Land Titles Act 1980 (Tas) ss 40(1) and 40(3)(c).

Permanent Trustee Company of New South Wales Ltd v Campbelltown Municipal Council [1960] HCA 62; (1960) 105 CLR 401; Headlam v Casimaty [1952] TASStRp 9; [1952] Tas SR 47; Clarence City Council v Howlin [2012] TASSC 26; Everingham v Council of the Municipality of Penrith [1916] NSWStRp 19; (1916) 16 SR (NSW) 238; Newington v Windeyer [1985] 3 NSWLR 555, referred to.

Judgment Number: [2018] TASSC 65

1. Christa Ann Batt is the owner of property at Camdale, near Burnie in Tasmania. This property is on the eastern banks of the Cam River close to the bridge near the mouth of the river. The property faces the river with a property behind which has frontage to Scarfe Street. Scarfe Street is parallel to the river. The property is Lots 54 and 56 on folio 54 and folio 56 of volume 52539 of the Register. The address of Ms Batt's property is known as 18 Scarfe Street which is misleading because it does not front onto Scarfe Street at all. Access to the plaintiff's property is via an unmade road which runs at right angles from Scarfe Street, and leads towards the river. It is alongside the northern boundary of the property that has street frontage, and the northern boundary of Ms Batt's property and leads towards the river. On the other side of the access road is industrial premises, operated by Aus-Tech Composites Pty Ltd.
2. Ms Batt and her husband purchased the property in 1999 and lived there with their young family. In September 2002, the property was transferred into her name as part of a matrimonial settlement. In 2003 Ms Batt was having "issues" with Aus-Tech about the road, including her access being impeded and the conditions of the road. She wrote to the Burnie City Council seeking recourse and was informed by the Council in a letter from the Manager Environmental Services that, "as this is an unmade road, Council cannot properly involve itself in private matters between landowners." She made enquiries about the ownership of the land comprising the road and found that the land was described on Survey Plans as "Devon Street" and was owned by the Van Diemen's Land Company. In 1978 a narrow strip of part of "Devon Street" had been sold by the Company to Webster's Limited who were the owners to adjoining land on the northern side of "Devon Street". Ms Batt approached the Company to see whether she could purchase the remaining portion of land. Subsequently, the land was valued and sold to the plaintiff for $10,000. The general law conveyance of that land for $10,000 was dated 1 May 2006. The property was transferred into her name on 10 April 2006 and later registered under the Land Titles Act 1980, folio 1 of volume 146436.
3. It can be seen from the Plan of Survey that the area of land sold to the plaintiff is approximately 12 metres wide and 98 metres long and 1110 square metres. The plaintiff engaged contractors to fence the land and seal it for use as a driveway.
4. On 19 April 2006, the plaintiff's solicitors received correspondence from the Burnie City Council's Director of Land and Environmental Services, Mr Patrick Earle, questioning the purchase and transfer of the property to the plaintiff's name. It was stated that it was understood that the land formed part of a larger holding, and that the land is a "local highway" within the general meaning of the Local Government (Highways) Act 1982. Subsequently, in a letter from the General Manager, Paul Arnold, it was stated that if the land was not made available for public use, or the obstructions remain in place, then the Council would "proceed in accordance with its powers and entitlements under the statutory and common law to abate the obstruction and to reinstate right of the public to use of the local road." Since purchasing the land the plaintiff has been paying rates over the land.
5. Generally the position would be that the plaintiff would have an indefeasible title to the land, so that title would only be subject to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land: s 40(1) of the Land Titles Act 1980. However s 40(3)(c) provides that title is not indefeasible "so far as regards ... any public right of way; ...".
6. It is asserted by the Council that the land purchased by Ms Batt was a "public right of way". The defendant's contention is that a public highway has been created by the common law doctrines of "dedication" and "acceptance". As will be seen this is a question of whether there had been a dedication of the land by the owner as a public road and an acceptance by the public of the land as a public road. It is asserted that it can be inferred from historical plans and other sources that the owner of the land, the Van Diemen's Land Company, had dedicated the land as a public road in the mid-19th Century, and there had been acceptance by the public of the land, involving substantial usage, as a public road. The defendant maintains that acceptance was complete by approximately the 1870s. The law is that even if the road falls into disuse at a later time that is immaterial, encapsulated in the common law adage "Once a highway, always a highway." There has been no suggestion that the highway was validly extinguished. It is useful to now turn to a consideration of the law that governs the question of whether the land is a public right of way and what is required for dedication and acceptance.

1. A highway can be created by the application of the common law doctrines of dedication and acceptance: Halsbury's Laws of Australia, Vol 14, pars [225]-[270]. A highway recognised by law does not have to be constructed or "made". It need not be a main road, a highway as distinct from a by-way. It need simply be a way over which all members of the public are entitled to pass and repass on their lawful occasions: City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353 at 363 per Windeyer J. "It is the public right to use the land as a way, rather than its physical nature, that makes land a highway": Permanent Trustee Company of New South Wales Ltd v Campbelltown Municipal Council [1960] HCA 62; (1960) 105 CLR 401, at 420 per Windeyer J.
2. At common law the making of a public road requires the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (above); Pratt and McKenzie_, Law of Highways_, 21st ed (1967) at 16, Halsbury at [225]-[275]. Dedication means that the owner of land intends to divest himself of the beneficial use of the soil, and to make a present of it to the public for the purposes of a highway: Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846 at 861 per Griffith CJ. The dedication of a highway is complete, and a highway comes into existence when the offer of dedication is accepted by the public: Halsbury pars [225]-[275]; City of Brunswick v Baker [1916] ArgusLawRp 54; (1916) 21 CLR 407 at 416.
3. The dedication and acceptance have to be proved as facts. The onus lies on the party making the claim of highway in respect of land to prove facts from which the court can draw the inference that the owner, at the time, did so dedicate the land: Everingham v Council of the Municipality of Penrith [1916] NSWStRp 19; (1916) 16 SR (NSW) 238 at 239.
4. The nature of the proof will vary from case to case: Attorney-General v City Bank of Sydney [1920] NSWStRp 9; (1920) 20 SR (NSW) 216 at 220; Halsbury pars [225]-[275]. The dedication could be made expressly or inferred from the conduct of the owner.
5. Generally courts are asked to infer both dedication and acceptance from evidence of open and unobstructed user by the public of the land as a way for a substantial period of time. In Newington v Windeyer [1985] 3 NSWLR 555 at 559; McHugh JA, with the concurrence of Kirby P and Hope JA, noted:

"Dedication to the public may be presumed from uninterrupted user of the road by the public: Turner v Walsh (19981) 6 App Cas 636 at 639, 641; Folkstone Corporation v Brockman [1914] AC 338 at 352, 362. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public."

1. In Shire of Narracan v Leviston (above), Griffith CJ referred to the presumption of dedication arising from continuous user, stating it must be qualified by adding the words "if unexplained" adding:

"It is always permissible, as pointed out by Patteson J, [in Barraclough v Johnson [1838] EngR 552; 8 A & E, 99, at p 103] 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 as intention? Or was it under such circumstances as not to point in one direction rather than the other?"

