HEARING DATE: 8 - 10, 14 - 17, 21, 22 February and 4 April 2012

Highways - Creation and extinction of highways - Dedication - What constitutes dedication - In general - Common law principles - Intention to dedicate - Rebuttal of the presumption of dedication that arises from user.

President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846, followed.

Highways - Construction, maintenance and repair - Roads -Whether road maintained as shown on municipal map.

Local Government (Highways) Act 1982 (Tas), s21.

Local Government Act 1993 (Tas), s208.

Judgment Number: [2012] TASSC 26

CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN and

RALPH DESMOND TAPPING and BEVERLEY ANNE TAPPING

ANDREW JOHN McCORMACK and CHRISTINE LYNETTE McCORMACK

1 At issue in these proceedings is whether Marsh Street, Opossum Bay is a highway and whether it is maintainable by the plaintiff, pursuant to the Local Government (Highways) Act 1982. The plaintiff seeks declarations that it is not, and the firstnamed defendant, Darryl Howlin, seeks declarations to the opposite effect. It is the plaintiff that bears the burden of establishing the negative of the key issues in question, that is, whether Marsh Street has been dedicated as a highway and whether Marsh Street is maintainable by the plaintiff. Throughout, I have been conscious of the need to keep in mind that, regardless of whether an issue that the plaintiff must establish requires a positive or a negative finding, the burden of proof is on the plaintiff. The standard of proof is on the balance of probabilities; the Evidence Act 2001, s140, and more generally see Carney v Newton [2006] TASSC 4, [51].

2 The significance of the status of Marsh Street is that it is the access to land owned by Mr Howlin and his former wife, which he seeks to subdivide. The several subdivision proposals that he has put forward have involved up to 35 blocks. If, as the plaintiff contends, Marsh Street is not a highway and the Howlin land's right of access over Marsh Street is pursuant to a right of carriageway, it cannot be subdivided because it does not have a road frontage as is required for a subdivision. See the Local Government (Building and Miscellaneous Provisions) Act 1993, s109, and R v West Tamar Council; ex parte Phillips [1999] TASSC 107.

3 My decision in these proceedings is one of many that have dealt with disputes linked to Marsh Street and Mr Howlin's endeavours to subdivide the land mentioned. Earlier decisions include: Howlin v Brinkman [2007] TASSC 59, Howlin v Brinkman (No 2) [2007] TASSC 100; (2007) 17 Tas R 99, Howlin v Resource Management and Planning Appeal Tribunal (2009) 18 Tas R 323, Howlin v Brinkman [2009] TASSC 18, Howlin v Resource Management and Planning Appeal Tribunal (No 2) (2009) 18 Tas R 397, Clarence City Council v Howlin [2010] TASFC 2, and Clarence City Council v Howlin (No 2) [2010] TASFC 10.

4 The issues before me relate to events that date back to the middle of the last century. During the relevant period Opossum Bay has been subject to local government by the plaintiff, the Clarence City Council, or its predecessors. In these reasons, I will refer to the plaintiff or a predecessor of the plaintiff responsible for the local government of Opossum Bay at the relevant time as the Council. As Mr Howlin is the only one of the named defendants who has actively opposed the Council's application for the declarations it seeks, I will refer to him as the defendant.

5 The genesis for what is now known as Marsh Street is a tracing of a proposed subdivision of land owned by Thomas George Charles Brown at Opossum Bay. The tracing was prepared by Redvers Allan Terry, a licensed surveyor. A copy of it is attachment A. Mr Terry forwarded it to the Council under cover of a letter dated 6 November 1944 in which he wrote:

"Herewith a tracing of a proposed Subdn at Opossum Bay for T G C Brown Esq for approval please. When pegged final plan will be forwarded for stamping. The requirements of not less than 5000 sq ft will be provided and any drainage easements shown if necessary."

