority; or
  - (b)
    subject to subsection (2), any land managed by the road authority.
    ...
- (3)
  Land declared to be a road under subsection (1) becomes a road from the date of publication of the notice or a later date specified in the notice.
(h)
There is a distinction made in the Road Management Act between ‘land’ and ‘road’. The Road Management Act defines ‘land’ to include:
... any estate, interest, easement, servitude, privilege or right in or over land and strata above or below the surface of land and easements and rights to use strata above or below the surface of land.

An ancillary area — such as a carpark or rest stop — may be designated over ‘land owned or managed by the coordinating road authority’: Road Management Act 2004 (Vic) ss 3(1) – definition of ‘ancillary area’ and 18.

Road Management Act 2004 (Vic) s 3(1).

59 VR 406

(i)
It may follow that there is also a distinction between managing land and managing a road — so that, under the Road Management Act, a municipal council cannot have responsibility for managing a road unless it first either owns or has the management of the land on which the road lies. Section 187 of the Local Government Act provides for a council to compulsorily acquire land, in which case compensation is payable in accordance with the Land Acquisition Act. There is scope for argument as to whether a resolution under s 204(2) of the Local Government Act — that a road that is reasonably required for public use is open to public traffic — gives the Council management of the relevant land, for the purposes of the Road Management Act.

89In short, I am not confident that the effect of gazetting the Council’s declaration under s 204(1) of the Local Government Act will be to make the disputed land a ‘road’ for the purposes of the Road Management Act, or to vest it in fee simple in the Council. It is not necessary for me to resolve this question in order to decide this case, and I could not do so without hearing full argument.90It is sufficient to note that if a carriageway easement over private land is a ‘right of way’, and hence a ‘road’ for the purposes of the Local Government Act, this could interfere with private property rights in the following ways:

(a)
In addition to its power under s 204(1), the Council could, under s 204(2), declare that the easement is a road that is reasonably required for public use and is open to public traffic.
(b)
By virtue of s 206, the Council would have all of the powers in relation to roads that are set out in Sch 10 in relation to the easement. These include powers to make, maintain and repair the road, to fix and alter the level of the road, and to narrow, widen and fence the road.51
(c)
The Council would also have power, under sch 10, cl 3 of the Local Government Act, to discontinue the road. In that event, s 207B vests the land which is the road in the Council in fee simple, and the Council can sell the land from that road, or transfer the land to the Crown or to itself.

91The Local Government Act makes no provision for payment of compensation to persons with an interest in the relevant land in any of these circumstances.92It is an established principle of statutory construction that, where a provision is capable of more than one meaning, the meaning to be preferred is the one that least interferes with private property rights. This is an aspect of the principle of legality — the presumption that Parliament does not intend to 51

Local Government Act1989 sch 10, cls 1, 8, 10.

59 VR 407encroach upon fundamental common law rights and freedoms unless that intention is clear from the words of the statute.5293However, I can find no room to apply this principle in relation to the meaning of ‘right of way’ in the definition of ‘road’ in the Local Government Act. In the context of the legislative history of that definition, it is clear that ‘right of way’ means both public and private rights of way and includes a carriageway easement over private land.94I reach this conclusion unwillingly, and without having been able to identify any legislative policy that justifies the potential interference with private property rights involved. It is surprising to find that Parliament has empowered a municipal council to declare a public highway over private land that has not been dedicated as a public highway at common law, with no provision for payment of compensation to the owners of the land. This position is at odds with the care taken elsewhere in the statute book to ensure that the owners of private land are duly compensated when their land is acquired or set aside for some public purpose.5395It remains to consider the plaintiffs’ alternative contention that the Council’s power under s 204, to declare the carriageway easements to be a public highway, is impliedly limited by the Land Acquisition Act.Was the corridor otherwise a ‘road’? 96Before doing so, I should address the Council’s alternative submission that the corridor was otherwise a ‘road’ for the purposes of the Local Government Act, whether or not a ‘right of way’ includes a private carriageway easement. The Council based this submission on the reasoning in Templestowe Developments.97In that case, the land in question had been delineated as a road on a 1920 plan of subdivision. The land remained a ‘paper road’, having never actually been used as a road. Ashley J found that the land was not a public highway, because there was insufficient evidence, first, of intention by the landowner to dedicate it as a public road and, second, of public acceptance of the land as a public road.54 However, his Honour held that the delineation of the land as a road on the plan of subdivision was sufficient for it to be a road within the meaning of the Local Government Act. His Honour rejected a submission that the definition of ‘road’ was restricted to public roads. He noted the inclusive nature of the definition and held that it encompassed a private road, although the definition of ‘road’ had by then been amended to 52

