Boensch v City of Parramatta Council - [2019] NSWLEC 1381 - NSWLEC 2019 case summary — Zoe

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Boensch v City of Parramatta Council

[2019] NSWLEC 1381

Land and Environment Court (NSW)|2019-06-04

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-06-04

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Judgment

COMMISSIONER: Mr Franz Boensch is the registered proprietor of 255 Victoria Road, Rydalmere, and is a principal of two car repair businesses that operate from that address. A sealed and guttered unnamed cul de sac is located at the rear of the properties at 251-255 Victoria Road ("the Laneway"). For many years Mr Boensch has used part of the Laneway to store vehicles, trailers, a container (on a trailer) and other items ("the objects"). On 13 September 2018, the City of Parramatta Council ("Parramatta Council") issued an order for Mr Boensch to remove the objects from the Laneway and to cease the placement of vehicles in a manner that contravenes the parking signs on the Laneway. Mr Boensch appeals to the Court against the order, pursuant to s 180 of the Local Government Act 1993 ("the LG Act").
The order is issued pursuant to s 124 of the LG Act, which provides that: (1) A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
Item 27 of s 124 allows an order to be issued as follows: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? The object or matter: 27 To remove an object or matter from a public place or prevent any object or matter being deposited there (a) (a) is causing or is likely to cause an obstruction or encroachment of or on the public place and the obstruction or encroachment is not authorised by or under any Act, or Person causing obstruction or encroachment or owner or occupier of land from which the object or matter emanates or is likely to emanate (b) (b) is causing or is likely to cause danger, annoyance or inconvenience to the public

[4]

The role of the Court on appeal

In considering the appeal, the role of the Court is to exercise the functions of Parramatta Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 ("LEC Act") provides as follows: 39 Powers of Court on appeals ... (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal..."
In addition, s 180(4) of the LG Act sets out the powers of the Court on an appeal against an order. Those powers are as follows: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the council could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit.
In carrying out these functions, I must first be satisfied that each of the elements in item 27 of s 124 are met. As such, I must be satisfied, firstly, that the Laneway is a "public road", and, secondly, that the objects are causing or likely to cause an obstruction or encroachment of or on the Laneway and the obstruction or encroachment is not authorised by or under any Act, or that the objects are causing or are likely to cause danger, annoyance or inconvenience to the public. If these elements are met, I must then consider whether the discretion of the Court should be exercised in favour of making and therefore confirming the order, or whether some other exercise of power pursuant to s 180(4) is warranted.

[5]

Inspection of the Laneway

The Laneway, which forms part of what Parramatta Council refers to as Mary Lane, was inspected with the parties at the commencement of the hearing. The Laneway runs between Bridge Street to the west and Subiaco Creek to the east. It is sealed and curbed up to about 12m from the creek. There is unmanaged growth between the end of sealed area and the creek. The Laneway does not change in width along its length. 1 Bridge Street has street frontage to both the Laneway and to Bridge Street, and the northern boundary of 1 Bridge Street runs the full length of the Laneway. 255 Victoria Road, which comprises both Lots 37 and 38 in DP 14244, has frontage to a service road for Victoria Road, with its rear boundary fronting the Laneway. An aerial image of the Laneway is shown at Figure 1.
There are four parking restriction signs on the Laneway, with the effect that the southern side of the Laneway is signposted "No stopping" for its full length. The northern side of the Laneway is signposted "No stopping" for most of its length, with the exception of two small sections to the west, one of which has a driveway crossover where there are no parking restrictions, and the other is immediately adjacent to that driveway crossover and is signposted for "P15" between 8am and 6pm, Monday to Saturday.
At the inspection, there were two cars parked in the driveway crossover area where there are no signposted parking restrictions, one car parked in the "P15" parking area, as well as three cars and two trailers parked in the "No stopping" areas. The two trailers sit side-by-side and each straddle where the sealed part of the Laneway ends, such that they are also located in the area between the sealed part of the Laneway and the creek. The trailer on the northern side of the Laneway, adjacent to Mr Boensch's premises, is a car trailer which carries an additional number of cars. The trailer on the southern side contains a container traditionally known as a shipping container, but which Mr Boensch identifies as a shed. On top of the shipping container were additional items, and underneath the trailers were also further items. Mr Boensch agrees that all of the vehicles (including the trailers and the cars on the trailer) are owned or controlled by him.
The observations made at the inspection of the Laneway are consistent with the evidence in the Survey Report by Ross Hansen, discussed below. A photograph of the two trailers and car at the end of the Laneway, is at Figure 2, and a street view image showing all vehicles (including trailers) is at Figure 3. What is depicted in Figures 2 and 3 is generally consistent with the observations made at the site inspection.

[8]

Statutory scheme for the creation of a road by a subdivision under the 1919 Act

At the time that the plan of subdivision that created DP 14244 was registered, Part XII of the 1919 Act allowed town planning to be controlled by local councils. Section 321 provided that: 321. Subject to the provisions of this Act, the council may control and regulate, and may undertake - (a) the planning of new roads and subdivisions; (b) the rearrangement of existing roads and of parcels of land; (c) the demolition, rearrangement, and reconstruction of buildings and works; and (d) the improvement and embellishment of the area.
However, largely that control was limited to the subdivision of land and the creation of roads. Division 2 was titled "New roads and subdivisions" and s 323 provided that "A public road shall not be opened and land shall not be subdivided except in accordance with the provisions of this Act". The requirements to be met prior to a road being opened and land being subdivided included those specified in s 327, as follows: 327. (1) Subject to the provisions of this Act a public road shall not be opened, and in a case where a subdivision provides for the opening of a public road land shall not be subdivided until- (a) an application in respect thereof accompanied by plans and specifications thereof has been approved under this Act; and (b) the roads have been constructed and drained to the satisfaction of the council in accordance with the approved application, plans, and specifications, and with any conditions attached to any such approval; and (c) the applicant has placed in the road permanent survey marks in the position and manner and of the character prescribed; and (d) the town or shire clerk has certified that the requirements of this Act, other than the requirement for the registration of plans, have been complied with; and (e) a plan of the road or of any subdivision containing the road (such plan bearing the signatures of all necessary parties, a statement containing such particulars as may be necessary to identify the title to the land comprised in such plan, and a notation of approval under the seal of the council and being accompanied by the aforesaid certificate) has been registered in the office of the Registrar-General.
A later amendment to the 1919 Act, by the Local Government (Amendment) Act 1965, inserted at the end of subs (1) the following statement: Paragraph (c) shall not apply, and shall be deemed never to have applied, where the road to be opened, or the road provided for in the subdivision, is a lane or pathway nor to a widening of a public road.

[11]

