Casson v Leichhardt Council

Land and Environment Court (NSW)|2011-12-06|Before: Biscoe J

INTRODUCTION 1The somewhat esoteric subject matter of this case, in large part, is whether a lane in Balmain is a public road owned by the local council by virtue of common law dedication prior to 1920; or, if not, is owned to its middle line by an adjoining owner under the middle line rule (ad medium filum viae, as one used to say); or owned by that adjoining owner by adverse possession. Someone must own the lane. 2The lane is 3.66 metres wide and about 28 metres long. It is a cul-de-sac. It runs in a general east-west direction. Its entrance is at the eastern end on Birchgrove Road. The lane gives the visual impression of being private property in that it is unnamed, gated, partly paved (not bitumened) and partly landscaped, and not fenced off from the houses on either side which have doors leading directly onto it. The title to the four properties abutting the lane are registered under the Real Property Act 1900. The title to the lane is not registered and it remains an old system title. 3The respondent, Leichhardt Council, proposes to dedicate the lane as a public road, without compensation, under s 16 of the Roads Act 1993. 4The applicant, Ms Judith Casson, owns and resides on the land adjoining one side of the lane and applies to the Court under s 17(2) for a declaration that the lane should not be dedicated as a public road. Such proceedings are within Class 3 of the Court's jurisdiction. 5Part 2 of the Roads Act is entitled "Opening of public roads". Division 1 of Part 2 is entitled "Methods of opening public roads". Division 2 of Part 2 is entitled "Resolution of doubts concerning status of public roads" and comprises ss 16 and 17, which provide: "16 Council may dedicate certain land as a public road (1) This section applies to land that is set aside for the purposes of a road left in a subdivision of land effected before 1 January 1907 (the date of commencement of the Local Government Act 1906) or in a plan of subdivision that was registered by the Registrar-General before 1 January 1920 (the date of commencement of the Local Government Act 1919). (2) The council of the local government area within which such land is situated may, by notice published in the Gazette, dedicate the land as a public road. (3) On the publication of the notice in the Gazette: (a) the land described in the declaration becomes free of all trusts, restrictions, dedications, reservations, obligations and interests, and (b) the land is dedicated as a public road. (4) No compensation is payable to any person with respect to any loss or damage arising from the operation of this section. (5) Land may not be dedicated as a public road under this section if the Land and Environment Court has made a declaration under section 17 to the effect that the land may not be so dedicated or if an application for such a declaration is pending before that Court. 17 Application to Land and Environment Court against proposed dedication (1) Before dedicating land as a public road under section 16, the council must cause at least 28 days' notice of its intention to do so to be served on the owner of the land. (2) During that period of 28 days, the owner of the land may, in accordance with rules of court, apply to the Land and Environment Court for a declaration that the land should not be dedicated as a public road. (3) The Land and Environment Court may make such decision as it thinks fit with respect to the application." 6"Public road" is defined in the Dictionary to the Roads Act as follows: "public road means: (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act." 7The council served the notice referred to in s 17(1) utilising the machinery provided for in s 254(3), which provides: "... any document that is authorised or required by or under this Act to be given to or served on the owner or occupier of land may be given or served by means of a letter addressed to the owner or occupier and affixed to some conspicuous part of the land." 8The council is the appropriate road authority and s 145(3) provides: "All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority." 9It is common ground that, subject to any s 17 declaration being made, the council is entitled to dedicate the lane under s 16 . That is because the lane is shown in the original old system subdivision, known as William McMillan's subdivision, of Lots 1 and 2 Section 38 of the Balmain Estate, being Roll Plan 558 (known as DP 111215). That subdivision was made in or about 1871. It is thus land set aside for the purposes of a road left in a subdivision of land effected before 1 January 1907: s 16(1). The council alternatively contends that at common law the lane was dedicated as a public road prior to 1920 and therefore it is already the owner of the lane by virtue of s 145(3). 10Under s 17(2) only the "owner of the land" may apply to the Court for a declaration. "Owner of land" is defined widely in the Dictionary to the Act as "any person who has an interest in the land". 11The following issues arise: (a)Is the applicant the "owner" of the lane within the meaning of the Roads Act so as to have standing to claim a declaration under s 17(2)? (b)If so, should the Court in its discretion make the declaration sought? 12The first issue (the ownership issue) involves the following sub-questions: (a)Did the lane become a public road at common law (as the council contends) by virtue of common law dedication prior to 1920? If so, it is owned by the council: s 145(3) Roads Ac t. (b)If not, is the applicant (as she contends) the owner of the lane adjoining her property to its middle line under the middle line rule? (c)Alternatively, is the applicant (as she contends) the owner of the lane under the principle of adverse possession? 13I have had the benefit of a view of the lane and its environs. 14In my opinion, the applicant is the owner of the lane adjoining her property to its middle line under the middle line rule, and I propose to exercise the Court's discretion under s 17(2) and declare that the lane should not be dedicated as a public road.

