Palmisano v Hawse

[2003] NSWSC 566

Reported Decision: (2003) 127 LGERA 268

Supreme Court

CITATION:	PALMISANO v. HAWSE & 2 ORS [2003] NSWSC 566
HEARING DATE(S):	18 and 19 June 2003
JUDGMENT DATE:	26 June 2003
JURISDICTION:	EQUITY
JUDGMENT OF:	Bryson J at 1
DECISION:	Public road exists. Order to be settled.
CATCHWORDS:	HIGHWAYS - creation - public road - creation by dedication and public acceptance by user before 1864 was inferred from mass of evidence about usage and dealings in C19, consideration of necessity of user for land settlement, and terms of Surveyor's Plan of 1864.
LEGISLATION CITED:	Real Property Act 1900 Roads Act 1833 Dedication by User Act 1881 Conveyancing Act 1919 s.178
CASES CITED:	Vickery v. Municipality of Strathfield (1911) 11 SR NSW 354 Owen v. O'Connor [1963] SR (NSW) 1051 City of Keilor v. O'Donohue (1971) 126 CLR 353 Permanent Trustee Co. New South Wales Ltd v. Municipality of Campbelltown (1960) 105 CLR 401 Rapley v. Martin (1865) 4 SCR (NSW) L 173 Bass Coast Shire Council v. King [1997] 2 VR 5 Lake Macquarie City Council v. Luka (1999) 106 LGERA 94 Shire of Narracan v. Leviston (1906) 3 CLR 846 Sutherland Shire Council v. Registrar General (1991) 72 LGR 84 Tomark Pty Ltd & Ors v. Bellevue Crescent Pty Ltd & Ors (1999) NSW CA 347 Bellevue Crescent Pty Ltd v. Marland Holdings Pty Ltd (1998) 43 NSWLR 364 Ex Parte Stewart (1873) 12 SCR (NSW) L 201 at 203.
PARTIES :	Richard Palmisano - Plaintiff Simon Hawse and Clare Hawse - First and Second Defendants Cessnock City Council - Third Defendant
FILE NUMBER(S):	SC 5171/00
COUNSEL:	S. Rares SC and J. Robson - Plaintiff R. Harper - First and Second Defendants
SOLICITORS:	Blake Dawson Waldron - Plaintiff Holman Webb - First and Second Defendants Cleaves Mallik Gibbs - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

THURSDAY 26 JUNE 2003

5171/00 RICHARD PALMISANO v. SIMON HAWSE & 2 ORS

JUDGMENT

1 HIS HONOUR: The plaintiff seeks to establish that part of a road in the locality known as Dairy Arm, near Laguna, is a public road. The land over which the contested road runs is Portion 132 and 133 of the Parish of Hay and is owned by Mr and Mrs Hawse who are the first and second defendants. The creek named Dairy Arm is a branch of Wollombi Brook, and joins Wollombi Brook at Yallambie after flowing in an irregular course generally northerly through the locality known as Dairy Arm, then generally north-westerly to Wollombi Brook. Dairy Arm Road runs in the valley formed by Dairy Arm generally south-easterly from its junction at Yallambie with George Downes Drive. Dairy Arm Road runs across Portion 132 in an irregular course generally easterly towards Olney Arm, and is undoubtedly a public road; it so appears on Deposited Plan 844870. The road contested in these proceedings branches generally south-easterly from Dairy Arm Road and proceeds generally southerly across Portion 132, and then right across Portion 133, and reaches Portion 41 which is the plaintiff’s land and adjoins Portion 133 to the south. The road continues generally towards the south up the valley formed by Dairy Arm, and crosses the plaintiff’s land and a number of other holdings; the declaration claimed in these proceedings relates only to the part of the road which crosses Portions 132 and 133, but much of the material in evidence relates to the road generally without making this distinction. A significant number of land holdings and a significant amount of land settlement can be reached, in any convenient way, only by the contested road. Access is illustrated by Exhibit D, a copy of the Topographic and Orthophoto Map 1:25,000 9131-4N 3rd ed, printed in 2001 and based on aerial photography in 1998 and later limited field verification. The topographic map shows no other road into the area except some vehicular tracks and 4-Wheel Drive tracks which are probably fire trails; the topography and the orthophoto map illustrate that access using these would be extremely difficult and inconvenient.

