The Mayor, Aldermen and Citizens of the City of Launceston v Bradford

[1990] TASSC 8

Serial No 2/1990
List No "A"

CITATION:The Mayor, Aldermen and Citizens of the City of Launceston v
Bradford [1990] TASSC 8; A2/1990

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  351/1986
DELIVERED ON:  8 February 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  Underwood J

Judgment Number:  A2/1990
Number of paragraphs:  37

Serial No 2/1990
List "A"
File No 351/1986

THE MAYOR, ALDERMEN AND CITIZENS OF THE CITY OF LAUNCESTON v NORMAN ARTHUR BRADFORD

REASONS FOR JUDGMENT  UNDERWOOD J

8 February 1990

1. The defendant is the owner of 1,079 acres of farm land near Nabowla in the City of Launceston. The land lies to the north of the Galconda Road which runs between Lilydale and Scottsdale. The defendant's title does not include the land shown thereon as "reserved road, one chain wide". This reserved road runs in a northerly direction from the Galconda Road to a point a short distance past the defendant's house. Here, it divides into two branches. One branch (referred to in the evidence as "the old Bird track") traverses the defendant's property in a general eastwest direction. The other branch continues in a general northerly direction until it reaches the south eastern corner of the boundary of land in different ownership (referred to in the evidence as the "Elphinstone property"). At that point the reserved road curves to the west across the defendant's land for a short distance and terminates at the boundary of other land, also in different ownership (referred to in the evidence as the "Orchard property"). The south eastern corner of the boundary of the Elphinstone property was referred to by all the witnesses as "Old Pinner's gate". At the time of trial, a narrow gravel country road crossed the defendant's land, following approximately the same route as the land marked "reserved road, one chain wide", from Galconda Road to Old Pinner's gate. This road was known in the district as Carins Road.

1. In July 1986 the defendant erected a barrier across this road. By these proceedings, the plaintiff seeks an injunction restraining the defendant from obstructing Carins Road. The defendant claims that the public have no right of passage over Carins Road, past the point where he erected the barrier and that, in any event, the plaintiff Corporation has no status to bring these proceedings.

1. There was a substantial conflict between the evidence of the witnesses called by the plaintiff and the evidence of the defendant concerning the history of Carins Road. With respect to the issue of credit I am well satisfied that the defendant's evidence has no credibility where it is in conflict with the evidence of other witnesses. The defendant's answers to questions asked in cross–examination were evasive, at times contradictory and often argumentative. By his answers and demeanour, the defendant demonstrated an eccentricity which bordered on irrationality with respect to the construction and maintenance of Carins Road and its use over the years. The obsession and irrationality attending the defendant's claim that no person was entitled to use Carins Road except by his leave, was demonstrated by the incident described by the witness Mr Youd whose evidence I accept. The following findings of fact are made from the evidence of Mr and Mrs Orchard, former adjoining owners, Mr Flynn, Council employee and Mr McCulloch, a surveyor.

1. Mr John Orchard has been operating a farm in the Nabowla district since 1951. Before then, the farm was operated by Mr Orchard's grandfather, a Mr Carin. The main farm adjoins the Galconda Road, some distance from the defendant's property but, before and after Mr Orchard took over management of the farm, it included three blocks of bush land to the west of the defendant's property. One of these blocks is the Elphinstone property and one is the Orchard property. In the 1940's, when Mr Orchard was a schoolboy, the only access to the Elphinstone property was from Galconda Road, along Carins Road to Old Pinner's gate. Mr Orchard, members of his family and others to whom I shall refer later, used as of right, the whole of Carins Road from Galconda Road to Old Pinner's gate. Since at least 1956, the local council has maintained Carins Road from Galconda Road to a point just past the Old Bird track junction. Until the early 1960's the road from there to Old Pinner's gate was in poor condition and not maintained by the council. Some time between September 1961 and November 1963 the local council spent £970 upgrading the section of road from just past the Old Bird track junction to Old Pinner's gate. Since then the local council has maintained the whole of Carins Road on a regular annual basis by grading it, cleaning out the ditches, cutting back the vegetation at the sides and occasionally, putting gravel on it.

