WCL (QLD) Albert St Pty Ltd v Orb Holdings Pty Ltd & Ors - [2023] QCA 263

SUPREME COURT OF QUEENSLAND

CITATION: WCL (QLD) Albert St Pty Ltd v Orb Holdings Pty Ltd & Ors
[2023] QCA 263
PARTIES: WCL (QLD) ALBERT ST PTY LTD
ACN 600 302 976
(appellant/not a party to the cross appeal)
v
ORB HOLDINGS PTY LTD
ACN 010 227 371
(first respondent/cross respondent)
STATE OF QUEENSLAND
(second respondent/cross appellant)
REGISTRAR OF TITLES
(third respondent/cross appellant)
FILE NO/S: Appeal No 12103 of 2022
SC No 6514 of 2019
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING
COURT: Supreme Court at Brisbane – (2022) 11 QR 750 (Crow J)
DELIVERED ON: 19 December 2023
DELIVERED AT: Brisbane
HEARING DATE: 20 March 2023; 21 March 2023
JUDGES: Morrison and Bond JJA and Applegarth J
ORDERS: 1. Appeal dismissed.

2. The Appellant pay the Respondents’ costs of the
appeal.
3. Cross-appeal dismissed.
4. The Second and Third Respondents pay the First
Respondent’s costs of the cross-appeal.

CATCHWORDS:

HIGHWAYS – CREATION AND EXTINCTION OF HIGHWAYS – DEDICATION – WHAT CONSTITUTES DEDICATION – GENERALLY – where, in the late 19th century,
the owners of land in Brisbane subdivided and sold their land
– where the whole of the subdivided land was subdivided into
nine individual lots, with each abutting a laneway which would
later be termed a ‘right of way’ on title documents – where the
sellers of that land evinced no intention to retain any part of

that laneway – where the council assumed responsibility for that laneway – where the laneway remained open to, and used
by, the public up until the appellant erected barriers in 2019 –

where the trial judge determined that there was a dedication by the original owners, and there was an acceptance by the public
of that dedication – where the effect of the primary judge’s
finding was that the laneway was dedicated as a public road,
and thus vested in the second respondent – where the primary
judge inferred that sanctions necessary in relation to the
dedication of the laneway as a public road had been given –
whether the trial judge erred in these findings

HIGHWAYS – MISCELLANEOUS MATTERS – OTHER MATTERS – where the second and third respondents cross
appealed as to the form of declaration made by the primary
judge – whether the primary judge erred in the form of
declaration at first instance
Grammar Schools Act 1860 (Qld), s 1, s 2, s 6
Land Act of 1962 (Qld), s 5, s 369
Real Property Act 1861 (Qld), s 44, s 119
Anderson v City of Stonnington (2017) LGERA 176; [2017]
VSCA 229, cited
Attorney-General (NT) v Minister for Aboriginal Affairs
(1989) 23 FCR 536; [1989] FCA 159, cited
Attorney-General (Quebec) v Attorney-General (Canada)
[1921] 1 AC 401; [1920] UKPC 96, cited
Barraclough v Johnson (1838) 8 A & E 99; [1838]
EngR 552, cited
Battersea Vestry v County of London and Brush Provincial
Electric Lighting Co [1899] 1 Ch 474; [1899]
UKLawRpCh 15, cited
Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd
(1998) 43 NSWLR 364, cited
Born v Huntley (1886) 20 SALR 33; [1886] SALawRp 8, cited
Boulter v Jochheim [1921] St R Qd 105, cited
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, cited
Brodie v Singleton Shire Council (2001) 206 CLR 512;
[2001] HCA 29, cited
Buckle v Bayswater Road Board (1936) 57 CLR 259; [1936]
HCA 65, cited
Burgess v Northwich Local Board (1880) 6 QBD 264; [1880]
UKLawRpKQB 116, cited
Chambers v Lane Cove Municipal Council (1966)
14 LGRA 1, cited
City of Keilor v O’Donohue (1971) 126 CLR 353; [1971]
HCA 77, cited
Cowlishaw v Ponsford (1928) 28 SR (NSW) 331; [1928]
NSWStRp 30, cited
Dabbs v Seaman (1925) 36 CLR 538; [1925] HCA 26, doubted
Little v Dardier (1891) 12 NSWLR (Eq) 319; [1891]
NSWLawRp 41, cited
Dixon v LeKich (2010) 56 MVR 70; [2010] QCA 213, cited
Ex Parte Le Gould (1864) 1 QSCR 130, cited
Folkestone Corporation v Brockman [1914] AC 338; [1914]
UKLawRpAC 6, cited
H Jones & Co Pty Ltd v Kingsborough Corporation (1950)
82 CLR 282; [1950] HCA 11, cited
Highmist Pty Ltd v Tricare Ltd [2005] QCA 357, cited
Hutchinson v Lemon [1983] 1 Qd R 369, cited
Lawson v Weston (1850) 1 Legge 666, cited
Little v Dardier (1891) 12 NSWLR (Eq) 319, cited
Lynch v Eaves (Max) Pty Ltd and Brighton Council (1996)
91 LGERA 166; [1996] TASSC 2, cited
Mayberry v Mornington Peninsula Shire Council (2019)
59 VR 383; [2019] VSC 623, cited
Minister for Natural Resources v New South Wales
Aboriginal Land Council (1987) 9 NSWLR 154, cited
Municipal District of Concord v Coles (1906) 3 CLR 96;
[1905] HCA 35, cited
Murray on behalf of the Yilka Native Title Claimants v State

of Western Australia (No 5) [2016] FCA 752, cited Newington v Windeyer (1985) 3 NSWLR 555, cited Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020)
5 QR 521; [2020] QCA 198, related
Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2022)
11 QR 750; [2022] QSC 190, related
Owen v O’Connor [1964] NSWR 1312; (1963)
53 SR (NSW) 1051, cited
Palmisano v Hawse (2003) 127 LGERA 268; [2003]
NSWSC 566, cited
Permanent Trustee Co of NSW Ltd v Campbelltown

cited

Municipal Council (1960) 105 CLR 401; [1960] HCA 62, cited
Project Blue Sky Inc v Australian Broadcasting Authority
(1998) 194 CLR 355; [1998] HCA 49, cited
R (Smith) v Land Registry (Peterborough) [2011] QB 413;
[2010] EWCA Civ 200, cited
Rangeley v Midland Railway Co (1868) 3 Ch App 306;
[1868] UKLawRpCh 21, cited
Re the Real Property Act, 1861, and the Application of the
Right Reverend Dr O’Quinn (1879) 1 QLJ (Supp) 7, cited
Rock v Todeschino [1983] 1 Qd R 356, cited
Shellharbour Municipal Council v Rovili Pty Ltd (1989)
16 NSWLR 104, cited
Shire of Narracan v Leviston (1906) 3 CLR 846; [1906]
HCA 34, cited
Sydney City Council v Griffin Corporation Pty Ltd [2003]
NSWSC 26, cited
Templestowe Developments Pty Ltd v City of Boroondara
[1997] 1 VR 504, cited
Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors
[1999] NSWCA 347, cited

Weber v Ankin (2008) 13 BPR 25,231; [2008] NSWSC 106, cited
COUNSEL: S L Doyle KC, with S J Webster, for the appellant/not a party
to the cross appeal
J D McKenna KC, with J P Hastie, for the first
respondent/cross respondent
D D Keane KC, with S C Russell, for the second and third
respondents/cross appellants
SOLICITORS: Clayton Utz for the appellant/not a party to the cross appeal
HWL Ebsworth for the first respondent/cross respondent
Crown Law for the second and third respondents/cross
appellants

MORRISON JA: In late 1851, in the early days of Brisbane and while it was still part of the colony of New South Wales, a large piece of land bordering Margaret, Albert, and Alice Streets was subdivided, and then sold off at auction in early 1852. The map below shows that part of that subdivision which is relevant to this case,
Lots 8–11 on section 37.[1]
[1] Taken from survey plan B.1182.29, AB 467.
As can be seen, Lot 7 fronted Alice Street and Lot 12 fronted Margaret Street. Lots 8 and 11 were corner blocks, Lot 8 on the corner of Alice and Albert Streets, and Lot 11 on the corner of Albert and Margaret Streets. Lots 9 and 10 fronted Albert Street.
Lots 7–11 were purchased at the auction by several buyers:

(a) Lots 8 and 9 by Mr Forbes;
(b) Lots 10 and 11 by Mr Roberts, who also owned Lot 12; and
(c) Lot 7 by Mr Weekes.

The purchase of the five Lots pre-dated the Real Property Act 1861 (Qld), but that Act provided for parcels of land to be brought under its provisions. In time, certificates of title issued in respect of the five Lots.
In 1872, Mr Hart purchased Lot 7 and constructed his home on it.[2]
[2] Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2022) 11 QR 750, [15] (Primary Judgment).
In 1874 the Trustees of the Brisbane Grammar School purchased and became registered proprietor of Lots 8, 9, 10, and 11.[3]
[3] I will refer to these Lots, by their number, as the original Lots. Hereafter, I will refer to the Trustees
The Trustees originally intended that the land be used as the relocated site for the Brisbane Grammar School, but that plan changed, and, in 1876, the Trustees resolved to sell those four Lots by subdividing them.
Original Lots 8–11 were to be split longitudinally into nine new Lots:

(a) new Lot 1 fronted Albert Street, with its long side to Margaret Street;
(b) new Lots 2–5 fronted Albert Street;
(c) new Lot 6 fronted Alice Street, with its long side to Albert Street; and
(d) new Lots 7–9 fronted Alice Street.

At the heart of this case is what was done at the rear of the new Lots.
The approved plan of sub-division, RP1073, created a laneway which ran from
Margaret Street along the back of Lots 1–5, then turned left to exit into Albert Street, along the back of Lots 6–9 and down the long side of Lot 5.
The plan of subdivision, RP1073, is central to many issues in the case. It appears below in the form in which it was filed in the Titles Office.[4] Approval of the subdivision by the City Council was not a requirement at that time.

[4] AB 468.

Several features of the plan can be noted:

(a) it was certified on 12 September 1876;
(b) it created Lots 1 to 9 on RP1073;
(c) it showed a laneway to the rear of each of the lots, entitled “RIGHT OF WAY”, but the laneway was not described as a “lot”;
(d) the laneway or Right of Way was not called an easement;
(e) it created a strip of land called a “Reserve”, also not described as a lot; it had a
width of 1.5 links (about 30 cm) and was situated on the southern boundary of the Right of Way, running from Margaret Street, adjoining all of original
Lot 12 (Mr Foley’s land) and part of original Lot 7 (Mr Hart’s land), ending at
the corner of new Lot 9; and

(f) the Trustees signed the plan:
“‘Being seized of the land herein delineated the trustees of the
Brisbane Grammar School consent and approve of this plan of
Subdivision (signed)’.”

Upon the filing of RP1073, Lots 1 to 9 were created, and certificates of title issued for Lots 1 to 9 only. There was neither a lot number nor a certificate of title issued for the Reserve or for the Right of Way. The Reserve was subsequently created as Lot 10 on 26 March 1886. The Right of Way was subsequently created as Lot 11 in 1994.[5]
[5] For convenience, at different times throughout this judgment, I will refer to the “Right of Way” by that name, or as either “Lot 11”, or “Beatrice Lane”.
It is the “RIGHT OF WAY” on the subdivision plan RP1073 which is at the heart of
the issues on the appeal.
Subsequently, the Trustees sold the subdivided lots on RP1073:

(a) Lots 4 and 5 to Mr Prentice Jnr on 2 October 1876;
(b) Lots 6 and 7 to Mr Lord on 2 October 1876;
(c) Lots 1 to 3 to Mr Hunter on 2 October 1876; and
(d) Lots 8 and 9 to Mr Pratton in 1881.

Subsequently:

(a) Lots 8 and 9 were on-sold in 1881 and by 1886 a Masonic Hall was built on them;
(b) Lots 4 to 7 were on-sold in 1881 and 1882 and, by 1889, a flour mill and an engineering and machinery warehouse were built on these lots; and
(c) Lots 1 to 3 were on-sold in 1879 and were subsequently used as a yard associated with the engineering warehouse.

