Shepherd v Eurobodalla Shire Council

Case •

[2024] NSWSC 1112

•

29 August 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Shepherd v Eurobodalla Shire Council [2024] NSWSC 1112
Hearing dates: 2 February 2024
Date of orders: 29 August 2024
Decision date: 29 August 2024
Jurisdiction:Common Law
Before: Rothman J
Decision:

(1) The Court issues an order in the nature of certiorari, quashing the decision of the Defendant on 21 November 2023 seeking to approve the Survey Plan No. P-FY20232074 dated 9 August 2023 for the purpose of identifying the boundaries of the Public Road traversing land normally described as Lot 197 DP 752151.

(2) The Court restrains the Defendant from registering Survey Plan No. P‑FY20232074 dated 9 August 2023, which seeks to identify the boundaries of a Public Road within Lot 197 DP 752151 with Land Registry Services New South Wales.

(3) An order in the nature of prohibition enjoining the Defendant from treating the aforesaid decision of 21 November 2023 as valid and enabling works or other conduct on the allegedly depicted road.

(4) The Defendant shall pay the Plaintiff’s costs of and incidental to these proceedings.

Catchwords:

Administrative Law - Judicial Review – Judicial Review of Council decision to approve plan that identified the boundaries of a public road – certiorari ordered

Legislation Cited:

Roads Act 1993 (NSW)

Local Government Act 1993 (NSW)

Interpretation Act 1987 (NSW)

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Civil Liability Act 2002 (NSW)

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Cases Cited:

R v Gray; ex parte Marsh & Bali (1985) 157 CLR 351; [1985] HCA 67

Cavric v Willoughby City Council (2015) 89 NSW LR 461; [2015] NSW CA 182

Category:Principal judgment
Parties: Roy James Shepherd (Plaintiff)
Eurobodalla Shire Council (Defendant)
Representation:

Counsel:
I J Hemmings SC and L F Sims (Plaintiff)
J J Hutton SC and Z Graus (Defendant)

Solicitors:
Foundation Law Group (Plaintiff)
Sparke Helmore Lawyers (Defendant)
File Number(s): 2023/422460
Publication restriction: None

JUDGMENT

  1. HIS HONOUR: Roy Shepherd, the plaintiff, seeks judicial review of a decision of the defendant, Eurobodalla Shire Council, made on 21 November 2023, in which the defendant approved a Survey Plan no. P-FY20232074 (hereinafter “the Plan”) dated 9 August 2023. The approved Plan purportedly identified the boundaries of a public road traversing the land described as Lot 197 DP752151. The Plan was purportedly approved pursuant to the terms of s 21(1) of the Roads Act 1993 (NSW).

  2. The plaintiff also seeks injunctive relief in enjoining the defendant from carrying out any works on the alleged road. The judicial review seeks an order in the nature of certiorari, quashing the aforesaid decision.

  3. The essential issue between the parties is whether the legislative provisions utilised by the defendant were available for defining the road and, factually, whether there was a road in existence approximating the road upon which the defendant decided. The facts have been agreed between the parties.

Agreed Facts

  1. The plaintiff is a registered proprietor of the land known as 480 Congo Road, Congo, NSW, which is described as Lot 197 DP752151 in the Local Government area of Eurobodalla (hereinafter “the Property”). The defendant is the local government authority under the Local Government Act 1993 (NSW) and the roads authority under the Roads Act 1993 (NSW) for the Local Government Area of Eurobodalla.

  2. The history of the registration of the property and its formal description is recited in the Agreed Facts and is unnecessary to rehearse. The Crown Plan (Crown Plan 7.1618) shows a reserved road that traverses the property. The reserved road is, in these reasons, and in the Agreed Facts, referred to as the “Paper Road”.