R & R Fazzolari Pty Ltd v Parramatta City Council(2009) 237 CLR 603, 619–20[43]–[44] (French CJ); Obeid v Victorian Urban Development Authority[2012] VSC 251[89]–[95]. See also Clissold v Perry(1904) 1 CLR 363, 373; and Hazelwood Power Partnership v Latrobe City Council(2016) 218 LGERA 1, 21–3[95]–[98] (Hazelwood).

See, eg, Local Government Act 1989 s 187; Land Acquisition and Compensation Act 1986; Planning and Environment Act 1987 (Vic) pt 5.

Templestowe Developments[1997] 1 VR 504, 517–22.

59 VR 408omit the reference to a ‘private road’.55 On that basis, his Honour held that the land was a road but not a public highway for the purposes of the Local Government Act.98The only aspect of the reasoning in Templestowe Developments that is directly applicable in this case is his Honour’s conclusion that the definition of ‘road’ in the Local Government Act is not limited to public roads. I share that view, and have applied it in construing ‘right of way’ in the definition of ‘road’. Otherwise, the facts in Templestowe Developments, involving land set aside as a road in a plan of subdivision, are quite different from this case. It does not compel a conclusion that the corridor is otherwise a ‘road’ for the purposes of the Local Government Act. But for the inclusion of ‘right of way’ in the definition of ‘road’, I would not have reached that conclusion on the facts of this case.

Does the Land Acquisition Act apply?

99The plaintiffs next contended that s 204 of the Local Government Act did not empower the Council to, in effect, compulsorily acquire land owned by them. Compulsory acquisition of the disputed land could only occur, they submitted, under the Land Acquisition Act, because it prevails over the Local Government Act to the extent of any inconsistency between the two.100Their argument was as follows:

(a)
If the Council’s decision is valid, the effect of gazetting the declaration will be to vest ownership of the disputed land in the Council, without payment of compensation to the plaintiffs. In effect, the Council will have compulsorily acquired the disputed land.
(b)
Section 187(1) of the Local Government Act empowers a council to compulsorily acquire land required by the council for the performance of its functions or the exercise of its powers. Those functions and powers include the management of roads.56
(c)
Section 187(2) applies the Land Acquisition Act to the Local Government Act and provides, for that purpose, that the Local Government Act is the special Act and the council is the authority.
(d)
Section 4 of the Land Acquisition Act provides that an authority which is empowered under a special Act to acquire an interest in land by compulsory process must not acquire that interest by compulsory process or by agreement except in accordance with Pt 2. Part 2 prescribes a process for the compulsory acquisition of land. Part 3 provides for the payment of compensation on acquisition, and Pt 4 provides for the measure of compensation.

Ibid 523–24.

Local Government Act ss 205, 206, sch 10; Road Management Act 2004, pt 4, div 2.

59 VR 409

(e)
Section 3(3) of the Land Acquisition Act provides:
If a provision of the special Act is inconsistent with a provision of this Act, the provision of this Act prevails.
(f)
Section 187 of the Local Government Act and the Land Acquisition Act cover the field. The Council can only compulsorily acquire land by exercising its power under s 187 and in accordance with the Land Acquisition Act.
(g)
To the extent that s 204 of the Local Government Act is inconsistent with these provisions, it must give way. Put another way, the scope of the power in s 204 is constrained by these provisions.
(h)
This construction is preferable to the alternative, that s 204 operates independently of s 187, because it involves less interference with private property rights.57