On 16 March 1886, a further plan of subdivision, RP1074, was lodged by the Trustees, and a certificate of title for the Reserve was created. The Reserve was designated as Lot 10. Sir Charles Lilley signed RP1074 on behalf of the Trustees. Both RP1074 and the certificate of title identify the Reserve as adjoining the Right of Way.
On 10 March 1886, Mr Hart (the owner of original Lot 7 on section 37) purchased Lot 10 (the Reserve). The effect of this sale was that Mr Hart could thereafter access the Right of Way directly from his property.
The Trustees did not sell the area of land labelled “Right of Way” on RP1073.
None of the certificates of title for the Lots created as part of RP1073 contained a reference to the subdivision plan RP1073, nor a reference to any easement rights, but
each certificate of title referred to the Right of Way as a “right of way” defining the
boundary of the Lots. The Reserve was not noted on any certificate of title.
The area shown as “Right of Way” on the subdivision plan was not only used as a
means of access to Lots 1–9 by the owners of those Lots, but also by the public as
a road.
By 1890, the Brisbane Municipal Council formed. From time to time, it did maintenance and drainage work on the Right of Way, or Beatrice Lane as it eventually became known. The Council also issued permits for various structures to be built in Beatrice Lane.
The ability to dedicate land as a road at common law ended in Queensland on l January 1924 when the Local Authorities Acts Amendment Act 1923 (Qld) came into force. That Act imposed a new requirement, namely to obtain the consent of a local authority to open a new public road.
In 1927, the Reserve (Lot 10) was resumed by the Brisbane City Council and dedicated as a road in 1928.
In about 1989, the Brisbane City Council assigned the name “Beatrice Lane” to Lot 11.
In 1994, the land encompassed in the “Right of Way”, Beatrice Lane, was registered
as Lot 11 within title reference 18713125. The certificate of title showed that “The Trustees of the Brisbane Grammar School” was the registered proprietor of an estate
in fee simple. Prior to that time, Beatrice Lane:

(a) was not separately described in the freehold land register; and
(b) did not have any certificate of title.

Until 2008, the Brisbane Grammar School was recorded as the owner of Beatrice Lane. In late 2008, they transferred that ownership interest to Devine Ltd.
In 2014, the appellant (WCL) became the registered owner of land at the corner of Margaret and Albert Streets, including what was Lot 11 on the original plan of subdivision: see the map in paragraph [1] above.
The first respondent, Orb Holdings Pty Ltd (Orb), is the registered owner of Lot 12. Orb commenced proceedings seeking declarations that:

[6] Since repealed.

(a) Beatrice Lane has been dedicated as, and is, a public highway or public road; and
(b) by operation of s 369 of the Land Act 1962 (Q1d),[6] Beatrice Lane vested, and remains vested, in in the Crown.

As part of that case, Orb contended that the Crown’s ownership of Beatrice Lane:

(a) was and is effectual without it being recorded on the freehold land register;
(b) operated and existed outside the operation of the (now repealed) Real Property Act 1861; and
(c) operates and exists outside of the operation of the Land Title Act 1994 (Qld).

Orb’s case was that it should be inferred that (i) the Brisbane Grammar School

intended to dedicate Lot 11 as a public road or highway, and (ii) the public accepted
that dedication, those inferences being drawn from:

(a) the lodgement of the plan RP1073 in September 1876;

(b)

that RP1073 showed Lot 11 as a Right of Way connected to Margaret and Albert Streets;
(c) the sale of Lots 1–9 on RP1073 between 1876 and 1881, but no sale of Lot 11;
(d) Lots 1–9 were sold on the basis that they had access to Lot 11;
(e) between 1890–1905, the Brisbane Municipal Council carried out various road
works on Lot 11;

(f) between 1896 and 1900, the Brisbane Municipal Council issued permits for structures to be erected in Lot 11, including a weighbridge and a gangway;
(g) since 1876, Lot 11 had been used by the public for access by foot, carriage, or vehicles, both to adjoining properties, and between Margaret and Albert Streets; and
(h) the Brisbane Grammar School took no steps to prevent the public using Lot 11.

WCL resisted that claim, contending that the Brisbane Grammar School never intended to dedicate Lot 11 as a public road or highway, but rather only as a means
of access for the owners, occupiers, and licensees of Lots 1–9. Further, it said that it

was likely that in 1876, and thereafter, the Brisbane Grammar School intended to sell
off all the land it owned between Margaret, Albert, and Alice Streets, including Lot 11.

The second respondent (the State of Queensland) and the third respondent (the Registrar of Titles) were joined so as to be bound by the declarations, one of which was that Lot 11 vested in the State of Queensland, and in case orders were needed against them to give effect to the declarations sought by Orb.
The primary judge held that, prior to 1924, the former owners of Lot 11, the Trustees, had dedicated Lot 11 as a public road. His Honour made a declaration to this effect, and also declared that, by s 369 of the Land Act 1962 (Qld), Lot 11 had vested (and remained vested) in the State.[7]
[7] Primary Judgment at [200].
The effect of those declarations is that, according to an earlier the decision of this Court in the same litigation,[8] notwithstanding the indefeasibility provisions of the Land Title Act 1994 (Qld), the State, rather than WCL, is the owner of Lot 11.
[8] Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521 at [10]–[l l], [46], and [82].
WCL challenges the findings of the primary judge on grounds the overall thrust of which were summarised in its outline on the appeal:

“5.

Having regard to the contemporaneous documentary evidence, the identity of the Grammar Trustees, and the statutory framework governing the exercise of their powers, the Court should not have found that the Grammar Trustees intended to dedicate Lot 11 as a public road.

6.

The Court also should not have found that the public had accepted such a dedication at the relevant times. Nor should the Court have been satisfied that the Grammar Trustees obtained a sanction for the dedication as required by the trustees' governing statute.
7. On the evidence, the better inferences were that:

(a)

Lot 11 was originally created to be a private right of way for the benefit of adjoining lot owners;

(b)

there was no subsequent manifestation of an intention by the Grammar Trustees to dedicate Lot 11 as a public road prior to 1924;

(c)

the public at large did not accept or use Lot 11 as a public road prior to 1924;

(d)

the Grammar Trustees had not sought or obtained any sanction for dedicating Lot 11 as a public road.
8. Alternatively, there were at least conflicting inferences of equal
degrees of probability about the Grammar Trustees’ intentions
for Lot 11 and public acceptance, such that the choice between
those alternative inferences was a matter of conjecture.

9.

In those circumstances, the First Respondent’s [Orb’s] case below ought to have been dismissed.”

As will become apparent, I consider that approaching the appeal by examination of the many individual complaints as to whether the trial judge erred on this or that particular finding is apt to distract from the central task of deciding whether the evidence supported the outcome. In my view, it is appropriate that the appeal be resolved by examining the available evidence as to the three central findings, namely: (i) there was an intention to dedicate the Right of Way for public use; (ii) there was an acceptance of the dedication by the public; and (iii) the sanction was obtained.
As will become apparent, in my view, the appeal should be dismissed.
General principles – dedication as a road
At the trial, Orb had to establish that the land shown on RP1073 as a “Right of Way”
was dedicated as a road. In order to do that, Orb had to show that:

(a) the then owner of the land comprising the Laneway, the Trustees, manifested an intention to dedicate the land as a road;
(b) there had been acceptance of the public of the dedication; and
(c) the dedication of the land was lawful.

The nature of the rights created when a road is dedicated at common law were not in contest at the trial, or on appeal:

[9]            City of Keilor v O’Donohue (1971) 126 CLR 353, 369.
[10]           Owen v O’Connor [1964] NSWR 1312; (1963) 53 SR (NSW) 1051, 1061.
[11]           Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104, 108–109.

(a) in dedicating land as a road at common law, the owner of the land does not part with any proprietary interest and retains ownership of the land itself;[9] and
(b) an owner of land which abuts a public road has, at common law, the right to access the public road from its land,[10] and such rights are in addition to the rights that an owner shares with the general public to use the road.[11]
Did the Trustees of the Brisbane Grammar School intend to dedicate the land as a road?

Given that the relevant events occurred nearly 150 years ago, all of the primary evidence on this aspect of the case was, of course, documentary. It is only from that evidence that inferences can be drawn.
The relevant intention is that of the Trustees. Thus, it is of assistance to note the composition of the board of Trustees at the relevant times. The facts below were uncontroversial at the trial.
Between 1874 and 1877, the Chairman was Sir James Cockle. He was Chief Justice of Queensland between 1863 and 1879.
Lewis Bernays was a Trustee between 1868 and 1904. He was the Clerk of the Legislative Assembly.
John Douglas was a Trustee between 1874 and 1877. He occupied the following positions at relevant times:

(a) Member of the Legislative Assembly: 1863–66; 1867–68; 1868; 1875–80;
(b) Member of the Legislative Council: 1866; 1868–69;
(c) Postmaster-General: 1866; 1868–69;
(d) Treasurer: 1866–67;
(e) Secretary of Public Works: 1867;
(f) Secretary of Public Lands: 1876–77;
(g) Premier: 1877–79;
(h) Colonial Secretary: 1877–79; and
(i) Member of the Executive Council: 1866; 1866–67; 1868–69; 1876–79.

Sir Samuel Griffith was a Trustee between 1871 and 1904. He was Chairman
between 1887–1892 and 1895–1904. Apart from being a barrister, positions held by
Sir Samuel during relevant times included:

(a) Member of the Legislative Assembly: 1872–93;
(b) Attorney-General of Queensland: 1874–78;
(c) Secretary for Public Instruction: 1876–79;
(d) Secretary for Public Works: 1878–79;
(e) Premier and Colonial Secretary: 1883–86;
(f) Premier and Chief Secretary: 1886–88;
(g) Colonial Treasurer: 1887–88;
(h) Postmaster-General: 1885;
(i) Premier, Chief Secretary and Attorney-General: 1890–93;
(j) Member of the Executive Council: 1874–79; 1883–88; 1890–93;
(k) Chief Justice of Queensland: 1893–1903;
(l) Chief Justice of the High Court of Australia: 1903–19; and
(m) Lieutenant-Governor of Queensland: 1901–02.

Sir Charles Lilley QC was a founding Trustee, holding that position between 1868–
87. Positions held by him during relevant times included:

(a) Attorney-General: 1865–66; 1866–67;
(b) Premier and Attorney-General: 1868–69;
(c) Premier and Colonial Secretary: 1869–70;
(d) Member of the Legislative Assembly: 1860–74;
(e) Member of the Executive Council: 1865–66; 1866–67; 1868–70;
(f) Judge of the Supreme Court of Queensland: 1874–79; and
(g) Chief Justice of Queensland: 1879–93.

Randall MacDonnell was a Trustee between 1874 and 1889. He was the General Inspector of Queensland Primary Schools between 1860 and 1876.
Charles Mein, a solicitor, was a Trustee between 1874 and 1889. He also held the positions of:

(a) Member of the Legislative Council: 1876–85;
(b) Postmaster-General and Representative of Government in Legislative Council:
1876–79; 1884–85;

(c) Secretary of Public Instruction: 1885;
(d) Member of the Executive Council: 1876–79; 1884–85; and
(e) Judge of the Supreme Court of Queensland: 1885–90.

John Scott was a Trustee between 1874 and 1888. He was also a Member of the

Legislative Assembly in 1868 and 1870–88, and of the Legislative Council between
1888–90.

Thus, between 1874 and 1877 the Trustees included:

(a) the Clerk of the Legislative Assembly;
(b) at least four Members of the Legislative Assembly;
(c) three Members of the Executive Council;
(d) the Secretary of Public Lands;
(e) the Attorney-General;
(f) Chief Justice of the Supreme Court; and
(g) a Judge of the Supreme Court.

The first document to be considered is the minutes of the Trustees on 4 September
1876.[12] It records that the Trustees considered the “Sale of Land in Alice Street”. It was resolved that “steps be taken for sale of same. Messrs Scott & Bernays to arrange”.
[12] AB 285, 345.
The minutes show that the Trustees at that meeting comprised Charles Lilley as Chairman, and Mr Bernays, Samuel Griffith, Mr Mein and Mr Scott as members.
I will return to the significance of the composition of the Trustees later. For present purposes it is sufficient to note that the Trustees at that meeting were: a Judge of the Supreme Court, the Attorney-General, the Clerk of the Legislative Assembly, two Members of the Legislative Assembly, two Members of the Executive Council, and one Member of the Legislative Council.
The land had been acquired by the Trustees in November 1874, and comprised
four lots, Lots 8–11 on Section 37. These are Lots 8–11 shown in the plan in
paragraph [1] above.
In context, the resolution refers to all the land owned by the Trustees at Alice, Margaret, and Albert Streets. WCL accepted that it should be inferred that Lots 8-11 had been purchased as a potential site for a school.[13] Even though only Lot 8 could
literally be said to be “in Alice Street”, the better view is that the Trustees used
a compendious term for all four lots.
[13] Appellant’s outline paragraph [19], footnote 18.
The resolution was, therefore, to sell all of Lots 8–11 as they then existed, ie. Lots 8–

11 on Section 37. That included the piece of land that later became the Right of Way
and the Reserve, shown on RP1073: see the plan at paragraph [11] above.

