Anderson v City of Stonnington [2017] VSCA 229

ROADS - Para (ca) of definition of 'road' in Local Government Act 1989 s 3(1) - Definition of 'public road' in Road Management Act 2004 s 17 - Whether registration of laneway on local council's register of public roads sufficient to satisfy s 17(1)(e) of 2004 Act.

ROADS - Definition of 'road' in Local Government Act 1989 s 3(1) - Inclusive definition - Whether status of laneway as a public highway sufficient - Whether laneway 'a right of way' under para (b) of definition.

PRACTICE AND PROCEDURE - Whether applicants should be permitted to rely on a point not argued at trial.

1 This is an application for leave to appeal against an order of a judge of the Trial Division refusing to make declarations sought by the applicants that a bluestone paved laneway in South Yarra was neither a road nor a public highway.[1]

2 The laneway is located between 19 and 21 William Street in South Yarra ('Lane') within the municipal district of Stonnington. At the eastern end, the Lane abuts William Street and at the western end it abuts a walkway known as 'Lovers' Walk' which runs along a railway line between Toorak Road and Chapel Street. The public has used the Lane over many years, including to access the South Yarra train station via Lovers' Walk.

3 The second respondent, Victorian Rail Track ('VicTrack'), has been the owner of the land on which the Lane runs since 1996.[2] However, if the Lane is a 'road' as defined in the Road Management Act 2004 ('RMA'), it is vested in the first respondent, the City of Stonnington ('Council'),[3] which is the 'responsible road authority' under the RMA for the municipal district of Stonnington.[4] Lovers' Walk is owned by VicTrack and is subject to a lease to the Council.

4 Each of the properties at 19 and 21 William Street has an easement over the Lane which allows access to the rear of the properties. The applicants, John and Demitra Anderson, are the registered proprietors of 21 William Street ('Applicants' Land'). They claim that the use of the Lane by the public has resulted in numerous acts of nuisance which have affected their enjoyment of their property. They commenced a proceeding in the Trial Division after the Council required them to remove a fence across the Lane which they had erected to abate the alleged acts of nuisance.

5 The applicants sought declarations concerning the legal status of the Lane and damages for the loss and damage they suffered due to the alleged acts of nuisance. The parties agreed that the application for declaratory relief should be determined by the judge as a preliminary question in order to clarify and expedite the applicants' action in nuisance.

6 The declarations sought by the applicants were that the Lane is not:

(a) a 'road' within the meaning of the Local Government Act 1989 ('LGA') ('first declaration');

(b) a 'road' within the meaning of the RMA ('second declaration');

(c) a 'road' within the meaning of the common law ('third declaration'); or

(d) a 'public highway' within the meaning of the common law ('fourth declaration').

7 The definition of 'road' in s 3(1) of the RMA includes a 'public highway', which in turn is defined as 'any area of land that is a highway for the purposes of the common law'. Under s 17 of the RMA, a 'public road' includes 'a road to which subsection (3) applies'.[5] Section 17(3) provides that a road authority 'must register on its register of public roads a road in respect of which the road authority has made a decision that the road is reasonably required for general public use'. The definition of 'road' in s 3(1) of the LGA includes 'a public road under the [RMA]'.[6]

8 The judge held that the Lane is a 'public highway' within the meaning of the common law because it had been dedicated as such through long and continuous use by the public with the acquiescence of its owners.[7] Accordingly, she declined to make the fourth declaration. As a result of the inclusion of 'public highway' in the definition of 'road' in the RMA, the judge held that the Lane was a 'road' for the purposes of that definition.[8] Accordingly, she declined to make the second declaration.

9 The judge also declined to make the first declaration on the basis that the inclusion of the Lane on the Council's register of public roads conclusively established that it was a 'public road' under the RMA and thus a 'road' under the LGA.[9] Finally, the judge declined to make the third declaration. She decided that, as the common law does not recognise a 'road' as a right of way that can arise over land, other than as a possible substitute for the term 'public highway', such a declaration would be ineffectual.[10]

10 The applicants seek leave to appeal the judge's refusal to make the first, second and fourth declarations on nine grounds. Grounds 1-2 and 3-5 seek to impugn the judge's decision that the Lane is a public highway at common law and a road for the purposes of the RMA because the Lane had been dedicated as a public highway. Those grounds are discussed in Part A below. Grounds 6-8 seek to impugn the judge's finding that the inclusion of the Lane on the Council's register of public roads was conclusive of its status as a 'public road' within the meaning of the RMA and, thus, as a 'road' under the LGA. Those grounds are discussed in Part C below.

11 The applicants do not seek leave to appeal against the judge's refusal to make the third declaration.

12 After filing their notice of application for leave to appeal, the applicants applied for leave to add a further proposed ground of appeal, Ground 2A, which is that neither VicTrack nor its predecessors in title had the power to dedicate the Lane as a public highway. The respondents oppose the leave application. The leave application and Ground 2A are discussed in Part B below.

13 By its notice of contention, the Council submits that the judge ought to have found that the Lane is a 'road' under the LGA for reasons that do not depend on whether it is a 'public road' pursuant to the RMA. The notice of contention is discussed in Part D below.

14 The applicants' action in nuisance against VicTrack has been stood over pending the determination of this application for leave to appeal.

15 For the reasons that follow, the application for leave to appeal will be granted but the appeal will be dismissed.

Agreed facts and other relevant evidence at trial

16 The trial was conducted on the basis of a statement of agreed facts and evidence on affidavit. No deponent was cross-examined. The statement of agreed facts, as set out in the judge's reasons, was as follows:

(a) The [applicants] are the registered proprietors of the ... land more particularly described in Certificate of Title Volume 4371 Folio 077 [Applicants' Land].

(b) The land described in Certificate of Title Volume 9990 Folio 084 ('the railway land') is registered in the name of the Metropolitan Transit Authority and allocated to [VicTrack] by virtue of an Allocation Statement dated 30 June 1996 pursuant to the Rail Corporations Act 1996 (superseded by the Rail Management Act 1996).

(c) In 1893, Certificate of Title Volume 2473 Folio 475 was registered ('the original land').

(d) The original land contained a right of carriageway over the laneway delineated and coloured brown on the map shown on the title.

(e) In 1908, Certificate of Title Volume 3268 Folio 446 was registered ('the parent railway land').

(f) On 16 August 1917, the Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne were registered as the proprietors of the original land.

(g) On 24 June 1920, the Registrar of Titles registered Transfer of Land numbered 947758.

(h) On 6 May 1920, by virtue of Transfer of Land numbered 947758, the Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne transferred to the Victorian Railways Commissioners the land coloured on the plan shown on Transfer of Land numbered 947758, being part of the original land.

(i) On 22 June 1920, the Registrar of Titles registered Creation of Easement numbered 947759.

(j) By virtue of Creation of Easement numbered 947759, the Victorian Railways Commissioners granted to the Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne and their transferees in fee simple full and free right and liberty to and for them as registered proprietors or proprietor for the time being all that piece of land being the [Applicants' Land] or any part thereof and their his or her tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along all that piece of land being part of the railway land, being the land delineated and coloured brown on the plan annexed to creation of Easement numbered 947759 [being the Lane].

(k) On 24 June 1920, the Registrar of Titles registered the title for the [Applicants' Land]. The title designated the [Lane] as a road.

(l) On 24 June 1920, Equity Trustees Executors and Agency Company Limited and Elizabeth Charlotte Donne were the registered proprietors of the [Applicants' Land].

(m) Immediately before registration of Certificate of Title Volume 4371 Folio 077, the [Applicants' Land] was part of the original land.

(n) On 23 December 1925, the Registrar of Titles registered Certificate of Title Volume 5081 Folio 179 ('the neighbours' land').

(o) The neighbours' land comprised all that land delineated and coloured red on the map shown on Certificate of Title Volume 5081 Folio 179.

(p) On 13 October 1978, Robert George Simpson and Roy McGowan Simpson became the registered proprietors of the neighbours' land.

(q) On 20 May 1982, the Registrar of Titles registered Creation of Easement numbered J935707.

(r) By virtue of Creation of Easement number J935707, the Victorian Railways Board granted Robert George Simpson and Roy McGowan Simpson and their and each of their respective executors, administrators and transferees in fee simple as the registered proprietor or proprietors for the time being of the neighbours' land full and free right and liberty to and for them at all times thereafter to use for carriageway purposes all of the [Lane], and for such carriageway purposes to have subject to the rights of other persons entitled to easements for carriageway purposes thereover, full and free right and liberty to and for them and their tenants, contractors, servants, agents, workmen and visitors at all times and from time to time hereafter to go pass and repass thereover either with or without vehicles, machines, horses or other animals, carts or other carriages and for all purposes into and out of and from and over the [Lane].

(s) On 22 November 1990, the Registrar of Titles registered Plan of Consolidation 168796S.

(t) Certificate of Title Volume 9990 Folio 084 was created by Plan of Consolidation 168796S.

(u) The [Lane] is now contained in part of the railway land.

(v) On or about 7 July 2004, the [Council] registered the [Lane] as a laneway (asset number 19568) on the [Council's] Register of Public Roads.

(w) On 26 April 2012, the [applicants] were registered as proprietors of the [Applicants' Land].

(x) Since 26 April 2012, the [applicants] have lived at the [Applicants' Land].

(y) On or about 22 January 2013, the [applicants] submitted an application to [VicTrack] to purchase the [Lane] ('the application').

(z) On or about 7 March 2013, [VicTrack] notified the second [applicant] (Mrs Anderson) that it had reviewed the application and that it had determined that the [Lane] was not available for sale.

(aa) On or about 27 November 2013, the [applicants] caused a fence to be erected at the western end of the [Lane].

(bb) On or about 19 December 2013, the [Council] removed the fence that had been erected at the western end of the [Lane].

(cc) On or about 29 August 2014, the [applicants] again caused a fence to be erected at the western end of the [Lane]. They subsequently removed that fence on or about 1 October 2014.

(dd) On 29 October 2014, the [applicants] met with representatives from the [respondents] and Victoria Police at the Prahran Town Hall. At the meeting, the parties discussed a number of actions to address the [applicants'] concerns, including without limitation:

(i) Victoria Police briefing the Community Action Response Team to patrol the [Lane] on Friday and Saturday nights;

(ii) Victoria Police scheduling foot patrols down Lovers' Walk and the [Lane];

(iii) Victoria Police arranging for a security assessment of the properties and the [Lane], and making recommendations to create a safer environment; and

(iv) the [Council] offering a graffiti removal service in respect of the wall of the [Applicants' Land] along the [Lane].

(ee) On or about 5 December 2014, Leading Senior Constable Mark James of the Southern Metropolitan Region - Division One Crime Prevention Officer, prepared a report containing observations and recommendations based on an audit conducted in respect of the [Lane]. The report contained the following observations and recommendations (amongst others):

(i) the [Lane] is well cared for;

(ii) sightlines are good with almost no places that offered concealment;

(iii) residents should be encouraged to identify and report suspicious activity;

(iv) the [Lane] is adequately illuminated at night;

(v) light bulbs should be replaced, and the reflectors and glass covers should be cleaned;

(vi) graffiti and litter should be cleaned regularly;

(vii) the [Lane] is unremarkable; and

(viii) the [Lane] is one of the safer lanes within the City of Stonnington.

(ff) The [Lane] has been used as a public pedestrian access to Lovers' Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed as a laneway, or alternatively for a long period of time.

(gg) The [Council] has not declared by notice published in the Victoria Government Gazette the [Lane] to be a public highway pursuant to section 204 of the [LGA].

17 Agreed fact (ff) is highly significant. We will refer to it as the 'Long User Agreed Fact'.

18 The easement the subject of agreed fact (i) was granted by the Victorian Railways Commissioners ('VR Commissioners') to the then owners of the Applicants' Land by deed dated 22 June 1920 ('1920 Easement').

19 The easement the subject of agreed fact (q) was granted by the Victorian Railways Board to the owners of 19 William Street, South Yarra ('Neighbours' Land') by deed dated 19 April 1982 which recorded a consideration of $500 ('1982 Easement'). The deed records the consent to the easement by the City of Prahran, the predecessor of the Council. The Governor in Council authorised the easement by an Order in Council dated 20 October 1981.

20 The Lane is shown on a 'land record plan' dated 29 May 1917 that was exhibited to an affidavit sworn by VicTrack's land tenure and records manager, Matteo Del Campo, on 10 March 2016. The letters 'R of W' appear over the area of the Lane. It is safe to assume that these letters stood for 'Right of Way'.

21 In an affidavit sworn on 19 February 2016, Sally Burgess, VicTrack's manager of property services, stated as follows:

I have inspected VicTrack's books and records in relation to the [Lane]. During that inspection, I did not locate copies or records of any consent given by VicTrack to any person to use the [Lane], other than the easements which are registered against the title to the [Lane].

22 In an affidavit sworn on 19 February 2016, Michael Blackburn, VicTrack's land assessment manager, relevantly stated the following about dealings between the applicants and VicTrack in relation to a possible sale or lease of the Lane to them:

(a) On 18 December 2012, the applicants emailed VicTrack and asked it to consider selling to them 'the piece of land at [their] end of the [Lane]'.

(b) On 4 January 2013, VicTrack emailed the applicants and informed them that applications to lease or buy VicTrack properties had to be completed online. The email stated that before VicTrack could accede to any such application, it was 'required by legislation to seek a number of clearances and approvals from Government Agencies'. The email also stated that, as the Lane provided access to Lovers' Walk, which was leased to the Council, the Council would also need to be consulted.

(c) On 22 January 2013, the applicants made an online application to purchase part of the Lane or, if it was not available for sale, to lease it.

(d) VicTrack considered the applicants' application. Its investigations indicated that the Lane 'had been used as a public pedestrian access to Lovers' Walk for many years' and that the Council was considering a temporary closure of the Lane. On 15 February 2013, VicTrack informed the Council that it 'would have no objections in the installation of a fence to prevent access from Lovers' Walk'.

(e) On 20 February 2013, VicTrack decided that it would not sell the Lane to the applicants and that it should seek clearance from the Department of Transport to grant a lease or licence to the Council in respect of the Lane.

(f) On 7 March 2013, VicTrack sent a letter to the applicants to advise them that it had 'determined that the [Lane] is not available for sale'.

(g) On 20 September 2013, the applicants, through their solicitors, made an offer to VicTrack to purchase the Lane for $50,000. VicTrack responded on 21 November 2013 stating that if the applicants could obtain the Council's support for the permanent closure of the western entrance to the Lane, VicTrack 'would be prepared to consider [the] matter further'.

(h) On 9 January 2014, VicTrack informed the applicants that the Council was of the view that the Lane was 'a road ... based on long term use'.

