Adams & Anor v Great Lakes Council & Anor

Crown and Other Roads Act 1990 s 3, s 34, s 36, Sch 2 cl 5 Crown Lands Consolidation Act 1913 Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 s 25B Public Roads Act 1902 (repealed) s 6, s 12, s 18, s 32, s 33 Real Property Act 1900 Roads Act 1993 s 4, s 12, s 145(2), s 151, Sch 2 cl 56, Sch 2 cl 2(b)

CASES CITED: Adams v Great Lakes Council & Anor (No 2) [2010] NSWLEC 37 Barclay Homes (Australia) Pty Ltd v Fair Trading Tribunal and Anor [2001] NSWSC 711

FIRST APPLICANT Mr D Shoebridge SOLICITOR Adams Rave Marsh & Co

SECOND APPLICANT Mr A Monzo SOLICITOR Land and Property Management Authority LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr I Hemmings SOLICITOR Mallik Rees

SECOND RESPONDENT Submitting appearance SOLICITOR Sattler & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40288 of 2009 Adams & Anor v Great Lakes Council & Anor (No 3)

JUDGMENT 1 Her Honour: The First Applicant commenced proceedings by summons filed 7 May 2009 challenging the grant of development consent by Great Lakes Council, the First Respondent (the Council) to the Second Respondent, his neighbour, on land in Kinka Road Seal Rocks. The Second Respondent filed a submitting appearance. The First Applicant seeks a declaration that a development consent granted by the Council on 24 March 2009 for Development Application 37/2009 (DA 37/2009) is void. A declaration that the owner of the land to which DA 37/2009 relates did not provide consent to make the development application is also sought. 2 In Adams v Great Lakes Council & Anor (No 2) [2010] NSWLEC 37 (Adams No 2) I made a preliminary finding that the small triangle of land on the edge of Kinka Road abutting the northern boundary of lot 4 section 2 DP 758900 on Crown notation plan G6460-1497 was part of Kinka Road (the land). This land also adjoins the Second Respondent's land (lot 5 DP 114001) but is not owned by the Second Respondent. I determined that as part of Kinka Road it was transferred as Crown land to the Council by gazette notice dated 5 June 2009. The Council as owner of Kinka Road could therefore give owner's consent as required by the Environmental Planning and Assessment Act 1979 (the EP&A Act) for development on that land as part of the grant of development consent for development of lot 5 next door to the First Applicant's land. 3 The relevant context for the Court's finding is identified in Adams No 2 at [5], namely: At issue is whether, following the grant of development consent without owner's consent, the Council subsequently became the owner of the land. The Council argues this occurred as a result of the gazetted transfer of Kinka Road east of Thomas Road to the Council by the Minister for Lands on 5 June 2009 (par 12(c) of defence). As the Council is now the owner of the land (par 13 of defence) it seeks orders that the consent be confirmed or suspended under s 25B(1) of the Land and Environment Court Act 1979 (the Court Act) so that owner's consent can be provided (par 15 of defence). Alternatively the Court has broad discretion under s 124 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) not to grant any relief (so that the consent would stand) (par 14 of defence). Alternatively, even if the Council is not the owner the Court has broad discretion under s 124 EP&A Act not to grant any relief. The land is public land regardless of whether the Crown or the Council is the owner. 4 No final orders were made in Adams No 2. I concluded my judgment at [51] as follows: ...As discussed during the hearing, if the Department [of Lands now the Land and Property Management Authority (LPMA)] wishes to assert ownership rights it believes it has over the land in the future, whether the Second Respondent can develop the land in accordance with the development consent granted by the Council would still be in issue. In the interests of finally resolving the issue of who can develop the land and to avoid further litigation (an objective encouraged by s 22 of the Court Act), the Department should be given the opportunity of participating if it wishes to either join as a party or to make submissions about my preliminary finding and any orders I may make.

5 By a Notice of Motion filed on 22 April 2010 the Minister administering the Crown Lands Act 1989 sought permission to intervene in the proceedings. I made an order on 22 April 2010 recognising the Minister as the Second Applicant in the proceedings. The Minister filed his Points of Claim on 11 May 2010 and seeks, inter alia, a declaration that the State of New South Wales is and was at all material times owner of the land. Issue 6 In Adams No 2 I found at [40] - [45] that: 40 The boundary of Lot 4 was resurveyed in 1968 by the Land Board surveyor, Mr Hunter, to exclude the land from Lot 4. Whether that land then became part of Kinka Road, a Crown road, as it satisfied the definition in s 3(1) of Crown road in the Crown Roads Act of land "being reserved for or left as a road" is the issue. 41 The realignment of the boundaries of Lots 3 and 4 in 1968 is the subject of evidence. The previous northern boundaries of the lots is represented by a dashed line on the respective notation plans. There is no suggestion that a dashed line is a boundary line on the notation plans for Lot 3 or Lot 4. As identified by the Council the dashed line bears the points of the azimuth (bearing) used by the surveyor to measure the triangular area removed from both lots. The boundary of Kinka Road on both notation plans is shown as a solid line on the northern and the southern sides, including along the new boundary of Lot 3 and Lot 4 as surveyed in 1968. This results in both small triangular areas of land to the north of Lots 3 and 4 being included within the solid boundary line that depicts Kinka Road.

42 For completeness I note that there is another dashed line on or very close to the "old" boundary of Lot 4 also represented by a dashed line, the purpose of which is not identified on the notation plan. The Council's counsel submitted this may be a fence line but there is no evidence about what it was intended to represent. It does not alter my findings in the previous paragraph concerning the boundary line.

43 Much of the argument focussed on the meaning of the words used in the notation plan G6460-1497 identifying the purpose of the excised land when the northern boundary of Lot 4 was altered. This was contrasted with notation plan G6456-1497 for the change in the northern boundary of Lot 3. The description of the land as "required for road widening" on notation plan G6460-1497 (Lot 4) is an expression of an intention to reserve the land at that time for the future use of road widening. That phrase comes within the definition of "Crown road" in s 3(1)(a) of the Crown Roads Act of land on an official plan "being reserved for or left as a road".

44 For these reasons, I consider the land did become Crown road in 1968 as it was then "reserved for or left as a road". It also became part of Kinka Road in 1968. That it has never been used as a Crown road is irrelevant in light of s 34(1) of the Crown Roads Act which provides such a road need not be formed (contrary to the reasoning of Mr Boyer as set out in par 2 of his conclusions identified in par 7(i) above). The land continued as a Crown road under the transitional provisions in the Roads Act Sch 2. It could therefore be the subject of the transfer of Kinka Road under s 151 of the Roads Act to the Council by the Minister on 5 June 2009.

45 This view is confirmed by the Parish map (exhibit 2) which shows the land as within Kinka Road. Further, the certificates of title for Lots 3 and 4, relied on by the Council (par 7(i)(e) and (f)), are also confirmatory of that position as the realigned boundaries to the north of both blocks are shown as Kinka Road.