BACKGROUND 15As stated above at [9], the lane was shown in the original William McMillan's subdivision in 1871. More recent subdivisions excluded the lane. The destiny of the relevant adjoining lots in the original subdivision has been as follows: (a)Lot 5 adjoined the northern side of the lane and today is 4 Birchgrove Road (Lot 5 DP 627925), which is used as a private residence. The applicant purchased it in 1989. Its front and back doors both open onto the lane. (b)Lots 1, 2 and 3 adjoined the southern side of the lane. Today those parts of Lots 1 and 2 adjoining the lane are known as 2 Birchgrove Road (Lot 1 DP 770676), which is used as a private residence. Its side door opens onto the lane. (c)The balance of Lots 1 and 2 together with Lot 3 are today known as 415-417 Darling Street (Lot 1 DP 82923), which is located on the corner of Birchgrove Road. Since 1996 it has been used as a boarding house and retail shops. There is a fence between the rear of the original Lot 3 and the lane. (d)The lane terminated at the rear of Lot 4, which today is known as 427 Darling Street and (Lot 4 DP 111215) is used as a garden centre. There is a mesh gate between 427 Darling Street and the lane. 16James Ryan owned 4 Birchgrove Road from 1909 to 3 February 1925 when he sold it to Charles and Emily Chegwidden. On 3 February 1925 Mr Ryan wrote the following letter to them: "In consideration of your settling this matter I undertake and agree when called upon by you at my expense to remove the fence and gateway on the north eastern side of the lane 12 foot wide shown upon the above Certificate of Title such lane having been originally laid out as appurtenant to Lots 1, 2, 3, 4 and 5 Deposited Plan No 558. I also admit that such fence and gateway were originally erected by me to prevent nuisances and undesirable persons using the said lane." 17No building was erected on Lot 4 until 1929/30 according to a 2010 council report, which I accept. 18In 1936 deposited plan 82923 was registered. It effected a re-subdivision of Lot 3 and parts of Lots 1 and 2 of William McMillan's subdivision. In 1982 deposited plan 627925 was registered. Both plans show "gates" across the entrance to the lane at Birchgrove Road. The 1982 plan also shows gates across the boundary between the lane and 427 Darling Street, which it describes as a bike shop, and a garage at the rear of 4 Birchgrove Road abutting the lane. That garage is not there today. 19The weight of the evidence favours the conclusion that gates in one form or another have been across the entrance to the lane since at least some time between 1909 and 1925 when they were erected by the then owner of 4 Birchgrove Road, and have been maintained and sometimes replaced by the various owners of 4 Birchgrove Road. Evidence pointing to this conclusion includes the 1925 letter from Mr Ryan; DP 82923 registered in 1936 and DP 627925 registered in 1982, which both show gates; and the evidence of Mr Williams, Mr Gunning and Mr Hood that gates were there (and were replaced) at various times between the 1940's and the 1980's when the applicant purchased 4 Birchgrove Road with gates in place. I have taken into account the evidence of Mr Hamilton and Mr Large who could not recall gates being there when they moved into the area in the 1960's, the latter stating that if they were there they were left open. 20The land comprising Lots 1 and 2 in the original subdivision were used as a skating rink from 1888 to 1929, and as a manufacturing confectionery establishment from 1925 to 1929. It was then used for a time as a dance hall, and later as a cinema. The cinema was demolished in about 1959 and a service station erected, which was demolished in the 1990's. A boarding house and retail shops were opened in 1996. 21In 1949 the council approved the construction of a garage on and at the rear of 427 Darling Street to be used in connection with a plumbing business there. In 1973 the council granted development consent to use 427 Darling Street for the sale of trees, plants and garden equipment. The plan accompanying the development application shows a loading and unloading section at the rear of 427 Darling Street and access thereto via the lane from Birchgrove Road. A condition of the development consent requires that all loading and unloading in connection with the premises shall be carried out wholly within that property. The consent states that the approval is otherwise in accordance with the particulars and information set out and described in the development application. In fact, the rear section of 427 Darling Street has been structured such that today it cannot be used for loading and unloading from vehicles within that property. 22On 30 May 1984 the council received a letter from the then owners of 2 and 4 Birchgrove Road, Mr Watters and Mr Gunning. They complained that the use of the lane by heavy trucks serving the garden centre at 427 Darling Street had regularly damaged their houses, the entrance gates and the apron to Birchgrove road; caused the lane to subside; and broken up the pathway adjacent to No 4 in the lane. They requested the council to impose a load limit or, alternatively, sell the lane to those owners. 23This prompted an internal memo between council engineers dated 20 August 1984. A handwritten note thereon referred to the gate to Birchgrove Road and to "doubts as to public road status", and proposed perusing council files and engaging a Mr Higgins (a registered surveyor) if required. 24A letter of advice from Mr Higgins, registered surveyor, to the council dated 9 October 1984 records council's instructions to investigate the status of the lane. Mr Higgins advised the council as follows: "From investigation of Roll plan No 558 being the original Subdivision plan prepared in 1871, it would appear that it was the intention to create a laneway giving rear access to properties fronting Darling Street. Since that date more recent Subdivisions have occurred and all have excluded the laneway. Primary Application plans made either side namely DP 82923 and DP627925 show this laneway. There is evidence to indicate the laneway was blocked and not available to the public in 1936. Again, in 1982 gates are shown across the laneway and it is my opinion that the public have not had access to this laneway for many years and as such it is my opinion that it would not be Council's responsibility for the maintenance of the laneway. Being Old System land it is quite possible that should any adjoining property have proof they have occupied and used the lane for many years, there may be some claim as to ownership." 25On 17 October 1984 the council replied to the letter from Mr Watters and Mr Gunning as follows: "The Council is now in receipt of advice from a consultant surveyor who has carried out a search at the Registrar General's department in respect of the ownership of the land in question. Based on this advice and on the physical conditions evident on site, the land could not be considered to be public road and thus is not the responsibility of the Council. The land is Old System land and is a residue from an original subdivision which occurred in 1871. The surveyor has advised that, subject to proof of occupation and usage, there may be some claim to ownership by you and/or your neighbour." 26On 27 December 1984 Mr Watters wrote to the council complaining about trucks breaking up the footpath as they reversed into the lane. The letter acknowledged that the council may not have responsibility for the lane itself but expressed the opinion that the council was responsible for the footpath. 27Council internal notes in January 1985 noted a council officer's recommendation that the "owners" of the right of way be charged for the cost of a crossing but stated that the cost of collecting from the "owners" is likely to be high. The council notes recommended that the council continue to repair the crossing; noted that the crossing was used by 427 Darling Street for soil deliveries twice weekly and by 4 Birchgrove Road for car access to a garage; and stated that "ownership is indeterminate". 28In January 1989 the applicant completed her purchase of 4 Birchgrove Road from Mr and Mrs Hood. 29A pre-purchase inspection report obtained by the applicant in 1988 recorded that the wall of No 4 adjacent to the lane had been extensively cracked and had recently been underpinned and that this was brought about by the compaction of the soil adjacent to the footings by heavy vehicles using the lane. 30Before the applicant purchased her property, Mr Hood told her that the owners of No 4 had always maintained the gates across the lane and parked their car in the lane. He also told her that trucks supplying the garden centre at 427 Darling Street had driven up the lane causing damage to No 4; that he had shown a report of the damage to a proprietor of the garden centre and threatened legal action if the proprietors did not stop vehicles driving up the lane; that the proprietors stopped the trucks; and that the applicant had installed a lock on the gates and allowed the proprietors of 427 access only through the smaller gate. Since the applicant has owned No 4, no vans or trucks have driven up the lane. 31The front door of 4 Birchgrove Road opens from the hall directly onto the lane. Towards the end of the lane is the back door of No 4, which allows access to its back garden. The back door is used by the applicant's elderly parents as the entrance to their separate living area. Many years ago, before the applicant purchased No 4, it had an entrance facing Birchgrove Road, which was used by students attending there for music lessons. It ceased to be used for that purpose and ceased to be accessible from Birchgrove Road due to the construction of a brick front fence. It otherwise now appears to be inaccessible or difficult to access as a front entrance due to the location of rooms across the front of the house. 