1. The common law principles regarding user by the public of the highway as evidence of an intention to dedicate were discussed in Lynch v Eaves (Max) Pty Ltd (1996) 91 LGER 166 at 183-184, including the following: "While public user may be evidence tending to prove intention to dedicate, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee: Folkestone Corporation v Brockman [1914] AC 338 at 352." It can be seen that use by the public of a way "as of right" is evidence from which an intention to dedicate a way as a highway by the owner may be inferred: Halsbury at [225]-[315], Halsbury at [408,207] note 1; Ex parte Sunningwell [1999] UKHL 28; [2000] 1 AC 335, 354.
2. Acts of dedication must define the land to be dedicated with some precision: Halsbury pars [225]-[280]; Attorney-General (NT) v Minister for Aboriginal Affairs [1989] FCA 159; (1989) 23 FCR 536 at 545 per Lockhart J and Rapley v Martin (1865) 4 SCR (NSW) L 173 at 180 per Stephen CJ. Use as of right of a small part of a road sufficient to constitute a highway does not necessarily mean that the whole length of the road is a highway; on the other hand, evidence of use of only a portion of such a thoroughfare does not prevent the whole of the land being accepted as a "public highway": Halsbury at [408,207]; Wood v Mittagong Shire Council (1977) 35 LGRA 323 at 328 per Helsham J.
3. Whether dedication has taken place is a question of fact to be determined on all the evidence: Halsbury [225]-[320]. In Halsbury [225]-[320], various considerations are identified in determining whether evidence of dedication is conclusive, which relevantly for our purposes include the following:
   • to establish dedication more must be shown than occasional harmless use over country land;
   • use as "of right" must be real, repeated use by the public extending beyond occasional or casual use;
   • long and uninterrupted use by the public as of right is evidence of dedication;
   • where the use of land, however lengthy or continuous, is by indulgence of the owner showing an intention not to dedicate an inference unfavourable to the owner should not be drawn;
   • uninterrupted use by the public as of right for a long period over a well-defined road, fenced off from adjoining land and leading from one highway to another, in the absence of anything to rebut it, leads almost irresistibly to an inference of dedication.
4. The question of whether an inference should be drawn is a matter of degree to be considered in the context of each particular case. There is no minimum period of user which can be pointed to as justifying an inference of dedication, and no maximum period which compels such an inference. As stated, each case turns on its own facts: Clarence City Council v Howlin [2012] TASSC 26 at [39]; see Anderson v City of Stonnington [2016] VSC 374 at [53].
5. As has been seen, the extent of usage by the public as of right, the period of time and whether it is continuous and uninterrupted usage by the public, assist in determining whether an inference or presumption of dedication can be drawn. Whether usage is as of right, or as a trespasser, or by indulgence of the owner is integral to the enquiry about dedication. In this case the competing explanation for public usage was that it was by indulgence of the landowner.
6. In Headlam v Casimaty [1952] TASStRp 9; [1952] Tas SR 47 Gibson J at 47, rejected an argument that user with respect to a rural property amounted to dedication of a public road. His Honour quoted remarks of Bowen LJ in Blount v Layard (1891) 2 Ch 681 at 691:

"Nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood. I can conceive nothing more unfortunate that that the owners of the right of fishing on large streams should be driven to prevent the successors and followers of Isaac Walton from dropping their lines for trout, for fear that their doing so should crystallise into a right. It would be a most unfortunate thing for the public should that ever happen, and I think that, however continuous, however lengthy, the indulgence may have been, a jury ought to be warned against extracting out of it an inference unfavourable to the person who has granted the indulgence."

1. In Shire of Narracan v Leviston (above), Barton J expressed a similar concern for the consequences of too readily inferring an intention to dedicate in rural Australian conditions, referring to: "sparsely settled districts of a country like this, where roads are few and unmade, and mutual concessions on the part of the landowners and the public are necessary". See Attorney-General (NT) v Minister for Aboriginal Affairs (above) per Lockhart J at 545.
2. In Headlam v Casimaty, Gibson J stated at 48 that "anyone having experience of country life in Tasmania knows that reasonable indulgence and tolerance is almost universally accorded by landowners to persons traversing their properties in a reasonable fashion and causing no damage to stock or otherwise ... These considerations are no doubt stronger in Tasmania than in England where a more complete system of public communications exists and where, in consequence, the need for reliance upon the good nature of landowners is considerably less".
3. The requirement of the public's acceptance of the land for the purpose of a highway is also typically demonstrated by repeated and continued user of the relevant land as a way by the public: Anderson at [41]. As stated in Anderson at [42]:

"Evidence of the public's use of the land as a way 'without force, without secrecy and without permission' tends towards a conclusion that the dedication of certain land as a highway has been accepted."

1. In this case the land said to be a highway enabled access to the plaintiff's property. The question arises whether the land is not a highway but a private road, an access road for the use of the owners of adjoining properties. Two types of private road are identified by W S Short in A Treatise upon The Law of Roads, Bridges, and Streets in New Zealand (1907) at 24-25, referred to by Slicer J in Howlin v Brinckman [2007] TASSC 59 at [51]:

"A private road pure and simple is a road on private land intended to be used as such by the owner of the land, or his assigns, for his or their own purposes, and is not intended for use by other persons or by the general public; and, so long as the owner limits the use accordingly, the road will not become a public road, neither will the public or any other person acquire any rights over the same.

Another sort of Private Road arises in cases where a land owner has cut up his land into allotments and has laid off a road or roads giving access to such allotments, and has sold or leased the same, and where in doing so he has either shown such road or roads on the lease, conveyance, or transfer of the land, or else has deposited a plan of the subdivision showing the road or roads in the Land Transfer or Deeds Registration Office, and has done nothing more which can be construed as a dedication of such roads to the public. In such a case the fee simple of the road will remain in the owner of the land even after he may have leased or sold all the allotments, and, strictly, the only persons who have a right to use these roads are the persons who may have purchased or leased any of the allotments, and their assigns."

1. It is worth noting that at common law a public highway can arise over land already subject to a private right of way, Anderson [55]. The question remains whether there has been a dedication of the road to the public. Again, we return to questions of public use and the considerations identified.
2. In Newington v Windeyer at 558-559, McHugh JA, with the agreement of Kirby P and Hope JA, referred to evidence of plans lodged with Lands Titles Office:

"The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn: Attorney-General v City Bank of Sydney [1920] NSWStRp 9; (1920) 20 SR (NSW) 216 at 221; 37 WN 51 at 53; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 412, 415, 422). When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 415) per Menzies J. In an appropriate case, the contents of leases, plans of subdivision, and maps although not public documents, may, nevertheless, allow an inference of dedication to be drawn." (See also Anderson at [39]).

1. However, when considering the probative value of maps and plans as evidence of a landowners' intention to dedicate land as a public road, the purpose of each map or plan must be considered: Halsbury pars [225]-[360]. See also Attorney-General (NT) v Minister for Aboriginal Affairs [1989] FCA 159; (1989) 23 FCR 536 per Lockhart J at 545.
2. There is legislation that impinges on the common law doctrine of dedication and acceptance that came into effect after 29 January 1963. That was the date that s 363 of the Local Government Act 1962 came in to force. The section, and subsequent version of it (s 7 Local Government (Highways) Act 1982) required the approval of the corporation (local council) under its seal is, or has been, given to the dedication of a highway. There is no suggestion that such approval has been given to the land in question. Was there a dedication and acceptance before 29 January 1963? In considering this question it is legitimate to expand the enquiry to evidence of usage after 1963. It might be so connected with prior usage as to be evidence of dedication before that date: Campbelltown per Windeyer at [9].