Registration of plan and vesting of fee simple

Finally, s 327(1) also requires that the plan of a subdivision containing the road, bearing the necessary signatures, statements and notations, be registered in the office of the Registrar-General. Section 196 of the Conveyancing Act 1919, as it was at the date of registration of the DP 14244, set out the requirements of the plans of subdivisions, including the requirement for there to be a statement as to which of the roads, streets, and lanes shown thereon are intended to be dedicated to the public. It provided as follows: 196. (1) Any person who lays out any land in lots may lodge in the office of the Registrar-General a plan of the land as so laid out. (2) Every plan lodged in pursuance of this section shall be prepared in such manner and shall contain such particulars as may be prescribed, shall be certified by a licensed surveyor in the prescribed form, and shall bear the signature or common seal of the person on whose behalf it is lodged or of the duly authorised agent of such person. I n the case of land under the provisions of the Real Property Act, 1900, the surveyor shall be specially licensed under that Act. (3) Every such plan shall comply with all statutory provisions relating to anything appearing in such plan. (4) All necessary consents and approvals shall be endorsed upon or annexed to every such plan. (5) Every such, plan shall contain a statement as to which, if any, of the roads, streets, and lanes shown thereon are intended to be dedicated to the public, and as to what easements, if any, are intended to be created in favour of purchasers of lots shown on such plan, and as to any restrictions affecting the user of any land stipulated for by the vendor. (6) When any such plan is lodged as aforesaid, the Registrar-General shall satisfy himself whether as regards such plan all the requirements of this Act have been complied with. (7) If the Registrar-General is not satisfied that as regards any such plan all the requirements of this Act have been complied with, he shall give notice to the person on whose behalf it is lodged of all such requirements as have not been complied with. (8) When the Registrar-General is satisfied that as regards any such plan all such requirements have been complied with, he shall cause such plan to be numbered and recorded, and shall cause an entry to be made in a register of such plans of the date on which such plan is so numbered and recorded. (9) A plan so numbered and recorded of land under the old system of title shall be styled a "registered plan," and of land under the provisions of the Real Property Act, 1900, shall be styled a "deposited plan." (10) Every conveyance of land comprised in a registered or deposited plan may be made by reference to such plan. …
Upon the registration of the plan of subdivision, s 336 of the 1919 Act provided that the road shall be deemed to be opened and dedicated accordingly, and that it shall vest in the council in fee-simple. It stated (emphasis added): 336. (1) As soon as the plan of any road or of any subdivision containing a road has been registered in the office of the Registrar-General as prescribed, the road shall be deemed to be opened as a public road and thereby to be dedicated accordingly. (2) Such plan shall show the positions of the permanent marks placed in the road in accordance with this Act; and the person opening the road shall at the same time lodge with the Surveyor-General a copy of such plan. (3) Any road so dedicated shall vest in the council in fee-simple by virtue of such registration and of this Act. (4) The provisions elsewhere contained in this Act relating to the vesting of a road in the council in fee-simple shall mutatis mutandis apply to any road vested in accordance with this section. (5) Nothing in this section shall affect or prejudice any estate, right, title or interest of any person who is not a party to the opening and dedication of the road unless the opening and dedication might have been lawfully made by the parties thereto without his concurrence.
Section 232(1), which is contained in a separate part of the 1919 Act, Part IX concerning Public Roads, also states that every public road vests in fee-simple in the council, as follows: 232. (1) Except where otherwise expressly provided, every public road, and the soil thereof, and all materials of which the road is composed, shall by virtue of this Act vest in fee-simple in the council, and the council, if it so desire, shall by virtue of this Act be entitled to be registered as the proprietor of the road under the provisions of the Real Property Act, 1900.

[14]

Requirements of the council to keep records

Division 4 of Part IX concerns the requirement of the council to keep records, and how records can be used for evidence, as follows: 230. (1) The council shall cause to be prepared a road map and road register of the area. (2) The map shall show - (a) every public road which has been either classified, or aligned, or the levels of which have been fixed; and (b) the classification of the roads classified. (3) The register shall show - (a) every public road which has been either classified, or aligned, or the levels of which have been fixed; (b) particulars of the classification, alignment, and levels as fixed from time to time, together with reference to the authority for the fixing; and (c) such additional information as may be prescribed. (4) The map and register may contain such other particulars as may be prescribed, or as the council may determine. (5) From time to time as new public roads are opened, or as roads are classified, or as unaligned roads are aligned, or as levels are fixed, these facts shall be shown and entered upon the map and register. (6) Any person may inspect the road map and register without fee as prescribed. (7) Upon application and payment of the prescribed fee, any person may obtain from the council a copy or extract from the map or register, or a certificate under the hand of the proper servant of the council as to the classification, alignment, or levels of any road, or as to the fact that the classification alignment or levels has or have not been fixed. 231. (1) The classification, alignment, and levels of any public road may be proved by the production of - (a) the notification in the Gazette; or (b) the road register; or (c) a certificate under the hand of the proper servant of the council as to the classification, alignment, or levels. (2) The fact that the classification, alignment, or levels of any public road has or have not been fixed may be proved by the production of - (a) the road register showing the fact; or (b) a certificate under the hand of the proper servant of the council as to the fact. (3) A certificate purporting to be made for the purposes of this section and to be signed by a servant of the council shall, unless the contrary is proved, be deemed to be a certificate under the hand of the proper servant of the council within the meaning of this section.

[15]

Contents of DP 14244

DP 14244 is the registered plan of subdivision. It consists of 3 sheets of parchment, copies of which are contained in Ex D. The first sheet contains a declaration of the Licensed Surveyor, James Ryan, witnessed by a Justice of the Peace, that: "(a) … all boundaries and measurements shown on this plan are correct, (b) that all survey marks found and relevant physical objects on or adjacent to the boundaries are correctly represented (c) that all physical objects indicated actually exist in the positions shown, (d) that the whole of the material facts in relation to the land are correctly represented, (e) that the survey has been made under my immediate supervision"
Each sheet contains a statement that "It is intended to dedicate the roads, lanes to the Public." Before the words "to the Public", the words "and reserves" have been struck out and initialled "JR" with the date 29 January 1927.
Each sheet also contains the seal of Brodie & Bridge Ltd, affixed 5 August 1926, together with the signature of the two directors (as verified by the signatures appearing in Memorandum of Transfer B482085, in Ex 3).
Each sheet contains a statement "Covered by Certificate No 26 July 29th 1926" with the name "Edgar Swane, Town Clerk" appearing in the same handwriting, and a further statement signed by the Town Clerk and Mayor beside a date of 14 January 1927 that states "Approved. Covered by Council Clerks Certificate No 26, of 29th July 1926". I note that the relevant local council at the time was Ermington and Rydalmere Municipal Council ("the ERM Council"), the local government area of which was later amalgamated with the local government area of Parramatta Council. The seal of the ERM Council is also contained on each sheet adjacent to the signature of the mayor.
On each sheet there is also an endorsement of the Water Sewerage and Drainage Board, which is accompanied by the common seal and states that they "hereby agrees to the establishment of the new Streets and Drainage Reserves crossing the sites of the Board's Easements shown on this plan."
There is also a further signature and statement that is illegible but contains the words "I consent hereto".

[16]

