The Council of the City of Shoalhaven v The Director General National Parks and Wildlife Service

[2004] NSWCA 163

CITATION:	The Council of the City of Shoalhaven v. The Director General National Parks & Wildlife Service & Ors [2004] NSWCA 163
HEARING DATE(S):	20/05/2004
JUDGMENT DATE:	4 June 2004
JUDGMENT OF:	Ipp JA at 1; Bryson JA at 2; Cripps AJA at 37
DECISION:	[2003] NSW LEC 88 varied; (1) Appeal allowed; (2) Order of Cowdroy J of 18 July 2003 varied by setting aside order 7 and in lieu thereof ordering; A declaration pursuant to s.25 of the Land and Environment Court Act 1979 that the applicant The Council of the City of Shoalhaven has an interest in fee simple in the land shown depicted as roads in deposited plans 8515, 8516 and 8517; (3) Reserve questions of costs in the Land and Environment Court and costs of the appeal. (D)
CATCHWORDS:	HIGHWAYS AND BRIDGES - creation of roads - dedication of roads - between Local Government Act 1906 and Local Government Act 1919 - consideration of provisions of Local Government Act 1906 ss.99 to 101 and Real Property Act 1900 s.113 and procedures then in force to register Deposited Plans and obtain Council approval for opening roads - Consideration of requirements of common law and statute for dedication of road - not then necessary to transfer road to Council or to show dedication on Certificate of Title - on the facts, found that roads in Pacific City Estate were opened and dedicated by proprietor and accepted by public before 1 January 1920 and ownership vested in Council under s.232(1) of Local Government Act 1919.
LEGISLATION CITED:	Local Government Act 1906 ss.99 – 101 Local Government Act 1919 ss.232(1), 237 Roads Act 1993 s.145 Real Property Act 1862 s.100 (26 Victoria No.9) Real Property Act 1900 s.113
CASES CITED:	Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 Lake Macquarie City Council v Luka (1999) 106 LGERA 94 Measures v Shire of Wallarobba (1910) 11 SR (NSW) 10 Newington v. Windeyer (1985) 3 NSWLR 555 Owen v O'Connor (1963) 63 SR (NSW) 1051 Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401 Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354
PARTIES :	The Council of the City of Shoalhaven - Appellant The Director General National Parks and Wildlife Services - First Respondent The Minister Administering the National Parks and Wildlife Act 1974 - Second Respondent The Estate of Late H L Halloran - Third Respondent Irrayadda Pty Ltd - Fourth Respondent Warren Halloran - Fifth Respondent The Minister administering Environmental Planning and Assessment Act 1979 - Sixth Respondent
FILE NUMBER(S):	CA 40696 of 2003
COUNSEL:	J. Webster SC and M. Carpenter - Appellant (Submitting Appearance) - Respondents
SOLICITORS:	Morton & Harris - Appellant Crown Solicitors Office - 1 & 2 Respondents Blake Dawson Waldron - 3, 4 & 5 Respondents General Counsel, Department of Intrastructure Planning & Natural Resources - 6 Respondents

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40152 of 2001
LOWER COURT JUDICIAL OFFICER :	Cowdroy J

40696 of 2003

IPP JA
BRYSON JA
CRIPPS AJA

FRIDAY 4 JUNE 2004

The Council of the City of Shoalhaven v. The Director General National Parks & Wildlife Service & Ors

Judgment

1 IPP JA: I agree with Bryson JA.

2 BRYSON JA: The applicant, now the appellant, appeals against part of the orders made by Cowdroy J on 18 July 2003 [2003] NSW LEC 88 upon applications in proceedings 40152 of 2001 and 30048 of 2002 in the Land and Environment Court of New South Wales. Relief claimed by the appellant included claim 2 in its Further Amended Application: (p.1 of vol.1 of appeal book)

2. A declaration that the applicant has an interest in fee simple in the roads set out in the plans registered at the Land & Property Information Office as Deposited Plans 8515; 8516 and 8517 …

3 The land in those Deposited Plans is situated near Jervis Bay New South Wales and was the site of a subdivision for an intended township called Pacific City Estate carried out in and after 1915 by Henry Ferdinand Halloran (hereinafter Mr Halloran). The land was then situated in the Clyde Shire: the appellant is the successor of the Clyde Shire Council after amalgamation in 1948.

