City of Keilor v O'Donohue

City of Keilor v O'Donohue - [1971] HCA 77 - HCA 1971 case summary — Zoe

[51]

From the beginning of the Colony of New South Wales the Governors had had authority to make grants of land. Governor Phillip's instructions from the Sovereign, dated 25th April 1787, empowered him to do so "reserving only to us such timber as may be growing or to grow thereafter upon the said land which may be fit for naval purposes". Phillip exercised this authority from time to time: see Historical Records of Australia, series I, vol. 1, pp. 14, 124, 307, 310. Later grants were made with a right reserved by the Crown to take from the land granted timber, sand, clay, gravel and other natural produce required for public purposes: see Campbell v. Dent [1] . A provision of that kind was considered by Smith J. in Bayview Properties Pty. Ltd. v. Attorney-General (Vict.) [1] to be in the nature of a profit à prendre. That case was referred to in the argument before us: but it has no direct bearing on the present problem. A right to sever and take from land things that until severed are part of the freehold is different from a condition of a grant, expressed as a reservation, enabling the resumption of part of the land itself for a specified purpose such as a road. As I have said, reservations for roads began in the time of Governor Macquarie. To advance his policy of providing roads for the Colony he had a new clause inserted in all grants of land. It ran: "and saving and reserving to Government the Right of making a Public Road through such part of the said land as may at any time be required": see Historical Records of Australia, series I, vol. 7, p. 626. This example was followed after Macquarie's time. The form was progressively elaborated, but without any change in the essential character of the right it reserved to the Crown as against the grantee of the land. What was the nature of that right? At one time there was much discussion of it in terms of the distinction between an exception and a reservation. Insisting that each of those terms should keep its proper place has some appeal for those who like to find their law in Coke on Littleton or Shepherd's Touchstone. But since the judgments in Lord v. Commissioners for the City of Sydney [2] , on appeal from the Supreme Court of New South Wales [3] ; and in Cooper v. Stuart in the Privy Council, [4] and in the Supreme Court [5] , it has little weight in cases such as this. Those authorities establish that the reservation of so much of the land granted to Main as might thereafter be required for making public ways was not an exception repugnant to the grant. It was a valid provision. Lord Watson said in the last-mentioned case [6] that "it looks to the future, and possibly to a remote future. It might never come into operation, and when put in force it takes effect in defeasance of the estate previously granted, but not as an exception". It was "retaining the right to resume such parts as may be found necessary for the uses of an increased population" [7] . A reservation of that kind differs from a so-called reservation of a specified area of land. Such a reserve, if it be sufficiently described and defined, is in truth an exception. It does not pass by the grant. In Neild v. Davidson [8] , a case of that kind, Darley C.J. said [1] : "It is called a reservation, but that does not make it less an exception. This exception operates immediately, and the subject matter of it never did pass to the grantee." Attorney-General (N.S.W.) v. Dickson [2] is another illustration. The two kinds of reservations were contrasted by A. H. Simpson C.J. in Eq. in McGrath v. Williams [3] . The reservation in the grant to Main was of the former kind. He got a good title to the whole square mile the subject of the grant, but defeasible as to such parts and so much as the Crown might thereafter require and resume for a road. The way in which the Crown's right of resumption for a road was exerciseable was as stated in the deed. The road was to be "set out by Our Governor for the time being of Our said Territory, or some Person by Him authorised in that respect." The phrase "set out" in relation to roads and highways was well known in 1846. For example, it had been so used in England in the Inclosure (Consolidation) Act, 1801, ss. 8 and 9 and in the Inclosure Act, 1845, s. 62. A road is ordinarily set out by something done on the land to indicate its course and dimensions. To show it on a map may not suffice: Metropolitan Bank Ltd. v. Camberwell Corporation [4] ; Brunswick Corporation v. Baker [5] ; and see Snushall v. Kaikoura County Council [6] and Wellington City Corporation v. McRea [7] . But whether a road was set out by the Crown is a question of fact and an official notification and record such as a statement in the Gazette or the publication of a duly authorized map is conclusive of that fact: see generally as to maps as evidence of the existence and due dedication of highways, Pratt and Mackenzie, Law of Highways, 20th ed., p. 46.

[54]

