Beranghi Co-operative Ltd v NSW Minister for Finance and Services

The council's duty - s 91(a) 16By s 91(a), when a Constructing Authority is required to make accommodation works for the benefit of owners or occupiers of lands adjoining any public work, those accommodation works "shall be made forthwith after such public work or part of it passing over such lands has been laid out or formed or during the formation thereof..." (my emphasis). 17From those words, Ms Allars submitted, it is clear that the duty created by the section is to provide accommodation works at the time the public works are carried out. In particular, as she put it in written submissions, the purpose of the section is to ensure that when passage on a road is interrupted by construction work, the Constructing Authority provides an alternative route, such as a bridge or detour pathway around the work. In oral submissions she argued that the section "contemplates the kind of detour works or bypasses that are commonly constructed when public works are carried out today." If this be so, the duty to provide accommodation works ceases once the relevant public work has been completed. 18Mr Ingles submitted that the duty to make and maintain accommodation works "exists in perpetuity." He accepted that the word "forthwith" means that the constructing authority has an obligation to provide accommodation works immediately, without delay. However, as I understand his argument, this means that the Constructing Authority should act promptly in response to a request for accommodation works, whenever that request is made. 19He relied on the decision of Goulding J in R Walker & Son & Ors v British Railways Board (Lancashire County Council, third party) & Anor [1984] 2 All ER 249. That case involved the construction of s 68 of the Railway Clauses Consolidation Act 1845 (UK). That section imposed a duty upon railway companies to provide and maintain accommodation works, and it was designed to protect the interests of the owners and occupiers of the land through which a railway line was to be constructed. Subsequent legislation imposed the duties created by the section upon the Railways Board. 20There are significant similarities between s 68 and s 91(a). Like the New South Wales provision, s 68 required the company to "make and at all times thereafter maintain" certain accommodation works. Further, the duty to provide the relevant accommodation works was to be performed "forthwith": see the judgment at 252. 21Pursuant to s 68, the railway company had provided fencing along the railway line at the time of construction. At issue in that case was a preliminary question whether the duty to maintain that fencing endured many years later, after the railway line had ceased to be used. On the facts he was asked to assume, which need not be examined for present purposes, Goulding J held that it did. 22This case does not assist Beranghi. The import of the term "forthwith" in s 68 did not arise for consideration because it was the maintenance of the fencing, not the provision of it, which was at issue. As Ms Allars put it in written submissions, the decision is not authority "that a duty to provide accommodation works, unfulfilled at the time that the public works were constructed, remains pending and awaiting performance indefinitely." 23Ms Allars also referred to Rhondda & Swansea Railway Company v Talbot [1897] 2 Ch 131, in which s 68 arose for consideration. The case was concerned with a different part of that section from that considered in Walker & Sons v British Railways Board, but that is immaterial for present purposes. Lindley LJ set out the relevant part of the section at 136, and continued at 137: "Now it has been decided, and very properly decided, in Reg. v Fisher, and afterwards in Reg. v Brown, that, having regard to the enactment that the accommodation works shall be made forthwith after the railway over such land shall have been laid out, the accommodation works which the company may be required to make are such accommodations works as are required at the time the land is taken, having regard to its then use, and not accommodation works which may be required when the character of the land, and perhaps the nature of the neighbourhood, is entirely altered years afterwards." (Footnotes omitted. My emphasis.) The last words of that passage are directed to the facts of that case which, again, need not be examined. 24In his written material Mr Ingles also referred to Freemans PLC v Park Street Properties (Lincoln) Ltd & Ors [2002] EWHC 477, although he did not develop a submission arising from it in writing or orally. To the extent that s 68 arose in that case, it was also concerned with the maintenance of accommodation works. Indeed, H.H. Judge Richard Seymour QC said at [26]: "... it is clear, in my judgment, that s 68 was intended to benefit a class of persons, namely all of the owners and occupiers of land adjoining the railway who needed to have the relevant particular works undertaken for their accommodation as at the date the land required for the particular railway was taken." His Honour went on to observe that a railway company could avoid the need to undertake accommodation works through an agreement to pay compensation to the owners and occupiers of the relevant lands, but added that "subject to that, accommodation works, once undertaken, were to be maintained in perpetuity." 