1. As the party bearing the onus of proof, the defendant's particulars of when the dedication is said to have occurred are helpful in framing the issues:

"The dedication was from at least 9 December 1858 until 31 January 1978 and in particular including the date of the conveyance to Lewis; at the unknown date of map F 229, and for the map 'VDL Chart', at the date 6 December 1939 conveyance to Wiseman and 31 January 1978 conveyance to Mackie by creating the following documents:

1. In relation to the 1978 conveyance, it is acknowledged that dedication and acceptance needed to have occurred before 29 January 1963. It is asserted that the later conveyance is helpful evidence as it affirms the inferences of an intention to dedicate and acceptance by the public before 1963.
2. I turn to the evidence, some relied upon by the defendant as the party making the claim of highway and bearing the onus of proof, and other evidence relied upon by the plaintiff, said to undermine the drawing of inferences of dedication and acceptance. The evidence provided by the plaintiff and the defendant is not contentious, the contention lies in the inferences which should be drawn from the evidence.
3. The defendant's case is that an intention to dedicate is expressed on the face of a plan, identifying the land as "Devon Street" and also is to be inferred from the landowner subsequently allowing public use. The defendant relies upon early maps, and records of conveyances showing "Devon Street" and other early records, as well as a text book by Mr Kerry Pink, And Wealth for Toil: a history of north-west and western Tasmania 1825-1900 (1990), providing historical information about the area. The plaintiff also relies upon a text book about the history of the area by A C (Fuzzy) Hearn, Somerset The Cam (1992), and an affidavit from the same Mr Hearn. There is no contention about the text books as useful source material.

1. The Van Diemen's Land Company was incorporated by Royal Charter dated 10 November 1825. Its purpose was a pastoral enterprise to supply merino wool for British factories. The Company is the owner of the land as the recipient of an original Crown grant of land in 1848. The Company received extensive tracts of land, the grant was taken up in several blocks, ultimately amounting to 350,000 acres (K Pink at 37). One of those blocks was known as the Emu Bay block. It was 50,000 acres and encompassed the area now known as Camdale. The Cam River was the western boundary of this block (K Pink at 285).
2. In "And Wealth for Toil A History of North-West and Western Tasmania 1825-1900", Mr Pink notes that "in 1851, when it was beginning to sell off its land in an endeavour to recoup some of its losses, the company surveyed a township named Maldon along the eastern foreshore and inland" (285).
3. The defendant relies upon a plan, a copy of which is in existence, and for convenience is attached to the end of these reasons [my highlighting of Lots 54 and 56]. The plan is described as "Township of Port Maldon on the estate of the Van Diemen's Land Company Emu Bay" with the date 1858. This is the plan described in the particulars of dedication as F229. This plan shows a town with 101 allotments on the eastern shore of the Cam River. They are each numbered. Some are noted as quarter acre. There is an Esplanade alongside the bank of the river and various streets including Devon Street. This is the first recording in existence of the land as Devon Street. The description of "street" fits an urban context. On the plan Devon Street is a substantial street continuing on the other side of "Ship Street" the location of what is now Scarfe Street, intercepting another street, unnamed and ending at Messenger Creek. There are larger allotments reserved for churches, police, and a cemetery. The allotments extend along the ocean side on what was later to be the railway line and an industrial site. The plan shows that in front of those allotments is "Marine Parade".
4. There is no evidence of the provenance of the plan. In light of the history it can be inferred that it was prepared at the behest of the Van Diemen's Land Company with the purpose of selling allotments. That is not disputed by the plaintiff. It is not a survey plan. It is a plan for a township, and no more. To state the obvious, and to draw a distinction with other cases, this is not a case involving a plan of subdivision lodged in a Land Titles Office. The plan predates the Real Property Act 1862 and predates the Land Titles Office.
5. Mr Pink notes at 285 that "Maldon, now the light industrial suburb of Camdale, was a failure as a real estate venture. Few blocks were sold and the town did not eventuate, although wharves later built on the east bank of the river were called Port Maldon."
6. Mr Pink further notes at 285 that "the Cam was a flourishing port from the 1860s until the late 1880s. With wharves on both banks - Port Maldon on the east and Somerset on the west - the Cam rivalled the ports of Burnie and Wynyard in the export of timber and produce."
7. The evidence of the 1858 plan of the town of Port Maldon, and the reference to "Devon Street", is relied upon as consistent with the land comprising "Devon Street" being dedicated as a highway. It is argued for the defendant that it is evidence of an intention to dedicate the land as a public road. It is argued for the plaintiff that the plan is no more than a concept for a town that did not go ahead. Viewing the plan in isolation, and having regard to its purpose which was to plan a township, any intention to dedicate the land as a public road would seem contingent on the township going ahead.