(i) In an internal email dated 17 April 2014, Mr Blackburn stated the following:

We would be happy to sell the [Lane] to either party as it's a permanent non rail use of land and should not be under our control. ... Ideally it should be sold to Council as a defacto public laneway - for about 100 years - but if Council don't want to and is happy for us to sell our remaining interest in the [Lane] (given the existing carriageway easements encumbering it) to the adjoining owner, then that could be plan B. Council has applied in the interim to lease/licence [the Lane]. They advise [it's] to strengthen their control of the [Lane], despite its opinion that they already own it.

23 In his affidavit, Mr Blackburn stated that, at the time he wrote his email dated 17 April 2014, VicTrack had not sought the necessary approvals to sell the Lane, including confirmation from the Department of Transport 'that the [Lane] was not required for future transport purposes'.

24 In an affidavit affirmed on 23 February 2016, Steven Relf, the Council's manager of physical operations, who had been employed by the Council and its predecessor since 1990, relevantly stated as follows:

Subject to two periods when the [applicants] erected a fence at the Western end of the [Lane], the [Lane] has, to my knowledge, been open to pedestrian traffic for the entire time of my employment with [the] Council.

...

The [Lane] is cleaned a minimum of three times per year in accordance with [the] Council's cleaning schedule. This may increase if there are specific requests in relation to the [Lane].

Council is responsible for maintaining the [Lane].

25 At trial, the Council filed affidavits from six individuals who live near the Lane stating that they and other members of the public have used the Lane for many years. One deponent stated that he and his wife have used the Lane ever since they moved into the area in 1974 and that he had observed other people using the Lane during that period.

26 The Council also tendered a bundle of documents prepared by it in November 1995 as part of a tender process for the contracting out of street cleaning services in its municipal district.[11] The documents described the various routes for which the Council had assumed responsibility for cleaning, including adjacent rights of way and lanes. One of the routes identified for cleaning was William Street and the lanes running off it, including the Lane.

27 On 18 September 2014, the applicants commenced the proceeding against the Council and applied by summons for an interlocutory injunction to restrain the removal of the fence which they had erected across the Lane along its border with Lovers' Walk.

28 On 29 September 2014, a judge of the Trial Division dismissed the summons and ordered that the originating motion stand as a writ and that a statement of claim be filed and served. The fence was removed. VicTrack was subsequently added as a defendant.

29 In para 46 of their statement of claim, having pleaded the history of the Lane, along the lines set out in the statement of agreed facts, the applicants alleged that, by reason of the matters pleaded, the Lane is not a road within the meaning of the LGA, the RMA or the common law and it is also not a public highway at common law.

30 In para 46 of its defence, the Council relevantly pleaded the following:

(a) the Lane is a road within the meaning of the LGA because:

(i) it is subject to two easements which constitute 'a right of way' within the definition of road in s 3(1) of the LGA;

(ii) it is 'a constructed bluestone laneway used for pedestrian and vehicular access which possesses a physical characteristic of a 'road' as defined by the LGA'; and

(iii) it is described as 'a road abuttal on the title to the [Applicants' Land] being the road coloured brown on the title plan forming part of such title'.

(b) The Lane is a road within the meaning of the RMA 'as a public highway at common law that has vested in [the] Council pursuant to clause 1(5) of schedule 5 of the RMA'.

(c) The Lane 'is a public highway at common law through implied dedication and long use as a public right of way'.

31 In para 46 of its defence, VicTrack pleaded that the Lane is a public highway within the meaning of the common law and continued as follows:

The acts of dedication of the [Lane] as a public highway and acceptance by the public are either presumed or inferred from the following:

(a) the subdivision by the Victorian Railways Commissioner[s] of existing lots to create the [Lane];

(b) the designation of the [Lane] as a road on the title to the [Applicants' Land];

(c) the [Lane] is a laneway that connects William Street and Lovers' Walk;

(d) the [Lane] is walled or fenced off from adjoining land;

(e) the [Lane] is constructed of bluestone pavers;

(f) the [Lane] has the physical appearance of a road or laneway;

(g) the [Lane] has had those characteristics since [it] was constructed ... on a date between 1883 and 1920, or alternatively for a long period of time;

(h) the [Lane] has been used as a public pedestrian access to Lovers' Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed ... as a laneway on a date between 1883 and 1920, or alternatively for a long period of time;

(i) the [Lane] is generally considered to be and is regarded as a public highway by nearby residents;

(j) any interruption by the [applicants] with the use of the [Lane] by the public was:

i. without right;

ii. temporary; and

1. after the dedication of the [Lane] as a public highway was accepted by the public;

(k) the [Lane] was recorded on the public register of roads by the [Council] and has been maintained by the [Council] at its expense for a long period of time; and ...

(l) easement rights can exist over land that has been dedicated as a public highway.

32 As we have mentioned, during the trial, the parties agreed that it would clarify and expedite the determination of the applicants' rights if the questions concerning the legal status of the Lane were heard and determined before the remaining issues in the case. The trial judge accepted that this was an appropriate course without making any formal order for the trial of separate questions.

33 On 21 March 2016, after the trial had concluded but before the judge had published her reasons on 1 July 2016, the applicants erected another fence across the end of the Lane impeding access to the Lane from Lovers' Walk. The applicants had instructed their builder to erect the fence after Mr Anderson was repeatedly stabbed by a male intruder at the rear of the Applicants' Land and sustained life-threatening injuries. The Council sought the removal of the fence and the applicants refused.

34 On 1 July 2016, the judge published her reasons refusing the declaratory relief sought by the applicants and made the following order ('July order'):

1. The [applicants'] application for a declaration that the [Lane] is not a 'road' within the meaning of the [LGA] be refused.
2. The [applicants'] application for a declaration that the [Lane] is not a 'road' within the meaning of the [RMA] be refused.
3. The [applicants'] application for a declaration that the [Lane] is not a 'road' within the meaning of the common law be refused.
4. The [applicants'] application for a declaration that the [Lane] is not a 'public highway' within the meaning of the common law be refused.
5. Costs reserved.

35 On 26 July 2016, the Council issued a summons seeking orders requiring the applicants to remove the fence erected in the Lane at their own cost and to make good the Lane.

36 At a hearing on 31 August 2016, the judge dealt with the Council's summons and the question of the costs of the proceeding. She also dealt with other procedural matters, including an application by the Council for orders that the proceeding be dismissed insofar as it related to it because the action in nuisance was solely against VicTrack.

37 On 27 September 2016, the judge made the following order ('September order'):

1. The [applicants'] claim for damages and interest against the [Council] be struck out and the further amended statement of claim filed 11 December 2015 be amended accordingly.
2. The costs of the [Council], including the costs of the summons filed 26 July 2016, be paid by the [applicants] on the standard basis up to and including 21 July 2015 and on an indemnity basis thereafter, to be taxed in default of agreement.
3. The proceeding otherwise be dismissed as against the [Council].
4. On or before 14 October 2016, the [applicants] must, at their own expense:

(a) remove the fence erected on or around 21 March 2016 at the western end of the [Lane] ... ; and

(b) make good any damage to the [Lane] caused by the erection or removal of the fence.

1. The further hearing of the proceeding be adjourned to a date to be fixed.

6 The costs of the [applicants] and [VicTrack] be reserved.

38 The September order was made after the applicants had filed their application for leave to appeal. Accordingly, as part of their application for leave to amend the notice of application for leave to appeal to add Ground 2A,[12] the applicants also seek an order that paras 2 and 3 of the September order be set aside and that the costs the subject of para 2 be remitted for redetermination. The September order is not otherwise the subject of the application for leave to appeal.

PART A: WHETHER LANE DEDICATED AS A PUBLIC HIGHWAY

Legal principles relevant to dedication issue

39 In City of Keilor v O'Donohue,[13] Windeyer J said the following about the meaning of 'public highway' at common law:

[I]t is no longer necessary that to be a highway a road should lead from town to town, or village to village. Indeed it need not be a thoroughfare at all: it may be a cul-de-sac. It need not be a main road, a high-way as distinct from a by-way. In short, the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions.[14]

40 A public highway is created at common law when two requirements are satisfied. First, a competent landowner must have manifested an intention to dedicate the land as a public highway, and secondly, there must be an acceptance by the public of that dedication.[15] In this context, 'dedication' means 'that the owner of the land intends to divest himself of any beneficial ownership of the soil, and to give the land to the public for the purposes of a highway.'[16]

41 On the application for leave to appeal, it was common ground that, if the first requirement set out at [40] above was satisfied in relation to the Lane, then the second requirement was also satisfied. Accordingly, set out below is a summary of the legal principles relevant to the first requirement, namely, that VicTrack or one of its predecessors in title manifested an intention to dedicate the Lane as a public highway.

42 The intention to dedicate land as a public highway may be express or may be inferred from the conduct of the landowner.[17]

43 An inference of an intention to dedicate may arise from the manner in which the public uses the land, such as from open, unconcealed and uninterrupted user of the land as a right of way by the public with the acquiescence of the landowner.[18] A finding that the landowner has acquiesced in the use of the land by the public requires a finding that he or she had knowledge of the user.[19] However, proof of actual knowledge is not required. Long and interrupted user of the land by the public gives rise to a presumption of dedication such that, in the absence of evidence to rebut it, the inference will be drawn that the user was with the knowledge and acquiescence of the owner.[20]

44 Public user does not have to continue for any fixed minimum period before it can qualify as 'long user' and thereby give rise to a presumption of dedication. What constitutes 'long user' varies with the circumstances.

45 Where land has had multiple owners, a person who relies on long, uninterrupted user of the land to support an inference of dedication need not prove the identity of the owner 'from whom the dedication, necessarily inferred from such a user, first proceeded.'[21] This is because often this information will not be available. In such a case, 'the proper inference is that there was a dedication from a person who could dedicate', unless the inference is rebutted.[22]

46 In Owen v O'Connor,[23] Sugarman J stated as follows:

Dedication presupposes an intention to dedicate - an animus dedicandi. It may be presumed from open and unconcealed user as in exercise of a public right and without interruption by the owner of the land, - such a user that the owner must be taken to have been aware of it and with his apparent acquiescence so as to lead to a reasonable belief in the minds of the public that the land was a highway; or it may be presumed from other circumstances.[24]

47 In Newington v Windeyer,[25] McHugh JA (with whom Kirby P and Hope JA agreed) noted the following:

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.[26]

48 In Adelaide Corporation v Attorney-General (SA),[27] on an issue that was not in contest, Starke J (with whom Evatt J agreed) stated that the 'long and uninterrupted user [of the land] by the public and the fact that it [had] long been maintained and repaired at the public expense [raised] a presumption of dedication so strong that it [was] practically irrebuttable'.[28]

49 Evidence that the owner of the land granted permission or licence to the public to use it will negate an intention to dedicate.[29] This is because such permission or licence is the antithesis of the public's right to enter which is the hallmark of a public highway.[30]

50 In Narracan Shire President v Leviston,[31] Griffith CJ stated as follows:

[T]here is no doubt that though continuous user of land without interruption may be sufficient evidence of dedication ... it is only evidence. It may be so strong that a finding against it cannot be supported. But there is another element to be taken into consideration ...

The doctrine ... that dedication may be presumed from continuous user must be qualified by adding the words 'if unexplained,' and it is always permissible ... to inquire under what circumstances the piece of land came to be used as a road. Was it under such circumstances as showed an intention to dedicate? Or was it under such circumstances as to negative such an intention? Or was it under such circumstances as not to point in one direction rather than the other?[32]

51 In the same case, Barton J cited with approval the following statement of Stephen CJ in a charge to the jury in Lawson v Weston:[33]

1st. To constitute the dedication of a roadway to the public, there must have existed, in the mind of the owner of the soil, an intention to dedicate it. Mere sufferance of an user, therefore, by negligence, or as a matter of temporary favour, will not amount to dedication. 2nd. But, frequent and long continued user of the roadway, by the public, is ordinarily evidence of a dedication; for negligence on the part of the owner, or ignorance of his rights, or indifference to them, will not be presumed. This evidence will be more or less conclusive, according to circumstances; but particularly, according to the length of the time, and the number of instances of user. 3rd. Nevertheless, however long that time or numerous those instances, any open or distinct circumstances, done or caused by the owner, indicating and notifying an intention not to dedicate, will be strong evidence against the dedication. But it is essential to observe, that if, at any time, by any owner, a dedication (that is, a designed and intentional dedication) took place, that dedication could not afterwards be recalled, either by him or any subsequent owner. 4th. The act or circumstances must be, in fact, for the purpose of exercising the right of dissent, and notifying that right to the public. The putting up of a fence across the road, so as to prevent access to it, would be one of the strongest instances of such an act; and, if there were a gateway left in it, but the gate was generally or often kept locked, the inference from the act would remain the same. The erection of such a fence, however, with a slip rail in it at the point of intersection with the road, or a gate secured by a hasp only, may have been, possibly, for the very purpose of saving the right of the public, while at the same time protecting the owner, by preventing cattle from trespassing over the land on either side. In the absence of any such act or circumstance for the purpose of expressing and notifying dissent, the user by the public is evidence that the owner intended a dedication. 5th. As the purpose must be to notify dissent or non-dedication, the means used should be such as to answer that purpose, in order that the public, being aware of the denial of their right to use the road, may assert that right by forcibly removing the obstruction, or otherwise opposing the act done in disparagement of the right. If, therefore, from the nature of the interruption (and from the fact of similar instances of obstruction being common, in known and recognized public roads), the public would have been likely to misunderstand its purpose and object, the fact of the obstruction itself will be of much less value obviously than an interruption, decided and unequivocal in its character.[34]

52 The third member of the Court in Leviston, O'Connor J, stated that an intention to dedicate can be inferred from 'uninterrupted user by the public without objection, if that user is not otherwise explained.'[35] However, if there is an explanation for the user which is inconsistent with an intention to dedicate - such as the granting of a licence to use - the intention will not be inferred.[36]

53 In Everingham v Penrith Municipal Council,[37] Street J stated as follows:

It is ... well settled that to constitute a valid dedication, an intention to dedicate must be proved or inferred, and that user by the public is merely evidence of such an intention; but where the user has continued for a long period, and without interruption, over a well-defined road, fenced off from the adjoining lands, and leading from one highway to another, the evidence, in the absence of anything to rebut it, though not necessarily conclusive, leads almost irresistibly to an inference of dedication.[38]

54 Once land has become a public highway through dedication by its owner, it retains that status irrespective of whether the title to that land discloses that status.[39] A purchaser of that land is bound by its status as a public highway whether or not he or she was aware of that status at the time of purchase.[40] Neither the owner who has dedicated the land as a public highway nor a successor in title can retract the dedication so as to change the status of the land as a public highway.[41] Further, the status of the land as a public highway would not be affected by the public ceasing to use it after it was dedicated.[42]

55 The judge accepted the respondents' submissions that evidence of the public's use of the Lane as a way 'without force, without secrecy and without permission' strengthened the case for an accepted dedication of the Lane as a highway.[43] She stated as follows:

The common law has long considered evidence of use of land by the public 'as of right' as being consistent with the dedication of that land to the public, in circumstances where the words 'as of right' have taken on the meaning of the old common law expression 'nec vi, nec clam, nec precario'; that is, use without force, without secrecy and without permission. Put another way, use is 'as of right' if it cannot be explained by any other reasonable inference, for example, by an inference that the use was permitted by the landowner or an inference that the landowner did not know of the use.[44]

56 The judge held that the Long User Agreed Fact set out at [16] above, supported by the affidavit evidence of Ms Burgess to the effect that she could not find any record of a consent given by VicTrack in its books [45]d records,45 favours the contention that the public's use of the Lane is 'as of r[46]ht'.46 In relation to that agreed fact, the judge stated the following:

[The Long User Agreed Fact] is in itself enough to establish that the public's use of the [Lane] has always been 'as of right' within the meaning of the relevant authorities. Such evidence demonstrates the public's acceptance of an intention to dedicate the [Lane] as a highway, which intention can be inferred from [VicTrack's] acquiescence to the public's use.