25In the present case, no accommodation works were undertaken in 1964 when the drain was constructed. I am satisfied that, by the terms of s 91(a), it was then that any obligation to provide such works arose and that that obligation ceased once construction of the drain was completed. The section does not confer upon Beranghi a right, years later, to the provision of accommodation works by the council. 26Moreover, the council's obligation under s 91(a) was to make such accommodation works as were "necessary for the purpose of making good any interruptions caused by the public work to the use of the land through, in, or upon which such public work is made or constructed." There is no evidence that the owner of the affected lots at the time the drain was constructed requested any accommodation works. More importantly, Ms Allars submitted, there is no evidence that the relevant lots were in "use", so that there was no user which could have been interrupted by the work. Indeed, she noted that Beranghi does not claim that the affected lots or the two Crown roads to which I have earlier referred were in use at that time or have been at any subsequent time. Nevertheless, the Crown roads are foundational to Beranghi's case. 27The four lots affected by the drainage reserve were the subject of a Crown grant in 1885. Some maps show those two Crown roads, and Beranghi asserts that they are public roads, relying on Rapley v Martin (1865) 4 SCR (NSW) 173. As it was asserted in the request letter, there was "a right of way over Crown roads from Loftus Road", which was intersected by the drain. I shall turn to Rapley v Martin after considering more recent authority relied on by Ms Allars. 28In Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown (1960) 105 CLR 401, the High Court had occasion to consider what constituted a public road at common law. Windeyer J (at 420) described a public road as "land over which a public right of way exists - that is to say, a highway in the common law sense." His Honour continued: "It is the public right to use the land as a way, rather than its physical nature, that makes land a highway ... . At common law a highway was created when a competent land owner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication." 29Public acceptance of the dedication is demonstrated by use of the road, which must be judged by the nature of the road. Menzies J (at 415 - 6) observed that "what can be regarded as use by the public as a means of passage would inevitably depend upon the state of what is open as a road to the public." His Honour referred, by way of example, to a strip of land which is "rough, timbered and full of obstructions." Kitto J (at 410) said that the notion of a road is not confined to "a formed way, or even a tract of land in a physical condition admitting of use for purposes of traffic." His Honour referred (at 411) to a road marked on a Crown grant and offered for dedication to the public, but not used in such a way as to amount to public acceptance, as "a paper road only." 30Windeyer J noted the requirement under the Local Government Act 1906 (NSW), which came into operation on 1 January 1907, of approval by a local authority in order to dedicate a road to the public: at 421. Prior to that, as his Honour observed at 422, the lodgement of a plan of sub-division, of itself, was no more than an offer to dedicate the roads shown on it. That offer "would be ripened into a complete dedication only by its acceptance by the public." His Honour added (also at 422): "A declared intention to dedicate would be ripened into dedication by public user of the land as a road, or by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road ... ." 31Ms Allars referred to a number of subsequent cases in which the test formulated in the Permanent Trustee Company case was applied. It is necessary to refer only to two of them: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 and Sutherland Shire Council v Registrar-General (1991) 72 LGRA 84. In the latter case Young J subjected Rapley v Martin to critical analysis, and it is convenient to examine it later. 32In Attorney-General for Northern Territory v Minister for Aboriginal Affairs, the issue was whether roads and stock routes marked on maps of Crown land were public roads, so as to be excluded from a grant to an Aboriginal land trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Lockhart J held that the evidence did not establish that the Crown had dedicated the roads as such (at 541). His Honour said (at 542): "Whether the owner of land has dedicated it as a public road is a question to be determined on the facts of each case. The declaration of an intention to dedicate, delineation on maps or plans of roads set apart for public use, user by the public, the expenditure of money by public bodies in forming or maintaining the land as a road are some of the matters which may, when considered with all the relevant evidence, amount to an unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road." 33Ms Allars submitted that the Crown roads in the present case were "paper roads", in that the land on which they appear on the maps was reserved when the Crown grant was made but neither was ever dedicated as a public road. As she put it in written submissions, a paper road "does not exist on the ground, but exists only on an official survey, plan and or map as land designated for a road." Ms Stewart, in her response to the request letter, noted that the area adjacent to the drain is "dense scrub which is difficult to access", and that there was no evidence that "there has been at any time a passable or used road" on the affected lots. 34Let me turn then to Rapley v Martin, decided in 1865. It was an action for trespass, the plaintiff being the lessee of land granted in 1835 to one Hughes. The land at that time was uninhabited. The grant was expressed to be subject to a road, the position and length of which was described. The only trespass proved was the defendant's entry upon the site of that road, but on that basis the jury found for the plaintiff. 