4 In its Amended Cross Application the cross-applicant, the Minister Administering the National Parks & Wildlife Act 1974 (The Minister NPWA), the second respondent both in the Land and Environment Court and in this appeal, claimed among other things a declaration in terms which became Cowdroy J’s order no. 7:

7. A declaration that no other person has any interest in the land comprising the roads in Deposited Plans 8515, 8516 and 8517 other than the second respondent.

In effect Cowdroy J dismissed the appellant’s claim 2. His Honour’s orders dealt with many other claims and cross-claims but the appeal requires consideration only of the appellant’s challenge to Cowdroy J’s order no. 7.

5 It seems a modest conclusion that land described in a plan deposited by the proprietor in a public register in 1915 as a road, and so described in the proprietor’s Certificates of Title since 1916, without any conduct of the proprietor to change these indications, is actually a public road. However that conclusion cannot be derived from these facts alone.

6 All respondents to the appeal filed submitting appearances, and they did not appear at the hearing or make any submissions contrary to those of the appellant. However the appeal has not been disposed of by consent, and as the appellant seeks a declaration establishing the state of its rights it could not in my opinion be so disposed of. Notwithstanding that the appeal is not contentious I regard it as appropriate to make a full statement of the grounds on which the judgment under appeal is reversed.

7 The subdivision plans for the intended township of Pacific City Estate were deposited in the Registrar-General’s office on 25 November 1915. At that time deposit of subdivision plans was dealt with by s 113 (since repealed) of the Real Property Act 1900, which required any proprietor subdividing land under provisions of the Act for the purpose of selling the same in allotments as a township to deposit a map of the township with the Registrar-General. Section 113 closely followed s.100 of the Real Property Act 1862. Section 100 of the 1862 Act required deposit of a plan of subdivision for the purpose of a township, and such plan was required to show roads. Section 113 required deposit of the map with the Registrar-General; it did not require registration of the map by the Registrar-General. Section 113 also prescribed what the map was to show and required it to be certified as accurate by a licensed surveyor. Section 113(2) provided: “Such map shall exhibit distinctly delineated all roads, streets, passages, thoroughfares, squares, or reserves appropriated or set apart for public use, and also all allotments into which the said land is divided, marked with distinct numbers or symbols.”

8 The proprietor who deposited plans 8515, 8516, 8517 was Mr Halloran. Fifteen Certificates of Title Volume 2697 Folios 223 to 237 for parts of the land in those Deposited Plans issued on 12 September 1916 showed Mr Halloran as the registered proprietor of all the land in the Deposited Plans, including the extensive network of roads, and each of the several hundred allotments in those plans. In subsequent years over five hundred of those allotments were transferred by Mr Halloran to purchasers who became the registered proprietors of those allotments; and upon registration of each transfer the relevant Certificate of Title was partly cancelled. Mr Halloran died in 1953 but his name still appeared on the Certificates of Title as the registered proprietor of the roads until by an Acquisition Notice published in the New South Wales Government Gazette of 19 June 1998, the Minister NPWA acquired the interest of the registered proprietor in respect of the land comprised in the roads. The Acquisition Notice was carefully phrased and included descriptions of the land acquired in seven paragraphs in its schedule. The seventh paragraph was in these terms:

Seventhly, Parish Bherwerre, County St Vincent, the interest of the registered proprietor of the residue of Certificates of Title Volume 2697, Folios 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236 and 237 in the roads comprised within D.P.’s 8515, 8516m 8517 and 8362 (exclusive of Naval College Road).

9 Unlike the seventh paragraph which employed the term “interest of the registered proprietor,” the earlier paragraphs in the schedule simply described the land resumed. The effect of the seventh paragraph was that only the interest of Mr Halloran in the roads was acquired; if he did not have the interest which according to the terms of the Certificates of Title he appeared to have, or if some other person had an interest of any kind in the roads, the Acquisition Notice did not deal with the roads, or with the other person’s interest. The careful limitation of the terms of the seventh paragraph in the Acquisition Notice assists understanding of the appellant’s claim for a declaration that the appellant then had (and now has) an interest in fee simple in the roads.