101The difficulty with this argument is its initial premise. As I have explained, I am not sure that gazettal of the Council’s declaration will have the effect of vesting ownership of the disputed land in the Council.58 Assuming that to be the case, however, there is authority that compels the conclusion that the making of a declaration under s 204(1) does not amount to a compulsory acquisition of the land.102In Connor v Bacchus Marsh Sewerage Authority,59 the defendant had laid a sewer the plaintiff’s front garden without first having acquired the land or an easement over it. The plaintiff sued in trespass, claiming damages and an injunction. The defendant had power, under s 120 of the Sewerage Districts Act 1958 (Vic) to carry sewers or works ‘into through or under any lands whatsoever’. Section 123 provided that all sewers and works made by a sewerage authority, under the authority of the Act, vested in the authority.103The plaintiff argued that the defendant’s power in s 120 was conditioned on first exercising its power to acquire the land. The statute included a power of compulsory acquisition, subject to certain procedural requirements and payment of compensation. The plaintiff further argued that to acquire land by force of the vesting provisions of s 123 amounted to the ‘taking compulsorily’ of the land, which could not be done without first complying with the prescribed procedure. Smith J rejected these arguments. The text of s 120 did not include any condition that the authority first exercise its acquisition powers, and ‘taking compulsorily’ did not refer to ‘the ultimate and consequential transfer of ownership which would result from the operation of the vesting section’.60 This conclusion was perhaps made more palatable by the fact that the Sewerage Districts Act 1958 provided for the payment of full compensation by an authority for damage due to the exercise of the 57

See [92] above.

See [87]–[89] above.

[1967] VR 627.

Ibid 631.

59 VR 410authority’s power under s 120.61104The Council also relied on two decisions — Treasury Gate Pty Ltd v Rice62 and Costante63 — concerning the proposed discontinuance of a road by a council. Section 528(2) of the former Local Government Act 1958 (Vic) provided that, on publication of an order directing that the road or part be discontinued, ‘thereupon such road or part shall be discontinued accordingly and the land and soil thereof shall vest in the municipality’. In Costante, Fullagar J observed that the provision:

apparently enables the council of a municipality in effect to acquire land compulsorily from a registered proprietor without compensation and to extinguish even registered easements over land without compensation, and then to sell the acquired land free of easements to any purchaser for value.64

While this was a reason to require strict compliance with the prerequisites for the exercise of the power prescribed by the Local Government Act 1958, in neither case was there any suggestion that the Land Acquisition Act or its predecessor applied to the decision to discontinue the road.

105Calabro v Bayside City Council65 was a case closer to the present. It involved an appeal from an order of the Victorian Civil and Administrative Tribunal, declaring that certain land had vested in the defendant council pursuant to the former s 203 of the Local Government Act. At that time, s 203 provided that a public highway vested in fee simple in the council of the municipal district in which it was located. Balmford J found that there was no error in the Tribunal’s finding that the land was a public highway at common law. The plaintiff argued that he had a claim for compensation, under the Land Acquisition Act, as a person whose interest in land had been acquired by the council. Her Honour rejected that argument, saying:

the vesting of land in the council by virtue of s 203 of the LGA is not an acquisition by the council under s 187, and thus cannot be governed by the provisions of the Acquisition Act.66

106Most recently, Hazelwood Power Partnership v Latrobe City Council67 was concerned with s 198 of the Local Government Act, which provides that public sewers and drains within the municipal district are vested in the council and are under its management and control. Hazelwood maintained that the Morwell Main Drain was a ‘public drain’ that had vested in the council and was under its management and control. The council contended that it was a private drain for which Hazelwood was responsible. In construing s 198, the Court of Appeal had regard to the fact that it gave rise to a direct interference with property rights, and that no compensation was payable 61

Ibid 630.

[1972] VR 148.

[1994] 1 VR 379.

Ibid 382 (Tadgell and McDonald JJA agreeing).

[1993] 3 VR 688.

Ibid 702[60].

(2016) 218 LGERA 1 (Warren CJ, Osborn, Beach JJA).

