Calabro v Bayside City Council [1999] VSC 509

Attorney-General v Antrobus [1905] 2 Ch 188

Bailey v Jamieson (1876) 1 CPD 329

Bass Coast Shire Council v King [1997] 2 VR 5

Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268

City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353

Fleming v City of Oakleigh [1934] VicLawRp 49; [1934] VLR 263

Horvath v Commonwealth Bank of Australia [1998] VSCA 51; [1999] 1 VR 643

Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513

Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401

Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6

Pratten v Waringah Shire Council [1969] 2 NSWR 161

Quach v Marrickville Municipal Council (1990) 22 NSWLR 55

Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1

Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504

Whitehouse v Hugh [1906] 1 Ch 253

2. This is an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") against a declaration made on 27 November 1998 pursuant to section 149B of the Planning and Environment Act 1987 ("the Planning Act") by the Victorian Civil and Administrative Tribunal ("the Tribunal"), in its Planning List, the Tribunal being constituted by Deputy President MF Macnamara. The Tribunal declared:

The land comprised in Certificate of Title Volume 10171 Folio 812 and known as 302 St Kilda Street is a public highway vested in Bayside City Council.

That declaration was made following a hearing before the Tribunal which took place on 18 November 1998. Leave to appeal to this Court was granted pursuant to section 148 of the VCAT Act on 30 April 1999. The appellant ("Mr Calabro") challenges both findings of the Tribunal; that is, that the land the subject of the declaration ("the subject land") is a public highway; and that it has vested in the firstnamed respondent ("the Council"). It should be noted that, as a result of the local government amalgamations of 1994, the Council has succeeded the Council of the City of Brighton as the responsible authority for the municipal district in which the subject land is located.

7. In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18 Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Planning Appeals Board (a forerunner of the Tribunal) might lead to an order nisi for review being made absolute:

. . .the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

12. The subject land has a somewhat complex history. It is a cul de sac 107 metres in length and approximately 10 metres wide running east from St Kilda Street in Brighton. On its southern boundary it abuts the rear of a number of properties fronting on to Cosham Street, and on its northern boundary it abuts the rear of a number of properties fronting on to Blairgowrie Court. The eastern end abuts a property with a frontage to Holmwood Avenue, which runs into Bay Street to the north.

15. The earliest evidence of title before the Court is contained in photocopies of two cancelled certificates of title, Volume 3955 Folio 844 and Volume 3955 folio 843, both of which issued on 19 May 1916 out of an application numbered 42027, which was presumably an application to bring the relevant land under the Transfer of Land Act 1915, as there is no reference on the certificates of title to any earlier Titles Office document.

18. Certificate of Title Volume 3955 Folio 844 describes a piece of land containing one acre and thirty perches, comprising the subject land and an abutting rectangular block to the east which has no street access other than its access to St Kilda Street by way of the subject land. The subject land is described as "road", and is expressed to be subject to "The Easement created by Document Numbered 369818 in the Record Book at the Office of Titles". However, no search of that document was before the Court, and the nature of the easement which it creates can only be surmised (but see paragraph 7 below). The registered proprietor is Annie Rattray Rentoul. The land in that certificate of title is apparently known as "the Holmwood Estate".

21. Certificate of Title Volume 3955 Folio 843 describes a piece of land with a frontage to St Kilda Street, containing three roods nine perches and three-tenths of a perch, with a right of carriage way over the subject land, which abuts that piece of land on the south, and is there again described as "road". The registered proprietor is Minnie Sarah Ackman. The land in that certificate of title is apparently known as "the Blairgowrie Estate".

24. There appears to have been evidence before the Tribunal on which it found that the Document Numbered 369818 "noted that Ms Rentoul had sold the Blairgowrie Estate to Ms Ackman for £900 together with a right of carriage way over [the subject land]", and that finding was not challenged by the appellant.

27. By a plan of subdivision number 13292 ("the first plan of subdivision") registered on 30 May 1930, the Holmwood Estate was subdivided into six parts, being four lots, an extension of Holmwood Avenue giving access to each of those lots, and the subject land, which is shown as "road". The plan before the Court is not coloured, but it is not in issue that the land thereon which is described as coloured brown and expressed to be appropriated or set apart for roads includes the subject land. No transfers of lots on that plan of subdivision were registered.

30. The Holmwood Estate was resubdivided by a six lot plan of subdivision number 317073F ("the second plan of subdivision") registered on 4 August 1992. On that plan the extension of Holmwood Avenue was realigned, and all six lots fronted on to that road. Lot 1 included two separate pieces of land, namely the subject land, and a residential block fronting on to Holmwood Avenue which did not abut the subject land. The subject land was not shown as "road", but was expressed to be subject to easements of carriage way created by Document Numbered 369818. The relevant portion of Holmwood Avenue (but not the subject land) was described as vesting in the City of Brighton.