10 The following account of the common law relating to the creation of public roads was given by McHugh JA with the concurrence of Kirby P and Hope JA in Newington v. Windeyer (1985) 3 NSWLR 555 at 558-559:

At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401 at 420; Pratt and McKenzie, Law of Highways , 21st ed (1967) at 16. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn: Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; 37 WN 51 at 53; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 412, 415, 422). When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 415) per Menzies J. In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn. Dedication to the public may also be presumed from uninterrupted user of the road by the public: Turner v Walsh (1881) 6 App Cas 636 at 639, 641; Folkestone Corporation v Brockman [1914] AC 338 at 352, 362. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.

11 The appellant’s claim that it now has an interest in fee simple in the roads is based on a claim that the roads shown in the Deposited Plans are public roads, and that they had become public roads before 1 January 1920. The root of title is s 232(1) of the Local Government Act 1919 (since repealed) which commenced on 1 January 1920:

232(1) Except where otherwise expressly provided, every public road, and the soil thereof, and all materials of which the road is composed, shall by virtue of this Act vest in fee-simple in the council, and the council, if it so desire, shall by virtue of this Act be entitled to be registered as the proprietor of the road under the provisions of the Real Property Act, 1900.

Section 145 of the Roads Act 1993 which came into effect on 1 July 1993 confirms and continues this statutory title.

12 Several circumstances mask ready perception of the nature of the appellant’s claim to be the owner of the roads in fee simple. Ready perception is masked by familiarity with the statutory machinery under which since 1920 public roads have been created by registration of plans of subdivision, which can only be registered with the consent of the relevant Local Government authority; by statute a road so created becomes vested in the Local Government authority upon registration of the plan, so that the Local Government authority is entitled to obtain and does usually obtain a Certificate of Title for an estate in fee simple in the road. Provision to these effects was made by s 237 of the Local Government Act 1919, and since 1920 legislation to similar effects has always been in force in New South Wales and has regulated the creation of roads in Local Government areas.

13 Before 1920 there was no general legislation in New South Wales which conferred title to land on which roads were situated upon Local Government authorities, although legislation specific to the City of Sydney had that effect (and there may have been other legislation dealing with particular areas). A public road could come into existence, and usually did come into existence without any change in the title to the land on which the road was situated; and usually there was no change in the title to that land. It was usual, where land became a public road at that time, for the proprietor of the land to continue to be the owner of the road and of adjacent land; and this was so whether or not the land was subject to the Real Property Act 1900.

14 In Vickery v. Municipality of Strathfield (1911) 11 SR (NSW) 354 Rich AJ expressed this view, after referring to the terms of ss 42 and 43 of the Real Property Act 1900

It is clear, therefore, that a registered proprietor holds his land absolutely free from all encumbrances, liens, estates, or interests whatsoever other than those notified on the grant or certificate of title, save in the cases expressly mentioned. Is this language sufficiently wide to cover public rights of highway? I am of opinion that it is not. The language of s.42 itself suggests that the interests referred to are such as are capable of existing in an individual; this is inconsistent with its applicability to public rights of users. But, apart from this, public highways appear to lie wholly outside the scope of the Act. In the case of private easements, their registration is contemplated and provided for by s.47. No provision has been made for the recording of the dedication of land for a highway, and, indeed, it has been held in New Zealand that such a dedication is unregistrable: Howell v. The District Land Registrar (27 N.Z. 1074).

15 As a statement of the law as it was in 1911 the authority of Vickery v. Municipality of Strathfield continues to be recognised. See Australian Hi-Fi Publications Pty Ltd v. Gehl [1979] 2 NSWLR 618 at 624 per Mahoney JA. In my view it is clear that at that time public roads were wholly outside the scope of the Real Property Act 1900; the reason given by Rich AJ that no provision was made for recording dedication of land for a highway is compelling, as at that time the entries which the Registrar-General was authorised to make were exhaustively prescribed by the Real Property Act 1900. It is also significant that at that time land could effectually become a public road without any alteration in the title of the proprietor.