2 The plaintiff’s land is Portion 41 of the Parish of Hay in the County of Northumberland. It seems that its title is still under the general law or Old System. Title is derived from a Grant dated 25 October 1855 to James Wellings; Portion 41 was said to contain 50 acres. The Grant does not contain any express reference to the road.

3 Title to Portions 132 and 133 is derived from Grants to Richard Alexander Wiseman dated 16 July 1841; each Portion was said to contain 320 acres. There was no express reference to the road in those Grants. Each Grant contained a reservation to the Crown of a right to resume land for roads, of a kind which even in 1841 had been commonly used in land grants for many years, as follows: “Provided nevertheless, and we do hereby Reserve unto Us, Our Heirs and Successors, all such and so much of the said Land as may hereafter be required for a Public Way, or public ways, in, over, and through the same, to be set out by Our Governor for the time being of Our said Territory, or some person duly authorised in that respect;”. A reservation later in the Grants of a power to resume land for other public purposes with compensation carries the implication that no compensation was payable if the reservation for roads was exercised. The reservation extended to stone, gravel, timber and other materials for construction and repair of ways and bridges.

4 In City of Keilor v. O’Donohue (1971) 126 CLR 353 at 365 to 370 Windeyer J referred extensively to the use and effect of reservations of this kind and their operation in the law of New South Wales in the 19th Century in relation to the creation of public roads. At 375 his Honour said that the grantee “… got a good title to the whole square mile the subject of the grant, but defeasible as to such parts and so much as the Crown might thereafter require and resume for a road.”

5 Mr and Mrs Hawse now have Certificates of Title under the Real Property Act 1900 for their land; Portion 132 is now the land in Computer Folio 1322/844870 and Portion 133 is now the land in Computer Folio 133/755230. The Certificates of Title certify limited title as the boundaries had not been investigated by the Registrar General, and qualified title subject to a caution pursuant to subs.28J(1) and (1A) of the Real Property Act 1900. For this reason Mr and Mrs Hawse do not have protection against the plaintiff’s claim under s.42 of that Act. In any event it has been held that s.42 does not protect a registered proprietor against any public rights of highway which may exist: see Vickery v. Municipality of Strathfield (1911) 11 SR NSW 354 (Rich AJ).

6 The proceedings were commenced on 22 December 2000. The third defendant the Cessnock City Council filed a submitting appearance. The first and second defendants conducted what was to all appearances an active defence of the proceedings until the hearing day on 18 June 2003 when their counsel informed me to the effect that, on the understanding that the plaintiff claimed the first declaration in the Amended Summons relating to a public road, and did not claim the second declaration relating to the existence of an easement under private law, his clients submitted to whatever decision the Court should think right; and their counsel withdrew and these defendants took no further part in the hearing. In that way the proceedings became uncontentious, but a claim to a public right cannot be disposed of by default and it remains for me to come to a conclusion on the plaintiff’s case.

7 The law relating to the creation of public roads operated differently in the 19th Century to the highly structured processes under modern statutes, in which public roads are created by unmistakably clear processes of dedication, with registration of survey plans, and only with the agreement of the local or other public authority to which ownership of the land passes. At common law a public road was created by dedication of land for that purpose by the owner of the land, whether the Crown or a private owner, and by acceptance by the public of the dedication. Dedication was not usually a formal act, but was to be understood from events such as leaving ways open to the public when constructing buildings or laying out subdivisions, referring to land as a road in a plan published in some way such as exhibiting it when lands are offered for sale, or even more usually simply by leaving the land open for unobstructed public use for a lengthy period. Acceptance of a dedication was to be understood from use by the public for an extended period. Title to the land over which the public road ran was not altered by its dedication; the land remained the property of the dedicating owner, but became subject to public rights.