33. A photocopy of the cancelled Certificate of Title Volume 10078 Folio 076 to Lot 1 on the second plan of subdivision shows that the land in that certificate of title comprises both pieces of Lot 1, that is, the subject land and the residential block. The registered proprietors when the title issued on 4 August 1992 (the date of registration of the second plan of subdivision) were Steven John Wintle and Manuela Wintle ("the Wintles"). The Wintles may have been the registered proprietors of the land before the registration of the plan of subdivision, but the material before me does not enable me to establish whether or not that was the case. On that title, the subject land is shown as subject to "any encumbrances created by section 98 of the Transfer of Land Act 1958 or section 24 of the Subdivision Act 1988" and to "any other encumbrances shown or entered on the said plan", which would include the easements of carriage way created by Document Numbered 369818.

36. The land in that Certificate of Title was resubdivided into two lots by plan of subdivision number 332298T ("the third plan of subdivision") registered on 1 June 1994, Lot 1 being the residential block and Lot 2 being the subject land. That plan does not show any roads as vesting in the Council. The subject land is not shown thereon as "road" but is expressed to be subject to the easements of carriage way created by Document Numbered 369818 and by Creation of Easement Number S760614G, as to which see paragraph 14 below_._

39. The subject land is now the whole of the land comprised in Certificate of Title Volume 10171 Folio 812 and is there shown as subject to encumbrances in the same terms as those set out in paragraph 10 above. The registered proprietors of the subject land are Mr Calabro and his wife, Ms Giampa. They purchased the subject land from the Wintles for $58,000 by a contract of sale dated 27 February 1995, a copy of which is in evidence. They became registered as proprietors of the subject land on 27 November 1995 by Transfer Number T974104C. The purchase was financed by a loan from Australia and New Zealand Banking Group Ltd ("the bank"), secured by a mortgage over the subject land. Mr Calabro deposed that, at the time of swearing of his affidavit in this proceeding on 21 December 1998, he and Ms Giampa owed $48,000 on that mortgage. I note from the copy of Certificate of Title Volume 10078 Folio 076 which is before me that as at 16 November 1993, Gordon Charles Reynolds and Susan Patricia Reynolds ("the Reynolds") had become registered as the proprietors of the whole of the land in that title (that is, both the subject land and the residential block, see paragraph 10 above). I assume that at the settlement of their purchase from the Wintles in 1995, Mr Calabro and Ms Giampa received a transfer from the Reynolds by direction of the Wintles, as a result of some contractual arrangement between the Reynolds and the Wintles.

42. The Blairgowrie Estate, to the north of the subject land, has been subdivided, but the details of that subdivision are not pertinent to the issues before me, save that the rear boundary of several blocks (and the side boundary of one block) on the subdivision, fronting Blairgowrie Court, abut the northern boundary of the subject land. The land to the south of the subject land has also been subdivided, and there was apparently evidence before the Tribunal that the secondnamed defendant ("Mr Connell") and his wife are the registered proprietors of the land known as 1 Cosham Street ("the Connell land"), the rear boundary of which abuts the southern boundary of the subject land.

45. In compromise of litigation initiated in 1992 by the owners of five properties abutting the subject land, an agreement under section 173 of the Planning Act was entered into between the City of Brighton, the Wintles, and the plaintiffs in the action. The Wintles agreed for themselves and the owners from time to time of Lot 1 on the second plan of subdivision not to erect any building on the subject land without the prior agreement in writing of the owners of the abutting lands. That Agreement Number S752270K was registered on 22 October 1993. The Creation of Easement Number S760614G creating an easement of carriage way over the subject land in favour of the Connell land (referred to in paragraph 11 above) was registered on 27 October 1993.

48. The Tribunal found that Mr Connell has applied for a permit to build a second residence at the rear of the Connell land, and the Council, as responsible authority, has issued a notice of determination to grant a permit conditional on the paving of 3 metres of the width of the subject land from St Kilda Street to the eastern boundary of the Connell land. Dr Opas, who represented Mr Calabro before the Tribunal as well as before this Court, told the Tribunal that his client desired to sell the subject land in sections to the abutting owners, thus enabling them to enlarge their properties.

51. The subject land is rated by the Council, and a rate notice issued to Mr Calabro and Ms Giampa on 21 October 1998 showed the subject land as having a site value and capital improved value of $30,000 and a net annual value of $1500. Total current rates were $254.19.