  3. The Paper Road:

  1. is marked with dashed lines (on both sides) and the words “Reserved Road 50 links wide” on Crown Plan 7.1618;

  2. was never constructed as shown on Crown Plan 7.1618;

  3. before 2023, had never been surveyed;

  4. is 50 links wide as stated on the Crown Plan;

  5. at the eastern boundary of the land connects to an unformed reserved road within Portion 407 (now part of Eurobodalla National Park) that has a generally north-west to south-east alignment; and

  6. at the western boundary of the Property, connects to an unformed and unused Paper Road within Lot 181 (now Lot 4 DP1013328) that has a generally east-west alignment;

  7. intersects with a gravel road that traverses the Property in a generally west-east alignment (hereinafter “the Track”);

  8. the Paper Road and the Track also connect to a formed public road that traverses the eastern boundary of the neighbouring Lot 181 that has a generally north-south alignment that was opened up after the Paper Road was reserved, and after the Track was formed;

  9. from at least 1860 up until 26 May 2023, the Paper Road was land belonging to the Crown; and

  10. the Paper Road was the subject of Enclosure Permit No. EP144264, which covers 4975 sqm within the Property, and was terminated on 26 May 2023 (“the Enclosure Permit”).

  1. There is a formed track that traverses the Property. The Track traverses the land in a generally west to east alignment; has a variable width of approximately 10 metres; was formed no later than 1971; in about 1977, the defendant carried out construction work and subsequently repairs and maintenance to the Track; and, between about 1981 and 2021, the plaintiff permitted members of the public to use the Track from time to time. The Track has not been accessible by the public since about 29 November 2021, when the plaintiff ceased to permit members of the public to use the Track.

  2. As earlier stated, on 23 May 2023, the defendant resolved to apply to Crown Lands to transfer the Paper Road to the defendant; commence the process that was described as “to identify the boundaries of the Public Road over the formed ‘track in use’ in accordance with ss 18-21 of the Roads Act 1993 (including causing surveys to be carried out to identify the boundaries of the Public Road and publishing notice of the proposed boundaries)”; and to receive a further report on the matter following public notification of the proposed boundaries to enable the defendant to consider any submissions received.

  3. The Paper Road was transferred to the defendant on 26 May 2023, pursuant to s 152I of the Roads Act. On or about 3 April 2023, the defendant provided instructions to the surveyor, noting that “when the survey is carried out, we seek your expertise to survey the widest road corridor possible but also a survey of 13.4 metres, which we have calculated would match the area of the Paper Road”.

  4. On or about 9 August 2023, the surveyor, Michael James Spiteri, prepared a Survey Plan No. P-FY20232074 (hereinafter “the Plan”). The road depicted on the Survey Plan is 15 metres wide and has a generally west to east alignment. At the eastern boundary of the land, it connects to a formed public road through Eurobodalla National Park, which has a generally west to east alignment; and at the western boundary of the land, connects to Congo Road, which has a generally north to south alignment.

  5. On or about 14 November 2023, the defendant published on its website the agenda for an ordinary meeting of the defendant to be held on 21 November 2023, in which there was an agenda item referred to as Item PSR 23/042 Congo Road North, which, in summary, notes consideration of all the submissions that had been duly made; approved the Survey Plan without alteration and lodged the Survey Plan with the Registrar General; and delegated authority to the General Manager to execute all necessary documentation to give effect to the resolution. A copy of the Survey Plan was attached to the agenda.

  6. On or about 12 September 2023, the defendant caused written notice of the proposed boundaries to be given to the plaintiff, owners of land adjoining and adjacent to the Property, and caused notice of the proposed boundaries to be published in a local newspaper. By no later than 21 November 2023, the defendant had received a total of 83 submissions (including two objections) with respect to the proposed boundaries, and on 21 November 2023, the defendant resolved in accordance with the agenda item described above.

  7. Exhibit 1 in the proceedings is a plan of portions for the parish of “Mouruya” (sic) in the County of Dampier, seemingly originally created in about 1860. The descriptions in words of the Track and Paper Road can be seen on the exhibits (Exs 1, 2 and 3).

  8. Essentially, the plaintiff challenges the decision of 21 November 2023 (hereinafter “the Decision”) to approve the Survey Plan because it was ultra vires s 21(1) of the Roads Act. It is alleged to be ultra vires s 21(1) of the Roads Act because the pre-conditions to the operation of that section, which is found in Pt 3, Div 1, were not satisfied in relation to the Paper Road; that the Survey Plan does not identify the boundaries of a Public Road; the Track is not a Public Road and the defendant erred in concluding that it was; and, alternatively, if the defendant were not in error in concluding that the Track is a Public Road, the decision is nevertheless ultra vires s 21(1) of the Roads Act because it was not open to find that the Survey Plan identified the boundaries of a Public Road, being the Track.