Evidence of specialist land title searchers

Each of Mr Boensch and Parramatta Council engaged a specialist land title searcher. Mr Hill was engaged by Mr Boensch, and Mr Groll was engaged by Parramatta Council. They gave evidence in single expert reports, a joint expert report and orally at the hearing.
Both Mr Hill and Mr Groll have accessed the historical and current records available from the electronic records of the Office of the NSW Land Registry Services, which includes inspecting DP 14244 and Certificate of Title Volume 3807 Folio 154. They agree that the fee simple of the Laneway remains comprised in the Certificate of Title Volume 3807 Folio 154. However, they disagree as to whether the Laneway has been dedicated as a public road and whether the fee simple vests in Parramatta Council.
Mr Hill's evidence on the status of the Laneway is that it forms part of the residue land in Certificate of Title Volume 3807 Folio 154, which is in the name of John Bridge Limited (in liquidation) formerly Brodie and Bridge Ltd. That is, he opines that, apart from any land transferred out of that Certificate of Title by transfer of the parcels subdivided by the registration of DP 14244, any residue land (including land marked as roads) remains in the Certificate of Title and the ownership of the proprietor of that Certificate of Title. He opines that the Laneway has not been dedicated as road. He relies on the official Cadastral search records for Lot 37 DP 14244 in Rydalmere, which is a record created by Land Registry Services and dated May 2019. The land behind 251-255 Victoria Road is referred to with the Polygon No 105254173 and marked as undefined in the records, which he opines indicates that it is not dedicated. His opinion is therefore that the status of the Laneway and the fee simple relating to it has never changed since the subdivision in about 1927, and remains private land in the title Volume 3807 Folio 154. He considers that the statement of intention to dedicate on DP 14244 was only an intention to dedicate, and that there was not an automatic procedure.
Mr Groll's evidence, instead, is that the statement of intention to dedicate to the public meets the requirements of dedication pursuant to the 1919 Act, and that the Laneway would be deemed to be a public road owned by the relevant local council upon the approval of DP 14244 at the Office of the Land Registry Services, formerly the Registrar General, circa 1927. In support of this, Mr Groll relies on the extract of the DP lodgement listed in the Registration Book of the former Registrar General's office, which shows that DP 14244 was lodged on 8 February 1927. He also relies on the Registrar General's Guidelines on the Opening of public roads prior to 1 July 1993, which states: "1920 to 1993 - Road dedication under Part 9 Local Government Act 1919 Sections 220-227b Local Government Act 1919 gave local councils full authority for the maintenance and management of public roads. Throughout this period, new public roads were created in private subdivision by the registration in NSW LRS of deposited plans bearing councils approval together with statement of intention to dedicate the roads to the public. The fee of the roads remains in the subdivided certificate of title and stands in the name of the Council."
Mr Groll opines that the requirements outlined in the guidelines are met through the signature of the town clerk and mayor, and the statement of intention to dedicate. In oral evidence, he explained in detail his experience in conducting searches to ascertain whether land is a public road, and the process by which this occurs. His evidence was also that the endorsement on Certificate of Title as to the Interest of a council in relation to public roads was not automatically endorsed on title in the 1920s. The applicant questioned Mr Groll in cross-examination. These questions did not lead him to change or modify his expert testimony.
In Mr Hill's oral evidence, when provided with details of the 1919 Act and the Registrar General's Guidelines, Mr Hill conceded that, if the process is automatic then the Laneway is a road. Mr Boensch, in his written submissions, disputes that any such concession was made, and says that any such concession was made without Mr Hill having the full context of the legislation.
Whilst I consider the evidence of both Mr Groll and Mr Hill helpful to assist me in understanding the search results concerning the Laneway, the question of whether the Laneway constitutes a public road remains a question of the application of the statutory provisions and I cannot rely alone on any concession made by Mr Hill.

[17]

Mr Boensch argues that it is not a public road

Mr Boensch starts from the premise that, pursuant to ss 237 and 323 of the 1919 Act, a new road cannot be opened unless all of the legislative requirements of the 1919 Act were met at the time that DP 14244 was registered. Section 237(1) provides that a "new public road shall not be opened except in accordance with the provisions of this Act." His position is that it is for Parramatta Council to establish that all of the legislative requirements were met. He relies on the decision of Nicholas J in Re A Caveat by the Council of the Municipality of Botany; ex part Homelands Development Co Ltd (1936) 36 SR (NSW) 615 ("Homelands"), in which His Honour states (at 619) that: "From these sections it appears to me to follow that there is no such distinction as was claimed between the opening and dedication of a road, and that the Local Government Act 1919-1935 forbids the opening and dedication of a road until the requirements of s. 327 have been fulfilled. Section 327 begins with the words "Subject to the provisions of this Act," and these words may refer to the proviso to s. 237 which I have already quoted, but I have not been able to find any exception which applies to facts such as those now under consideration. It follows that the opening of any road otherwise than in accordance with the provisions of the Local Government Act cannot confer the interest necessary to support a caveat on the council"
Mr Boensch argues that, consistent with the decision in Homelands, the legislative requirements were not met with respect to the Laneway, and therefore that the Laneway did not become dedicated as a public road on the registration of DP 14244. From his submissions, there are a number of reasons that Mr Boensch says that the legislative requirements were not met.
Mr Boensch first says that there is no evidence of an approval by the ERM Council pursuant to s 327(1)(a), including that the matters in s 332(j) have been taken into account. Section 332 requires the council to take into consideration certain matters when dealing with an application for the subdivision of land containing a road, and at (j) it requires the council to consider "if any proposed new road will be a lane, whether or not a lane should be permitted, in the circumstances."
The second reason why Mr Boensch says that the Laneway could not lawfully have been dedicated as a public road is that it is a "blind road" and does not meet the requirements of s 324. Section 324 provides as follows: (1) A road other than a pathway shall not be opened as a blind road - (a) unless there is also provided at least one pathway to give access from the blind end into a main, secondary, or residential road ; or (b) unless such road gives access at its blind end to a railway station, wharf, public reserve, river bank, lake, sea beach, or the shore of any tidal water; or (c) except where, in view of exceptional circumstances, the council approves. (2) A pathway shall not be opened as a blind road unless one end communicates with a main, or secondary, or residential road, and the blind end gives access to a railway station, public wharf, public reserve, river bank, lake, sea beach, or the shore of any tidal water. (3) For the purposes of this section any road which does not give access at both ends to either a main, secondary, or residential road shall be deemed to be a blind road.