54. Dr Opas indicated from the Bar table that the subject land has never been made or lighted by the Council. It has no street name, and, as the rate notice shows, it has a street number, namely 302 St Kilda Street.

57. A statement of Mrs Pauline McLean was before the Tribunal and was there supported by oral evidence. Mrs McLean had lived at "Blairgowrie" from 1920 until 1939, was the mother-in-law of Mr Connell, and had been familiar with the subject land for as long as she could remember. She said that before 1939 she often saw the subject land being used for vehicular and pedestrian access from St Kilda Street to "Blairgowrie", to Holmwood Court, and to Opawa Court and Newbay Street, which lie to the east of the Holmwood Estate. She said:

Use of the roadway between 1920 and 1939 included school children residing in or west of St Kilda Street, youths both on foot and by motor cycle travelling between St Kilda Street and New Street and I recall a Mr Sharp who regularly used the roadway from the east to go to the beach and return.

She told the Tribunal that the subject land was made and defined by bluestone pitchers as far as the entrance to "Blairgowrie", which was about half way along the subject land. Public access to the subject land was blocked for a period of time in the early 1960s by the then owner of Holmwood Court placing gates across the St Kilda Street entrance. The gates were removed after letters from solicitors on behalf of the holders of rights of carriage way.

63. The Tribunal found that none of this evidence of primary facts was in dispute**.** It found that the registration of the first plan of subdivision in 1930 (see paragraph 8 above), showing the subject land as a road, constituted an offer to dedicate the subject land to the public; that by 1939 that dedication had been accepted by the public's using the subject land as shown by the evidence of Mrs McLean; and that that dedication was irrevocable.

66. The Tribunal then found that, by virtue of section 203 of the Local Government Act 1989 ("the LGA"), the effect of that dedication was to vest the subject land in the Council. The effect of section 203 is considered in paragraphs 37 and following below.

69. The decision of the Tribunal under appeal was, as I have said, effected by the making of a declaration under section 149B of the Planning Act. The Tribunal considered with some care the question of its jurisdiction to make that direction, and Dr Opas did not challenge its finding that it had such jurisdiction. Accordingly it is not necessary for me to consider that question and I do not do so. I note, however, as relevant to the terms of section 149B, that the hearing before the Tribunal arose in the context of a notice of determination to grant a permit, which notice had been issued by the Council; of an application by Mr Connell for review of certain conditions set out in the notice; and of an application by Mr Calabro for a review of the decision to grant the permit.

74. As to the manner by which land becomes dedicated as a public highway, the Tribunal relied initially on the following passages from the judgment of Windeyer J in Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401. His Honour said first at 420:

At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication.

And at 422, referring to the lodgment of a plan of subdivision with the Registrar General under the Real Property Act 1862 (NSW):

[The plan of subdivision] was lodged pursuant to a statutory requirement that it exhibit distinctly delineated all roads set apart for public use. It thus manifested an intention and offer to dedicate as public roads the roads shown on it . . . It has been said that any act which unequivocally indicates an intention on the part of the owner of land to abandon to the public right of passage over it will be effectual as a dedication (Pratt & Mackenzie on Highways 19th ed. (1952) p. 25). But in 1883 lodging a plan of subdivision was, in itself, only an offer to dedicate the roads shown on it. That offer to the public would be ripened into a complete dedication only by its acceptance by the public.

80. The Tribunal, noting that the statutory requirement of the Transfer of Land Act 1928, under which the first plan of subdivision was registered, was not identical to the provision to which Windeyer J referred, cited the decision of Gavan Duffy J in Fleming v City of Oakleigh [1934] VicLawRp 49; [1934] VLR 263, where His Honour said at 266:

. . . but, in my opinion, when section 211 of the Transfer of Land Act 1928 requires that the map shall exhibit distinctly delineated "all roads . . . appropriated or set apart for the use of the purchasers", it is not reasonable to regard the deposit of the plan as in any sense a dedication to the public of the roads shown in it . . .

It may still be that to leave a road opening into a public road without bar or gate is such an invitation to the public as to show a dedication to them; but in this case at any rate, where the road is a cul de sac and has a reserve running along the whole of one side of its length and is bounded on the other side by the blocks offered for sale, I think I should not draw any inference of dedication.

86. The Tribunal then referred to Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504 in which Ashley J, after considering both of the passages cited above from the judgment of Gavan Duffy J in Fleming v Oakleigh, said at 518-519:

In my opinion the legislative difference is relevant, and the approach of Gavan Duffy J in Fleming should generally be accepted. It may be too strong a proposition, however, to say that a deposited plan could not be reasonably regarded "in any sense" as a dedication to the public of a road shown therein. The latter passage in his Honour's judgment to which I have referred appears, indeed, to have stepped back a little from that position, and to be broadly consistent with what was said by McHugh JA in Newington v Windeyer (1985) 3 NSWLR 555 at 559 (albeit in the context of the NSW legislation):

When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action . . .