1. The defendant obtained title to his property on 23 November 1953. He was then a self employed butcher and bought the property as a "weekender". He did not live there until after his retirement in 1974. The defendant has never farmed the property. Between 1953 and the early 1960's the defendant visited the property about once every three months. For the next few years he did not visit the property at all and from then until he moved there, he visited it about once a month. The defendant claimed that when he bought his property, there was only a foot track from the Old Bird track junction to Old Pinner's gate but later in his evidence he contradicted that assertion in circumstances which made it clear that his claim about there being only a foot track had been false. The defendant said that in 1964 he gave permission to Mr McDonald, a timber contractor, to convert the walking track into a road. That evidence is in direct conflict with that of Mr Flynn who said that he, as an employee of the Council, improved the road using the Government grant of £970, inconsistent with the evidence of Mr Orchard who gave evidence after refreshing his memory from correspondence with the local council concerning the grant, and must be rejected. The Mr McDonald referred to by the defendant was not called to give evidence even though the defendant knew of his whereabouts.

1. I find that, since at least 1950, there has been a formed road running through the defendant's property from Galconda Road to Old Pinner's gate. I find that between 1961 and 1963 the local council substantially improved the condition of that road from just past the Old Bird track junction to Old Pinner's gate. I also find that prior to 1963 the council regularly maintained the road from its junction with Galconda Road to a point shortly past the Old Bird track junction and that since then, the council regularly maintained the whole of Carins Road from Galconda Road to Old Pinner's gate.

1. I accept the evidence of Mr Orchard that, in about 1964, he and his brother (who then operated the family farm with him) granted Mr McDonald a licence to take logs off the Elphinstone property. As the access through Old Pinner's gate was not suitable for log trucks, Mr McDonald, with the assistance of the Orchard brothers, extended Carins Road for a short distance past Old Pinner's gate, roughly parallel to the Elphinstone property southern boundary, over a creek and up an incline to make a new entrance into the Elphinstone property at a point known as "New Pinner's gate". Old Pinner's gate fell into disuse after this extension was made. The extension was constructed on the defendant's land and not within the area marked "road reserved, one chain wide". Neither Mr McDonald nor Mr Orchard sought the defendant's permission for this work in the belief that the extension was constructed within the reserved land. Since its construction, the local council also maintained this short extension of Carins Road although perhaps not to the same extent as the rest of it.

1. In a confusing and contradictory account the defendant claimed that the extension from Old Pinner's gate to New Pinner's gate was constructed by a Mr Lett, a logging contractor working on Elphinstone property. He said that Mr Lett sought and obtained his permission to construct the extension. I reject this account by the defendant. It is in conflict with the evidence of Messrs. Orchard and Flynn and again, although the defendant was aware of Mr Lett's whereabouts at the date of trial, he was not called as a witness. I do accept that from time to time, various logging contractors working on Elphinstone and Orchard properties did seek and obtain permission from the defendant not to pass over Carins Road but to use small portions of his property at the side of Carins Road to load logs onto trucks and to cut railway sleepers.

1. Mr Flynn said that about once a month, between 1963 and 1986, he drove along the length of Carins Road in the course of his duties as a foreman with the Lilydale Council to check on its condition. Once a year, council workmen, using a grader and other vehicles, maintained the road from Galconda Road to a point about fifty metres short of New Pinner's gate. Whilst this work was in progress portable warning signs were erected on the road and trucks and cars passed up and down the length of the road. The defendant claimed that, apart from the construction of two culverts, one on the Galconda Road side of his house and one on the other side of his house, he had never seen any council workmen maintaining the road nor any sign of the council having done so. I reject this evidence. Accepting as I do, the evidence of Mr Flynn, the defendant must have been aware of the maintenance carried out by the council workmen. Since he went to live there in 1974, council vehicles passed close by his house on a regular basis and recent work by a grader would have been plainly evident to him.

1. Mr McCulloch, a registered surveyor, carried out a survey in 1986, shortly after the defendant erected a gate and subsequently a fence across the road. The survey plan was tendered in evidence. It is confined to the area in the immediate vicinity of Old Pinner's gate and New Pinner's gate. I accept as accurate Mr McCulloch's evidence and the plan he prepared.

1. The survey plan shows portion of the eastern and southern boundaries of the Elphinstone property, portion of the eastern boundary of the Orchard property and the position of the reserved road excepted from the defendant's title. The plan plots the location of Carins Road from New Pinner's gate to a point approximately 160 metres east of Old Pinner's gate, identifies the position of the barrier erected by the defendant and shows the position of a rough track which branches off from Carins Road and follows along the reserved road to the Orchard property. The barrier erected by the defendant was removed in consequence of a pre–trial order but, at the time the survey was done and these proceedings instituted, it was approximately 32 metres long and erected within the road reservation approximately 100 metres east of Old Pinner's gate. It blocked access along both Carins Road to Old Pinner's gate and the rough track leading to the Orchard property. The plaintiff seeks no order with respect to the rough track.