32When the applicant purchased her property, the surface of the lane was gravel and dirt with some pots and plantings along No 4's side of the lane; and there was a footpath to No 4's back door. The laneway got very wet when it rained. 332 Birchgrove Road has a frequently used side entrance to the lane, opposite No 4's main entrance. No 2 has a drainage/sewer access point on the pathway in the lane near its side entrance. 34When the applicant purchased 4 Birchgrove Road there were two gates, with a lock, across its entrance. The narrower of the gates had the appearance of a pedestrian access gate. She maintained the gates and replaced them in about 2008 with two equal sized gates without a lock, with the eventual agreement of the owners of No 2. 35At the end of the lane there is a tree on the southern side, which was there before the applicant purchased No 4. At the end of the lane, 427 Darling Street has paved a relatively small area where some of its garden supplies are sometimes stored, on the southern side opposite where No 4 puts its bins. Garden supplies are delivered to 427 Darling Street by trolley over the path through the lane, except that supply vans park in the entrance to the lane when the applicant's car is not parked there. 36The applicant has always parked her car in the lane just inside the gates, and close to the No 2 house so that she can get out of the door. The car occupies two thirds of the lane. It is possible to pass on foot by the car on the No 4 side, including with a trolley for delivery of supplies to the rear of the garden centre at 427 Darling Street. Until four years ago, the applicant worked full time, drove her car every day and parked her car in the lane overnight and at weekends. Since 2008 she has worked part time and her car remains in the lane during the day if she is not using it. When requested, she has moved her car to allow access to No 2 or to 427 Darling Street by tradespersons or, in the case of No 2, when they had guests. 37The current owners of 2 Birchgrove Road purchased it in 2001. After the purchase, the applicant told them that No 4 would be parking in the lane ; that she was not prepared to negotiate on that point; that she would like to continue the previous arrangement of Nos 2 and 4 maintaining the garden on their respective sides of the lane; and that she would move No 4 cars temporarily if No 2 needed access. It appears that for a few years after 2001 when the current owners of No 2 purchased that property, No 4 sometimes parked a second car in the lane projecting onto the pavement. This prevented the gates from being shut and made side access more difficult for No 2. There were several exchanges or altercations between the applicant and an owner of No 2 about the parking of two cars before that practice ceased. 38Before the applicant purchased 4 Birchgrove Road, her husband inspected the council file including council's letter of 17 October 1984: see [25] above. The letter gave him a lot of comfort. Before the purchase, he told his wife that he had inspected the council file. He recalled in evidence telling her on this occasion that there was a council letter on the file saying that the lane was not a public road and therefore not the responsibility of the council. Her recollection in evidence was that he said he saw a 1984 letter from the council on its file and that council appeared to have no interest in the lane. 39By letter dated 21 May 1991 to the council, the applicant, in objecting to a development application for a boarding house, unit and shops at 415-417 Darling Street, said that she understood the lane "is not public" and that: "I have seen a letter from Council to a previous owner where Council indicates that the lane is not public. When I bought No 4 I took great comfort from this letter, that people would not be able to drive up and down the lane and walk through it as if it was a public thoroughfare." 40This "letter from council to a previous owner" was the letter of 17 October 1984 to Mr Gunning and Mr Watters referred to above at [25]. I note that the applicant wrote, and I accept, that she took "great comfort" from this letter when she bought her property. So did her husband during his pre-purchase inspection on her behalf: see [38] above. The applicant's letter also said that for a long time, long before she bought 4 Birchgrove Road, the lane has had gates on it. 41On 12 December 1991 the applicant wrote to the council stating that since she wrote her objection to the proposed development of 415-417 Darling Street, she had considered her position in relation to the lane. She wrote: "It appears that this strip of land is enclosed within my land. As this strip of land was left in a private subdivision either the "ad medium filum rule" applies and I own the land, or it is still owned by the original subdivider (and successors in title) and it cannot be used without my consent or their consent." 42On 23 December 1991 the council replied by letter as follows: "Council records indicate that the lane does not form part of your title and ownership of the lane is vested with Council. Should you have evidence to the contrary this evidence should be made available to Council. This would enable Council to accurately review the ownership of the lane in relation to the development application (DA 133/91 - 415-417 Darling Street) currently being considered. A similar request has been made to the owner of 2 Birchgrove Road." 43The applicant's husband spoke to the author of that council letter and said he believed the lane was private. The council officer replied: "Council has no real interest in the lane. We'll leave it at that then." 44The applicant's husband was greatly comforted and passed on this information to the applicant. 45In 1993, pursuant to a 1991 arrangement between the applicant and the then owners of 2 Birchgrove Road, the lane was extensively landscaped. The applicant laid bricks across the width of the entrance where she parked her car and made a meandering brick pathway up the centre of the lane to the applicant's back door. In addition, the owners of 2 and 4 Birchgrove Road planted garden beds on their respective sides of the lane, which they have since maintained. The planting by No 2 has included several magnolia trees. The applicant has spent $12,000 - $15,000 in maintaining the lane since purchasing her property. No 2 has spent over $5,000 on garden maintenance of the lane. At the end of the lane and adjacent to No 4, the applicant has located a small storage shed, garbage bins and a compost bin. No 2 also places garbage bins on its side. 46In 1993, after the lane had been paved and landscaped by the owners of 4 and 2 Birchgrove Road, a proprietor of the garden centre at 427 Birchgrove Road remonstrated with the owners of 2 Birchgrove Road that it was unfair, that they all had equal access, and that her business would suffer considerably. That proprietor could not obtain a satisfactory answer from a council officer as to who owned the lane. The officer told her it was an equal access lane and did not appear to be owned by anyone. The proprietor arranged for supplies to the garden centre to be wheeled by trolley or wheelbarrow to the rear of the garden centre premises. Sometimes the suppliers would reverse their truck as far as possible into the lane. The then owners of 2 Birchgrove Road tried to restrict suppliers' vans from using the lane. 47On 7 September 1993 the council received a letter from the builders of the boarding house at 415 Darling Street recording that they had sought to connect to the Water Board sewer in the lane but were denied access by the residents of 4 Birchgrove Road. On 10 September 1993 the council replied to that letter as follows: "From investigation it would appear that the laneway is owned by Council. Investigation of roll plan No 558 being the original subdivision plan prepared in 1871, it would appear that it was the intention to create a laneway giving rear access to properties fronting Darling Street. Since that date more recent subdivisions have occurred and all have excluded the laneway. Primary application plans made either side, namely DP 82923 and DP 627925 show this laneway. There is evidence to indicate the laneway was blocked and not available to the public in 1936. Again, in 1982, gates are shown across the laneway. Being old system land it is quite possible that should any adjoining property have proof they have occupied and used the land for many years, they may have some claim as to ownership. In 1991, Council wrote to the owners No's 2 and 4 Birchgrove Road stating that if they had evidence disputing Council ownership then Council would consider this evidence and make an accurate review of the lane ownership. No further correspondence was received and the matter has rested unsettled until now, and therefore ownership of the lane would still be seen as being vested with Council." 