92. In Bass Coast Shire Council v King [1997] 2 VR 5, the Court of Appeal was concerned with a piece of land which was marked as a road on a subdivision of Crown land, and which was still Crown land. Winneke P, with whom Hayne and Charles JJA agreed, drew a distinction between Crown land and private land in this respect, which distinction was also relied upon by the Tribunal. His Honour said at 18:

Upon this question whether there is evidence of dedication of land as a public road, a distinction has, I think, been drawn between lands offered by the Crown and lands offered by private owners. In the normal course of events the lodging of a plan of subdivision of land in the hands of a private owner is not, of itself, evidence of dedication to the public of the roadways set out on that plan. It is taken to be nothing more than an offer to dedicate such roads which can be withdrawn at any time before the public accepts the offer: cf. Campbelltown Corporation case at 422.

The Tribunal adopted that passage as implicitly rejecting the views of Gavan Duffy J in Fleming v Oakleigh, noting that elsewhere in Winneke P's judgment in Bass Coast, His Honour had made reference to Ashley J's judgment in Templestowe Developments.

97. Finally, the Tribunal referred to the judgment of Windeyer J in City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353 at 363 as authority for the proposition that a cul de sac, such as the subject land, may constitute a public highway. His Honour there said, referring to the expression "public highway" in section 3 of the LGA:

The phrase "public highway" is not defined. It must get its meaning from common law. In Bailey v. Jamieson (1876) 1 C.P.D. 329, at p. 332, Lord Coleridge C.J. said that:

... the common definition of a highway that is given in all the text books of authority is, that it is a way leading from one market-town or inhabited place to another inhabited place, which is common to all the Queen's subjects.

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

103. Dr Opas relied on two English decisions, Attorney-General v Antrobus [1905] 2 Ch 188 and Whitehouse v Hugh [1906] 1 Ch 253 [(1906] 2 Ch 283 as authority for the proposition that dedication of a cul de sac as a highway cannot be inferred from use by the public. To that submission I must say that I prefer, as I am bound to do, the authority of Windeyer J.

106. I find no vitiating error of law in the Tribunal's findings as to the principles applicable to the creation of a public highway (see the passage from Portland Properties cited in paragraph 2 above).

110. Dr Opas submitted that the evidence of Mrs McLean was insufficient to establish use amounting to acceptance by the public of any offer to dedicate the land. However, as Stephen J said in Spurling v Development Underwriting (Vic.) Pty. Ltd. [1973] VicRp 1; [1973] VR 1 at 11:

In the case of decisions of magistrates the position in Victoria is well established by a line of decisions culminating in Taylor v Armour and Co Pty Ltd, [1962] VicRp 48; [1962] VR 346, in which the Full Court of this State held that in the case of any question of fact the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence but rather confine itself to seeing whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come.

In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

The Planning List of VCAT is the equivalent of an expert tribunal and the finding that the subject land had been dedicated as a public highway, according to the principles which I have found to contain no error of law, is a finding of fact which was reasonably open to the Tribunal on the evidence before it.

118. Dr Opas also submitted that any dedication to the public had, in effect, been cancelled. However, Windeyer J in Permanent Trustee at 422, after the second passage cited in paragraph 22 above, continued:

But once the intended dedication had been accepted by the public a public right of way, a public road, a highway came into existence (Attorney-General v The City Bank of Sydney (1920) 20 SR(NSW) 216). The landowner could no longer deny to the public what he had dedicated - "Once a highway always a highway" was the adage of the common law.

122. Dr Opas relied on Bailey v Jamieson (see paragraph 26 above) as authority for the principle that a public highway may change its character and cease to be a public highway. In that case, a public footpath was found to have ceased to be a public highway when access to it at either end had become impossible by reason of ways leading to it having been legally stopped up. Counsel were not able to refer me to any other authority where a public highway was found to have lost that character (other than by statute, see Great Central Railway Company v Balby-with-Hexthorpe Urban District Council [1912] 2 Ch 110) and Bailey v Jamieson must be taken to be authority for no more than what it actually decides on its facts, which are not the facts in this case.

125. Although no lots were transferred out of the first plan of subdivision, that does not, as Dr Opas submitted that it did, alter the effect of the registration of that plan as constituting an offer to dedicate the subject land as a public highway. Similarly, the fact that on the second plan of subdivision the subject land is not marked "road", does not, as Dr Opas submitted that it did, alter the effect on the status of the subject land of the registration of the first plan.