1. Reading the survey plan from east to west I find that, for a distance of approximately 60 metres east of the barrier, Carins Road is constructed wholly within Crown land. It is also so constructed for a distance of approximately 25 metres on the other side of and to the west of the barrier. Carins Road then crosses onto and remains on the defendant's land and runs in a general westerly direction, first to Old Pinner's gate and then on to New Pinner's gate. Had the defendant erected the barrier at a slightly less acute angle and a further 25 metres to the west, it would have been on the boundary between his land and the Crown land reserved for a road. Although it is unnecessary to find, I observe that the defendant's evidence points to the inference that he intended to erect the barrier on the boundary but made an error in his measurements. In the absence of a public right of passage along Carins Road over the defendant's land, the defendant was and is entitled to erect and maintain a barrier along that boundary.

1. In early 1986 the Orchard brothers decided to sell (inter alia) the Elphinstone property and the Orchard property. Mr and Mrs Elphinstone bought the Elphinstone property and Mr and Mrs O'Connor bought the Orchard property. Shortly after Mr and Mrs O'Connor bought their property there were some discussions between the defendant and initially, Mr O'Connor and subsequently Mr O'Connor's solicitors about Mr O'Connor's right of access to the property he had bought. For some reason which is not apparent from the evidence, apart from the defendant's claim that Mr O'Connor would not "negotiate" and that there were "other troubles", those discussions led to the defendant erecting the barrier I have referred to.

1. The defendant conceded that he had always known that the road reservation crossed his property and gave access to the Orchard and Elphinstone properties. He also conceded that he knew that he had no right to stop anyone from passing along that reservation and, until Mr O'Connor bought the property in 1986, it was a matter of no significance to him whether the constructed road lay within or without the road reservation. However, for some reason, following Mr O'Connor's purchase, the defendant decided that it did matter to him and that he was entitled to prevent use of the constructed road except where it lay within the road reservation.

1. I accept the evidence of Mr Orchard and Mr Flynn that, since prior to the defendant's purchase of his property until July 1986, Carins Road, including the extension built in about 1963, was openly used as of right by members of the Orchard family, contractors working on the Elphinstone and Orchard properties, council employees and members of the general public who went to the property to shoot game and gather mushrooms. I do not accept the defendant's claim that any of these people sought his permission to go along Carins Road.

1. The first question for determination on the facts as I have found them is whether Carins Road, including its extension from Old Pinner's gate to New Pinner's gate, was a public road at the date the defendant erected a barrier across it. Apart from statute, a public right of passage is created upon the owner of the land over which the way passes dedicating a right of passage to the public and acceptance of that dedication by public user. See Roberts v Hunt (1850) 15 QB 17; R. v Lordsmere (Inhabitants) (1850) 15 QB 689; Pratt and McKenzie's Law of the Highways, 21st edn, p16 et seq.

1. That part of Carins Road which was the subject of Mr McCulloch's survey is constructed partly on the defendant's land and partly on Crown land. Although there was no specific evidence of the location of the rest of Carins Road, the inference is inescapable that it was constructed either on the defendant's land or on Crown land or partly on both. Both the Crown and a private owner are capable of dedicating land for use as a public way. See R. v East Mark (1848) 11 QB 877; Stoney v Eastbourne Rural District Council [1927] 1 Ch 367. There was no direct evidence of dedication by the Crown, by the defendant or by his predecessor in title. Dedication is a question of fact. It may be established inferentially. User by the public is evidence from which the inference of animus dedicandi may be drawn. See Poole v Huskinson (1843) 11 M & W 827 at p830.

1. In Folkestone Corporation v Brockman & Ors [1914] AC 338 Lord Kinnear said at p352:

"The points to be noted are, first, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee."