35The Full Court held that, because of the reservation of the road in the grant, there should be a verdict for the defendant. Stephen CJ said (at 180 - 1): "There was here, we conceive, both before and at the time of the sale and grant to Hughes, a dedication of the road in question to the public, as a highway - effectuated by the terms of the grant, at all events as against Hughes and all claiming under him. ... There was here either the dedication, to the public at large, of the described road as and for a highway, or there was nothing. But Hughes, or persons claiming under him, can hardly be permitted to say that there was no such grant; for he purchased the land, and accepted the conveyance of it, subject to a declared general right of road. Not only so, but he obtained the site and soil of that road, in addition to his purchase - in consideration probably of the road's passing (partly) through his ground." 36His Honour added (at 181 - 2): "The nature of the case being considered, the existence of direct authority on this question is hardly to be expected. Here is an enormous territory, ungranted, unoccupied - which the Crown, the trustee for its subjects, from time to time conveys in parcels for them, for purposes of colonisation and settlement. Roads through these granted lands, for the use of other existing or intending settlers, are indispensable. All such roads, if for the general benefit, are simply highways. The Crown, therefore, usually reserves in its grants the power of making such roads. We will assume that, if indefinite, such a reservation may be void. But why may not the Crown, as in this case, define a road in the first instance, and dedicate it at once to the public? And, if so, the form and mode of dedication adopted here, by declaration in letters patent - necessarily matters of record - would seem on principle to be sufficient for the purpose." 37In Attorney-General for Northern Territory v Minister for Aboriginal Affairs, as I have said, the issue turned on whether there was evidence that the Crown had dedicated the roads in question. On the issue of acceptance of such a dedication by the public, Lockhart J said (at 541): "It is open to question whether land which is owned by the Crown may be dedicated as a public road by dedication alone without acceptance by the public. ... As the evidence does not establish to my satisfaction that the roads in question in the present case were dedicated by the Crown it is not necessary for me to decide the question. I should say, however, that as at present advised I would follow the view of Windeyer J in the Permanent Trustee case that public acceptance is essential to achieve dedication of land as a public road." His Honour later made passing reference to Rapley v Martin (at 545), but in a context which is not material to the present case. Of course, what his Honour said in the quoted passage is directed to the dedication of a public road by the Crown at common law. The position is otherwise when the dedication is governed by statute: Fourmile v Selpam Pty Ltd (1998) 80 FCR 151, per Drummond J at 167 - 8. 38As I have said, Young J considered Rapley v Martin in Sutherland Shire Council v Registrar-General (supra). At 88 ff his Honour summarised the facts of the case and referred to aspects of the reasons of Stephen CJ. He then examined a number of later cases in which the decision was referred to, concluding that it was not decisive of the issue to be decided in the case before him. His Honour observed (at 92) that it was "a little unclear exactly what Rapley's case decides." On one view, it was based on estoppel. On another, it decided that "where Crown land is involved, indication by the Crown or its agents on a public map including a map on a land grant that a particular piece of land is a road is virtually conclusive evidence of that fact." However, his Honour added, if that were so one would have expected that the Full Court should have sent the matter back for a new trial. Another way of looking at the decision, he said, is that "it is just inconsistent with later decisions including decisions of the High Court." 39Put shortly, the issue in the Sutherland Shire Council case concerned land granted in 1864. On that land were certain roads which later needed to be replaced by others. The owner entered into an agreement with the government to dedicate certain new roads and, in exchange, he was to receive a grant of the land forming the old roads. In 1886 the owner published a note in the Government Gazette dedicating to the use of the public those new roads, and in the following year a land grant formally conveyed to him the lands forming the old roads, reciting that the new roads had been dedicated to the use of the public by him. However, there was no evidence that those new roads had in fact ever been formed, used, or accepted by the public. 