Nothing in the resolution suggests that the Trustees intended to hold back any portion
of Lots 8–11 on Section 37 from the sale or reserve any portion to the Trustees. In

fact, the evidence shows that the purpose for which the lots were purchased was not
viable, thus indicating that the Trustees no longer had a use for any of the land.

The Trustees committed the task of selling Lots 8–11 on Section 37 to Scott and Bernays, “to arrange”. Evidently, Scott and Bernays caused the plan of subdivision
to be created.
The subdivision plan was approved by the Trustees.[14]
[14] See the handwritten note at the bottom left of the plan quoted at paragraph [12](f) above.
The note was signed by Sir James Cockle as “Chairman of Trustees of the Brisbane
Grammar School”. He was then the Chief Justice of Queensland.
The subdivision plan was then lodged with Registrar of Titles. So far as the evidence

reveals, that was the first public statement of the Trustees’ intentions in respect of
what was to be done with the land in Lots 8–11 on Section 37.

There are several features of RP1073, recorded on it at the time it was lodged in 1876, that can be noted:

(a) the plan was labelled as a plan “of Subdivisions 1 to 9 of Allotments 8, 9, 10
& 11 of Section 37”;

(b) the original Lots 8–11 were subdivided into three separate areas of land: (i) Lots 1-9; (ii) the “Right of Way”; and (iii) the Reserve;
(c) the description given to the area of land that became Beatrice Lane, was “Right
of Way”;

(d) the Right of Way was not labelled as an easement;
(e) the Right of Way extended from Margaret Street to Albert Street;
(f) neither the Right of Way nor the Reserve formed part of any of Lots 1–9;
(g) neither the Right of Way nor the Reserve was given a lot number;[15]

(h)

the Right of Way was of irregular dimensions; the portion from Margaret Street was 18 feet wide, whereas the portion from Albert Street was 25 feet wide;
[15]           The words “Lot 11 (Balance)” were inserted some time later. RP1074 created Lot 10 some time later:
(i)       the Reserve was described as 1.5 links wide;[16]
[16]           About 30 centimetres or one foot.

(j) the Reserve was not labelled as an easement;
(k) the Reserve ran from Margaret Street to the southernmost corner of the Right of Way; and
(l) the Reserve ran the full length of the Right of Way in so far as the Right of Way adjoined original Lots 7 and 12.

When the original plan B.1182.29[17] and RP1073 are compared, it becomes apparent that the Right of Way was carved out of the original Lot 9 on Section 37 (in the case of the portion from Albert Street), and each of original Lots 10 and 11 on Section 37 (in the case of the portion from Margaret Street). The Albert Street frontage of original Lots 8 and 9 was 225 feet, as was the Albert Street frontage of original
Lots 10 and 11. Lots 1–5 on RP1073 still had a combined Albert Street frontage of

225 feet, whereas Lot 6 on RP1073 was 200 feet in length. The remaining 25 feet
[17] AB 467.
was the Right of Way at the Albert Street leg.

The same comparison shows that the Margaret Street leg of the Right of Way and the Reserve was carved out of original Lots 10 and 11. Lots 10 and 11 were 200 feet in
length, but Lots 1–5 on RP1073 were only 180.5 feet long, the Right of Way was
18 feet wide, and the Reserve was the balance.
In so far as the Trustees’ intention in respect of the Right of Way was declared by the
resolutions and RP1073, in my view, several things are clear:

(a) it was not intended to be part of Lots 1–9;

(b)

it was not intended to be an easement, a concept recognised in the Real Property Act at the time; if an easement had been intended it would have been simple to say so;
(c) it was therefore not intended to be an easement for the benefit of Lots 1–9,
either separately or collectively;

(d) it was to allow persons to pass along it; so much is signified by the words
“Right of Way”;

(e)

since it was carved out of the original Lots, and it was not a separately registered Lot with surveyed metes and bounds, there was no boundary at either of the Margaret Street or Albert Street ends;[18]

(f)

it was not intended to allow access from original Lots 7 and 12, as the Reserve completely covered any common boundary between those two Lots and the Right of Way;
(g) it was not intended to be retained by the Trustees; the resolution was to sell all
[18] The lines appearing on RP1073 are plainly the vestiges of the boundaries of original Lots 9 and 11.
the land in the original Lots 8–11; RP1073 was the means by which that was

to be done; nothing in the resolutions or RP1073 suggests that the Trustees
intended to remain as proprietor over the land in the Right of Way; and
(h) in the same way, the Trustees did not intend to retain ownership of the Reserve; it was evidently designed to protect the integrity of the Right of Way, by preventing any access from original Lots 7 and 12; it was not designated as an easement for the benefit of any Lot.

The next step in chronological sequence was the actual sale of Lots 1–9.
On 21 September 1876, the Trustees met. The proposed auctioneer, Mr Cameron, had provided the terms of sale and proposed reserve prices for the lots. The Trustees resolved that:[19]
“Mr Cameron’s Reserves and proposed terms in connection with the
Alice St Property were approved.”
[19] AB 346.
At that meeting of the Trustees the members comprised: a Judge of the Supreme Court, the Attorney-General, the Clerk of the Legislative Assembly, three Members of the Legislative Assembly, three Members of the Executive Council, one Member of the Legislative Council, and the Secretary of Public Lands.
On 18, 19, 21, 22, and 27 September 1876, Mr Cameron published notices of the auction, including the terms of the sale.[20] Relevant aspects of what the public were told were:
[20] AB 273–275, 278–281.

(a) the sale was “By Order of the Trustees Brisbane Grammar School”, and on
“instructions from the Trustees”;

(b) the sale was of nine allotments;
(c) the sale was of “All those Pieces of Land described upon the Government Map
as Allotments 8, 9, 10, and 11 of Section 37”;

(d) it then said that said the “foregoing property” had been “subdivided into” nine
lots; the “foregoing property” was a reference to “All those Pieces of Land described upon the Government Map as Allotments 8, 9, 10, and 11 of Section 37”;

(e) that property had been “subdivided into NINE … SITES … each lot having a
back entrance”;

(f) purchasers were told they could “see the plan and obtain what information they
require by calling on the Auctioneer”; and

(g) the notice finished: “Title– Real Property Act”; in context that signified that
the title to be obtained by a purchaser was title under the Real Property Act
1861 (Qld).

I add that, as shown in paragraphs [64]–[65] above, if one looked at the Government maps it would be evident that “Allotments 8, 9, 10, and 11 of Section 37” included
the land that was labelled “Right of Way” and “Reserve”.
The notice was modified and repeated on 4 October 1876 in respect of the three lots
that had not sold on the first day.[21] The land was described as the “Unsold Balance of the Alice-Street Estate”, and “Three … Allotments”. That exercise was repeated
again for the auction of the two remaining lots on 9 October 1876.[22]
[21] AB 276.
[22] AB 277.
The auction included a plan of the lots.[23]

[23] AB 283.

As can be seen from the plan:

(a) no part of the nine lots to be sold included the Right of Way or the Reserve;
(b) the Right of Way was open to Margaret and Albert Streets; and
(c) neither the Right of Way nor the Reserve was described as an easement.

Given that the Trustees sanctioned the terms of sale in the auction notices, they can
be accepted to be a public expression of the Trustees’ intention with respect to the
auctioned lots. The features to note are:

(a) the nine lots to be sold did not include the Right of Way or the Reserve;
(b) buyers were told that each of the lots had a “back access”;
(c) self evidently, that was the Right of Way shown on the plan;
(d) the Right of Way was not described as an easement; and
(e) the form of title to be conveyed was title under the Real Property Act 1861 (Qld).

The only title under the Real Property Act 1861 (Qld) that a purchaser could get in
relation to the Right of Way (the “back entrance”) was an easement. But that was not
what was offered.
The next chronological step to consider is what followed upon the sale of the nine lots. Transfers under the Real Property Act 1861 (Qld) were executed to give effect to the sale of each lot.
The sale of the lots resulted in the Trustees resolving on 27 October 1876:[24]
“That the Chairman Sir James Cockle be requested to cause the seal
of the Corporation to be affixed to the memorandum of transfer on conveyance of the land in Alice & Albert Streets and to sign the
certificate required by the 114 sec. of the Real Property Act.”
[24] AB 287, 347.
That the seal had been affixed was also reported to the Trustees, for example:[25]
“The Secretary reported the affix of seal and Chairmans certificate to
conveyances of land in Alice Street to James Hunter the purchase
money having been paid.”
[25] AB 288, 348.
In each case, the certificate of title which issued in respect of Lots 1–9 recorded that the buyer was “seized of an Estate in Fee Simple, subject nevertheless to such
encumbrances, liens, and interests, as are by memorandum notified hereon …”.[26]
[26] AB 470 (Lot 1), 480 (Lot 2), 490 (Lot 3), 500 (Lot 4), 504 (Lot 5), 508 (Lot 6), 526 (Lot 7), 546 (Lot 8), and 544 (Lot 9).
In no case did the certificate of title record an easement reflected by the Right of Way or the Reserve. The Right of Way was referred to but only as part of the metes and bounds description of the lot. Given that certificates of title were issued for Lots 1-9, and none for the Right of Way, it must, in my view, be inferred that a deliberate decision was made to deal differently with the Right of Way, at least differently from the way the Lots were dealt with. The Trustees approved the subdivision plan that became RP1073 when it was filed. No lot number was given to the Right of Way on RP1073. That was not by accident or inadvertence as numbers were given to Lots 1-9. It was not advertised as being for sale. That was not by accident or inadvertence either, as the terms of sale were approved, and the Right of Way was not for sale. In the end, the Right of Way was left in the subdivision. None of those deliberate steps are consistent with the Trustees intending to exercise or retain rights of ownership over the Right of Way.
In 1886, the Trustees publicly signified their approval to the creation of the Reserve
as Lot 10, as part of the subdivision of original Lots 9–11 of Section 37. The Trustees’

consent to subdivision plan No 1074, which showed the Reserve as Lot 10, was added
on the face of the plan:[27]
“As proprietor of this land, I agree to this plan of subdivision.
For Trustees of Brisbane Grammar School
Charles Lilley Chairman.”
[27] AB 548.

The registered proprietor was Mr Hart. The certificate of title stated that Lot 10 was “Part of the allotments marked 9, 10 and 11 of section 37”.[28] The Right of Way was
identified on the subdivision plan and on the certificate of title, by use of the words
“Right of Way” immediately above Lot 10.
[28] AB 549, 551.
WCL accepted that the result of Mr Hart’s purchase of Lot 10 was that he was then
able, as he never was before, to access the Right of Way directly from his land, original Lot 7 on section 37. The trial judge made findings, with which I respectfully
agree, as to the import of Mr Hart’s purchase:[29]
[29] Primary Judgment at [31]–[32].

“[31] This is of some importance in the present case as commercially it would be a nonsense for Mr Hart to seek to traverse the 30cm reserve area onto an area to which he had no right to be, if the right of way were a private right of way or easement.
[32] It only made commercial sense for Mr Hart to acquire the reserve to enable him to access the right of way and then utilise the right of way as a means of access to his property, Lot 7, if
the right of way were considered a public thoroughfare.”

The Reserve was resumed by the Brisbane City Council on 24 September 1927, and dedicated for road purposes in December 1927.[30]
[30] AB 552.
What is necessary for a dedication?
The parties were agreed that the applicable test was that expressed in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council:[31]
“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 proferred dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road. The main exceptions are mortgagors, who require the consent of their mortgagees, and trustees and bodies corporate if they are not
empowered to do so.”
[31] (1960) 105 CLR 401 at 420.