48On 3 July 2001 the council wrote to a real estate agent referring to council's 1993 letter and stating: "The land in question appears to form part of an Old System sub-division. It has apparently been enclosed as an adjunct to private holdings for many years, and as advised by Council in the above letter, it appears that the private owner(s) may form a claim to ownership. Council's letter was not responded to at the time and the matter has remained unresolved. To accurately determine title to the subject land and any rights of access your client may have, it is recommended that a professional title search be undertaken." 49On 22 November 2001 the new owners of the garden centre at 427 Darling Street wrote to the council. They referred to the council's letter of 10 September 1993; stated that the lane was blocked and not available for public access to the rear of their property; and requested the council to take action to restore the lane to its proper use. 50On 25 January 2010 the owners of the garden centre at 427 Darling Street again wrote to the council. They stated that they occasionally used the lane to trolley goods for customers and that soil and pot deliveries are made there; stated that the neighbours at 4 Birchgrove Road had used it as a parking space and had gates across it; put that it was public land; and requested council to review the situation. They also noted that 4 Birchgrove Road had just erected a new gate. They enclosed an earlier sales advertising brochure for 427 Darling Street, which said it had a right of way to Birchgrove Road. 51On 10 May 2010 the council's solicitors wrote to the applicant requesting information within 28 days which might help them determine the status of the lane. On 28 May 2010 the applicant replied stating that she had always thought the land was private and that she would do her best to provide a full response within the stated time. She provided the full response by letter dated 7 June 2010 in which she stated that, in the circumstances, there would be a presumption that the lane is owned by the adjoining owners. Correspondence ensued between the solicitors for the parties. 52In December 2010 a council report concerning the lane summarised its history and those of surrounding properties along the lines set out earlier. The council report set out ss 16 and 17 of the Roads Act and continued as follows: "Application of the law to this problem The first leg of process is met by the original plan of subdivision showing the land as "lane" and is so identified on most maps of the area including Council's GIS. The next is to demonstrate public usage as there is no evidence that Council has ever maintained the land. Despite considerable efforts, no evidence has been found that the lane was used by the public prior to 1936 (being the date of the first DP indicating gates at the end of the lane). It is not known who erected the gates (the then owners of 427 Darling St or 4 Birchgrove Rd) and for what purpose or how long the gate remained in position after 1936. Given a person who was 10 in 1936 would be 84 now, its probably not surprising that no evidence of earlier use can be found. Several local residents state that there were no gates on the lane from about 1949 until about the late 1970s when the then owner of 4 Birchgrove Road constructed a two storey addition at the rear of that dwelling and erected a gate at the Birchgrove Road end of the lane. It appears that a gate has remained at that location since that time. One local recalls attending at the Kings Theatre which formerly occupied the site at the corner of Birchgrove Road and Darling street and using an exit through a rear side door to a small lane which connected with the lane in question providing access to Birchgrove Road." 53The report's "Conclusion" was as follows: "In summary: + The land between 2 and 4 Birchgrove Road is shown as a lane on all maps published since 1888; + Council has issued 2 development consents to 427 Darling requiring access for vehicles off Birchgrove Road and another consent for a garage at the rear of 4 Birchgrove Road all relying [on] the lane for access; + There are public services running down the lane requiring ongoing maintenance; and + The property owners have been in dispute about the status and use of the lane since at least the 1980s. In these circumstances it is appropriate that Council resolve the status of the lane by giving notice of an intention to dedicate the lane between 2 and 4 Birchgrove Road as a public road. On gazettal, council can erect no stopping signs to ensure that access to the rear of all three properties (427 Darling Street and 2 & 4 Birchgrove Road) is maintained." 54On 7 December 2010 the council resolved to give notice of intention to dedicate the lane as a public road. 55On 15 March 2011 the council gave the notice required by s 17 of the Roads Act to the "owner" of the lane by the s 254(3) mechanism of affixing the notice to a conspicuous part of the lane. Copies of the notice were forwarded to the owners of 2 and 4 Birchgrove Road and 427 Darling Street. 56In addition to references to use of the lane for "nuisances" and by "undesirable persons" in Mr Ryan's 1925 letter (see [16] above), affidavit evidence in the council's case indicates that there has been public use of the lane as follows: (a)in the 1940's and 1950's some patrons of the former cinema at 415-417 Darling Street used the lane to access Birchgrove Road when exiting a milk bar attached to the cinema; (b)Mr and Mrs Large and their daughter, who lived at 13 Birchgrove Road, used the lane from time to time as a shortcut to get to Darling Street from Birchgrove Road in the 1960's; (c)some customers of the garden centre at 427 Darling Street who lived in the vicinity used the lane as a shortcut to the garden centre. As stated earlier, it has also been used by the garden centre's suppliers. 57From time to time the applicant has applied for and been granted parking permits by the council, on the basis that she had a parking space (in the lane). This has never been queried by the council. 58The council has never maintained or undertaken any capital improvements to the lane.

DEDICATION AT COMMON LAW 59The council has served a statutory notice under s 17(1) of the Roads Act to become the proprietor of the lane by dedication: see [55] above. In the alternative, if not in contradiction to that position, the council now contends that the lane is already a public road by virtue of common law dedication prior to 1920. If that is so, title to the lane vested in the council in 1920 under the predecessor to s 145(3) of the Roads Act, s 232 of the Local Government Act 1919, and is now vested in the council by s 145(3) of the Roads Act. Any such title cannot be extinguished by either the middle line rule or by adverse possession: Weber v Ankin [2008] NSWSC 106, (2008) 13 BPR 25, 231 at [93] (White J). 60If the council already owns the lane by common law dedication, the applicant could not be an "owner" for the purposes of the Roads Act and therefore has no standing to bring these proceedings. 61At common law the making of a public road required the fulfilment of two conditions: the owner manifests an intention (a quasi offer) to dedicate the land as a public road, and acceptance by the public of the proffered dedication. These are questions of fact. Such acceptance is usually inferred by sufficient public user of the land as a road (ie as a passageway) or by a public body having authority to take it over on behalf of the public doing so (for example, expending money in forming or maintaining it). When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that the owner intended to dedicate it as a public road unless access is prevented by fencing or other action. In such a case, no great amount of public use as a road is necessary to make the dedication complete. See Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown [1960] HCA 62, 105 CLR 401 at 415, 420, 422, 423; Newington v Windeyer (1985) 3 NSWLR 555 at 558-559 (CA); Sanderson v Wollongong Council (1998) 102 LGERA 1 at 6-8 (Lloyd J); Tomark v Bellevue Crescent Pty Ltd [1999] NSWCA 347 at [52]; Lake Macquarie City Council v Luka [1999] NSWCA 447, 106 LGERA 94 at [25], [38], [42]; Shoalhaven v Director-General National Parks and Wildlife Service [2004] NSWCA 163 at [10] - [22]; Weber v Ankin at [45], [52], [56] - [70]; Butt, Land Law , (6 th ed 2010) at [2.43]. The public user "must be real user, repeated user by the public extending beyond occasional or casual use": Sutherland Shire Council v Registrar-General (1991) 72 LGRA 84 (Young J). 