As accepted, the [Long User Agreed Fact] leads inevitably to the conclusion that the [Lane] is a public highway at common law. An intention to dedicate the [Lane] as a highway may be inferred from the acquiescence to the public's continuous use of the [Lane] 'since it was constructed, or alternatively for a long period of time' by [VicTrack] and its predecessors in title. That evidence also goes to the public's acceptance of the dedication, as the authorities confirm that, in some cases, evidence of long user 'as of right' will be enough to establish both the landowner's intention to dedicate the land as a highway and the acceptance by the public necessary to perfect the dedication. In my view, this is such a case.[47]

57 The judge held that the dedication of the Lane as a public highway was also supported by the Council's assumption of responsibility for the Lane's care and maintenance as demonstrated by the bundle of tender documents prepared by the Council showing that it sought to contract out street cleaning services for its municipal district.[48] The judge held as follows:

By taking responsibility for the cleanliness of the [Lane], and by demonstrating an intention to expend public monies for that purpose, the [Council] should be regarded as having treated the [Lane] as a public highway on behalf of the public. This supports the conclusion that the public has been using the [Lane] 'as of right' for some time, and certainly since November 1995.[49]

58 The judge rejected the applicants' submission that the Lane could not be a road or a public highway because, if it were, it would not need to be subject to any easement. She also rejected their submission that the best evidence of a registered proprietor's intention to dedicate or not dedicate his or her land as a public highway comes from the relevant title documents, which in this case did not initially describe the Lane as a highway or a road. The judge stated as follows:

It is not surprising that the [applicants'] easement is recognised on a plan of consolidation that features the [Lane]. However, this does not mean that the [Lane] is not a road, nor is it conclusive evidence that it has never become a highway under the common law. Public rights of way can be created over land already subject to one or more private rights of way. Indeed, this is a case in which the private easement can be said to be co-ordinate with, rather than a restriction upon, the public right of way, should one exist. The fact that the [applicants'] easement over the [Lane] is shown on a plan of consolidation does not mean that the [Lane] cannot have been dedicated to the public. At best for the [applicants], it simply means that that particular plan of consolidation provides no evidence of dedication; it does not preclude the [respondents] from raising that evidence elsewhere. Indeed, the [respondents] did raise that evidence by reference to a number of title documents that showed the [Lane] as a road or right of way, including the original Certificate of Title to the [Applicants' Land], registered in 1920.[50]

59 The judge then considered the applicants' argument that cl 14 of sch 5 to the RMA precludes the dedication and use of the Lane as a public highway in circumstances where the Lane is already subject to a private right of way. That clause, which commenced operation on 1 July 2004, provides as follows:

14 No private right of way or easement on road

A private right of way or easement cannot -

(a) develop or co-exist with a public right of way over the same land; or

(b) revive on the revocation of the declaration of a road or the discontinuance of a public road or the permanent closure of a road over that land.

60 The judge rejected the applicants' submission. She held that pursuant to cl 14 of sch 5 to the RMA, the existence of a public right of way over land automatically prohibits the exercise of a private right of way or easement over that land, regardless of which was first in time.[51] The judge stated as follows:

The language of clause 14 to Schedule 5 of the [RMA] clearly subordinates a 'private right of way or easement' to a 'public right of way over the same land', such that the former is eclipsed by the latter regardless of which was first in time. The [RMA] does not define 'public right of way', but on any view that term must include a 'road' within the meaning of that Act or a 'public highway' within the meaning of the common law (which are equivalent for the purposes of the [RMA]). It follows that, since 1 July 2004, all public rights of way have existed to the exclusion of private rights of way to the extent that the two overlap.[52]

61 In the light of her findings, the judge was satisfied that the Lane was a public highway for the purposes of the common law and that there was no basis for making the fourth declaration.[53]

62 The judge then considered whether the Lane was not a road within the meaning of the RMA. She referred to the definition of 'road' in s 3(1) of the RMA which includes 'any public highway' and the definition of 'public highway', which is in turn defined in that Act as 'any area of land that is a highway for the purposes of the common law'. Given her finding that the Lane is a highway at common law, the judge held that it must also be a road under the RMA and, accordingly, the second declaration could not be made.[54]

Grounds of appeal relating to dedication issue

63 The applicants seek to impugn the judge's decision that the Lane had been dedicated as a public highway on the following grounds:

1. There being no, or no adequate, evidence that the registered proprietor for the time being of the [Lane] had dedicated the [Lane] as a highway, the learned judge erred in finding that the [Lane] had been dedicated as a highway.
2. The learned judge erred in paying no, or no adequate, regard to the circumstances that:

(a) the [granting of the 1982 Easement] ... with the approval of the Governor-in-Council was wholly unnecessary if the Victorian Railways Board (or any predecessor in title of the [Lane]) had dedicated the [Lane] as a highway or if the Board intended dedicating the [Lane] as a highway in the foreseeable future;

(b) [VicTrack] had been in the position of the registered proprietor of the [Lane] since 1996 ... but no evidence was called by either [respondent] that [VicTrack], the Metropolitan Transit Authority, or any predecessor in title of the [Lane] had known that members of the public purported to use the [Lane] as a right of way, as of apparent right, if such was the case;

(c) in 2013 [VicTrack] dealt with the applicants on the footing that the [Lane] might be sold or leased to them, which footing was inconsistent with [VicTrack] having previously dedicated the [Lane] to the public, or knowing that any predecessor in title had done so,

and accordingly there was no or no adequate basis for a finding of acquiescence by [VicTrack] or by any registered proprietor of the [Lane] in its use as a right of way by members of the public, as of right.

1. The learned judge erred, to the extent that the learned judge did so, in regarding the use of the word 'road' with respect to the [Lane] on the title which issued in 1920 for the [Applicants' Land], or on other title documents, as indicative of the dedication of the [Lane] as a highway.
2. By reason of the matters referred to in [Grounds 1 to 3], the learned judge erred in not declaring that the [Lane] was not a 'public highway' within the meaning of the common law.
3. By reason of the matters referred to in [Grounds] 1 to 3, the learned judge erred in determining that the [Lane] was a road within the meaning of the [RMA] by reason that the [Lane] was a 'public highway' and ought to have declared that the [Lane] was not a road within the meaning of the [RMA].

64 The applicants submitted that the judge correctly identified the need to find an intention to dedicate land as a public highway on the part of the landowner. They did not challenge the proposition that the intention may be inferred objectively, such as where a road is laid out in a subdivision of lots offered to the public, which connects with the public road system, or where a landowner acquiesces in the public using the land in question.

65 However, according to the applicants, use of land by the public, even 'continual use ... for a long period of time' without the knowledge of the landowner, cannot amount to a dedication, for 'at common law continual trespassing could not create a public road'.[55] The applicants submitted that, without knowledge on the part of the owner, there cannot be acquiescence. In the present case, so it was said, there was no evidence that VicTrack or a predecessor in title knew of the public's use of the Lane as a right of way without permission and had acquiesced in that use. That was said to mean that no intention to dedicate on the part of VicTrack or a predecessor could be inferred.

66 In relation to the Long User Agreed Fact, the applicants contended that long and continuous use of land as a passageway could not on its own found an inference of an intention to dedicate by a landowner who was not in occupation of the land and who gave no evidence of knowledge of such use.

67 The applicants also contended that the judge did not identify which owner of the Lane had dedicated it to the public. According to the applicants, insofar as the judge implicitly found that VicTrack dedicated the Lane after 1996, no witnesses from VicTrack gave evidence of knowledge that the public was using the Lane as a right of way, let alone evidence that VicTrack acquiesced in that use. The applicants submitted that there was no evidence, for example, that officers of VicTrack inspected the Lane from time to time or maintained it in any way - save for some inspections of the Lane after this proceeding was initiated - or insured VicTrack against liability as a result of members of the public sustaining injury on the Lane. The applicant submitted that it had been 'very much' in VicTrack's interests to give evidence of its knowledge of, or acquiescence in, the public use, had such evidence been to hand, so as to reduce its exposure to the nuisance claims.

68 The applicants contended that, as the Lane was not incorporated in any visible way into VicTrack's railway activities and was remote from VicTrack's head office, the proper inference was that its officers did not know that the Lane was being used by the public. In any event, according to the applicants, VicTrack had the onus of adducing evidence of knowledge and had failed to discharge that onus.

69 In relation to the Council's preparation of a street cleaning tender which was referred to by the judge,[56] the applicants submitted that there was no evidence that the tender was let or that VicTrack knew this. According to the applicants, such evidence cannot found an inference of an intention on the part of VicTrack to dedicate the Lane as a highway.

70 The applicants relied on evidence about three events which was said to be inconsistent with the Lane having been dedicated as a public highway.

71 The first and second events were the granting of the 1920 Easement and the 1982 Easement. In relation to the latter, the applicants submitted that it is not readily conceivable that the easement created over the Lane in favour of the Neighbours' Land in 1982, with the approval of the Governor-in-Council, would have been created if the Lane had been, or was intended to be, dedicated to the public as a highway. In such circumstances, so it was said, there would have been no need to create the 1982 Easement.

72 The third event upon which the applicants relied was their dealings with VicTrack in 2013 in relation to the possible sale or lease of the Lane to them, as a means of stopping the nuisances of which the applicants complained.[57] They submitted that any such arrangement could not have been entertained by VicTrack if it had dedicated the Lane as a highway or considered that a predecessor in title had done so.

73 The applicants referred to the judge's finding that the respondents had raised evidence of dedication 'by reference to a number of title documents that showed the [Lane] as a road or right of way, including the original Certificate of Title to the [Applicants' Land], registered in 1920'.[58] Although the applicants acknowledged that the judge's conclusion about dedication did not rest on this finding, they submitted that the finding was erroneous. This was said to be because, as the common law does not recognise a road as a right of way that can arise over land, if any inference is to be drawn from the words on the title documents, it is that the Lane is a private road.

74 The applicants contended that the question of dedication could not be considered in the mechanistic fashion of treating long user as giving rise to a presumption of dedication which must be rebutted. Rather, according to the applicants, that question had to be considered on the whole of the evidence. In the present case, so it was said, the whole of the evidence did not support an inference that the Lane had been dedicated to the public as a highway.

75 The Council submitted that the judge correctly identified the requirements for the creation of a public highway at common law and that there was ample evidence to support her finding that there was an intention to dedicate the Lane as a public highway. According to the Council, that evidence included the following:

(a) A number of title documents referred to the Lane as a 'road' or a 'right of way'.[59]

(b) The Council had assumed responsibility for the Lane's care and maintenance.[60]

(c) The Long User Agreed Fact set out at [16] above.

76 According to the Council, the Long User Agreed Fact was evidence of the public's longstanding use of the Lane 'without force, without secrecy and without permission' and 'as of right'. Further, so it was said, such longstanding and continuous public use of the Lane 'as of right' was indicative of both an intention to dedicate the Lane as a public highway and the public's acceptance of that dedication.

77 The Council submitted that the matters outlined at [75(a)-(c)] above strongly supported an inference that VicTrack and its predecessors in title must have known of and acquiesced in the longstanding and continuous use of the Lane by the public. According to the Council, the open, unconcealed and uninterrupted use of the Lane by the public 'as of right' strongly supported the inference of dedication of the Lane as a public highway at common law.

78 In the circumstances, so it was said, the judge was correct to find that, objectively assessed, there had been an intention to dedicate the Lane as a public highway at common law and that, for the purposes of the RMA, the Lane was a 'road'.

79 In relation to the judge's finding that the description of the Lane as a road on the title documents was indicative of its status as a public highway, the Council submitted that it was plainly permissible for the judge to so find, because the word road has, at common law, been used as a possible substitute for the term public highway. The Council contended that, in any event, as acknowledged by the applicants, that finding did not play any significant part in the judge's reasoning about the status of the Lane. This was said to be because evidence of the public's longstanding, continuous and unconcealed use of the Lane strongly supported the inference, implication or presumption that the Lane had been dedicated as a public highway.

80 VicTrack submitted that Grounds 1-2 and 3-5 ought to fail for the following reasons:

(a) It is well established that intention to dedicate land can be 'inferred from long-user'.[61]

(b) The law did not impose an onus on VicTrack to show actual, subjective knowledge of the acts of long user,[62] which is hardly surprising in cases such as this one, where witnesses to the original acts of dedication are likely to be long dead.

(c) The Long User Agreed Fact set out at [16] above was of itself sufficient to invoke a presumption of dedication.

(d) VicTrack led evidence of its knowledge of the public's long user, namely, the affidavit of Mr Blackburn.[63]

(e) It does not matter which of the owners dedicated the Lane to the public, as the dedication is inferred from the entire history of long user by the public. Evidence that VicTrack did not maintain the Lane is consistent with dedication.

(f) It is clear from the judge's reasons that she found that the intention to dedicate was established from the Long User Agreed Fact.[64]

(g) Evidence of public repair supports a presumption of dedication arising from public user.

(h) The evidence referred to by the applicants at [71] above is not sufficient to rebut the presumption of dedication from long user because: the granting of easement rights is not inconsistent with the dedication of a public highway; there was evidence of use by the public as far back a[65]the 1970s;65 sufficient acts of long user arose between 1920 and 1982 to establish dedication over that period, meaning that any inference that could be drawn from the 1982 Easement could not undo the previous dedication; and there was no evidence of any act by any owner of the Lane to prevent the public's use of the Lane.

(i) The evidence given by Mr Blackburn[66] shows that VicTrack knew that the Lane was used to access Lovers' Walk, knew that the Council was considering temporary closure of the Lane and was only willing to treat with the applicants with the Council's consent.