That statement was adopted by this Court in a previous edition of this case.[32]
[32] Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521; [2020] QCA 198 at [28] (Orb Holdings).
As was accepted at the trial, a common law dedication of a road did not involve the creation of a proprietary interest in the land. It was also accepted that for the Trustees to have dedicated the Right of Way as a public road, they must have formed the requisite intention by 1923. This is because, on 1 January 1924, the law changed so that the dedication of land as a public road became a statutory rather than common law process.
In 1876, there was no formal step that was required to constitute a dedication, at common law, of land as a road. The position was explained in Palmisano v Hawse:[33]
“ ... At common law a public road was created by dedication of land
for that purpose by the owner of the land, whether the Crown or a private owner, and by acceptance by the public of the dedication. Dedication was not usually a formal act, but was to be understood from events such as leaving ways open to the public when constructing buildings or laying out subdivisions, referring to land as a road in a plan published in some way such as exhibiting it when lands are offered for sale, or even more usually simply by leaving the land open
for unobstructed public use for a lengthy period ....”.
[33] [2003] NSWSC 566 at [7].
While on the NSW Court of Appeal, McHugh JA made the following observations in Newington v Windeyer:[34]
[34] (1985) 3 NSWLR 555 at 559. Emphasis added.
“The dedication could be made expressly or be inferred from the
conduct of the owner. The lodging of a plan of 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 ... 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.”
An early acceptance of those general principles can be seen in Ex Parte Le Gould,[35] where Cockle CJ and Lutwyche J said:
“The Court agreed with Mr. Justice Chambre (the dissentient Judge in
Woodyer v. Hadden) that an unequivocal act of dedication, such as building a double row of houses opening into an ancient street at each end, and selling or letting the houses, would instantly make the
passage between the houses a highway...”.
[35] (1864) 1 QSCR 130 at 132–133.
It must be recalled that Sir James Cockle was the Chief Justice and Chairman of the Trustees at the time RP1073 was signed by him in 1876, creating by subdivision the nine Lots and the Right of Way. It is, in my view, undoubted that he was well aware
of the common law’s approach to a dedication of land for public road use. The same
can be said of Samuel Griffith and Charles Lilley.
Further, in my view, given the professions and positions of the Trustees,[36] the Trustees could not be taken to have been ignorant of the facts that:
[36] Cockle, Lilley, Griffith and Mein all lawyers; Bernays, Clerk of the Legislative Assembly, and Douglas, Secretary for Public Lands.

(a) the nine lots to be sold would attract title under the Real Property Act 1861 (Qld);
(b) the only way under that Act that the Right of Way might be made exclusively for the private use of the nine lots was by grant of an easement; and
(c) no easement was being created.

The term “Right of Way” was self-evidently deliberately used to signify that the land
comprised in that description, and identified on RP1073, was intended to create rights of way, i.e. rights of passage over that land from Margaret Street and from Albert Street. That was why the public notices of auction told intending buyers that they
would have “back access” from any of the nine lots. Access from the back of each of
the nine Lots necessarily required that the owner be able to walk or drive to and from Margaret Street and Albert Street. No right of way could have been given if that land was not open to both streets.
In my view, it is plain that the Trustees unequivocally intended that the “Right of Way” be used as a road giving access to both Margaret and Albert Streets.
However, WCL contends that it was not unequivocally intended for public use. For the following reasons, I disagree.
First, the term used to describe the land was a Right of Way. That phrase was used in:

(a) the subdivision plan RP1073;
(b) the plan advertising the sale of the Lots: see paragraph [73] above; and
(c) in the survey plan lodged to create the Reserve as Lot 10: see paragraphs [82]–
[83] above.

The trial judge found that term to be a “neutral feature”, because it could refer equally

to a private or a public right of way.[37] That is true,[38] but when seen with the other
[37] Primary Judgment at [67] and [171].
[38] Mayberry v Mornington Peninsula Shire Council (2019) 59 VR 383; [2019] VSC 623 at [76].
factors below, its use was plainly as a public right of way.

WCL submitted that neutrality was inconsistent with a dispositive intention. If all one had was a neutral act or neutral acts, that submission might have some force, but that is not the case here. Even a neutral act an take its colour from other acts.
Secondly, the Trustees plainly intended to sell off all the “Land in Alice Street”, meaning Lots 8–11 on section 37. That they did not intend keeping any back under the Trustees’ control is demonstrated by the subdivision plan RP1073, which dealt
with all of the land that had been Lots 8–11 on section 37.
Thirdly, the obvious way in which to restrict the right of access over the land would be by an easement. No part of what was planned by the subdivision contemplated that an easement would be granted to any of the nine Lots. The Trustees were well aware that easements could be granted, but chose not to do so.

[102] Surveying evidence at the trial was given as to what was required to create an easement in the 1870’s.[39] That was:
[39] Evidence of Mr Swane, AB 771 lines 1–32.

(a) the creation of a lot over which the easement could run;
(b) marking the boundary of the easement on the plan with black lines;
(c) noting the easement on the plan with the word “easement”, or some
abbreviation of the word;

(d) creation of an easement document setting out its terms; and
(e) notation of the easement on the title of the benefiting lots.

In my view, it cannot be the case that the failure to create the Right of Way by way of easements was because of any difficulty with the formalities involved, such as the creation of deeds describing the Right of Way as the servient tenement and the
adjoining Lots 1–9 as the dominant tenements, or the creation of a lot over the Right
of Way, or that s 51 of the Real Property Act 1861 (Qld) would have required any such easement to be registered. The Trustees had committed the arrangement of the sale to Mr Scott and Mr Bernays, and they went to a surveyor, Mr Gailey, to have the subdivision plan drawn.[40] Nine Lots were being created, and each would get title under the Real Property Act 1861 (Qld). It would have been easy to have easements drawn, had they been required.
[40] His name is on RP1073 as the surveyor.
Further, there are reasons why the Trustees would not have wanted to create an easement over the Right of Way. Doing so would have meant that the Trustees were obliged to maintain and manage it, even though they plainly intended to quit Lots 8-11 on section 37 entirely.
Fourthly, the subdivision plan RP1073, and the plan of the lots publicised for the
purposes of the auction, showed the “Right of Way” as open to, and connected with,

each of Margaret and Albert Streets. They visually represented a laneway or road
opening to each street.

Fifthly, the Right of Way was the means of “back access” for each of the nine Lots.
As the Trustees would have known, the Lots were obviously more attractive to potential buyers if they had access from the back as well as the street frontages. Those Lots were sold on the basis that their intended use could be commercial, as well as, or instead of, residential. The Trustees plainly intended the Right of Way to cater for the outcome that buyers could, and likely would, establish businesses on the Lots. Back access to such businesses necessarily envisaged that members of the public would use the Right of Way to reach the businesses, whether they be customers or delivery persons.
Sixthly, the desirability of “back access” to Lots 1–9 by way of a Right of Way open
to Margaret and Albert Streets was not something told only to the actual buyers of those Lots; the public notices of the auction told the world that fact. That meant that people wanting to do business with any commercial uses of the Lots were told the way they would gain back access to those businesses.
Seventhly, the Trustees took only one step which was designed to regulate use of the Right of Way. That was to include the Reserve as part of the subdivision plan. Its purpose was to prevent direct access to the Right of Way from Lots 7 and 12. Had the Reserve not been created, the owners of Lots 7 and 12, being land that adjoined the Right of Way, would have had a right to access it and enjoy it.[41]
[41] Owen v O’Connor [1964] NSWR 1312; (1963) 53 SR (NSW) 1051 at 1061.
That did not mean that the owners of Lots 7 and 12 could not use the Right of Way if they approached it from Margaret or Albert Streets.[42] It simply meant that they did
[42] As accepted by WCL: Appeal transcript 1-19 lines 23–26.
not have “back access” like Lots 1–9 did. WCL accepted that the impact of the
Reserve upon original Lots 7 and 12 would not defeat there being an intention to dedicate to the public, if that intention were found.[43]
[43] Appeal transcript 1-21 line 46 to 1-22 line 3.
The trial judge found that the Right of Way “was not large enough to carry high
volumes of traffic, which was likely to occur if Lot 12 were subdivided in a manner similar to the original Lots 8, 9, 10 and 11”.[44] That finding is not challenged. It adds
[44] Primary Judgment at [172].

support to the conclusion that the Reserve was directed at Lots 7 and 12, but the only
step taken to restrict public access.

There is no evidence that any other step was taken by the Trustees to prevent public access via the Right of Way. No fences were ever erected, and no signs were put up restricting the type of user. Until 1994, when title over the Right of Way was issued
in the name of “The Trustees of the Brisbane Grammar School”, there is no evidence
that the Trustees took any step whatever to deal with or control the Right of Way.
After the sale of Lots 1–9, there were no minutes of the Trustees that referred to the
Right of Way.
It was accepted at the trial that, at all times up to 2019, the laneway, or Right of Way, had been open to the public at either end. It was also accepted that no step had been taken prior to 2019 to exclude anyone from using the Right of Way. That supports
the conclusion reached above as to the Trustees’ intention. It fits within what
McHugh JA said in Newington:[45]
[45] Newington at 559.
“... 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 ...”.
Eighthly, the factors mentioned above plainly show, in my view, that the Trustees had no intention of retaining ownership of the Right of Way but, as a matter of grace and
favour, making it available to Lots 1–9 as a right of way. It cannot be rationally
concluded that the Trustees would have acted in a way that defeated that which they
had promised to purchasers of Lots 1–9. After all, the thing created was called a “Right of Way”, something inconsistent with the Trustees continuing to own the
land without granting rights of access, public or private. Whilst the owners of Lots 1-9 had their access to the back of their lots by the Right of Way, so did the
public who might wish to patronise businesses on Lots 1–9. Having advertised that Lots 1–9 would have back access by the Right of Way, it is objectively unlikely
that the Trustees failed to create those rights.
It is, in my view, risible to suggest that the Trustees intended to retain ownership of the Right of Way whilst at the same time creating even private rights over it. There is no rational basis upon which that could be their intent. WCL suggested that there was nothing inherently uncommercial about the Trustees retaining ownership and selling it later for valuable consideration. I do not accept that proposition. No rational buyer would purchase a piece of land which was burdened, as to the whole of its usable surface, by rights of way.
WCL contended that the absence from the Trustees’ minutes, or any notation on the
plan, of any express reference to the dedication being for public use, was a telling factor against a finding that the Trustees intended the Right of Way for public use.
As it was put, that the Trustees decided not to put the word “dedicated” on the plan

or refer to it in the minutes, but rather leave it to a matter of inference, was so unlikely
that it could be rejected.[46]
[46] Appeal transcript 1-8.

I do not accept that contention. The considerations referred to above make it plain that the Trustees comprehended that the public would access the Right of Way. That
was inevitably so if businesses were established on Lots 1–9, utilising the back access
that the Right of Way was expressed to give. There was no need for express words to be used in the resolutions when the subdivision plan RP1073 and the plan of lots for advertising to the public, made the position clear.
In any event, as Orb submitted, the absence of express words could cut both ways. It was not expressly said to be public, but equally not expressly said to be private. The considerations above compel the conclusion that the intention was a dedication for public use.
WCL also submitted that, in 1876, the words “right of way”, particularly when used
by lawyers, were directly associated with private rights rather than public roads. It was said that it was inherently unlikely that the Trustees would have used the phrase to describe something which they intended to be a public road. I do not accept that submission. The Trustees would have been well aware of the way in which land might be dedicated at common law: see paragraphs [91] to [93] above. It is true that, at that time, s 44 of the Real Property Act 1861 (Qld) referred to indefeasibility being
conferred upon “any right of way or other easement created in or existing upon the
same land”, but that was only if the rights were created under that Act. That did not
affect dedication at common law. The Trustees would have been well aware of the ways in which title could be established for an easement, and the formal steps to achieve that result. None of them were taken.
Nor does s 119 of the Real Property Act 1861 (Qld) take the matter further. It provided:
“Any proprietor sub-dividing any land … shall deposit with the
Registrar-General a map … such map shall exhibit distinctly
delineated all roads streets passages thoroughfares squares or reserves
appropriated or set apart for public use …”.
In my view, the term “delineated” governs what follows, namely those various things
appropriated or set apart for public use. In other words, such things must be distinctly marked on the map. The Right of Way was distinctly marked on the plan. There was
no requirement for it to be labelled as a “road”, “street”, or any of the other variants.
Nor was there any requirement for it to be made plain, on the face of the plan, that the road was being dedicated for public use. That would go beyond the meaning of
the word “delineated” which, in context, means marked or drawn, as in lines, edges
or boundaries.
The same conclusion was reached in respect of the same argument by WCL in this Court’s decision in Orb Holdings:[47]
[47] (2020) 5 QR 521; [2020] QCA 198 at [33]–[34].