7 I note that Adams No 2 refers to notation plans but it is accepted by the parties these are the same as Crown plans. In the interests of clarity it is preferable that I refer in this judgment to Crown plans. 8 The Minister has joined in these proceedings to argue through the Land and Property Management Authority (LPMA), formerly the Department of Lands, against my preliminary finding in Adams No 2. Adams No 2 referred to the Crown and Other Roads Act 1990 (the Crown Roads Act 1990) and the Roads Act 1993. The Minister argues that the land did not become Crown road in 1968 under the Public Roads Act 1902 (repealed in 1992) and has not subsequently become so under the Crown Roads Act (1990) or the Roads Act (1993). Relevant legislation 9 The relevant sections of the Crown Roads Act (1990) and the Roads Act (1993) are set out at [13] of Adams No 2 and I repeat these here for ease of reference. In addition the Minister argues the Public Roads Act (1902) is relevant so that relevant sections are identified. Public Roads Act 1902 (repealed by s 77 Crown Roads Act 1990 commencing 1 April 1992) 10 The following sections of the Public Roads Act (1902) are relevant, according to the Minister. Section 6 defines "Road" as: "Road" wherever used in this Act includes any land proclaimed dedicated resumed or otherwise provided before or after the passing of this Act as a public thoroughfare or way and wherever twelve eighteen to twenty-two inclusive and thirty-four of this Act also includes any land defined reserved or left before or after the passing of this Act as a road in any subdivision of Crown land or in the measurement or granting of Crown land as indicated upon the official plans of the same but where used in sections thirty-two and thirty-three of this Act does not include any land not proclaimed or expressly or impliedly dedicated to the public as a road.

11 Section 12 considers compensation for resumption of land for a road. Sections 18 deals with dedication of public roads (see below), s 19 and s 20 deal with the closing of unnecessary roads and s 21 deals with temporary closure of roads. Section 22 allows alteration of roads in incomplete purchase. Section 34 refers to matters referred to a local land board.

Sections 32 and 33 deal with penalties for obstruction of officers or removing marks. The latter part of the definition from "but where…" in the third last line is not relevant as these two sections do not arise in this case. Section 18, "Dedication of roads", provides: (1) The Governor may by notification in the Gazette declare any road to be a public road and thereupon the same shall be dedicated to the public accordingly and shall be withdrawn from any lease or license from the Crown under which it was held and no compensation shall be payable in respect thereof. (2) If the road be situate within a municipality such notification shall have the effect of vesting the care construction and management thereof in the council of the municipality within the meaning of section one hundred and seventy-five of the Municipalities Act 1897.

(3) Where any road so declared has been provided in subdivision of the Crown estate for alienation or reserved in the measurement of crown lands the official plans of survey which show the road in question or part thereof in connection with the lands subdivided or measured shall be accepted as evidence of the width and position of the same.

(4) Nothing in this section shall prevent any alteration of the width of any road prior to or by any such notification as aforesaid.

Crown and Other Roads Act 1990 (repealed by s 265 Roads Act 1993 commencing 1 July 1993) 12 The following sections of the Crown Roads Act 1990 are relevant: Section 3 "Definitions" provides: (1) In this Act: "Crown road" means: (a) any road or land which was, before the commencement of this section, vested in the Crown and indicated on official maps or plans as being reserved for or left as a road ; [emphasis added] (i) in a subdivision of Crown land; or (ii) in the measurement or granting of Crown land; or (iii) as a consequence of an approval by the Minister administering the Crown Lands Acts, but which was not notified, proclaimed or dedicated as a public thoroughfare or public way before that commencement and which has not been declared to be a public road under part 2 since that commencement; or (b) any land declared to be a Crown road under Part 2. (not relevant in this case)

(2) In this Act, a reference to a road includes a reference to a part of a road. …

"public road" means any land proclaimed, dedicated, notified, resumed or otherwise established, whether before or after the commencement of this section, as a public thoroughfare or public way, but does not include a Crown road Section 34, "Use of Crown road", provides: (1) a Crown road is open to the public as of right for the purpose of passing and repassing, irrespective of whether it is formed or constructed as a road. … (3) Until closed in accordance with section 45, a Crown road is not capable of being reserved, dedicated, sold, leased or otherwise disposed of under the provisions of the Crown Lands Act

Section 36, "Crown road to continue to be Crown land", provides: (1) Any land that: (a) is acquired for the purposes of a road; or (b) is declared to be a Crown road; or (c) was, immediately before the commencement of this section, a Crown road, becomes or, as the case may be, continues to be Crown land within the meaning of the Crown Lands Act 1989 until it ceases to be Crown land by virtue of the operation of this or any other Act.

Schedule 2 specifies savings and transitional provisions as a result of the repeal of the Public Roads Act (1902). An existing dedication under the Public Roads Act (1902) continues in force, cl 5. Roads Act 1993 13 Section 4, "Definitions", provides: Expressions used in this Act which are defined in the dictionary at the end of this Act have the meanings set out in the dictionary. 14 "Crown road" is defined in the Dictionary to the Act as: Crown road means a public road that is declared to be a Crown road for the purposes of this Act. 15 "Public road" is defined in the Dictionary to the Act as: public road means: (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act. 16 Section 12, "Minister may open road over unoccupied Crown land", provides: (1) The Minister may, by notice published in the Gazette, dedicate any unoccupied Crown land as a public road. (2) The notice must declare whether or not the road is to be a Crown road. (3) On the publication of the notice, the land is dedicated as a public road and (if the notice declares it to be a Crown road) becomes a Crown road. 17 Sections 145(2) and (3), "Roads authorities own public roads", provide: (2) All Crown roads are vested in fee simple in the Crown as Crown land. (3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority. 18 The transfer of a Crown road to another roads authority (in this case the Council) is provided for under s 151, "Transfer of Crown road to council", which states: (1) The Minister may, by order published in the Gazette, transfer a specified Crown road to another roads authority. (2) On the publication of the order, the road ceases to be a Crown road. (3) An order transferring a Crown road to the RTA may not be made except with the consent of the RTA. (4) If the road has been provided in a subdivision of Crown land for alienation, or has been reserved in the measurement of Crown land, the official plans of survey showing the road adjacent to the land subdivided or measured are evidence of the width, extent and position of the road. 19 Schedule 2 "Savings, transitional and other provisions" for Acts including the Crown Roads Act (1990) provides in cl 56 "Existing Crown Roads": Any road that, immediately before the commencement of this Act, was a Crown road within the meaning of the repealed Act is dedicated as a public road and is declared to be a Crown road within the meaning of this Act.

20 "Repealed Act" is defined in Sch 2 Pt 2 Div 1 cl 2(b) to include the Crown Roads Act (1990).

Evidence 21 In Adams No 2 I set out a number of documents in evidence in [7] and in particular (a)-(j) as follows: (a) NSW Government Gazette No. 15 [29 January 1960] Folio 256 gazetting Crown land Reserve No. 82316 approximately 87 acres of land in Parish Forster, County Gloucester for village purposes (this large parcel of land includes the land in the current proceedings).

(b) Report No.67/48 by R I Hunter, Staff Surveyor Taree, dated 21 December 1967 referring to notation plan G6304-1497 stating that an amendment survey to allotment 4 had been completed, and that according to Road Engineering plans designed by Stroud Shire Council the land was to be used for road purposes. Mr Hunter's instructions dated 4 October 1967 from E F Higgs, District Surveyor Land Board Office East Maitland have a hand-written notation "Particularly in light of the area which has been excluded from allot 4 for road widening."

(c) Notation plan G6456-1497 approved 12 January 1968 referring to Lot 3 and identifying a small parcel of land adjacent to Lot 3 as "Road Variable Width".