16 Deposit of maps showing roads intended to be created in a township was one of the innovations of the Torrens System. The common law made no requirement for the existence or public availability of a map, survey plan or other plan defining land which was intended to be subject to dedication as a public road; but in fact such land was often defined in Deposited Plans, plans endorsed on registered deeds, or otherwise. Parish maps showed as roads land which was reserved by the Crown from sale or lease and remained the property of the Crown, and might be (but was not necessarily) dedicated as public road.

17 The common law process for dedication of a public road was modified by the Local Government Act 1906 (since repealed) ss 99 to 101, which were in force when the Deposited Plans were registered in 1915 and continued to be in force until 1920. Section 99 required a person who proposed in a Local Government area to open a road in order that the road might be used as a public road to submit a plan and specification of the road, in the case of land in a town showing drainage, and to apply to the relevant Council to approve the road; Councils were empowered to approve or disapprove plans, and there was a right of appeal. It was an offence to open a road without having obtained approval. Section 100 imposed a statutory duty to make the road and provide drainage according to the approved plan before selling or disposing of land, and if that was not done Council could require compliance, and in default carry out the work itself and recover the costs. These provisions recognised that a road might be opened but not dedicated to the public; and in that case, the road could be closed by a formal process of notice of intention to close the road given to Council. These provisions of the Local Government Act 1906 were not integrated with the requirement of Real Property Act 1900 s 113 for deposit of a map; under s 99 of the Local Government Act 1906 deposit of a map could take place before approval of Council was obtained.

18 Sections 99 to 101 of the Local Government Act 1906 were considered, briefly, in Measures v. Shire of Wallarobba (1910) 11 SR (NSW) 10 by AH Simpson CJ in Eq. The report is in these terms:

A. H Simpson, C.J. in Equity, held that the submission of the sub-division plan and the approval of the Council did not constitute an opening of the road in question under s.99, so as to entitle the defendant Council to go on the proposed road under s.100 for the purpose of making the road; that it was merely evidence of intention on the part of the plaintiffs which there were free to revoke.

19 Measures’ case was referred to in Attorney-General v. The City Bank of Sydney (1920) 20 SR (NSW) 216 by Harvey J (who had been of counsel in Measures’ case). His Honour said:

It is well settled that at common law the dedication of a highway is not complete till the quasi offer of the proprietor has been accepted by the public; both the acceptance by the public and the proposed dedication by the proprietor are required to be proved as facts, the nature of the proof varying in every case: see Woodyer v. Hadden (5 Taunt, 125). This group of sections was aimed, in my opinion, at the proposed dedication by a proprietor, which by the acceptance of the public might be ripened into the establishment of a public road. The proprietor is prevented from opening his land to the public as a road until he has made and drained the land. If he does so open his land he incurs a penalty under s.99, sub-s.5, and he is forbidden to sell and land fronting it under s.100.

It therefore becomes a question of fact in this case whether the banks have so acted, with regard to the site of this land, that user by the public would at common law create a highway, and if so at what date did the banks so act.

In the present case I do not think the preparation of the lithograph auction maps, nor the municipality’s approval of the plan with the attempted auction sales, amounted to a proposed dedication seeing that the land remained fenced: see Measures v. Shire of Wallarobba (11 S.R. 10) . In that case the track of the proposed road was marked on the ground, but the exit to the highway was closed by a sliprail. I think, however, that the lodging of the deposited plan in the Land Titles Office, wherein these roads are shown as open streets giving access to the subdivided lots, is undoubtedly an invitation to the public to use the streets as such…Whether this is so or not, when this is coupled with the fact of the removal of all physical obstruction to the passage of the public from the high road on to the site of the new roads, it appears to me that the opening of the road was an accomplished fact. In my opinion these roads were opened either in 1908 when the deposited plan was lodged, or soon thereafter as the fence was removed.