“[33]

It is convenient at this point to discuss an argument, by WCL, that any dedication of this land, by the registration of RP1073,

was not a dedication of a ‘road’, as distinct from a ‘street’, ‘passage’ or ‘thoroughfare’. The argument is based upon the

terms of s 119 of the Real Property Act 1861 (Qld), as they were when RP1073 was registered. Section 119 required a plan of
subdivision to ‘exhibit distinctly delineated all roads, streets,
passages, thoroughfares, squares or reserves appropriated or set
apart for public use …’. The argument is that although RP1073

distinctly delineated this land, it did not distinctly describe it as a road, as distinct from a street, passage or thoroughfare. Therefore, it is suggested, it was not a road for the purposes of s 369 of the Land Act 1962.

[34]

That argument cannot be accepted. Section 119 Real Property Act 1861 did not require RP1073 to distinguish this land as, for example, a road rather than as a street. But in any case, the
registration of RP1073 was not the only basis for the judge’s
assumption that this land had been dedicated at common law.

And the land was clearly within the defined meaning of a ‘road’ under the Land Act 1962.”

WCL submitted that a fair reading of the advertising for the sale of the Lots leads to the conclusion that the lots were primarily marketed by the Trustees as prestige residential allotments.[48] I do not accept that submission. The notices for the auctions stated that there were nine lots opposite the Botanic Gardens, having frontages to Alice, Albert, and Margaret Streets, and adjoining the residence of Mr Hart. Then, in that part of the notice in which purchasers would have greatest interest, the terms of
[48] Outline paragraphs [64]–[67].
sale rather than the advertising blurb, the notices referred to the lots as “NINE CHARMING RESIDENCE SITES” and “each lot having a back entrance”, but went
on to state:[49]
[49] AB 273. Emphasis added.
“OUTSIDE QUEEN-STREET, and perhaps Edward and Eagle
streets, there is no spot in the city that can vie with these properties so far as present or prospective value is concerned. The position is, from its peculiar surroundings, equally well adapted for private residence or business purposes, and, from the very favourable formation of the land, the former can be erected at the rear on a good elevation, while the frontage to Albert-street can be built upon with
shops without necessitating a shilling outlay for excavation.”

The Trustees approved those words. The Lots were therefore sold by the Trustees on
the express basis that they were equally well adapted for business use. WCL’s
submission ignores those parts of the notices which, for the reasons set out in
paragraphs [94] and [106]–[107] above, are important. That is shown by the fact that
within a relatively short time, business had been established using the Right of Way:
see paragraphs [127]–[129] below.
Was the dedication accepted by the public?
The trial judge found that the evidence pointed fairly plainly to the fact that the public had accepted the dedication. His Honour observed that:

(a)

at all times, the entrances to the Right of Way (which his Honour called the Laneway) were open to the public;

(b)

the Laneway was situated in a busy part of the growing township of Brisbane, and was utilised by a number of industrial concerns including a flour mill and a large engineering concern;

(c)

there was a large Masonic Hall, utilised for large public meetings and events, which had stables and buggy houses which could only be accessed from the Laneway; and

(d)

the then Brisbane Municipal Council had expended public funds maintaining and improving the Laneway and, otherwise, had exercised control over the Laneway.

There was evidence at the trial of public use.
The trial judge found, and it is not challenged, that:[50]
[50] Primary Judgment at [112].
“… it may be accepted that the industrial phase from the 1880s to 1910
was the busiest period of probable public use of the land due to presence of the Masonic Hall and the businesses of A Overend & Co
and the Queensland Milling Company.”
A Masonic Hall was built on one of the lots in 1886. The trial judge accepted the
evidence of Dr Beanland that it was used for large public functions attended by “some hundreds of persons”. Those events included art shows by the Queensland Art
Society, and other major functions.[51]
[51] Primary Judgment at [113]–[114].
Dr Beanland’s evidence was that the Masonic Hall had stables and buggy houses at
the rear which could only be accessed by the Right of Way. The size of those stables and buggy houses indicated to Dr Beanland that they were intended for use by visitors to the Masonic Hal1. The primary judge accepted that evidence and reasoned that:[52]
[52] Primary Judgment at [114].
“Historical documents that are available in respect of the subject land
do lead me to conclude that Dr Beanland’s opinion ought to be
accepted, that the laneway the subject of Lot 11, which was open to
the public, was in fact regularly used by public.”
No substantive basis has been shown to disturb these findings.
The trial judge also accepted evidence that during the “industrial phase” of the use of Lots 1–9, it was a busy, industrial area which was likely to attract many people.[53]
[53] Primary Judgment at [107].
There was evidence from historian witnesses to that effect.[54] His Honour rejected the contrary view advanced by Dr Cook:[55]
[54] Primary Judgment at [104]–[108]. Though some general criticism was made before this Court of the use of historians’ opinions drawn from historical records, there is authority to support the admissibility
[55] Primary Judgment at [108]–[109].

“[108] … That some persons would utilise the laneway cannot be

discounted as a general proposition, nor the likelihood that members of the public might simply wish to satisfy their curiosity by walking the laneway to see what was there. This would apply generally but also in times of the construction of the very substantial buildings which occurred in and about the subject land.
[109] The second reasoning deployed by Dr Cook, that persons of the public would not wish to traverse upon an area which is a busy working site, suffers from the irony, as it was put by senior counsel for the applicant, that it is to argue that the area was so busy and so frequently attended upon by so many different types of persons that others would be unlikely ... [to] use Lot 11 as
a thoroughfare.”

There is no basis to reject those findings.
There was ample evidence to support the trial judge’s finding that the Right of Way
was used by members of the public, other than just occupiers and invitees of Lots 1-9. In any event, as was said by Windeyer J in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council, where the intention to dedicate the land is apparent on the face of the subdivision plan, not much public use is necessary:[56]
[56] (1960) 105 CLR 401 at 423; [1960] HCA 62. Emphasis added.
“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.”
Apart from the evidentiary basis for the trial judge’s conclusion, the same conclusion
might be drawn as a natural inference from the uncontroversial fact that the Right of Way was always open at either end, and not fenced. In Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors,[57] the New South Wales Court of Appeal said:
[57] [1999] NSWCA 347 at [48]–[52] (Stein JA, Priestley and Beazley JJA agreeing).

“48

The absence of any evidence of gates at the George Street entry to the lane also tends to support the likely use by members of the public. That is, that the road was left open for use by the public. The absence of fencing off of a road has been seen as important to the issue of dedication. See Harvey J in Attorney General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; Sugerman J in Owen v O'Connor (1963) 63 SR (NSW) 1051 at 1053 and Newington v Windeyer at 559. Young J believed that there was a presumption in relation to roads connecting to a public street being open to all, so that if they were not fenced off, they were to be properly regarded as open to the public. He cited Menzies J in Permanent Trustee Co of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401 at 415.

49

I am unsure whether what Menzies J said about roads left in subdivision rises to a legal presumption. However, his approach is a realistic one. I agree that it is an artificial and unreal approach to treat such roads as private unless access to the public is prevented.

50

The Permanent Trustee case also assists the Council in so far as it may indicate that not much evidence of use of the lane by members of the public is required to satisfy the deemed dedication in the statutory provision. See in particular Windeyer J at 423. Moreover, it must clearly be kept in mind in this case that use as a footway by members of the public is sufficient. Consistent with Newington v Windeyer, use by mere invitees or licensees will not suffice.

51

I think that Young J was well entitled to conclude that the subject lane was used by the public between 1860 and 1879. He found that it had been so used as a carriageway although, as I have mentioned, use as a footway only would have been
sufficient. The plans before the court, particularly Dove’s

plans, leave ample room for inferences of public use, taking account of the obviously extensive commercial activity, including many nearby hotels.

52

The lack of any cogent evidence of gating-off the lane also assists in drawing the inference of public use. The conclusion is aided by Menzies J reference in Permanent Trustee to use by the adjoining landowners being regarded as use by the public
(see 415).”

Use by occupants and invitees enough?

WCL submitted that acceptance by the public had to be use by the public as though
it were “as of right”. It was said that use of that kind is not established by proving

that a way has been used by occupants of adjacent lots and their invitees, as that is
equally attributable to an implied permission.[58]
[58] Outline paragraph [13].

WCL relied upon Newington v Windeyer,[59] where it was said:
[59] (1985) 3 NSWLR 555 at 562.
“Use of a road by the adjoining occupiers, their friends, visitors and
tradesmen is not enough to convert a road into a public road. In that class of case, the use of the road by invitees and licensees is by the permission, express or implied, of the occupiers. This is the antithesis of the right to enter which is the hallmark of the public highway ... the
appellant’s case is not strengthened by evidence that the occupiers and
their invitees or licensees use, or have used, The Grove. It does not prove public user and provides no foundation for inferring an intention
to dedicate the land as a public road.”

[137] Reliance was also placed upon Weber v Ankin,[60] where the Court referred to entitlements to use under a dedication of a road:
[60] (2008) 13 BPR 25,231; [2008] NSWSC 106 at [65].
“[a dedication] would entitle all members of the public, not particular
individuals or classes of individuals, to use the road.”

The ultimate resolution of this question depends upon what the evidence reveals about use of the Right of Way, or Beatrice Lane. Was it use by the public, or just invitees? And if they were invitees, were they invitees of the businesses or owners of Lots 1-9, or someone else? For that issue, one needs to ask of any user: by what right are they using the Right of Way?
However, in order to properly assess that question, one needs to understand the legal framework.
On the assumption that there was a dedication to the public, it was by the Trustees. The Trustees were the owners of the land before the subdivision in RP1073, and since the area of land comprehended in the Right of Way was neither a Lot nor sold at auction, they remained owners thereafter until Lot 11 was sold in 2008. It is the Trustees who dedicated the land to public use, not the individual Lot owners who purchased from the Trustees.
As to the use of the Right of Way, there are several categories to consider:

(a) the owners of Lots 1–9;
(b) invitees and licensees of those Lot owners and their businesses;
(c) invitees and licensees of the Trustees; and
(d) the public.

The owners of Lots 1–9 fall into the category of adjoining owners, as that phrase was
used in Newington. So too, the invitees and licensees of the adjoining owners, Lots 1-9, fall into the category whose use is insufficient to establish public use and thereby acceptance of the dedication: see the passage from Newington in paragraph [136] above.

[143] In Newington, the identification of those invitees and licensees whose use was disqualified did not depend on them being invitees and licensees of the owner of the land called The Grove. To the contrary, they were invitees and licensees of the adjoining owners, none of whom were or had ever been the owner. On that basis, I would reject the contention advanced by Orb that the relevant disqualification only applied to invitees and licensees of the Trustees, because the Trustees were the owners of the Right of Way.

Therefore, evidence of use by the invitees and licensees of the business established along the Right of Way will not suffice to prove the requisite use by the public.
Evidence of use by the public
The trial judge accepted the evidence of a number of witnesses who deposed to aspects of use by the public.
Use from 1963 was established by Mr Matthews.[61] He said that members of the public used Beatrice Lane (as the Right of Way was then known) to access buildings on original Lot 12,[62] which was a carpark. The carpark was used by the public. In the face of only gentle challenge to his evidence, he said that Beatrice Lane had experienced a lot of public use since 1963.
[61] Primary Judgment at [80]–[85], [177]–[178].
[62] Lot 12 was never an adjoining owner of the Right of Way in the sense used in Newington.
That evidence was, it is true, disconnected in time from the 1924 cut-off and earlier. However, it was open to find that it was a continuation of a use which had long prevailed, and thereby supporting the conclusion that similar use occurred prior to

1924. That view was shared by Dr Cook, who agreed that the “pattern of usage that
had been established in the 1910s and 20s just continued” into the 1960s.[63]
[63] AB 754; Trial Transcript 2-66 lines 12–17.

Historians, Dr Beanland and Dr Cook, gave evidence of the results of their researches. The trial judge accepted their evidence, preferring Dr Beanland on the question of public use.[64] Part of the evidence was as to:
[64] Primary Judgment at [88]–[90].

(a)

the Masonic Hall built on Lots 8 and 9, its visual beauty and functions held there;[65] and

(b)

the industrial phase involving A Overend & Co, an engineering business on the corner of Alice and Albert Street, and the Queensland Milling Company flour mill on Lots 4 and 5; the mill was described as an imposing five level building and Brisbane’s first flour mill.[66]
[65] Primary Judgment at [101]–[104], [179].
[66] Primary Judgment at [105]–[106].