40Young J, after analysing Rapley v Martin, said (at 92): "So far as a private person is concerned, the authorities with some exception all insist that something more is necessary than a mere dedication. It will be wrong to read Rapley in such a way as to cut across those authorities." Later, dealing with the case at hand, his Honour said (at 95): "It seems to me that unless there has been some action taken by the public after the dedication, such as user or public expenditure, the mere issue of the 1887 Grant does not of itself amount to an acceptance by the public." 41Bryson J had occasion to examine Rapley v Martin in Palmisano v Hawse & Ors [2003] NSWSC 566, 127 LGERA 268. With reference to the second of the passages from the judgment of Stephen CJ (at 181 - 2) which I have quoted above, his Honour said at [30]: "This Court was very ready, in 1865 to discern an intention on the part of the Crown to dedicate land as a highway from references to roads in advertisements published when land was offered for sale, and in the terms of grants ... . The observations of the Court show that readiness to discern an intention of the Crown to dedicate land to the public, not simply to reserve land to itself, where a document makes reference to a road, was based on the circumstances of New South Wales in the period after settlement. ... In effect, the court was unready to see a reference to land as a road in an advertisement, grant or published map as merely an expression of an unfulfilled intention to make a dedication." 42After referring to Young J's examination of Rapley v Martin in the Sutherland Shire Council case, his Honour observed at [31]: "What I understand Rapley v Martin illustrates is that relatively early in the settlement of New South Wales necessity for access was an important factor in the behaviour of the Crown and of other landholders, and of the public, that an intention to dedicate by the landholder and acceptance and user by the public in those times should be inferred relatively readily, and that the practices of more settled and more regulated times are not the test of what happened then." 43Ms Allars submitted that Rapley v Martin turned on its own facts and is not authority for the proposition for which Beranghi contends, that is, that the definition of a road in a Crown grant is sufficient for it to become a public road at common law. That may be so but, in any event, it seems that that decision has passed into history. In the present case there is no evidence of an intention to dedicate the two Crown roads as public roads, let alone acceptance of any such dedication by the public. That being so, there is no evidence that the construction of the drain interrupted any use of the relevant lots. 44Accordingly, I am satisfied that s 91 was never engaged: not in 1964, when the public work was undertaken, nor in recent years, when Beranghi sought the accommodation works.

The Governor's duty - s 92 45The jurisdiction of the Governor to make a determination under s 92 is confined to any difference arising "respecting the kind or number of any accommodation works or the dimensions or sufficiency thereof or respecting the maintaining thereof." It is clear that the section is directed to the nature of accommodation works required, not to the question whether there should be any accommodation works at all. In the present case there are no accommodation works within the meaning of s 91 which could be the subject of a difference under s 92. The jurisdiction of the Governor is not enlivened. 46That being so, there is no basis for the order sought by Beranghi that the Minister provide papers to the Governor for the purpose of a determination under s 92. I might add that, in any event, the Minister had earlier provided papers to the Governor in relation to such a determination. On 20 August 2008 Ms Stewart informed the Governor's official secretary that she was of the view that there was no issue for the Governor to determine under s 92, although she advised that it may be appropriate for her Excellency to obtain advice from the Solicitor-General. As I have recounted, after receiving that advice, her Excellency conveyed to Beranghi by a letter of 4 May 2010 that it was inappropriate to take any action under the section. It is clear that the Minister communicated with the Governor about the matter in conformity with his duty.

Grounds 47Given these findings, none of the grounds for judicial review has been made out. It cannot be said that the Minister failed to take into account all relevant correspondence, legislation and case law. So much is apparent from the reasons set out in Ms Stewart's communication of 23 December 2011. Nor can the decision be said to be manifestly unreasonable. The remaining grounds, that the decision was ultra vires, that it was affected by bias or made in bad faith, or that there had been a denial of natural justice, are without substance. It is clear that the matter was dealt with by the Minister appropriately and in accordance with the relevant law. 48Beranghi's summons must be dismissed. If necessary, I shall hear the parties on costs.

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