Legislative Scheme

  1. The objects of the Roads Act 1993 (NSW) are established by s 3 of the Act, and include the establishment of procedures for the opening and closing of public roads. By s 8 of the Act, the opening of a public road, otherwise than in accordance with the provisions of the Act, is prohibited. The provisions of s 9 of the Act allow a person to open a public road by causing a plan of subdivision or other plan that bears a statement of intention, to dedicate specified land as a public road (including on a temporary basis) and for that to be registered in the Office of the Registrar General.

  2. Transport for NSW (hereinafter “TfNSW”) may publish a notice in the Gazette dedicating land held by it as a public road.

  3. The Minister may acquire land for the purpose of opening a public road, and the Minister may open a road over unoccupied Crown land. [1] Section 13 of the Act allows the Governor, by proclamation, to dedicate land as a public road if the land is owned by a public authority and is used by the public as a road.

    1. The Roads Act 1993 (NSW), s 11 and s 12.

  4. By Pt 2, Div 2, the Act permits Councils, which, in these proceedings, includes the defendant, to dedicate land as a public road. The provisions apply to land that is or has been set aside for the purposes of a road in a subdivision of land effected before 1 January 1907, or that was registered by the Registrar General before 1 January 1920. In relation to such roads, no compensation is payable for any loss or damage arising from the dedication of the road. The Division provides for a right of appeal against the dedication of land to the Land & Environment Court.

  5. Part 3 of the Act is headed “Part 3, Road Boundaries and Road Levels”. By s 35 of the Interpretation Act 1987 (NSW), the Division Heading and the Part Heading are taken to be part of the Act. [2] It can be understood, as part of the statutory construction process, that the Court is required to undertake, that the provisions of Pt 3 relate to the boundaries and levels of roads.

    2. Interpretation Act 1987 (NSW), s 35(1).

  6. The provisions of s 18 of the Act allow a roads authority (which, relevantly, includes the defendant in these proceedings) to cause surveys to be carried out “to identify boundaries of a public road if those boundaries have not previously been properly identified or if the survey marks used to identify those boundaries, cannot be located or ascertained”. [3] It is unnecessary to deal with the other provisions of Pt 3, Div 1, as they deal with the mechanics of any survey and survey decision and objections thereto.

    3. Roads Act 1993 (NSW), s 18(1).

  7. Part 3, Div 2 of the Act deals with road widening, and Div 3 deals with levels. Again, it is unnecessary to deal with the details of sections in each of those Divisions. The Act, by Pt 7, Div 4, allows a roads authority to direct a person who uses a Crown road, or part of a Crown road, to repair or maintain the road, so long as the road is not generally used for access by the public, and the person is someone who gains a benefit from the use of the road. The roads authority may also direct that a contribution be supplied to the repair or maintenance of the road.

  8. By s 177 of the Act, the defendant, being a Council, is entitled to acquire land for any of the purposes of the Act, which, expressly, includes an acquisition for the purpose of making the land available for any public purpose and for the opening, widening or constructing of a road. The procedure for the acquisition of land under s 177 of the Act is specified by s 178 and s 179, which authorises the land to be acquired either by agreement or by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), but, in the case of a Council, may not be acquired under the Land Acquisition Act without the approval of the Minister. Further, the land may not be acquired by a compulsory process without the approval of the owner of the land if it is being acquired for the purpose of resale.

  9. Thus, the issue between the parties in these proceedings, if resolved in favour of the plaintiff, will not disentitle the defendant from creating a public road consistent with the Survey Plan, but to do so, the defendant would need to pay compensation for any land acquired, and, if the plaintiff were not in agreement, then the defendant would require the approval of the Minister to acquire the land compulsorily.

  10. The Act defines a number of terms used, including the terms private road and public road. A private road is defined to be any road other than a public road.