59 VR 411upon the vesting of property rights in a municipal council pursuant to the provision.68 Again, there was no suggestion that the interference with property rights effected by s 198 was a compulsory acquisition under s 187.107Although none of those cases involved the same provisions as this one, they all support the Council’s position that a declaration under s 204 does not involve an acquisition to which the Land Acquisition Act applies. The legislature has provided councils with two separate powers, in s 187 and s 204, which are subject to different procedural requirements and which serve different ends. If a declaration under s 204 does have the effect of vesting ownership of the land in the council — which is debatable — the change in ownership occurs by operation of sch 5, cl 1(4) of the Road Management Act, and not as the result of an acquisition by compulsory process under the Local Government Act.

Was the Council’s decision affected by jurisdictional error?

108The plaintiffs contended that, if the Council had power to declare the corridor to be a public highway, its exercise of that power was affected by jurisdictional error. They identified two sources of jurisdictional error:

(a)
first, they argued that the Council’s decision to declare all of the corridor to be a public highway, including land beyond the track and the 1.5 metre maintenance area either side of the track, was legally unreasonable; and
(b)
secondly, they submitted that the Council had failed to have regard to a relevant consideration, in that it did not give proper, genuine and realistic consideration to the fact that the plaintiffs are the registered proprietors of the corridor, and that title in the disputed land has not vested in the Council.

109Both arguments directed attention to the decision made by the Council at its meeting on 28 November 2017.110The minutes of the Council meeting on 28 November 2017 recorded the following matters:

PURPOSE

This report is in relation to the proposal to declare that part of Patricia Avenue that is located between Foam Avenue and Spray Point Road, Blairgowrie to be a public highway. After giving due consideration to written submissions received, and oral presentations made to the Section 223 Submission Committee Meeting, it is recommended that the proposal proceed.

BACKGROUND

There have been ongoing concerns reported to the Shire in relation to the section of Patricia Avenue between Foam Avenue and Spray Point Road, Blairgowrie. The concerns relate to the legal status of the road and Council’s maintenance responsibilities as the road management authority.

Ibid 21–3[95]–[98].

59 VR 412

The section of Patricia Avenue between Foam Avenue and Spray Point Road is shown as privately-owned land, subject to a ‘carriageway easement’, on some of the neighboring properties’ title documents, however the road has provided general public access for many years.

Shire officers have undertaken an investigation into this matter, and concluded that this section of Patricia Avenue is, by virtue of [the] common law doctrine of ‘Dedication and Acceptance’, already a public highway. In other words, as this section of road has been open to, and used by, the public for many years, it has become a ‘public highway’.

However, this conclusion is disputed by those neighbouring residents whose titles show the road as part of their land (and subject to the carriageway easement mentioned above). To remove doubt, Council can declare this section of road to be a public highway in accordance with Section 204 of the Local Government Act 1989.

...

DISCUSSION

Following the six week exhibition period, and after considering all written and verbal submissions, Shire officers are satisfied that the proposed public highway declaration is still appropriate for the following reasons:

•
Patricia Avenue is reasonably required for public use;
•
There is a need to ensure appropriate maintenance along the road, in accordance with the Shire’s Road Management Plan;
•
There is a need to ensure appropriate access for emergency vehicles; and
•
There is a need to ensure appropriate traffic management on Patricia Avenue.

...

CONCLUSION

The issues raised in the written submissions received and the oral presentations made to the Section 223 Submission Committee Meeting have been considered. While some submitters are opposed to the proposal, when all relevant matters are taken into account, it is recommended that Council proceeds with the proposal.

111The Council resolved:

1.
That Council resolves to declare that part of Patricia Avenue, between Foam Avenue and Spray Point Road, Blairgowrie and which is shown on the title documents for 24 Foam Avenue and 27 Spray Point Road as a 33 foot wide ‘carriageway easement’ to be a public highway in accordance with Section 204 of the Local Government Act 1989 for the following reasons:
- A.
  The road is reasonably required for public use; and
- B.
  The need to ensure appropriate maintenance to a maximum of 1.5 metres either side of the road along Patricia Avenue between Foam Avenue and Spray Point Roads.
2.
That a notice advising of the public highway declaration of Patricia Avenue between Foam Avenue and Spray Point Road, Blairgowrie be published in the Government Gazette in accordance with Section 204 of the Local Government Act 1989, and all submitters be notified in writing of the decision, and the reasons for decision, in accordance with Section 223(1)(d)(ii) of the Local Government Act 1989.