6 That tracing was considered by a meeting of the Council on 9 November 1944. The minutes of that meeting record that the "plan be approved subject to roadway being constructed to satisfaction of Council by Mr T G Brown". Mr Terry was so advised in a letter in the following terms from the Council dated 10 November 1944:

"Your tracing of proposed Subdivision was approved at the Council Meeting held on 9th instant subject to Mr Brown constructing the road to the satisfaction of the Council."

7 Mr Terry prepared a survey diagram dated 23 February 1945 which reflects the tracing. That diagram was lodged with the Recorder of Titles on 26 September 1945. The reference number then given to it was 167/34. Attachment B is a copy of the diagram, together with some additions that have since been made to it. The additions include:

•

The name of the road to the west of the plan, "Spitfarm Road". I added this name and have also added "Lot A" and "Lot B" to identify and distinguish between the two lots that make up the area of the proposed roadway.

•

A number of handwritten additions, including the names of the purchasers of Lots 1 to 9 in the Brown subdivision, together with references to the relevant transfers, have presumably been added by employees at the Recorder of Titles Office.

•

"Lot 10" has been added by me to identify the land to the south and east of Lots 6 to 9.

•

"Howlin land" has been added by me to identify the land at the eastern end of the proposed roadway that was transferred to the defendant and his then wife in 1999.

8 The land which has since become known as Marsh Street is that described on the diagram as "Proposed Roadway". The diagram, as prepared by Mr Terry, included a note that T G C Brown was the owner of Lot A of the proposed roadway. A similar entry appears on the tracing. In fact, at the relevant time Mr Brown did not own Lot A, although he did own Lot B. Lot A was not transferred to Mr Brown until 21 March 1946. The title to that lot issued to him on 8 July 1946.

The creation of a highway by dedication and acceptance

9 The Council contends that Marsh Street has never been dedicated to be a highway. The defendant contends that it has been so dedicated and that this occurred in 1944 or some time thereafter.

10 Both dedication by the owner of land for its use as a highway and use by the public of that land as a highway must occur to create a highway otherwise than by statute, Cubitt v Lady Caroline Maxse (1873) LR 8 CP 704 at 714 and 715 and A-G v Biphosphated Guano Co (1879) 11 Ch D 327 at 340. An intention to dedicate a proposed highway may be insufficient in itself to constitute a dedication if the proposal is abandoned before the highway is built: Healey v Corporation of Batley (1875) LR 19 Eq 375 at 385 to 387 and Tottenham Urban Council v Rowley [1912] 2 Ch 633 at 642 and 643.

11 It is convenient to go to the law as enunciated in Halsbury's Laws of England, 2nd ed, Vol 16, 1935 for relevant common law principles on the dedication of land as a highway. This edition of Halsbury was current in 1944. The following passages, with citations omitted, are taken from it:

"212 A 'highway' is a way over which all members of the public are entitled to pass and repass; and, conversely, every piece of land which is subject to such public right of passage is a highway or part of a highway. ...

258 Land dedicated by a person legally competent to do so to the public for the purposes of passage becomes a highway when accepted for such purposes by the public; but whether in any particular case there has been a dedication and acceptance is a question of fact and not of law.

259 Dedication necessarily presupposes an intention to dedicate - there must be animus dedicandi. The intention may be openly expressed in words or writing, but, as a rule, it is a matter of inference; and it is for a Court or jury to say whether such intention is to be inferred from the evidence as to the acts and behaviour of the landowner when viewed in the light of all the surrounding circumstances.

260 Acceptance by the public requires no formal act of adoption by any persons or authority_,_ but is to be inferred from public user of the way in question. Even if an express intention to dedicate is proved, it is necessary to prove also that the way has been in fact thrown open to the public and used by them_._

The evidence from which Courts or juries are asked to infer both dedication and acceptance is, as a rule, open and unobstructed user by the public for a substantial time.

