Smart v Launceston City Council - [2022] TASSC 26

[2022] TASSC 26

COURT: SUPREME COURT OF TASMANIA

CITATION: Smart v Launceston City Council [2022] TASSC 26

PARTIES:  SMART, Rodney Charles
  v
  LAUNCESTON CITY COUNCIL

FILE NO:  1269/2013
DELIVERED ON:  27 April 2022
DELIVERED AT:  Hobart
HEARING DATE:  3 September 2021
JUDGMENT OF:  Brett J
CATCHWORDS:

Highways – Creation and Extinction of Highways – Dedication – What constitutes dedication – Generally - Common law principles – Whether evidence is sufficient to infer dedication and public acceptance of land as a highway – Where strip of land has been depicted on original subdivision plans and all subsequent surveys, but with varying nomenclature – Absence of evidence of user prior to construction as a carriageway – Legislative modification of common law right of landowner to dedicate land as a highway or public road - Declared not to be a highway.
Newington v Windeyer (1985) 3 NSWLR 555, considered.
Permanent Trustee Co of New South Wales v Campbelltown Corporation (1961) 105 CLR 401, followed.

Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4; City of Keilor v O'Donohue (1971) 126 CLR 353; Clarence City Council v Howlin [2012] TASSC 26; Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18, referred to.

Local Government Highways Act1982
Police Act 1865; Police Act 1905
Town Boards Act 1896
The Towns Act 1941
Aust Dig Highways [1017]

REPRESENTATION:

Counsel:
             Plaintiff:  S McElwaine SC
             Defendant:  D Morris
Solicitors:
             Plaintiff:  Shaun McElwaine & Associates
             Defendant:  Simmons Wolfhagen
Judgment Number:  [2022] TASSC 26
Number of paragraphs:  32

Serial No 26/2022
File No 1269/2013

RODNEY CHARLES SMART v LAUNCESTON CITY COUNCIL

REASONS FOR JUDGMENT BRETT J

27 April 2022

The plaintiff is the owner of residential land situate at South Esk Road, Trevallyn. It is comprised of 2 adjacent lots, each with separate title, and depicted on plan of subdivision 77524. That plan shows a narrow strip of land, which commences at South Esk Road, and runs along two sides of the plaintiff's land. It is marked "Roadway 10 feet wide". Other plans show that it continues past the plaintiff's land, along the boundary of two adjacent allotments, until it intersects with Trevallyn Road. I will hereafter refer to that strip of land as "the laneway".
The residential subdivision which includes the laneway and the plaintiff's land, was created in 1884 as part of the original development of the suburb of Trevallyn. It consists of 6 residential blocks, surrounded on 3 sides by South Esk Road, Trevallyn Road, and the laneway. The laneway was depicted in the original plan of subdivision, and, since then, in relevant plans of survey relating to the area, albeit with varying nomenclature. It has been used from time to time since its creation as a walkway, providing a direct route between the southern part of Trevallyn and King's Bridge, and thereby Launceston. It has, in the past, contained a formed footway for its…

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.

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Details

Case: [2022] TASSC 26
Decision Date: 27 April 2022

CaseChat Overview and Summary

In the case of Smart v Launceston City Council, the dispute involved the legal status of a strip of land, which the plaintiff claimed had been dedicated as a public highway. The matter was determined in the Supreme Court of Tasmania. The plaintiff argued that the land, which had been depicted on original subdivision plans and all subsequent surveys, had been accepted by the public and the council as a highway. Conversely, the council asserted that the land had never been dedicated as a public highway and maintained it remained private property.

The central legal issue was whether the evidence was sufficient to infer that the land had been dedicated and accepted as a public highway. The court examined the common law principles regarding dedication, considering whether the land was used and accepted by the public as a highway. The court also considered legislative provisions that had modified the common law right of a landowner to dedicate land as a public highway. The court needed to determine if the depiction of the land on subdivision plans and surveys, despite varying nomenclature, was enough to establish dedication, particularly in the absence of evidence of use prior to its construction as a carriageway.

After considering the evidence and legal principles, the court concluded that the depiction of the land on subdivision plans and surveys, without any evidence of public use or acceptance as a highway, was insufficient to establish dedication. The court also noted the legislative changes that had modified the common law, which further supported the finding that the land had not been dedicated as a public highway. The court found that the strip of land remained private property, and therefore, not a public highway. This decision was based on the lack of public use and acceptance of the land as a highway, as well as the legislative framework that had modified the common law right to dedicate land as a public road.

The final orders of the court were that the strip of land in question was not a public highway and remained private property. The court dismissed the plaintiff's claim, and no further appeal was made. This decision underscores the importance of both public use and legislative context in determining the status of land as a public highway.

Orders