8 In Owen v. O’Connor [1963] SR (NSW) 1051 at 1053 Sugerman J stated the processes by which a public highway may be brought into existence.

A public highway may be created by statute or by dedication and acceptance, a process which counsel has correctly described as analogous to the formation of a contract by offer and acceptance. Dedication presupposes an intention to dedicate – an animus dedicandi. It may be presumed from open and unconcealed user as in exercise of a public right and without interruption by the owner of the land – such a user that the owner must be taken to have been aware of it and with his apparent acquiescence so as to lead to a reasonable belief in the minds of the public that the land was a highway; or it may be presumed from other circumstances. On the other hand, it may not be necessary to resort to a presumption of dedication from user or otherwise because the animus dedicandi may have been expressed in words or in writing or by some act unequivocally indicating an intention to dedicate.

9 The process of dedication and acceptance is referred to in judgments in Permanent Trustee Co. New South Wales Ltd v. Municipality of Campbelltown (1960) 105 CLR 401; see Kitto J at 412, Menzies J at 415 and Windeyer J at 420 and at 422-423.

10 The circumstances of a newly-settled country and knowledge of the practices of officers of government affected the approach taken by courts to claims that public roads existed. It was usual, and more so in earlier periods, for the Crown to grant land long before roads had been formed for access, and before expert resources were available to survey land and lay out the positions of roads, and before local or other public authorities existed which could take responsibility for maintenance and repair of roads. Reservation to the Crown of the right to resume land for roads, without compensation, out of lands granted must have influenced land owners towards allowing rights to public roads to develop by usage, as resistance and confrontation of persons who had reasonable needs for access could lead to intervention by the Crown and the creation of a road without compensation.

11 There were also statutory mechanisms in the Act of Council known as the Roads Act 1833 by which a road could be opened and made, involving advertisement, survey and consideration of objections – see ss. 1 and 2. Section 21 enabled a person requiring a road through another person’s land to apply to the Court of Quarter Sessions which was to decide as to the propriety of the road being made. After the enactment of the Roads Act it became possible for the Crown to choose between resuming land for the purpose of dedication as a public road in exercise of rights of the Crown reserved in the Grant, and following procedures in the Roads Act 1833. In many situations there was nothing for a land owner to gain from resisting claims for opening up a road. These circumstances made it relatively easy to accept, after an extended period of usage, that there had been a dedication and acceptance of a public road.

12 As time passed and the disposition of Crown lands came to be dealt with by statutes which regulated, eventually in very elaborate ways, disposition of Crown lands and creation of public roads, officers of Government in New South Wales seem to have largely limited themselves to statutory procedures rather than reliance on rights such as the right of resumption for roads in old grants.

13 Some years after the grant of Portions 132 and 133 to Richard Wiseman the Crown began to make grants of other Portions of the Parish of Hay further south up Dairy Arm which could only be accessed conveniently through those Portions. The natural path of access would take the relatively easier valley country on one side or the other of Dairy Arm; access over the surrounding countryside, then and now, would have more the character of a feat of exploration than convenient access. The first such parcel granted was Portion 39, 30 acres to the south of the plaintiff’s land; which was granted to James Bellamy on 29 November 1849. Portion 41 which is now owned by the plaintiff was the next parcel granted; to James Wellings on 5 October 1855. The next grant was of Portion 42 to Patrick Kelly on 24 November 1856; this parcel adjoins Portion 41 immediately to the east. Later in the Nineteenth Century there were eight more parcels generally to the south along the line of road, and, continuing into the Twentieth Century, there were many other grants of parcels of land to which it would have been very difficult to gain access without using the contested road, perhaps supplemented by other rights such as rights arising from ownership of adjoining parcels, private rights of way or other arrangements. Land was often selected and occupied for many years before purchase conditions were fulfilled and Grants were made. It is inherently unlikely that persons would have applied to the Crown for lands, and would have been willing to pay for them, and it is inherently unlikely that any significant settlement or land use would have taken place in the Nineteenth Century unless the public had a right to use the contested road. Otherwise all of this human settlement and economic activity would have occurred subject to the leave and licence of the proprietor of Portions 132 and 132 from time to time, who would have been in a position to extact tolls or other economic advantages for passage; and such behaviour would with fair certainty have stimulated official action which would have given definition to the rights of the public.