81 In our opinion, Grounds 1-2 and 3-5 are not made out.

82 The applicants' submissions appear to proceed on the premise that the judge could not make a finding that the Lane had been dedicated as a public highway unless the respondents adduced specific evidence that VicTrack knew that the public used the Lane and intended that the Lane be dedicated as a public highway. That premise is erroneous because it ignores the Long User Agreed Fact. Given its significance, we repeat that agreed fact here:

The [Lane] has been used as a public pedestrian access to Lovers' Walk without express leave or licence, which use is continuous and otherwise unexplained, since it was constructed as a laneway, or alternatively for a long period of time.

83 In accordance with the principles summarised at [39]-[54] above, the legal consequences of the Long User Agreed Fact were as follows:

(a) It gave rise to a presumption that the Lane had been dedicated as a public highway since it was constructed in approximately 1917[67] or alternatively 'for a long period of time'.[68]

(b) The presumption was founded on an inference that an owner of the Lane had knowledge of the public's user and acquiesced in that user.[69] That inference arose even if the owner in question could not be identified.[70]

(c) While the presumption was not conclusive, it was sufficient evidence to enable the judge to find that the Lane was dedicated as a public highway unless the applicants could point to evidence that rebutted the presumption. Evidence showing that the public's use of the Lane was explicable by permission or licence, or some other reason that was inconsistent with its dedication as a public highway, would have sufficed as rebuttal evidence.[71]

(d) If, properly construed, the Long User Agreed Fact meant that the Lane was dedicated as a public highway well before VicTrack acquired ownership on 30 June 1996,[72] VicTrack's knowledge and conduct relating to the public's use of the Lane were irrelevant to its ongoing status as a public highway. This is because, once an owner has dedicated land as a public highway, the dedication cannot be reversed by subsequent owners.[73]

84 In the light of the above legal consequences, the applicants' emphasis on whether there was positive evidence of the owners' knowledge of use by the public and an intention to dedicate the Lane was misplaced. In many instances of long user, of which this case is one, events take their course over time and there is no discrete resolution, declaration or other identifiable overt act of dedication which can be the subject of evidence. Where there are multiple owners over time, if they are natural persons, they either die or move and become difficult to contact, or cannot remember the details of events long past. If the owners are corporations, it may be difficult to locate a particular officer to whom knowledge and conduct constituting acquiescence can be attributed, and records are often incomplete or unable to be found. Cognisant of these difficulties, the common law developed the presumption of dedication, the effect of which is to shift the evidentiary enquiry to whether there is evidence which rebuts the presumption.

85 We agree with the applicants' submission that the question of dedication cannot be considered in a mechanistic fashion and must be resolved on the basis of the evidence as a whole. However, the detailed evidentiary analysis that is usually required to determine the nature and duration of the public's use of land, in order to determine whether an inference of dedication can arise, has been rendered unnecessary in this case by the Long User Agreed Fact. That fact, on its own, is sufficient to give rise to a presumption of dedication which has the effect of shifting the evidentiary focus to whether there is sufficient evidence to rebut the presumption.

86 Accordingly, in the present case, the question for the judge was not whether the respondents had adduced sufficient evidence to establish that one of the owners of the Lane, knowing that the public used the Lane, acquiesced in that use. Rather, it was whether there was evidence which rebutted the presumption of dedication. Furthermore, as the Long User Agreed Fact covers a period of public use which we have treated as having commenced in 1917,[74] the applicants' focus on VicTrack's knowledge and conduct since it acquired ownership of the Lane on 30 June 1996 is misconceived.

87 In our opinion, as the Lane was constructed in 1917, the statement in the Long User Agreed Fact that the Lane has been used by the public continuously 'since it was constructed ... or alternatively for a long period of time' must mean that it can be inferred that an owner knew of, and acquiesced in, that user long before 1996 when VicTrack acquired ownership of the Lane. Given the potential span of 99 years over which the Lane has been used by the public (between 1917 and 2016, when the judge heard the proceeding), it is not logical to focus only on the last 20 years of that user (between 1996 and 2016). Even if the starting point is not the date of construction of the Lane but a subsequent date, in order to give proper meaning to the phrase 'a long period of time', it does not make any sense to place that date at the end of the timeline rather than at the beginning or near the middle. As noted at [25] above, the Council adduced evidence that the public used the Lane in the 1970s.

88 On the basis of the above analysis, the question that arises is whether there is any evidence in the period up to 1996 that rebuts the presumption of dedication. The only evidence in that period upon which the applicants relied was the granting of the 1920 Easement and the 1982 Easement.

89 In our opinion, the granting of the easements is not inconsistent with dedication of the Lane as a public highway to be used by the public 'without express leave or licence'. The private rights conferred by the easements were entirely consistent with the public rights conferred by the dedication. The easements provided private rights to the owners for the time being of the Applicants' Land and the Neighbours' Land, which added to, and complemented, the rights they enjoyed as members of the public.[75] The easements provided rights which were recorded on the titles of those parcels of land and which were much more secure and enduring than the public rights, as the latter rights could be revoked by statutory processes relating to discontinuance of roads.[76] Furthermore, as each easement was a private proprietary right in the Lane that ran with the Applicants' Land and the Neighbours' Land, it added value to each parcel of land in a manner that a right to use the Lane in common with all other members of the public could not.

90 The effect of the easements was that the owners for the time being of the Applicants' Land and the Neighbours' Land were able to use the Lane in two capacities. The first capacity was as owners of those parcels of land pursuant to the rights conferred by the easements. The second capacity was as members of the public pursuant to the status of the Lane as a public highway. The granting of private rights to the owners of those parcels of land did not involve any overt public act by the then owner of the Lane which communicated to members of the public who used the Lane that they could no longer use the Lane. Accordingly, the granting of the easements had no bearing on the use of the Lane by the public continuously 'without express leave or licence' and thus did not affect its status as a public highway.

91 We note that the Lane was described as a 'road' in the title dated 24 June 1920.[77] We agree with the applicants that this description is ambiguous in that it does not make clear whether it is a public or private road. Save to say that the description is not inconsistent with the Lane having been dedicated as a public highway as at that date, it can be put to one side.

92 The inclusion of the Lane in the Council's cleaning tender in 1995 is consistent with the Lane having been dedicated as a public highway prior to that time. 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 a dedication.[78] In the present case, however, it is not necessary to rely on the tender to establish dedication as, in the absence of rebutting evidence, dedication can be established by the presumption of dedication that arises from the Long User Agreed Fact. It is also not necessary to rely on the tender to establish acceptance of any dedication, as the applicants have conceded that, if there has been dedication, the public have accepted it.

93 It follows that, if the analysis is confined to the period prior to 1996, there is insufficient evidence to rebut the presumption of dedication of the Lane as a public highway. That analysis and conclusion would apply irrespective of whether it is assumed that the Lane was constructed in 1917 (at the time of the 'land record plan' dated 29 May 1917 that is referred to at [20] above), prior to that year, or subsequently, in 1920 (at the time of the granting of the 1920 Easement).

94 In case our analysis at [87]-[93] above is incorrect, we will now consider the period after 30 June 1996, when VicTrack became the owner of the Lane.

95 On its terms, the Long User Agreed Fact is applicable to the post-1996 period. This means that, since 1996, the public has used the Lane 'without express leave or licence' and that use has been 'continuous and otherwise unexplained'. In our view, such use constitutes long, uninterrupted user which is sufficient to give rise to the presumption of dedication. Thus, in the absence of rebuttal evidence, the inference to be drawn is that VicTrack has known of the use and has acquiesced in that use. Accordingly, in the absence of rebuttal evidence, dedication can be established without positive proof of VicTrack's knowledge of the use or of any overt conduct constituting acquiescence.

96 The only rebuttal evidence upon which the applicants relied in the post-1996 period was the discussions in 2013 between VicTrack and the applicants for a possible sale of the Lane to them. However, these discussions do not assist the applicants. This is because there is inherent in the applicants' reliance on the 2013 discussions as rebuttal evidence the unsustainable proposition that the Lane had not been dedicated as a public highway between 1996 and 2013 and thus remained in the unencumbered beneficial ownership of VicTrack.

97 As we have already explained, the Long User Agreed Fact had the effect of giving rise to a presumption of dedication well before 2013. This meant that any conduct by VicTrack in 2013 which was inconsistent with dedication - whether in deliberate defiance of the prior dedication or in ignorance of it - could not affect the status of the Lane as a public highway.

98 In any event, the evidence of the 2013 dealings between VicTrack and the applicants merely established that, for an initial period, some officers were willing to countenance a sale of the Lane to the applicants, probably due to ignorance of the status of the Lane as a public highway through dedication. However, following further investigation, VicTrack determined that the Lane was not available for sale.

99 For the above reasons, the judge correctly concluded that the Long User Agreed Fact gave rise to a presumption of dedication of the Lane as a public highway and that the presumption had not been rebutted.

PART B: WHETHER THERE WAS POWER TO DEDICATE THE LANE

Applicants' application for leave to rely on new argument about power

100 As noted at [12] above, the applicants applied to amend their notice of application for leave to appeal to add Ground 2A. The respondents oppose this application.

It was not competent for [VicTrack] or any predecessor in title of the [Lane] to have dedicated the [Lane] to the public as a highway, for want of statutory power, or otherwise than in accordance [with] powers statutorily given, and accordingly it was not open to the learned judge to find that the [Lane] had been dedicated as a highway, or that a dedication had occurred as a matter of inference, without evidence of the exercise of a relevant statutory power or knowledge on the part of those entitled to exercise the power of use by the public of the [Lane].

Legal principles relating to leave application and power issue

102 In Vlahos Pty Ltd v Vlahos,[79] this Court summarised the principles governing applications for leave to rely on a new argument on appeal as follows:[80]

There is a fundamental principle that a point not taken at first instance cannot be taken on appeal if evidence could have been given at the first instance trial which by any possibility could have prevented the point from succeeding.[81] Exceptional circumstances will be required in order for a party to introduce an issue for the first time on appeal. Even where the new point sought to be raised is a point not capable of being affected by further evidence, such as an argument as to the construction of a statute or document, the court may not permit it to be relied upon.[82]

In Coulton v Holcombe,[83] Gibbs CJ and Wilson, Brennan and Dawson JJ stated that '[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.'[84] They quoted with approval the following statement from Metwally v University of Wollongong:[85]

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[86]

Gibbs CJ and Wilson, Brennan and Dawson JJ then referred to the underlying reasons for the above principle. The reasons were: the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions to keep an issue in reserve for an appeal rather than presenting it at first instance; and the need to avoid injustice to a party having to meet new factual or legal issues for the first time on appeal.[87]

103 We now turn to the principles governing the power of a statutory body to dedicate land as a public highway.

104 A statutory body may validly dedicate land as a public highway if it has express statutory authority to do so. In the absence of express authority, it may do so if the dedication is not incompatible with the statutory objects of the body or the statutory purposes for which the land is vested in the body, and the dedication will not impair the body's capacity to perform its statutory functions or exercise its powers.[88] The question of incompatibility is a mixed one of law and fact, and its determination mainly depends upon the construction of the statute under which the statutory authority exists.[89]

105 The applicable principle is reflected in the following statement of Parke J in R v The Inhabitants of Leake:[90]

If the land were vested by the Act of Parliament in commissioners, so that they were thereby bound to use it for some special purpose, incompatible with its public use as a highway, I should have thought that such trustees would have been incapable in point of law, to make a dedication of it; but if such use by the public be not incompatible with the objects prescribed by the Act, then I think it clear that the commissioners have that power.[91]

106 In Mulliner v Midland Railway Company,[92] Jessel MR held that the granting of an easement by a railway company to a private citizen for no consideration was beyond power.[93] He stated as follows:

It appears to me quite impossible that the railway company can have a right either to sell, grant, or dispose of this land, or of any easement or right of way over it, except for the purposes of their Act, that is to say, with a view to the traffic of their railway.[94]

107 In British Transport Commission v Westmorland County Council,[95] the House of Lords held that the statement set out at [106] above from Mulliner went too far in its general application and that the test in Leake was the c[96]rect test.96 It was also held that the question of whether the dedication of land as a public highway would interfere with the statutory purposes for which it was held by a statutory body is a quest[97]n of fact.97 Lord Cohen noted that the correctness of the ultimate conclusion in Mulliner had never been challenged, as the evidence in that case clearly established that the existence of the right of way would interfere with the company's railway [98]dertaking.98

108 Westmorland was cited with approval by the High Court in R v Gough; Ex Parte Australasian Meat Industry Employees' Union.[99]

109 The decision in E A Clark and Son Pty Ltd v The Melbourne Harbor Trust Commissioners[100] is instructive. The case concerned whether the Melbourne Harbor Trust Commissioners ('MHT Commissioners') had power under the Melbourne Harbor Trust Act 1890 ('MHT Act') to dedicate to the public use of a pontoon bridge located across the entrance to a dock. Under the MHT Act, the MHT Commissioners had exclusive management and control of the port. Section 48 provided that the land upon which the dock was located was vested in the MHT Commissioners for use as a dock. Section 96 empowered the MHT Commissioners to make and maintain proper roads and approaches to all wharfs and docks. Section 60 empowered the MHT Commissioners, with the approval of the Governor in Council, to lease any superfluous lands for 21 years. Section 107 empowered the Governor in Council, at the request of the MHT Commissioners and the council of a municipality, to declare any land vested in the MHT Commissioners to be a public highway.

110 Hood J held that the MHT Commissioners did not have power to dedicate as a public highway any land vested in them and that the power conferred by s 96 of the MHT Act to make and maintain roads was merely ancillary to the wharfs and docks. His reasons were as follows:

If the [MHT Commissioners] can, of their own motion, dedicate a road simply by making it, there would be little necessity for sec. 107. ... The assent of the Governor in Council would seem unnecessary if the plaintiff's contention here were correct, and the only effect of sec. 107 would be to vest the control of the road in the council of the municipality. ... [Pursuant to s 60, the MHT Commissioners] cannot lease without restriction land not required for the accommodation of the shipping of the port; yet, according to the plaintiff's view, they may give away, by dedication, land that may be so required. All this tells against any power to dedicate.

...

I cannot ... think that there is here any indication of an intention of Parliament to empower the [MHT] Commissioners to dedicate the road, of which this bridge is a portion, so as to bind themselves for all time. The primary object of the Legislature was the creation and preservation of docks for the benefit of shipping, and the land must not be used for any purpose inconsistent with that object. Such a dedication as that contended for by the plaintiff would prevent the [MHT Commissioners] from altering this bridge in any way, no matter how essential such alteration might be in the interest of the port. ... Such a dedication would be, in my opinion, incompatible with the object for which the trust was created, and therefore ultra vires.[101]

Parties' submissions on leave application and merits of power issue

111 In relation to the leave application, the applicants conceded that the issues raised by Ground 2A were not argued before the judge, and said that the question of the want of statutory power was first considered after the applicants retained senior counsel following the publication of the judge's reasons on 1 July 2016.