Again, in Cooper v. Stuart [2] , the Privy Council held that a reservation of this kind did not prevent the land comprised in the grant from vesting in the grantee, but merely preserved a right to the Crown to resume the land so reserved; the land, therefore, went to the grantee subject to a defeasance whenever the Crown should think fit to resume. Thirdly, a public right of way is not, properly called, an easement. For a true easement to exist there must be a dominant as well as a servient tenement. Lord Cairns emphasized this in Rangeley v. Midland Railway Co. [3] . However, as Scrutton L.J. observed, "it is undoubted that Parliament and parlimentary draftsmen have used the term "easement" in relation to various rights which no lawyer would ordinarily describe as easements": Taff Vale Railway Co. v. Cardiff Railway Co. [4] We need not be pedantically fastidious about the word, for the right of the public to pass and repass along a highway is certainly in the nature of an easement. But the suggestion that the effect of the common reservation in a Crown grant was simply to enable the Crown to create such a right over private land cannot be sustained. A highway is created by dedication by the proprietor of land of a right of way over a particular stretch of his land and its acceptance by the public. At common law the land then remains in private ownership but subject to the public right of passage. Similarly the Crown can dedicate Crown land as a highway: Rapley v. Martin [5] ; Turner v. Walsh [6] . Dedication may be evidenced in various ways, as Griffith C.J. mentioned in Miller v. McKeon [7] ; and see Permanent Trustee Co. of N.S.W. Ltd. v. Campbelltown Corporation [8] . But to treat the reservation in the grant to Main as empowering the Crown to require the landowner, the grantee or his successor, to dedicate a highway over his land, is to distort the language of the deed. What it actually does is to empower the Crown to resume land to make a highway of it by dedication. 1. (1864) 1 W.W. & a'B. (L.) 145. 2. (1889) 10 L.R. (N.S.W.) Eq. 218, at p. 221. 3. (1889) 14 App. Cas. 286; 10 L.R. (N.S.W.) Eq. 172. 4. (1868) 3 Ch. App. 306, at p. 310. 5. [1917] 1 Ch. 299, at p. 317. 6. (1865) 4 S.C.R. (N.S.W.) 173. 7. (1881) 6 App. Cas. 636. 8. (1905) 3 C.L.R. 50, at p. 59. 9. (1960) 105 C.L.R. 401; 6 L.G.R.A. 340.

[59]

The Governor may from time to time by a notice in the Government Gazette proclaim as a street or road or as a town or village any portion or portions of Crown lands, and the lands in such town or village shall be sold by auction in the manner herein provided for the sale of Crown lands by public auction, and the lands upon which such street or road shall have been proclaimed shall be and be deemed to be thenceforward dedicated to the public. In 1877, the Governor of Victoria issued a proclamation which, after reciting the power created by the above-mentioned provision of the Land Act 1869, ran: Now therefore I, the Governor of Victoria, with the advice of the Executive Council, do by this notice proclaim as roads the portions of Crown lands in the several parishes mentioned in the List hereto, annexed, such roads being delineated and shown by pink tint on plans which are deposited at the Crown Lands Office, at Melbourne, and bear date as having been laid before the Governor in Council on the eighth day of October, 1877. The plan for the Parish of Doutta Galla showed a proclaimed road running due west from Essendon. It crossed Main's grant along its southern boundary, that is on the general line of the part of Buckley Street now in question. It is not identical, however, with the present street in the Council's scheme, because as depicted it did not run due west as Buckley Street now runs. It at one point bore north-west for a short distance to a place where it crossed a watercourse, called on the map tendered Steel Creek, and then turned south-west to resume its westerly direction. Buckley Street does not turn in this way. It runs straight, crossing the creek at a point about a hundred yards south of the crossing-place of the road shown in the 1877 proclamation. The part of Buckley Street that is subject to the scheme is, by reason of this straightening, some fifty yards shorter than the corresponding part of the proclaimed road. Apart from this variation in its direction, Buckley Street does not correspond exactly in width or in location with the proclaimed road as depicted on the map in 1877. The proclaimed road is shown as wholly on the southern edge of Main's grant, portion 12, whereas only half the width of Buckley Street is there, the other half being on the northern edge of Aitken's grant, portion 8. Despite these minor variations, which topography and survey reveal, I think that Buckley Street, where it runs across Main's grant so far as Hampton Road, must be taken to be in fact the same road as that which the Governor proclaimed in 1877.

[65]

The working of s. 575 (3) is not beyond criticism and debate, as this case has shown: but its purpose and effect are clear enough. It is an evidentiary subdivision making a plan of subdivision of private property on which roads and streets are shown evidence that these were "set out" there and thus fall within the definition of private street in sub-s. (1). A plan of the kind described suffices for that and obviates any need to prove a setting out upon the ground. But this is only so if the street be shown as "made or laid out on land comprised in the plan". That imports that it was shown as being part of land which was the property of the proprietor who had caused the plan of subdivision to be made to show land of his divided into separate parts, allotments, with roads and streets made or laid out on that land. If a road or street was already a highway vested in the Crown it was not land which could be comprised in a plan of subdivision of a private landowner's land. It might have to be shown on his plan if the land comprised in the plan abutted on it. Section 569A (1) (b) makes that clear. But showing a road in that way does not make it private property. A plan of subdivision is not a document of title; and it does not become so by being sealed by a council or lodged with the Office of Titles. No legend or lines or colouring on it can require land which is not private property to be deemed to be private property. The colouring on the plans tendered indicates what was called the "title boundary", being the original common boundary of portions 12 and 8. It may be that the draftsmen and colourists of the plans were not aware of the status of Buckley Street and supposed it to belong to the neighbouring proprietors ad medium filum. If so they were mistaken; for as to approximately half its width, the north side of it, as delineated in the scheme, it belonged to the Crown as a proclaimed road. It was not land which could have been lawfully comprised in a plan of subdivision. I therefore reject the appellant's proposition based on s. 575 (3). I appreciate that the part of Buckley Street which the scheme covers does not conform throughout with the route of the proclaimed road. But the question is not whether the scheme could have been good as to part of the length and half the width of the proposed work. That would have been a different scheme. The question is, was this scheme rightly quashed? I think that it was and that the Magistrate and Crockett J. came to the right decision.

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