(d) Notation plan G6460-1497 approved 28 March 1968 detailing the survey amendment undertaken by Staff Surveyor Hunter to Lot 4, and identifying the land adjacent to Lot 4 as "Required for Road Widening".

(e) Crown Grant Volume 14337 Folio 151 registered 18 January 1981 granting estate in fee simple to Arthur Richard Adams of Lot 3 Section 2 DP 114374.

(f) Certificate of Title Volume 15344 Folio 141 issued 3 June 1985 certifying Thomas Augustine O'Neill as the registered proprietor of estate in fee simple of Lot 4 Section 2. The reproduced plan showing the location and dimensions relevant to the title does not include the land as part of the allotment.

(g) NSW Government Gazette No. 91 [4 August 1978] Folio 3290 gazetting Crown land Reserve No. 82316 (originally notified 29 January 1960 for village purposes) as revoked. Any land remaining from the original reserve, which had not been released for sale under other instruments, reverts to unreserved Crown land.

(h) NSW Government Gazette No. 40 [31 March 2006] Folio 1624 gazetting all Crown land in the Eastern and Central Divisions of the State to be identified as Crown land Reserve No. 1011448 for the public purpose of future public requirements.

(i) NSW Government Gazette No. 83 [29 June 2007] Folio 4182 gazetting that Crown land Reserve No. 1011448 for the public purpose of future public requirements is revoked, and that the relevant Crown land covered by Reserve No. 1011448 becomes Crown land Reserve No. 753168 in the Parish of Forster County of Gloucester.

(j) NSW Government Gazette No. 83 [5 June 2009] Folio 2558 gazetting that the Crown public road being Kinka Road from the eastern boundary of Thomas Road to Lot 3, DP 847752, is transferred to the roads authority Great Lakes Council and ceases to be Crown road. 22 At [9] I referred to the parish map for Parish Forster, County Gloucester, tendered as exhibit 2. These documents continue to be relevant for these proceedings. 23 In these proceedings, the Minister relied on the affidavit of Sonia Hughes, Manager of Status Branch in the LPMA, sworn 21 June 2010 and a supplementary affidavit sworn 29 July 2010. The supplementary affidavit attached copies of gazettal notices omitted from an annexure to the first affidavit. The lengthy first affidavit of Ms Hughes identifies the numerous records kept by the Department of Lands in relation to the status of land including roads and the land in question. Most of the documents referred to above at par 21 are referred to by Ms Hughes. 24 The affidavit refers to Crown plans which are used to record information about Crown land. Manuals of Procedure were issued for their preparation. After 1 May 1978 all Crown Land Office plans had to be registered as Deposited Plans. Previously all plans prepared by the Crown Lands Offices of the former Department of Lands were Crown plans. The Land Board instructions dated 30 June 1921 authorised the notation of changes in the status of land on Crown plans. Land Board instructions from 1921 were attached in part (Hughes' affidavit 21 June 2010, annexure A6). Changes in the status of land were noted on Crown plans up to 6 September 1971, after that time all notations had to be noted on parish maps. Notations entered on Crown plans up to 6 September 1971 were listed at page 50 of the Land Board instructions 30 June 1921 including alignment, dedication, resumption under the Public Roads Act (1902) from gazettal (Hughes' affidavit 21 June 2010, annexure A6). The requirements for drawing road plans are referred to in the Land Board instructions dated 30 June 1921. Improvements such as fences within one chain of each side of the road should be accurately delineated (Hughes' affidavit 21 June 2010, annexure A6 cl 769). 25 Regional parish maps were prepared for the use of regional offices of the LPMA. These will have many editions. Often all editions, not just the current edition, need to be consulted to accurately establish the current status of land because information from prior regional parish maps is not always brought forward onto the new edition of the regional parish map. Regional parish maps record roads that have been gazetted under the procedures of the Roads Act 1993 or earlier roads Acts as well as showing proposed roads. Roads are not shown on the regional parish maps to a survey standard, which does not allow the location or dimensions of a road to be determined to a high degree of accuracy. For accurate dimensions of a road it is necessary to refer back to a Crown plan or Deposited Plan. The Manual of Procedures 1961 (Hughes' affidavit 21 June 2010, annexure A2) shows how such maps should be prepared in relation to the colours to be used and other features, such as roads. 26 Roads Branch parish maps show only road information. The relevant Roads Branch parish map for the land dates from about the 1940s to the late 1970s and is still current and an official parish map. For a status enquiry involving a road, the Roads Branch parish map is the first point of reference because it contains the most authoritative and detailed information about roads. The Roads Branch is responsible for maintaining accurate information about the status of roads on the Branch parish maps. The Roads Branch only recorded roads that were properly created pursuant to the relevant legislation within the particular period and in accordance with the office practice and procedure of that Branch. 27 Numerous other records kept by the Department of Lands are referred to in the affidavit but were not referred to in argument so I will not set these out. 28 The history of lot 3 section 2 DP 114374 is identified (Hughes' affidavit 21 June 2010, par 34-44). Most of the area was subject to conditional purchase apart from three quarter perch which was not converted, as shown on Crown plan G6456-1497 (12 January 1968) and DP 114373 identified as variable road width. The Certificate of Title issued for lot 3 on 18 February 1981 (since cancelled) is attached which shows the boundary after excision of the area to the north (Hughes' affidavit 21June 2010 annexure A49). 29 A similar history of lot 4 section 2 DP 758900 is also identified (Hughes' affidavit 21 June 2010, par 45-50). Most of the area was subject to a conditional purchase with an area (the subject land) identified as "required for road widening", as identified in the District Surveyor's appraisement and shown in Crown plan G6460-1497. (No certificate of title for lot 4 is attached.) 30 Under the heading "Kinka Road" the affidavit identifies (Hughes' affidavit 21 June 2010 par 59) that the dimensions of Kinka Road are defined by a number of Crown plans which link together, including Crown plans G6304-1497 (annexure A28) and G6303-1497 (annexure A29) (Crown plan G6304-1497 shows lot 4 with the land included, crossed through with G6460-1497). It is unclear when Kinka Road was so named. 31 Crown plan G6456-1497 subdivided former lot 3 section 2 village of Seal Rocks into two parts as shown in Crown plan G6303-1497 being lot 3 and an area identified as "road variable width". Crown plan G6460-1497 subdivided lot 4 section 2 as shown on Crown plan G6304-1497 into two parts, lot 4 and the area identified "required for road widening". 32 A search of departmental plans, maps and records discloses no government gazette notification showing realignment or remarking or road widening of the land in accordance with the procedures in the Public Roads Act (1902), the Crown Roads Act (1990) or the Roads Act (1993). 33 Ms Hughes' affidavit records (par 70) that the land has not been identified as a road on the ninth edition of the regional parish map which was the relevant edition at the time of the subdivision of the land in lot 4. It is not shown in red or blue as required by the Instructions to Land Board Officers 1921 at p 71 (Hughes' affidavit 21 June 2010 annexure A6 par 771-772). It has been identified incorrectly as a road on the tenth and eleventh editions of the regional parish maps. Neither parish map refers to road gazettals and no notation of a road in the appropriate colours referred to in the Manual of Procedures 1961 p 16 (Hughes' affidavit 21 June 2010, par 24 and annexure A2) are shown. 34 In Ms Hughes' opinion Roads Branch parish maps are authoritative as to whether particular land is a road. The land has not been identified on the Roads Branch parish map as a road. The relevant part of the Roads Branch parish map is attached and demonstrates that the land is not shown in red in accordance with the instructions to Land Board Officers 1921, the Manual of Procedures 1961 or the Manual of Procedures 1979 (Hughes' affidavit 21 June 2010, annexure A4). The ninth edition is the latest edition at the time Crown plan G6460-1497 was prepared and charted.