14 The plaintiff tendered the evidence of Ms Sue Rosen, a professional historian who has conducted extensive research into historical records, principally records of agencies of the Government of New South Wales, for references to the road. The research has been very extensive and the results produced are impressive. Nowhere has she found an unequivocal recognition that the road has become a public road by a process of dedication and acceptance, but her researches show many facts and circumstances which tend to support the conclusion that the public have had rights over the road for a long time, and no significant adverse information.

15 One body of information researched relates to the terms of grants of land and later dealings in land to which the road would give access. These searches have led to my findings about patterns of land settlement.

16 Another body of material relates to correspondence and reports in files of the Surveyor General. Correspondence between the Surveyor General and Mr Surveyor Rogers, who appears to have been an officer of the Surveyor General with responsibility for the Parish of Hay, perhaps stationed at Wollombi, shows, as was natural, that continuing attention was given to the creation of roads and the need for access in relation to surveys of Parish portions. Correspondence, including correspondence as early as 1855 relating to the survey of Portion 35, shows attention given to the need to create roads, and it is difficult to suppose that that attention was given on any assumption other than that the road would be useful and would give access, further north, through Portions 132 and 133 and any other land necessary for it to reach the more general road system. The assumption underlying this correspondence of the existence of a public road from Dairy Arm became explicit when dealing with a request by one Martin Reagan of Wollombi for action to open a road. The land subject of Mr Reagan’s request does not appear to be at Dairy Arm or to be served by the road now in question, but the attitude taken by the officer of the Surveyor General is expressed in a Minute endorsed on his letter by one Adams on behalf of the Solicitor General. Mr Adams minuted “The road in question appears to have been in use but not proclaimed through J. Bridges 100 acres in 1837 but not reserved. The Deed only contains the usual reservations of way or ways. It appears to me that proclamation of a road so long in use is unnecessary.”

17 A petition dated 8 October 1863 to the Minister of Lands sought action under the Roads Act 1833 to establish that the road across Portions 132 and 133 was a public road. Sixteen petitioners were described as “Freeholders, leaseholders and other residents on Dairy Arm in the District of Wollombi”. The petition said “That on account of no public thoroughfare having ever been proclaimed, leading from the Great North Road from Sydney to Maitland near Laguna up Dairy Arm to Richard Harris’ 30 acres great inconvenience is experienced by said residents: that your petitioners are principally the owners of land purchased direct from the Crown and beg respectfully to point out that the land formerly purchased by Richard Wiseman … has numerous obstructions in the shape of slip rails independant of being only on sufferance.” They asked that “a right of road up Dairy Arm may be proclaimed …”. Richard Harris owned a number of parcels of 30 acres, all of them to the south of Portion 41 and accessible to the main North Road only through Portions 132 and 133. The petition was endorsed by Mr Eckford, the Member for West Maitland, who stated that it was perfectly correct from personal knowledge.