1. In 1858, the same year as the plan of the Township of Port Maldon is dated, allotments 54 and 56 were sold to Thomas Lewis for 50 pounds. The date of entry of the conveyance is 9 December 1858. This is the area of land now owned by the plaintiff and, as mentioned, the blocks are adjacent to one another, situated on the river bank. The description of the conveyance is allotments nos 54 and 56 of Port Maldon. Lot 54 is described as "Bounded on the North by the two chains fifty links along Devon Street." Both allotments are described with reference to the "River Esplanade", which is also shown on the town plan. The allotments as described seem to correspond to the plan of the Township of Port Maldon and the allotments shown on the plan as 54 and 56.
2. The defendant draws attention to the fact that there is no attempted conveyance of any easement or licence of access if there was not to be access along Devon Street.
3. It is significant that the 1858 conveyance to Mr Lewis uses Devon Street as a boundary reference rather than the balance of the vendor's land. Lots 54 and 56 were surrounded then by the vendor's land, and when sold were not accompanied by any right of way or other right of access other than the streets shown on the conveyance plans. The inference can be drawn that it was then intended that the land comprising Devon Street would provide access to these allotments.
4. The new owner of allotments 54 and 56 is referred to by Mr Pink. He notes that Captain Thomas David Lewis was one of the few to purchase Maldon land from the Van Diemen's Land Company. He built a large dwelling and obtained a hotel licence for it, naming it the Ferry House Inn or Hotel, and as the name suggests, running a ferry service across the Cam in conjunction with the Inn.
5. As for other landowners nearby, it is recorded that Captain John Gibson was the first colonist to purchase land at the Cam. He settled with his family on the eastern bank of the Cam River, at the site of Port Maldon where he built a house, store and wharf (A C Hearn at 24). He carried local produce to mainland markets. His ship proved to be popular. Mr Hearn noting that "Captain Gibson proved to be more than a friend to the near bankrupt farmers of Emu Bay, by placing his ship at their disposal with a freight charge of 8 shillings to 10 shillings a ton for their produce to be carried to mainland markets. So impressed with this offer were the farmers and paling splitters, that they pushed their wagons over unmade roads to the Cam to load at Gibson's wharf." (A C Hearn at 24.)
6. Captain Lewis remained licensee of the Ferry House Inn for 10 years. Records of the minutes of the Licensing Bench in April 1870 showed that he was charged by Jane Brown for failing to pay wages of 3 pounds 3 shillings and 4 pence. He was ordered to pay 3 pounds 2 shillings and 10 pence and costs. He was followed by Alfred Deayton as licensee and Samuel Harvey, with the licence being relinquished in 1880, according to Mr Hearn at 24, or 1888, according to Mr Pink at 285. The ferry service ceased in 1862 when the first Cam River bridge was built. Captain Lewis continued his lucrative shipping business in partnership with the Gibsons. He built two schooners and the two Captains built a 150 ton schooner at the Cam for their growing fleet and both acquired extensive timber interests along the banks of the river.
7. Subsequent owners of the property in question known as the "Ferry House Inn" are Charles Gilmour who purchased the property in 1902, R W Turner in 1908, G V Cartledge in 1954, and Dr J B Mackie in 1955 (A C Hearn at 25).
8. It is submitted for the defendant that there must have been public access to and from the ferry operated in conjunction with the Ferry House Inn. It is submitted that the most direct route from the old Main Coast Road (later known as Bass Highway (old) and subsequently Scarfe Street) to the Inn and the ferry, was along Devon Street. It is pointed out that there must have been a significant level of traffic traversing the river by ferry to justify the construction of the bridge in 1862. Further it is submitted that it can be inferred that there was a level of patronage to warrant Captain Lewis employing a woman at the Inn. There must have been public access to the Ferry House Inn, which was licensed from 1858 to 1880 or 1888.
9. These propositions can be accepted with one exception. The most direct route to the Inn and the ferry may not have involved Devon Street. What was Devon Street then? There is no evidence it had any physical existence, let alone that it was defined. It seems it was a "paper road", adopting the language of Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (above) per Fullager J at [5]. The evidence does not suggest that at this time the boundary of the land on the other side of Devon Street had any physical definition. The Ferry House Inn, sitting astride allotments 54 and 56 was surrounded by vacant land. Lots 54 and 56 were some of the very few allotments to have been sold. Likely the only occupied land nearby with a boundary was the Gibson's property some distance away. At the rear of the Inn was vacant land. There is no evidence of fencing on either side of the Old Bass Highway or Devon Street. It was in the day of the horse and wagon when horses needed to be stabled, tethered or corralled. In terms of gaining access to the Inn, it is just as likely that access was from the rear as the front of the premises. It is possible that the public used part of the land comprising Devon Street to gain access to the Inn. But it is just as feasible that the public did not use the land comprising Devon Street at all, but crossed the land at the rear of the Ferry House Inn, to reach the Inn, with the indulgence of the Van Diemen's Land Company.
10. It is reasonable to infer that the public with their transport would have endeavoured to reach the place where the ferry departed from and arrived by a direct route. There is some evidence of the location of a wharf nearby which I will return to. Assuming the wharf was located in the vicinity of the Inn, it is feasible that the land comprising Devon Street and land in that vicinity would have provided practicable access to that site. It should be remembered that there is no evidence that "Devon Street" had any physical definition such as fencing. If that area generally provided practicable access to the ferry, there is no evidence that it was the land comprising Devon Street, rather than land nearby, say two metres to the north. It was vacant land and the preferred access would likely have depended on natural obstacles such as trees or rocks and the topography of the land and what was then a practicable approach given the mode of transport of horse and cart. It is entirely feasible that the route to the ferry wherever it was may have altered from time to time to avoid muddy sections or potholes.
11. I find that the existence of the Ferry House Inn gives rise to an inference that it is possible that Devon Street was used by the public to gain access to the Inn in the period when the property operated as an Inn, up to 1880 or 1888, but it is speculative. It is feasible that land in the vicinity of Devon Street and the surrounds was used by the public to gain access to the ferry, but it cannot be inferred that Devon Street as marked on the plan, and later defined, was travelled on rather than land generally in that area.

1. An early chart, described by the defendant as a "VDL chart" and undated, shows a defined Devon Street, but it is not marked as Devon Street. It does not continue to the east as shown on the 1858 plan. It shows a boundary around what are likely allotments 54 and 56, sold to Captain Lewis, and surrounded by vacant land. It must post date 1862 because it shows the bridge, which was built in that year. The chart shows the "North Western Freezing and Canning Company" taking up the area at the far north of what had been proposed for the Port Maldon township, on the coast. As mentioned, Devon Street appears to be shown but is unnamed and intersects with what is now Scarfe Street. There is a line across Devon Street at the point of intersection. Whether that carries any significance as designating a private road is unclear. The provenance of the chart is unknown, as well as its date, and it is equivocal in determining the issues.

1. Two photographs taken in approximately 1905 are relied upon by the plaintiff. I do not have any evidence of their provenance, but it is uncontentious that they are photographs taken in 1905 of the Ferry House. One of the photographs has a better view of the Ferry House and is of better quality.
2. They are taken from the eastern side of the Cam River, overlooking Wragg Street, Somerset. The photographer is evidently positioned on a rise looking down at the Cam River, south of the Ferry House, with the house seen in the top left of the photograph.
3. A substantive road, likely to be what is now Scarfe Street, previously the Main Coast Road, can be seen emerging from trees and following the line of the river. It would seem to be a gravel or dirt road. A road or track can be seen just south of the Ferry House. It is more defined close to the Main Road and is blocked by trees and then appears as a track towards the foreshore. It could even be two separate tracks. The track or part of it could be on the adjacent block on the southern side of the Ferry House property. No house can be seen in that area, or indeed in the photograph on the eastern side of the river, apart from the Ferry House and a house or outbuildings behind it. The plaintiff attaches significance to this road suggesting it may provide public access to the foreshore and what was then the wharf area. Significantly, if it is an access road to the foreshore it is on the opposite side of the Ferry House to Devon Street.
4. A road or track cannot be seen on the northern side of the Ferry House. However the view is looking north and the area is blocked by the house and shrubs on the foreshore in the vicinity of the boundary. Once clear of the boundary of the property there is a relatively good view of the foreshore in line with where Devon Street would be and no road or path can be seen at all. It appears that the front of the house is fenced, but I cannot detect whether the boundary of the property on Devon Street is fenced. Close to the foreshore on the southern side of the house there appear to be a dirt track or tracks leading to the edge of the water. Evidently, on the southern side of the house areas of the foreshore at the waters edge are marshy.

1. In 1939 the Van Diemen's Land Company sold Lot 55 to Malcolm Wiseman. Lot 55 abuts Lot 54 and has frontage on Scarfe Street, then known as Main Coast Road. There is a memorial of conveyance from the Van Diemen's Land Company to Malcolm Wiseman. The description of the property makes reference to the "south side of Devon Street West 2 chains 54 links ...". The plan of the lot shows "Devon Street" adjacent to and on the northern boundary of Lots 54 and 55. The reference to Devon Street in the memorial of conveyance as a boundary reference is consistent with it being land set aside as a highway rather than just vacant land or it being another allotment. The question though is, is this just a vestige of the 1858 plan, without an intention to dedicate the land to the public as a highway? A road would provide the owner or owners of 54 and 56 with access to their property. The question is, can it be inferred that the Van Diemen's Land Company intended to create a public road rather than a private road?

1. It is submitted for the defendant that it is significant that Devon Street was shown on plans as continuous with existing public roads. The 1939 conveyance shows Devon Street as branching off the "Main Coast Road". The Main Coast Road led to the bridge which crossed the Cam River at a more southern location than the present day bridge which crosses at the mouth of the river. This evidence that Devon Street was continuous with a public road weighs in favour of it being treated as a highway. However there are other considerations which must also be borne in mind. While Devon Street was continuous with this major thoroughfare, here all that conveys is that there was access to Devon Street from this major thoroughfare. While there was no evidence that in 1939 Devon Street was defined in any way, or even met the description of a dirt road, I will assume that it was visible as a track or road, given that in the 1947 aerial photograph a vehicle track can be seen. However, Devon Street was not an integral part of a system of roads. It led to a dead end, providing access to adjoining properties and taking the traveller to the foreshore of the Cam River.

