Roberts v Gilgandra Shire Council

[2008] NSWSC 1244

CITATION:	ROBERTS v GILGANDRA SHIRE COUNCIL [2008] NSWSC 1244
HEARING DATE(S):	7-8 August 2008
JUDGMENT DATE :	28 November 2008
JURISDICTION:	EQUITY
JUDGMENT OF:	Bryson AJ at 1
DECISION:	Give judgment for the defendant with costs.
CATCHWORDS:	ROADS - construction of current C.T. which referred to Crown Grant and Parish Map to determine whether reserved road passing through rural property was part of the plaintiffs' land: HELD on construction of C.T. Crown Grant and plan, it was not. Road was dedicated in 1926 but long disused - contentions that Council was estopped from asserting it was still a public road or was obliged to apply to Minister to close it - HELD - no contractual obligation or estoppel bond Council to take action to close road.
LEGISLATION CITED:	Conveyancing Act 1919, s 54A Crown Lands Act 1884 Crown Lands Consolidation Acts Local Government Act 1919 s 232, s 530A(2)-(6) Public Roads Act 1902 s 18 Real Property Act 1900, s 46C, s 42, s 40(1B) Roads Act 1993 s 34(1)(b), (2), s 128
CATEGORY:	Principal judgment
CASES CITED:	Attorney General for New South Wales v Dixon [1904] AC 273 Black v Garnock (2007) 230 CLR 438 Bursill Enterprises Pty Ltd v Berger Bros Trading Co. Pty Ltd (1971) 124 CLR 73 Canada Bay City Council v F&D Bonaccorso Pty Ltd [2007] 156 LGERA 294 City of Canada Bay Council v Bonaccorso Pty Ltd (2007) 156 LGERA 294: [2007] NSWCA 351 F&D Bonaccorso v Canada Bay City Council (No 2) [2007] NSW LEC 537 McGrath v Williams (1912) 12 SR (NSW) 477 New South Wales Trotting Club Limited v The Council for the Municipality of Glebe (1937) 37 SR (NSW) 288 Permanent Trustee Company of New South Wales Limited v Campbelltown Corporation [1960] HCA 62, 105 CLR 401 Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 Re Kerrigan Ex Parte Jones (1946) 47 SR (NSW) 76 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 351
PARTIES:	William John Roberts - Plaintiff Gilgandra Shire Council - Defendant
FILE NUMBER(S):	SC 3763/2006
COUNSEL:	J S Drummond - Plaintiff T F Robertson SC - Defendant
SOLICITORS:	Hartmann & Associates - Plaintiff Booth Brown Samuels & Olney - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

28 November 2008

3763/06 ROBERTS v GILGANDRA SHIRE COUNCIL

The plaintiffs’ properties: the issues about the road.

1 HIS HONOUR: The plaintiffs are farmers and graziers and they own adjoining holdings in the Gilgandra district, about 50 km north-west of Dubbo, on the Collie Road. The second plaintiff Mr William Arthur Roberts is the father of the first plaintiff Mr William John Roberts. Mr Roberts Senior who was born in 1929 acquired a holding called Glenton in about 1947 and has lived there since 1952, conducting general farming and grazing, cereal crops, wool, fat lambs and beef cattle. Mr Roberts Junior who was born in 1965 lives on Kooroora, which adjoins Glenton. There are many parcels of land in their holdings. Mr Roberts Junior’s holdings include an adjoining property which is (or was) known as Six Foot and was formerly part of a larger property called Cardew, owned by another family surnamed Roberts who are only distantly related. Mr Roberts Senior bought Six Foot from Mr Murray Angus Roberts in a protracted transaction which was completed on 20 November 1967 when Mr Roberts Senior purchased and paid for four parcels of land, Lots 34 and 40 in the Parish of Kickabil on the south side of Milpulling Creek and Lots 37 and 38 in the Parish of Bugabada on the north side. Mr Roberts Senior held these parcels for almost 20 years and on 30 March 1987 he transferred them to Mr Roberts Junior, who did not pay anything for them. Lot 40 DP 752585 is central to the issues in these proceedings. DP 752585 replaces the Parish Map for the Parish of Kickabil and Lots 34 and 40 were Portions 34 and 40 of that Parish.

2 The litigation relates to the status and ownership of a road which is shown on the Parish Map as “RES ROAD 200 WIDE” and runs through Lot 40 generally north-easterly, runs to the east of Lot 34 and continues to Milpa, a property owned by Mr Thompson, who is not a party to this litigation. This road runs southwest of Lot 40 through Lot 21 until it joins the Collie Road, a significant public road and the main means of access to Dubbo. There are many plans which show this road and refer to it as a road; the plaintiffs claim that, for a number of reasons, the public have no rights to the road, or that the road should be closed and the rights of the public brought to an end; that the road should be transferred to Mr Roberts Junior. There are many claims ancillary to their principal position.

3 The plaintiffs claim remedies, in many forms, generally to the effect that the Court’s order should establish that the part of the road which runs through Lot 40 is part of Lot 40, or in some other way is owned by Mr Roberts Junior, and compel the Council to take action to bring about closing the road, and specifically to lodge with the Minister for Lands an application to close the road under s 34(1)(b) of the Roads Act 1993. The plaintiffs’ principal ground is that on a correct understanding of the Torrens Register in its present state Mr Roberts Junior is the registered proprietor of the road which runs through Lot 40. This is a question of the construction of Register Folio 40/752585.

4 There is no room for doubt that the road once was a public road. A declaration by the Governor of New South Wales published in the Government Gazette of 14 August 1925 page 3573 notified that a number of roads including this one were declared to be public roads and dedicated to the public accordingly, in pursuance of section 18 of the Public Roads Act 1902. A long enumeration of the dedicated roads included (column 2) “boundary road south east of portion 34; reserved roads within portions 40 and 21, parish of Kickabil, County of Ewenmar.” There is no attack on the procedural steps which were followed to dedicate the road.

5 The plaintiffs’ counsel submitted "the road reserve through Lot 40 despite being declared ‘public road’ has never been formed as a road, nor has the public ever had the benefit of its use." Evidence shows that there is no observable indication now that there has ever been a formed road there, but the evidence does not support the submission that the public has never had the benefit of use of the road. There is no evidence dealing with whether or not the land was used by the public as a road before or after 1925, and Mr Roberts Senior who was born in 1929 did not acquire the land until 1947. Mr Roberts Junior was born in July 1965 and is in no position to give evidence of use or non-use of the road after 1925. In any event under the statutory procedure followed in 1925 the land was fully constituted as a public road by the declaration published in the Government Gazette, and the step, necessary under the common law, of acceptance of the dedication by the public by using the road was not necessary.

6 The land which forms the road passing through Lot 40 has never been brought under the Real Property Act 1900, by a primary application or by action under s 232 of the Local Government Act 1919, or otherwise; see s 46C of the Real Property Act. The local government authority of the time, which was the Council’s predecessor, became the owner of the road upon the publication of the Governor's declaration in 1925. Previously the road was unalienated Crown land for which there were no title documents; Council became the freehold owner and its title is under the General Law or Old System. So too would be any title obtained against Council by adverse possession.

7 Throughout their occupation the plaintiffs have not removed any trees from the site of the road passing through Lot 40. So the plaintiffs left a line of timber on the road untouched for 1 or 2 km. For this reason the site of the road can be clearly identified on an aerial photograph. A fence along the eastern side of the disputed road separates Lot 40 into two paddocks; stock on the more westerly paddock can wander unobstructed onto the road reserve. The road is enclosed within the general boundary fences and gates of Kooroora. There are gates at the south-west between the road reserve and Collie Road, and at the north-east near the northern boundary of Lot 40. Sheep yards occupy about 80% of the width of the road, at the point where there are sheep yards. The sheep yards were constructed at some time in the mid-1990s, cover more than half an acre and can hold over 2000 sheep. Mr Roberts Junior planned and built them; they are constructed of steel and he regards them as permanent. Council has spoken of them in correspondence as portable.