35 The land is known as a "splay" being described in a departmental circular as land left as road in a subdivision and refers to land that forms a boundary road between surveyed blocks (Hughes' affidavit 21 June 2010, annexure A36). Splay is a term that commonly relates to the corner of a property required for road widening at some future time (Hughes' affidavit 21 June 2010, par 66). 36 Paragraphs 76 to 79 of Ms Hughes' affidavit refer to the subsequent history of the land as identified in Crown reserve 82316, since revoked and that the land is now in parish reserve 754168. (This was referred to in evidence in Adams No 2, set out above in par 21 reciting [7(g)-(i)]) 37 The Minister tendered the current Roads Branch parish map as exhibit A1.

Minister's submissions 38 The Minister submitted that: (a) the land was not at any time a Crown road as defined in s 3(1) of the Crown Roads Act (1990) since to satisfy the definition of Crown road in that section it must be shown that the land was: (i) land vested in the Crown; and (ii) indicated on official maps and plans as "being reserved or left as a road"; or (iii) in the measurement or granting of Crown land; or (iv) as a consequence of an approval of the Minister administering the Crown Lands Act; but which was not notified, proclaimed or dedicated as a public thoroughfare or declared to be a public road. (b) the evidence shows that: (i) Roads Branch parish maps contain the most authoritative and detailed information about roads in New South Wales; (ii) the land was incorrectly shown as road on the tenth and eleventh editions of the regional parish maps; (iii) the land has not at any time appeared on a Roads Branch parish map or maps as "road"; (iv) the land was not left as road in a subdivision of Crown land, but "splay", a term that commonly relates to the corner of a property required for road widening at some future time; (v) the 1968 Crown plan is not an authoritative plan so one must go to Roads Branch parish maps; (vi) if not a road under the Public Roads Act (1902) and not under s 3(1)(a) of the Crown Roads Act (1990) since the Roads Act (1993) came into force then the land could not be dedicated as a public road under the Roads Act (1993); (vii) clause 56 in Sch 2 of the Roads Act (1993) has no application since the land was not a Crown road before the commencement of the Crown Roads Act (1990). 39 The expression "required for road widening" on notation on Crown plan G6460-1497 does not catch the land so as to bring it within the definition of Crown road in s 3(1) of the Crown Roads Act (1990) as land indicated on official maps or plans "being reserved for or left as a road". 40 Ms Hughes affidavit sworn 21 June 2010 shows that: (a) the land is a mere splay. "Left as road in a subdivision of Crown land" refers to land that forms a boundary road between surveyed blocks. A splay is a term that commonly relates to the corner of a property required for road widening at some future time as disclosed in annexure A36. (b) the ninth edition of the regional parish map (annexure A39; par 70) was the relevant regional parish map at the time of the subdivision. It does not show a road widening of Kinka Road on the frontage of lots 3 and 4. It is submitted that if the land was road it would have been shown in red or blue on the ninth edition of the regional parish map as set out in the Instructions to Land Board Officers 1921 at par 771 and 772 p 71 (annexure A6). (c) it is arguable that the tenth and eleventh editions of the regional parish map (annexure A40; par 71 and 72) which show the land as road is an error since: (i) there is no reference to such being gazetted as required for road widening (ii) notations in appropriate colours as specified in the Manuals of Procedures are not shown (as to which see par 70) (d) the land is not shown in red on the Roads Branch parish map in accordance with: (i) Instructions for Land Board Officers (annexure A6; par 73); or with (ii) the Manual of Procedures 1961 (annexure A7, par 73) or with the Manual of Procedures 1979 (annexure A5, par 73)

41 At par 75 of her affidavit Ms Hughes deposes to her extensive searches of the records of the land kept by LPMA and expresses the view that: (a) the land was incorrectly shown as road on the tenth and eleventh editions of the regional parish maps; (b) the Roads Branch parish map does not show the land as a road; (c) there are no additional notes contained on the Crown plan such as a reference to gazettal for road widening; (d) the Crown plan for the land has been allocated a county small number. Small number 1497 is for the County of Gloucester; (e) the Crown plan G6460-1497 (Hughes' affidavit 21 June 2010, annexure A34) also shows no gazettal information for road widening noted on it in accordance with office practice of the former Department of Lands and the LPMA. 42 The Public Roads Act (1902) applied in 1968. Section 6 of the Public Roads Act (1902) contains a definition of road. There is no evidence the land was proclaimed, dedicated under s 18, resumed or provided as a public thoroughfare pursuant to that Act. No other sections such as s 12 (compensation for resumption of land for roads), s 19-22 (closing of unnecessary roads) are relevant. Sections 32 and 33 are not relevant either because they concern "penalties" and "cost of removing obstructions". The land was not therefore a road under the Public Roads Act (1902) in 1968. Consequently it could not become a road under the Crown Roads Act (1990). Alternatively, it could not become a Crown road in 1968. 43 The words in s 3(1)(a) of the Crown Roads Act (1990) refer to a Crown road as "any road or land … being reserved for or left as a road". The application of this phrase is required as at 1968. The use of the words "required for road widening" were not caught by any definition of road under the Public Roads Act (1902) so as to make it a road. It was simply land, not a road. Nor can it be Crown road because there was no such definition in the Public Roads Act (1902). The expression "required for road widening" evidences the intention to reserve the land for road in the future and cannot result in land becoming at the same time the thing that is reserved. The expression evidences either the mere intention to reserve the land for road in the future, (at which time it presumably, but not necessarily, would become a Crown road). 44 Alternatively, the expression "required for road widening" became synonymous with "Crown road" the moment surveyor Hunter made his notation as a consequence of the operation of s 3(1)(a) of the Crown Roads Act (1990). The Minister's position is that the land could not have become a "Crown road" in 1968 by virtue of the provisions of s 3(1)(a) of the Crown Roads Act (1990). That Act did not commence until April 1992. In 1968 under the Public Roads Act (1902), road was defined as a "public road" and not a "Crown road". Section 3(1)(a) does not operate so to create a "Crown road" in 1968. The Crown Roads Act (1990) simply did not have this retrospective effect. As held in Barclay Homes (Australia) Pty Ltd v Fair Trading Tribunal and Anor [2001] NSWSC 711 at 17: "[T]he High Court has stated that perhaps no rule of construction is more firmly established that this - that retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter or procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only - see Re Athlumney; Exparte Wilson [1898] 2 QB 547 at 551-552 per Wright J cited in Mathieson v Burton (1971) 124 CLR 1 at 22-23 per Gibb J. As the High Court stated there are many authorities for the above proposition: 45 Since the land did not become a Crown road in 1968 by virtue of s3(1)(a) of the Crown Roads Act (1990) or otherwise, it could not have been caught by the transitional provisions of Sch 2 of the Roads Act (1993) so to continue as "Crown road" under that Act.