  11. A public road means “any road…opened or dedicated as a public road” under any law and any road declared to be a public road for the purposes of the Act. It should be noted that the Dictionary to the Act contains definitions that are inclusive, which use the word “includes”, and those that are exclusive in that, in contradistinction to the inclusive definitions, utilise the term “means”. [4]

    4. R v Gray; ex parte Marsh & Bali (1985) 157 CLR 351; [1985] HCA 67 at [18] (Gibbs CJ, with whom, on this issue, all of the other judges of the Court agreed).

Plaintiff’s Submissions

  1. The plaintiff submits that the key issue in the proceedings depends upon the proper interpretation of Pt 3, Div 1, and submits that its purpose is to enable the boundaries of a public road to be defined by survey when they have not previously been so defined. The submission distinguishes between the interpretation of Pt 3, Div 1 and the terms of Pt 2 of the Act, which provides for the opening of a public road, and other divisions of Pt 3.

  2. The plaintiff relies upon the line of authority that a statute should be construed strictly, when to do otherwise would be to interfere, to a greater extent, in the private property rights of the plaintiff. The difference in the manner in which compensation is available and not available under Pt 3, Div 1 points clearly to the circumstance that Pt 3, Div 1 is concerned with existing public roads, and the identification of boundaries that are otherwise unclear and has a narrow field of application.

  3. The Paper Road, depicted on the Plans, is the public road through the property and the Track is not, and has never been, a public road. The circumstance that the defendant carried out work on the Track does not lend support, on the submission of the plaintiff, to the proposition that the Track was a public road. On the contrary, it is an indication that the Track was a private road for the purposes of the Roads Act because the defendant was not a roads authority relevant to this property at the time of the works.

  4. Further, the boundaries of the Paper Road had previously been identified, and are depicted on the Crown Plan. The brief to the surveyor, which gave rise to the Survey Plan, did not seek to identify the boundaries of the Paper Road but instructed in a manner that gave rise to the Survey Plan.

  5. The Paper Road was transferred to the defendant pursuant to s 152I of the Roads Act. From that date, the defendant, on the submission, became the roads authority for the Paper Road. Further, pursuant to subs 152I(4), because the Paper Road is depicted in the official plans, those official plans evidence the width, extent and position of the road.

  6. In the alternative, the plaintiff submits that if the Court were to find that the Track is a public road, then the decision of the defendant was not authorised because it was not based on a Survey Plan that identified the boundaries of the Track. Rather, the Survey Plan showed the surveyor’s choice of the widest road corridor possible for the New Road (hereinafter the “New Road”), consistent with the instructions received from the defendant.

  7. To the extent that the foregoing relies upon evidence, the plaintiff relies upon the affidavit of Alexander Duncan Kelly, affirmed 21 November 2023. The Kelly affidavit is largely formal and annexes plans, which include the subdivision of the Property, recites the decision of the defendant on 23 May 2023, which determined to apply to Crown Lands to transfer “the undefined Crown Road that dissects” the Property so that “Council becomes the Roads Authority”. It also determined that, after transfer, Council would propose the Survey to “identify the boundaries of the public road over the formed ‘track in use’ in accordance with ss 18-21 of the Roads Act 1993 (NSW)”. The affidavit also recites the decision of the defendant of 14 November 2023, and attaches plans and other documents to that effect. It also attaches the plaintiff's objection to the defendant's proposed boundaries. The objection is dated 11 October 2023.

  8. The plaintiff also relies upon the affidavit of his son, Norman James Shepherd, sworn 12 January 2024. His son is the Quarry Manager of Shepherd Quarries, which operates a sand extraction business on the Property. The plaintiff and his son run the business together. The Shepherd affidavit annexes a development application made to the defendant [5] , which includes a sketch showing Congo Road (the road that is depicted on the title to the east of the Property) and a plan of portion 407.

    5. Evidence Book, vol 1, p 57 and following.

  9. At Evidence Book, vol 1, p 63, there is a letter from the Council, over the signature of the land inspector, detailing the necessity to fence the continuation of the road marked on the lot to the south of Lot 197, the Property. The continuation of the southern road was, pursuant to that letter, pointed out to the plaintiff. The foregoing is confirmed by the direction from the Land Board Office to the plaintiff, referring to the Crown road within portion 197, which continues the road south of portion 197.