8 The road now in dispute could give access between the Collie Road and Milpa and other properties to the north of Kooroora. They have other road access. From as far back as Mr Robert Junior remembers in his childhood, a series of owners and occupiers of Milpa did not use the road now in dispute for access. Mr Thompson came to own Milpa about late 2003. Controversy with Mr Thompson began in 2005 when Mr Thompson came on the road in dispute and conducted some operation of moving fallen timber to the side. This was followed by solicitors’ correspondence. There is a poor relationship between Mr Roberts and Mr Thompson.

What the Torrens Register means about the road.

9 The plaintiffs' counsel contended that Folio 40/752585 establishes the existence of a registered title, protected by s 42 of the Real Property Act 1900, which is not subject to exclusion of the road.

10 In 1925 Portion 34 was the subject of a Conditional Purchase applied for on 11 February 1904 under the Crown Lands Act 1884. By 23 September 1927 conditions for the sale had been fulfilled and the price had been paid, and on that date the land was granted to the Bank of Australasia by Crown Grant Volume 4054 Folio 216. It is altogether clear from the terms of the Crown Grant, which contains a plan of Portion 34 and a description by metes and bounds, that the road to the east of Portion 34 did not form part of the Portion. In this respect the Crown Grant conformed to a survey made on 27 April 1904 in connection with the Conditional Purchase. In the Crown Grant the road is shown on the diagram and referred to in the metes and bounds description which says, among many other things, that Portion 34 is bounded “… on the South East by a road two chains wide dividing this land from portion forty bearing North twenty four degrees eleven minutes, East sixteen chains eleven links, …“. These words clearly show that the road was not part of Portion 34. In a proviso in the Crown Grant there are reservations and exceptions of minerals, and of such parts of the land granted as might thereafter be required for public ways, of material required for public roads and other public purposes, but there is no other express reference to the road to the east.

11 After many dealings had been registered and Mr Roberts Senior became the registered proprietor, the Crown Grant was cancelled, and Certificate of Title Volume 15095 Folio 199 was issued on 10 August 1983. The land was there described as Portion 34 and the diagram on the Certificate of Title unmistakably showed that the road to the east was not part of Portion 34. The Certificate of Title which relates to the land now is Folio 34/752585 dated 30 December 1998. Mr Roberts Junior is the registered proprietor. The description of the land is as follows:

LOT 34 IN DEPOSITED PLAN 752585
LOCAL GOVERNMENT AREA: GILGANDRA
PARISH OF KICKABILL COUNTY OF EWENMAR
(FORMERLY KNOWN AS PORTION 34)
TITLE DIAGRAM: CROWN PLAN 1835.1890

Deposited Plan 752585 is the current edition of the Parish Map. Crown Plan 1835.1890 is the survey plan of 27 April 1904. On the terms of Folio 34/752585, which should be read with the aid of the two plans referred to in it, the road is not part of Lot 34.

12 In 1925 Portion 40 Parish of Kickabil was the subject of an Additional Conditional Purchase applied for on 3 November 1920. There had been many earlier applications and dealings with Portion 40 under Crown Lands legislation long before 1920. Portion 40 Parish of Kickabil appeared on Crown Plan 1382 – 1890 which also showed Portion 40 of the Parish of Bugabada on the other side of Bugabada Creek to the North. This stream is also known as Milpulling Creek. The Additional Conditional Purchase was additional to an Original Conditional Purchase applied for on 11 February 1904, which may well have been the Conditional Purchase of Portion 34. On 13 March 1958 Crown Grant Volume 7468 Folio 140 issued to The Union Trustee Company of Australia Limited. The description in the Crown Grant was as follows: “ALL THAT Piece or Parcel of Land … containing by admeasurement six hundred and seventy eight acres be the same more or less situated in the County of Ewenmar and Parish of Kickabil Portion 40 is shown in plan Catalogue No. E. 1382-1890 in the Department of Lands excepting out of the said piece or parcel of land the road coloured brown in the plan hereon the area of which is not included in the above stated area”. The plan showed the excepted road. Under the plan was a statement of area:

Area: 678 acres
This area does not include the area of the road coloured brown.

The proviso to the Crown Grant reserved and excepted minerals and also land thereafter required for public ways but did not contain a reservation or exception relating to an existing road.

13 On the terms of this Crown Grant it is altogether clear that the road through Lot 40 was not granted to the grantee. This is understandable because one effect of the Gazette notice of 14 August 1925 had been to vest the road in the local authority.

14 After intermediate transactions Mr Roberts Senior became registered proprietor of Portion 40 on 12 December 1967. In 1973 the Crown Grant was cancelled and Certificate of Title Volume 13256 Folio 117 was issued on 26 October 1973. That Certificate of Title contained the following description of the estate and land referred to:

Estate in Fee Simple in Portion 40 in the Shire of Gilgandra Parish of Kickabil and County of the Ewenmar. EXCEPTING THEREOUT the road shown in the plan hereon and the minerals reserved by the Crown Grant.

15 The position of the road was clearly shown in the diagram, and under the statement of area below the diagram were the words “THIS AREA DOES NOT INCLUDE THE AREA OF THE ROAD”. The plan not only showed the road which intersected Portion 40; it showed other sections of road to the north and east of Portion 40, all of which were plainly excepted.

16 So from 1967 until 1998 Mr Roberts Senior and later Mr Roberts Junior held Lot 40 under Certificates of Title which made it completely clear that the road was excepted from Lot 40. It is their evidence that they did not see their Certificates of Title or know what they said.

17 Certificate of Title 12256 Folio 117 was cancelled on 30 December 1998 when Folio Identifier 40/752585 was issued. The description of the land includes:

“LOT 40 IN DEPOSITED PLAN 752585
(FORMERLY KNOWN AS PORTION 40)
TITLE DIAGRAM: CROWN PLAN 1382.1890

The Second Schedule includes this notification:

1. LAND EXCLUDES MINERALS AND IS SUBJECT TO RESERVATIONS AND CONDITIONS IN FAVOUR OF THE CROWN – SEE CROWN GRANT(S)

18 For an understanding of Folio Identifier 40/752585 it is necessary to refer to the plans incorporated in the description and referred to in the Second Schedule. Section 40 of the Real Property Act 1900 includes the following provision:

(1B) Where, in a manual folio or computer folio certificate, the estate or interest of a registered proprietor is expressed to be subject to:
(a) an estate or interest evidenced by an instrument,
(b) a provision of an instrument, or
(c) an enumerated provision of an Act or of an Act of the Parliament of the Commonwealth,
the whole of the contents of the instrument, provision or enumerated provision, as the case may be, shall be deemed to be set forth at length in the folio or certificate.

19 This provision states in a full way the law as earlier established in Bursill Enterprises Pty Ltd v Berger Bros Trading Co. Pty Ltd (1971) 124 CLR 73 at 92-93 (Windeyer J). The Crown Plan and Crown Grant are deemed to be set forth at length in the folio; for understanding the folio it is necessary to refer to those documents.

20 Deposited Plan 752585 is the fifth edition of the Parish Map for the Parish of Kickabil and is dated 16 February 1965. It does not show the dimensions or bearings of boundaries, except for statements of area. For Lot 40 it says "678 ac ex Rd". It shows the road running across Lot 40 marked "RES ROAD", and "200 WIDE" is written outside the bounds of Lot 40 but is obviously part of the statement about the reserved road. (200 means 200 links or two chains). Elsewhere on DP 752585 there are roads or portions or parts of roads which are clearly shown by the markings of boundaries of lots not to be included within lots; this is so for part of the same road. There are no such markings indicating boundaries between Lot 40 on one side or the other of the reserved road. However the statement that it is a reserved road, and the statement of area excluding the road, show that the meaning of DP 752585 is that the road had been reserved, had not been granted and is not part of Lot 40. A thing that is still reserved has not been granted.