1. There are records of fences on the northern boundary of Lots 54 and 55, being the southern boundary of Devon Street. An undated plan of the boundary of allotments 54 and 55 and Devon Street shows a boundary fence extending along Lots 55 and 54 on the south side of Devon Street and described as palings ("pals") and wire. The undated plan shows stamp duty of five shillings and was likely produced before 1966.
2. Field notes of a survey made in 1966 describe wire netting, on the northern boundary of 54 as "± 20 yrs" and palings on the northern boundary of 55 as "palings ± 6 yrs" (both fences on the southern boundary of Devon Street). There is no fencing shown for the northern boundary of Devon Street. It will be seen that this description of the fencing on the southern boundary seems consistent with the 1960 aerial photograph.

1. The plaintiff relies on aerial photographs to show that Devon Street was not a delineated road and that the line of travel along the land comprising Devon Street to the foreshore was obstructed and blocked by bushes and scrub past the boundary of the Ferry House, and that various foot tracks can be seen accessing the foreshore from the area of Devon Street to the vacant land between Devon Street and the railway line.

1. The aerial photograph becomes blurry as the viewer zooms in to take a closer look at the area in question. The following can be detected:
   • There appears to be a railway bridge at the mouth of the river. The original bridge remains.
   • A dark line on the northern boundaries of Lot 55 and part of Lot 54, bordering Devon Street can be seen. This could be fencing or hedging.
   • Devon Street appears as a sandy or dirt vehicle track or unformed road running alongside the northern boundaries of Lots 55 and 54 and is obvious at least on the eastern side (rear) of the plaintiff's property.
   • Devon Street appears obscured in locations, but it is impossible to tell whether there are overhanging trees or trees as obstacles.
   • To the north of Devon Street the land is clear of buildings. Shrubs can be seen and also foot tracks or paths. One branches off Devon Street to the north and there are also paths to the river and railway line.
   • The Esplanade is relatively clear of trees. Boat sheds can be clearly seen on the foreshore in the vicinity of the southern side of the Ferry House property.
   • It is not clear whether or not there is a track to the river south of the Ferry House as shown in the 1905 photograph.
   • Lot 55 has a house. There seems to be no building on the property next door.
   • There is a faint track that can be seen off Main Coast Road, later known as the Bass Highway and later Scarfe Street, towards the rear of the Ferry House across Lot 57.

1. The 1960 aerial photograph is clearer.
   • Devon Street appears as an unformed dirt or sandy road running along the boundary of Lot 55 and about half way along the boundary of Lot 54. It peters out before it is alongside the Ferry House. It consists of two parallel and obvious tyre tracks.
   • There is a dark line consistent with a paling fence on the boundary of Lot 55. Part of the boundary of Lot 54 appears to be hedging.
   • The length of Devon Street is clear of any obstruction.
   • Branching off the end of Devon Street is a foot track or path to the north over vacant land to the water and another one branching off the middle of Devon Street to the north.
   • The land to the north of Devon Street is clear of any buildings.
   • The Esplanade in front of the Ferry House and to the area of the boat shed is largely clear of trees and shrubs.
   • Boat sheds can be clearly seen on the foreshore.
   • Main Coast Road or Bass Highway (old) is sealed.
   • The track off Main Coast Road onto Lot 57 to the rear of the Ferry House is now more defined and consists of two parallel tyre marks and at least part of a turning circle.

1. The 1973 aerial photograph shows:
   • A large warehouse is on the north of Devon Street quite close to Main Coast Road or Bass Highway (old).
   • Devon Street is now more clearly defined, and obviously well travelled in part, this part being the section providing access to the rear of the warehouse and access to Lot 55. This part of Devon Street is wider than it was in 1970 and it appears as a uniform road rather than two tyre tracks.
   • At the point beyond access to the warehouse and Lot 55, Devon Street is far less clearly defined than it was in 1970, it can barely be seen and appears as a faint track. It does not appear as two defined parallel tyre tracks.
   • A foot track branches off the end of Devon Street, to the river bank as it appears in earlier photographs.
   • There is access to the warehouse via Devon Street but also another dirt road on the other side of the warehouse off Main Coast Road.
   • There is a road bridge in the location it is today. The Bass Highway crosses the river as it does today on the southern side of the railway. The old bridge has gone.
   • Before the bridge there is an access point from the Bass Highway to the vacant land to the north of the warehouse and there are vehicular tracks across the land to the warehouse.
   • It is low tide and the remnants of a wharf can be seen on the foreshore in front of the Ferry House.
   • The boat sheds have gone.
   • The road and turning circle off Main Coast Road or the old Bass Highway crossing Lot 57 to the rear of the Ferry House are now more clearly defined and in fact, a vehicle is pictured in the area of the turning circle.

1. In the 1977 photograph Devon Street and the area appears much the same, with the following noted:
   • From the point on Devon Street where access is gained to the warehouse and Lot 55, the rest of Devon Street to the west has almost disappeared.
   • At about the point at the rear boundary of the Ferry House discernible vehicle tracks veer down to the water's edge taking a north west line. This is in about the same location as the walking track seen in earlier photographs.
   • At the end of Devon Street closest to the river there are number of trees or shrubs.
   • Tyre tracks can be seen over the vacant land around the warehouse providing access off the Main Coast Road and the Bass Highway.

1. The 1984 aerial photograph shows:
   • Devon Street is clear of trees and shrubs except at its notional end, in line approximately with the western boundary of the Ferry House.
   • Beyond the warehouse and access to Lot 55, Devon Street is not defined at all. There are faintly discernible tracks but there are a number of them and they are not all in line with Devon Street. Tracks can be seen in line with, but slightly to the north of, Devon Street.
   • There is a vehicle located on the turning circle at Lot 57 consistent with usage by the occupants of the Ferry House. The turning circle provides access to the rear of the Ferry House property and a garage and shed apparently on the property of the Ferry House (having regard to boundary fences that appear in later aerial photographs).
   • It seems as if access to the land around the warehouse from the Bass Highway (new) is blocked now and limited to either side of the warehouse on the old Bass Highway.
   • A walking track to the foreshore can be seen in the same location as previous photographs.

1. The 1985 aerial photograph shows:
   • Shrubs have been planted on some of the boundary of the warehouse on Devon Street along Lots 54 and 55.
   • Devon Street past the warehouse is no clearer, if anything it is even less defined.

1. The aerial photograph taken in 1992 is the first colour photograph. The following is noted:
   • The warehouse has expanded to the west, towards the river. The warehouse building and infrastructure have approximately doubled.
   • The clearly defined portion of Devon Street has extended to the same extent, although part of it is not as defined. The clearly defined portion provides an access point to travel around the outside of the infrastructure.
   • Beyond that Devon Street cannot be detected.
   • There are shrubs at the end of Devon Street in line with the western (river) boundary of the Ferry House.
   • There are tracks in various locations down to the water's edge.
   • It appears that the land at Lot 57 is still being used to provide access to the Ferry House.