112 The applicants submitted that implicit in the positive assertions made by the respondents in paras 46 of their defences[102] was the contention that one or other public body having control of the Lane had statutory power to dedicate it as a public highway within the meaning of the common law, and had exercised that power. They noted that no submission was made by either of the respondents identifying the statutory power which had been relied upon to dedicate the Lane as a public highway, and how that power had been exercised.

113 The applicants contended that Ground 2A raised only matters of law and could not have been met by further evidence. They argued that, insofar as the point raised any evidentiary issue, the evidence would overlap with the evidence adduced by the respondents in support of an inference of dedication of the Lane by VicTrack or a predecessor in title. The applicants submitted that the respondents had adduced all of the evidence upon which they intended to rely in support of the inference of dedication.

114 The applicants argued that the point was important because it concerned the public status of the Lane and had application beyond the parties to this case. According to the applicants, other persons such as adjacent landholders would not be bound, but could readily be misled, by the judge's finding that the Lane was a public highway, if there was no statutory power that could have been exercised to dedicate the Lane as a public highway.

115 The applicants also argued that the duty of the Court to uphold the rule of law ordinarily requires that leave be granted to raise points of law[103] and that here the point went to the root of the questions at trial as to the status of the Lane, and was necessary for the judge's decision. According to the applicants, no implicit assertion by the respondents as to the existence of statutory power, or even agreement between parties as to the existence of statutory power, could warrant a finding based on the existence and exercise of a statutory power, if there was no power.

116 In relation to the merits of the power issue, the applicants submitted that neither VicTrack, nor any of its predecessors in title, had the statutory power or authority to dedicate the Lane as a public highway and accordingly they were not competent to do so.[104]

117 In their written case, the applicants described the relevant statutory authorities, and their powers, in the following terms:[105]

From 1920 (when the title to [the Applicants' Land] was created) until 22 November 1990, the [Lane] was registered in the name of the Victorian Railways Commissioners as proprietors, and thereafter in the name of the Metropolitan Transit Authority, which is the current registered proprietor.

Over that period the [Lane] has been successively under the authority of:

(a) the Victorian Railways Commissioners, under the Victorian Railways Commissioners Act 1883;

(b) the Victorian Railways Board, which replaced the Victorian Railways Commissioners as a result of the enactment of the Railways (Amendment) Act 1972;

(c) the Metropolitan Transit Authority, which replaced the Victorian Railways Board, as a result of the enactment of the Transport Act 1983;[106]

(d) the Public Transport Corporation, as a result of the enactment of the Transport (Amendment) Act 1989; and

(e) [VicTrack], which replaced the Public Transport Corporation, as a result of the enactment of the Rail Corporations Act 1996. The 1996 Act provides for the affairs of [VicTrack] to be managed by a board of directors appointed by the Governor.[107]

The powers of the statutory authorities were relevantly as follows:

(a) The Victorian Railways Commissioners had power, with the consent of the Governor in Council, to sell or lease land which was 'in excess of the quantity required' for 'any of the railways'[108] and additionally, from the enactment of the Railways (Amendment) Act 1955, a power to grant 'an easement over any land other than an easement ... across a railway line';[109]

(b) The Victorian Railways Board had the same powers as the Victorian Railways Commissioners, and no further relevant power;[110]

(c) The Metropolitan Transit Authority had power, with the consent of the Minister to sell or lease surplus land,[111] and with the approval of the Minister to 'develop any surplus land and for this purpose may ... grant or create in favour of any person any easement over the land upon such terms and conditions as the Authority thinks fit';[112]

(d) The Public Transport Corporation retained the same powers as the Metropolitan Transit Authority had with respect to the sale, leasing or development of surplus land;[113] and

(e) [VicTrack] as well as having power to do all things necessary or convenient to be done for or in connection with carrying out its functions,[114] was granted power to 'dispose of real and personal property'[115] and to 'make land and other property vested in or managed by it available for use by other persons'.[116]

118 The applicants submitted that none of the statutory bodies that have owned the Lane had power to dedicate surplus land to the public as a public highway, and that it had been no part of their business to operate or manage a public highway on the Lane. The applicants referred to Mr Blackburn's statement in his email dated 17 April 2014[117] that the Lane constituted 'permanent non rail use' land and submitted that, until 1996, the enabling legislation provided that surplus land could not be sold or leased without the consent of the Governor in Council or the Minister.[118] The applicants contended that a power to dedicate the Lane as a public highway would be inconsistent with the enabling legislation. They argued that a statutory body cannot do indirectly, through dedication without the consent of the Governor in Council or the Minister, what it could not do directly without that consent.

119 Further, according to the applicants, the business of each statutory body is, or was, as a matter of law formally transacted through meetings of its members or directors, and there being no evidence of knowledge of public use of the Lane by its members or directors, or any pertinent dealing with the Lane by the statutory body, there was no basis for an inferred dedication of the Lane to the public as a public highway.

120 In relation to the leave application, the Council submitted that leave to advance an argument not raised at first instance should only be granted if it was expedient and in the interests of justice to do so.[119] According to the Council, the applicants had not put forward any sound basis for their failure to advance at first instance the argument the subject of Ground 2A,[120] and in particular, they did not suggest that they had been unable to do so.

121 The Council submitted that the argument was not the subject of the parties' pleadings and that, because the parties filed and served affidavits by reference to the issues raised by the pleadings, the evidence was prepared on the basis that it was not in dispute that VicTrack and its predecessors had power to dedicate the Lane as a public highway.

122 The Council contended that Ground 2A did not involve a pure question of law and that it was entirely possible that, if the applicants had pursued the issue of power at trial, one or both of the respondents would have pleaded a different defence and adduced additional evidence. The Council submitted that the respondents would suffer real prejudice were the Court to permit it to be advanced. Accordingly, so it was said, it would not be expedient or in the interests of justice for the applicants to be permitted to pursue Ground 2A.

123 In relation to the merits of the power issue, the Council submitted that VicTrack and its predecessors had power and authority to dedicate land, including the Lane, as a public highway, and accordingly Ground 2A is not made out. The Council contended that a statutory corporation may dedicate land as a public highway if the dedication is not incompatible with the objects of the corporation or the purposes for which the land was vested in the corporation.[121] According to the Council, any dedication of the Lane as a public highway was not incompatible with the objects of VicTrack and its predecessors, nor has any such dedication been shown to be incompatible with the purpose or purposes for which the Lane was vested in those authorities.

124 The Council submitted that the onus of establishing any lack of power rested on the applicants[122] and that they had failed to discharge that onus.

125 In relation to the leave application, VicTrack submitted that leave to raise a new point on appeal should only be granted in exceptional circumstances, and that briefing new counsel for the appeal is not an exceptional circumstance.[123]

126 According to VicTrack, leave should not be granted because the applicants' failure to raise the new argument at trial denied it the opportunity to adduce evidence of minutes from its predecessors - or an explanation for why those documents could not now be produced - in order to negate that argument. By contrast, VicTrack noted that when the applicants raised a new allegation during the trial, VicTrack produced additional evidence overnight to rebut that allegation.

127 VicTrack further submitted that the applicants had the onus of proof in relation to the dedication issue because it sought the fourth declaration that the Lane was not a public highway at common law. VicTrack contended that the issue of power was not raised in the applicants' pleadings or at trial, no further discovery was sought and witnesses were not cross-examined. According to VicTrack, the applicants could not now point to a lack of evidence on this point from VicTrack in support of their appeal.

128 VicTrack also submitted that the argument did not raise a pure question of law because the question of compatibility has been held by the House of Lords in Westmorland[124] to be a 'question of fact' and by Hood J in Clark[125] to be a 'mixed question of fact and law'. According to VicTrack, if the point had been raised at trial, it might have adduced evidence showing that the Lane had been used for access to railway land or rail infrastructure, for emergency access to South Yarra train station or for other transport-related purposes, to allow an assessment of how those purposes were compatible with dedication.

129 VicTrack contended that if the applicants had argued at trial that dedication of the Lane was a form of disposal of land which required the consent of the Governor in Council or the Minister, VicTrack would have searched the records of its predecessors in title to ascertain whether such consent had been obtained. According to VicTrack, as the issue was not raised, those searches were not undertaken.

130 In relation to the merits of the power issue, VicTrack argued that the applicants' submission that there was no express power to dedicate land was misconceived. VicTrack argued that, to rebut the inference that the Lane was dedicated as a public highway, the applicants had to show that the act of dedication was inconsistent with the purpose of the various empowering statutes of VicTrack and its predecessors. According to VicTrack, the applicants could not meet that requirement because:

(a) the evident purpose of each empowering statute was to provide and maintain rail infrastructure and services for the benefit of the citizens of Victoria;[126]

(b) the dedication of the Lane as a public highway to allow pedestrian access to South Yarra train station via Lovers' Walk was consistent with and furthers those purposes, rather than depriving the relevant statutory bodies of their capacity to perform their statutory functions; and

(c) the empowering Acts envisaged the construction of such roads and means of access.[127]

131 VicTrack also submitted that the applicants had not identified a prohibition on the dedication of land by VicTrack or its predecessors in title and any restriction on alienation, if it could be identified, was misconceived.[128]

132 VicTrack relied on Westmorland and Clark. According to VicTrack, the applicants had not sought to, nor could they, show that the dedication of the Lane as a public highway was inconsistent with VicTrack's statutory purposes or those of its predecessors when the Lane connects William Street to Lovers' Walk and South Yarra train station.

133 VicTrack contended that dedication of the Lane was not the same as a sale or lease of the Lane because dedication did not preclude VicTrack from using the Lane, provided that use was not inconsistent with the rights of the public or the rights of the owners of 19 and 21 William Street under the 1920 and 1982 easements.

134 Further, so VicTrack said, the applicants misconceived the inference of dedication from long user. According to VicTrack, the long use itself was evidence of both dedication and acceptance, and the Court does not need to look to meetings of its members or directors for evidence of dedication.

Decision on leave application and merits of power issue

135 In our opinion, the applicants' application for leave to rely on proposed Ground 2A should be refused.

136 It was no part of the applicants' case at trial that either VicTrack or any of its predecessors in title lacked the power to dedicate the Lane as a public highway and, for that reason, no evidence was adduced or submissions made on this issue. Unsurprisingly, the judge did not deal with this issue in her reasons. Instead, she merely noted that 'the [applicants] did not dispute that [VicTrack] ... has been capable of dedicating the [Lane] to the public as a highway as the relevant landowner'.[129]

137 The applicants were represented by counsel at trial and the only explanation they have provided as to why they seek to agitate the power issue on appeal when it was not run at trial - namely, the briefing of senior counsel after the judge published her reasons - is insufficient to warrant the granting of leave to pursue that issue.[130] In these circumstances - even if one puts to one side the issue of whether additional evidence could have been adduced by VicTrack at trial - it would be unfair to the respondents, and inimical to the administration of justice in the sense discussed in Coulton v Holcombe,[131] to permit the applicants to pursue the power issue.

138 VicTrack's submission that it would have adduced additional evidence if the power issue had been raised at trial provides a further, and very powerful, reason for refusing leave to the applicants to rely on that issue. We agree with Hood J's statement in Clark that the issue of power involves mixed questions of law and fact. The question of law involves construction of the relevant empowering statute. The question of fact involves an assessment of the evidence to determine two issues. The first issue is whether a dedication of land as a public highway is incompatible with the statutory objects of the relevant body or the statutory purposes for which the land is vested in it. The second issue is whether the dedication would impair the body's capacity to perform its statutory functions or exercise its powers.

139 As the applicants did not rely on the power issue at trial, VicTrack did not have the opportunity to adduce evidence to show that dedication of the Lane as a public highway by VicTrack or its predecessors in title was not incompatible in the sense described at [138] above. The existence of such evidence is not theoretical. Having regard to the fact that the Lane enables pedestrians to access the South Yarra train station via Lovers' Walk, there is a real possibility that evidence could be adduced that not only negates incompatibility but positively demonstrates compatibility. Common sense suggests that a public highway which makes commuters' access to a train station more convenient facilitates, rather than interferes with, a railway body's ownership and control of rail infrastructure associated with that station.

140 Notwithstanding our decision that the applicants should not be granted leave to rely on Ground 2A, we will briefly consider it. This is because we are firmly of the view that, even on the basis of the limited evidence on the issue, Ground 2A could not be made out.

141 The applicants' contention that VicTrack and its predecessors in title ('Railway Owners') lacked power to dedicate the Lane as a public highway relies heavily on two main provisions of the enabling legislation. The first provision vested all railway land in the Railway Owners 'for the purposes' of the empowering legislation.[132] The second provision conferred an express power on the Railway Owners, with the consent of the Governor in Council or the Minister, to dispose of any 'land ... in excess of the quantity required for [the purposes of any of the railways]' by sale or lease.[133]

142 An example of the latter provision is s 76 of the Railways Act 1958, which provided as follows:

Wherever it appears that the land which has been acquired for the purposes of any of the railways is in excess of the quantity required for such purposes, the Commissioners may with the consent of the Governor in Council dispose of such part thereof as may be so in excess or any part thereof by demise and lease for any term or terms of years and at such rent as the Governor in Council thinks fit to any person willing to take the same or the Commissioners may subject to the approval of the Governor in Council sell absolutely such part in excess or any part thereof; and for the purposes of such lease or sale as aforesaid the Commissioners may execute any and every deed instrument and writing which may be deemed necessary or expedient.

143 The applicants' reliance on the provisions referred to at [141] above is flawed because it equates the phrase 'for the purposes of any of the railways' with 'for use as a railway'. This construction is too narrow. Where land owned by a Railway Owner is used to provide convenient access to one of its train stations, that use can be described as being 'for the purposes of [one] of [that owner's] railways', in which case it is not 'in excess of the quantity [of land] required for such purposes' within the meaning of s 76 of the Railways Act 1958 and its predecessors.

144 The above analysis also applies to s 47(2) of the Transport Act 1983. This section empowered the Metropolitan Transit Authority ('MTA') to sell or lease 'surplus land', which was defined to mean 'land which is vested in [the MTA] but which is no longer required by the [MTA] for or in connexion with the performance of its functions'. The functions of the MTA included the provision and management of 'transport services and facilities for passengers'.[134] In exercising this function, the MTA was required to have regard to the achievement of a number of objects, including 'to make use of available transport resources in ways which are most beneficial to the community'.[135] As the public's use of the Lane included the gaining of convenient access to the South Yarra train station, it could not be regarded as 'surplus land' for the purposes of s 47(2) of the Transport Act 1983.