21 Crown Plan 1382.1890 is entitled "Plan of Portions 40 & 40 County of Ewenmar, Parishes Bugabada, Kickabil … applied for under the 48 Clause of the Crown Lands Act of 1884 by John Dowdell.” Many details of this plan are difficult to follow as it bears many notations, alterations and overwritings. Mr Surveyor Terry certified that he completed the survey on 25 February 1891. What it shows about Portion 40 Parish of Kickabil is difficult to follow; it shows that Portion 40 was first laid out at 904 acres excluding the road but was later altered or redefined; a note dated 7 July 1904 says to this effect "Plan of Por 40 ph Kickabil approved for 678 ac”. The road, recognizably the road now in question, is shown running through the revised Portion 40 and is there marked "RES ROAD 200 WIDE". The statement of the area on the altered Portion 40 says "678 ac ex rd".

22 To my reading of this Crown Plan it is not altogether clear whether or not the road was included within Portion 40, but the reference to it as "RES ROAD" and its exclusion from the area calculations suggest that it probably was not.

23 The Crown Grant relating to Lot 40 contained expressions which altogether clearly showed that the land granted did not include the area of the road. The terms of the Crown Grant are deemed to be set forth in the Register Folio, because they are referred to in it. When the Crown Grant was cancelled Certificate of Title Volume 12256 Folio 17 also contained an altogether clear express statement that the area of the road was not included; but it cannot aid the construction of the present Folio because it is not referred to in the present Folio. There is no correspondingly explicit statement in the present Register Folio. The contrasting absence of a corresponding entirely explicit statement in the present Folio is not a consideration which should be brought to bear on its construction.

24 A plan in evidence called "Cadastral Records Inquiry Report" does not show matters in the same way as DP 752585; there are distinct lot boundaries between the two separate parts of Lot 40 and the road. However this plan contains a statement warning that it is of a limited significance, it is obviously not a copy of DP 572585 in this respect, and it is not referred to in the Register Folio. It has no significance for determining the meaning of the Folio.

25 Plaintiffs’ counsel referred to a number of other Certificates of Title of various dates which, in several different formulations, clearly exclude the same road from the title to other lots. In my opinion the terms of the exclusions found in Certificates of Title to other lots are not available for the construction of the Register Folio for Lot 40. Counsel said that Lot 40 is the only lot through which the road reserve passes the Certificate of Title for which does not bear any entry expressly excepting the road in its Second Schedule. In my opinion this is not a relevant consideration; the documents to be interpreted are the Register Folio for Lot 40 and the documents referred to in it. The Certificates of Title for other lots affected by the same road are not material which can or should be looked to for the purpose of construction of the relevant Register Folio; they are not documents which a reasonable person considering the title to Lot 40 should search.

26 In my finding Folio 40/752585 means that the reserved road is not part of Lot 40.

Exceptions and Reservations.

27 Folio 40/752585 in its Second Schedule refers to exclusions, reservations and conditions in this notification: "1. Land excludes minerals and is subject to reservations and conditions in favour of the Crown - see Crown Grant(s).” Crown Grant Volume 7468 Folio 140 uses language referring to an exception when it deals with the road, and elsewhere in standard printed passages refers to reservations and exceptions. In the proviso the matters reserved are said to be reserved and excepted, so in the proviso the distinction was not treated as a prominent consideration.

28 I was referred to case law, discussions and expositions of distinctions between exceptions and reservations, Attorney General for New South Wales v Dixon [1904] AC 273 at 277, McGrath v Williams (1912) 12 SR (NSW) 477 at 480-481 (Simpson CJ in Eq) and Re Kerrigan Ex Parte Jones (1946) 47 SR (NSW) 76 at 85 (Jordan CJ); and also to texts discussing the use of the word "Reservation”. I respectfully say that I do not find authoritative expositions of the distinction altogether clear. The language of Crown Grant Volume 7468 Folio 140 conforms to the strict view when it speaks of the road as an exception, as the road was shown on plans which existed long before the Crown Grant. The Register Folio speaks of reservations and conditions in favour of the Crown, not exceptions. It is not a reasonable approach to construction of the Register Folio to suppose that it indicates that the land is subject to reservations and conditions, but makes some extremely strict use of language which distinguishes reservations from exclusions, and indicates that the only exclusion was of minerals. Such strictness of language is not observed, in title registers or elsewhere. The invitation or direction to see the Crown Grant was an indication of what it was necessary to do to understand the reference to reservations and conditions (and for that matter, the reference to excluding minerals). The effect is to notify everything which the Crown Grant has to say which could be thought to be a reservation or a condition in favour of the Crown in any sense.

29 Section 42(1) makes the estate of the registered proprietor subject to " … such entries, if any, as are recorded …”. When this provision with its neutral word “entries” is taken with the provisions of section 40(1B) and the whole of the contents of the Crown Grant and Crown Plan are deemed to be set forth at length in the Folio, consideration whether the exception in the Crown Grant falls within the meaning of the reference to conditions or reservations in the Second Schedule para (1) of the present Folio loses any significance it might otherwise have.

Status as a Public Road.

30 If the meaning of the present Folio were as the plaintiffs contend, there would be a conflict between the rights of Mr Roberts Junior as registered proprietor, assisted by s 42, and the title of the local authority, now Gilgandra Shire Council, traceable to the Public Roads Act 1902 and the declaration under s 18 published on 14 August 1925. There would also be a conflict between the rights of Mr Roberts Junior and the rights of the public to use a dedicated road. The defendant's counsel contended that any such conflict should be resolved in accordance with the opinion of Rich AJ in Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 351 at 362. See also City of Canada Bay Council v Bonaccorso Pty Ltd (2007) 156 LGERA 294: [2007] NSWCA 351 at [46]-[49] (CA). However on my view of the meaning and effect of the current Folio, my decision does not turn on this contention.

31 No practical success for the plaintiffs would be achieved if it were established that Council is not in a position to dispute that the road is a public road; the rights of the public would not be affected by the existence of an estoppel against the Council.

32 If it were the case, contrary to my opinion, that Mr Roberts Junior has a title by registration to the road through Lot 40 and the Council does not, that would have no impact on the status of the land as a public road and no impact on the rights of the public over it. Land which has become a public road, by dedication under the common law or by statutory procedures, continues to be a public road regardless of who owns the freehold; that is, regardless of alterations in registered proprietorship. The status of such land as a public road and the rights of the public can be ended only by statutory powers of closure; at present, under the Roads Act 1993. See Permanent Trustee Company of New South Wales Limited v Campbelltown Corporation [1960] HCA 62, 105 CLR 401 at 422. Judicial recognition of the lack of effect of indefeasibility under the Torrens System on public rights to roads is of long standing; see Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354, Canada Bay City Council v F&D Bonaccorso Pty Ltd [2007] 156 LGERA 294 at [46], [52]. There are many other instances and the position referred to in Vickery by Rich AJ has not been the subject of significant judicial doubt. If the plaintiffs succeeded in showing that Mr Roberts Junior is the registered proprietor of the road it would be a public road nonetheless.

Cardew, Thomas Roberts’ Estate and the road to Lara.

