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Palmisano v Hawse

Palmisano v Hawse

Case [2003] NSWSC 566 26 June 2003

Adverse Possession

Easements & Covenants

Property Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palmisano v Hawse

Details

AGLC: Palmisano v Hawse and 2 Ors [2003] NSWSC 566
Case: [2003] NSWSC 566
Decision Date: 26 June 2003

CaseChat Overview and Summary

Palmisano v Hawse involved a dispute concerning the legal status of a public road that traversed the property of the respondents. The case was heard in the Supreme Court of Victoria. The applicants sought a declaration that the respondents' land was subject to a public road easement, which was claimed to have been created by dedication and public acceptance prior to 1864. The applicants argued that the road was essential for access to their property and the surrounding area, and that its use by the public over many years constituted acceptance of the road as a public thoroughfare.

The court needed to determine whether the public road was validly created by dedication and public acceptance prior to 1864, and if the evidence presented was sufficient to establish the existence of the road as a public thoroughfare at that time. This required consideration of the nature and extent of the use of the road, the terms of the Surveyor's Plan of 1864, and the necessity of the road for land settlement. The court also had to assess whether the public acceptance of the road by user was established, and whether this met the legal requirements for the creation of a public road before 1864.

The court concluded that the evidence provided was sufficient to infer the creation of the public road by dedication and public acceptance before 1864. The court found that the widespread use of the road by the public, along with the terms of the Surveyor's Plan, demonstrated that the road was intended to serve the needs of the community and was accessible to all. The court held that the necessity of the road for land settlement further supported the inference of public acceptance and the creation of the public road. Consequently, the applicants' claim for a declaration that the respondents' land was subject to a public road easement was successful.

The court ordered that the respondents' land was subject to a public road easement in favour of the applicants, and that the public had the right to use the road for ingress, egress, and all necessary purposes. The court further ordered that the applicants were entitled to the costs of the proceedings.

Orders