261 An intention to dedicate land as a highway can only be inferred against a person who was at the material time in a position to make an effective dedication - that is, as a rule, a person who is absolute owner in fee simple and sui juris. When, however, a primâ facie case is proved of an intention to dedicate, express or implied, it lies upon the defendant to show that the state of the title to the land is or was such as to render any such intention inoperative.

271 [T]here is no fixed minimum period [of user] which must be proved in order to justify an inference of dedication, and no fixed maximum period which compels such an inference."

12 For the purposes of the issue before me, it is important to keep in mind that the conflicting declarations sought by the plaintiff and the defendant relate to whether Marsh Street is a highway. The law that governs the creation of highways is not the same law as that which governs private easements such as rights of way. As observed by Lord Cairns LJ in Rangeley v Midland Railway Company (1868) LR 3 Ch App 306 at 310 - 311:

"There can be no easement properly so called unless there be both a servient and a dominant tenement. ... There can be no such thing according to our law, or according to the civil law, as what I may term an easement in gross. An easement must be connected with a dominant tenement. In truth, a public road or highway is not an easement, it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing, the public generally taking upon themselves (through the parochial authorities or otherwise) the obligation of repairing it. It is quite clear that that is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement."

13 Highways and the like were the subject of a considerable quantity of legislation in this jurisdiction in the 19th century. That legislation included the following Acts and amendments thereto:

•

Cross and Bye Roads Act 1816

•

Cross and Bye Roads Act 1870

•

Main Roads Act 1880

•

Main Roads and Bridges Construction Act 1881

•

Branch Roads Construction Act 1881

•

Roads and Maintenance Act 1881

•

Roads Act 1884, 1885, 1890, 1899 and 1900.

14 I have found nothing in this legislation that relevantly impinges on the common law as to dedicating land as a highway. It did impinge on a principle of the English common law that the inhabitants of parishes were subject to a duty to repair highways. No such principle ever applied in this jurisdiction, City of Hobart v Chen [1966] Tas SR 271. In Tasmania parishes never existed for any other purpose than for the description and registration of land. The repair of roads was first undertaken in this jurisdiction as part of the convict administration, then by road district trusts in various settled areas, and thereafter by various municipal councils, Chen at 276 to 277.

15 The Local Government Act 1906, s205(10), empowered the Council to make by-laws:

"I Providing for the control and management of roads:

II Providing for the aligning, forming, metalling, kerbing, paving, guttering, gravelling, asphalting, repairing, cleansing, and watering of public and private roads, including the determining of the respective widths of the carriage and foot ways of such roads, and the materials to be used for any of the aforesaid purposes: ..."

16 The Local Government Act 1935 amended s205(10) by adding a power to make by-laws:

"XIV Regulating the construction of roads and streets for the purposes of the subdivision of land into allotments, and prohibiting the sae of any such allotment which is dependent for access thereto upon any proposed road or street until such road or street is constructed as prescribed."

17 No relevant by-laws were made by the Council under the Local Government Act 1906.

18 Throughout the hearing the defendant has mentioned many different statutes in a way that suggests that he considers that they bear on the outcome of this case. I will try to address them all in the course of these reasons. He referred to the Registration of Deeds Act 1935, Pt III, which deals with the registration of survey plans. That Act has no application to land subject to the provisions of the Real Property Act 1862; see the Registration of Deeds Act, s3. None of its provisions assist the defendant's case.

19 On a number of occasions the defendant has referred to the Building Act 1937. By a proclamation gazetted on 6 March 1938 the whole of the Municipality of Clarence was declared to be a building area for the purposes of that Act. Pursuant to that Act, s60(2)(ii)(b), the Council was authorised to make by-laws in respect of a defined area prohibiting the erection or construction of new buildings where the same necessitated or involved the laying-out, construction, or opening of new streets, until plans as prescribed had been submitted to and approved by the Council in accordance with the by-laws. There is no evidence of any by-law or the like made pursuant to that Act that has any bearing on this case.