1. The 1995 aerial photograph shows:
   • The infrastructure of the warehouse has extended.
   • Devon Street is a clearly defined dirt or sandy road to a point about half way along the boundary of the Ferry House property. There the road branches to the rear of the warehouse and around the infrastructure to a car park and another access off Main Road. From approximately that point of Devon Street there are signs of access and usage of the land to provide entry to the Ferry House at the rear of the Ferry House.
   • A fence can clearly be seen on the boundary of the Ferry House and Devon Street.
   • Shrubs prevent vehicle access to the foreshore at the end of Devon Street.
   • An area of the Esplanade in front of the Ferry House is mown.
   • There is a clearly defined dirt road as a driveway to the Ferry House off Main Coast Road, now Scarfe Street.

1. The 2002 aerial photograph shows:
   • A boundary fence around the perimeter of the Ferry House property.
   • It appears that Lot 57 is no longer used as access to the Ferry House, there being a boundary fence between the properties blocking access.
   • Devon Street is well travelled to the juncture of the rear of the warehouse and entry to the rear of the Ferry House.
   • Beyond that juncture Devon Street cannot be discerned.
   • A vehicular track can be seen in a general north-west direction to the foreshore veering from the juncture I have mentioned.

1. This photograph shows Devon Street after it was purchased by the plaintiff:
   • Some of the length and width of Devon Street is a sealed driveway providing access to the rear of the Ferry House property. There is a fence on the warehouse side of Devon Street and landscaping on that side. On the other side of Devon Street there is a grassed area between the sealed section and the boundary fences.
   • After the sealed portion of the driveway ends at the rear of the Ferry House property, the land constituting Devon Street is fenced as if included within the Ferry House property.
2. There are two further aerial photographs, taken in 2010 and 2012. The boundaries of the properties are clearly fenced and are useful when viewing the earlier photographs. Also, it can be seen that a large portion of the Esplanade has been fenced off in front of the Ferry House property that is not part of the property.

1. Hugh McGuire moved to Camdale in 1949 when he was 11 years of age. He frequently visited the Cam River with his five siblings for swimming, diving, and fishing. Their access was a sandy defined road or track. He later became aware that the track or road had the name of Devon Street.
2. Devon Street provided access to the river. It was a defined track or road, as can be seen in the aerial photographs, ending at the fence-line at the corner of the boundary of the Ferry House. Beyond that there was a sandy walking track down to the river. The condition did not change much over many years. There was an escarpment directly in line with Devon Street. There was a tree at the end Devon Street, but that did not block the walking track to the river. In later years people began accessing the river with vehicles using Devon Street. They veered off the end of Devon Street and made their own track striking a northerly direction. The area to the north and bounded by the railway line was described by him as low heath, tussocks and scrub. There were various tracks traversing that land to the north. He and others used to walk through there to the railway siding to catch the train. Workers would walk through there to the freezing works.
3. He described the land on the southern side of the blocks in question as being quite a lot of bush and scrub, blackberries, and rather a steep escarpment going down into the tidal part of the river. There was also a tea tree swamp that was inundated with water at high tide. The tea tree swamp was difficult to negotiate and was not easy access to the river. He agreed that the topography of the land and the bush was very similar to what is shown in the 1905 photograph. He did not recall any other track to the water other than Devon Street.
4. Devon Street was used for access to recreational activities at the river. In 1949 there was a shed to the north of Devon Street near the railway line. To the south there were a number of boat sheds housing wooden dinghy boats. North of the boatsheds, the point furthest into the river, there was a high and low diving platform - a basic wooden structure built over the remains of the old wharf structure. Bed logs are still evident today. That is the deepest part of the river.
5. Mr McGuire stated that in his younger days he recalled many residents from Cooee coming to the river via Devon Street to go swimming. It was handy for him in later years in taking horses with a leg injury to the river.
6. Mr McGuire was a member of Somerset Jaycees in the 70s and he recalls that one of Jaycees' projects was to plant an avenue of trees or shrubs down Devon Street and build a barbeque area at the end overlooking the river.
7. Mr McGuire stated that Devon Street has for many decades been the only access to the eastern recreational area of the Cam River. It was a very popular area with easy access to the river until it was fenced off and a sign was erected stating "Private Property".

1. In 1978 the Van Diemen's Land Company sold to Websters Limited part of Devon Street, amounting to a strip along part of the length of Devon Street containing 778m2. The first and second covenantee, owners of Lots 54 and 56 and owner of 55 respectively, consented to the conveyance and agreed to release the vendor from any claims or demands in respect of their rights of access along that portion of land, being part of Devon Street. They released the purchaser also from any claims or demands for the right and use or access to the land. The plaintiff draws attention to the fact that access to the land is not described as being "as of right" and submits the land was not regarded by the owners as a public street.
2. The conveyance cited in (2) that "The Vendor was granted tracts of land at Port Maldon now known as Camdale near Burnie in the County of Wellington and subdivided portion of the land into building allotments and surveyed therein a strip of land known and distinguished on the plan of the Company's Estates at Emu Bay in the office of the Vendor as Devon Street." It is not known when the land was surveyed and a plan was not produced and identified in evidence as being the plan referred to here.
3. In (3) there is a fencing covenant in terms that the purchaser will at his own expense when required by the vendor erect and repair any boundary fences between the land granted and the remaining portion of land distinguished as Devon Street, and will not take any proceedings against the vendor under any Act relating to boundary fences. This relieves the Van Diemen's Land Company of any future liability to contribute to the cost of fencing the boundary between the portion of Devon Street to be owned by Websters Limited and the balance of Devon Street, owned by the vendor. This does not suggest anything more than a prudent step taken by the vendor as the owner of adjoining land.
4. The conveyance of the land to the purchaser was "subject to such rights if an actual or implied in favour of any other person or persons by virtue of the fact that the said land hereby conveyed is shown on the Vendors charts as a street and any dedication actual or implied arising therefrom ...". This reference to dedication of the land is relied upon by the defendant as having significance as it acknowledges that there may have been dedication.
5. The fact that the Van Diemen's Land Company sold part of Devon Street might be thought to be revealing about whether it had an intention to dedicate to the public that same street. The defendant's position involves the proposition that the same entity is said to have held competing states of mind. However, there was no reliance by the plaintiff upon this 1978 conveyance as undermining an intention to dedicate. It must be borne in mind that the dedication is said to have been intended by the company a very long time ago, and an inconsistent state of mind decades, perhaps even a century later, does not undo the original dedication if it had been accepted by the public.

1. A "Diagram from actual survey" of the land to the north of Devon Street refers to what was known as the Main Coast Road as the Bass Highway, and shows the old route of the Bass Highway. The stamp duty was five shillings and it refers to chains and inches. All that can be inferred is that it is likely that the survey predated 1966.

1. Max Russell has provided an affidavit providing information about the use of Devon Street, referring to it as the access or the driveway, in the period from about 1970 to about 1987. Mr Russell undertook gardening and maintenance for Dr Mackie, the owner of the Ferry House at that time. There was an issue regarding the use of the driveway. The access was much wider than it is now. He recalled that it was agreed between Dr Mackie, the neighbours and the Van Diemen's Land Company, that Dr Mackie would use the southern part of the driveway exclusively, and the neighbouring business would use the northern part. During the time that he worked for Dr Mackie he did not see anybody use the driveway other than Dr Mackie and his visitors and the neighbouring business using the northern half to three quarters of the length of the driveway. There was a time when he was working at the western end of the driveway for approximately three months and did not see anyone else use the driveway and nobody used it to get to the river front.

