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…

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.

Keep reading for free

Create a free CaseChat account to read Roberts v Gilgandra Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 1244
Decision Date: 28 November 2008

CaseChat Overview and Summary

Roberts v Gilgandra Shire Council is a case where the plaintiffs sought to determine whether a reserved road passing through their rural property was part of their land. The dispute came before the court as the plaintiffs argued that the road, which was dedicated in 1926, should be considered part of their property as it had been long disused. The case required the court to interpret the Crown Grant and the Parish Map to ascertain the boundaries of the plaintiffs' property and the status of the road.

The legal issues in this case centred on the interpretation of the Crown Grant and the Parish Map, and whether the road was indeed part of the plaintiffs' land. Additionally, the court had to decide if the Council was estopped from asserting that the road was still a public road, or if the Council was obliged to apply to the Minister to close it. The plaintiffs argued that the road's long disuse and lack of maintenance meant it should be considered part of their property, while the Council maintained that the road remained a public road.

The court, in its reasoning, found that the Crown Grant and the Parish Map, when interpreted together, indicated that the road was not part of the plaintiffs' land. The court held that there was no contractual obligation or estoppel that bound the Council to take any action to close the road. The long disuse of the road did not change its status as a public road, and the Council was not required to take steps to formally close it. The court thus dismissed the plaintiffs' claims.

The final orders of the court were that the road remained a public road and the Council was not required to take any action to close it. The plaintiffs' claims were dismissed in their entirety.

Orders