20 The Roads and Jetties Act 1935, s3, as amended on 31 October 1944 by 8 Geo VI No 4, defined a country road as "a road not being or forming portion of a State highway or subsidiary road, but does not include a street in any town ...". That section also defined a road as "a public highway". Its provisions with regard to roads and country roads did not relevantly impinge on the common law of highway dedication. None of its provisions assist the defendant's case.

21 Legislation that did impinge on the common law of highway dedication, but only insofar as it applied to towns, was the Town Boards Act 1891 and the Town Boards Act 1896. The former Act, s170 [II - IV], empowered the board of any town to make by-laws regulating the opening of new public streets, roads and ways, and the width and construction of the same. The former Act was repealed by the latter Act which contained detailed provisions in relation to private streets in ss184 - 202. Those provisions entitled the board of any town to create private streets and require frontagers to contribute to the cost of the same. Pursuant to that Act, s194, it was unlawful for any person to open a private street without the approval of the relevant board. Other sections dealt with the width of private streets and how the cost of constructing them was to be dealt with. None of that Act's provisions assist the defendant's case. It remained in force until it was repealed by the Towns Act 1934.

22 Legislation that was contemporaneous with the Town Boards Act 1896 and which also impinged on the common law of highway dedication, but again only insofar as it applied to towns, was the Police Act 1905, PtXI, which contained provisions as to the improvement of towns, a number of which provisions related to streets. That Act, s155, provided that the construction, formation, repair, maintenance, and ordering of all streets within any town shall be wholly under the management and direction of the municipal council. Sections 157 and 158 empowered municipal councils to alter and repair streets. Sections 159 and 160 contained provisions pursuant to which streets that were not public highways could be declared by the municipal council to be a public highway once paved, flagged or otherwise made good to the satisfaction of the municipal council. The provisions included the means by which the municipal council could recover the cost of making the street good from frontagers on the street. Section 167 required that every person who intended to make or lay out any new street in any town give notice to the municipal council in order that the level of the street could be fixed by the council. Section 168 provided that:

"It shall not be lawful to make or lay out any new street in any Town unless the same, being a carriage-road, is at least Fifty feet wide, or not being a carriage-road is at least Twenty feet wide."

Section s194(1)(ii) empowered the council to make and publish by-laws regulating the flagging, paving and repair of streets.

23 The Police Act 1905 was repealed by the Police Offences Act 1935. The provisions of the Police Act 1905, to which I have referred, that dealt with streets, were largely replicated in the Towns Act 1934, PtII. This Part was titled "Improvement of Towns". This Part of the Towns Act also included a number of additional provisions in relation to private streets that were in part derived from the Town Boards Act 1896, PtVI, DivXIX. No relevant provisions of the Towns Act had any application to Opossum Bay until 24 September 1947. I will deal with those provisions when I address the period that covers that date.

24 Reference has also been made to the Town and Country Planning Act 1944. By a proclamation gazetted on 23 May 1945, that Act applied to the whole of the Municipality of Clarence. There is no evidence that any town planning scheme prepared pursuant to that Act has any bearing on this case. The provisions of that Act provide no assistance in determining the issues before me.

25 The Public Health Act 1903, s164, provided that every local authority (the definition of which term covered the Municipal Council of the Municipality of Clarence, a predecessor of the plaintiff) may make by-laws "with respect to the level, width and construction of new streets ..." and provide for the observation of such by-laws by provisions "as to the giving of notices, as to the deposits of plans and sections by persons intending to lay out streets or to construct buildings ...". That Act defined "street" as including any highway.

26 At all relevant times Opossum Bay has been within the Municipality of Clarence and its successor, the Clarence City Council. By-laws made by the Municipal Council of the Municipality of Clarence under the Public Health Act 1903 "and every other power enabling the said Local Authority in this behalf" were gazetted on 27 May 1913 ("the Public Health By-laws 1913"). They included the following paragraphs in relation to new streets:

"53 Every person intending to lay out any new street shall, before commencing to lay out such street, give notice in writing to the Local Authority of such his intention, and deposit with the Secretary of the said Local Authority a duly prepared plan of such proposed street ; and no such street shall be laid out or commenced without the consent in writing of the said Local Authority.