1. The evidence of public user in this case falls to be considered along with all the other evidence to determine whether it is more probable than not that the defendant, his predecessor in title and/or the Crown intended to dedicate Carins Road for use as a public right of way. Significant evidence which mitigates against drawing the necessary inference is that Carins Road is a cul–de–sac over rural land. According to the authors of the 21st edition of Pratt and McKenzie (at p6), since the decision of Bateman v Bluck (1852) 18 QB 870 it has been consistently held that a cul–de–sac can be dedicated as a public highway. In the Attorney General v Antrobus (1905) 2 Ch 188 Farwell J at pp206–208 cast some doubt on the correctness of the proposition that dedication in the case of a rural cul–de–sac can be inferred from public use, although he conceded at p207:

"I venture to think that this expenditure of [public] money is the important consideration, and that in such a case the land–owner who has permitted the expenditure cannot be heard to say that a roadway on which he has allowed public money to be spent is his private road; but the mere transit of passengers to see a view or a house at the end will create no right, as Lord Cranworth says."

However, in the later Court of Appeal decision of Williams–Ellis v Cobb & Ors [1935] 1 KB 310 the following passage appears in the judgment of Lord Wright at p320:

"It is no longer the law (if it ever was) that a highway must end in another public highway: see Moser v Ambleside Urban District Council (1924) 89 JP 59. Thus a public right of way may lead only to a point of natural beauty: Eyre v New Forest Highway Board (1892) 56 JP 517, approved in Moser v Ambleside Urban District Council; or to a church, or to the sea, or to a river: per Phillimore J in Tyne Improvement Commissioners v Imrie & Ors (1899) 81 Law Times 174. I think that Moser v Ambleside Urban District Council is now an authority for the proposition that a right of way may be proved, even though it does not lead to a public place. I may again refer to Moser v Ambleside Urban District Council for the language of Atkin LJ, where he says: 'I think you can have a highway leading to a place of popular resort even though when you have got to the place of popular resort which you wish to see you have to return on your tracks by the same highway, and you can get no further either by reason of physical obstacles or otherwise' the Lord Justice goes on to explain the decision in Attorney General v Antrobus".

1. Cogent evidence from which an inference may be drawn that the defendant and his predecessor in title intended to dedicate the land for use as a public right of way arises from the facts as I have found them that:

1The local council, since at least shortly prior to 1950, has regularly maintained Carins Road between its junction with Galconda Road and the Old Bird track junction.

2In about 1963 the local council substantially upgraded the section of Carins Road between the latter junction and Old Pinner's gate and subsequently regularly maintained it.

3Since about 1964, the local council has regularly maintained the major part of the extension of Carins Road from Old Pinner's gate to New Pinner's gate.

4Since the defendant went to live on his property in 1974 he was aware of the work done by the local authority.

See R v Thomas (1857) 7 E & B 399; R v Wandsworth Inhabitants (1817) 1 B & Ald 63.

1. Insofar as Carins Road runs over Crown land, construction and subsequent maintenance by the local authority over land reserved by the Crown for road purposes irresistibly leads to the conclusion that the Crown intended to dedicate the use of the road for public right of passage.

1. Although the public user of Carins Road has not been extensive, I am satisfied that it was openly used by members of the public to the knowledge of the defendant at least since 1974 and that such use was exercised as of right.

1. Finally, against the defendant, it is significant that since he first acquired the property he knew that he had no right to prevent anyone passing over the land reserved from his title and that, until Mr and Mrs O'Connor bought the Orchard property in 1986, it was a matter of indifference to him whether the constructed road was wholly contained within the reserved land or not.

1. In these circumstances I am satisfied on the balance of probabilities that the owners of the land over which Carins Road passes from Galconda Road to New Pinner's gate intended to dedicate it to the public for right of passage and by user, that dedication has been accepted and a public right of way has been created.

1. It follows that if the plaintiff Corporation has status to maintain these proceedings it is entitled to the injunctive relief sought. The plaintiff claims it has a sufficient interest in the relief sought by reason of a statutory duty cast on it to maintain the road.

1. Before the enactment of the Local Government (City of Launceston Reorganisation) Act 1985, the defendant's land lay within the municipality of Lilydale. By s5 of that Act, the municipal district of Lilydale was added to and included in the municipal district of the City Launceston. Assuming, but not conceding, that immediately prior to that Act coming into force, the municipality of Lilydale had a statutory duty to maintain Carins Road, learned counsel for the defendant submitted that the Local Government (City of Launceston Reorganisation) Act did not transfer to the City of Launceston any duties formerly imposed on the municipality of Lilydale. Neither the Act nor its schedule expressly imposed on the City of Launceston any statutory duties formerly imposed on the Lilydale municipality.