1. The plaintiff relies on photographs of the Ferry House in recent times. There is one taken in 1992 with a view of the northern side of the house and shrubs at the western end of Devon Street. A photograph from the Ferry House property in 2000-2001 shows the same area from a different angle and again, shrubs at the western end. I do not regard the overgrown nature of this end of "Devon Street" as significant. Devon Street terminated in that vicinity and did not extend to the foreshore. At the foreshore is the Esplanade, and whether or not that is overgrown obscuring access from the end of Devon Street directly to the foreshore and the Esplanade, does not carry significance in determining whether Devon Street was used as public thoroughfare. There is no question that Devon Street provided access to the foreshore via adjacent vacant land owned by the Van Diemen's Land Company.

1. Ms Batt's affidavit provides details about the condition of the road before she purchased it in 2006. It was muddy, un-made and was difficult to traverse during winter. Ms Batt has lived at the Ferry House since about November 1999. During that time she has rarely seen the area used by members of the public. If it was used they did not use its full length and must have traversed to the north.
2. Prior to having the area sealed and fenced the plaintiff, with the assistance of her father and partner, cleared an area at the western end of the disputed land that was covered in blackberries, fallen trees, shrubs and bush. Due to the vegetation that area was impassable and it would have been extremely difficult if not impossible to reach the area known as the Esplanade next to the Cam River.

1. The Local Government Act 1993, s 208, requires that the general manager is to keep an up to date map of the municipal area showing all highways, other than State highways. The s 208 map kept by the Council shows Devon Street as a private road.

1. The defendant relies upon the actual acts by the owner of the land, the Van Diemen's Land Company, in creating the plan of the township which came to partial fruition in the creation of Devon Street and the creation of the Lots adjoining Devon Street. The defendant's submission is that the act of creating a plan and the bringing into existence of actual Lots, consistent with that layout, show an intent to create the public highway of Devon Street. The defendant also relies upon evidence from which it is said usage by the public can be inferred from 1858 to the time that the last licence for the Ferry House Inn was surrendered, in 1888. It is submitted for the defendant that dedication and acceptance were complete by 1888. It is pointed out that there had been almost 20 years of public use of the Inn, and several years of use of the ferry, accessed from the principal road from the east, "the Main Coast Road". For access to the ferry and the Inn, Devon Street was the most direct route from that road, and in the absence of evidence of some more convenient route, the route which was more probable than not. There is nothing to suggest that people accessing those facilities did so without the knowledge of the Van Diemen's Land Company, or that there was any private easement allowing them to do so. The only reasonable inference is that the company intended that Devon Street be open to use by the public, and knew that it was being used, without objection.
2. The reference of Devon Street as a boundary in the conveyances, as opposed to using the southern boundary of the vendor's land, supports an intention to create a street.
3. The defendant highlights that Devon Street is shown on plans as continuous with the street system, the Main Coast Road, later the old Bass Highway, and used as a boundary reference in conveyances, rather than referring to the balance of the vendor's land. This is consistent with it being a highway rather than just another allotment.
4. As late as 1978, the conveyance of part of Devon Street, acknowledges that the street was shown on the Company's charts and that there may have been dedication. It is submitted that the 1978 conveyance and the acknowledgement of the potential of Devon Street being a highway supports the finding of an intention to dedicate. It was submitted that if there had been no intention of the Company to dedicate, one would expect that to have been recited.
5. The defendant draws attention to the evidence that Devon Street was fenced off along its southern boundary. It is submitted that there would be no real need for a fence if there was no public use of Devon Street. The evidence of Mr McGuire supports the use of Devon Street by the public accessing the river in the 1950s and 1960s.

1. It is the plaintiff's submission that the proposed township of Port Maldon as drawn in 1858 was never developed, and that later Devon Street continued to be used as a descriptor merely as a legacy of that plan. The reference to Devon Street on the conveyances should be regarded as only a point of reference on plans held by the Company, as was the case in common law conveyances, and then it continued to be used as a descriptor in later conveyances. In essence, the plan is a proposal that was never developed.
2. The fact that the Ferry House was a public house does not mean that the public used "Devon Street" to access the building. There has been no evidence to show how the public accessed the Ferry House Inn, and in fact the 1905 photographs suggest that there may have been an access road on the southern side of the Ferry House. The evidence leaves open the prospect of access to the foreshore south of the Ferry House, allowing access to where the boatsheds were and also across the land to the north of Devon Street before the warehouse was built.
3. The appearance of the land, merely a dirt track, its lack of definition, and that it was undeveloped, would suggest that the land was not used as a road way. It was not traversable at the end of the track and the aerial photographs show that there were a number of different tracks in the area, undermining the proposition that the track was used as a defined public thoroughfare.
4. The plaintiff's submission about fencing was that it was entirely consistent with the owners of the properties fencing their land to define their property, rather than the Company fencing the road to delineate it.
5. The evidence of the Council's correspondence to Ms Batt, the s 208 map and the description of Ms Batt's house as 18 Scarfe Street, as opposed to Devon Street, suggest the land has not been accepted by the public as a highway.