18 This led to a process in which Mr Surveyor Rogers reported, on 19 December 1863 “I am not aware of any practical road otherwise than the one petitioned.” He made a comment which appears to mean that when he himself had laid out parcels for Grants there had been reservations of a power to create roads but the roads had not been defined and this had not led to trouble in most cases. He also reported “There are about twelve or fourteen land owners, and perhaps as many more occasional visitors to the locality.” He then prepared a Book of Reference, for the purpose of supporting a proclamation under the Roads Act 1833. In the first version of the Book of Reference he dealt with the proposed road in terms which show quite clearly that there already was a road, largely fenced off, and that he had adopted the track in general use for the proposed road with one small deviation. On 15 September 1865 Executive Council directed advertisement of the proposal, which was notified in the Government Gazette of 7 November 1865. A second Book of Reference dated 1 November 1865 was prepared. The Clerk of the Executive Council certified on 21 December 1865 that no objection to the proposal had been made by any land owner. Consideration appears to have ended when on 26 February 1866 the Under Secretary for Lands decided that the cost of fencing through enclosures of 154 pounds would be more than he could recommend for this road. The process appears to have ended there and no formal decision under the Roads Act 1833 was ever taken. It seems that the Under Secretary for Lands contemplated further consideration after new legislation.

19 Mr Surveyor Rogers prepared a plan of the road for the purpose of these considerations. It appears that the survey work for the plan was done in 1864. His plan and his report show that, although he proposed a small deviation, the road the subject of the petition then existed; he clearly marked its location and gave an elaborate table of bearings of the lines of road, showing that his survey had been very detailed. The road is shown crossing Portions 132 and 133, meeting the northern boundary of Portion 41, then following the northern boundary for a short distance to its eastern boundary, then proceeding some distance southward in Portion 42 along the eastern boundary of Portion 41, then proceeding across the southern part of Portion 41 and further to the south. The road is shown proceeding through six other Parish portions to the south of Portion 41, and giving access to five portions to the east of Portion 41 all of which were then shown to be owned by Patrick Colly.

20 The events of 1863 to 1866 show that the existence of the road across Portions 132 and 133, and its use by a number of land owners was then an established fact, clearly verifiable by survey in the field. The absence of any objection to its proposed proclamation under the Roads Act 1833 is, in the circumstances, significant. It is particularly significant because the petition referred to difficulties encountered when using the road: when formal steps were taken, no difficulties were interposed. It is also significant that Mr Surveyor Rogers reported that there was no other practicable access. These events happened at a time when it was known in official circles, as it must have been, that the public could acquire a right to a road in other ways than by action under the Roads Act 1833. If it had been thought that the action under the Roads Act which the petitioners asked for was essential to their having a right of access to their property it is unlikely that the proposal would have been abandoned because of concern over the cost of fencing. The proposal was abandoned at a time when the survey had established that there already was a public road. The fact that the process of proclamation was not completed is not adverse to the view that the public already had or later acquired rights to the land; it is neutral; and the significance of the process in the present case is the state of need shown by the petition and the state of affairs in the field shown by the survey plan and reports of Mr Surveyor Rogers.

21 Proclamation under the Roads Act 1833 could have taken several courses, one of which would have involved the Crown in responsibility for the expense of fencing or perhaps other expense; alternatively that burden could have been thrown on the parish, if there then were any effective parish organisation. Where the Government incurred this obligation it was empowered to collect tolls. See Ex Parte Stewart (1873) 12 SCR (NSW) L 201 at 203. In a further alternative, the road and the public could have been left to whatever rights existed under the general law so that no maintenance obligations could arise under the Roads Act 1833, and the freehold proprietor of the land over which the road ran had no maintenance obligations.

22 The process of further grants of land access to which would have depended on the road continued into the 20th Century and to my mind makes it clear that the existence of public rights in the road was not contested at that time. Continued usage of the road occurred over a very long period. These circumstances make it highly likely that at some early time in the process of settlement the roadway was dedicated to and accepted by the public and came to be a public road without any formal process.

23 Documents from the records of the Department of Public Instruction show that the Government itself conducted operations and acquired land in Dairy Arm, to the south of the plaintiff’s land, in circumstances where it must have been understood that lawful access was available. In 1885 several citizens applied to the Minister of Public Instruction for the establishment of Half-Time Schools at Mt Finch and Dairy Arm and represented that thirteen children lived within a radius of 2 miles of the proposed school. The Crown took a lease from one Christopher Culley for one year of an acre of land and a school house from 1 April 1885. In 1890 Mr Stevenson MP asked the Government to purchase land on the present school’s site. An Inspector of Schools reported on the proposal and among other things reported to the effect that there was a public road to the site. Expressions in this report mean that the site did not depend on a right of way.