62The use necessary to evidence an acceptance of a proffered dedication of land as a road must be its public use as a road, ie as a passageway. In Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown at 415 Menzies J said that the public use of a road shown upon a plan of subdivision had to be a use "as a means of passage". Similarly, McTiernan J at 406 agreed with the reasons of the Full Court below, who said that the public use of the land must be use "as a road", as a "means of passage": Ex parte Permanent Trustee Co of New South Wales; Re Campbelltown Municipal Council (1959) 4 LGRA 186 at 188, 189. Similarly, Windeyer J in the High Court said at 423 (citations omitted): "It was not disputed that parts of St. George's Parade have for a long time been places of public resort, especially in summer. Many people go there to picnic and to swim in the river, and in parts tracks have been worn along the bank. But Mr. Bowen argued that that was not using the land as a road. Indeed, he said, the use of the river bank as a place for rest, recreation and loitering showed only that it was not being used as a road. That is so. And as was said in Batt v. Beaverton where the facts were not unlike those of this case - 'The use necessary to evidence an acceptance of a dedication must be a use by the public of the land as a road'. But, if there be evidence from which effectual dedication as a road can be inferred, its effect is not diminished because some people by loitering and dalliance on occasions obstruct the road. The evidence here of use of the land as a passageway is not strong..." 63It has been said that use by adjoining occupiers, their invitees and licensees will not suffice: Newington at 562-563; Tomark at [50]. Use by public utility providers of a road may be a factor which suggests that it is a public road, but that factor alone would not justify a finding of sufficient public use of the road: Sanderson at 8. It was said by Menzies J in Permanent Trustee at 415 that the public use of a road in a subdivision as a means of passage may be by "owners of land" in the subdivision, citing Attorney General v The City Bank of Sydney (1920) 20 SR (NSW) 216. With respect, I can see nothing in the latter case which addressed that point. In Tomak at [52] Stein JA treated the dicta of Menzies J as referable to "adjoining" land owners. Stein JA accepted at [50] that use by licensees and invitees did not suffice, citing Newington , but did not refer to "occupiers". If it is possible to reconcile Menzies J's dicta that use by "owners" of land in a subdivision may suffice with the Newington dicta that use by "occupiers" of adjacent land does not suffice, perhaps it is on the basis that such occupiers are not land owners. 64In the present case the lane was shown on the original 1871 subdivision plan and ran into a public road, Birchgrove Road. It is common ground that this was sufficient to give rise to the inference that the owner was proffering dedication of the lane as a public road. I will proceed on that basis. The issue is whether there was acceptance of the offer by public user of the lane as a road prior to 1920. 65It came to be settled in New South Wales that at common law a proffered dedication of land as a public road prior to the Local Government Act 1906 could be accepted by public use but only if such acceptance was before 1 January 1920. See Owen v O'Connor (1964) 4 LGRA 159 at 169, 170, 174-175; Newington at 558; Luka at 100; Weber v Ankin at [24]. The history which led to this result was recounted in those cases and may be summarised as follows. A consequence of common law dedication was that it irrevocably cast the burden of maintaining a public road on the municipality. Yet common law dedication did not require governmental approval. This was met by the Local Government Act 1906 which prohibited public roads being open except with the prior approval of the council and the initial construction of the road to a proper standard to the council's satisfaction. These provisions were more elaborated in the Local Government Act 1919 ss 237 and 323, which respectively commenced on 1 January 1920 and 1 July 1920, and, since 30 June 1993, in the Roads Act 1993 Part 2. 66Acceptance of dedication by public user prior to 1920 can be proved by acts after 1 January 1920 but only if they are acts from which inferences can be drawn as to conduct before that date: Weber v Ankin at [66], [67]. Evidence of public user during 1920 or soon afterwards would be presumptive evidence of earlier public user and hence of a dedication before 1920: Luka at [44]. 67In a pre-1920 common law dedication case such as this, decided about a century later, it is understandable that explicit direct evidence from witnesses is impossible since they must almost certainly be deceased. Recourse therefore must be had to any available legal presumption and documentary proof or inferences from documents. The available documentary evidence may be less probative than in other cases: Bellevue Crescent v Marland Holdings (1998) 43 NSWLR 364 at 372 per Young J (appealed in Tomark ). 68A council report of December 2010 admits that there was no dedication of the lane by user by the public before 1936, being the date that DP 82923 showed gates erected across the entrance to the lane. 69Nevertheless, the council now submits that there is evidence of pre-1920 public user of the lane to be inferred from the signed letter dated 3 February 1925 from James Ryan, the vendor of 4 Birchgrove Road who owned it from 1909 to 1925, to Charles and Emily Chegwidden, the purchasers of that property from him in 1925: see [16] above. It is convenient to repeat the contents of that letter: "In consideration of your settling this matter I undertake and agree when called upon by you at my expense to remove the fence and gateway on the north eastern side of the lane 12 foot wide shown upon the above Certificate of Title such lane having been originally laid out as appurtenant to Lots 1, 2, 3, 4 and 5 Deposited Plan No 558. I also admit that such fence and gateway were originally erected by me to prevent nuisances and undesirable persons using the said lane." 70The council submits that the last sentence of the letter supports an inference that members of the public - being the source of the "nuisances" and the "undesirable persons" - were using the lane during the time that Mr Ryan was the registered proprietor between 1909 and 1925; that to the extent that the letter refers to use after 1920, it is presumptive evidence of use before 1920 ( Luka at [44]); and that before Mr Ryan erected a fence and gateway, which could not have been earlier than 1909, the lane was open and available for use. 71This letter (read in context) is the sum total of the evidence in the council's pre-1920 acceptance case. Apart from what might be gleaned from the letter, there is no evidence relied on to show whether the public in fact used the unnamed lane before 1920. No building was erected on 4 Birchgrove Road until 1929/30: see [17] above. There is no evidence relied on to show whether residences or other buildings were erected on other adjoining lots prior to 1920. There is no evidence to suggest that the local council assumed any responsibility for the lane or treated it as a public road prior to 1920, or indeed thereafter. The factual context does not suggest that it was inevitable that the lane would have been used by the public, far from it. 72The letter is a slender column to support the weight of the applicant's submission. In my opinion, the letter does not evidence sufficient, if any, public user of the lane as a road, or passageway, prior to 1920. The letter does not say when the gate and fence were erected. It does not say that they were erected because of what had already occurred as distinct from what may have been apprehended or feared. If the former is assumed, it does not indicate whether what had already occurred was before or after 1920. It does not say whether the fence and gate replaced an earlier, less secure structure. The absence (if any) of a gate or fence or the like prior to 1920 supports a conclusion of intention to dedicate but does not of itself establish that the proffered dedication had been accepted by the public. The letter does not identify the "nuisances" and "undesirable persons". Those words suggest use of the lane not as a road but for loitering or casual antisocial activities, such as persons urinating in the lane after visiting a hotel. The letter does not identify the extent or duration of any use. In Luka at [44] it was said that evidence of public use during 1920 or "soon thereafter" would have been presumptive evidence of public use before 1920: see above at [66]. In the present case the letter was written five years later. If any inference of use prior to 1920 can be drawn from Mr Ryan's letter (which I do not accept), it is that undesirable persons were intruders casually loitering or being a nuisance there, not using it as a public road. 73In my opinion, the council has not discharged its onus of proving that the lane was dedicated as a public road at common law prior to 1 January 1920.