59 VR 413

3.
That Council considers the neighbourhood character in undertaking any maintenance works relating to vegetation management on Patricia Avenue in consultation with the Spray Point Wildcoast Area Conservation Group.
4.
That Council resolves that Attachment 2 to this report be retained as a confidential item pursuant to Section 77(2)(a) and (b) of the Local Government Act 1989 and be placed in a separate minute book for confidential items as it contains personal submitter information.

Legal unreasonableness 112It is a condition of the lawful exercise of a statutory power that the power must be exercised reasonably.69 Section 204 of the Local Government Act gives councils a power to declare a road — which is defined broadly and inclusively, and extends to a road on private land — to be a public highway. The gazettal of such a declaration has important consequences, and can interfere with private property rights. In those circumstances, Parliament may be presumed to have intended that the power may only be exercised within the bounds of legal reasonableness, having regard to the scope, purpose and objects of the Local Government Act.113Legal unreasonableness can take various forms. It can involve irrational or illogical reasoning, lack of any evident and intelligible justification, or a decision that is plainly unjust, arbitrary, capricious or lacking in common-sense.70 As a ground of judicial review, it is not a vehicle for a court to review the merits of a decision, or to substitute the court’s own judgment for that of the decision-maker.114The power in s 204 of the Local Government Act is reposed in an elected council, which is better placed than a court to balance the relevant public and private interests and the policy considerations that bear on the exercise of the power.71 It is the Council’s primary objective ‘to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions’.72 In reviewing the Council’s decision, I am concerned with whether it was reasonably open, on the material before the Council and having regard to its statutory objectives, to declare the whole corridor to be a public highway.115The plaintiffs argued that the Council’s decision, as expressed in its resolution of 28 November 2017, is unreasonable because:69

Attorney-General (NSW) v Quin(1990) 170 CLR 1 (Quin), 36 (Brennan J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 350–1[26]–[29] (French CJ), 362–4[63]–[67] (Hayne, Kiefel and Bell JJ), 370[88]–[90] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 564–5[51]–[53] (Gageler J), 572–3[80] (Nettle and Gordon JJ), 583–6[131]–[135] (Edelman J).

Singh v Minister for Home Affairs(2019) 267 FCR 200, 216[61] (Reeves, O’Callaghan and Thawley JJ).

Quin(1990) 170 CLR 1, 37–8 (Brennan J); Minister for Immigration v Stretton (2016) 237 FCR 1, 8–9[21] (Allsop CJ).

Local Government Act, s 3C(1).

59 VR 414

(a)
According to paragraph 1A of the resolution, the ‘road’ was reasonably required for public use.
(b)
In the context of paragraph 1B of the resolution, and the actual use of the carriageway easement at the time of the resolution, the reference to the ‘road’ should be construed as a reference to the unmade dirt track, and not the carriageway easement as a whole.
(c)
Paragraph 1B of the resolution notes a need to ensure appropriate maintenance to a maximum of 1.5 metres either side of the road — that is, the track.
(d)
This exceeds the standard set out in the Council’s Road Management Plan, which specifies that roadside vegetation on a Category C road (such as Patricia Avenue) is to be cleared to the back of the kerb or the outer edge of the shoulder and to a height of 3.75 metres.
(e)
The disputed land, on either side of the track, is wider than the 1.5 metres identified in the Council’s resolution, and much wider than the vegetation clearance envelope specified in the Council’s own Road Management Plan.
(f)
Accordingly, the Council’s decision to declare all of the corridor to be a public highway was irrational, illogical, unreasonable, and lacked an evident and intelligible basis.