33 Before and in late 1966 the property to the north of Mr Roberts Senior’s then holding was known as Six Foot. Six Foot was part of a larger property Cardew which was once owned by Mr Thomas Roberts who died in 1953. The executor and trustee of his estate was The Union Trustee Company of Australia Limited later named Union Fidelity Trustee Company of Australia Limited (Union Fidelity). Union Fidelity held the property on trust for three grandsons of the late Mr Thomas Roberts, the sons of his son Frank Roberts who had died in 1947. The trust continued until the youngest grandson Mr Murray Angus Roberts turned 21 in 1965. Union Fidelity transferred Six Foot to the three grandsons who then made further transfers, apparently to carry out appropriations of various parts of Cardew among themselves. A transfer of Lot 40 Parish of Kickabil (and perhaps of other land) to the three Roberts grandsons from Union Fidelity was registered on 13 October 1966. The three grandsons remained registered proprietors until 2 May 1967, when a transfer of the interests of Raymond Thomas Roberts to Maxwell Francis Roberts and Murray Angus Roberts was registered. The transfer was dated 20 September 1966 but it was not registered until 2 May 1967 and was not registrable until a certificate by the Minister for Lands relating to some other land in the same transfer had been given on 5 April 1967. The next stage was that Maxwell Francis Roberts and Murray Angus Roberts transferred Six Foot including Lot 40 to Murray Angus Roberts solely by a transfer dated 5 June 1967 and registered on 1 November 1967.

34 Six Foot included Portion 2, Portion 37 and Portion 38 of the Parish of Bugabada on the north side of Millpulling Creek, as well as land on the south side in the Parish of Kickabil. A reserved road through these portions appeared on the Bugabada Parish Map, and on the Certificates of Title for Portions 37 and 38; Portion 2 was still subject to the Crown Lands Consolidation Acts. This road appears on Deposited Plan 752558, the sixth edition of the Parish Map of the Parish of Bugabada dated 21 November 1980; the site of the road is shown on Lots 37 and 38 but not on Lot 71, formerly Portion 2; by the time there was a Crown Grant for Lot 71 the road had been closed, so it was not excepted from the Crown Grant and it did not appear on Lot 71 in the next edition of the Parish Map.

35 At one time this reserved road was used to reach Lara from Collie Road to the southwest; Lara lay to the north of Six Foot. It may not have been a dedicated public road. From some time about July 1963 the Council had a project of constructing a new access road to Lara, which had been initiated by an application made to Council by Mr E.T Fisher who then owned Lara. Council decided to resume land to form a road to connect Lara with the road system by a resolution of 10 June 1964. Council invited Union Fidelity, which owned the land which was to be resumed, to apply to acquire the existing road. Later Union Fidelity proposed an exchange of the existing road for the land be resumed; and was willing to make an arrangement for an exchange but for the difficulty that it had limited powers under the will; hence on 2 October 1964 Union Fidelity invited Council to proceed by way of resumption. Council set about construction of a new road running along strips of land which were the northernmost land in Lots 37 and 38; these were later resumed for road purposes. Sufficient road surface was constructed to facilitate access to the homestead on Lara, and it seems that most of the work took place in September and October 1965. Other parts of the land resumed and dedicated as a public road remained without any road construction works. The new road had been surveyed by 24 January 1966. By 7 October 1966 the process of resumption had reached the stage where it was stated on behalf of the Minister for Lands that he proposed to resume land for the new road and that the reserved road was proposed to be closed and granted in connection with compensation.

36 Mr Hunter the Shire Engineer involved in the road works fell ill and was replaced by another engineer in October 1966. Mr Hunter resigned on 22 February 1967. Opening and dedicating the new road, resuming parts of Portions 37 and 38, closing a reserved road through Portions 37 and 38 and related decisions were carried out by notifications by the Minister for Lands published in the Government Gazette on 8 February 1967. That reserved road was then said to be closed and "to be granted in connection with compensation". Deposited Plan 752558 clearly shows the road the land for which was resumed on 8 February 1967, and gives a reference to the plan which was mentioned in the resumption notice. So far as appears the closed road remains unalienated Crown land outside the Torrens system, and is not part of Lots 37 and 38 Parish of Bugabada.

37 It is very improbable that Mr Roberts Senior was in any sense a participant in these events. The arrangements which Council saw itself as needing to make with the owner of the land upon which its new road was to be constructed were made with Union Fidelity. I am not able to see what could have motivated Council or Mr Hunter to make a binding contractual arrangement or for that matter any arrangement with Mr Roberts Senior at a time when Union Fidelity or members of the other Roberts family were the owners of the land. It was they whom it would have been sensible to consult and deal with; and it was the three Roberts grandsons who were affected by the resumption when it took place and had any claim for compensation. I cannot see that Mr Roberts Senior had any standing for Mr Jack Hunter to consider him at all, and it is extremely improbable that anything more happened than that Mr Hunter told him what Council and Mr Hunter were doing.

Shire Engineer’s Conversation with Mr Roberts Senior.

38 In paras 43, 44 and 45 of the Second Amended Statement of Claim it is alleged that Mr Roberts Senior made an agreement, referred to as the relocation agreement, with Mr Jack Hunter, then the Shire Engineer employed by the Council, in or about October 1966. It is alleged (para 44) that Mr Hunter represented:

(i) That Council wished to relocate the road traversing lots 37, 38 and 71 from a position in the middle of each of those lots to a position along the northern boundary of each lot
(ii) that if [Mr Roberts Senior] agreed to the relocation of the road reserve traversing Lots 37, 38 and 71 that Council would close all other road reserves traversing the Lands.

39 It is alleged that Mr Roberts Senior relied on these representations. These facts are alleged to give rise to a contractual obligation of the Council to make application to the Minister for Lands to close the road. In an alternative it is alleged that Council is estopped from asserting that the road has not been closed but remains a public road.

40 Mr Roberts Senior’s evidence shows that in or about early 1967 he received a telephone call from Mr Jack Hunter who asked to see him, and by arrangement they met at the northern boundary of Lot 38, on or near the road works which Council had recently carried out. Mr Hunter explained that Council was looking at improving access to a new house on Lara from Collie Road, and explained that the present road reserve became impassable when the creek flooded. He said “What we would like to do is to relocate the road onto higher ground along the northern boundaries of Portions 2, 37 and 38. If the road reserve can go there, it will greatly improve the quality of his access. The old road will be closed.”

41 Mr Roberts Senior’s evidence is that he told Mr Hunter that if the road reserve was placed along the northern boundary he would be giving Council for more and better land than he would be receiving (meaning more and better than the existing reserved road through Lots 37, 38 and 71). He said “Up here is some of our best farming land on this part of the property.” Mr Hunter asked what he wanted and Mr Roberts Senior said “I will agree for you to relocate the road provided that Council close the other roads on Six Foot.” Mr Hunter said “Yes that can be done” and Mr Roberts Senior said "Okay. I will leave it to you close the other road reserves". Mr Hunter said “Okay”.

42 Mr Roberts Senior says on affidavit:

25. At all times since my discussions with Mr Jack Hunter it has been my understanding that the roads through Lots 34 and 40 had been closed. Had Mr Jack Hunter not agreed to close that road I would not have agreed to the relocation of the reserved road through Lots 37, 38 and 71.

43 Mr Roberts Senior restated the date of the conversation as late in 1966. Mr Roberts Senior fully acknowledged his inability to state in a reliable way the date, exactly or approximately, of the conversation which he claimed to have had. He said under cross-examination to the effect that the conversation would be in or about early 1967, somewhere around then or late 1966 (t 93). Mr Hunter’s employment history makes it, with fair certainty, impossible that that conversation took place later than October 1966. Well before October 1966 an arrangement had been made or an understanding had been reached, whether contractual or not, among Union Fidelity, the Council and the Department of Lands that Union Fidelity would receive and accept the grant of the existing road rather than be paid compensation on resumption.