128. Dr Opas submitted that it was relevant that the Council had neither constructed, lighted, nor named the subject land, which was described in the rate notice by an ordinary street number. In that context he relied on a passage from the judgment of Windeyer J in Permanent Trustee at 422 where His Honour said:

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.

However, the significant word in that passage is "or", where first appearing. In the present case, it is the public use which I have found ripened into dedication the declared intention to dedicate, and the absence of expenditure by the Council is of no relevance to the status of the subject land.

133. Dr Opas also relied heavily on the absence of any indication of the subject land as a road in the Melway Street Directory. It is no criticism of the usefulness of that publication to say that no statutory or other provision was drawn to my attention which would give it the force of law. The mere fact that any road or other feature appears or does not appear on a map in the Melway Street Directory is evidence of no more than the fact that that road or other feature appears or does not appear on a map in the Melway Street Directory. It may perhaps be appropriate in a given case to adduce evidence from the publishers as to the reason for that appearance or non-appearance, but that is a different matter, and no such evidence was before me.

136. Dr Opas made extensive submissions as to the effect of the several definitions contained in the provisions relating to the construction of private streets in the successive Local Government Acts as they have been amended over the period since the creation of the subject land as a separate piece of land. I did not find those provisions to be of relevance to this matter.

139. I have said that I have found there to be no vitiating error of law in the Tribunal's findings as to the principles applicable to the creation of a public highway at common law. Nor do I find any such error in its application of those principles, summarised in paragraph 19 above. For these reasons, the appeal in respect of the declaration of the Tribunal that the subject land is a public highway will be dismissed.

144. Accepting the decision of the Tribunal that the subject land is a public highway, the next matter for consideration is the effect of section 203 of the LGA. That provision was first introduced when that Act replaced the Local Government Act 1958. It came into operation on 1 November 1989, and at that time read, so far as relevant ("the former section 203"):

203. Duty of councils over roads and public highways

(1) This section does not apply to public highways which are -

(a) declared roads within the meaning of the Transport Act 1983;

(b) declared public highways under clause 2 of Schedule 5 of the Transport Act 1983; or

(c) vested in the Crown, a Minister or any public body (other than a Council).

(2) A public highway vests in fee simple in the Council of the municipal district in which it is located.

(3) A Council may by notice in the Government Gazette declare a road in its municipal district which is not a public highway to be a public highway for the purposes of this Act.

It is not in issue that the subject land is not covered by any paragraph of sub-section (1), and the Council has made no declaration in respect of it under sub-section (2).

155. Since the coming into operation of section 22 of the Local Government (Miscellaneous Amendments) Act 1993 on 7 December 1993, section 203 has read, so far as relevant ("the present section 203"):

(1) A public highway vests in fee simple in the Council of the municipal district in which it is located on the date section 22 of the Local Government (Miscellaneous Amendments) Act 1993 comes into operation (if it is not already vested in the Council), or on it subsequently becoming a public highway.

(2) The public highway vests in the Council free of all mortgages, charges, leases and sub-leases.

Sub-section (3) provides exceptions similar, although not identical, to those in the previous sub-section (1). Section 204(1) now incorporates the previous sub-section 203(3). Again, it is not in issue that neither the former sub-section 203(3) nor the present section 204 has application to the subject land.

162. It should be noted that there is nothing in the terms of either the former section 203 or the present sections 203 and 204 to indicate that they are in any way intended to abrogate the principles enabling the creation of a public highway at common law. The former sub-section 203(3) and the present sub-section 204(1) simply provide an additional method whereby a public highway may be created.

165. A problem with section 203 in either form is the difficulty of ascertainment of the precise date when, by virtue of either of those provisions, any land which was not a public highway on 1 November 1989 or 7 December 1993, as the case might be, became a public highway by the operation of the common law so as to vest in the relevant municipal Council. It is one thing to decide on a given date that, by virtue of an offer to dedicate and an acceptance of that offer by public use, a piece of land has become a public highway. It is another thing to determine the precise date on which that acceptance occurred in order to determine the precise date when the ownership of that land changed; a date which may, for a variety of reasons, be significant. However, that question is not before me in this case. On the evidence of Mrs McLean, the land had been dedicated to the public by 1939, and thus was a public highway well before the enactment of the former section 203.

168. That being so, prima facie the subject land vested in the Council by virtue of the former section 203 on 1 November 1989, the date of coming into operation of that provision, thus divesting the then registered proprietors (possibly the Wintles, see paragraph 10 above) of their estate in fee simple. The appellant's submissions to the contrary are discussed in paragraphs 45 and following below.