116I do not agree that the Council resolved that only the track was reasonably required for public use. In my view, the word ‘road’ in paragraph 1A of the resolution refers to the entire corridor. It may have been more accurate to use the word ‘roadway’ rather than ‘road’ in para 1B, but a Council resolution should not be construed with the same rigour as a statutory provision.117It was, in my view, reasonably open to the Council to conclude that the whole corridor was reasonably required for public use and should be declared to be a public highway. The fact that the whole corridor had been subject to a carriageway easement for many decades was a salient consideration for the Council, as was the fact that there had been a track through the corridor since anyone could remember. A number of the submissions made to the Council during the consultation supported the proposed declaration because it would permit vegetation clearing and allow improved access for local residents and emergency vehicles. This was a view shared by the Council officers, who also considered that it would enable appropriate traffic management and improve the functionality of the road.118No doubt, there were other options available to the Council that would have involved less interference with the plaintiffs’ ownership of their land. I cannot find, however, that the declaration was one that no reasonable Council could have made or that the Council’s resolution lacked an evident and intelligible basis.59 VR 415Relevant considerations 119The plaintiffs submitted that the Council was obliged to have regard to the fact that they were the registered proprietors of the corridor, and that title in the disputed land had not vested in the Council. They acknowledged that the Council adverted to the easement being on their titles, but argued that it did not give their ownership of the land ‘proper, genuine and realistic consideration’.73 They pointed out that the legal advice obtained by the Council officers, about whether the corridor was a public highway at common law, was not provided to the Council for its consideration. They argued that, without knowing the factual basis on which the legal advice was given, the Council was unable to give proper, genuine and realistic consideration to their submissions that they owned the corridor.120I will assume, without deciding, that the ownership of the land was a matter that the Council was bound to consider before making a declaration under s 204(1).74 It is perfectly clear that the Council did have regard to the possibility that the corridor was not a public highway at common law, and remained the property of the plaintiffs. This was specifically mentioned in the officers’ report, as a reason for making the declaration to ‘remove doubt’. As the Council submitted, ‘the very premise of the Council’s decision was the possibility that the plaintiffs might be right — ie, the road might not have already vested in the Council’.121I do not consider that the Council failed to take into account a mandatory relevant consideration.

Disposition

122Although the disputed land is not a public highway at common law, the corridor is a ‘road’ for the purposes of the Local Government Act, and the Council had power under s 204(1) to declare it to be a public highway for the purposes of the Local Government Act. The Council’s decision to do so was not affected by jurisdictional error.123Among the declarations sought by the plaintiffs was a declaration that the disputed land is not a public highway at common law. I consider there is utility in making that declaration, in part because it will resolve a long-standing dispute between the plaintiffs and the Council, and in part because of the uncertainty about whether gazettal of the declaration will vest ownership of the disputed land in the Council. I propose to make a declaration to the effect that the disputed land is not a public highway at common law.73

Minister for Immigration and Citizenship v SZJSS(2010) 243 CLR 164, 174–6; Barro Group Pty Ltd v Brimbank City Council(2012) 36 VR 281, 303[109] (Emerton J).

Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24, 39–40 (Mason J). The Council pointed out that the Local Government Act 1989 does not provide for what the Council must consider in exercising the power in s 204(1), and submitted that it was unclear that ownership of the land was a mandatory relevant consideration.

59 VR 416124The proceeding will otherwise be dismissed.125I will hear the parties about the form of the declaration, and on the question of costs.

[After considering written submissions: [2019] VSC 715, her Honour made orders as follows:]

Declare that the part of the land marked with cross hatching [on a plan attached to the Order] was not, as at 16 September 2019 a public highway for the purposes of the common law.Each party to bear own costs. Application otherwise dismissed. Annexure A 59 VR 418Annexure B 59 VR 419Annexure C 59 VR 420Annexure D 59 VR 421Annexure E Solicitors for the plaintiffs: Wisewould Mahony. Solicitors for the defendant: Russell Kennedy. N BLOKBARRISTER-AT-LAW

[2019] VSC 623

16/09/2019