44 These circumstances make it extremely improbable that Council or Mr Hunter on its behalf entered into an agreement, arrangement or understanding in any terms which could be understood as a commitment to Mr Roberts Senior while Mr Hunter was still working as its engineer. Council had already spent years making arrangements with the persons whose agreement was significant. Council had already had an arrangement with Union Fidelity and had gone a long way towards carrying it out. It is very unlikely that Council then embarked on negotiating terms with or making a commitment to another person who was not then the owner of affected land. When title passed to the Roberts brothers Council needed to deal with them. Mr Roberts Senior did not own an interest in the land and it is improbable that he had more than an informal arrangement to acquire it from one of the three beneficiaries to whom Union Fidelity was in the process of transferring it. The circumstances of the arrangement show, in my opinion, that if it was made as Mr Roberts Senior claims it was not intended, and could not reasonably be understood by Mr Roberts Senior, to be a binding commitment.

45 A further improbability is that according to Mr Roberts Senior’s evidence Mr Hunter explained to him, in a date late in 1966 which must have been in or about October, that Council would like to relocate the road on higher ground along the northern boundary because the existing road became impassable when the Creek flooded and said to him "If the road reserve can go there it would greatly improve the quality of his [Mr Fisher's] access." And Mr Roberts went on to say "If you place the road reserve along the northern boundary I will be giving Council far more and better land than I will be receiving." Yet Council's project for creating a new road had gone so far that the construction work had been completed more than a year before. To my mind it is very improbable that Mr Hunter would be seeking Mr Robert Senior’s agreement for an arrangement to relocate the road to higher ground long after the construction works had actually taken place. In all practicality there was no turning aside, whatever Mr Roberts Senior said.

46 The conversation given in evidence by Mr Roberts Senior at para 29 of his affidavit of 17 July 2006 is curious in some respects. One is that the highest undertaking attributed to Mr Hunter, and highest indication of the action Council would take attributed to Mr Hunter is that the roads on Six Foot would be closed; it is not attributed to Mr Hunter that he undertook that they would not only be closed, but that title to them would be conferred on Mr Roberts Senior. Mr Roberts Senior used language in the conversation which showed his assumption that he would be receiving the existing reserved roads through Portions 37 and 38 but at the later point where he said that Mr Hunter gave a commitment, the commitment related to Mr Roberts Senior saying "I will agree for you to relocate the road providing that Council close the other roads on Six Foot." and Mr Hunter answering "Yes, that can be done." The conversation related to relocating the access road to Lara and closing "the other roads" which must refer to the road which provided access to Lara through Portions 37 and 38. There was no explicit reference to the road through Lot 40, which was not involved in the problem of access to Lara, and was on the other side of Millpulling Creek and in a different Parish. It was introduced and dealt with only at the end with the exchange I have set out.

47 In my view it is very improbable that Mr Hunter agreed out of hand to the closure of all other roads on Six Foot, and agreed forthwith when Mr Roberts Senior first mentioned other roads, and agreed in general terms although they were not involved in the subject earlier discussed. The general reference to "the other roads on Six Foot" went considerably beyond reference to the road lying between the two parts of Lot 40 and would include the part of that road which extended generally south west from there to the Collie Road and to the part which extended generally north bounded by Lot 34 on one side and part of Lot 40 on the other side, and could also include a road running south along the western boundary of Lot 40. At least some of these were the subject of a road permit, but the plaintiffs have never put the view that Mr Hunter made an agreement with respect to them.

48 The terms of the conversation which Mr Roberts Senior gives do not clearly show that it would have been understood by Mr Hunter that he was being asked for or that he was giving a commitment about closing not only the road reserve passing through Portions 2, 37 and 38, but also an existing dedicated road passing through Portions 40 of the next Parish about a mile away on the far side of Milpulling Creek. That would not be well described as a road reserve as it was a dedicated road.

49 If Mr Roberts Senior did form any beliefs about closure of any road reserve, it is remarkable, in my judgment unreasonable, that such a belief should persist for many years without any further information about official procedure to carry out the closure. The commitment allegedly made by Mr Jack Hunter was not made or recorded in writing, Mr Roberts Senior did nothing to enforce it, or even to let Council know that he thought it existed and that he was entitled to benefit of it, from 1967 until these proceedings were commenced in 2006. Union Fidelity was the registered proprietor of Lot 40 from the time of the Crown Grant in 1958 until the transfer was registered on 13 October 1966. At the time of the resumption the registered proprietors of Lots 37 and 38, who would be entitled to any claim for resumption compensation, were the three Roberts brothers. Mr Roberts Senior’s inability to establish by evidence in a reliable way that date of the conversation creates difficulty for testing the probabilities about whether the conversation took place, or what its terms were. This difficulty does not work to the plaintiffs’ advantage, as they have the onus of proof.

50 For reasons which I will state it is extremely unlikely that Mr Roberts Senior owned any interest of any kind in Six Foot in late October 1966, the latest time when his conversation with Mr Hunter could possibly have taken place. A person who does not have a legal or equitable interest in land is not in a position to have the benefit of an equitable estoppel with respect to an expectation that some ancillary interest or augmentation of a prospective title would be conferred on him; nor would he be in a position to assist a claim of estoppel by pointing to a disadvantage or a detriment such as the loss by resumption of strips of land which he had hopes of owning but did not own.

51 Mr Roberts Senior says in evidence that he agreed orally to purchase Six Foot in April 1966 in a conversation with Mr Robert Jones, a selling agent acting on behalf of Mr Murray Roberts. He says that he signed the contract for sale about 12 months or more prior to settlement on 20 November 1967. The date on which he signed the contract does not establish the date on which contracts were exchanged. The contract document cannot be found and a solicitor’s record card from those times contains very sparse information and does not show the date of exchange of contracts. Significant events in the purchase included that it emerged that title to Portion 71, which at some early stage was to be included in the sale, was Homestead Lease not freehold and could not be transferred to Mr Roberts Senior. His young daughter acquired the Homestead Lease and transferred Portion 71 now Lot 2 to Mr Roberts Senior in 1971 after she obtained a Crown Grant. It cannot be accepted that Mr Roberts Senior acquired an interest in Lot 40 or any other part of Six Foot at the time when he signed the contract, or at the time (which has not been established) when it was exchanged. On no view was Mr Murray Angus Roberts in a position to confer an equitable interest in Lot 40 under a Contract of Sale before he was the owner of the land himself. He became the registered proprietor in June 1967; perhaps he was the equitable owner before that, it may be when the Minister consented and the transfer to him became registrable. Any possible date is much later than any possible date for the conversation with Mr Hunter.

52 It is not possible that in or before October 1966 Mr Roberts Senior’s contract of sale had reached the position where all conditions for completion had been fulfilled and he was entitled to treat the vendor as trustee for himself. Little is left of support for the view that a vendor is a trustee for the purchaser of land having regard to decisions of the High Court: see Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at [45]-[53]; Black v Garnock (2007) 230 CLR 438 at [32] (Gummow and Hayne JJ). It is extremely unlikely that the purchase had reached the point where all conditions for completion had been fulfilled and Mr Roberts Senior had a claim to treat the vendor as trustee for himself. In particular, he had not paid for it.

53 It would not in my opinion be reasonable to rely on a representation made orally by Mr Hunter, the Shire Engineer, on the basis that he was giving a commitment by which the Shire Council was bound. Mr Hunter as the Shire Engineer did not have ostensible authority to give a commitment binding Council to close a road reserve; still less to close a dedicated public road. The most it would be reasonable to understand him to be doing, if he said what Mr Roberts Senior claims he said, was indicating the course he would himself support; it should be known to all reasonable people that councils make their own decisions and are not committed by the views of officers such as their Shire Engineers. (Further, it was as a matter of law necessary that there be a pre-existing express conferral of authority on him; this is a result of the provisions of Local Government Act 1919 s 530A(2) – (6) then in force.)