  10. On 10 May 2022, at a meeting of the defendant Council, the defendant admitted that it was unable to establish evidence, after it was reassessed by a specialist firm, to confirm the existence of a public road, which means the land over the physical road is private land. [6]

    6. Evidence Book, vol 1, p 78.

Evidence and Submissions of the Defendant

  1. The defendant relies upon the affidavits of Noel Fuller of 19 December 2023; Naomi Simmons of 21 December 2023; Narelle Kuczerow of 21 December 2023; James Simms of 21 December 2023; Michael Spiteri of 8 January 2024 (including the exhibit thereto, Ex MS-1). The affidavit of Noel Fuller attested to an inspection of the Property and, relevantly, testifies that quarry operations have been carried out over and through the area of the Property, which the author understood to be traversed by the Paper Road. The affidavit annexes title searches and a cadastre plan which depicts Congo Road to the east of the Property, and a road to the west of the property, and a reserved road (the Paper Road) that joins the road to the west but does not join Congo Road to the east. There is a repetition of material produced by Mr Shepherd and annexed to his affidavit.

  1. The affidavit of Naomi Simmons, who is the solicitor on the record for the defendant, is largely formal and attaches correspondence to the plaintiff and/or solicitors for the plaintiff and to the Department of Regional NSW-Mining, Exploration and Geoscience.

  2. The affidavit of Narelle Kuczerow attests that she is an officer of the defendant, being a Geographic Information System Administrator. Ms Kuczerow annexes cadastral boundaries , maps and historical aerial images. At Evidence Book, vol 1, p 163, the same cadastral annexed to the affidavit of Mr Fuller is attached. There are various versions, none of which relevantly differ in terms of the depiction of the Paper Road, and on p 168-169, there is a map depicting a physical track (the Track in these reasons) that traverses the northern part of the property but is different from the Paper Road.

  3. The affidavit of Mr Simms attests to the fact that he is a property owner to the east of the property, and to the fact that a gravel portion or roadway traverses the Property joining Congo Road North from the east to the western alignment, which gravel road has been used by him and other residents of Congo to travel to Moruya.

  4. The affidavit of Mr Spiteri, who is a Senior Registered Surveyor employed by NSW Public Works Advisory, testifies to his engagement by the defendant to survey the road. He testifies to the statements by the defendant as to the sections of the Act upon which they were relying, a review of the title diagram, and to his experience as to how, if the Paper Road had been surveyed, he would expect it to be portrayed on the map and title diagrams. 

  5. Mr. Spiteri annexes a number of documents, including correspondence by email between the Council (Andrew Greenway), himself, and others. In Evidence Book, vol 1, p 191, Mr Spiteri depicts on a map the existing Crown road (the Paper Road), which is 10.06 metres wide and the proposed road, ultimately the subject of a decision by the defendant.  The Paper Road is marked in green and the proposed road is marked in blue. It is attached as annexure “A” to this Judgment.

  6. At p 193 and following of the Evidence Book, vol 1, there is correspondence from Jarad Cannings, Principal Surveyor, NSW Public Work, setting out to Mr Greenway, as earlier described, an officer of the defendant, the scope of work to be undertaken which at (5) states:

“5.   Carry out field survey over the formed Congo Road (figure 1 – blue shade) to enable the creation of a deposited plan showing the newly defined boundaries of the road.”

  1. Figure 1 is in or to the same effect as the annexed survey and shows the Paper Road in green and the proposed continuation of Congo Road across the plaintiff’s property in blue.

  2. The affidavit of Joanne Marbrow, affirmed 10 January 2024, attests to the fact that she is the Property Co-ordinator at the defendant and that the Property of the plaintiff is dissected by a road reserve (the Paper Road) and a gravel track (the Track). [7] The exhibit to the affidavit of Ms Marbrow depicts a cadastral records inquiry report showing a map or plan of the Property and the lots to the east and west of the Property. [8] The Paper Road in the last mentioned plan is depicted on the lot. There is also an historical microfilm of the subdivision showing the Paper Road in the same position. [9]

    7. Evidence Book, vol 1, p 322.

    8. Evidence Book, vol 2, p 334.

    9. Evidence Book, vol 2, p 336.

  3. At Evidence Book, vol 2, p 410, there is a copy of a letter written by the Council, the defendant, to the Department of Lands on 30 June 2008, in which the Council refers to its purpose in wishing to create legal access through Lot 197 (the property).  It asserts that the Crown Road has never been surveyed after differentiating between the unsurveyed Crown Road (the Track) and the Paper Road.