MIDDLE LINE RULE 74The applicant submits that she is the owner of the lane to its middle line under the middle line rule (sometimes still called the ad medium filum viae rule). 75The middle line rule is a rebuttable common law presumption, sometimes described as a rebuttable rule of construction, that a conveyance of land described as abutting a road passes the adjoining half of the road up to its middle line. The middle line presumption is rebuttable by unequivocal extrinsic evidence showing that the parties did not intend the title up to the middle line to pass. The middle line rule also applies to non-tidal waters (ad medium filum aquae). The middle line rule applies to dealings registered under the Real Property Act 1900: s 45A. See Butt, Land Law , 6th ed (2010), Lawbook Co, at [237], [238]; Butt, Ticehurst & Hughes, Woodman & Nettle: The Torrens System in NSW , 2nd ed at [45A.30 - 45A.280]; Ticehurst, Baalman and Wells, Land Titles Office Practice NSW , 5th ed, Lawbook Co, at [310.800]; Norton on Deeds , 2nd ed (1928) at 252-254. Section 45A of the Real Property Act provides: "45A Construction of dealings relating to land abutting on streams or roads (1) Except as in this section mentioned, the rebuttable rule of construction applicable to a conveyance of land therein indicated as abutting on a non-tidal stream or a road, that the land extends to the middle line of the stream or road, shall apply, and be deemed always to have applied to dealings registered under the provisions of this Act relating to land indicated in the dealings as so abutting. (2) The fact that an applicant to bring land abutting on a non-tidal stream or a road under the provisions of this Act has not expressly declared that the applicant was entitled to the bed or part of the bed of the stream or to the road or part thereof shall not, but the fact that the applicant had not a title to any part of the bed of the stream or to any part of the road shall prevent the application of the rule mentioned in subsection (1) to a folio of the Register evidencing title to the land or part of the land which was the subject of the application. (3) (Repealed)" Since the 1871 William McMillan subdivision, the various conveyances and registered dealings under the Real Property Ac t relating to the applicant's land at 4 Birchgrove Road in effect described it as adjoining the lane. 76Therefore, and I understand the parties to accept, there is a rebuttable presumption that the middle line rule operates in the present case. 77The council contends that the presumption is rebutted by the following evidence adduced by the applicant: (a)A letter to the council dated 30 May 1984 from Mr Gunning and Mr Watters, who were then the registered proprietors of 2 and 4 Birchgrove Road. They referred to the lane as a "right of way"; complained that heavy trucks using the lane to deliver nursery supplies to 427 Darling Street had damaged the lane; requested the council to impose a load limit; and alternatively requested the council to sell the lane to those owners. (b)A conversation before the applicant acquired 4 Birchgrove Road from Mr and Mrs Hood in January 1989, at which the applicant was present, between an unnamed real estate agent (for the vendors) and Mr Hood when the agent said, "The lane is not part of the property". 78For the council to rely on this contention, it has to accept as a fact that Mr Gunning and Mr Watters and Mr and Mrs Hood had title to the lane during their respective ownership of 4 and 2 Birchgrove Road. Prima facie, in my view, it is unlikely that those departing owners would have intended to retain title to the lane up to its middle line after otherwise transferring the remainder of their freehold interest in 2 and 4 Birchgrove Road to the new owners. The lane would be of no use to them. 79The council submits that the Gunning and Watters 30 May 1984 letter evidences that they did not believe they owned the lane. I take it that the council intends to submit that Mr and Mrs Gunning would have had the same belief when they later sold 4 Birchgrove Road to Mr and Mrs Hood in 1985, for that is the relevant time for present purposes. 80It is clear enough that when the 30 May 1984 letter was written the authors thought the council owned the lane. The middle line rule was unlikely to have been known to them. However, the subsequent letter of reply from the council to them dated 17 October 1984 set out at [25] above - before the sale to the Hoods - advised them that the lane was not a public road, that the council had no responsibility for it, and that as it was a residue from the original 1871 subdivision they may have a claim to ownership. It is probable, I think, that they would have accepted this at face value. That is confirmed in the case of Mr Watters by the letter which he subsequently wrote to the council on 27 December 1984, referred to at [26] above. The continuing refusal of the council to assume any responsibility for the lane would have been likely to fuel their acceptance. 81Thus, in my view, the council has not proved that Mr Gunning, at the relevant later time in February 1985 when he and his wife sold 4 Birchgrove Road to the Hoods, positively believed that the council or any other third party owned the lane, or positively believed that he and his wife did not own it or part of it. Further, in my view, the council has not proved, indeed there is no evidence, that at that time the Hoods or Mrs Gunning had any such belief. 82The council then submits that the 1988 statement by the Hoods' real estate agent in the presence of Mr Hood and the applicant that "The lane is not part of the property" evidences that Mr and Mrs Hood and the applicant believed, at the relevant later time of the January 1989 sale by the Hoods to the applicant, that the Hoods did not have title to any part of the lane, and that this is sufficient to rebut the presumption that the lane to its middle line passed to the applicant: Marquis of Salisbury v The Great Northern Railway Company (1858) 141 ER 69 at 84-86. 83In Marquis of Salisbury case there was a compulsory sale of two pieces of land to a railway company exercising its statutory powers. The conveyance referred only to those two pieces of land. A turnpike road lay between the two pieces of land . In fact, the vendor owned the turnpike road under the middle line rule. The railway company contended that the turnpike road passed to it with the conveyance of the two adjoining pieces of land by virtue of the middle line rule. The Court decided that it did not pass. The decision was on the grounds that before the conveyance both parties mistakenly believed that the turnpike road was owned by third parties (the turnpike trustees) and not the vendor (Marquis of Salisbury). The railway company's belief was evidenced by its plans and books of reference submitted to parliament, which treated the turnpike trustees as owners of the land. It was held that the conveyance of only those two pieces of land "exactly carries out that view of the case", and that all that was intended to pass was those two pieces: at 84-86. 84In my view, Marquis of Salisbury case is distinguishable. It was a case of positive belief by both parties that a particular third party owned the road. The statement by the Hoods' sales agent is explicable as a reference to his understanding that the lane was not included in the registered title to 4 Birchgrove Road. That is uncontroversial. It does not evidence a common belief of Mr and Mrs Hood and the applicant, or of the Hoods alone, that the lane or part of it was owned by the council (or anyone else). Mr Hood's response that this was where they parked their car is equivocal: it may suggest that he harboured a belief of a proprietorial entitlement to do so. In any event, the subsequent pre-sale inspection of the council file by the applicant's husband, including his inspection of the council's 17 October 1984 letter to Mr Gunning and Mr Watters, disabused the applicant and her husband of any notion that it was a public lane or that the council had any interest in it, and comforted them in that regard: see [38] - [41] above. Further, there is no evidence of Mrs Hood's relevant belief or intention. 85The council also puts forward the following two further matters as rebutting the middle line presumption: (a)The middle line rule is said not to sensibly accommodate access to the lane for 215-217 Darling Street and 247 Darling Street. In my view, the owners of 215-217 Darling Street have the same opportunity as the applicant to invoke the middle line rule. The owners of 247 Darling Street do not but that is because the rule does not extend to land at the end of the relevant road: roads generally terminate at someone's land. (b)The 1988 auction notice for 4 Birchgrove Road, prior to the applicant acquiring that property, referred to "Car access at side door". The council argues that this inferentially indicated an access way and not a property right for a car. In my view, the inference, if any, is weak and not a weighty consideration in the present context. 86In my opinion, the middle line presumption has not been rebutted. On that basis, I accept that the applicant is the owner of the lane adjacent to 4 Birchgrove Road to the middle line of the lane.