24 The Crown then acquired and paid for a small parcel of land which had formerly been part of Portion 42 and became Portion 136. A plan prepared in connection with the purchase showed Portion 136 as having frontage to a road cutting, on a road which must have been a continuation of the contested road. The conveyance to the Crown of Portion 136 includes a metes and bounds description which refers to the north western boundary as “a reserved road”. Public Instruction files deal with access by teachers to the school and their places of lodging in terms which show that they had ready access to the school by road. They show pupil attendance numbers which indicate settlement by a number of families.

25 Researches of Ms Rosen have also shown that public authorities expended public moneys on the Dairy Arm Road from time to time. The exact nature and location of works cannot be established, but it is unlikely that significant public money or any public money at all would have been expended on any part of the road unless it was regarded as a public road. Signs can be seen now which show that significant road works were carried out at some time in the past, which could well have been late in the Nineteenth Century; cuttings in rock show signs of drilling and blasting, and the remains of a disused bridge immediately east of the plaintiff’s land and located on Portion 42 show that the bridge was a substantial construction, using massive timbers and techniques familiar to users of roads in rural New South Wales, implying a scale of effort and expenditure unlikely to have been the product of private initiative. Expenditures of these kinds are reflected in records of the New South Wales Department of Public Works, the Roads and Bridges Branch and the Cessnock Council. None of these references is detailed or specific as to particular location on the road at which work was done, but they show an assumption, made by several different authorities and at widely separated times, that expenditure of public money on the road and its maintenance or repair was appropriate. Cessnock Municipal authorities have long expended public money on maintenance and repair of the road, without ever having adopted an altogether clear position about whether the Council accepted that the road was a public road or not.

26 In recent surveys Mr Surveyor Johnston observed signs which make it highly probable that a public authority concerned itself with maintenance of the road in the distant past. These include the remains of the very old bridge within Portion 42 but near the common boundary with Portions 41 and 133, and, further to the south, a timber mile post and a survey mark. These observations are illustrated by the video tape Exhibit E and by photographs elsewhere in evidence.

27 The contested road appears on Parish maps, without any clear indication of what was the status of the road. The second edition of the Parish map for the Parish of Hay, Exhibit A, which does not bear date but was in use for some years until 30 August 1918, shows the road across Portions 132 and 133, although it does not include any statement, or reference to legend, which would make a distinct assertion about the status of the road. At points further south, but not uniformly, the same road is marked in a distinctive way which appears to treat it as a public road. The fifth edition, Exhibit B, which was in use until cancelled in November 1926, again shows the road and gives a reference to the plan prepared by Mr Surveyor Rogers in 1864.

28 Ms Rosen has identified a number of other references in documents dealing with Crown land which have treated the road, at one point or another, as being a public road, a “constructed road” or which otherwise seem to show the assumption that it was lawfully available for public use. I adopt the following passage from Ms Rosen’s report para 14 as my findings: “The persistent appearance of the road on so many maps and plans, prepared for a variety of purposes suggests the road existed in reality as well as cartographically. The use of terms such as ‘constructed road’ and ‘road cutting’ imply that it were not merely a natural track, but a deliberately created and maintained facility.” I find that by 1865, when the proposal for action under the Roads Act 1833 was not opposed by anyone, it was already accepted, by the then owners of Portions 132 and 133 and by the public generally, that a public road existed across Portions 132 and 133 in the location then established by Mr Surveyor Rogers in Plan 494-1603.