Mr Boensch says that the Laneway is a blind road as it does not give access to a main, secondary or residential road at the end that adjoins Subiaco Creek. Mr Boensch also submits that the exception in (b), which allows a blind road to be opened if "such road gives access at its blind end to a railway station, wharf, public reserve, river bank, lake, sea beach, or the shore of any tidal water", does not apply. He considers that the land at the blind end of the Laneway is not a "river bank" or "shore of any tidal water".
The third reason that Mr Boensch says that the Laneway could not lawfully have been dedicated is because it was not constructed in accordance with the requirements of s 327(1)(b), which requires it to be constructed and drained "to the satisfaction of council in accordance with the approved application, plans, and specifications, and with any conditions attached to any such approval". In support of this submission, Mr Boensch relies on aerial photography that demonstrates that the Laneway was not constructed in the form of a sealed road until the 1950s or 1960s. He also submits that there is no evidence that the payment of a monetary sum or the giving of security was accepted as an alternative to the construction of roads was approved, as required by ss 328-329.
As result of the roads not having been constructed in the form of a sealed road, Mr Boensch submits that any approval has lapsed pursuant to s 335 (quoted at [28]). This is the fourth reason that Mr Boensch submits that the requirements of the 1919 Act have not been met. Section 335, as set out above at [28], requires that within two years there be compliance with the requirements of the 1919 Act for the construction and draining of roads, the giving of security, and the making of payments to the council in respect of the making, draining, and marking of roads. Mr Boensch submits that there is no evidence that these requirements were met, and in fact the aerial photography shows that there was no such compliance, and that therefore any approval issued with respect to the subdivision and creation of roads has lapsed.
The fifth reason that Mr Boensch submits that the requirements of the 1919 Act have not been met is that the DP 14244 does not show permanent marks on the Laneway. He submits that this is contrary to both s 327(1)(c) and s 336(2) of the 1919 Act. His position is that, therefore, the Laneway was excluded from any approval given by the relevant council, or that any approval with respect to the Laneway or its dedication was not validly given.
Sixthly, Mr Boensch submits that the statement of dedication contained on DP 14244 is inadequate to dedicate the roads and lanes to the ERM Council. He submits that it is not adequate because it was not signed by the owner of the land, it does not precisely state each road to be dedicated, and he asserts that the statement of dedication was possibly affixed after the registration of the plan of subdivision with the Registrar General. He also submits that any intention applies only to roads that were constructed at the time of the registration of the plan.
Seventhly, Mr Boensch submits that there was no evidence of acceptance of the dedication by the ERM Council, and that Parramatta Council or its predecessor has not accepted the dedication by the construction of a sealed Laneway. As such, he submits that there has been no offer by the proprietor that has been accepted by the public or by the council.
The eighth reason that Mr Boensch submits that the requirements of the 1919 Act have not been met and the Laneway has not been dedicated or opened is that there are no records for the Laneway as required by ss 230-231 of the 1919 Act. Specifically, he points out that the Laneway is not contained in a road register, and there is no roadmap of the Laneway or documentation of alignment, levelling, sealing or guttering of the Laneway.
The ninth reason for which Mr Boensch submits that the 1919 Act has not been complied with and the Laneway has not been dedicated as a public road is that the fee simple, in fact, does not vest in Parramatta Council. That is, Mr Boensch relies on the fact that the fee simple has never been transferred to Parramatta Council (or its predecessor), there is no document showing Parramatta Council as the registered proprietor, and the title to the land that the Laneway comprises remains in the original certificate of title Volume 3807 Folio 154.
Tenth, Mr Boensch submits that the Laneway must be classified and gazetted prior to being opened. He relies on s 229 of the 1919 Act, which requires "every new public road" to be "classified before it is opened". It provides: 229. (1) Subject to this Act every new public road shall - (a) be classified before it is opened; and (b) be opened to or beyond the standard width for its class.
He then submits that s 226(4) requires this classification to be done by gazette. Without such gazettal, Mr Boensch submits that s 229 has not been complied with, and was therefore not opened as a public road.
The eleventh legislative requirement that Mr Boensch submits is not complied with is s 264(2) of the 1919 Act, which requires that the council exhibit a plan of the proposed levels of a road before fixing the levels of a public road. Section 264 provides as follows: 264. (1) The council may fix the levels of any public road. (2) Before so doing the council shall - (a) cause a plan of the proposed levels to be exhibited for public information at some convenient office of the council; (b) cause a notice to be published in the Gazette and a newspaper indicating the proposal and calling upon all persons interested to set forth in writing addressed to the town or shire clerk within one month from the date of the notice any objection to the proposal, and also in the case of any original fixing of levels a claim for the provision of reasonable means of access to the property in which they are interested, and in the case of any refixing of levels a claim for compensation for any loss or damage which they may sustain by reason of the property being directly affected in any injurious manner by reason of the refixing (c) cause a copy of the notice to be exhibited in some conspicuous manner in or near the road. (2) After considering the objections the council may approve the plan with or without alteration, and thereupon the levels shall be in accordance with the plan as approved. (3) The levels shall be fixed and take effect upon the approval of the council being notified in the Gazette. …
For all of the above reasons, Mr Boensch submits that either it can be inferred that the council made a deliberate decision not to approve the Laneway or accept its dedication, or if it did, such approval or dedication with respect to the Laneway is not lawful. In particular, he contends that the ERM Council at the time made the deliberate decision to accept and not to accept certain roads and lanes in compliance with the 1919 Act and the Conveyancing Act and therefore certain roads and lanes were not marked with permanent marks, have not been selected, have not been built, have not been accepted, have not been included in a road map or roads register, have not been included in the registration process with the Registrar General and therefore have not been dedicated upon registration of the plan.
Mr Boensch submits that the amendment to s 323 to introduce subs (3) does not apply to the registration of a plan of subdivision where the process was completed prior to the amendment, and cannot be extended to apply to those legislative requirements beyond s 327.