46 Land reserved as a road requires formal reservation of the land under the Crown Lands Consolidation Act 1913. The land was created as a splay, being a parcel of land between blocks in a subdivision. It continued as a splay. There was no formal reservation. 47 The use of the words "road variable width" for the area adjoining lot 3 in contrast to the words used for the land adjoining lot 4 demonstrates a clear intention not to make that area a road at that time. There has been no attempt to remark the road as a public road under the Public Roads Act (1902). 48 If the land became Crown public road it had to become part of Kinka Road and it has not since 1968. At best it could only be land reserved for a road. The Crown plan G6460-1497 refers to road widening and that is not sufficient. The formal processes for making a road under either under the Public Roads Act (1902) or the Crown Roads Act (1990) have not been followed. Procedures for the making of a road under the Roads Act (1993) have also not been followed for the land, such as the gazettal of unoccupied Crown land as a public road. First Applicant's submissions 49 Ms Hughes states (affidavit 21 June 2010, par 12) that notations on Crown plans until September 1971 were listed at p 50 of the Land Board instructions 30 June 1921 and included alignment, dedication, resumption under the Public Roads Act (1902) (from gazette) (see annexure A6 par 543(e)). Any such alignment, dedication, resumption is required to be noted on the Crown Plan. There is no such notation for the land on plan G6460-1497 (par 63 Hughes affidavit 21 June 2010). If there was a dedication of public road that would have required a notation in accordance with departmental practice. 50 There is a line marking which is a fence that is within one chain of the edge of the road, as required by par 769 of the Land Board Instructions 30 June 1921. That requires that all improvements such as fences, buildings, dams within one chain of each side of the road should be accurately delineated. That is referring to improvements to the side of the road not on the road. The fence line is clearly not on the road. 51 Ms Hughes refers to the absence of a gazette notification of a realignment or re-marking or for road widening in relation to the land as required by procedures in the 1902, 1990 and 1993 Acts. The Crown plan does not include the reference to gazettal that would be expected if it was intended to reserve road through surveyor Hunter's actions. 52 A reading of the plans which produces consistency ought be sought. The Roads Branch parish map is consistent with the 1968 Crown plan. At the front of lot 4 Kinka Road is described as 66 feet wide. If the land was intended to be included there should be a splayed section incorporated into the road with the notation "road variable width". This is so described in front of lot 5 (exhibit A p 130). Kinka Road also has areas where it is parallel, described as 66 feet wide on the Crown plans as shown at the front of lot 4. That interpretation is substantially supported by the Roads Branch parish map (exhibit A1/Hughes' affidavit 21 June 2010, annexure A42). 53 Section 3(1) is not expanding the classes of roads as presently existing but is calling up land left or reserved as a road by legislation prior to the Crown Roads Act (1990). The Crown Roads Act (1990) does not make new reserves or roads but picks up what has already been designated or reserved as a road by a prior Act. If not a road or reserved as a road under the Public Roads Act (1902) land cannot become road under s 3(1) of the Crown Roads Act (1990). Council's submissions Issue defined in Adams No 2 54 The issue continues to be that identified at [40] of Adams No 2 of whether the land became Kinka Road in 1968 as it satisfied the definition in s 3(1) of the Crown Roads Act (1990) of land "reserved or left as a road". Much of the argument focuses on the meaning of the words used in the notation plan of "reserved for road widening" identifying the purpose of the excised land when the northern boundary of lot 4 was altered, and that remains the debate. This was contrasted with the notation plan for the land adjoining lot 3. As held in Adams No 2, the words are a present intention but for a future use. That was correctly describing why it falls within the definition of a road and why it came within the definition of Crown road in s 3(1)(a) of land on an official plan being reserved for or left as a road.

55 The Court held the land did become Crown road in 1968 at [44] in Adams No 2. That conclusion is now challenged. The Council does not need the Court to go that far for the land to have been transferred to the Council as a consequence of the 2009 gazettal. The Council relies upon the actions that occurred in 1968, the re-surveying of the land and the writing of notations on the Crown plan to satisfy the definition in the Crown Roads Act (1990) so finding that the land also became a Crown road under the Roads Act (1993). Paragraph [44] in Adams No 2 however correctly states that the land became Crown road in 1968. For the Council to succeed the land had to be part of Kinka Road, a Crown road as at 1992. 56 The Court is undertaking a statutory interpretation exercise under the Crown Roads Act (1990). The task of the Court is to determine whether immediately before the commencement of the section there was an official map or plan that appropriately reserved the land as a road. The Interpretation Act 1987 states that plural includes the singular and vice versa. There are relevant maps and plans (plural) in any event. Transitional provisions 57 That the land has never been used as a Crown road is irrelevant (as stated in Adams No 2 at [44]). Section 34(1) of the Crown Roads Act (1990) provides a road need not be formed. Section 3(1) operates like a transitional provision in the Crown Roads Act (1990) by recognising the making of a Crown road prior to its coming into force. 58 The transitional provisions in cl 56 of Sch 2 to the Roads Act (1993) operate so that if it was a Crown road within the meaning of the Crown Roads Act (1990), the road is dedicated as a public road for the purposes of the Roads Act (1993) and is declared to be a Crown road within the meaning of the Roads Act (1993). The Roads Act (1993) in s 145(2) and (3) provides that all Crown roads are vested in fee simple. The land as part of Kinka Road was declared a Crown road by operation of the transitional provisions because it was a Crown road under the Crown Roads Act (1990), vested in fee simple in the Crown as Crown land and/or public road within the local government area vested in the appropriate roads authority. The Minister may, by order published in the gazette, transfer specified Crown road to another roads authority. Kinka Road was transferred to the Council in this manner. Drafting/surveying conventions/procedures 59 The Second Applicant relies on the Land Board Instructions 1921 (Hughes' affidavit 21 June 2010, annexure A6) about improvements such as fences being within one chain of a road. The heading on p 70 is "Drawing of Road Plans". The Second Applicant's counsel relied on this document in referring to Crown plan G6460-1497 (p 130 exhibit A). The Crown plan is not the Roads Branch parish map (exhibit A1). The drawing of road plan instructions refers to that parish map. For example item 704 on p 70 refers to "use the best mounted drawing paper" and item 766 "where the road is under...to an inch". The road plan (exhibit A1) is about 60 feet to the inch which meets that requirement. Page 70 is not relevant to the drawing of Crown plans. There are no doubt drafting conventions applying to the preparation of a Crown plan but whether or not this is a Crown road is not determined by whether or not the Crown plan shows a fence within or beside the road. Crown plans define Kinka Road 60 As an approach to statutory interpretation, if there is ambiguity which needs to be resolved the scope, object and purpose of the legislation must be considered. The Crown plan meets, and is agreed to meet, the definition of an official plan. The Roads branch parish map is prepared by including road gazettal notices and other formal reservations on the parish map. It is a document to which officials might refer but it is not an official document. The source document is the Crown plan.