  4. The Council asserts the following:

“Given the Crown Road has never been surveyed, Council is considering the following actions in accordance with the provisions of Sections 18-21 of the Roads Act 1993:

The Crown road will be surveyed and defined over the existing physical road.

Public Notice will be given of the proposed boundaries and hopefully the plan will be registered at the Land & Property Information Office.”

  1. Plans and maps are attached to the correspondence.

  2. The parties, and in particular the defendant, also rely on guidelines for surveying and provisions of the Conveyancing Act and guidelines for the Registrar General and for surveyors.

  3. The defendant submits that the Track is a “public road” and relies upon the provisions of s 249 of the Act to evidence that the Track has been used as a public thoroughfare since at least 1961. The defendant submits that, as a consequence, it is a “public road”, the boundaries of which had not previously been “properly identified”.

  4. The defendant submits, which is factually uncontroversial, that at least since 1860, a road was envisaged to pass through the Property.

  5. In the submission of the defendant, for reasons that are unknown, the road that was constructed and over which the public gained access (the Track) did not follow "exactly" the Paper Road designated by the Crown plan. The Track is a gravel track over which the public passed, as the foregoing affidavits attest.

  6. Further, the defendant contends that the Track is a public road by virtue of it being a physical “approximation” of the Paper Road. Such terminology is derived from the passage in Hallman FM and Ticehurst F, Legal Aspects of Boundary Surveying as Apply in New South Wales, which refers to a public road where the boundaries have not previously been properly identified or the survey marks used to identify it:

“In the cases just mentioned, where a road in use can be regarded as an approximation of the originally defined or plotted position, the Registrar General will, in a plan of subdivision of a parish portion, normally accept a re‑mark of the road, provided the Roads Authority consents to the plan or to the road definition shown in the plan and continuity as preserved with roads in adjoining parcels.”

  1. Further in the alternative, the defendant submits that even if the Track were not a public road, within the meaning of the Act, the defendant is entitled to identify the boundaries of the Paper Road on the Property where they have not been properly identified previously. Therefore, for the reasons otherwise given in relation to proper identification, such identification is not limited in its scope to defining the boundaries in the exact manner they exist on the plan. The defendant also made submissions on the meaning of the term "properly identified”. If the defendant (or any Council in that position) could not define the boundaries, then the provision would be otiose or inefficacious.

Consideration

  1. The defendant relies upon the comments of the Court of Appeal in Cavric v Willoughby City Council (2015) 89 NSW LR 461; [2015] NSW CA 182. The judgment in Cavric dealt with a claim for damages against the Council under the Civil Liability Act 2002 (NSW). Ownership of the land upon which a person fell was relevant to the determination of liability.

  2. In the course of its judgment, the Court of Appeal referred to in Sch 2, cl 15. The Act did and still does, provide that a road immediately before the commencement of the Act that was a public road is taken to be a public road within the meaning of the Act.

  3. Thus, if a road was a “public road” prior to 1993, the road was a public road within the meaning of the Act. Evidence was adduced that a particular thoroughfare was used by the public. The land in question was a carpark that was used by the public as a thoroughfare.

  4. In the course of the judgment of the Court of Appeal, Basten JA said:

“[20]  To the extent the Council relied on public use of the land, the evidence was limited, in effect, to the proposition that the area was part of a thoroughfare which allowed members of the public to pass from one street (Harden Street) to another (Eastern Valley Way). No doubt people did so, both on foot and in vehicles. However, to accept that this might constitute evidence of the area being part of a “public road“, without more, would be to give s 249 an operation which it does not have, namely fixing the criteria by which an area becomes a public road.

[21] There being no other evidence supporting the establishment of the place where the accident occurred as a public road, the trial judge should have found that its status as such was not established, with the result that the Council was not a roads authority with respect to that area and thus not entitled to rely upon s 45 of the Civil Liability Act.”