54 There is evidence about what Mr Roberts Senior understood that Mr Hunter was in a position to do. No reasonable person could think that public authorities bind themselves to dispose of roads and put an end to the rights that other people have to use the roads by unrecorded conversations in the field. Cross-examination clearly showed that Mr Roberts Senior in fact understood that it was Council and not Mr Hunter who made decisions about opening and closing roads and that consideration by Council would be required. Mr Roberts Senior referred to events where Mr Hunter made decisions about road construction and acted on them very quickly. Mr Roberts Senior said to the effect that Mr Hunter did make decisions about roads "off his own [bat]" – “Yes, he did to a certain extent to, I think, that things were a bit different into what they are now.” (t 95, l 15-18). However later he was asked: “Q. And you knew very well that Council had to make the decision, it wasn't the Council officer or engineer who made that decision? A. On closing roads and opening yes, but this was one wasn't. He only shifted - we were shifting the road from down near the Creek where it was getting flooded or come up to the top of my boundary." (t 97, l 36-40). Mr Roberts Senior shuffled between several positions, but his answers make it clear to me that he understood that Council, not its officer, had to make the decisions on closing roads and opening them.

55 If Mr Roberts Senior did form any belief about closure of any road reserve, it is remarkable, in my judgment unreasonable, that such a belief should persist for many years without any further information about official processes to carry out the closure.

56 Mr Hunter could well have told Mr Roberts Senior, whom he had known for a long time, what was happening and was proposed to happen about the creation of the new road. It is improbable however that Mr Hunter told Mr Roberts Senior anything which was in any sense a commitment to future action by Council, and I find that he did not. The arrangement contemplated at the time of resumption was that the Crown would transfer to Union Fidelity or the beneficiaries of the estate the reserved road which ran through Portions 37 and 38, and that that would be accepted in discharge of rights to compensation on resumption of the new road. If Mr Hunter did tell Mr Roberts Senior what was happening he is likely to have told him this. There is no reason to think that the public road going through Lot 40 was in any way involved in the contemplated arrangement. The subject under consideration was the substitution of new access to Lara for the existing access to Lara.

57 In the Second Amended Statement Of Claim, claims 5 and 6 are claims based on a contention that the arrangement between Mr Roberts Senior and Mr Jack Hunter constitutes a binding and enforceable agreement between Mr Roberts Senior on behalf of himself and his son and the Council that in consideration of Mr Roberts Senior agreeing to relocate the road reserve on Lots 37 and 38 DP 572558 the Council would lodge with the Minister for Lands an application to close the road traversing lots 34 and 40 DP 752585; and an order for specific performance. For the reasons I have stated, I find that there was no such agreement.

58 Mr Roberts Senior was not in a position to prevent Council from taking someone else’s land and bringing about dedication of a road along the northern boundary if Council decided to do so; it was equipped with public powers, and did not depend on his agreement. The land was owned by other people. Council had already surveyed, fenced and built the road to afford better access to Lara, and the process was completed in February 1967 by a proclamation which closed the reserved road through Lots 2, 37 and 38. The proclamation indicated that the road was closed with the view to a transaction in which it was to be disposed of in lieu of compensation for the land resumed. No such a transaction ever took place; so far as it appears on evidence no resumption compensation was claimed and no measure was taken to transfer title in the closed road to any of the successive proprietors of Lots 37 and 38. Mr Roberts Senior has incurred no detriment which might support so serious a remedy as compelling Council to close and transfer the road intersecting Lot 40, or to take steps to get another public authority to close it.

59 Reasonable people know that commitments relating to dealings with title to land or exchanges of land are required by law to be in writing if they are to be enforceable; this is even more clear in the case of dealing with a public authority than it is for dealing with a private person. If anything which could be regarded as a commitment was given to Mr Roberts Senior, it would not have been reasonable for him to act on an oral commitment.

60 Mr Roberts Senior ceased to be the owner of Lot 40 or of any land affected by the road in 1987; he transferred the land to Mr Roberts Junior without receiving payment. He cannot possibly be at risk of any claim by Mr Roberts Junior relating to any shortcoming in title to the land conveyed. He cannot be granted an equitable remedy in respect of the estoppel he alleges because he has no interest in the subject matter.

61 The detriment put forward in Mr Roberts Senior’s first affidavit para 26 was "Had I made aware at any time between 1967 and March 1983” [and 1987 must have been intended] ”that the road through Lots 34 and 40 have not been closed I would have undertaken steps to have the road closed in accordance with the conversation set out in para 21 above". The steps referred to can be no more than applying for Council to initiate closure of the road by the Department of Lands, and there could be no detriment in the absence of showing that that would have resulted in closure of the road; which has not been shown.

62 If there were such an agreement it would not be appropriate to enforce it by an order for specific performance because the decision by the Council to lodge an application with the Minister pursuant to section 34 (1) (b) of the Roads Act 1993, or to earlier legislation at earlier times, would be an exercise of public powers based on considerations much wider than the existence of a contractual commitment to exercise them, and the court should not preclude or control the exercise of those public powers for the purpose only of enforcing a contractual commitment.

Estoppel and Mr Roberts Junior.

63 Mr Roberts Junior says on affidavit:

16. Based upon the conversations with my father … and the rate notices referred to … I have since the late 1960s understood that the reserve for the road through Lots 34 and 40 had been closed by Council … Had I known or been informed that the road remained on those certificates of title I would have made application to the Council for the road to be closed, and if necessary have commenced the proceedings to obtain a closure of that road.

64 It is Mr Roberts Junior’s case that Mr Roberts Senior told him of the arrangement with Mr Hunter, and he acted on it. Mr Roberts Junior counts only sunny hours: his evidence is that he did not know what his Certificate of Title said during the years when it expressly excepted the road, he saw rate notices which spoke of a closed road, and did not see those rate notices which do not speak of a closed road. For fifteen years or more he thought he had some right in the road on his father’s say-so, without confirmation from his own Certificate of Title or from anywhere else. Mr Roberts Junior was not involved in the events between Mr Hunter and Mr Roberts Senior which Mr Roberts alleges; Mr Roberts Junior was then a young child, perhaps two years old, perhaps younger. If Mr Hunter did make the representations alleged he could not have contemplated that Mr Roberts Junior or anyone other than Mr Roberts Senior would act on them. Nothing that happened could be an indication that Mr Hunter authorised Mr Roberts Senior to pass on an impression or understanding he gained from the conversation to anybody else or to a later owner. No assignment by Mr Roberts Senior to Mr Roberts Junior has been made and nothing which could have the substance of an assignment has been referred to. There are no circumstances in which it would be unconscionable of the Council not to fulfil some expectations of Mr Roberts Junior arising out of the alleged conversation between Mr Roberts Senior and Mr Hunter. There is simply no relationship between them which has anything to do with representations made by Mr Hunter.

65 In the understanding of Mr Roberts Junior what he was told about an agreement related only to the road which traverses Lot 40, and did not relate to the road reserve for which an enclosure permit has been held. The road permit extends to a road running North and South along the eastern boundary of Lot 40, which clearly appears from DP 525585 not to be included within Lot 40 or any other adjoining lots.

Rate Notices and Estoppel.

66 A further matter which was said to give rise to another claim of estoppel or to assist the claim already discussed relates to statements in rate notices. Mr Roberts Senior has produced a rate notice for 1979 which relates to Six Foot. Under "Description of situation of land rated" is the following:

Parish of Bugabada
Portion
Pt 37/38 CL RD
Parish of Kickabil 3, 35 CL 18/3,
34, 40, 41 CL RD & RP 10/9

67 The meaning which Mr Roberts Senior attributed to these statements was that he was rated for parts of Portions 37 and 38 of the Parish of Bugabada, (not the whole of these portions as some had been resumed for a road) and for a closed road associated with Portions 37 and 38. For the Parish of Kickabil he was rated for Portions 3, 35, CL18/3, Portions 34, 40, 41 and a closed road; and he identified RP 10/9 as an enclosure permit, he says "RP 10/9 related to a strip of land which ran along the eastern and northern boundaries of Lot 40." The enclosure permit already existed before Mr Roberts Senior purchased Six Foot. The Roberts do not know of any use by anyone other than themselves of the roads the subject of the enclosure permit.