1. As noted, it is submitted for the plaintiff that the purpose of the 1858 plan was not for the purpose of dedication. The plan is no more than a proposal that did not eventuate. The plaintiff submits the plan does however explain the notation of Devon Street on later documents. These references to Devon Street should be regarded as a legacy of the 1858 plan.
2. There is force in the plaintiff's submission. Clearly, the plan is a proposal for a town that did not eventuate. It is also more than an abstract concept. Lots 54 and 56 reflect the plan. So does the land comprising Devon Street in the sense that it was not sold and not treated as part of the allotment adjoining it. The existence and sale of Lot 55 in 1939 to Mr Wiseman also reflects the 1858 plan. The conveyance shows Lot 57, owned by R W Turner, which seems to reflect the plan. It appears that the intention was to sell the allotments in accordance with the plan, but that did not eventuate because of lack of interest.
3. It can be inferred that there was an intention to dedicate Devon Street as one of the town roadways, but as part of a plan, and contingent on the town going ahead. The 1858 plan does not permit an inference that the intention of the Van Diemen's Land Company in 1858 was that, regardless of whether the town went ahead, the land known as Devon Street was to be dedicated to the public. Whether this willingness to dedicate land, in the eventuality of a township going ahead, developed into an intention to dedicate Devon Street to the public when the town did not eventuate, will need to be gleaned from other evidence, in particular, evidence of user.
4. I do not regard the existence of the Ferry House Inn as supporting public usage of Devon Street. To reach the Ferry House it is entirely likely that customers drove straight off the then Main Coast Road across vacant land (Lot 55) to the Inn. The land was not sold until 1939 and it is highly likely that the Van Diemen's Land Company would have indulged this usage.
5. The ferry service is evidence that gives rise to an inference of access to the foreshore in the vicinity of the Ferry House Inn. The owner of the Ferry House built the wharf and commenced the ferry service. It is inferred, given the present day location of foundation logs, that the wharf was in close vicinity to the Inn. It is feasible that land in the vicinity of Devon Street was used to access the ferry. It is possible that there was another track to the south as seen in the 1905 photograph, but that is speculative. The photograph was taken more than 40 years after the bridge was built (1862) and use of the ferry had been discontinued.
6. The issue of whether there was a track at the location of Devon Street is also speculative. Even if that was the approximate route taken, that is not the same as a road with some certainty about its boundary. Acts of dedication must define the land to be dedicated with some precision: [14]. There was vacant land to the north of the Ferry House Inn until you reached the coast, or perhaps until a road near the coast (see reference to Gibson's wharf in the historical sources and the undated "VDL chart") at the mouth of the river. There is just no reason at all to think that the track would be on the present day location of Devon Street. If the general topography was suitable for access, why would it not be some metres to the north?
7. That is not the only difficulty. Even if the access was where the land was set aside for Devon Street, I would not regard the use by the public as giving rise to an inference that the Van Diemen's Land Company allowed such use as of right because the land was a gift to the public. It is likely that, given the times, the Company was indulgent about use of its land to the north of, and in the area of, the Ferry House Inn. Settlement of the land, and adequate transport of people and their goods, could only have advanced the objectives of the Van Diemen's Land Company, looking to sell allotments in order to recoup some of its losses. It had no competing use for the land and there is no suggestion that traffic to the ferry would interfere with any use it might have had. It was the owner of a vast amount of land for the purpose of grazing, in a position to be charitable, and the local farmers were "financially embattled" (K Pink at 285). It stands to reason that the Company would have been completely permissive about the public use of its land to reach the foreshore, and perhaps even indifferent. Its indulgence of the public in other respects is evident from the aerial photographs from 1947, the various walking tracks that can be seen, and the weight of the evidence that the Company's land north of the Ferry House, and other areas such as the Esplanade, were used by the locals for generations. There was simply no reason for the Company to have been less generous in earlier decades.
8. I accept that the references to "Devon Street" in the conveyances of land in 1858 and 1939 and as late as 1978 as a reference to the boundaries of properties, reveal that the Company was setting the land aside as a road. In 1858, the Company likely held hope that the township may go ahead and allotments would be sold. Captain Lewis had bought Lots 54 and 56. If the road was not set aside and other lots to the north were sold, Captain Lewis would not have been able to access his property. It is entirely feasible that in December 1858 the Company was optimistic the township may proceed.
9. The fact that by 1939 Devon Street was still set aside and used as a boundary reference in the conveyance to Mr Wiseman, is not strong evidence grounding an inference of an intention to dedicate a public road. It is entirely consistent with it being a private road to enable access to the Ferry House and the property on the other side of the street if that was sold. Likewise, the reference to Devon Street as a boundary in the conveyance of part of Devon Street in 1978 is only evidence that Devon Street had been set aside as a road, but not an intention to dedicate it as a public road.
10. There is a matter arising from the 1939 conveyance that bears on an observation I made about the aerial photographs and signs of a track to the Ferry House across Lot 57, and the lack of use of part of Devon Street to obtain access to the Ferry House. In the 1939 conveyance the owner of Lot 57 is described as R W Turner. It will be remembered that a person by the name of R W Turner owned the Ferry House from 1908 until 1954. Presumably, the one and the same person who acquired number 57. This would explain the use of Lot 57 to gain access to the Ferry House. If there were trees on Devon Street blocking access to the Ferry House, it might explain why they were not cleared.
11. In relation to the 1978 conveyance of part of Devon Street, it might be thought that the reference to rights arising from any dedication carried significance. However, it does not point to dedication, but rather to the potential that dedication may be found, and to protecting any rights arising from "any" dedication in case that was the result. There is often some measure of uncertainty about what may be found with respect to dedication in the event a claim is made.
12. I regard the evidence that Devon Street is continuous with Main Coast Road, later Bass Highway (old), later known as Scarfe Street, as weak evidence of an intention to dedicate. When there was the promise of a township, Devon Street was to be one of the substantive streets making up a grid of streets, as shown on the 1858 plan. There is no evidence that Devon Street as a substantive street ever eventuated. In 1939, it existed only from Main Coast Road to the western boundary of the Ferry House property. In reality, it is a relatively short street, a dead end, providing access to the foreshore and to properties there. It is otherwise not essential, and its continuity is not integral to other roads.
13. In relation to the s 208 map relied upon by the plaintiff, I do not find this helpful. The Council's attitude to whether there was a public street has been in a state of flux and cannot assist on whether the Van Diemen's Land Company had an intention to dedicate. It is the intention of the Company and the factual issue of public user "as of right" that has significance. Likewise, the Council's issuing of rates notices with respect to the disputed land does not assist.
14. I do not regard the fencing of the southern boundary of Devon Street as having any real significance. The weight of evidence would suggest that the vacant land to the north was used for decades by the public to reach the railway, the foreshore, and the Canning Factory. Regardless of the use of Devon Street, the owners of the Ferry House property and Lot 55 would have reasons to fence their properties. The use of Devon Street by the owners of the Ferry House before using Lot 57 in the day of R W Turner would have created a track along the outside of their boundary regardless of whether it was used by the public.
15. I do not regard the overgrown nature of shrubs and trees at the end of Devon Street (the western end) in recent times, referred to in Ms Batt's evidence and other evidence, seen in a photograph taken in approximately 1992 and a later one taken in 2001-2, as having any significance. These shrubs and trees were approximately at the end of Devon Street. Devon Street did not extend to the foreshore, and whether the area was impassable or not seems irrelevant. Regardless, it provided access to the area and to walking tracks, later used as vehicular tracks to the foreshore.
16. In terms of user of Devon Street by the public, the strongest evidence is Mr McGuire's evidence. By the 1950s and 1960s the track was regularly used by the public to gain access to the foreshore, although it did not reach that far. The use is consistent with the 1947 aerial photograph. I find that the use was open and not furtive or in secrecy. I infer that the extent of use would suggest that there had been use in earlier periods, although there is no evidence to support a more specific finding. I conclude that the land owner was indulgent and not inclined to curb any public use, either of the track on Devon Street or across the vacant land. It appears that, other than as representing a potential sale, the landowner had no use for the land. It can be seen that the landowner has been similarly indulgent with respect to land such as the Esplanade and the vacant land to the north of Devon Street.
17. The defendant has failed to discharge the onus of proof to establish an intention to dedicate as a public road. The evidence leads to the conclusion that it is just as likely that the landowner planned that a township would proceed, but that an intention to dedicate land as streets was in abeyance while that was merely a proposal and a contingency. The existence of Devon Street as a boundary was in accordance with the 1858 plan and in case the township did proceed. As that became less likely, the same road was required to afford access to the adjoining properties on the river front. For decades, the public use of Devon Street was permitted without any restriction and the public was free to use it at will. This is entirely consistent with the generosity of the landowner with respect to the use by the public of its vacant land in the same area. The landowner was in a special position, its largesse is unsurprising, and the public use did not conflict with its own use or purposes. The evidence of user does not persuade me that there had been an intention to dedicate Devon Street as a public road as opposed to a continuing indulgence of the public. From the public's perspective it is a fine line and difficult to tell the difference between a landowner providing a gift of a road to the public, as opposed to making provision for a private road which remains in the ownership of the landowner, but which, due to the landowner's indulgence, may be used freely by the public.
18. It is appropriate to note before concluding that there is evidence of public disappointment in Devon Street no longer being available to the public. If the Esplanade remains in the hands of the Van Diemen's Land Company and it remains indulgent with respect to that land, perhaps consideration could be given to providing access to the Esplanade which has been historically enjoyed by the public for many decades.

1. I have found for the plaintiff. The plaintiff seeks a declaration in terms that: "the property contained in certificate of title 146436/1, registered in her name, is private property and not a local highway within the meaning of the Local Government (Highways) Act 1982". Other orders are sought including a direction to the Registrar of Titles and an injunction restraining the defendant or its agents from entering onto the plaintiff's land and removing fixtures. Having provided my reasons I will give counsel an opportunity to be heard as to the terms of the declaration and any other orders sought. +