[18]

Parramatta Council's position that the Laneway is a public road

Parramatta Council submits that each of the arguments advanced by Mr Boensch is incorrect and that the evidence establishes that the Laneway was dedicated as a public road upon the registration of DP 14244 with the Registrar-General. Parramatta Council notes that the registration of DP 14244 includes the subdivision of the land into the lots comprised therein, including the land that Mr Boensch occupies, and there is no suggestion by Mr Boensch that the lots created by that subdivision were not lawfully created through the registration of that plan, nor that other roads shown as being dedicated in the plan were not lawfully created as a result of that subdivision.
Parramatta Council points out that Part IX of the 1919 Act dealt with public roads. Section 226 (contained within Part IX), provided for the classification of roads by a Council. This included the classification of "Lanes", being "roads primarily for access to the back of premises" (s 226(2)(e)). Whilst Council was given power to classify roads other than main roads, until such classification occurred, s 226(5)(c) provided that "all public roads which are more than twelve feet and not more than twenty feet wide shall be deemed to be Lanes". The Laneway is depicted on DP 14244 as "Lane 20 feet wide". Accordingly, Parramatta Council submits that pursuant to s 226 the Laneway is deemed to be a Lane.
Parramatta Council points out that Division 2 of Part XII of the 1919 Act provides for the opening of new roads by the registration of plans of subdivision in the office of the Registrar-General. Section 327(1) sets out the conditions to be observed before opening new roads and for the subdivision of land. Parramatta Council submits that the most important aspect of s 327(1) is the requirement in paragraph (e) for the registration of a plan of subdivision containing certain particulars in the office of the Registrar-General. Firstly, Parramatta Council submits that Exhibit D clearly demonstrates that these requirements have been met.
Secondly, Parramatta Council points to the fact that the land the subject of DP 14244 has been subdivided as evidence that the plan was registered in the office of the Registrar General in satisfaction of the requirements of the legislation. The opening words of s 327(1) make it clear that land cannot be subdivided until the requirements of that section are met, subject to the provisions of the 1919 Act. Parramatta Council submits that, had the 1919 Act not been complied with, then plainly the land could not have been subdivided and subsequently sold. Further, s 196(6) and (7) of the Conveyancing Act provide that the Registrar General must be satisfied that all requirements of the Conveyancing Act are complied with before entering the plan in the register. In such circumstances, Parramatta Council submits that the Court is entitled to accept that the requirements of the 1919 Act relating to subdivision and those of the Conveyancing Act have been met.
With respect to the alleged non-compliance with s 327(1)(b) concerning the construction of the road, Parramatta Council submits that it is incorrect to argue that in order for the road to be dedicated through the process of registration of the plan of subdivision, the road needs to be constructed. Parramatta Council relies on s 328 as providing an alternative under which an applicant is not required to construct the roads but instead may make a payment to the council or provide security that it would undertake the work within such time fixed by the council.
Further, with respect to the alleged non-compliance with s 327(1)(c) concerning the placement of permanent survey marks, Parramatta Council notes that subs (c) requires that the marks be placed "in the position and manner of the character prescribed". Parramatta Council relies on Ordinance No 32, gazetted on 11 August 1922, as the regulatory instrument that set out the prescribed requirements. Relevantly, Parramatta Council points out that cl 19 of the Ordinance provides that "[t]his Ordinance shall not apply to a lane or pathway as defined in section 226 of the Act."
Parramatta Council submits that even if s 327(1) has not been complied with, the amendment to s 323 by the Local Government and Conveyancing (Amendment) Act 1964 provided retrospective validation in respect of any purported dedication of land that did not comply with the requirements of s 327.
Parramatta Council agrees that Mary Lane is a blind road, but submits that at the blind end it gives access to a river bank or the shore of any tidal water, and therefore complies with s 324(1)(b) of the 1919 Act and is permitted to be opened. Whilst the 1919 Act does not contain a definition of "river bank", Parramatta Council submits that the ordinary meaning of "river bank" would include the bank of Subiaco Creek. In accordance with the Macquarie Dictionary (3rd edition), "Bank" is defined as "the slope immediately bordering the course of a river along which the water normally runs". Parramatta Council refers to the definition of "Tidal waters" in the 1919 Act, which "includes the waters of the sea or of any lake, estuary, harbour, river, bay, or lagoon in which the tide ebbs and flows." Parramatta Council submits that this is a wide definition and extends to Subiaco Creek. Further, given that the average mean high water mark is shown on the deposited plan and the creek flows into the Parramatta River, Parramatta Council submits that the creek is subject to tidal flows. Parramatta Council submits that Mr Boensch's argument concerning the word "shore" is incorrect and that "shore" simply refers to the land along the edge of the creek. In any event, Parramatta Council submits that even if s 324(1)(b) is not complied with, subs (c) further allows the council to approve the opening of a blind road where exceptional circumstances apply.
Parramatta Council further submits that there is nothing on DP14244 to suggest that the Laneway was to be excluded from being dedicated as a public road upon registration of the plan of subdivision in the office of the Registrar General.
With respect to the adequacy of the statement of intention, Parramatta Council submits that it need only be a statement on a plan of subdivision. Specifically, s 196(5) of the Conveyancing Act required that a plan of subdivision contain "a statement as to which, if any, of the roads, streets and lanes, shown thereon are intended to be dedicated to the public…". Parramatta Council points out that it need not be signed or witnessed in any particular way, contrary to the submission of Mr Boensch. Parramatta Council submits that it is plain from examining the deposited plan that it was intended to dedicate all of the roads and lanes in the deposited plan to the public.
Parramatta Council also submits that it is not necessary for there to be any transfer of the fee simple, because s 336(2) of the 1919 Act operates to vest the fee simple of the road in the council. Section 232 of the 1919 Act also makes it clear that the fee simple of any public road was vested in the council. Section 232 also states that a council could be registered as the proprietor of the road under the provisions of the Real Property Act 1900, but Parramatta Council submits that it was not mandatory to do so. Parramatta Council points out that on Mr Boensch's argument, none of the roads in DP14244 are public roads because there is no transfer of the fee simple of those roads to the council, which would produce an absurd situation.
Parramatta Council submits that the Court should reject Mr Boensch's submission that the statement of intention to dedicate roads and lanes to the public was added after the effect, in circumstances where there is no evidence to support that proposition.
With respect to the case law authorities relied upon by Mr Boensch, Parramatta Council submits that none of those cases are contrary to these arguments. With respect to Homelands, Parramatta Council relies on the decision in Owners - Strata Plan No 5225 v Registrar General of New South Wales (2017) 225 LGERA 175, in which Pembroke J stated (at [67]): "[67] Finally, the statement by Nicholas J in Re A Caveat by the Council of the Municipality of Botany; ex part Homelands Development Co Ltd (1936) 36 SR (NSW) 615 at 619 has no application to this case… The decision is authority for the proposition that if a developer prepares a plan of subdivision including a proposed public road, but changes its mind and does not complete the process envisaged by Section 327, then sells the land, it cannot be said that the proposed road has become a public road, even if the public had come to use it."
Parramatta Council submits that the critical point in the Homelands case was that although the road had been constructed and was being used, the plan of subdivision containing the road was not registered. In the present case, the plan of subdivision is registered. The parcels of land created by that subdivision came into existence, including Mr Boensch's land. As such, Parramatta Council says that the present circumstances are clearly distinguishable from those in Homelands.
Parramatta Council therefore submits that the requirements of the 1919 Act for the dedication of the Laneway as a public road have been met, and the road meets the definition of a "public road" pursuant to the LG Act.