The trial judge found that:
“[107] The heavy use to which the area was put in the industrial period from the 1880s to 1910, in my view, supports the conclusions of Dr Beanland that the laneway area of Lot 11 has always been
open to the public [and] was commonly used by the public.”
His Honour also noted that it was common ground that Lot 11 was open to the public until 1994.[67]
[67] Primary Judgment at [178].
The trial judge rejected the two reasons proffered by Dr Cook for concluding that Lot 11 was not used by the public. The first was that the laneway did not actually provide a shortcut. As to that, his Honour noted that Lot 11 was always open and found:[68]
[68] Primary Judgment at [108].
“That some persons would utilise the laneway cannot be discounted as
a general proposition, nor the likelihood that members of the public might simply wish to satisfy their curiosity by walking the laneway to see what was there. This would apply generally but also in times of the construction of the very substantial buildings which occurred in
and about the subject land.”
The second was that the public would not wish to traverse upon an area which was a busy working site. As to that his Honour found that the point:[69]
[69] Primary Judgment at [109]. Citations omitted.
“ … suffers from the irony, as it was put by senior counsel for the
applicant, that it is to argue that the area was so busy and so frequently attended upon by so many different types of persons that others would
be unlikely ... [to] use Lot 11 as a thoroughfare.”
More generally, his Honour found:[70]
[70] Primary Judgment at [111].
“[111] … with such large businesses, or the use of the Masonic Hall by many persons, the nature of the use of the laneway to all intents and purposes would take the appearance of being a public laneway. It would, in my view, be extremely difficult to accept that a member of public, seeing dozens of persons access an open laneway area which appears as an ordinary road, would
think that area was not a public roadway and use it as such.”
Some of the evidence of public use was referred to by the trial judge when dealing
with Dr Beanland’s research:[71]
[71] Primary Judgment at [182]–[183]. Citations omitted.
“[182] As to the other evidence, Dr Beanland points out that in the April 1889 Brisbane Municipal Council minutes correspondence from A Overend & Co was responded [to] by the council pointing out the right of way was private property. That correspondence does suggest that Lot 11 was not considered a public road in 1889. However, by 1896 (page 362) Brisbane Municipal Council enquired of the Queensland Milling Company (an owner in the area), in respect of a weighbridge that the Queensland Milling Company sought
permission to fix in Beatrice Lane behind their premises, ‘if the machine was likely to obstruct the lane for general traffic’ and
stating that a small fee would have to be paid annually. The
Queensland Milling Company replied ‘that the weighbridge
would not cause the least obstruction and they were willing to
pay any reasonable fee’.
[183] This correspondence from Brisbane Municipal Council shows that by August 1896 the council considered that the subject lot was a laneway for general traffic. As until recent times the laneway was in fact open to the public, has been used frequently, at least since 1974, by the public and was considered, at least by 1896, to be a general laneway for public use. I find that the public did accept the proffered dedication by the trustees of Brisbane Grammar School of the subject land as
a public road.”
Ultimately, the trial judge concluded:[72]
[72] Primary Judgment at [114].
“[114] … Historical documents that are available in respect of the subject land do lead me to conclude that Dr Beanland's opinion ought to be accepted, that the laneway the subject of Lot 11, which was open to the public, was in fact regularly used by
public.”
In summary, the trial judge accepted evidence that showed the dedication had been accepted by the public because:

(a)

at all times, the entrances to the Right of Way from both streets were open to the public;

(b)

the Right of Way was situated in a busy part of Brisbane, and was utilised by a number of industrial businesses, including a flour mill and a large engineering firm;

(c)

there was a large Masonic Hall, utilised for large public meetings and events, which had stables and buggy houses which could only be accessed from the Right of Way; and

(d)

the then Brisbane Municipal Council had expended public funds maintaining and improving the Right of Way and, otherwise, had exercised control over the Right of Way.
Evidence from Dr Beanland
[157] Dr Beanland’s research produced documents, the admissibility of which was not
challenged, which revealed:

(a) the Masonic Hall constructed on one of the lots by about 1886 was used for
large public functions attended by “some hundreds of persons”;

(b) those events included the annual art shows of the Queensland Art Society and other major events;
(c) it was noted by Dr Beanland that the Masonic Hall had stables and buggy houses at the rear which could only be accessed by the Right of Way;
(d) the size of those stables and buggy houses indicated to that they were intended for use by visitors to the Masonic Hall; and
(e) it was a busy, industrial area which was likely to attract many people; that was a view with which both historians agreed.

As noted above, it is the case that, in the circumstances, “no great amount” of public
use was necessary. As Windeyer J said in Permanent Trustee:[73]
[73] (1960) 105 CLR 401 at 423.
“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.”
Is an actual intention on the part of the Trustees required?
The genesis of this point of contention was the trial judge’s reasoning as to the
significance of commercial benefit and detriment to the Trustees in respect of the Right of Way, and the weight of such matters on the drawing inferences as to intention:[74]
[74]           Primary Judgment at [165] and [173]–[175]. Footnotes omitted.
“[165] The only commercial benefit for the trustees to remain owners of the fee simple could arise in circumstances where the owners wish to sell the fee simple in the right of way, but in good conscience they could only do that to a buyer who purchased each lot of the subdivision, that is, to re-amalgamate the entire parcels of land. Having just embarked upon a commercial exercise they judged best for the return of their investment in the subject lands, it did not make commercial sense of the trustees to envisage that at any time in the near future a person would wish to effectively undo the subdivision which the trustees had embarked upon. If the trustees were to act as they ought to, in an orthodox, lawful, commercial and honourable way, the only proper inference is that the trustees intended to dedicate the right of way as a public road.
…
[173]     The alternative proposition urged by the respondents is that the trustees of the Grammar School did not intend to dedicate the right of way as public land but wished to continue as the owners of the fee simple faces numerous hurdles. First is that the trustees deliberately overlooked paying the rates, in effect tricking the Brisbane Municipal Council into believing the right of way was a public road, when it was not.
[174]    The second is that the trustees deliberately avoided their obligations to the purchasers of Lots 1 to 9 of the subdivision by failing to create the right of way as a reserve and failing to create and properly document upon the certificates of title the easements that would have secured the rights of each of the owners of the dominant tenements. Such a position does not sit well with trustees acting honestly.
[175]     The first respondent is then forced into a position to argue that it was not dishonesty, but rather, inattention, a lack of interest, inertia or ignorance that lead to an oversight, or simply indifference with respect to the rights of the land. It is further argued that the trustees were ignorant, indifferent or careless in relation to the rights in respect of Lot 11. The acceptance of those submissions is most unattractive and I cannot accept them, in view of the calibre and position of the trustees of the Brisbane Grammar School at the relevant time involved in the creation of
Lots 1 to 9 on RP1073.”

the area of the Right of Way to include “new roads” in August 1980;[217] and
[217] Pozzi Report, pages 50–51.

(c)

the ongoing maintenance and control of the Right of Way through to current times.[218]
[218] Affidavit of Walker, Ex LIW-41.

In Permanent Trustee,[219] Windeyer J said that a declared intention to dedicate is:
[219] At 422.
“... ripened into dedication ... by a public body having authority to take
it over on behalf of the public doing so, by for example, expending
money in forming it or maintaining it as a road.”
More recently, it was said in Anderson v Stonnington[220] that:
[220] (2017) 227 LGERA 176; [2017] VSCA 229 at [92].
“The expenditure of public funds to maintain and repair land is
evidence that the land has been dedicated as a public highway, as well
as evidence of acceptance by the public of such dedication.”
Further, the assumption of responsibilities and exercise of powers by a local authority are matters that support the inference of an acceptance of dedication. In Weber v Ankin,[221] White J said:
[221] [2008] NSWSC 106 at [72].
“Windeyer J gave the expenditure of money by the public authority on
the road as an example of how the authority could take over the road. Clearly, his Honour did not say that such expenditure was the only way in which that could be done. Under both the Municipalities Act 1867 and the Local Government Act 1906 a council had the control and management of a road in its municipality only if the road had become a public road, and was only potentially liable to maintain the road if the dedication of the road as a public road had been accepted. It follows that, in theory at least, acceptance of the road as a public
road should precede the council’s expenditure on it. Expenditure is
evidence from which the inference of acceptance should be drawn.”
The evidence from Dr Beanland as to the businesses selling to the public and public events being held at the Masonic Hall show that members of the public attended and used the Right of Way, as distinct from those who might strictly be termed invitees or licensees. There is no rational basis to exclude those members of the public attending businesses or public events at the Masonic Hall from the class of public use for the purposes of testing whether there has been public acceptance of a dedication to public use.
In any event, there is authority that use by such persons is not precluded from being sufficient to presume dedication. As Menzies J observed in Permanent Trustee:[222]
[222] At 415. Emphasis added.
“... unless access is prevented by fencing or otherwise, roads shown
upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means
of passage by any members of the public, whether owners of land
in the subdivision or not, then it is a public road: Attorney-General
v. The City Bank of Sydney (1920) 20 SR (NSW) 216: 37 WN 51.”
That proposition was accepted as correct by the NSW Court of Appeal in Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors.[223]
[223] [1999] NSWCA 347 at [52].
Inferences as to use by the public can also be drawn from the fact that the Right of Way was:

(a) open to the road network and not fenced off; and
(b) consistently shown on road maps as being part of the road network.

As was made clear in Newington v Windeyer,[224] road maps can be used to draw an inference about public use. Common human experience would suggest that where a laneway in the centre of Brisbane is open to the public it is likely to be used, even if only because of curiosity by passers-by or a desire to avoid a more heavily
[224] Newington at 562.
trafficked area. Mr Matthews’ evidence showed that just that had been the observed

position since 1963. That provides a basis to infer that it was no different throughout
the period in which this area had been developed.
Conclusion on the appeal

Consistently with the foregoing reasons, I consider that the evidence establishes that the Trustees intended, when they subdivided and sold the land bordered by Margaret, Albert, and Alice Streets, to dedicate the Right of Way as a road for public use. Moreover, there was consistent public use thereafter, and the Trustees acquiesced in that use.
The appeal must be dismissed, with costs.
The Cross-Appeal
The Second and Third Respondents (the State of Queensland and the Registrar of Titles) bring the cross-appeal against the form of the declaratory relief granted by the primary judge. Orb made submissions in answer to the cross-appeal but only to provide a contradictor.
The orders made were:

(a) the land described as Lot 11 RP1073, also known as Beatrice Lane, has been dedicated as, and is a public road;
(b) by operation of s 369 of the Land Act 1962 (Qld) (repealed), the land described as Lot 11 on RP1073 known as Beatrice Lane, vested in and remains vested in the Crown.

The thrust of the cross-appeal is that sub-paragraph (b) operates to vest the entirety of Lot 11 in the Crown, whereas at common law the effect a dedication of land as a public road meant that the owner retained all proprietary rights subject only to those rights necessary to enable public use of the road and its maintenance. Hence, it was said, the proper form of declaratory relief should vest no more in the Crown than the limited rights, not the entire lot. It was submitted that an appropriate form of the declaratory relief was:

(a)

the land described as Lot 11 on RP1073 has been dedicated as, and is, a highway at common law;

(b)

by operation of s 369 of the Land Act 1962 (Qld) (repealed), the land in the highway so dedicated vested in, and remains vested in, the Crown.