172. Before turning to those submissions, it is appropriate to refer to the question which arises as to the status of the mortgage to the bank which was registered on the title to the subject land (as to which see paragraph 12 above). The actual declaration of the Tribunal which is under appeal makes no reference to the mortgage, although the Tribunal did find that "the effect of the Local Government Act is to free the cul de sac [i.e. the subject land] from the operation of that mortgage". Dr Opas, in his submissions, assumed that that finding was one matter that he had to meet. The bank was not represented before me (nor was it represented before the Tribunal). Neither Mr Finanzio for the Council, nor Mr Pitt for Mr Connell, made any submission as to the status of the mortgage.

175. I am here considering the status of the mortgage only so far as relevant to its registration on the title to the subject land. There is no copy of the mortgage in the material before me, but I would assume that it contains the kind of personal covenants for repayment of the loan which are normally found in mortgages. If the vesting of the subject land in the Council pursuant to section 203 were to have the effect of removing the mortgage from the Register established by section 27 of the Transfer of Land Act 1958 ("the TLA"), the personal covenants would of course be unaffected, and the mortgagors would remain liable thereunder, despite the subject land's being free of the mortgage which constituted the bank's security.

178. If the subject land vested in the Council under the former section 203, it had already vested before the coming into operation of the present section 203. The former section 203 contains no provision that the land vests free of mortgages, such as is contained in the present section 203(2). It seems to me that it is arguable that the present section 203 did not operate to remove the mortgage from the Register. The basis of that argument would be that the present section 203(2) deals only with the effect on mortgages of a vesting in the Council under the present section 203(1), and no vesting under that provision could have taken place in 1993 because the fee simple had already vested in the Council in 1989. There are, of course, other considerations which should be taken into account in considering the status of the mortgage. However, in view of the matters set out in paragraph 42 above, it is not appropriate that I make any finding as to that question and I do not do so. It is a matter which may be of some concern to the Council and to the bank.

182. Dr Opas expressed the concern of his client, who, with his wife, purchased the subject land in good faith and borrowed money from the bank, of which $48,000 is still owing, secured by the mortgage over the subject land. If the subject land is vested in the Council by virtue of section 203, Mr Calabro and Ms Giampa have lost their land, but, as set out in paragraph 43 above, they remain liable for the debt under the personal covenants in the mortgage. I am not without sympathy for that concern. In enacting section 203, Parliament has taken no account of the position of any person having an interest in any land which is, or by virtue of that legislation becomes, a public highway.

185. In his affidavit of 11 February 1999, Mr Montebello, solicitor for the Council, deposes that at no time prior to, during or after the Tribunal hearing did he, or anyone else on behalf of the Council, submit that the Council claimed title to the subject land. The Council's submissions, he indicated, consisted exclusively of informing the Tribunal as to the relevant law relating to the recognition of private land as a public highway at common law and as to the provisions of the LGA concerning the vesting of public highways in the council of the municipal district. I note that Dr Opas expressly accepted that that was the case.

188. However, a principal submission of Dr Opas is that is both defendants are estopped from claiming that the land has vested in the Council by virtue of:

the sealing by the Council or its predecessor in 1992 and 1994 of the second and third plans of subdivision (see paragraphs 9 and 11 above) which do not show the subject land as a road, and the later of which shows no roads as vesting in the Council;

the execution in 1993 by the Council's predecessor, the Wintles and Mr Connell of the section 173 agreement which recites the Wintles' ownership of the subject land (see paragraph 14 above);

the failure of the Council in an appeal before the Administrative Appeals Tribunal in 1992 to assert its title to the subject land;

the conduct of Mr Connell in not disputing the title of the Wintles or of Mr Calabro;

the purchase by Mr Connell from the Wintles in 1993 of the right of carriage way over the subject land.

197. There is no evidence before me, and it appears that there was no evidence before the Tribunal, that any of those matters was an inducement to Mr Calabro to purchase the subject land. There was no relevant legal relationship between Mr Calabro and either of the defendants whereby either of the defendants induced Mr Calabro to purchase the subject land. It is not suggested, and there is nothing before me to indicate, that when Mr Calabro and Ms Giampa purchased the subject land in 1995, either of the defendants was aware that the land had become a public highway and vested in the Council. For these reasons alone, I cannot find that any estoppel is established against either of the defendants.

200. In any case, a finding that the Council and Mr Connell were estopped from claiming that the subject land had vested in the Council would not affect the ownership of the subject land vis-à-vis any other person, such as a purchaser from Mr Calabro and Ms Giampa (see paragraph 15 above as to Mr Calabro's expressed intention to sell the subject land). The vesting of the subject land in the Council was effected by statute.