[19]

The Laneway is a public road

For the reasons that follow, I accept the position of Parramatta Council that upon the registration of DP 14244, the Laneway was deemed to be opened as a public road and thereby dedicated accordingly, pursuant to s 336(1) of the 1919 Act. The fact that the plan was of a "subdivision containing a road" is sufficient for the road, upon registration, to be "deemed to be opened as a public road and dedicated accordingly" pursuant to the terms of s 336(1) that were in force at the date of registration. This means that the fee simple vests in Parramatta Council, in accordance with s 336(3) and s 232(1).
From the outset, I accept the submission of Parramatta Council that the fact that the plan of subdivision was accepted by the Registrar-General and registered as DP 14244, and that the land has been subdivided and the lots sold, creates a presumption that the registration of the plan in the office of the Registrar-General has occurred regularly and that all statutory requirements for the registration of the plan have been met. Similarly, I consider that the approval of the ERM Council by the signatures of the town clerk and the mayor, together with the seal of the ERM Council and the words "Approved. Covered by Council Clerks Certificate No 26, of 29th July 1926" creates a presumption that the requisite approval was given prior to the registration of the plan of subdivision in 1927, and that the approval was regularly given with the relevant matters considered, in accordance with s 332(j).
That is, the starting point is that there is a presumption that the plan was registered, and council approval was given, regularly and in accordance with the relevant statutory provisions, unless there is evidence to the contrary. In the present circumstances, there is no evidence to the contrary. As I explain below, Mr Boensch has not established that there are any pre-conditions to the council approval or the registration of the plan that have not been met. Nor has Mr Boensch established that the Laneway was excluded from the approval or the registration of the plan.
Specifically, I accept that whilst the Laneway is a blind road at the end adjacent to Subiaco Creek, it is clear that s 324(1)(b) applies such that it gives access at its blind end to the shore of any tidal water. I accept the submission of Parramatta Council that the word "shore" means the land adjacent to the water, and that the depiction of the "mean high water mark" on DP 14244 clearly establishes that the Laneway was intended to access the shore of tidal waters. This is for the simple reason that a "mean high water mark" is a feature of tidal waters.
Further, Mr Boensch has not established that there was any requirement for the Laneway to be sealed, constructed or drained before its opening as a public road. The precise requirement of s 327(1)(b) is for the roads to be constructed and drained "to the satisfaction of the council in accordance with the approved application, plans and specifications, and with any conditions attached to any such approval". That is, any requirement for the Laneway to be constructed and drained must be a term of the approved application, plans and specification or the conditions. There is no evidence that the approved application, plans and specifications or the conditions required the Laneway to be constructed in any particular manner. In speaking of the requirement of s 327(1)(b) of the 1919 Act in Xerual Pty Ltd v Auburn Council [1999] NSWLEC 64, Sheahan J said the following at [142-3]: (emphasis added) "142. LGA s 327(1)(b) obliged the Council to satisfy itself that any necessary works required prior to the "opening" of the "public road" had been carried out prior to dedication. It is not suggested that that obligation was not met by Council, and one can infer from DP 713708 that Council was appropriately satisfied. 143. Nothing in any of the three consents lends weight to a proposition that the construction of some carriageway or other works on the dedicated land was within the contemplation of the Council or the holder of the consent at any material time. None of the consents requires more of the developer than the dedication of the land. No physical works, nor monetary contribution towards the cost of such physical works by the applicant/developer, were sought at any time from the applicant…"
I consider that non-compliance with s 327(1)(b) with respect to the Laneway could only be established by evidence that there were works required by the approved application or conditions that were not carried out. There is no such evidence.
Similarly, I consider that this means that there is no evidence that the approval has lapsed by virtue of s 335(1). The "requirements of this Part" referred to therein relate to the requirements of an approval granted under this Part (see Sutherland Shire Council v Currey (1991) 73 LGRA 171 per Handley JA). Other than the requirements of an approval, there is no separate requirement under Part XII for the construction and draining of roads, the giving of security or the making of payments to the council to carry out the work. As such, without evidence that there was a requirement for the Laneway to be constructed in a particular manner, I cannot be satisfied that the approval for the subdivision lapsed.
I also accept the submission of Parramatta Council that permanent survey marks were not required to be placed on the Laneway. Section 327(1)(c) only requires marks to be placed "in the position and manner of the character prescribed". The prescription, contained in Ordinance No 32, did not require a lane (as defined in s 226) to have permanent survey marks. There is no evidence to support Mr Boensch's submission that there is some other ordinance that contained a requirement for permanent marks to be placed on a lane or pathway. No such ordinance has been identified. Further, the later amendment to s 327, by the Local Government (Amendment) Act 1965, inserted in subs (1) a statement that subs (1)(c) did not apply where the road to be opened is a lane. Accordingly, the requirement in s 327(1)(c) of the 1919 Act did not extend to requiring permanent marks to be placed on the Laneway. This also meant that the mandate for the plan of subdivision to show the permanent marks "placed in the road in accordance with this Act", contained in s 336(2), was met by showing the positions of the permanent marks on roads other than lanes.
Even if any failure to comply with either subs (1)(b) or (1)(c) of s 327 could be established, the failure did not invalidate the dedication of land as a public road. This is made clear by the insertion of subs (3) in s 323 of the 1919 Act. I consider that this subsection makes it clear, by its terms, that it applies retrospectively to a deposited plan registered in the office of the Registrar-General before the commencement of the Local Government and Conveyancing (Amendment) Act 1964. Paragraphs (a) and (b) of subs (3) are met by DP 14244, in that the instrument purports to dedicate land for use as a public road by the statement that "It is intended to dedicate the roads, lanes to the Public", it was registered in the office of the Registrar-General, and it was accepted in writing by or on behalf of the ERM Council as evidenced by the signatures of the Mayor and Town Clerk, and the seal of the ERM Council. Accordingly, if the provisions of s 327 were not complied with in relation to the opening of any road on the DP 14244, the dedication is not deemed "ever to have been invalid by reason only of the failure to comply with the provisions" of s 327.
Additionally, I do not accept the submission of Mr Boensch that the statement of intention to dedicate was inadequate in any way. It is plain from the statement that all roads and lanes were intended to be dedicated, and there is no requirement in the 1919 Act or in the Conveyancing Act (as in force at the time of the registration) for the statement of dedication to be witnessed or signed by the proprietor of the land. It therefore meets the requirement of the Conveyancing Act 1919 to be "a statement as to which, if any, of the roads, streets, and lanes shown thereon are intended to be dedicated to the public." There is also no evidence that the statement of intention was added after the registration of the plan of subdivision, and, in fact, the notes on DP 14244 suggest the contrary, as the date of the initial above the strike out of the words "and reserves" pre-dates the registration of the plan.
There was similarly no requirement in the 1919 Act or in the Conveyancing Act for the council to have some process post-dedication by which it accepted the dedication of land. In making this submission, Mr Boensch is confusing the requirements under the 1919 Act with the requirements of the common law process in place prior to the legislative process under the 1919 Act. As described by McHugh JA in Newington v Windeyer (1985) 3 NSWLR 555 at 558, under the common law "the making of a public road required 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". However, under the 1919 Act, there is no such requirement of an acceptance by the public. This is described by Bryson JA in the Council of the City of Shoalhaven v The Director General National Parks and Wildlife Service [2004] NSWCA 163 at [12] as being: "the statutory machinery under which since 1920 public roads have been created by registration of plans of subdivision, which can only be registered with the consent of the relevant Local Government authority; by statute a road so created becomes vested in the Local Government authority upon registration of the plan, so that the Local Government authority is entitled to obtain and does usually obtain a Certificate of Title for an estate in fee simple in the road."
The fact that the fee simple remains comprised in the Certificate of Title Volume 3807 Folio 154, and that Parramatta Council (or its predecessor) has not become the registered proprietor of the Laneway, does not invalidate the dedication or opening of the road as a public road. To the contrary, I accept the submission of Parramatta Council that s 336(3) of the 1919 Act operates to vest the fee simple of a road in the council, and that s 232 also makes clear that the fee simple is vested in the council. It is plain from the statutory language of s 232 that it is not mandatory for a council to be registered as the proprietor of the road, and that the fee simple of the public road is vested in the council by statute. As such, the fee simple of the Laneway clearly vests, by statute, in Parramatta Council.
Further, the requirements of ss 230-231 of the 1919 Act for records to be kept of public roads, and for records to be furnished as evidence with respect to certain aspects of the roads, are not pre-conditions for the creation of a new public road. I do not accept that the requirement of ss 237(1) and 323 that a public road cannot be opened "except in accordance with the provisions of this Act" to be so broad to mean that a failure to meet an ongoing obligation with respect to a public road (once created) invalidates the process by which it became a public road. As such, the failure to keep records may result in a breach of the 1919 Act, but is not a pre-requisite for the creation of the public road. I note that Parramatta Council reasoned that the Laneway did not appear in the road register as the register is simply a list of names, and thus a lane that was not formally named could not be entered into the register.
Similarly, s 264 of the 1919 Act is not a pre-requisite for the creation of a public road. It gives power to a council to fix the levels of any public road and prescribes requirements for exhibition and notification of the proposed levels. There is nothing in s 264 that imposes an obligation that must be met prior to the opening of a public road, such as to invalidate the opening of a road in accordance with s 336(1).
Section 229 requires "every new public road" to be "classified before it is opened" and "be opened to or beyond the standard width for its class". Section 226(4) states that the classification is to "take effect upon notification in the Gazette". Contrary to the submission of Mr Boensch, I do not accept that the combination of ss 229(1)(a) and 226(4) creates a requirement that the Laneway's classification as a lane be gazetted prior to its opening as a public road. Instead, I accept the submission of Parramatta Council that the Laneway is deemed by s 226(5)(c) to be a lane, which classification was therefore presumed pursuant to that provision and marked on the plan as a "lane" accordingly, before the registration of the plan and consequent opening of the Laneway.
The case law referred to by Mr Boensch does not contradict any of the reasons expressed above. I consider that the decision in Commissioner for Railways v Dangar (1943) 15 LGR 101 is readily distinguishable from the present circumstances, as it concerned an agreement to cause specified land to be dedicated, and did not concern a plan of subdivision containing a road under Part XII of the 1919 Act. I also accept the submission of Parramatta Council that the decision in Homelands is concerned with the consequences of the failure to register the plan of subdivision, which distinguishes it from the present proceedings. The case of Re Lehrer and the Real Property Act [1961] 60 SR (NSW) 365, also relied upon by Mr Boensch, similarly is of no assistance given that it concerns the registration of four leases, three of which did not contain a council approval for a plan of subdivision and one that purported to restrain a subdivision to lease purposes only. This is clearly distinct from the present circumstances concerning the registration of the subdivision of land containing a road, where the approval of the relevant local council was endorsed on the plan and the plan was for Torrens title subdivision.
For the above reasons, Mr Boensch has failed to establish that there is any irregularity or legislative non-compliance that would invalidate the opening and dedication of the Laneway as a public road, which opening and dedication occurred on the registration of the plan of subdivision in DP 14244.
I therefore accept that the Laneway is a "public road" as it was dedicated as such in accordance with the provisions of the 1919 Act and it therefore meets the description of "public road" under the LG Act as a "a road which the public are entitled to use". Therefore, Parramatta Council, pursuant to Item 27 of s 124 of the LG Act, is entitled to issue an order with respect to the Laneway.

[21]