29 In her report Exhibit F Ms Rosen expressed opinions as a historian. One opinion was to the effect that the contested road was in use as a public road from prior to 1863 and at least into the early to mid-years of the second decade of the Twentieth Century. Several other passages in her report, dealing with subsidiary matters, are expressed as opinions. In Tomark Pty Ltd & Ors v. Bellevue Crescent Pty Ltd & Ors [1999] NSW CA 347, Stein JA, with whom Beazley JA agreed rejected an opinion of a historian, as it happens also of Ms Rosen, on the conclusion to be drawn from examination of available historical documents. In the view of the majority, that opinion was not wholly or substantially based on her specialised knowledge. Priestley JA took a different view of whether her opinion was admissible but all members of the Court of Appeal took the view, as did Young J at first instance Bellevue Crescent Pty Ltd v. Marland Holdings Pty Ltd (1998) 43 NSWLR 364 that the witness’ conclusion was not well based on the supporting material. In the present case the conclusion for which the plaintiff contends, which the expressed opinion would support, appears to me to be undoubtedly correct as the conclusion which I would reach on the material, and the question whether the opinions themselves are admissible, which I reserved when I admitted the document does not require decision.

30 This Court was very ready, in 1865 to discern an intention on the part of the Crown to dedicate land as a highway from references to roads in advertisements published when land was offered to sale, and in the terms of grants; see Rapley v. Martin (1865) 4 SCR (NSW) L 173 at 181-182. The observations of the Court show that readiness to discern an intention of the Crown to dedicate land to the public, not simply to reserve land to itself, where a document makes reference to a road, was based on the circumstances of New South Wales in the period after settlement. The dominating consideration appears to have been (at 181) “Roads through these granted lands, for the use of other existing or intending settlers, are indispensable.” In effect, the court was unready to see a reference to land as a road in an advertisement, grant or published map as merely an expression of an unfulfilled intention to make a dedication. Such references became especially important when legislation prevented user alone from being treated as establishing a dedication against the Crown; this provision was first enacted in the Dedication by User Act 1881 and is now found in Conveyancing Act 1919 s.178. This gives special importance to references to roads in grants and elsewhere for a number of Parish Portions to the south of Portion 133; there does not seem to have been any doubt about the effectual dedication of the road there, and as the road could have had no other outlet its creation and existence indicate that affairs were conducted on the assumption that a public road across Portions 132 and 133 existed. The general approach taken in Rapley v. Martin appears still to be taken in Courts of Appeal: see Bass Coast Shire Council v. King [1997] 2 VR 5 at 18-20 and Lake Macquarie City Council v. Luka (1999) 106 LGERA 94 at 102. On dedication by a private owner see Shire of Narracan v. Leviston (1906) 3 CLR 846 at 861, at 856 approving Poole v. Huskinson (1843) 11 M&W 827 and 830.

31 In Sutherland Shire Council v. Registrar General (1991) 72 LGR 84 Young J reviewed the reported decisions in which Rapley v. Martin has been referred and expressed concerns – at 92 – as to what exactly Rapley’s case decided and the basis in principle of the decision. I am not now concerned to examine the authority of Rapley v. Martin as in the present case the Crown did not designate the site of a road across Portions 132 and 133 at the time of the grant, and the inferred dedication and intention to dedicate upon which the claim that there is a public road depends are those of the grantee and his successors in title, and took place in a period after other persons acquired land for which the road was necessary for access; and user of the road was sufficient for Mr Surveyor Rogers to recognise it and establish its position on his plan of survey in 1864. What I understand Rapley v. Martin illustrates is that relatively early in the settlement of New South Wales necessity for access was an important factor in the behaviour of the Crown and of other land holders, and of the public, that an intention to dedicate by the landholder and acceptance and user by the public in those times should be inferred relatively readily, and that the practices of more settled and more regulated times are not the test of what happened then.