68 Mr Roberts Senior said that to the best of his recollection each rate notice which he received after July 1968 was in similar terms. According to his evidence rate notices in this form continued until he transferred Six Foot to Mr Roberts Junior on 30 March 1987. He refers to relevant Certificates of Title and says that he did not recall receiving or examining copies.

69 Mr Roberts Junior gives evidence to the effect that "...to the best of my recollection the rate notices issued by Council firstly to my father then myself have since the late 1960s borne the following notation:

PH BUGABADA PORS 37 38
C L RD PH KICKABIL PORS 34
40 CL RD & RP 10/9.

He produced in evidence copies of rate notices for the year to 30 June 1979, and the years to 30 June 1994 to 30 June 1999 and 30 June 2006.

70 Evidence produced by the Council shows that in 1999, 2000, 2002 and 2003 some rate notices or instalment notices referred to the property rated only as "78 Roberts Rd Kickabil lot 27 DP 752558 & Others". There was no express reference to Lot 40. The rate notice for the year 2000-2001 did not refer to a closed road or to an enclosure permit; and the same occurred in the notices for 2001-2002 and 2002-2003. Mr Roberts Junior's evidence was that at the time he would not have been aware that these entries were missing. He said that he probably did not read the notice in 2000, or would not have read it. In 2004 the old references reappeared. The references were not consistent and there is not a complete set of rate notices in evidence.

71 The rate notices did indicate that the recipient was being rated for land in the Parish of Kickabil; and in the 1979 notice, for Portions 3, 35, for Crown lease 18/3 (and I have not been shown where that is), for Portions 34, 40, 41, for closed road and for an enclosure permit. The rate notices did not indicate where the closed road was or indicate a particular association with Portion 34 or with Portion 40. In my opinion the recipient of rate notices of this kind could not reasonably form or act on the belief that whatever measures it was necessary to take to close a road had been taken, or that they had been taken particularly with respect to the road which intersected Lot 40. The rate notices indicated no more than that Council thought that the recipient was occupying a closed road somewhere in the Parish of Kickabil, and the rate notice did not indicate where that was. It is enough to incur liability for rates that a person should occupy land: title is not essential. It would not be reasonable to understand from rate notices that Council had closed the road. The rate notices could not be taken to indicate that either of the plaintiffs had any rights to a closed road. Closing a road would not confer any rights on them. The evidence does not show, in any way which I could regard as concrete or clear, action or inaction or other relevant altered course which they took as a result of any understanding they had of the meaning the rate notices. The need for clarity if an estoppel is to give rise to any rights could not be met by the highly abbreviated and indistinct statements in the rate notices. There may be perils in sending out rate notices, but this is not one of them.

72 The closed road referred to in the rate notices could well be the public road running through Lot 40 and adjacent to lot 34; there are other possibilities, and its meaning is not clear. It was literally true that the road through Lot 40 was closed as the Roberts had fenced or gated it off and were occupying it, and hence liable to be rated on it. Rateability is the subject with which, on any reasonable understanding, the rate notices dealt, not establishment of title to land. Council did not make representations to people about what their land titles were by sending out rate notices. Reasonable people form their beliefs about what land they own from their Certificates of Title, not from their rate notices.

73 The evidence of Mr Roberts Junior while not altogether clear, appears to me to establish that he did not read the rate notices, or did not read them sufficiently closely to advert to the references to the closed road or to any implications; he did not notice the change in the rate notices when they ceased to refer to a closed road. In the circumstances it should not in my opinion be found that the terms of the rate notices ever had any relevant influence on his belief or conduct.

74 The plaintiffs’ counsel relied on the decision of Young J in Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 (Young J). In that case Young J determined that an equitable remedy based on unconscientious behaviour was available against the Council on a complex state of facts which have nothing in common with the facts now alleged except that the terms of rate notices were part of them. A particularly striking difference is that in Quach the plaintiffs had erected buildings on the land in dispute and this had gone unchallenged for many years.

75 In written submissions after the evidence was closed the plaintiffs' counsel asked me to reopen the evidence and allow the tender of rating sheets which show Council's internal workings and, as I understand it, were said to show beliefs of Council’s officers about entitlement to the roads and the closed road to which the rate notices referred. The internal workings of Council do not form part of any representation, it is not suggested that they were known to either of the plaintiffs, in my opinion they could not be relevant to what the rate notices indicated to either of them, or to the claimed estoppel, and I am not prepared to grant such leave.

Mr Roberts Junior and contract with Council in 2005.

76 The plaintiffs also claim (claims 7 and 8) a declaration that a binding and enforceable agreement was made by Mr Roberts Junior "on behalf of himself and his wife" that the Council would lodge with the Minister for Lands an application to close the road traversing Lots 34 and 40, and an order for specific performance compelling the Council to lodge with the Minister for Lands an application under s 34(1)(b) of the Roads Act 1993.

77 These claims are based on communications in 2005 and 2006. In or by May 2005 Mr Roberts Junior had some discussions with Mr G.M. Collison, who was the Council’s Director of Works and Technical Services. Mr Collison wrote to Mr and Mrs Roberts Junior on 18 May 2005 saying to the effect that after checking records he was confident that the road was a public road, and that Mr Thompson of Milpa was entitled to free access along the reserved road to Collie Road. Mr Collison said that in his understanding public access must be allowed and asked that the lock be removed from the gate at the northern end of the road nearer Milpa.

78 On 2 September 2005 Mr Collison wrote to Mr Roberts Junior. He set out “a schedule of fees to close the old unused road passing through your property ‘Kooroora’”. He went on to comment on what he calculated the Lands Department would require as the transfer price and on several other fees and gave a summary of the expected legal costs. He then said "Once you have made your own enquiries please advise if you want Council to apply for a closure." He also said:

After talking to Crown Land Officers I understand only a Council can apply for a closure of Public Road but if they agree to the closure all further negotiations for sale are likely to be with you as Council will not want the land.

Mr Collison then said:

If you want Council to proceed with the closure you must make a request to Council in writing no later than 30 SEPTEMBER 2005. After receiving your request I will refer the matter to Council. If Council resolves to close the road we will then required the closure fee of $950 from you prior to Council lodging the closure application. Please note that if we do not receive a request from you by that time Council will request you install gates on the road in accordance with the Roads Act. I trust this information is to your satisfaction and look forward to receiving further advice from you before 30 September 2005.

79 Mr and Mrs Roberts Junior replied on 6 September 2005. They said:

In response to your fax dated 02/09/2005 … Regarding the closure of the Green Road on “Kooroora” we are advising council that we would like you to proceed with the closure of the said road as soon as possible. We look forward to hearing from you regarding this matter.

80 Thereafter Mr Collison placed a recommendation before the Council at its meeting of 15 September 2005, recommending "That Council lodge an application to close the road subject to receiving the application fee from Mr & Mrs Roberts beforehand". Council did not adopt this recommendation, then or at any time.

81 Correspondence of 20 September 2005 showed that Council intended to make an inspection, pointed out that Council had requested Mr and Mr Roberts to provide gates in the road "in line with legal advice to allow access" and said "Following the site visit, Council will determine if it will make an application to the Crown Lands Department to close the road." The message requested cooperation on the inspection.

82 There was correspondence between solicitors representing Mr and Mr Roberts Junior and solicitors representing Mr and Mrs Thompson of Milpa who wished to use and had attempted to use the road. The Thompsons have not been made parties to this litigation.

83 Solicitors representing Mr Roberts Junior wrote to Council on 13 October 2005 contending that an application had been made, apparently many years before, to Council to close the road, saying "our client is quite confident that the road has been closed”, and asking Council to take some further action in relation to the road. Mr Collison wrote to Mr and Mrs Roberts Junior on 19 December 2005 saying to the effect that Council had been advised by solicitors that the road was a public road and had never been closed, contending that notations on the rate notice referred to an enclosure permit not the road in question and saying that Council would consider the request to close the road "so that you can purchase it from Council" on 23 January 2006.