The Right of Way was dedicated prior to 1923. In 1924, an amendment was made to the Local Authorities Act 1902 (Qld) which ended any further dedication, at common law, by private landowners of new roads.
The land which had been dedicated by the Trustees, and which I have called the Right of Way in these reasons, became vested in the Crown upon the enactment of the Land Act of 1962 (Qld). Section 369 of that Act provided:
“Roads dedicated to the public by private persons (1910, s. 196)
369. All land which, having been before, is at the commencement of this Act, or which may on or after the commencement of this Act be, dedicated by the owner thereof, not being the Crown, to public use as a road shall, by virtue of such dedication be vested (and in the case of land so dedicated before the commencement of this Act, is hereby declared to have always been vested) in the Crown and may be dealt with in the same manner as roads which have been dedicated to public
use by the Crown.”
It is submitted by the cross-appellants that this Court, in a decision in an earlier episode of this case,[225] held that the public right of use of a highway is independent
[225] Orb Holdings (2020) 5 QR 521; [2020] QCA 198.
of the ownership of the soil. Further, it was held that the Crown’s ownership upon
vesting was different from ownership of a fee simple under the Real Property Act.
In that decision, McMurdo JA,[226] referring to Brodie v Singleton Shire Council,[227] Attorney-General (Quebec) v Attorney-General (Canada),[228] and Buckle v Bayswater Road Board,[229] said:[230]
[226]         With whom Boddice J agreed.
[227] (2001) 206 CLR 512 at 565–566 [119].
[228] [1921] 1 AC 401 at 409.
[229] (1936) 57 CLR 259 at 281.
[230]         Orb Holdings (2020) 5 QR 521; [2020] QCA 198 at [42]–[45]. Citations omitted.
“[42] The reasoning in these authorities cannot be distinguished in this case. Until the enactment of s 369, the fee simple in Beatrice Lane was vested in the trustees of the Grammar School. However, on the assumed facts, there were co-existing public
rights to use the land, which were independent of the trustees’
ownership. In 1962, the land became vested in the Crown, but
‘subject to the rights of the public to use [it] for passing and re-
passing’, to adopt the words in that passage in Brodie.
[43]      If this land was dedicated as a public road, by definition there were public rights to use the land. The trustees, as the owners of the fee simple, were subject to these rights, although they held a Torrens title. That accords with the opinion of Sir George Rich, sitting as a judge of the Supreme Court of New South Wales in 1911, in Vickery v Municipality of Strathfield, a case which has been followed consistently in that State and in Victoria, and which, as already noted, was approved in Brodie.
[44]      With respect to the primary judge, it cannot be accepted that
there was a conflict, actual or potential, between the Crown’s
ownership of the land and the rights of the public to use it as a road. It was for the very reason that this land had been dedicated for public use that, by s 369, it became vested in the Crown. The land could be dealt with by the Crown in the same manner as roads which the Crown had dedicated to public use.
Under s 362, Crown land could be dedicated ‘as a road for public use’. Where that occurred, the land remained vested in
the Crown, and what changed was that the public was entitled to use it. In cases of roads vested under s 369, the public rights
were maintained, by the particular nature of the Crown’s
ownership of the land.
[45]     The Crown’s ownership thereby differed from the fee simple of
a proprietor under the Real Property Act 1861. The public rights could be removed only by the provisions of the Land Act which allowed for the closure of roads. The Crown was not free to
deal with the land as it wished.”
I shall return to the implications of Orb Holdings later.
The cross-appellants also submit that the language of s 369 of the Land Act of 1962 (Qld), properly construed, only vests the bundle of rights necessary to preserve the
public’s right to use Lot 11 as a road. In support of this contention, they relied on the

decision in H Jones & Co Pty Ltd v Kingsborough Corporation,[231] where Dixon J
said:[232]
[231] (1950) 82 CLR 282.
[232] H Jones at 320.
“Statutes which vest in a public authority highways, sewers and other
artificial works ... serving a definite public purpose, open to public use or access as of common right, have received a construction according to which the authority takes less than the full property in the site, less than property unlimited in point of altitude or depth. The operation of the statutory vesting is considered as confined to the purpose to be fulfilled. The subsoil beneath a street so vested becomes the property of the authority only to so far down as is reasonably incidental to the construction and maintenance of the highway and to its proper control. There is a corresponding limitation upwards on the rights which would
arise from ordinary ownership of land. …”

That led to the cross-appellants’ ultimate submission:[233]
[233] Second and Third Respondents’ Outline on the cross-appeal, paragraph [17].
“As such what vests in the Crown is not the entire fee simple in Lot 11
but the bundle of rights necessary to preserve the public’s right to use
Lot 11 as a road. It is then for the Crown to deal with those rights in accordance with the statute. The declaration proposed by the Second
and Third Respondents gives best effect to that principle.”
Consideration
Ultimately, the resolution of this issue turns upon the proper construction of s 369 of the Land Act of 1962 (Qld). It will be recalled that it relevantly provided:
“All land which, having been before, is at the commencement of this
Act … dedicated by the owner thereof … to public use as a road … is
hereby declared to have always been vested … in the Crown …”.
The provision was enacted in 1962, at a time when the Torrens system had long been established, and the Real Property Act 1861 had been in force for nearly a century. It was plainly enacted in full knowledge of that Act and how the system of title by registration operated.
The proper construction of s 369 requires analysis commence with a consideration of the text itself, seen in its context.[234] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.
[234] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381–382 [69]–[70].
There are several matters to note about s 369.
First, the focus of the provision is on “land”. But it only applies to certain land, namely “land” which has been “dedicated by the owner thereof … to public use as a road”. Thus, it proceeds upon the basis that the thing which has been dedicated is “land”, not the “road” which is the product of the dedication.
Secondly, s 5 of the Land Act contained a definition of the term “road”:
“‘Road’––Any road, whether surveyed or unsurveyed, dedicated, or
notified or declared in any manner howsoever to be a road for public use, and any road comprised of land taken, pursuant to any enactment, for the purpose of a road for public use.
The term includes–

(a) any road, street, esplanade, reserve for esplanade, parade, promenade, avenue, crescent, drive, lane, highway, pathway, footway, thoroughfare, track or stock route; and
(b) any part of any road or any bridge, causeway, culvert or other works in, on, over or under any road or any part of any road
within the meaning of this definition;”

The Act did not contain a definition of “land”, though it did define “Crown land”:
“‘Crown land’—All land in Queensland, except land which is, for the
time being—

(a) lawfully granted or contracted to be granted in fee-simple by the Crown; or
(b) reserved for or dedicated to public purposes; or
(c) subject to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be
deemed to be Crown land;”

Self-evidently, the term “road” is given a meaning quite distinct from the concept of “land”.
Thirdly, it follows that s 369 draws a distinction between the “land” and the “road” which is the product of the dedication. It is “land” which is dedicated, not the “road”.
Fourthly, the distinction between the “land” and the “road” is maintained when the subject matter of the vesting is considered. It is the “land” which vests, not the “road”.
Fifthly, that distinction (that is, between the “land” which is dedicated and the “road” which is not) is one that has its foundation in the common law. It was the owner’s
land that was dedicated, not the road itself.[235] And, both intended dedication and acquiescence sufficient to turn long public user into actual dedication had to come from “the owner of the fee” or “proprietor”.[236]
[235] Permanent Trustee (1960) 105 CLR 401 at 420; Newington v Windeyer (1985) 3 NSWLR 555 at 558.
[236] Folkestone Corporation v Brockman [1914] AC 338 at 352; Poole v Huskinson 11 M & W, 827 at
Sixthly, construction of the word “land” in s 369 as referring to the incorporeal

hereditaments comprised in the rights to use the road does not find support in the
context in which s 369 exists.

Section 363 permitted the owner of any land, held in fee simple, and adjoining a road not required for public use, to apply to have the road closed. If the road was permanently closed, then s 365 enabled the Governor-in-Council to sell to the
adjoining owner, or issue a fresh deed of grant for, “the land … comprised in the closed road”: s 365(a)(i) and (ii). That approach necessarily meant the creation of
titles under the Real Property Act. If “land” meant only the rights held by the public
at common law, there was nothing to sell or register. Those rights ceased at closure.
And, the “land” referred to is the “land comprised” in the road. That is an odd

description if it refers only to the common law rights to the surface and rights of
maintenance.
[369] Further, s 368 permitted the Governor-in-Council to notify that a road was
permanently closed. When that occurred, the “land comprised in such road may be dealt with and disposed of as Crown land under this Act”. In my view, that is inconsistent with the limited construction of “land” advanced by the cross-appellants.
[370] At the time s 369 was enacted, the law was clear as to the distinction between ownership of land and the rights enjoyed by the public in respect of the use of a road. For example, in Rangeley v Midland Railway Co,[237] Lord Cairns said:
[237] (1868) 3 Ch App 306 at 311.
“… a public road or highway is not an easement, it is a dedication to
the public of the occupation of the surface of the land for the purpose
of passing and repassing …”.

Thus the rights enjoyed by the public were and are incorporeal rights, not proprietary rights.[238]
[238] R (Smith) v Land Registry (Peterborough) [2011] QB 413 at [38]; Municipal District of Concord v Coles (1906) 3 CLR 96 at 110.
The legislature can be taken to have enacted s 369 well aware of the law at the time. As Sofronoff P said in Orb Holdings:[239]
[239] At [3].
“Section 369 Land Act 1962 was enacted long after the Torrens system
was established in this State and so that provision was enacted as part of a system of land title management that contemplated the
indefeasibility of a registered interest.”
It can therefore be seen that s 369, by maintaining the distinction between the “land”
that is “dedicated” and vested, and the “road” which is not, directed the operation of
the provision at the “land”, and not at the incorporeal rights comprehended by public
use of a “road”.
Further, as this Court recognised in Orb Holdings,[240] s 369 had the evident purpose of seeking to overcome the practical and legal difficulties associated with the Crown not having ownership of lands dedicated as public roads.
[240] At [41]–[42] and [44].
These considerations compel the conclusion, in my view, that the proper construction
of s 369 is that the reference to “land” is not to the bundle of rights comprehended by
the road, but rather to the fee simple of the land on which the road exists. Here, because Lot 11 was entirely consumed by the Right of Way, there is no consideration of the road being only over part of the land otherwise.
That conclusion was one reached by this Court in Orb Holdings:[241]
[241] At [42] per McMurdo JA, Sofronoff P and Boddice J agreeing. Emphasis added.

“[42] The reasoning in these authorities cannot be distinguished in

this case. Until the enactment of s 369, the fee simple in
Beatrice Lane was vested in the trustees of the Grammar School. However, on the assumed facts, there were co- existing public rights to use the land, which were
independent of the trustees’ ownership. In 1962, the land
became vested in the Crown, but ‘subject to the rights of the public to use [it] for passing and re-passing’, to adopt the
words in that passage in Brodie.”

[377] The “assumed facts” referred to in that passage are that there was an effectual
dedication of the land as a road. That is what has been found to be the case in these reasons.

There are reasons to reject the alternative construction advanced by the State and the Registrar. It is easy to see that practical and conceptual difficulties would follow. How does one determine the rights with certainty when there is doubt about the precise “altitude or depth”[242] of the land that is required to preserve or protect the
[242] To adopt the phrase from H Jones.
public’s right of passage? Such a consideration is likely to vary on a case by case basis.
Further, in my view, the cross-appellants’ reliance on English authorities, such as
Burgess v Northwhich Local Board,[243] and Battersea Vestry v County of London and Brush Provincial Electric Lighting Co,[244] and texts based on them, is misplaced. Little is gained from decisions involving different statutory provisions from those in place here. Similarly, authorities turning on distinctly different statutory provisions, such as Buckle v Bayswater Road Board,[245] offer no reliable guidance.
[243] (1880) 6 QBD 264.
[244] [1899] 1 Ch 474.
[245] (1936) 57 CLR 259.

The decision in H Jones & Co Pty Ltd v Kingsborough Corporation[246] also provides little guidance in the circumstances. What Dixon J said in that case were general
[246] (1950) 82 CLR 282.
comments about “Statutes which vest in a public authority highways…”. Here, s 369
vests “land”, not the “road” or highway. Whilst the object of the vesting under s 369

might have been to protect the public rights of passage over the road, it did not do so
in the way referred to by Dixon J in H Jones.
Conclusion on the cross-appeal

For the reasons I have expressed above the cross-appeal must be dismissed, with costs.
Orders
I propose the following orders:

1. Appeal dismissed.
2. The Appellant pay the Respondents’ costs of the appeal.
3. Cross-appeal dismissed.
4. The Second and Third Respondents pay the First Respondent’s costs of the
cross-appeal.

BOND JA: I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour.
APPLEGARTH J: I agree with Morrison JA.

of the Brisbane Grammar School as “the Trustees”.
see paragraph [17] above.
and use of such evidence: Sydney City Council v Griffin Corporation [2003] NSWSC 26.
(1966) 14 LGRA 1; Permanent Trustee (1960) 105 CLR 401.
McMurdo P and White JA agreed).

Appellant’s outline paragraph [51].

830; Barraclough v Johnson (1838) 8 A & E 99 at 104–105.