61 Ms Hughes affidavit (21 June 2010) at par 59 states: "The dimensions of Kinka Road are defined by a number of adjoining Crown plans which link together." The definition is expressed in the plural and there is not one Crown plan for the entire length of this part of the road. To work out the entirety of Kinka Road, a Crown road, several Crown plans must be referred to. 62 Crown plan G6304-1497 (at Hughes' affidavit 21 June 2010, annexure A28) shows lot 4 with a cross on it. On the right hand side the first notation is for lot 4, see plan G6460-1497. That is surveyor Hunter's resurvey of lot 4. Annexure A34 is Crown plan G6460-1497 with the new boundary of lot 4 shown. On the bottom left hand side there is a reference marked table with nothing in it other than numbered pages on corners and then immediately under that, "cancels part plan G6304-1497". 63 Ms Hughes starts with the Crown plan that originally defined Kinka Road. She has not taken her analysis to its conclusion. The plan she relies on in par 59 of her affidavit has been in part cancelled by surveyor Hunter's plan so that Kinka Road is defined by the adjoining Crown plans. Properly construed adjoining Crown plans show the triangle as part of the Crown road. The first one at (Hughes' affidavit 21 June 2010) annexure A28 and then annexure A29 further to the west show lot 3 being crossed out. Lot 3 is crossed out because surveyor Hunter at the same time as he resurveyed lot 4 resurveyed lot 3 with the same set of notations. Lot 3 has been cancelled. This notation appears on the plan (at Hughes' affidavit 21 June 2010, annexure A33) stating "Cancels part plan 6303 1497."

64 The Roads Branch parish map (Hughes' affidavit 21 June 2010, annexure A42) as at 1971 does not show the land as a road. According to par 23 of Ms Hughes' affidavit, in the status inquiry involving a road the Roads Branch parish map is the first point of reference because it contains the most authoritative and detailed information about the roads. Roads Branch is a specialised branch in the LPMA that deals only with road issues. The Roads Branch is responsible for maintaining accurate information on the Roads Branch parish maps and other road files and maps. The Roads Branch parish map is a secondary source of information. It is in the same category as the regional parish maps. It is a document to which officials might refer but is not the official map. The official map is the Crown plan that Ms Hughes refers to in par 59 of her affidavit which defines the Crown road.

65 The Roads Branch only records roads that were formally created pursuant to the relevant legislation and in accordance with the office practice and procedure of that branch. Kinka Road including the land was not gazetted as a road. It was then formally created. It would not be included on the Roads Branch parish map until 5 June 2009. That parish plan is not an official record of a road which has been left or reserved as a road in an official plan.

66 The Minister's approach does not focus attention upon the primary documents, the Crown plans, rather it focuses upon the extrinsic summary, the Roads Branch parish map. He asks the Court to interpret the official plan by reference to secondary documents, the Roads Branch parish map. That is inconsistent with the tenth and eleventh editions of the regional parish maps. The secondary source plans do not assist in the interpretation of the official plans at all. They are meant to reflect upon them the information that comes from the official plans.