203. Sub-section 207D(1) of the LGA establishes machinery which, in certain specified circumstances, enables the registration at the Office of Titles of a transfer or other document giving effect to the vesting of land in a municipal council. The effect of the operation of that machinery is that the Register will show the effect of the vesting. However, section 207D(1) does not extend to a vesting by virtue of section 203 of the LGA, and there appears to be no machinery for amendment of the Register to show that a given public highway has vested in the Council under that provision.

206. If Parliament were to establish such machinery, it could, of course, be brought into operation only if some person was aware of the vesting. It appears that no-one was aware of the position relating to the subject land until November 1998, when submissions were made to the Tribunal on behalf of Mr Connell to the effect that it was a public highway and thus had vested in the Council.

209. The question then arises as to the effect of section 42 of the TLA, providing for indefeasibility of title, which reads so far as relevant:

42.(1) Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from Her Majesty or otherwise) which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except -

(2) Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to -

219. As to the application of section 42, Dr Opas relied on Horvath v Commonwealth Bank of Australia [1998] VSCA 51; [1999] 1 VR 643, in which the Court of Appeal held that the registration of a mortgage could not be set aside on the ground that the mortgage was void as against a minor by virtue of section 49(a) of the Supreme Court Act 1958. The two provisions, section 49(a) of the Supreme Court Act 1958 and section 42 of the TLA, dealt with different subjects, and section 49(a) did not impliedly repeal section 42. The three members of the Court of Appeal, Tadgell, Ormiston and JD Phillips JJA, considered at length the principles applicable to the consideration of two apparently inconsistent statutory provisions. Ormiston JA at 656 referred to a passage by Fullagar J in Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 275-276, more recently restated and approved in a judgment of Wilson, Dawson, Toohey and Gaudron JJ in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 171. Fullagar J had said:

The books contain, of course, plenty of examples of an implied repeal - total or partial - of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms . . .

. . . there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate.

224. Taking that principle into account in considering the relationship between section 42 of the TLA and section 203 of the LGA, it nevertheless seems to me that the later of the two provisions with which I am concerned, section 203 of the LGA, providing as it does for the vesting of land in fee simple without reference to section 42 of the TLA or any other provision of that Act, is inconsistent with section 42, deals effectively with the same subject matter, and must prevail over it. That being so, section 42 must be read as subject to any vesting effected by section 203. I do not wish to suggest that that is a satisfactory situation.

227. I have been assisted in my consideration of this question by an article by Pamela O'Connor of Monash University, drawn to my attention by Mr Finanzio, entitled "Public Rights and Overriding Statutes as Exceptions to Indefeasibility of Title", and published in (1994) 19 Melbourne University Law Review 649. The learned author considers two New South Wales cases on the effect of section 398 of the Local Government Act 1919. That section provided that where provision was made in a subdivision for a drainage reserve "the land so provided for a drainage reserve is hereby vested in the council in fee simple for drainage purposes", and no provision was made for registration of the effect of that vesting. The section is for present purposes identical with the former sub-section 203(2) of the LGA. The two decisions discussed by Ms O'Connor are not, of course, binding upon me, but are of considerable interest in the present context. I was not referred to any corresponding Victorian authority.

230. In Pratten v Warringah Shire Council [1969] 2 NSWR 161 Street J held that after the vesting in the council effected by the statute the registered proprietor no longer had the fee simple in the land, and was not able to transfer an interest in the land. Thus he found in effect that the unregistered interest of the council prevailed over any registered interest and, in the situation before him, the interest of the registered proprietor did not prevail. O'Connor at 665 suggests that that finding

appears to resurrect the general law principle nemo dat quod non habet ("One may not give what one does not have"), a doctrine generally considered to have no application to registered interests under the Torrens schemes. It plainly contradicts the accepted understanding of registration as an original and not a derivative source of title, a doctrine which carries the consequence that a purchaser may obtain a better title than the vendor had.

She cites the following passage from the judgment of Barwick CJ in Breskvar v Wall (1971) 126 CLR 376:

The Torrens system of registered title of which the [Real Property] Act is a form is not a system of registration of title but a system of title by registration. That which the Act describes is not the title which the registered proprietor formerly had, or which but for the registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.

237. Young J in Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 proposed, on the other hand, that section 398 might be said to create a fee simple interest in the council at the moment that the section first commenced to apply to the land, but that that unregistered interest was liable to be defeated by the subsequent registration of an inconsistent interest. As to that proposal, however, O'Connor comments at 667:

The interpretation proposed by Young J may be criticised as not promoting the probable intention of parliament to ensure that land required for drainage purposes be placed under the control of the municipality. Section 33 of the Interpretation Act 1987 (NSW) now directs the courts to prefer a construction that would promote the purpose or object of the Act to a construction that would not promote that [purpose or object].