32 In 1983 Mr Surveyor Johnston surveyed the site of a right of way 10 metres wide over Portions 132 and 133 connecting the public road in Portion 132 to Portion 42. Mr Johnston carried out survey work on the physical road in use across Portions 132 and 133 in 1983. This led to a plan dated 27 July 1988 for a proposed instrument creating a right of way, but that instrument was never registered. In recent survey work he has plotted the location of Mr Surveyor Rogers’ road, and also of the right of way created in 1993; neither of these accords exactly with his own proposal, in the plan of 27 July 1988, for the point of access to Portion 41.

33 Deposited Plan 648388 which was registered on 22 November 1993 is part of an Instrument under s.88B of the Conveyancing Act 1919 which created an elaborate scheme of rights of carriage way over a strip of land 10 metres wide which follows roughly but not exactly the course laid out by Mr Surveyor Rogers in 1864. This right of way proceeds generally south-easterly from a junction with Dairy Arm Road within Portion 132, across a part of Portion 132 and also across Portion 133, and reaches a point at the north-eastern corner of the plaintiff’s Portion 41 and the north-western corner of the neighbouring Portion 42; thence it continues its course in Portion 42, Portion 136 formerly the school site and to a number of other land holdings generally to the south-east, not along the line of the road surveyed by Mr Surveyor Rogers. The Instrument created an elaborate skein of rights of carriage way mutually benefiting and burdening the lots over which it ran, but conferred no rights on Portion 41.

34 For the purpose of these proceedings Mr Surveyor Johnston plotted the road in Mr Surveyor Rogers’ survey on his Plan 11151A dated 24 June 2002, Exhibit C. He also plotted on that plan the site of the right of carriage way shown in Deposited Plan 648388, which follows fairly closely, but not exactly, the course of the road found by Mr Surveyor Rogers. The right of carriage way on Deposited Plan 648388 does not give convenient access from Portion 133 to the plaintiff’s land Portion 41; it reaches the plaintiff’s land only at a single point at the north-eastern corner of the plaintiff’s land, whereas the road shown by Mr Surveyor Rogers had a frontage of 75.44 metres running generally easterly and contiguous with the northern boundary of Portion 41 before it reached that same point.

35 It would not be appropriate simply to adopt the course of the right of carriage way created by Deposited Plan 648388 in an order of the court declaring the site of the contested road. The site of the right of the carriage way deviates from the site of the public road found in 1864; most of the deviations are unimportant and there is room for deviations to occur in the course of long usage in the situation of a public road. However there is no reason to suppose that a deviation could have occurred in any way which would deprive Portion 41 of access to the public road.

36 In my view the Court order should declare that the part of the road which passes through Portions 132 and 133, now Lot 1322 DP 844870 and Lot 133 DP 755230 which are land otherwise owned by Mr and Mrs Hawse is a public road. The site of the road should be identified by reference to Mr Surveyor Johnston’s Plan 11151A Exhibit C, and not by reference to the plan prepared by Mr Surveyor Rogers in 1864, referred to on the Parish maps and by the Registrar General as R494-1602; the copy of that plan available is difficult to read, it was prepared with survey techniques which are now obsolete, and I prefer to act on relatively contemporaneous survey work carried out with modern techniques.

37 The road so identified does not correspond with the right of carriage way created by DP 648388. It should be understood that, at the present time, actual usage of the contested road, whether under the right of carriage way or in circumstances disputed by the first and second defendants, follows the course marked out in DP 648388. I could not accept however that any deviation or change in use would deprive Portion 41 of its frontage to the public road. To some degree settling the exact terms of the court’s order is a matter which may require attention to matters by detail of the parties. It may require further survey work. If the parties made some arrangement under which it was accepted that the declaration of a public road should relate to the site of the right of carriage way in DP 648388 I would accept that, as it is open to these parties to recognise the effects of some deviations in actual usage. However I would only accept such a course if I were satisfied that the agreed deviation afforded practicable access to Portion 41, and also dealt appropriately with continuation of a road through land to the south, including parts of Portions 42 and of 41.

38 After publishing these reasons I will the parties an opportunity to consider the terms which the order should take.

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Last Modified: 07/28/2003