  1. The circumstances before the Court in these proceedings are very different. Nevertheless, the submission that s 249, in effect, deems a road or thoroughfare to be a “public road” because it is used as a thoroughfare is giving s 249 of the Act a substantive effect. Rather, s 249 of the Act is an evidentiary provision. The test as to whether a road is a “public road” is determined by whether the thoroughfare meets the definition of “public road” in the Dictionary to the Act.

  2. While the plaintiff is entitled to challenge the validity of the decision that is sought to be impugned, and much has been made of the principles to be applied and the legal situation that applies, fundamentally, the question is a question of fact. The Survey Plan depicts the proposed road (“the New Road”), which takes the most convenient and shortest route between Congo Road to the east and a road to which each of the New Road and the Paper Road join.

  3. The fact that in 1860 and for some period thereafter, it was intended that there be a road from Condon to Moruya does not inform the placement of the public road until such time as Condon Road was built and the Track utilised.

  4. Assuming for present purposes that the Track joins Condon Road in the east to the west of the Property and the New Road is intended to cover the area or location of the current Track, there seem to be two factual issues. Is the New Road an approximation of the Paper Road that was reserved to the Crown? Or alternatively, is the existence of the Track and its use by the public evidence from which the Court can be satisfied that the Track was opened or dedicated as a public road? There is no suggestion that the Track has been declared to be a public road for the purposes of the Act.

  5. A thorough examination of the maps and/or plans that have been provided and the evidence before the Court makes it clear that there is a significant difference between the route taken by the Paper Road on every map and plan from the route proposed in the New Road. Moreover, the correspondence and attitude of the parties over some period of time accept that proposition.

  6. The New Road approximates the location and route taken by the Track. The two thoroughfares are significantly different. It cannot be said, reasonably, that the New Road approximates the Paper Road, and it therefore does not and cannot reasonably “be regarded as an approximation of the originally defined or plotted position” of the Paper Road. [10]

    10. Hallman and Ticehurst, supra, at [7.12], extracted above.

  7. There can be no doubt that the New Road is a much more convenient location and route than would be the case if a road were created or dedicated over the Paper Road. But that is not the question which the Court is required to answer.

  8. Moreover, the Track, even though it has been used by both pedestrians and vehicles as a thoroughfare, has never been opened or dedicated “as a public road”. The most likely and probable scenario is that the Track has been marked as a consequence of use rather than by any conduct of the plaintiff.

  9. The provisions of s 18 and the whole of Pt 3, Div 1 of the Act are concerned with surveys for roads that are already public roads. Whether or not the boundaries of the Track have been properly identified in the past and whether or not the boundaries of the Paper Road have been properly identified in the past, the Track is not a public road, and the New Road is proposed on boundaries that do not approximate the Paper Road that has otherwise been reserved to the Crown and was, in May 2023, transferred to the defendant.

  10. As a consequence, the Act, by operation of s 18 and following, does not provide the defendant with authority to do as it proposed to do, and the defendant is required, pursuant to the Act, to acquire the land under Pt 12 of the Act. For those reasons, the process utilised by the defendant in seeking to define the New Road was not open to it, and the decision was invalid.

  11. The Court makes the following orders:

  1. The Court issues an order in the nature of certiorari, quashing the decision of the Defendant on 21 November 2023 seeking to approve the Survey Plan No. P-FY20232074 dated 9 August 2023 for the purpose of identifying the boundaries of the Public Road traversing land normally described as Lot 197 DP 752151.

  2. The Court restrains the Defendant from registering Survey Plan No. P‑FY20232074 dated 9 August 2023, which seeks to identify the boundaries of a Public Road within Lot 197 DP 752151 with Land Registry Services New South Wales.

  3. An order in the nature of prohibition enjoining the Defendant from treating the aforesaid decision of 21 November 2023 as valid and enabling works or other conduct on the allegedly depicted road.

  4. The Defendant shall pay the Plaintiff’s costs of and incidental to these proceedings.

**********

Annexure A (6883489, pdf)

Endnotes

Decision last updated: 12 September 2024

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R v Gray; Ex parte Marsh [1985] HCA 67
AUK15 v Minister for Immigration and Border Protection & Anor [2016] HCATrans 36
Cavric v Willoughby City Council [2015] NSWCA 182