Actions

Download as PDF Download as Word Document

Citations

WCL (QLD) Albert St Pty Ltd v Orb Holdings Pty Ltd & Ors [2023] QCA 263

Cases Citing This Decision

0

Cases Cited

12

Statutory Material Cited

0

Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd [2020] QCA 198

Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council [1960] HCA 62

Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd [2020] QCA 198

CATCHWORDS:	HIGHWAYS – CREATION AND EXTINCTION OF HIGHWAYS – DEDICATION – WHAT CONSTITUTES DEDICATION – GENERALLY – where, in the late 19th century,
the owners of land in Brisbane subdivided and sold their land
– where the whole of the subdivided land was subdivided into
nine individual lots, with each abutting a laneway which would
later be termed a ‘right of way’ on title documents – where the
sellers of that land evinced no intention to retain any part of
that laneway – where the council assumed responsibility for that laneway – where the laneway remained open to, and used
by, the public up until the appellant erected barriers in 2019 –
where the trial judge determined that there was a dedication by the original owners, and there was an acceptance by the public
of that dedication – where the effect of the primary judge’s
finding was that the laneway was dedicated as a public road,
and thus vested in the second respondent – where the primary
judge inferred that sanctions necessary in relation to the
dedication of the laneway as a public road had been given –
whether the trial judge erred in these findings
HIGHWAYS – MISCELLANEOUS MATTERS – OTHER MATTERS – where the second and third respondents cross
appealed as to the form of declaration made by the primary
judge – whether the primary judge erred in the form of
declaration at first instance
Grammar Schools Act 1860 (Qld), s 1, s 2, s 6 Land Act of 1962 (Qld), s 5, s 369 Real Property Act 1861 (Qld), s 44, s 119
Anderson v City of Stonnington (2017) LGERA 176; [2017] VSCA 229, cited
Attorney-General (NT) v Minister for Aboriginal Affairs
(1989) 23 FCR 536; [1989] FCA 159, cited
Attorney-General (Quebec) v Attorney-General (Canada)
[1921] 1 AC 401; [1920] UKPC 96, cited Barraclough v Johnson (1838) 8 A & E 99; [1838] EngR 552, cited
Battersea Vestry v County of London and Brush Provincial
Electric Lighting Co [1899] 1 Ch 474; [1899] UKLawRpCh 15, cited
Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd
(1998) 43 NSWLR 364, cited Born v Huntley (1886) 20 SALR 33; [1886] SALawRp 8, cited Boulter v Jochheim [1921] St R Qd 105, cited Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, cited Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29, cited Buckle v Bayswater Road Board (1936) 57 CLR 259; [1936] HCA 65, cited Burgess v Northwich Local Board (1880) 6 QBD 264; [1880] UKLawRpKQB 116, cited Chambers v Lane Cove Municipal Council (1966) 14 LGRA 1, cited
City of Keilor v O’Donohue (1971) 126 CLR 353; [1971]
HCA 77, cited Cowlishaw v Ponsford (1928) 28 SR (NSW) 331; [1928] NSWStRp 30, cited Dabbs v Seaman (1925) 36 CLR 538; [1925] HCA 26, doubted Little v Dardier (1891) 12 NSWLR (Eq) 319; [1891] NSWLawRp 41, cited Dixon v LeKich (2010) 56 MVR 70; [2010] QCA 213, cited Ex Parte Le Gould (1864) 1 QSCR 130, cited
Folkestone Corporation v Brockman [1914] AC 338; [1914]
UKLawRpAC 6, cited H Jones & Co Pty Ltd v Kingsborough Corporation (1950) 82 CLR 282; [1950] HCA 11, cited Highmist Pty Ltd v Tricare Ltd [2005] QCA 357, cited Hutchinson v Lemon [1983] 1 Qd R 369, cited Lawson v Weston (1850) 1 Legge 666, cited Little v Dardier (1891) 12 NSWLR (Eq) 319, cited Lynch v Eaves (Max) Pty Ltd and Brighton Council (1996) 91 LGERA 166; [1996] TASSC 2, cited Mayberry v Mornington Peninsula Shire Council (2019) 59 VR 383; [2019] VSC 623, cited
Minister for Natural Resources v New South Wales
Aboriginal Land Council (1987) 9 NSWLR 154, cited Municipal District of Concord v Coles (1906) 3 CLR 96; [1905] HCA 35, cited
Murray on behalf of the Yilka Native Title Claimants v State
of Western Australia (No 5) [2016] FCA 752, cited Newington v Windeyer (1985) 3 NSWLR 555, cited Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020)
5 QR 521; [2020] QCA 198, related Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2022) 11 QR 750; [2022] QSC 190, related
Owen v O’Connor [1964] NSWR 1312; (1963)
53 SR (NSW) 1051, cited Palmisano v Hawse (2003) 127 LGERA 268; [2003] NSWSC 566, cited
Permanent Trustee Co of NSW Ltd v Campbelltown
cited
Municipal Council (1960) 105 CLR 401; [1960] HCA 62, cited
Project Blue Sky Inc v Australian Broadcasting Authority
(1998) 194 CLR 355; [1998] HCA 49, cited R (Smith) v Land Registry (Peterborough) [2011] QB 413; [2010] EWCA Civ 200, cited Rangeley v Midland Railway Co (1868) 3 Ch App 306; [1868] UKLawRpCh 21, cited
Re the Real Property Act, 1861, and the Application of the
Right Reverend Dr O’Quinn (1879) 1 QLJ (Supp) 7, cited
Rock v Todeschino [1983] 1 Qd R 356, cited Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104, cited Shire of Narracan v Leviston (1906) 3 CLR 846; [1906] HCA 34, cited Sydney City Council v Griffin Corporation Pty Ltd [2003] NSWSC 26, cited
Templestowe Developments Pty Ltd v City of Boroondara
[1997] 1 VR 504, cited
Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors
[1999] NSWCA 347, cited
Weber v Ankin (2008) 13 BPR 25,231; [2008] NSWSC 106, cited
COUNSEL:	S L Doyle KC, with S J Webster, for the appellant/not a party to the cross appeal J D McKenna KC, with J P Hastie, for the first respondent/cross respondent D D Keane KC, with S C Russell, for the second and third respondents/cross appellants
SOLICITORS:	Clayton Utz for the appellant/not a party to the cross appeal HWL Ebsworth for the first respondent/cross respondent Crown Law for the second and third respondents/cross appellants

(f)	between 1896 and 1900, the Brisbane Municipal Council issued permits for structures to be erected in Lot 11, including a weighbridge and a gangway;
(g)	since 1876, Lot 11 had been used by the public for access by foot, carriage, or vehicles, both to adjoining properties, and between Margaret and Albert Streets; and
(h)	the Brisbane Grammar School took no steps to prevent the public using Lot 11.

(c)	Secretary of Public Instruction: 1885;
(d)	Member of the Executive Council: 1876–79; 1884–85; and
(e)	Judge of the Supreme Court of Queensland: 1885–90.

(b)	the original Lots 8–11 were subdivided into three separate areas of land: (i) Lots 1-9; (ii) the “Right of Way”; and (iii) the Reserve;
(c)	the description given to the area of land that became Beatrice Lane, was “Right

(d)	the Right of Way was not labelled as an easement;
(e)	the Right of Way extended from Margaret Street to Albert Street;
(f)	neither the Right of Way nor the Reserve formed part of any of Lots 1–9;
(g)	neither the Right of Way nor the Reserve was given a lot number;[15]
(h)	the Right of Way was of irregular dimensions; the portion from Margaret Street was 18 feet wide, whereas the portion from Albert Street was 25 feet wide;

(j)	the Reserve was not labelled as an easement;
(k)	the Reserve ran from Margaret Street to the southernmost corner of the Right of Way; and
(l)	the Reserve ran the full length of the Right of Way in so far as the Right of Way adjoined original Lots 7 and 12.

(e)	since it was carved out of the original Lots, and it was not a separately registered Lot with surveyed metes and bounds, there was no boundary at either of the Margaret Street or Albert Street ends;[18]
(f)	it was not intended to allow access from original Lots 7 and 12, as the Reserve completely covered any common boundary between those two Lots and the Right of Way;
(g)	it was not intended to be retained by the Trustees; the resolution was to sell all

to be done; nothing in the resolutions or RP1073 suggests that the Trustees intended to remain as proprietor over the land in the Right of Way; and
(h)	in the same way, the Trustees did not intend to retain ownership of the Reserve; it was evidently designed to protect the integrity of the Right of Way, by preventing any access from original Lots 7 and 12; it was not designated as an easement for the benefit of any Lot.

(b)	the sale was of nine allotments;
(c)	the sale was of “All those Pieces of Land described upon the Government Map

(g)	the notice finished: “Title– Real Property Act”; in context that signified that
the title to be obtained by a purchaser was title under the Real Property Act 1861 (Qld).

“[31]	This is of some importance in the present case as commercially it would be a nonsense for Mr Hart to seek to traverse the 30cm reserve area onto an area to which he had no right to be, if the right of way were a private right of way or easement.
[32]	It only made commercial sense for Mr Hart to acquire the reserve to enable him to access the right of way and then utilise the right of way as a means of access to his property, Lot 7, if
the right of way were considered a public thoroughfare.”

(d)	creation of an easement document setting out its terms; and
(e)	notation of the easement on the title of the benefiting lots.

“[33]	It is convenient at this point to discuss an argument, by WCL, that any dedication of this land, by the registration of RP1073,
was not a dedication of a ‘road’, as distinct from a ‘street’, ‘passage’ or ‘thoroughfare’. The argument is based upon the
terms of s 119 of the Real Property Act 1861 (Qld), as they were when RP1073 was registered. Section 119 required a plan of
subdivision to ‘exhibit distinctly delineated all roads, streets,
passages, thoroughfares, squares or reserves appropriated or set
apart for public use …’. The argument is that although RP1073
distinctly delineated this land, it did not distinctly describe it as a road, as distinct from a street, passage or thoroughfare. Therefore, it is suggested, it was not a road for the purposes of s 369 of the Land Act 1962.
[34]	That argument cannot be accepted. Section 119 Real Property Act 1861 did not require RP1073 to distinguish this land as, for example, a road rather than as a street. But in any case, the
registration of RP1073 was not the only basis for the judge’s
assumption that this land had been dedicated at common law.
And the land was clearly within the defined meaning of a ‘road’ under the Land Act 1962.”

“48	The absence of any evidence of gates at the George Street entry to the lane also tends to support the likely use by members of the public. That is, that the road was left open for use by the public. The absence of fencing off of a road has been seen as important to the issue of dedication. See Harvey J in Attorney General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; Sugerman J in Owen v O'Connor (1963) 63 SR (NSW) 1051 at 1053 and Newington v Windeyer at 559. Young J believed that there was a presumption in relation to roads connecting to a public street being open to all, so that if they were not fenced off, they were to be properly regarded as open to the public. He cited Menzies J in Permanent Trustee Co of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401 at 415.
49	I am unsure whether what Menzies J said about roads left in subdivision rises to a legal presumption. However, his approach is a realistic one. I agree that it is an artificial and unreal approach to treat such roads as private unless access to the public is prevented.
50	The Permanent Trustee case also assists the Council in so far as it may indicate that not much evidence of use of the lane by members of the public is required to satisfy the deemed dedication in the statutory provision. See in particular Windeyer J at 423. Moreover, it must clearly be kept in mind in this case that use as a footway by members of the public is sufficient. Consistent with Newington v Windeyer, use by mere invitees or licensees will not suffice.
51	I think that Young J was well entitled to conclude that the subject lane was used by the public between 1860 and 1879. He found that it had been so used as a carriageway although, as I have mentioned, use as a footway only would have been
sufficient. The plans before the court, particularly Dove’s
plans, leave ample room for inferences of public use, taking account of the obviously extensive commercial activity, including many nearby hotels.
52	The lack of any cogent evidence of gating-off the lane also assists in drawing the inference of public use. The conclusion is aided by Menzies J reference in Permanent Trustee to use by the adjoining landowners being regarded as use by the public
(see 415).”

(b)	those events included the annual art shows of the Queensland Art Society and other major events;
(c)	it was noted by Dr Beanland that the Masonic Hall had stables and buggy houses at the rear which could only be accessed by the Right of Way;
(d)	the size of those stables and buggy houses indicated to that they were intended for use by visitors to the Masonic Hall; and
(e)	it was a busy, industrial area which was likely to attract many people; that was a view with which both historians agreed.

(a)	any road, street, esplanade, reserve for esplanade, parade, promenade, avenue, crescent, drive, lane, highway, pathway, footway, thoroughfare, track or stock route; and
(b)	any part of any road or any bridge, causeway, culvert or other works in, on, over or under any road or any part of any road

(a)	lawfully granted or contracted to be granted in fee-simple by the Crown; or
(b)	reserved for or dedicated to public purposes; or
(c)	subject to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be