145 The opinion expressed by Mr Blackburn in his internal email dated 17 April 2014[136] - that the Lane constituted 'permanent non rail use of land' - is not inconsistent with our analysis. This is because he was using the phrase 'rail use' in the same narrow sense as the applicant, namely, 'use as a railway'.[137] This phrase is to be contrasted with the phrase 'transport purposes' which Mr Blackburn used in his statement that, at the time he wrote his email, VicTrack had not sought confirmation from the Department of Transport 'that the [Lane] was not required for future transport purposes.'[138]

146 There is a fundamental difference between a sale of land - which involves a loss of control over the identity of the owners beyond the initial purchaser and over the uses to which the land may be put - and a dedication of land as a public highway where the future uses of the land are known and the users will be the public. Also, unlike a sale, a dedication of land involves a divesting of the beneficial interest in the land but not the legal interest.[139] A sale of land by a statutory body may lead to future uses of the land by the new owners which are incompatible with the body's statutory objects, or which impair its capacity to perform its statutory functions.

147 In those circumstances, it is understandable that, under some of the enabling legislation, a sale was conditional on the consent of the Governor in Council or the Minister. A dedication of land as a public highway without the consent of the Governor in Council or the Minister is not incompatible with an express power to sell or lease with the consent of the Governor in Council or the Minister. Indeed, such a dedication has a legal effect similar to an easement which, from 1955, the VR Commissioners could grant without any external consent.[140]

148 We agree with VicTrack's submission that, unlike a sale or a lease, a dedication of the Lane as a public highway did not preclude VicTrack - or, more precisely, its customers and employees - from continuing to use the Lane, provided that such use was not inconsistent with the rights of the public or the private rights conferred by the 1920 and 1982 easements.

149 Further, s 76 of the Railways Act 1958 and its predecessors must be construed in the context of the relevant legislation read as a whole. Thus, in the case of the Railways Act 1958:

(a) Section 50(1) empowered the VR Commissioners 'to take purchase sell lease and hold lands ... for the purposes of and subject to this Act'.[141]

(b) Section 79 empowered the VR Commissioners to make 'roads ways passages ... as they think proper.'[142]

(c) Section 79 also empowered the VR Commissioners to 'do all other things necessary or convenient for ... using the railways'.[143]

(d) Section 91(c) empowered the VR Commissioners to grant 'an easement over any land other than an easement on or across any railway line ... on such terms and conditions as they think fit.' The granting of an easement did not require the consent of the Governor in Council.

(e) Section 207 empowered the VR Commissioners to recommend to the Governor in Council that a level crossing be closed and provided that such closure had the effect of extinguishing the rights of the public to use the level crossing notwithstanding any 'past dedication or supposed dedication thereof', thus suggesting that dedication was possible.[144]

(f) Section 207 also empowered the Governor in Council to make an order declaring any road that 'is provided by the [VR] Commissioners for the purposes of this Act' to be a public highway which 'shall vest in the council of the municipality within whose municipal district the road lies'.

150 The provisions of the Rail Corporations Act 1996, which apply to VicTrack, provide no support for Ground 2A. This is because VicTrack has power to 'dispose of real and personal property',[145] 'make land ... available for use by other persons'[146] and 'do all things necessary or convenient to be done for, or in connection with, carrying out its functions or achieving its objectives'.[147] VicTrack's functions include 'to establish, manage and maintain railways and rail infrastructure'[148] and its principal objective is 'to perform its functions in an efficient and commercial manner'.[149] In our opinion, it cannot sensibly be contended that the dedication of the Lane as a public highway - which facilitated access to the South Yarra train station - was incompatible with any of these provisions.

151 It follows from the above analysis that there is no provision in any of the statutes upon which the applicants relied which either expressly prohibited the Railway Owners from dedicating land as a public highway or which was inconsistent with the existence of a power to dedicate.

152 The circumstances of the present case are very different from those in Clark. There, a dedication of the pontoon bridge for public use would have interfered with the ability of the MHT Commissioners to manage the docks for the benefit of shipping, in accordance with their statutory responsibilities. By contrast, a dedication of the Lane as a public highway would not interfere in any way with the management or operation of the railways but would actually facilitate the use of the railways as well as Lovers' Walk, which was also owned by VicTrack but leased to the Council. We also note that in Clark, s 107 of the MHT Act conferred power on the Governor in Council to declare land vested in the MHT Commissioners to be a public highway at the request of the MHT Commissioners and the relevant municipal council. A unilateral dedication of land by the MHT Commissioners would have been incompatible with s 107 of the MHT Act. By contrast, there was never any equivalent provision in any of the empowering Acts relating to the Railway Owners.[150]

153 We reject the applicants' submissions as to the absence of evidence regarding the minutes of meeting of the VR Commissioners or their successors.[151] As explained in the context of Grounds 1-2 and 3-5 above, the presumption of dedication operates even if there is no discrete evidence of a decision to dedicate. Similarly, the question of power to dedicate is determined by application of the principles set out at [104]-[110] above, which do not require proof of the making of any particular decision.

154 It follows that, had we granted leave to the applicants to rely on Ground 2A, we would have held that that ground was not made out.

PART C: EFFECT OF INCLUSION OF LANE ON COUNCIL'S REGISTER OF PUBLIC ROADS

155 Part C concerns whether the judge correctly concluded that the Lane falls within the definition of 'road' in s 3(1) of the LGA by virtue of para (ca) of that definition, which relies on the definition of 'public road' in s 17 of the RMA.

Statutory provisions relevant to register issue

156 The inclusive definition of road in s 3(1) of the LGA is set out at [188] below. Relevantly for present purposes, para (ca) of that definition includes 'a public road under the [RMA]'.

157 Section 17 of the RMA relevantly provides as follows:

17 What is a public road?

(1) A road is a public road if it is -

(a) a freeway; or

(b) an arterial road; or

(c) declared under section 204(1) of the [LGA]; or

(d) declared under section 61 or 93H of the Melbourne City Link Act 1995; or

(da) declared under section 143 of the EastLink Project Act 2004; or

(db) the Peninsula Link Freeway; or

(e) a road to which subsection (3) applies; or

(f) a non-arterial State road declared under section 14(1); or

(g) a municipal road declared under section 14(1).

...

(3) ... the relevant coordinating road authority must register on its register of public roads a road in respect of which the road authority has made a decision that the road is reasonably required for general public use.

Example

A road set aside as a road in a plan of subdivision registered under the Subdivision Act 1988 is not a public road for the purposes of this Act unless and until a decision is made under subsection (3).

(4) A road authority must remove a road from its register of public roads if the road authority has made a decision that the road is no longer reasonably required for general public use.

(5) The removal of a public road from the register of public roads or the non-inclusion of a road on the register of public roads does not affect the status of the road as a public highway or affect the right of public use of the public highway.

158 The judge decided that the Lane was a road within the meaning of the LGA by virtue of its inclusion on the Council's register of public roads. Her reasons were as follows:

By reason of subparagraph (ca) of the definition of 'road' in s 3(1) of the [LGA], a 'public road' under the [RMA] is a 'road' for the purposes of the [LGA]. Section 17 of the [RMA] deals with 'public roads'. In short, a road is a public road if it is registered on the relevant road authority's register of public roads.

It was not disputed that the [Council] is the relevant road authority for the [Lane]. Furthermore, it was accepted that the [Council] registered the [Lane] on its register of public roads on or about 7 July 2004.

The inclusion of the [Lane] on the [Council's] register of public roads is conclusive of the [Lane's] status as a public road under the [RMA], and therefore a road under the [LGA]. This is supported by the [Council's] assumption of responsibility for the cleaning and general maintenance of the [Lane], which is consistent with its duties under Division 2 of Part 9 of the [LGA]. For these reasons, the first declaration sought by the [applicants] in this case cannot be made.[152]

Grounds of appeal relating to dedication issue

1. The learned judge further erred in holding that the inclusion of the [Lane] on the [Council's] register of public roads was conclusive of its status as a 'public road' within the meaning of the [RMA] and therefore of its status as a road under the [LGA].
2. The learned judge erred in construing the reference in s 17(1)(e) [of the RMA] to a road to which sub-section (3) applies as referring to a road actually on the register of roads of a coordinating road authority instead of as referring to a road in respect of which a road authority has made a decision that the road is reasonably required for general public use, whether or not the road is actually so registered.
3. There being no evidence that the [Council], as the relevant road authority, had made a decision that the [Lane] was reasonably required for general public use, the learned judge erred in not holding and declaring, in the circumstances of the case, that the [Lane] was not a road within the meaning of the [RMA] or the [LGA].

160 In their written submissions, the applicants contended that the judge erred in finding that the entry by the Council of the Lane on its register of public roads was conclusive of its status as a public road under the RMA and, therefore, of its status as a road under the LGA.

161 The applicants submitted that s 17 of the RMA defined when a road was a public road for the purposes of the RMA by reference to several categories, none of which defined a public road by reference to an entry made in the register of public roads which the road authority was to maintain.

162 The applicants referred to s 17(1)(e) of the RMA, which defines a public road as a road to which subsection (3) applies, which is 'a road in respect of which the road authority has made a decision that the road is reasonably required for general public use'.[153] They submitted that there was no evidence that the Council made a decision that the Lane was reasonably required for general public use at any time. They contended that, as s 17 came into operation on 1 July 2004 and the Council registered the Lane on its register of public roads on 7 July 2004, it was unlikely that any such evidence was in existence.

163 The applicants submitted that it was not established that the Lane was a public road within the meaning of the RMA, and accordingly that the Lane was a road within the meaning of the LGA. It followed, so it was said, that the judge erred in refusing to make the first declaration.

164 In their oral submissions, the applicants maintained the above contentions. However, in their oral submissions in reply, the applicants argued - without abandoning Grounds 6-8 - that it was not necessary for this Court to determine whether the Lane was a road for the purposes of the LGA because there was no current or proposed action by the Council in relation to the Lane which depended on it being a road under that Act. The applicants submitted that this Court should only decide whether the Lane was a public highway within the meaning of the common law, which would also determine whether it was a road under the RMA.

165 The Council submitted that, as the status of the Lane as a road under the LGA was an issue at trial and had been pursued by the applicants in their application for leave to appeal, it was a proper matter for decision by this Court. According to the applicants, if this Court did not determine that issue, there was a real prospect of ongoing litigation between the applicants and the Council on that issue.

166 The Council submitted that the judge did not err in making the finding impugned by Grounds 6-8. According to the Council, at trial the applicants accepted that the Lane was registered on the Council's register of public roads and did not contend that the registration was invalid or that there was any statutory precondition for the registration of the Lane which might have been unfulfilled. During oral argument, the Council submitted that it had been implicitly conceded by the applicants that registration of the Lane had validly occurred, which must have incorporated a concession that all preconditions to registration had been satisfied.

167 The Council also submitted that, to the extent that the applicants sought to argue their case differently, they should not be permitted to do so because they had not provided any good reason for the failure to advance the new case at first instance.

168 In relation to s 17 of the RMA, the Council submitted that the Lane had to be a road in respect of which the road authority had made a decision that the road was reasonably required for general public use within the meaning of s 17(3) because: in s 17(1), only paragraph (e) could possibly apply to the Lane; the Lane had been registered on the Council's register of public roads; and that registration was neither invalid nor ineffective.

169 The Council also submitted that it could not be said that there was no evidence on which the Court could find that the Council had decided that the Lane was reasonably required for general public use. By way of example, the Council referred to the evidence of its assumption of responsibility for cleaning and maintenance of the Lane.[154]

170 VicTrack submitted that the definition in s 17(1)(e) attached to the entry into the register, rather than to the decision of the relevant road authority, because:

(a) the relevant road authority was obliged by s 19 of the RMA to maintain the road register and allow its inspection by the public;

(b) schedule 1 to the RMA set out the matters that must and may be included in the road register;

(c) the evident purpose of the road register was to allow members of the public to determine the status of land that might be a public road and to identify the relevant road authority in order to deal with that land;

(d) that purpose was consistent with the purposes of the RMA set out in s 1 of that Act; and

(e) that purpose was frustrated if the public must look behind the register and seek evidence of the road authority's decision-making process before relying on that entry.

171 VicTrack argued that, as the applicants did not seek to impugn the validity of the inclusion of the Lane on the Council's register of public roads at trial, the presumption of regularity meant that it must be assumed that all preconditions to registration had been satisfied.

172 We reject the applicants' contention that this Court should not decide the issues raised by Grounds 6-8. As submitted by the Council, the status of the Lane as a road under the LGA was an issue at trial and the judge found in favour of the respondents by reference to para (ca) of the definition of road in s 3(1) of the LGA. The applicants have sought leave to appeal in respect of the judge's finding on the basis of Grounds 6-8 and the parties have made detailed submissions on those grounds. In these circumstances, and in the light of the likelihood of ongoing disputes between the parties about their respective rights and obligations concerning the Lane which will require consideration of its status as a road under the LGA, we cannot see any proper basis for not deciding Grounds 6-8.[155]

173 We have some sympathy for the Council's complaint that the applicants had relied on the argument that s 17(1)(e) of the RMA operated by reference to the inclusion of a road on a road authority's register of public roads, rather than by reference to a decision of the authority that the road was reasonably required for general public use. At trial, counsel for the applicants (who appeared as their junior counsel on the appeal) made somewhat ambiguous submissions on this issue. While he did not seek to resile from agreed fact (v) - that the Council registered the Lane on its register of public roads on or about 7 July 2004 - he sought to submit that the Lane should not have been so registered because of alleged non-compliance with the Council's 'Register of Public Roads Policy'. However, when this submission was challenged on the basis that it was contrary to agreed fact (v), he said that he did not press the submission.[156]

174 Nevertheless, we are of the view that the applicants should not be precluded from pursuing, on appeal, the issue of the proper construction of s 17(1) and (3) of the RMA and, in particular, the legal effect of registration of a road on a road authority's register of public roads, where no evidence is adduced of the making of a decision that the road is reasonably required for general public use. This is because, at trial the applicants sought a declaration that the Lane was not a road within the meaning of the LGA and, accordingly, the definition of road in s 3(1) of that Act was central to a determination of whether such a declaration should be made. As that definition refers to 'a public road under the [RMA]', the judge had to resolve whether the Lane came within the definition of 'public road' in s 17(1) of the RMA. This, in turn, required the judge to determine whether the Lane was 'a road to which [s 17(3)] applies'.

175 Agreed fact (v) acknowledged that the Lane was registered on the Council's register of public roads on 7 July 2004.[157] However, there was no acknowledgement - either in the statement of agreed facts or in the submissions of counsel for the applicants - that the Council had made a decision that the Lane 'is reasonably required for general public use'.