Parramatta Council's position that the objects obstruct and encroach

Parramatta Council submits that the objects, largely comprising the vehicles (including trailers and their contents) present in the Laneway, are plainly encroaching on the Laneway by occupying the Laneway itself, and that the encroachment is not authorised by or under any Act of Parliament. Parramatta Council says that this is sufficient to meet the requirements of paragraph (a) of Column 2 in item 27 of s 124 of the LG Act.
Secondly, Parramatta Council submits that the objects are also causing an obstruction in the Laneway. The vehicles that are located in that part of the Laneway adjacent to the restricted parking signs are plainly obstructing members of the public from using those spaces. Parramatta Council points out that the vehicle and trailers (and their contents) located at the bottom of the Laneway are obstructing persons from travelling along the Laneway to Subiaco Creek, and also prevent somebody from easily accessing the shore of Subiaco Creek if needed. There is also an obstruction to pedestrians who may be exiting from the premises at 1 Bridge Street via the metal staircase, or for persons exiting the crossover in the Lane underneath 1 Bridge Street by vehicle. Parramatta Council submits that the ease with which vehicles may travel along or manoeuvre in Mary Lane is clearly compromised by the presence of the objects in the Laneway. Parramatta Council submits that these circumstances amount to an obstruction caused by the objects that also meets the requirements of paragraph (a) of Column 2.
Thirdly, Parramatta Council relies on the affidavit of Ms Burke, which establishes that Parramatta Council have received complaints about the presence of the objects in the Laneway. Parramatta Council submits that is sufficient to demonstrate that the circumstances referred to in paragraph (b) of Column 2 are met. Parramatta Council submits that the complaints demonstrate that the presence of the objects in the Laneway is causing annoyance or inconvenience to the public.
Given that part of the Lane is located near a waterway, and is flood prone land, Parramatta Council fourthly submits that the shipping container and car that is stacked on the trailers located at the end of the Laneway may cause danger to the public in the event that flooding occurred.
Fifthly, Parramatta Council submits that the objects are preventing safe fire egress from 1 Bridge Street and are blocking access to a right of way that benefits 3-5 Bridge Street and burdens 1 Bridge Street.
Sixthly, Parramatta Council relies on the evidence of Ms Burke that the objects prevent access for the machinery required to fix sewer pipes at the rear of 3 Bridge Road, which Parramatta Council submits can be lawfully accessed from the Laneway via the registered easement for the right of way burdening 1 Bridge Street.
Seventhly, Parramatta Council says that it is not a legitimate use of a road to park registrable vehicles on the road in circumstances where the vehicles parked along the side of the Lane are parked in contravention of parking signs, including signs restricting parking to 5 minutes and no stopping signs. Further, Parramatta Council points out that the trailers and other objects at the bottom of the sealed area of the Laneway encroach onto the unsealed section of the Laneway.
Ultimately, Parramatta Council submits that Mr Boensch is seeking to use public space to more or less permanently store the objects. Parramatta Council submits that this is not an appropriate use of public space, particularly in circumstances where annoyance or inconvenience is being caused to members of the public.
In response to the written submissions made by Mr Boensch, Parramatta Council contests Mr Boensch's assertion that the occupants of 1 and 3-5 Bridge Street are in effect prohibited from using the right of way which burdens 1 Bridge Street and benefits 3-5 Bridge Street. Whilst there are development consents applying to the land at 3-5 Bridge Street that do restrict the use of the rear of the premises, Parramatta Council submits that this does not entirely preclude the occupants of that premises from using the Laneway or the right of way. For example, the letter from Mr Drew of Parramatta Council dated 22 May 1997 (in Ex A) refers to condition 6 of development consent DA96/144, which requires revegetation of the creek bank. At paragraph 7, Mr Drew states that "[t]o comply with condition no. 6 it is therefore likely that the landscaping contractor will need access the rear of 3-5 Bridge Street via Subiaco Creek land. In this area, the most convenient public access to Subiaco Creek land is via the abovementioned laneway." Parramatta Council submits that this statement highlights that there may be a number of situations in which the most convenient access to the land at 1 and 3-5 Bridge Street is via the Laneway. However, Parramatta Council submits that it is plain from the site inspection that neither pedestrian nor vehicular access can be achieved by the placement of the objects at the end of the sealed part of the Laneway. Parramatta Council submits that the fact that conditions of consent may not permit deliveries or parking on premises that relies on access from the Laneway does not somehow mean that the Laneway cannot be used at all for accessing the land at 1 or 3-5 Bridge Street. Parramatta Council submits that the Laneway is a public road and as such, members of the public are entitled to use it and ought not be prevented from doing so by the placement of objects including vehicles, trailers and the other objects.

[22]

Mr Boensch's position that the objects are not an obstruction or encroachment, and are authorised

Mr Boensch submits that the objects are not an obstruction or encroachment as he has exclusive right of access to the Laneway, and that their placement on the road is authorised under the Roads Act 1993, the Road Rules 2014 and the conditions of development consent that apply to the operation of his premises at 255 Victoria Road.
Specifically, he points out that the Laneway allows access by him to the rear and basement of 255 Victoria Road, which is an established right of access or easement that no other owner has approval for. He submits that there is no approved access to 1 and 3 Bridge Street from the Laneway, and considers that 1 Bridge Street is occupied unlawfully with access prohibited from the Laneway to 1 Bridge Street, and use of the basement at 1 Bridge Street prohibited due to the risk of flood. He points out that the right of way that benefits 3-5 Bridge Street is not the subject of any development consent granted by Parramatta Council, or any other approval by Parramatta Council. Additionally, he submits that the Laneway is not sufficiently wide to allow turning into the basement area for 1 Bridge Street or into the right of way. As such, he considers that access from the Laneway to 1 Bridge Street or 3-5 Bridge Street is not approved or permitted, and that the objects therefore do not cause an obstruction or encroachment.
In support of his submission that the operators of 1 Bridge Street and 3-5 Bridge Street are not permitted to use the Laneway to access their properties, he relies on condition 6 of DA/213/2010 concerning 1 Bridge Street, and condition 13 of DA/150/2011 concerning 305 Bridge Street. The two conditions are in precisely the same terms, as follows: "The rear of the site is not to be used for the purposes of parking and/or unloading and loading. All parking and unloading/loading is to be undertaken to the front of the premises. Reason: To ensure damage to property does not occur during any flooding instances."
Mr Boensch also disputes that there is a sewer requiring repair at the rear of those properties.
In support of his submission that he has exclusive rights to use the Laneway, Mr Boensch relies on conditions 2, 5, 8 and 9 of the conditions of consent for the operation of 255 Victoria Road, as follows: "2. No work is to be conducted on motor vehicles outside the building, unless the work is such that the vehicle may at all times be immediately started and drive away. … 5. Unless otherwise approved, all vehicular access to the site shall be over the existing layback crossing. … 8. There shall be no vehicular access from Victoria Road, except with the approval of the Council and the Roads and Traffic Authority. 9. At night and at other times when the automotive repair business is closed, no vehicles are to be left or parked in the open yard other than a vehicle of a resident or other person then actually present on the site."
Mr Boensch submits that these conditions authorise him to have the vehicles parked or stored on the Laneway.
Finally, Mr Boensch submits that vehicles parked on the road under the Roads Act and the Road Rules are authorised to be there, even if they are unregistered or immobile. In support of this submission, he relies on his successful challenge of fines imposed under the Road Rules, which he said considered that the vehicles were not unlawfully parked as they were parked before the erection of the 'no stopping' and 'P15' signs. I note that the decisions of the magistrates with respect to these offences were not furnished at the hearing.

[23]