67 Kinka Road was not formally created as a road until 5 June 2009. That is important because under either the Crown Roads Act (1990) or the Public Roads Act (1902), if it had been gazetted earlier as a public road it would not be a Crown road. If within s 3(1)(i), (ii) or (iii) of the Crown Roads Act (1990) it is not a Crown road, having not been notified, proclaimed or dedicated as a public thoroughfare or public way. If it is a public thoroughfare or a public way, it is not a Crown road. In s 3(1) of the Crown Roads Act (1990) public road means, "Any land proclaimed, dedicated, notified, resumed or otherwise established whether before or after the commencement of this section as a public thoroughfare or public way but does not include a Crown road." The formally dedicated, notified, gazetted, reserved roads are public roads. Those roads which have not formally been created as public roads prior to the commencement of the Crown Roads Act (1990) but which were Crown land that had been indicated on official maps or plans as being reserved or left as a road, are Crown roads. The land is not a public road so that whether it has been gazetted is not relevant. The Public Roads Act 1902 68 The Public Roads Act (1902) is irrelevant for the purposes of assessing whether the Crown Roads Act (1990) definition is satisfied. The Public Roads Act (1902) does not apply because it does not have to have been left as a road under that Act to satisfy the Crown Roads Act (1990). The statutory question arises by reference to the definitions in the Crown Roads Act (1990). Interpretation of those questions in the Crown Roads Act (1990) does not require consideration of what might have been done under the Public Roads Act (1902). The Crown Roads Act (1990) does not say for the purposes of s 3 that any road or land had to be reserved as a road in accordance with the Public Roads Act (1902). 69 If that submission is wrong it makes no difference. Section 6 defines road. The Public Roads Act (1902) refers to roads and public roads. Section 18 refers to a road being dedicated by reference to any road, or closure of unnecessary roads. Internally in the definition of road the same possibilities as in the Crown Roads Act (1990) arise as the words are very similar. If this is wrong the definition of roads in s 6 has similar concepts to s 3(1)(a) of the Crown Roads Act (1990). Under the Public Roads Act (1902) a road can be a formally proclaimed, dedicated or resumed road, or a road can be left in an official plan as a road. Under the Public Roads (1902) in 1968 there was an official Crown plan, which left the land as a road. The same question arises as for the purposes of the Crown Roads Act (1990), was it reserved or left for a road when the plan says "required for road widening". That is the only matter which ends up exercising the Court's mind. Not part of Kinka Road 70 The Minister also argues that if the land was a Crown road it was not a part of Kinka Road and was not transferred to the Council under the Roads Act 1993. There was a different character of public road called Crown public roads at the time of the 2009 gazettal. There is no reason to find that the land was a Crown road but not part of Kinka Road given the official plans or possibly just common sense. Paragraph 59 of Ms Hughes' affidavit (21 June 2010) identifies what Kinka Road is by reference to Crown plan G6460-1497 (see annexure A28). That states the road is 66 feet wide and then of variable width. However, according to Ms Hughes affidavit (21 June 2010) at par 59, those are the dimensions of Kinka Road. That defined it subject to Crown plan G6460-1497 (annexure A34) which redefined Kinka Road immediately in front of lot 4. Certificates of Title/other plans 71 Another official plan is the Certificate of Title (vol 14337 folio 151 for lot 3 section 2 DP 114374; appearing at Hughes' affidavit 21 June 2010, annexure A49), now cancelled, showing the land as Kinka Road. Ms Hughes (at par 34 affidavit 21 June 2010) considers lot 3 and refers to the Certificate of Title which shows Kinka Road on the northern boundary of lot 3. She does the same analysis for lot 4 but does not unfortunately include the certificate of title for that lot. 72 The official plans, being the Crown plan, Certificate of Title and at least two regional parish maps, show the land as part of Kinka Road. Only the Roads Branch parish map does not show the land as part of Kinka Road, because it was not gazetted as a road pursuant to any of the relevant legislation. Finding 73 In accordance with s 151(1) and (2) of the Roads Act (1993) the Minister transferred Kinka Road to the Council in June 2009. Whether the land was also then transferred to the Council as part of Kinka Road is in issue. That in turn requires consideration of whether the land became part of Kinka Road in 1968 when the boundary of lot 4 was resurveyed and the land was removed from lot 4. In Adams No 2 at [40] I held that the issue was whether the land then became part of Kinka Road as it satisfied the definition of Crown road in s 3(1) of the Crown Roads Act (1990). I made a preliminary finding on that issue in Adams No 2 by considering the application of the Crown Roads Act (1990). I now have far more material, largely in the affidavit evidence of Ms Hughes, than I had before me in Adams No 2. This evidence includes a number of plans which are said to satisfy the description of official plans as called up in the definition in s 3(1) of the Crown Roads Act (1990). 74 In Adams No 2 I considered the Crown plans prepared by surveyor Hunter in 1968, the regional parish map (exhibit 2) (now identified as the tenth edition) and Certificates of Title for lots 3 and 4 in reaching my preliminary finding. In this phase of the proceedings I have been provided with extracts of further editions of the regional parish map (ninth and eleventh editions) and the Roads Branch parish map relevant to the land. As identified in the evidence and the parties' submissions these different maps and plans are not consistent. Two editions of the regional parish maps show the land as within Kinka Road and the Roads Branch parish map not showing the land as part of Kinka Road. 75 In terms of the statutory framework for the making of roads over time, the Roads Act (1993) distinguishes between Crown roads and public roads, see for example s 145(2) and (3) which refer to the ownership of Crown roads (the Crown) and public roads within a local government area (the appropriate road authority). Section 12 identifies how unoccupied Crown land can be dedicated as a public road and the land becomes a Crown road if declared to be so in the notice (a Crown public road). The transitional provisions in cl 56 Sch 2 apply where there is an existing Crown road, here Kinka Road. If a road was a Crown road as defined in the Crown Roads Act (1990) before the Roads Act (1993) commenced in 1993 that Crown road is dedicated as a public road and declared a Crown road under the Roads Act (1993). It is accepted that Kinka Road without the land was a Crown road under the Crown Roads Act (1990). Kinka Road therefore became a public road and also a Crown road under the Roads Act (1993). The transfer of Kinka Road to the Council on 5 June 2009 was pursuant to s 151 of the Roads Act (1993) which empowers the Minister to transfer Crown roads to other authorities. 76 The issue is whether the land also satisfies the definition of Crown road following surveyor Hunter's survey of the boundaries of lot 4 and excision of the land from lot 4 in Crown plan G6460-1497 in 1968. At the time that lot 4 was resurveyed and the land excised, the Public Roads Act (1902) was in force. Is the Public Roads Act 1902 relevant? 77 The first issue to consider is the Minister's (and First Applicant's) submissions that the Public Roads Act (1902) applied in 1968 so that the land had to satisfy the requirements of that Act for the making of a road in or after 1968 in order to satisfy the requirements for being a Crown road under the Crown Roads Act (1990). Both Applicants argue that the land had to satisfy in 1968 the definition of road or otherwise be made as a road in accordance with the Public Roads Act (1902) in order to be a Crown road under the Crown Roads Act (1990). As it was not so definable or made at that time it could not become a road by operation of the Crown Roads Act (1990) when that Act came into force in 1992. 78 The Public Roads Act (1902) defines road in the definition section in similar terms (albeit with slightly different drafting) to Crown road in the Crown Roads Act (1990) but is concerned with the making of public roads not Crown roads. As set out in par 10 above, road includes any land proclaimed, dedicated, resumed as a public thoroughfare or dedicated as a road under s 18 meaning any land defined reserved or left as a road before or after the Act came into force in the measurement or granting of Crown land. This was the Act as in force in 1968 but the Act does not refer to Crown roads, it refers to the making of roads or alternatively as public roads. Under the transitional provisions in Sch 2 of the Crown Roads Act (1990), which repealed the Public Roads Act (1902), cl 5 states that existing dedications (as public road) under the Public Roads Act (1902) continue as made under the Crown Roads Act (1990) but that clause provides no assistance in this case. No dedication of Kinka Road, whether with or without the land, as a public road was made under the Public Roads Act (1902). That Kinka Road is accepted as having become Crown road under the Crown Roads Act (1990) suggests this part of the Applicants' arguments is incorrect. If Kinka Road had been proclaimed, dedicated, resumed as a public road under the Public Roads Act (1902) it could not be a Crown road under the Crown Roads Act (1990), as submitted by the Council (par 67 above), because the definition of Crown road under that Act excluded public thoroughfares or public roads. 79 As submitted by the Council in relation to the application of the Public Roads Act (1902), the definition of Crown road in s 3(1) of the Crown Roads Act (1990) did not require that in 1992 when the Act came into force the land had to satisfy the definition or already be made as a road under the Public Roads Act (1902) (in order to satisfy the Crown Roads Act (1990). Crown road is defined in s 3(1) of the Crown Roads Act (1990). Public road is separately defined under s 3(1) of the Crown Roads Act (1990) as land proclaimed, dedicated, notified or resumed as a public thoroughfare but does not include a Crown road. Further the Public Roads Act (1902) did not refer to Crown roads separately from public roads. Accordingly, the definition of Crown road in s 3(1) can apply to any land which meets the definition before the commencement of the section, as stated in the definition. Satisfaction of that definition does not depend on satisfaction of the Public Roads Act (1902) in relation to the making of a road. 80 The Minister has argued (par 42 above) that such an approach results in the retrospective operation of the Crown Roads Act (1990). The passage quoted from Barclay Homes (par 44 above) refers to such an interpretation not being given to a statute so as to impair an existing right or obligation. The definition of Crown road refers specifically to any land which was before the commencement of the section vested in the Crown. It specifically contemplates retrospective operation and is apparently the first time Crown road was defined in roads legislation. The Roads Act (1993) also has a definition of Crown road which has changed from that in the Crown Roads Act (1990) to be defined as a public road declared to be a Crown road. Since there does not appear to be any impairment of an existing right or obligation in such an approach to construction this approach is appropriate. 81 As Crown road the land would be caught by the transitional provisions of Sch 2 of the Roads Act (1993) as Kinka Road was. The parties have not disputed that Kinka Road is a Crown Road by virtue of the Crown Roads Act (1990). Application of s 3(1) of Crown Roads Act 1990 82 It is now necessary to revisit my finding in Adams No 2 that the land satisfied the definition of Crown road in s 3(1) as a result of what occurred in 1968. The significant part of my reasoning is set out in par 6 above ([40]-[45]) where I considered the amended boundary of lot 4 in G6460-1497 [41], referred to a possible dashed fence line, considered the words "required for road widening" met the definition in s 3(1) [43] and referred to the parish map and Certificate of Title for lot 4 then in evidence [45].