In the event, Young J did not adopt that interpretation. While strongly critical of the decision in Pratten, he said at 60-61:

It is very difficult now to contend that the mainstream indefeasibility provisions, such as section 42 of the [Real Property Act 1900] operate to defeat the statutory right of the Council. It has been well recognised, both by the textwriters and by the authorities that, although it is the weakest point in the Torrens System, statutory and public rights will override an indefeasible title. . . .

It seems to me that, despite the very legitimate criticism that has been made by the textwriters . . . that provisions such as section 398 pose the greatest single threat to the operation of the Torrens System and make such substantial inroads into indefeasibility that it is impossible to rely on the register, I feel I must follow such a strong line of authority as holds that these statutory inroads do prevail over the "ordinary" indefeasibility provisions of the Real Property Act.

. . . where a choice is open on an ambiguous statute and courts have once taken a strong line on interpretation, it is not usually in the interests of justice for a single judge to branch out on his own and take a new path. Accordingly, despite the fact that the argument is an extremely attractive one to me, I do not think I should give final relief on the basis that Pratten's case was wrongly decided.

247. In the case before me, section 35 of the Interpretation of Legislation Act 1984 (Vic) is to the same effect as section 33 of the Interpretation Act 1987 (NSW). I have found that the subject land vested in the Council in 1989. Mr Calabro and Ms Giampa became registered as the proprietors of the subject land in 1995 by Transfer Number T974104C, which I have presumed to be a transfer from the Reynolds by direction of the Wintles (see paragraph 12 above). The Wintles were the registered proprietors of the subject land at the latest by 4 August 1992 (see paragraph 10 above) and possibly earlier, and the Reynolds became registered proprietors on 16 November 1993.

250. To find that the unregistered interest of the Council prevails, so that after 1 November 1989 neither the Wintles nor the Reynolds could have had a transferable interest in the subject land, is inconsistent with the essential indefeasibility of the Register, which is the purpose of section 42 of the TLA. On the other hand, to find that the unregistered interest of the Council was defeated by any of the transfers by which the Wintles, the Reynolds and then Mr Calabro and Ms Giampa successively became registered as proprietors is inconsistent with the presumed intention of section 203 of the LGA to ensure that public highways are owned by councils. Councils have a duty, in the public interest, to ensure that if a public highway is required for public traffic it is kept open for public use, and a power to carry out work on a public highway (section 205 of the LGA). Given that conflict of purpose, I fall back on the principle that the later provision prevails, on the basis set out in paragraph 54 above. Accordingly, I find that section 42 of the TLA does not affect the vesting of title to the subject land in the Council which was effected by the operation of the former section 203 of the LGA; and that that vesting meant that neither the registered proprietor as at 1 November 1989 (if not the Wintles) nor the Wintles nor the Reynolds had power to transfer the estate in fee simple in the subject land to Mr Calabro and Ms Giampa.

253. Dr Opas referred to section 187 of the LGA, which empowers a council to compulsorily acquire land and provides that the Land Acquisition and Compensation Act 1986 ("the Acquisition Act") applies to the LGA. Accordingly, he submitted, a person whose interest in land is acquired by the Council has a claim for compensation by virtue of section 30 of the Acquisition Act. However, the vesting of land in the Council by virtue of section 203 of the LGA is not an acquisition by the Council under section 187, and thus cannot be governed by the provisions of the Acquisition Act.

256. Finally, Dr Opas relied on the Universal Declaration of Human Rights, adopted in 1948 by the United Nations General Assembly. He drew attention to Article 17 of that Declaration, which provides that "No-one shall be arbitrarily deprived of his property" and submitted that section 203 of the LGA should be interpreted in accordance with this principle. As authority for this proposition, he relied on a passage from the judgment of Kirby J in Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 657 to the effect that where a statutory provision is ambiguous a Court "should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights." However, I find no ambiguity in the words of section 203 which would bring that principle into play.

260. As all of the appellant's submissions to the contrary have failed, I find, as set out in paragraph 41 above, that by virtue of the former section 203 of the LGA the subject land, being a public highway, vested in the Council on 1 November 1989, thus divesting the then registered proprietors of their estate in fee simple. Accordingly, it was not possible for Mr Calabro and Ms Giampa to acquire an estate in fee simple in the subject land in 1995. Accordingly I find no error of law in the decision of the Tribunal and the appeal against that decision is dismissed. Counsel may wish to make submissions as to costs.