176 Accordingly, the proper construction of s 17(1) and (3), and the existence of evidence to establish that those provisions were satisfied, were live issues at trial. The Council was on notice that, if there was evidence of a decision under s 17(3), it should adduce it. Nothing that counsel for the applicants said affected this position.

177 It follows that consideration of those construction and evidentiary issues on this appeal does not result in unfairness to the Council.

178 Turning now to the merits of Grounds 6-8, we are of the opinion that the judge erred in concluding that the inclusion of the Lane on the Council's register of public roads was conclusive of the Lane's status as a public road under s 17 of the RMA and, consequently, as a road under s 3(1) of the LGA.

179 Section 17(1) of the RMA sets out nine categories of 'public road'. Categories (a), (b), (c), (d), (da), (f) and (g) are engaged where a particular declaration has been made.[158] Category (db) describes a particular freeway. The remaining category, category (e), is unique because it is engaged in respect of a road if another provision, s 17(3), 'applies'. Significantly, s 17(1)(e) refers to 'a road to which subsection (3) applies' rather than 'a road on the relevant coordinating road authority's register of public roads'.

180 In order to determine whether s 17(3) applies to a road, one must look at the identifying attribute of a road that falls within that section. The identifying attribute of such a road is that it is one 'in respect of which the road authority has made a decision that the road is reasonably required for general public use'. Once a road acquires this attribute, s 17(3) imposes a duty on the road authority to register the road on its register of public roads. However, it is not the carrying out of this duty which identifies a road to which s 17(3) applies but rather the making of a decision that the road is reasonably required for general public use.

181 It follows that, where a decision is made by a road authority that a road is reasonably required for general public use, s 17(3) of the RMA applies to that road and s 17(1)(e) is engaged, even if the road is not registered on the authority's register of public roads. Conversely, where a road is registered on a road authority's register of public roads in the absence of a prior decision that the road is reasonably required for general public use, s 17(3) does not apply and s 17(1)(e) is not engaged. The fact that s 19(5) requires that registers of public roads must be available for inspection by members of the public cannot affect the correct construction of these provisions.

182 The interpretation we have given to s 17(3) of the RMA is supported by the example appearing at the end of that provision. The example indicates that, where s 17(3) is relied upon for the purposes of the definition of 'public road', a road does not become a public road 'unless and until a decision is made under subsection (3)'.[159] Our preferred interpretation is also supported by cl 1 of sch 1 to the RMA which, in the list of items to be specified in a register of public roads, includes the following: '(b) if a road becomes a public road after 1 July 2004, the date on which the road became a public road'. This item presupposes that it is not the act of registration which confers the status of a public road but, rather, the occurrence of an anterior event that satisfies one of the paragraphs in s 17(1).

183 In our opinion, the 'decision' to which s 17(3) of the RMA refers is a formal written decision by a road authority. We reject the Council's submission that the section extends to a decision that can be inferred from conduct, such as acts of cleaning and maintenance.

184 We also reject VicTrack's submission that our preferred interpretation of s 17(1)(e) frustrates the purpose of road registers. The public's access to decisions made under s 17(3) of the RMA can be facilitated by the relevant register including, in the particulars relating to a road entered on the register, details of the decision made under s 17(3) in relation to that road.

185 Further, we reject VicTrack's submission based on the presumption of regularity. The issue is not whether the inclusion of the Lane on the Council's register of public roads was valid. Rather, the issue is whether the Lane is a road to which s 17(3) of the RMA applies. That issue depends on whether, as a matter of fact, the Council made a decision that the Lane is reasonably required for general public use.

186 In the present case, there was no evidence before the judge that was capable of establishing that the Council had made a decision that the Lane was reasonably required for general public use. It follows that, notwithstanding the inclusion of the Lane in the Council's register of public roads, it was not open to the judge to be satisfied that the Lane was 'a road to which subsection (3) applies' and was therefore a 'public road' as defined in s 17(1) of the RMA. It also follows that it was not open to the judge to be satisfied that the Lane fell within para (ca) of the definition of road in s 3(1) of the LGA.

187 Accordingly, Grounds 6-8 are made out. With great respect to the judge, her reasons in relation to the definition of 'public road' in s 17(1)(e) of the RMA were not a proper basis for her to refuse to make the first declaration. However, that does not mean that the judge was wrong to refuse to make that declaration. The definition of 'public road' in s 17(1) of the RMA is only one means of satisfying the inclusive definition of road in s 3(1) of the LGA. The judge did not go on to consider the other elements of the latter definition, presumably because she considered that her conclusion in relation to s 17(1) of the RMA rendered such consideration unnecessary. The judge's failure to consider the other elements of the definition of road in s 3(1) of the LGA is the subject of the Council's notice of contention to which we now turn.

PART D: WHETHER LANE IS A ROAD UNDER OTHER PROVISIONS OF LOCAL GOVERNMENT ACT

Relevant provisions of Local Government Act

188 Section 3(1) of the LGA contains the following inclusive definition of 'road':

road includes -

(a) a street; and

(b) a right of way; and

(c) any land reserved or proclaimed as a street or road under the Crown Land (Reserves) Act 1978 or the Land Act 1958; and

(ca) a public road under the [RMA]; and

(d) a passage; and

(e) a cul de sac; and

(f) a by-pass; and

(g) a bridge or ford; and

(h) a footpath, bicycle path or nature strip; and

(i) any culvert or kerbing or other land or works forming part of the road;

Judge's reasons for not considering all provisions of definition of 'road'

189 As discussed in Part C above, the judge decided that the Lane was a road for the purposes of the LGA because it satisfied para (ca) of the definition of road in s 3(1) of that Act. The judge did not go on to decide whether the Lane satisfied any other provision in that definition.

190 By its notice of contention, the Council contends that the judge ought to have found that the Lane was a road under the LGA for reasons in addition to the fact that it was a public road pursuant to the RMA. The notice of contention is in the following terms:

1. In the Decision:

1.1 McMillan J refused to grant [the] declaratory relief sought by the applicants in respect of [the Lane] ...;

1.2 in particular, McMillan J refused to make a declaration to the effect that the [Lane] is not a 'road' for the purposes of the [LGA];

1.3 McMillan J refused to make this declaration because her Honour found that:

(a) the [Lane] is a 'public road' under the [RMA] (at [90]);

(b) by reason of paragraph (ca) of the definition of the word 'road' in s 3(1) of the [LGA], a 'public road' under the [RMA] is a 'road' for the purposes of the [LGA] (at [88]-[90]); and

(c) the [Lane] is therefore a 'road' for the purposes of the [LGA] (at [90]); and

1.4 McMillan J did not find that the [Lane] is a 'road' under the [LGA] for any other additional reason.

1. At first instance, the [Council] contended that the [Lane] is, for reasons other than and additional to its status as a 'public road' under the [RMA], a 'road' for the purposes of the [LGA]. See paragraphs 8 and 21-23 of the Council's outline of submissions dated 7 March 2016.
2. 3. In particular, the [Council] contended at first instance (and contends on appeal) that the [Lane] is also a 'road' for the purposes of the [LGA] because the [Lane] is, within the terms of the non-exhaustive definition of the word 'road' in s 3(1) of that Act, 'a street', 'a right of way', 'a passage', 'a cul de sac', 'a by-pass' or otherwise has the characteristics of a road for the purposes of that Act.

191 The Council submitted that the Lane was a 'road' for the purposes of the LGA for reasons other than the fact that it came within para (ca) of the definition of 'road' in s 3(1) of the LGA, that is, it was a public road within the meaning of the RMA. According to the Council, the Lane met the definition in s 3(1) of the LGA for other reasons.

192 The Council submitted that the Lane was also 'a right of way' as described in para (b) of the definition.[160] According to the Council, the Lane had been the subject of easements affording a right of carriageway along the Lane. Such right of carriageway was said to be a right of way. Further, so the Council contended, the Lane was a thoroughfare falling within one or more of the descriptions 'a street', 'a passage', 'a cul de sac' and 'a by-pass' in paras (a), (d), (e), and (f) of the definition.

193 The Council relied on the fact that the definition of 'road' was inclusive and not exhaustive. It submitted that, having regard to the terms of the definition, the Lane also had the characteristics of a 'road' for the purposes of the LGA. By way of example, the Council noted that the Lane was paved with cobblestones, had drainage and was designed to accommodate traffic. The Council also referred to the fact that the certificate of title for the Applicants' Land referred to the Lane as a 'road'.

194 The applicants submitted that, in its pleadings and at trial, the Council did not claim any proprietary right, or rely on any statutory right, in respect of the Lane permitting the Council to allow members of the public to use the Lane. In particular, so it was said, the Council did not rely on the operation of the definition of 'road' in s 3(1) of the LGA but, rather, on the contention that the Lane was a public highway at common law through dedication. The applicants accepted that, in its pleadings, the Council claimed the right to compel the applicants to remove any obstruction they placed on the Lane and the right to carry out that work at the expense of the applicants if they did not do so. However, so the applicants said, argument at trial was not directed to the meaning or application of the statutory provisions upon which these rights were said to be based.

195 The applicants submitted that, in the circumstances, the alternative ground relied on by the Council did not arise, and would quell no relevant controversy between the parties. The applicants contended that whether the Lane was a road within the meaning of that term in the LGA, by reason of the Lane being 'a street', 'a right of way' or the like, was not a question which arose in this case. According to the applicants, that was a question that was properly to be determined only in the context of a dispute as to the proper construction of a section of the LGA which depends on such a characterisation.

196 We reject the applicants' submission that this Court should not decide the notice of contention because it does not relate to any current controversy between the parties.

197 In their statement of claim, the applicants alleged that the Lane was not a road within the meaning of the LGA and sought a declaration to that effect.[161] In its defence, the Council alleged that the Lane was a road within the meaning of the LGA and expressly relied on the wording of para (b) of the definition of road in s 3(1) of the LGA, namely, that the Lane was 'a right of way'.[162] As the issue of whether the Lane fell within the definition of road in s 3(1) of the LGA was before the judge, she was required to decide whether the Lane fell within any of the categories in that definition. The judge decided that the Lane fell within para (ca) of that definition and did not consider whether any of the other paragraphs applied.

198 As we have found that the judge erred in relation to the applicability of para (ca), it is necessary for this Court to decide whether any of the other paragraphs applied, in order to determine whether, as the Council submits in its notice of contention, the judge was correct in refusing to make the first declaration because the Lane was a road pursuant to one or more of those other paragraphs. If we do not decide this issue, it would be open to the applicants to re-agitate the issue of the Council's powers in relation to the Lane on the basis that it is not a road. This would not promote finality in litigation and would be contrary to the overarching purpose in s 7(1) of the Civil Procedure Act 2010.[163]

199 Although the definition of road in s 3(1) of the LGA contains 10 categories, it is an inclusive definition. Accordingly, the Lane may be held to be a road even if it does not fall within one of the enumerated categories.

200 This is significant in the present case, as we have held that the judge correctly decided that the Lane had been dedicated as a public highway. The legal characteristic of a highway is that 'it is a way over which all members of the public are entitled to pass and repass on their lawful occasions'.[164] As a public highway, the Lane possesses this legal characteristic. Coupled with its physical features which accommodate not only pedestrians but also vehicular traffic,[165] it qualifies as a road within the meaning of the LGA even if it does not fall within any of the enumerated categories in the definition in s 3(1) of that Act. The fact that the Lane is described as a 'road' in the certificate of title dated 24 June 1920[166] supports this analysis.

201 In our opinion, even if the Lane's status as a public highway does not of itself qualify it as a road within the definition of road in s 3(1) of the LGA, the Lane would still fall within that definition. This is so in respect of para (b) of the definition, namely, 'a right of way'. The essential feature of a 'right of way' is an entitlement to pass over land owned or occupied by another person.[167] As the Lane is a way over which the public is entitled to pass, the Lane satisfies the essential feature of a 'right of way'.

202 It is therefore not necessary for us to consider the Council's submission that the fact that the owners of the Applicants' Land and the Neighbours' Land have a private right to pass over the Lane (pursuant to the 1920 Easement[168] and the 1982 Easement,[169] respectively) is sufficient for it to constitute 'a right of way' within the definition of road in s 3(1) of the LGA.

203 It is also not necessary for us to decide whether the Lane falls within any other category of the definition of road in s 3(1) of the LGA.

204 Our conclusion that the Lane is a road pursuant to the definition of road in s 3(1) of the LGA means that the judge correctly refused to make the first declaration, notwithstanding that she erred in finding that the Lane satisfied para (ca) of that definition.

205 It follows that we uphold the notice of contention.

206 For the above reasons, the application for leave to appeal will be granted but the appeal will be dismissed.

[1] Anderson v City of Stonnington [2016] VSC 374 ('Reasons').

[2] The Lane is registered in the name of the Metropolitan Transit Authority but was allocated to VicTrack by an allocation statement dated 30 June 1996 pursuant to the Rail Corporations Act 1996 (now called the Rail Management Act 1996 by reason of s 200(1) of the Transport Integration Act 2010).

[3] See cls 1(4) and (5) of sch 5 to the RMA.

[4] See s 37(1)(e) of the RMA.

[5] Section 17 of the RMA is set out at [157] below.

[6] The definition of 'road' in s 3(1) of the LGA is set out at [156] below.

[11] Section 205(1)(a) of the LGA provides that a municipal council has the care and management of all public highways vested in the council. Pursuant to s 206(1) and cl 1(a) of sch 10, a council has power to 'make, maintain and repair roads' within its municipal district. Pursuant to s 40 of the RMA, a council has a statutory duty to inspect, maintain and repair public roads within its municipal district and a discretionary power to inspect, maintain and repair roads in that district which are not public roads.

[12] See [12] above.

[13] [1971] HCA 77; (1971) 126 CLR 353 ('O'Donohue').

[14] O'Donohue [1971] HCA 77; (1971) 126 CLR 353, 363. See also Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 565 [119] ('Brodie').

[15] Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council [1960] HCA 62; (1960) 105 CLR 401, 420 ('Campbelltown'); Brodie [2001] HCA 29; (2001) 206 CLR 512, 565 [119]; Newington v Windeyer (1985) 3 NSWLR 555, 558 ('Newington'); Calabro v Bayside City Council [1999] VSC 509; [1999] 3 VR 688, 693-5 [22]-[28] ('Calabro').

[16] Narracan Shire President v Leviston [1906] HCA 34; (1906) 3 CLR 846, 861 ('Leviston').

[17] Newington (1985) 3 NSWLR 555, 559.

[18] Owen v O'Connor (1963) 9 LGRA 159, 168 ('Owen'); Newington (1985) 3 NSWLR 555, 559; Metters v District Council of West Torrens [1910] SALawRp 2; (1910) SALR 1, 7-8 ('Metters').