It can be seen that, in the state of judicial opinion at the time, the steps of inviting the public to use the streets as streets, and opening the streets in terms of s 99 were very easily accomplished.

20 In Permanent Trustee Co of New South Wales Ltd v. Campbelltown Municipal Council (1961) 105 CLR 401 which dealt with the state of the law before enactment of the Local Government Act 1906, Windeyer J made observations at 423 which are applicable to the present facts:

This is not a case in which it is suggested that dedication is to be inferred from user alone. The animus dedicandi is not to be inferred from the landowner suffering a use of his land as a way. The animus dedicandi is expressed on the face of the plan. Therefore no great amount of public use was necessary to make the dedication complete.

21 Windeyer J also said at 420:

It is the public right to use the land as a way, rather than its physical nature, that makes land a highway ( Harrison v Duke of Rutland (1893) 1 QB 142). At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road.

22 At 422 his Honour said:

But once the intended dedication had been accepted by the public a public right of way, a public road, a highway came into existence ( Attorney-General v The City Bank of Sydney (1920) 20 SR (NSW) 216; 37 WN 51). The landowner could no longer deny to the public what he had dedicated — "Once a highway always a highway” was the adage of the common law. A declared intention to dedicate would be ripened into dedication by public user of the land as a road, or by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road (cf Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354; 28 WN 107).
See too Owen v. O’Connor (1963) SR (NSW) 1051 at 1057 to 1059, and Lake Macquarie City Council v. Luka (1999) 106 LGERA 94 at 99 [24 and 25] per Handley JA.

23 In this state of the law the facts that Mr Halloran was still the registered proprietor of the roads on 1 January 1920 and that his name continued to appear as registered proprietor of the roads until he died, and long afterwards, and until the Acquisition Notice are not inconsistent with the appellant’s claim that the roads had become public roads before 1 January 1920.

24 The passages in the judgment of Cowdroy J by which his Honour disposed of the appellant’s claim were as follows: (paras. 41-43 at pp.429-430 of vol.2 of appeal books)

41 A payment of compensation for the roads has already been made in accordance with the order in proceedings 30282 of 1998. Accordingly no person other than the second respondent has an interest in the fee simple in the roads. The only question remaining is whether the applicant ever held any interest in the fee simple in the roads which was not raised when the acquisition took place on 19 June 1998 and which now could be recognised as a claim for compensation.

42 The Court has not been provided with the evidence and reasons which justified the orders made in proceedings 30282 of 1998. The Court can infer that there was sufficient evidence to warrant the making of an order for compensation.

43 The evidence concerning any interest of the applicant in the fee simple in the roads is inconclusive. Further as a result of the orders made in proceedings 30282 of 1998 the Court is not satisfied on the balance of probabilities that the applicant ever acquired any interest in the fee simple in the roads. Accordingly the Court does not grant the relief which the applicant seeks in proceedings 30048 of 2002. In respect of the cross application, the Court will make the declarations sought in paragraph one.

25 In my respectful view it was incorrect to give weight to the circumstance that a payment of compensation for the roads had already been made in accordance with an order of the Land and Environment Court to successors of Mr Halloran. The fact that that payment had been made does not establish, and does not deal at all with the question whether the appellant has an interest in fee simple in the roads. Cowdroy J did not review the evidence concerning whether the appellant has an interest in fee simple in the roads and did not give reasons for the stated conclusion that the Court was not satisfied on the balance of probabilities that the appellant ever acquired any interest in fee simple in the roads. It was an error to state a conclusion in these general terms without reviewing the large body of evidence relating to the question whether the roads had been dedicated to and accepted by the public and had become public roads before s 232(1) of the Local Government Act 1919 took effect. If his Honour did not accept this evidence it was, in the circumstances, necessary to state reasons for not doing so. It is necessary for the Court of Appeal to review that evidence and come to a conclusion on it.