(i) indicated on official maps or plans 83 The parties' arguments raise the issue of what "indicated on official maps or plans" in the definition in s 3(1) means. There is no definition of "official maps or plans" in the Crown Roads Act (1990) or any other roads legislation. Applying the ordinary meaning of the words as found in the Macquarie Dictionary Online (Macmillan Publishers Australia, 2010) "official" means "of or relating to an office or position of duty, trust, or authority; authorised or issued authoritatively". As submitted by the Applicants, the Act does not require a regulatory or statutory map or plan, simply an official map or plan. The parties agree that Crown plans are official plans. As submitted by the Council, s 151(4) of the Roads Act (1993) provides some assistance in working out what official plans might be. It refers to "official plans of survey …" which is what a Crown plan is. 84 An official map can be interpreted to include those kept by the department responsible for the administration of the roads legislation. I have not been directed to any statutory framework under the roads legislation or elsewhere which identifies what the status of the respective parish maps are. The two types of parish maps in evidence (regional and Roads Branch) are prepared in different parts of the LPMA presumably with different purposes. The Minister argues, relying on the evidence of Ms Hughes, that the best evidence of what is a road is what is contained on the Roads Branch parish map. The Minister submits that the Roads Branch parish map prepared by that branch of the LPMA is the most authoritative because the branch is responsible for keeping track of roads. Further, according to the Second Applicant, it prepares road plans which clearly relate to the subject matter of the Roads Act (1993) and therefore such maps have greater importance in this matter. 85 The practice of the Roads Branch in including in its parish maps only those roads formally approved under relevant legislation meaning those roads that have been gazetted or formally notified does not reflect the terms of the definition of s 3(1) of the Crown Roads Act (1990). That contemplates the creation of Crown roads being reserved or left as a road on an official plan or map through processes other than gazettal so that not all Crown roads which meet the definition in s 3(1) will necessarily be shown on a Roads Branch parish map. Administrative processes, no matter how thorough, cannot substitute for the application of the words of a statute, here the Crown Roads Act (1990). 86 Further, for the reasons articulated by the Council (at par 64-66 above) that is a secondary source as it is a compilation of information from primary source documents such as Crown plans. 87 As summarised by the Council, par 15 of Ms Hughes' affidavit deals with regional parish maps. Regional parish maps record roads that have been gazetted under the procedures of the Roads Act (1993) or earlier roads legislation as well as showing proposed roads. There was no gazetted road until 5 June 2009. Roads are not shown on the regional parish maps to survey standard which does not allow the location of or dimensions of a road to be determined to a high degree of accuracy. Ms Hughes states: "For accurate dimensions of a road it's necessary to refer back to a Crown plan or deposited plan." Ms Hughes' affidavit at 71 on refers to specific regional parish maps. The tenth edition (exhibit 2) already before the Court in Adams No 2 shows the land as a road as does the 11th edition. Ms Hughes states that both are mistaken. The difficulties of relying on secondary sources such as parish maps is demonstrated by Ms Hughes' evidence that the tenth and eleventh editions of the regional parish map incorrectly show the land as part of Kinka Road. These are also official plans which are compiled from primary documents. 88 The certificates of title for lot 3 referred to by Ms Hughes and as tendered in evidence previously for lot 4 show Kinka Road on the northern boundary of both lots. The Applicants submit that the purpose of such certificates is to define the lots the subject of the certificate for the purposes of the Real Property Act 1900 rather than delineate the boundaries of Kinka Road, which submission I accept. The certificate of title for Lot 4 is not therefore necessarily confirmative that the land is part of Kinka Road. (ii) Crown plans 89 The Crown plans have in a detailed way re-measured and re-surveyed lot 4 showing in detail the precise area of the road for the purposes of that which is transferred. There is no need to go beyond the relevant Crown plans in order to determine if the Crown Roads Act (1990) has been satisfied.

90 Kinka Road including the land is defined by more than one Crown plan as stated in par 59 of Ms Hughes' affidavit. The Crown plan G6460-1497 which identifies the land was created in 1968. The parties agree that is an official plan as referred to in s 3(1). That is the primary official plan that should be considered for the purposes of determining whether the land satisfied the definition of Crown road in s 3(1). Whether land part of Kinka Road 91 There was close scrutiny of Crown plan G6460-1497 in the earlier and these proceedings. In Adams No 2 I held in [41] that the boundary line on the north and south boundaries of Kinka Road is shown as a solid line including the new boundary line along the northern boundary of lot 4 after the land was excised. I also held that the words "required for road widening" were an expression of intention to reserve the land at that time for the future use of road widening in [43]. 92 The Minister submitted that the Crown plan G6460-1497 does not indicate the land in the appropriate colour(s) required by the relevant Manual of Procedures 1961. My finding needs to be reassessed in light of the requirements in the Manual of Procedures for the depiction of roads in certain colours, which colours have not been used to depict the land as road on Crown plan G6460-1497. Further, as argued by the First Applicant, the description of Kinka Road at lot 4 in G6460-1497 is 66 feet wide, not variable width as the variation in boundary would suggest is necessary to describe the road width at that point if the land was incorporated into Kinka road. By way of contrast, the words "variable width" do appear nearby in another section of Kinka Road where the road is wider than 66 feet. 93 I held in Adams No 2 that the phrase "required for road widening" annotated on the land on Crown plan G6460-1497 did apply to bring the land within the definition of Crown road in s 3(1) of the Crown Roads Act (1990). The Minister submits to the contrary that this meant the portion was simply identified as Crown land, not a road. The word splay is used by the department to describe such areas as advised in Ms Hughes' affidavit (see par 35 above). In submissions in reply the Minister also submitted that there is no mechanism within the phrase "required for road widening" to cause the land to become a road. The only way the land became a road if the Council is correct is by the operation of the definition in the Crown Roads Act (1990) when this became law in 1992 and not when the words were written by the surveyor in 1968. There is force in that submission in the context of considering the words written on the Crown plan G6460-1497. While I have held that the Crown Roads Act (1990) can operate so that land identified on an official map or plan made before the Crown Roads Act (1990) can be Crown road as provided in s 3(1), that finding suggests that close consideration of the words on a Crown plan is necessary. 94 Contrary to my finding in Adams No 2 I now consider that the words "road variable width" used in relation to the drawing of the northern boundary of lot 3 should be considered in contrast to the words "required for road widening" used for the land by the surveyor in 1968. I accept there are differences between these words so that the words "required for road widening" do not alone have the effect of the land being incorporated into Kinka Road as land reserved or left as a road in the measurement of Crown road. The words refer to a possible future use of the land for road purposes and are not suggestive of a definitive reservation as road in 1968.

95 Taking into account the additional matters relevant to the interpretation of Crown plan G6460-1497 referred to in pars 92-94, I consider the land did not become part of Kinka Road in 1968 but rather was reserved as Crown land and did not therefore become Crown road as part of Kinka Road under the Crown Roads Act (1990). It was not transferred to the Council by the gazettal notice of 5 June 2009. Its status is as land in Crown land reserve No 753168 reserved for future public requirements, in accordance with the series of Crown land reservations appearing at par 21(g)-(i) above. 96 For completeness I note that at [42] in Adams No 2 I referred to a dashed line on Crown plan G6460-1497 as likely to be a fence line. The parties agree the dashed line is a fence line (now confirmed in evidence). The First Applicant relied on the Land Board instructions (par 50 above) to argue the dotted fence line on the land shows it is not part of Kinka Road. I agree with the Council's submissions that the instructions for the drawing of road plans are not directed to a Crown plan but to a road plan, which is likely to be the Roads Branch parish map. Once again, the location of the fence line is not therefore conclusive of whether the land is part of Kinka Road.

97 One final observation I would make is that while the regional parish maps are not primary documents, they are official plans. That there is different information provided on the status of the land in the ninth edition compared to the tenth and eleventh editions suggests that a cautious approach to whether the land became part of Kinka road is warranted. Appropriate relief 98 Having reached my final conclusion that the land is not owned by the Council, it follows that the Council is unable to give owner's consent for the land for the purposes of DA 37/2009. There is no basis for the Court to exercise its discretion under s 25B of the Land and Environment Court Act 1979 in the terms requested by the Council. The Minister seeks a declaration that the state of New South Wales is the owner of the land inter alia. I will ask the parties whether that or further declarations sought by the Minister should be made. The First Applicant seeks a declaration that DA 37/2009 is void because it was granted over land for which no owner's consent has been given. Before making that declaration the views of the Minister as the owner of the land should be sought. Costs should be reserved.

05/11/2010 - Party omitted from coversheet - Paragraph(s) Coversheet

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