[19] Leviston [1906] HCA 34; (1906) 3 CLR 846, 869.

[20] Metters [1910] SALawRp 2; (1910) SALR 1, 7; Owen (1963) 9 LGRA 159, 168; Newington (1985) 3 NSWLR 555, 559; Leviston [1906] HCA 34; (1906) 3 CLR 846, 859; Everingham v Penrith Municipal Council [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74, 79 ('Everingham').

[21] R v Petrie [1855] EngR 38; (1855) 4 EL & BL 737, 744-5; [1855] EngR 38; 119 ER 272, 275 cited with approval by Street J in Everingham [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74, 77. See also Vickery v Municipality of Strathfield (1911) 11 CLR 354, 361 ('Vickery').

[22] R v Petrie [1855] EngR 38; (1855) 4 EL & BL 737, 745; [1855] EngR 38; 119 ER 272, 275 cited with approval by Street J in Everingham [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74, 77-8. See also Mann v Brodie (1885) 10 App Cas 378, 386 ('Mann').

[23] (1963) 9 LGRA 159.

[24] Owen (1963) 9 LGRA 159, 168.

[25] (1985) 3 NSWLR 555.

[26] Newington (1985) 3 NSWLR 555, 559 (citations omitted).

[27] [1931] HCA 48; (1931) 45 CLR 517 ('Adelaide Corporation').

[28] Adelaide Corporation [1931] HCA 48; (1931) 45 CLR 517, 531.

[29] Leviston [1906] HCA 34; (1906) 3 CLR 846, 857-9.

[30] Newington (1985) 3 NSWLR 555, 562.

[31] [1906] HCA 34; (1906) 3 CLR 846.

[32] Leviston [1906] HCA 34; (1906) 3 CLR 846, 857, 859 (citations omitted).

[33] (1850) 1 Legge 666, 668.

[34] Leviston [1906] HCA 34; (1906) 3 CLR 846, 867-8 (emphasis in original).

[35] Leviston [1906] HCA 34; (1906) 3 CLR 846, 872.

[36] Leviston [1906] HCA 34; (1906) 3 CLR 846, 859, 862-3, 867-8, 870, 872, 874-6.

[37] [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74.

[38] Everingham [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74, 79.

[39] Vickery (1911) 11 CLR 354, 363; Transfer of Land Act 1958 s 42(2)(c).

[40] Vickery (1911) 11 CLR 354, 363-4.

[41] Leviston [1906] HCA 34; (1906) 3 CLR 846, 867; Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 422.

[42] Everingham [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74, 82-3.

[44] Reasons [70] (citations omitted).

[45] See [21] above.

[47] Reasons [72]-[73] (citations omitted).

[48] Reasons [74]-[75]. See [26] above.

[50] Reasons [65] (citations omitted).

[55] The applicants cited Newington (1985) 3 NSWLR 555; Owen (1963) 9 LGRA 159, 168; R (Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889, 894-5, 908, 913; Mills v Silver [1991] Ch 271, 279-81.

[56] See [26] and [57] above.

[57] See [22] above.

[58] Reasons [65]. See [58] above.

[59] See [58] above.

[60] See [24], [26] and [57] above. The Council submitted that even in the absence of the evidence about the outcome of a tender by the Council for cleaning of the Lane, it was well open to find that the mere fact of the tender showed an intention on the part of the Council to take responsibility for cleaning of the Lane and to expend public monies for that purpose and, to that end, to treat the Lane as a public road.

[61] VicTrack referred to Leviston [1906] HCA 34; (1906) 3 CLR 846, 867-8; Everingham [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74, 79, 85; Adelaide Corporation [1931] HCA 48; (1931) 45 CLR 517, 531; Owen (1963) 9 LGRA 159, 168; Newington (1985) 3 NSWLR 555, 558-9.

[62] VicTrack relied on Leviston [1906] HCA 34; (1906) 3 CLR 846, 867-8. See [51] above. VicTrack also referred to Williams-Ellis v Cobb [1935] 1 KB 310, 314; Mann (1885) 10 App Cas 378, 386.

[63] See [22(d)] above.

[64] VicTrack referred to Reasons [73]. See [56] above.

[65] See [25] above.

[66] See [22] above.

[67] The precise construction date is not known. Although it is likely that the Lane was constructed prior to the time of the 'land record plan' dated 29 May 1917 that is referred to at [20] above, we will proceed on the basis that it was constructed in that year. However, as discussed at [93] below, our analysis and conclusion would be the same whether the Lane was constructed prior to that year or at the time of the granting of the 1920 Easement.

[68] See [43] above.

[69] See [43] above.

[70] See [45] above.

[71] See [45], [49] above.

[73] See [54] above.

[75] Born v Huntley [1886] SALawRp 8; (1886) 20 SALR 33, 37-8. We note that cl 14 of sch 5 to the RMA, which prevents private rights of way from co-existing with a public right of way over the same land commenced on 1 July 2004. See [59] above.

[76] See ss 10 and 12 of the RMA and cl 3(a) of sch 10 to the LGA.

[77] See agreed fact (k) at [16] above.

[78] Adelaide Corporation [1931] HCA 48; (1931) 45 CLR 517, 531; Campbelltown [1960] HCA 62; (1960) 105 CLR 401, 422.

[79] [2017] VSCA 166 ('Vlahos').

[80] Vlahos [2017] VSCA 166 [49]-[51] (citations in original).

[81] Devon v Capital Finance Australia Ltd [2014] VSCA 73 [75] ('Devon') citing Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7-8 ('Coulton'); Water Board v Moustakas (1988) 180 CLR 491, 497; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 284; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 461 [51].

[82] Devon [2014] VSCA 73 [76] citing Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, 645-6 and Geelong Building Society (in liq) v Encel [1996] VicRp 44; [1996] 1 VR 594, 605-7.

[83] [1986] HCA 33; (1986) 162 CLR 1.

[84] Coulton [1986] HCA 33; (1986) 162 CLR 1, 7.

[85] [1985] HCA 28; (1985) 60 ALR 68, 71.

[86] Coulton [1986] HCA 33; (1986) 162 CLR 1, 8.

[87] Coulton [1986] HCA 33; (1986) 162 CLR 1, 8. See also Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141 [186]-[187].

[88] R v Gough; Ex Parte Australasian Meat Industry Employees' Union [1965] HCA 52; (1965) 114 CLR 394, 408-9 ('Gough'); E A Clark and Son Pty Ltd v The Melbourne Harbour Trust Commissioners [1904] VicLawRp 68; (1903) 29 VLR 467, 470-1 ('Clark').

[89] Clark [1904] VicLawRp 68; (1903) 29 VLR 467, 471.

[90] [1833] EngR 266; [1833] 5 B & AD 469; (1833) 110 ER 863 ('Leake').

[91] Leake [1833] EngR 266; [1833] 5 B & AD 469, 478; [1833] EngR 266; (1833) 110 ER 863, 867.

[92] (1879) 11 Ch D 611 ('Mulliner').

[93] Mulliner (1879) 11 Ch D 611, 620, 623.

[94] Mulliner (1879) 11 Ch D 611, 623.

[95] [1957] 2 All ER 353 ('Westmorland').

[96] Westmorland [1957] 2 All ER 353, 358-9, 361, 362-5, 369-70.

[97] Westmorland [1957] 2 All ER 353, 359, 361, 369.

[98] Westmorland [1957] 2 All ER 353, 369-70.

[99] [1965] HCA 52; (1965) 114 CLR 394, 409. See n 88 and [104] above.

[100] [1904] VicLawRp 68; (1903) 29 VLR 467.

[101] Clark [1904] VicLawRp 68; (1903) 29 VLR 467, 472-4.

[102] See [30] and [31] above.

[103] The applicants relied on Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592, 655 [200]-[201]; Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24; (2013) 45 VR 657, 674 [86].

[104] The applicants relied on Campbelltown ([1960] HCA 62; 1960) 105 CLR 401, 420; Thwaites v Brahe [1895] VicLawRp 33; [1895] 21 VLR 192; Mulliner (1879) 11 Ch D 611.

[105] Citations in original. Some citations have been omitted.

[106] Section 16 constituted the Metropolitan Transit Authority, and s 254 repealed the Railways Act 1958, among others.

[107] Clause 1 of Schedule 1 to the [Rail Corporations Act 1996].

[108] Section 62 Victorian Railways Commissioners Act 1883, replicated in s 76 of the Railways Act 1928 (enacted in 1929, Act No 3759) and s 76 of the Railways Act 1958.

[109] The Railways (Amendment) Act 1955 recast s 85 of the Railways Act 1928 into a form which conferred this further power. The substituted form of s 85 of the 1928 Act was re-enacted in the same form as s 91 of the Railways Act 1958.

[110] See the [Railways Act 1958 as amended by the] Railways (Amendment) Act 1972, [especially] s 51 and s 72.

[111] [Transport Act 1983 s] 47(2)(a) & (b).

[112] [Transport Act 1983 s] 47(2)(c)(iii).

[113] The amendments made by the [Transport (Amendment) Act 1989] inserted a definition of 'Corporation' into the definition section (s 2(1)) of the 1983 Act, which term was defined to include the Public Transport Corporation or the Roads Corporation, and s 47(1) and (2) were amended to substitute 'Corporation' for 'Authority'; see cll 1 and [2.1] of Schedule 1 to the 1989 Act.

[114] Section 11(2)(e) of the [Rail Corporations Act 1996].

[115] Section 8(2)(d) of the [Rail Corporations Act 1996].

[116] Section 11(3)(e) of the [Rail Corporations Act 1996].

[117] See [22] above.

[118] See [141]-[142] and n 133 below.

[119] The Council relied on Coulton [1986] HCA 33; (1986) 162 CLR 1, 7.

[120] The Council referred to Sunset Vineyard Management Pty Ltd v Southcorp Wines Pty Ltd [2008] VSCA 96 [38] ('Sunset Vineyard').

[121] The Council referred to Westmorland [1957] 2 All ER 353, 358-9, 363-5, 369-70, 372-3; Clark [1904] VicLawRp 68; (1903) 29 VLR 467, 470-1; Gough [1965] HCA 52; (1965) 114 CLR 394, 409.

[122] The Council relied on Everingham [1916] NSWStRp 19; (1916) 3 LGR (NSW) 74, 81.

[123] VicTrack referred to Sunset Vineyard [2008] VSCA 96 [38], [57]; Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640.

[124] [1957] 2 All ER 353.

[125] [1904] VicLawRp 68; (1903) 29 VLR 467.

[126] VicTrack referred to the long title to the Victorian Railways Commissioners Act 1883, Transport Act 1983 ss 15 and 16 and Rail Corporations Act 1996 s 11.

[127] VicTrack referred to the Railways Commissioners Act 1883 s 61 and Railways Act 1928 s 79.

[128] VicTrack relied on Westmorland [1957] 2 All ER 353, 365.

[130] Sunset Vineyard [2008] VSCA 96 [38].

[131] [1986] HCA 33; (1986) 162 CLR 1, 7-8. See [102] above.

[132] Victorian Railways Commissioners Act 1883 s 40; Railways Act 1928 ss 51, 71, 72; Railways Act 1958 ss 51, 71, 72; Transport Act 1983 s 233.

[133] As appears from the applicants' summary of the legislation at [117] above, between 1883 and 1983, that provision was s 62 of the Victorian Railways Commissioners Act 1883, s 76 of the Railways Act 1928 and s 76 of the Railways Act 1958. See also Transport Act 1983 s 47(2) which is discussed at [144] below_._

[134] Transport Act 1983 s 16(2)(a).

[135] Transport Act 1983 s 16(3)(a).

[136] See [22] above.

[137] See [143] above.

[138] See [23] above.

[139] See [40] above.

[140] See [117] above and [149(c)] below.

[141] See also Victorian Railways Commissioners Act 1883 s 4; Railways Act 1928 s 50(1).

[142] See also Railways Act 1928 s 79.

[143] See also Railways Act 1928 s 79; Transport Act 1983 s 38(1).

[144] See also Transport Act 1983 sch 3 cl 4.

[145] Rail Corporations Act 1996 s 8(2)(d). See also Transport Integration Act 2010 s 142(1)(d).

[146] Rail Corporations Act 1996 s 11(3)(e). See also Transport Integration Act 2010 s 152(2)(i).

[147] Rail Corporations Act 1996 s 11(2)(e). See also Transport Integration Act 2010 s 152(1).

[148] Rail Corporations Act 1996 s 11(1)(a).

[149] Rail Corporations Act 1996 s 10.

[150] Section 207 of the Railways Act 1958, which is discussed at [149(f)] above, appears to be confined to level crossings.

[151] See [119] above.

[152] Reasons [88]-[90] (citations omitted). See also [23], [25] and n 18 of the Reasons. In n 18, the judge said that 'inclusion on a road authority's register of public roads automatically makes a road a public road by reason of the interaction between sections 17(1)(e) and 17(3).'

[153] See [157] above.

[154] See [24], [26] above.

[155] See also [197]-[198] below.

[156] The applicants objected to the pages of the transcript of the trial which dealt with their counsel's submissions being included in the application book for use by this Court. The basis of the objection was that the submissions dealt with the inclusion of the Lane on the Council's register of public roads, which was said not to be an issue on appeal, and did not relate to the legal effect of such inclusion, which was said to be the issue raised by Grounds 6-8. The objection was misconceived. Pages from the trial transcript which disclose that the parties made concessions, abandoned arguments or otherwise refined the issues to be decided by the trial judge are capable of assisting this Court in understanding the trial judge's reasons and in giving context to the grounds of appeal and any notice of contention.

[157] See [16] above.

[158] Although categories (a) and (b) do not refer to the making of a declaration, a declaration is required by the definitions of 'freeway' and 'arterial road' in s 3(1) of the RMA.

[159] Sections 36(3A) and 36A(1) of the Interpretation of Legislation Act 1984 provide that an example at the foot of a provision forms part of an Act and may extend, but does not limit, the meaning of that provision.

[160] See [188] above.

[161] See [29] above.

[162] See [30] above.

[163] The overarching purpose is 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'.

[164] O'Donohue [1971] HCA 77; (1971) 126 CLR 353, 363.

[165] The applicants and the occupants of the Neighbours' Land use the Lane as a driveway for their properties. The Lane does not provide vehicular access to Lovers' Walk.

[166] See agreed fact (k) at [16] above.

[167] LexisNexis, Encyclopaedic Australian Legal Dictionary (at 28 July 2017) 'Right of Way'; LexisNexis, Halsbury's Laws of Australia (at 28 July 2017) 355 Real Property, '(C) Common Forms of Easements' [355-12060].

[168] See agreed fact (j) at [16] above.

[169] See agreed fact (r) at [16] above.