26 The intention of Mr Halloran to dedicate the roads as public roads appears altogether unmistakably from the terms of the Deposited Plans themselves, including their reference to roads, and from his depositing them in compliance with s 113 of the Real Property Act 1900; and further from his having pursued and obtained approval of the Clyde Shire Council to open the roads, and to carry out the works in the plans in accordance with s 99 of the Local Government Act 1906. Only a person who so intended could possibly have caused such plans to be deposited and approved. The project of subdividing land into allotments with a view to their sale could not be achieved unless roads were created and the allotments had road frontage and access to the general road system. It is only on the basis that the roads were public roads that any address could be made to proposing purchasers; nobody would be interested in buying allotments on any other basis. There is no indication of any scheme of creating private rights of way; if there had been any such scheme, the private rights of way would have clearly appeared at many places in the Torrens Register.

27 The appellant put a large body of material into evidence which shows, in an altogether convincing way, that road construction and drainage works were actually carried out, and that roads were available for proposing purchasers to inspect and to see that access had been given to allotments offered for sale. The appellant also produced affidavits of persons who made observations of Pacific City Estate in the distant past, going as far back as shortly after 1920. Mrs D Johnson who was born in December 1919 gave evidence that she lived with her parents at Pacific House until she was 12 years of age, that is until 1931; that her mother ran a guesthouse and her father was the overseer of the estate. She said that the roads had been prepared to the extent that they were named with street signs; the roads were surfaced with gravel and had not been sealed. There were some parks which were fenced. From time to time proposing purchasers including visitors from overseas would attend and view Pacific City Estate. Her parents ran a shop in Pacific House, selling fruit, soft drinks and similar goods, indicating that the area was frequented by visitors.

28 Mr R Young who was born in October 1920 lived on the Erowal Estate near Pacific City Estate from 1929 onwards and travelled through the Pacific City Estate to get to school, on occasions using the gravelled roads. He said that he recalled seeing the extensive road pattern, which appeared to have been present for some years. There were formed culverts made of stone with cement bonding, street signs, and fenced parks. An affidavit of Mr Young tendered by the second respondent shows that the roads in the Pacific City Estate were neglected and overgrown with grass in the 1930s. These witnesses were not cross-examined or otherwise challenged. Their evidence is (I would think necessarily) not altogether precise as to the locations to which their observations and recollections relate.

29 The appellant produced an extensive report by Mr M M Tracey, an archaeologist highly qualified both academically and by experience of practical work in heritage archaeology, and in associated historical research. Mr Tracey’s view was “There is strong evidence of construction of roads prior to or about 1920 and use continuing from that date to until at least the late 1920s or early 1930s.” This view was based on a large body of factual material which was set out in his report. His material included an archaeological field survey of a significant number of locations within the area dealt with by the Deposited Plans, oral history interviews, consideration and close analysis of publicly available maps and plans, and study of aerial photographs which were established in a historically reliable way to show aspects of the state of development of the roads, including in many cases aspects of the state of development in and before 1920. Mr Tracey’s researches bear out that very extensive road, drainage and other development works entirely consistent with the plan (as required by s.99 of the Local Government Act 1906) were in fact carried out, and show that it is probable that they were carried out in and before the year 1920. The earliest works which could be identified took place late in 1914.

30 Mr Tracey’s evidence is supported by the evidence of Ms J L Tracey, who is also a heritage archaeologist, has impressive qualifications and experience, shared in the preparation of the report, and gave evidence of information obtained on inspection and analysis of the minute book of the Clyde Shire Council and of documents and account ledgers of Mr Halloran’s firm. Her evidence shows, in detail, that there was continuing and extensive expenditure on works from February 1915 onwards. The works included construction of Pacific House, the only dwelling that was ever constructed on Pacific City Estate, which commenced in May 1916. Other evidence shows that Pacific House was occupied for some years as an office for land sales, and as a guesthouse for proposing purchasers and persons on holiday. Ms Tracey expressed the view that historical evidence of construction of the road works indicates that road construction activities were being completed in 1916, and drew the inference that access to the road network occurred as early as 1916. She also inferred, based on photography, that traffic (including motor traffic) had access to the road system before 1920 and “I am further to the opinion that having regard to the whole of the historical and archaeological evidence available to me it is more likely than not that members of the public have had and have taken access to the allotments of either road network since 1916” (para.66 of vol.1 of appeal books). The material produced in evidence shows that there is a strong basis for this opinion.