1. Before its amendment in 1982, the Local Government Act 1962 (the material parts of which commenced on 1 January 1964), by s332(1), passed the common law duty to repair highways from the inhabitants of the parish, to "the corporations of the municipalities". Subsection (2) excepted certain highways, not relevant for present purposes, from the provisions of subs(1). Section 337(1) made provision for the maintenance of highways opened after 1 January 1964. It provided that a municipality was under no duty to maintain a highway opened after that date unless (inter alia) notice of intention to dedicate the highway had first been given to the municipality. As I have found that Carins Road from Galconda Road to Old Pinner's gate was opened prior to 1 January 1964 the exemption from liability to repair created by s337(1) has no application to that part of Carins Road. However, the extension from Old Pinner's gate to New Pinner's gate was not made until just after the Local Government Act 1962 came into operation and, as the statutory prerequisite to municipal liability for maintenance has not been complied with the municipal corporation was under no duty to maintain the extension of Carins Road.

1. By the Local Government (Consequential Amendments) Act 1982 the majority of the provisions in the Local Government Act 1962 concerning highways, including s332, were repealed. The Local Government (Highways) Act 1982 came into force at the same time as the Local Government (Consequential Amendments) Act 1982 and continued the duty imposed by s332 of the Local Government Act 1962 by s4(3) which provides:

"A highway that, immediately before the proclaimed day, was repairable by a corporation becomes on that day a highway maintainable by the corporation."

Section 21(1) of the same Act imposed a further duty on a municipality by providing:

"Subject to this Act, the corporation of a municipality is charged with the duty of maintaining the local highways in the municipality that are maintainable by the corporation as shown on its municipal map, and, in any particular case, it shall discharge that duty in such manner as, having regard to all the circumstances of the case, it considers practical and appropriate."

1. A local highway is defined by the Local Government (Highways) Act, s4(1) as follows:

"In this Act, all State highways and subsidiary roads within the meaning of the Roads and Jetties Act 1935 are referred to as State highways and all other highways (except highways that, immediately before the proclaimed day, were repairable by State authorities) are referred to as local highways."

1. The reference in s21(1) to a municipal map is presumably a reference to a map that a municipal corporation is obliged to keep as provided by the Local Government Act, s694. Although a map from the records of the Lilydale municipality was put in evidence there was nothing to show that it was the map kept in accordance with s694. Learned counsel for the defendant submitted that s4(3) and s21(1) of the Local Government (Highways) Act were inconsistent and that the only duty to repair was that imposed by s21(1). Thus, he contended, as the municipal map was not adduced in evidence the duty to repair had not been established.

1. In my opinion, there is no substance in the submission that s4(3) and s21(1) are inconsistent. They may overlap to some degree but, there is no reason to ignore the opening words of s21(1) which give s4(3) full effect. Further, there are other sections in the Local Government (Highways) Act, for example, s10, which separately impose on the corporation a duty to repair.

1. Thus, I find that at the date of the commencement of the Local Government (Highways) Act, the Lilydale municipality was under a statutory duty to maintain that part of Carins Road between Galconda Road and Old Pinner's gate but not otherwise.

1. The remaining question then is whether that duty became the duty of the City of Launceston upon the Local Government (City of Launceston Reorganisation) Act coming into force.

1. The duty imposed by the Local Government (Highways) Act 1982, s4(1) is a continuing one. It attaches to "the corporation". Section 3(1) defines a corporation in the following terms:

"Corporation means a corporation of a municipality and, in relation to any land, or a building, structure, or other thing on any land, or a highway, means the corporation of the municipality in which the land or highway is so situated."

1. At the date of the commencement of the Local Government (Highways) Act, by virtue of s4(3) of that Act, "the municipality" assumed a continuing liability to maintain Carins Road. For so long as the road was situated in the municipality of Lilydale, the duty fell upon that corporation. Upon the road becoming situated in the corporation of the City of Launceston by virtue of the provisions of the Local Government (City of Launceston Reorganisation) Act, the statutory duty fell on that municipal corporation, the plaintiff. The submission made on behalf of the defendant that the last mentioned Act was ineffective to transfer the obligation to repair from the Lilydale municipality to the City of Launceston cannot be sustained.

1. Accordingly, I find that at the date the defendant erected a barrier across the road the plaintiff corporation was under a duty to maintain the road on both sides of the barrier and consequently is entitled to the relief sought.

1. I will hear the parties with respect to the exact terms of the order.