ADVERSE POSSESSION OR POSSESSORY TITLE 87Alternatively, the applicant claims that she acquired title to the lane, or to the middle line of the lane, by adverse possession or possessory title. 88A claimant to possessory title must establish two things. First actual possession, which is open, peaceful and adverse (not by consent of the true owner). Actual possession requires a sufficient degree of physical custody and control. Secondly, an intention to possess, meaning an intention to exclude the whole world from the land so far as is reasonably practicable and as far as the processes of the law will allow. Merely to use land for personal convenience with no intent to exclude all others is not enough. See Whittlesea City Council v Abbatangelo [2009] VSCA 188, 259 ALR 56 at [5] - [6]; Butt, Land Law , 6th ed, (2010) Lawbook Co at 901 ff; Ticehurst, Baalman & Wells, Land Titles Office Practice NSW , 5th ed (2001) Lawbook Co at [430.700 - 430.800]; Butt, Ticehurst & Hughes, Woodman & Nettle: The Torrens System in NSW , 2nd ed, 11013; Weber v Ankin (2008) NSWSC 106, (2008) 13 BPR 25, 231 at [96] - [101]; Simpson v Fergus (2000) 79 P. & C. R. 398 (CA). Under s 27(2) of the Limitation Act 1969 (NSW) the period of possession required to bar the title of persons to land is 12 years. Section 27(2) provides: "(2) Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims." 89The applicant's submission proceeds as follows: (a)under the Limitation Act the period of possession required to bar the title of persons to land is 12 years: s 27(2). Since the applicant has been in possession of the lane since December 1988, a period of about 22-23 years, she is entitled to claim adverse possession of the land as against any other person asserting ownership; (b)the applicant has always intended to possess the lane. That is said to be both subjectively and objectively apparent. She has maintained the gates at the entrance to the lane from Birchgrove Road for about 22-23 years; has upkept the lane by landscaping, paving and other works; and has exercised complete dominion over the use of the lane since about December 1988. Use of the lane has been at her control and discretion, and on arrangements acceptable and satisfactory to her and to her husband. That must follow because both the owners of the garden centre at 427 Darling Street and the owners of 2 Birchgrove Road have complained (and are in fact presently complaining) about the applicant's exercise of dominion over the use of the lane. It is the very fact of her exercise of dominion over the lane which appears to have triggered the council's issue of the notice under the Roads Act . Her exercise of dominion and control of the lane has been continuous during her entire period of ownership of 4 Birchgrove Road; (c)her possession has been open, not secret. The erection of the gates (such as to demonstrate the applicant's exercise of dominion over the lane) and the carrying out of landscaping and other works in the lane would be noticed by a documentary owner reasonably careful of his or her interests. Her exercise of dominion over the lane has been overt; (d)her possession has been peaceful, not by force. She has laid pavers, undertaken landscaping, maintained the gates and permitted intermittent use of the lane by individuals such as to show that her possession of the lane has been peaceful; and (e)her possession has been adverse, not by consent of the true owner, whoever that may be. 90I do not accept the submission. To establish that possession is adverse to the owner so that the statute of limitation commences to run, there must be both an appropriate degree of exclusive physical control of the lane and an intention to possess the lane to the exclusion of all others including the true owner. In my opinion, the evidence in this case does not rise to that level on either criterion. The extensive landscaping beyond the parking area on either side of the path, which meanders up the middle of the lane, was installed and has been maintained by the owners of 4 and 2 Birchgrove Road as to their respective sides of that path. The landscaping by the owners of No 2 on their side of the path includes the planting of several magnolia trees. Apart from the car parking, the owners of No 2 used the lane as freely as the owners of No 4, including to access their side entrance and for the use of their dogs. The owners, invitees and licensees of No 2 have had access to, and use, the lane by passing over the half adjacent to No 4 because No 4 parks its car over the half adjacent to No 2. The meandering path up the lane is in places to be more towards No 4 and in places more towards No 2. The lane has also been used by suppliers and some nearby customers of the garden centre at 427 Darling Street. 91In my opinion, on the evidence, the applicant's claim to title by adverse possession fails.