31 On search of the Deposited Plans and Registrar-General’s Department records relating to them and to the Certificates of Title, no indication of dedication of the roads as public roads has been found in registered documents. Evidence of analysis of records of the Registrar-General shows that in the period from 1916 to 1919 one hundred and forty two allotments were transferred to purchasers. During the period 1920 to 1925 a further three hundred and sixty eight allotments were transferred. A plan in evidence shows that the allotments sold were widely distributed (p.191 of vol.1 of appeal books). The map was produced by Ms C Mina, paralegal employed by the appellant’s solicitors, whose evidence shows that the material in the map was based on information obtained on search of the relevant Certificates of Title.

32 Mr J Perry, surveyor of Nowra, gave evidence of survey work based on analysis of plans and field work in which in 2002 he identified many significant survey points such as frontage corners of allotments, road corners, survey pegs and marks and remains of fence posts in positions consistent with indications in the Deposited Plans. He identified and produced in evidence a number of records which cumulatively tend to confirm, with great strength, that road construction work was probably carried out and completed in the period from 1916 to 1919. The records include Registrar-General’s survey requisitions confirming that after deposit of the plans the Registrar-General’s examining surveyor carried out extensive fieldwork before September 1916. Mr Perry made an analysis of various photographs which were used by Mr Tracey in preparation of his report. He also searched Clyde Shire Council’s minutes and produced a number of relevant entries which showed among other things that Council had an engineer’s report under consideration in November 1914, that the Shire engineer saw “copy specification” which probably related to engineering works in May 1915, that Council approved the Deposited Plans on 11 November 1915 “subject to the conditions as referred to by the engineer being agreed upon by the vendors,” that Council obtained a bond of 800 pounds for completion of roads within the subdivisions on 10 July 1916, and that Mr Halloran informed Council of the sale of allotments in a letter dated 13 December 1919. Mr Perry expressed the opinion that road works conforming to the specifications were undertaken and that the preconditions for opening roads under the Local Government Act 1906 appeared to have been fulfilled. He also gave evidence of material appearing in minutes of the Clyde Shire Council in 1944 and 1945 which appears to show that the state of the roads in Pacific City Estate were then regarded as a matter for which Council was responsible.

33 The overall inherent probabilities are very strong; unless there was every appearance that roads had been created and were open and available for the public to use, it is very improbable that there would have been a large number of sales. People inspecting allotments and buying them must have thought and had reason to think that the roads were public roads; their beliefs would be formed on the open availability of formed roads and on the use which they could see was being made of them. Upon this body of material, findings that Mr Halloran intended to dedicate the roads in the Deposited Plans to the public, that he opened the roads pursuant to the procedure in the Local Government Act 1906 and that the public accepted the roads as public roads and began to use them, and that all these events happened before 1 January 1920, are overwhelmingly supported by the probabilities, and should be the findings of the Court of Appeal. It follows that the roads came to be vested in the appellant on 1 January 1920 when s232(1) of the Local Government Act 1919 came into effect.

34 The appellant presented an alternative argument based on a claim that the appellant had an implied right of way over the road network shown in the Deposited Plans and on Dabbs v. Seaman (1925) 36 CLR 538. It is not necessary to address this argument.

35 Questions of costs in the Land and Environment Court and on appeal should be reserved so that the parties including submitting respondents will have an opportunity to make written submissions. Upon receiving the written submissions the Court of Appeal should dispose of costs without a further hearing.

36 In my opinion the Court of Appeal should order:

(1) Appeal allowed.

(2) Order of Cowdroy J of 18 July 2003 varied by setting aside order 7 and in lieu thereof ordering:

A declaration pursuant to s.25 of the Land and Environment Court Act 1979 that the applicant The Council of the City of Shoalhaven has an interest in fee simple in the land shown depicted as roads in deposited plans 8515, 8516 and 8517.

(3) Reserve questions of costs in the Land and Environment Court and costs of the appeal.

37 CRIPPS AJA: I agree with Bryson JA.

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Last Modified: 06/08/2004