The objects both obstruct and encroach

Firstly, I accept that the objects encroach on the Laneway. They are placed in areas where, ordinarily, vehicles and pedestrians should be able to pass freely along the full width of the Laneway or where pedestrians should be able to pass onto the unsealed part of the Laneway adjacent to Subiaco Creek. They have been an encroachment for some time, dating back to at least June 2017 based on the evidence before the Court (see the affidavit of Ms Burke dated 20 May 2019). This encroachment by the objects, together with the fact that the encroachment is not authorised under any Act (discussed below at [123]), is sufficient to satisfy column 2 to allow the order to be issued.
Secondly, I also accept that the objects obstruct the Laneway for four reasons. The first reason that it is plain, from the site inspection of the Laneway, that the ease with which vehicles and pedestrians may travel along or manoeuvre in the Laneway is clearly compromised by the presence of the objects in the Laneway. The second reason is that they obstruct a number of areas that should be otherwise available: a "No stopping" area, which ought to ordinarily be available for the passage or manoeuvring of vehicles; a driveway area, which ought to be available to the driveway user; and a P15 area, which ought to be available for the public to use for 15 minutes of parking. As such, they preclude the control of traffic in the manner intended by the signs. The third reason is that the presence of the trailers (a type of vehicle under cl 15 of the Road Rules), their contents and the vehicle at the end of the Laneway obstructs access for a pedestrian to the shore of Subiaco Creek. The fourth reason is that the presence of the trailers and their contents obstructs both vehicular and pedestrian access to the rear of 1 Bridge Street, and to 3-5 Bridge Street over the registered easement for right of carriageway.
With respect to this fourth reason, the mere fact that the occupants of 1 Bridge Street and 3-5 Bridge Street are precluded, by conditions of development consent, from parking or loading/unloading at the rear of their premises, does not mean that there is no obstruction caused by the two trailers, their contents and the vehicle located at the end of the Laneway. Instead, I accept the submission of Parramatta Council that the conditions do not preclude the occupants of those premises from using the Laneway or the right of way for purposes other than parking or loading/unloading. I consider that there remains lawful access from the Laneway to both 1 Bridge Street, and to 3-5 Bridge Street, for other purposes such as maintenance or pedestrian access. I do not accept the submission of Mr Boensch that it is somehow unlawful for people to access the rear of their own properties from a public road, or from a public road via a registered easement for right of way. It is this lawful access that is obstructed by the trailers and their contents.
I note also that throughout his submissions Mr Boensch maintained his position that access to the documents that formed part of the development applications and Parramatta Council's assessment of those applications, would be relevant to the determination as to whether there was a restriction on access to 1 Bridge Street or 3-5 Bridge Street from the Laneway. I dealt with this in Boensch v City of Parramatta Council [2019] NSWLEC 1249, in which I made orders setting aside a Notice to Produce seeking the production of such documents. I consider that the documents that assist in determining whether there is lawful access are confined to the conditions of consent discussed above, which do not preclude access from the Laneway except for parking and loading/unloading. Even if I was wrong on this point, and there was some prohibition on access of any kind from the Laneway to 1 Bridge Street and to 3-5 Bridge Street through the easement, the objects are nonetheless an obstruction for the first, second and third reason outlined in [120].
Thirdly, I do not accept that the encroachment or obstruction is authorised by any Act. Mr Boensch has not brought to my attention any legislative provision in the Roads Act, the Road Rules or otherwise, that authorises registrable vehicles to remain parked on the Laneway in circumstances where parking restriction signs have now been erected such that the presence of the vehicles precludes the control of traffic in the manner intended by the signs. This is apparent as the vehicles are parked contrary to those parking restriction signs, and although they may have been placed there prior to the installation of the signs, their continuing presence prevents the traffic in the Laneway from being controlled in the manner intended by the parking restriction signs. Additionally, Mr Boensch has not given any evidence that the vehicles are registered or otherwise permitted to be used on a public road, and has not referred to any legislative provision that permits the obstruction of the driveway (the area that is not subject to a parking restriction sign).
Similarly, I do not accept the submission of Mr Boensch that the parking or storage of vehicles is permitted by the conditions of development consent for 255 Victoria Road. Any consent for work to be conducted outside the building in accordance with condition 4, cannot be read to extend the grant of consent to allow works to be carried out on land other than 255 Victoria Road. Further, the restraint on parking vehicles in the open yard (at condition 9) does not authorise the parking of vehicles on the public road. Indeed, condition 10 precludes the storage of tools or goods outside the building overnight.
I consider that no conclusions can be drawn from the dismissal of fines imposed on Mr Boensch for the failure to comply with the parking restriction signs, as any offences must be proven by reference to the terms of the relevant offence in the statutory or regulatory provision. The reasons for the dismissal by the Magistrates have not been provided to me, but the mere fact that the elements of a parking offence could not be established by the evidence in those Local Court proceedings does not mean that the vehicles are authorised, under the Road Rules or the Roads Act, to be parked so as to encroach or obstruct the Laneway in the manner described above at [119]-[120].
The above reasons are sufficient to satisfy paragraph (a) of column 2 of item 27 of s 124 of the LG Act, so as to authorise the issue of the order concerning the objects located on the Laneway.
However, fourthly, I accept that the objects are causing annoyance or inconvenience to the public in satisfaction of paragraph (b) of column 2, as they have been the subject of complaints as evidenced by the affidavit of Ms Burke, and they compromise the ease with which vehicles and pedestrians may travel along or manoeuvre in the Laneway and prevent access to Subiaco Creek. This, in my view, creates an inconvenience to the public, who are entitled to use a public road.
I am therefore satisfied that the requirements of both paragraph (a) and (b) of Column 2 are met, which means that an order can be issued by Parramatta Council to remove the objects from the Laneway or prevent them from being deposited there. There is no dispute that Mr Boensch is the person in control of the vehicles and other items comprising the objects, and is therefore causing the obstruction or encroachment and is the occupier of land from which the objects emanate, in satisfaction of column 3 of item 27. As such, the order to remove the objects or to prevent them from being deposited can be issued to Mr Boensch pursuant to s 124 of the LG Act.

[24]

Should they be ordered to be removed?

The final question that remains is whether the Court, in carrying out the functions of Parramatta Council, ought to exercise its discretion to issue the order (and consequentially allow the order to remain) in the circumstances.
The order requires the following: "LOCATION - Unnamed lane Rydalmere NSW (commonly known as Mary Lane) and located to the rear of 251, 253 and 255 Victoria Road Rydalmere Pursuant to Section 124 Order No 27 of the Local Government Act 1993 Council hereby orders you: 1. To remove all objects including but not limited to vehicles, camper trailers, car carrier/s and vehicles and objects contained within/upon, shipping container/s and the contents contained within and upon, belonging to you or in the direct control of you from Council land, being the above named lane, including the No Stopping and 15-minute parking zones. 2. To cease the placement of vehicles within the 15 minute zone of the above named lane for longer than permissible under the Road Rules 2014. 3. To cease the placement of vehicles within the No Stopping zones of the above named lane. 4. To prevent any object or matter, including but not limited to the above listed items in Point 1, being deposited in the above mentioned lane or any public place with the Parramatta Local Government Area."
There is a long history of Parramatta Council seeking to have Mr Boensch remove the objects.
Notices of Intention to issue an order to remove objects or vehicles were given to Mr Boensch on 7 December 2006, 19 June 2007 and 3 September 2016. They did not eventuate in the issue of an order, and a number of vehicles remained in the Laneway.
In 2011 and 2012, the parking restriction signs were installed in the Laneway. The decision of Parramatta Council to install the signs was unsuccessfully challenged by Mr Boensch in the Supreme Court: see Boensch v Parramatta City Council [2012] NSWSC 836.
A number of penalty notices were issued to vehicles for contravention of the parking restriction signs, but were eventually either withdrawn or successfully challenged. In that period, the vehicles (including the trailers) were not moved, and on Mr Boensch's own evidence the vehicles (including the trailers) were placed there before the erection of the parking restriction signs in 2011 and 2012. Mr Boensch gave this as the reason why the penalties for contravention of the parking restriction signs were not maintained.
On 30 May 2018, Michelle Burke (Service Manager, Ranger and Parking Services) wrote to Mr Boensch about the objects placed in Mary's Lane and invited him to discuss the matter with Council. On 14 June 2018, a meeting took place. On 11 and 25 July 2018 further emails were sent by Ms Burke requesting the removal of the objects.
On 7 August 2018 an email was sent by Mrs Burke advising that Parramatta Council was intending to issue an order as prior requests to remove the objects had been refused.
On 31 August 2018, Parramatta Council gave a notice of intention to give the Order in accordance with s 132 of the LG Act, and on 13 September 2018 the order was issued.
It is plain that the Laneway has been used for a long period by Mr Boensch to store the objects, and Parramatta Council has unsuccessfully attempted to negotiate with Mr Boensch to remove them.
In my view, it is entirely unacceptable that Mr Boensch continues to use the Laneway for the storage of the objects in circumstances where the objects obstruct the use of the Laneway by the public, and where the objects have remained there on a long term basis. The Laneway is a public road and does not form part of the land the subject of the development consent relied upon for the operation of his business. In any event, nothing in the development consent authorises him to store the objects on the Laneway. It is therefore appropriate that the order be made for the removal of the objects. I accept that the terms of the order are appropriate, and meet the description in column 1 of item 27 of s 124 of the LG Act, such that they require the removal of the objects from the public place, and prevent the objects from being deposited there other than in accordance with the Road Rules 2014.
Accordingly, I am satisfied that it is appropriate for the order to be issued. As such, the order issued by Parramatta Council should remain in place.
The Court orders that: 1. The appeal is dismissed. 2. Exhibits A, B, C, G, H, 1 and 5 are returned. ………………………. J Gray Commissioner of the Court

Boensch v City of Parramatta Council

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Cases Cited (6)

Cited By (2)