Shire of Narracan v Leviston

The High Court of Australia considered a dispute between the Shire of Narracan and the respondents, Mr. and Mrs. Leviston, concerning a claim of dedication of a road over the Levistons' land. The Shire asserted that a public highway had been dedicated by public user, while the Levistons disputed this claim.

The central legal issue before the High Court was whether the use of a strip of land by the public, which the Shire contended constituted dedication as a highway, could be attributed to an agreement between the Levistons and the Shire. Specifically, the Court had to determine if this user was permissive and therefore not indicative of an intention to dedicate, and whether a mortgagor could effect a dedication of land subject to a mortgage.

The High Court held that the user of the land by the public was not sufficient to establish a dedication as a highway. Their Honours reasoned that the user was attributable to an agreement between the Levistons and the Shire, which permitted the public to use the land for a specific purpose. This permissive user did not demonstrate the necessary intention on the part of the landowners to dedicate the land as a public road. Furthermore, the Court affirmed that a mortgagor, who retains possession and control of the mortgaged land, can indeed dedicate it as a highway, provided the necessary intention is present and the dedication does not prejudice the rights of the mortgagee. However, in this instance, the permissive nature of the user negated the intention to dedicate.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of Victoria and ordering that the Levistons' claim for a declaration that the strip of land was not a public highway be dismissed.