84 Council did consider the request, and Mr Collison wrote to Mr and Mrs Roberts Junior on 1 February setting out the resolution of 23 January 2006. It was:

1. That the road remains open and gates be installed. Further, that the sheep yards and silos remain in situ provided safe access can be provided around the site.
2. That Council has no commitment to develop the road or provide ongoing maintenance.

85 These events serve to illustrate that when asked to consider the exercise of its power or function to make an application to the Minister for Lands under the Roads Act 1993, Council did consider it, and came to a conclusion.

86 Mr Collison called on the Roberts to remove fences and obstructions and again stated Council's position that "… the road in question is a public road which has never been closed and is subject to the provisions of the Roads Act 1993." He went on to call on the Roberts to remove the obstructions to public access within 60 days, and to give permission to construct public gates, as an alternative to removing fences; and he referred to the Roads Act s 128. There were further demands for compliance and solicitors’ correspondence, and the present litigation followed.

87 In the statement of claim, now the second amended statement of claim filed on 7 August 2008, the plaintiffs allege in paras 6 and 7 that the correspondence of 2 September 2005 constituted an offer by the Council to make an application to the Minister for Lands to close the road pursuant to s 34(2) of the Roads Act 1993 if Mr Roberts Junior agreed to pay the Council certain fees and expenses, and the letter of 6 September was an acceptance.

88 In my opinion the exchange of correspondence cannot be correctly understood as a contract. The language used by Mr Collison on 2 September 2005 is appropriate for an indication by a public body with powers of administration of its readiness to act under those powers if asked to do so in a formal way. There is no element of consideration or of a contractual promise in the reference to the need to pay a closure fee. Mr Collison's language carefully indicated the need for consideration and decision by Council before the road could be closed, with indications that Council might decide otherwise. There is in my opinion no indication in the words used of any intention to enter into a contractual commitment or to make any promise. It would not be appropriate for Council to do so, in relation to a function which, if duly invoked, it was its legal duty to consider and come to a decision. The correspondence means no more than that Mr Collison explained the administrative procedure which Council would follow if Mr Roberts Junior asked Council to follow it, with the obligations which Mr Roberts Junior would incur. My conclusion is that Council incurred no contractual obligations such as are alleged.

89 Paragraphs 34 to 42 of the Second Amended Statement of Claim allege to the effect that by Mr Collison's letter of 2 September 2005 Council made representations to Mr and Mrs Roberts Junior that Council would make an application to the Minister for Lands to close the unused road if Mr Roberts Junior agreed to pay fees and expenses, that Mr and Mrs Roberts Junior notified Council of agreement to pay fees and expenses, and that these circumstances have the result that Council is estopped from now asserting that it is not required to make applications to the Minister for Lands to close the unused road. It is further said that by the contents of rate notices issued to Mr and Mrs Roberts Junior, Council represented that the unused road had been closed and that rates payable on the land had been adjusted accordingly. It is alleged that as a result Council is estopped from asserting that the unused road is a public road.

90 Upon the terms of the letter of 2 September 2005 I find that Mr Collison did not and Council did not make a representation that Council would make application to the Minister for Lands if Mr Roberts Junior paid the fees and expenses. The need for Council to consider the matter and come to a decision is plainly indicated by the terms of the letter. A reasonable person in the position of Mr Roberts Junior would understand that Mr Collison was not and Council was not in a position to commit in advance to any particular outcome of consideration of an application if he made one.

91 The view of the Lands Department was stated in a letter dated 8 December 2005 from that Department’s Orana District Officer at Bathurst to the Council’s solicitors – Ex C, Bundle WJR1, p49. That letter said:

I refer to your letter dated 29 September 2005 requesting the status of an unused road which runs through two properties in the Parish of Kickabil, County of Ewenmar and roads to the north and east of lot 40 in DP 752585.
Investigations carried out by our Department confirm that the road running through the two properties is a Council Public Road and at no stage has any part of the road been closed.
The roads to the north and east of lot 40 in DP 752585 are Crown Public Roads held under permit to William Arthur Roberts (Enclosure Permit 29122).

Contracts and powers under Public Law.

92 A contractual commitment by a public authority about the manner in which it would exercise a discretion conferred on it by a public law, even if made, cannot commit it to exercise the power, or to exercise it in a particular way. It is clear and has often been recognized that the manner in which a discretion of this kind is to be exercised cannot be controlled by a contractual obligation; see New South Wales Trotting Club Limited v The Council for the Municipality of Glebe (1937) 37 SR (NSW) 288, F&D Bonaccorso v Canada Bay City Council(No 2) [2007] NSW LEC 537 at 123.

Estoppels and powers under Public Law.

93 Counsel referred me to a wealth of authority relating to the interaction of the exercise of statutory powers and estoppels. As there is in the present case no basis on which there could be any relevant estoppel, I have not examined this body of authority closely.

94 In my opinion the claims based on estoppels do not succeed.

Conclusions.

95 In the Second Amended Statement of Claim, claims 5 and 6 are based on the contention that the arrangement between Mr Roberts Senior and Mr Hunter constituted a binding and enforceable agreement between Mr Roberts Senior on behalf of himself and his son and the Council that in consideration of Mr Roberts Senior agreeing to relocate the road reserve on Lots 37 and 38 the Council would lodge with the Minister for Lands an application to close the road traversing Lots 34 and 40 in DP 752585; and an order for specific performance. For reasons I have stated I find that there was no such agreement.

96 If there were such an agreement it would not be appropriate to enforce it by an order for specific performance because a decision by the Council to lodge an application pursuant to s 34(1)(b) of the Roads Act 1993, or corresponding legislation in earlier times, would be an exercise of public powers based on considerations wider than the existence of a contractual commitment to exercise them, and the court should not preclude or control the exercise of those public powers for the purpose only of enforcing a contractual commitment. The most that the Council can do towards closing the road is to decide to make and then make an application to the Minister. The position under the earlier legislation was similar. The decision of the Council whether or not to make such an application was discretionary. (So would the decision of the Minister be). Mr and Mr Roberts Junior made an application and Council did consider it and decided not to apply to the Minister. It is plainly within Council's power to decide to apply to close the road, and also to decide the other way. Council has considered that matter and had the report from its present Shire Engineer which on the whole supports closure - the Shire Engineer said "the road is of no use to Council as it has resolved not to develop it." The court could not compel the Council to do any more; it has already exercised its function.

97 I heard argument relating to Council’s reliance on s 54A of the Conveyancing Act 1919. Consideration of the operation of s 54A is not necessary for decision as I have found that there was no contract for sale or other disposition of land, and that the plaintiffs are not entitled to the benefit of any estoppel under which the court should require an interest to be conferred on them. I regard it as doubtful whether s 54A could be an answer to a claim based on estoppel if otherwise established. There were also submissions that the plaintiffs are entitled to rely on the Doctrine of Part Performance. I can deal with this briefly by saying that no event which could possibly come under consideration as an act of part performance has been proved.

98 It is not necessary for me to address the exceptions and other subjects dealt with by s 42(1) of the Real Property Act, on which I received extensive submissions.

99 Counsel made some observations and submissions on a case which was not pleaded to the effect that Mr Roberts Junior has become the freehold owner of the road by adverse possession against the defendant. In my opinion I should not rule on this submission, which was not introduced until after the evidence was closed. A claim to set up a title by adverse possession could only be addressed with careful pleading and meticulous address to evidence; it is not a subject which could be dealt with on a side wind. In any event, it would avail the plaintiffs nothing because the rights of the public to the road would not be affected by any change of freehold ownership.

100 My order is:

(1) Give judgment for the defendant with costs.

**********