DISCRETION 92The applicant submits that the Court should exercise its discretion under s 17 and make a declaration that the land should not be dedicated as a public road. 93Section 17(3) of the Roads Act provides that, "The Land and Environment Court Act may make such decision as it thinks fit with respect to the application". Section 17(3) gives the Court a "wide" discretion and the Court is "not fettered by the terms of the section itself": Rebecca L Cooper Medical Research Foundation Ltd v Woollahra Municipal Council [2001] NSWLEC 220, 117 LGERA 68 at [38] (Talbot J). 94There is little authority on the exercise of the discretion. In Rebecca L Cooper Talbot J said in obiter that he would have been disinclined to exercise the discretion in light of the consequence that no compensation would be payable: at [42]. I do not think that that consequence can, of itself, be dispositive of the discretion issue in all cases, because that is the statutory consequence in all cases and would effectively negate the exercise of the discretion. However, in circumstances where the damage to the applicant by the dedication is sufficiently large, the consequence that no compensation is payable might either alone or in conjunction with other considerations be determinative of the exercise of the discretion in the applicant's favour. In Sanderson v Wollongong City Council (1998) 102 LGERA 1 at 9 Lloyd J viewed the following matters as relevant to the exercise of the Court's discretion: (a)The interests of the public and of local residents (at p 9). In that case, there was a clear public need for the use of the laneway as a pedestrian link which would be delivered by the dedication of the relevant road as a public road. Without the link, pedestrians wishing to travel between Keira Street and Caldwell Avenue would have to do so via a route which required an additional travel distance of about 560 metres; and (b)The existence of public utilities in the road. 95There are competing discretionary considerations. Discretionary considerations tending to weigh against a s 17 declaration, as submitted by the respondent, are as follows: (a)the lane was set aside as a lane in the original William McMillan's subdivision and the evidence shows it has been used by some members of the public since that time. (b)disputes have arisen between the applicant and her husband, on the one hand, and the owners of both 427 Darling Street and 2 Birchgrove Road concerning use of the lane. There is a public interest in the status of the lane being resolved and its use being regulated by the making of a dedication under s 16. I note that the main source of tension with the owners of 2 Birchgrove Road seem to have concerned the applicant parking in the lane. I do not see how such parking, over two thirds of the lane, including the whole of No 2's side, can lawfully continue (at least without the consent of all concerned) on the basis of my finding that that the applicant only owns the lane adjacent to 4 Darling Street to its middle line. The access dispute with the owners of 427 Darling Street may turn on whether they have a right of way of some sort over the lane, as they may well have. They are not parties to these proceedings, that issue is not before me and therefore I say no more about it. (c)the public interest in maintaining the lane as a public road is supported by the consideration that development applications in respect of both 427 Darling Street and 415-417 Darling Street have presupposed as a condition of consent the use of the lane for the purpose of gaining access to Birchgrove Road. I accept that the development consent for 427 Darling Street contemplated use of the rear of that property for loading and unloading within that property. In fact, the rear of that property has been so structured that vehicles cannot currently enter it from the lane even if they otherwise had access. The evidence does not establish that there was a condition of development consent for 415-417 Darling Street for access to the lane and in fact it is fenced off from the lane. (d)there is a sewage pipe that runs below the lane. The presence of public utilities in a laneway is a factor supporting the public interest in maintaining the laneway as a public road: Sanderson v Wollongong City Council (1998) 102 LGERA 1 at 9. (e)the applicant suffers no particular injustice if the lane is dedicated as a public road. The applicant did not believe she was acquiring title to the lane when she purchased the property. I do not think this is a particularly weighty consideration . The middle line rule is generally unlikely to be known to most people who benefit from it. (f)if the applicant does own the lane to the middle line, this gives rise to practical difficulties. It means she cannot continue to park in such a way as to cross the middle line of the road or to landscape any part of the lane in a manner that crosses that line; nor does she have an entitlement to fence off the entirety of the entrance to the lane with gates. These difficulties are avoided if the lane vests in the Council by reason of a dedication made under s 16. I accept that these may be regarded as difficulties by the applicant but they are simply consequences of the application of the middle line rule, which she has invoked. (g)the competing contentions of the parties demonstrate some uncertainty as to the present ownership of the lane. On one view, the lane forms part of the undisposed of residue of William McMillan's estate. That is an unsatisfactory situation. The purpose of s 16, as the heading to Div 2 of Pt 2 of the Roads Act states, is to resolve doubts as to the status of certain roads: Ensile Pty Ltd v Wollongong City Council (1994) 83 LGERA 289 at 292-293. That purpose is served by permitting a statutory dedication to take place in this case. I do not consider that this submission can stand consistently with my decision that the middle line rule applies to vest in the applicant ownership of the lane adjacent to No 4 to its middle line. 96Discretionary considerations tending to favour a s 17(2) declaration, as submitted by the applicant, are as follows: (a)the interests of the public and local residents, including the applicant, outweigh the desire of the owners of 427 Darling Street to use the lane. It is convenient but not necessary for those owners to use the lane in that, unlike the situation in Sanderson , it would not become landlocked. I would add that 427 Darling Street may well have a right of way of some sort over the land; (b)the applicant's proprietary right would be extinguished by what would effectively be a resumption without compensation after 22 or 23 years of upkeep, maintenance and possession of the lane (or more than half of it); (c)the uncontradicted evidence of Mr Brogan, an expert traffic planner, is that the lane is not suitable for use as a public road for the following reasons: (i)The width of the laneway is such that vehicles cannot turn around within the laneway and hence cannot enter and depart the laneway in a forward direction. (ii)The land is only 3.66 metres in width, which is inadequate to safely accommodate shared pedestrian and vehicular activity. A light vehicle has a width of about 2.24 metres including side mirror overhang. A pedestrian would be left with only about 700 millimetres on either side. In his opinion, clearances of at least one metre would be required on both sides. (iii)Existing vegetation and other fixtures located within the laneway means that there is inadequate width to accommodate vehicular movement. (iv)Use of the land for the movement of vehicles would have a detrimental impact on the amenity of residents and visitors of 2 and No 4 Birchgrove Road. In my view, there is force in those points if vehicles were to have access to the lane. I note that when trucks used the lane in the past they caused damage to the houses on Nos 4, and 2 and to the lane: see [22], [30] above. It is open to the council to prohibit vehicular movement in the lane but it has not committed to do so. (d)the evidence does not establish that the presence of any public utility infrastructure is prejudiced or compromised by private ownership of the lane. There may be statutory means for the provider to access their infrastructure in any event, or to procure legal rights to do so. (e)there has been unexplained delay by the council. The council has received representations from only one or two owners regarding the lane over many years, principally from the owners of 427 Darling Street (see, for example, the council's 2010 report). Yet the council took no action (including in response to the 22 November 2001 letter from an owner of 427 Darling Street to the council requesting assistance); (f)prejudice to the applicant. She has spent considerable money on, and has upkept, the lane by laying pavers and undertaking landscaping and other works. The council has never undertaken any capital or maintenance works in the lane, as confirmed by council's December 2010 report. This may be compared with Rebecca L Cooper where the Court declined to allow a road to be dedicated as a public road despite the council having performed capital works on the road in the past. That no compensation would be payable to the applicant under the s 16 route, is a strong factor weighing against the council being permitted to dedicate it as a public road under s 16; (g)council's previous advice. In October 1984 the council advised the then owners of 2 and 4 Birchgrove Road that the lane was not a public road and not the responsibility of council; and that advice was relied upon four years later by the applicant and her husband when she purchased No 4: see [38] - 40] above. The council should not be able to effectively walk away from that advice to the detriment of the applicant without compensation. (h)balance of convenience. The amenity and safety of 2 and 4 Birchgrove Road would be significantly affected if the lane were to be dedicated as a public road. Both frequently access their residences via the lane. There has been controlled access to the lane in their favour for many years. Loading and unloading to 427 Darling Street could take place safely and conveniently outside that address on Darling Street, where the council could create a loading zone. If the council granted development consent for 427 Darling Street on the assumption that the lane was available without regard to ownership of 4 Birchgrove Road, it was mistaken. The terms of the current development consent for 427 Darling Street, which require loading and unloading within the premises, cannot be complied with at the moment because of the structures within it. 97In my opinion, the discretionary considerations favouring exercise of the discretion to make a s 17(2) declaration outweigh, by some margin, those weighing against exercise of the discretion. I therefore propose to exercise the Court's discretion by making the declaration sought.

ORDERS 98The orders of the Court are as follows: 1.Declaration that the lane located between 2 Birchgrove Road, Balmain and 4 Birchgrove Road, Balmain should not be dedicated as a public road. 2.The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2012

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