54 No street to be hereafter laid out or constructed shall be of less width than 66 feet in its narrowest part, and every street shall have footpaths of not less than 8 feet wide on each side.

55 Every new street to be hereafter laid out or constructed shall be graded, formed, and constructed according to the following specifications, and of the following material ; that is to say : - All streets and roads shall be properly graded and formed, and shall have not less than 6 inches of good stone rubble broken to a gauge of not exceeding 5 inches, and then covered with 4 inches of best quality blue metal or other approved material of a size that could pass through a 2-inch ring, the last covering of blue metal or approved material to be blinded with gravel of approved quality and thickness ; each side of the street or road shall be channelled and curbed, the channels to be constructed of cement, concrete, asphalt, or best quality hardwood, at least 4 inches thick and 18 inches wide, properly bevelled so as to conduct the water flowing therein into some watercourse or other suitable place of discharge ; all outlets or places of discharge to be provided with iron gratings of usual size and construction ; the kerbing on the sides of every road or street to be cut freestone, concrete, cement, or sound and best quality hardwood, of not less than 4 inches in thickness."

27 The Public Health Act 1903, as amended, was repealed by the Public Health Act 1935. The latter Act, s123, for all relevant purposes, mirrored the provisions in the former Act, s164, as to a local authority's power to make by-laws with respect to new streets. In consequence, the Public Health By-laws 1913, made under the former Act, continued in force, notwithstanding the repeal of the former Act; Acts Interpretation Act 1931, s15(2). The Public Health Act 1935 was repealed by the Public Health Act 1962. The latter Act contained no power to make by-laws in relation to private streets similar to the provisions referred to in the Public Health Acts of 1903 and 1935. If, as I believe to be so, the Public Health By-laws 1913 were still in force when the Public Health Act 1935 was repealed, by the Public Health Act 1962, they then ceased to have any force.

28 I have not located any by-law or the like that repealed the Public Health By-laws 1913 prior to the repeal of Public Health Act 1935 by the Public Health Act 1962, or which amended pars53 - 55 of those by-laws prior to that event, and neither has the defendant nor counsel for the plaintiff. I mention that although the defendant, who is acting for himself, is not a legal practitioner, he has shown himself to be a most assiduous and effective researcher.

29 Information that strongly suggests that the Public Health By-laws 1913 remained in force until the repeal of the Public Health Act 1935 by the Public Health Act 1962 is an amendment made by the Council in 1958 to its by-laws under the Public Health Act 1903. On 16 July 1958, and again on 13 August 1958, notice was gazetted of an amendment made by the Council on 10 July 1958 "to the by-laws made under the authority of the Public Health Act 1903" by the insertion of a new par4(a) in those by-laws. These publications did not better identify the by-laws referred to, however it seems clear from the terms of the new par4(a) that the amendment related to the Public Health By-laws 1913, not the Model By-laws. So far as I am aware, the Model By-laws are the only other by-laws made under the Public Health Act 1903 that applied to the Council. The Model By-laws were gazetted on 5 August 1930 and adopted by the Council by resolution gazetted on 15 November 1939. The Model By-laws did not contain any provisions in relation to new streets.

30 The opening to the Public Health By-laws 1913 states that they are made for the purpose of carrying the Public Health Act 1903 into execution within the jurisdiction of the District of Clarence. On the face of the by-laws they applied to the whole of the district of Clarence, including Opossum Bay. I have considered whether they were intended to be confined in their application to towns in the municipality of Clarence, but I have been unable to find any basis for construing them this way. When the by-laws were promulgated, the towns in the municipality of Clarence were Bellerive, Lindisfarne, Cambridge and Rokeby. The Town Boards Act 1896 and its provisions governed private streets in towns. In the circumstances there was no reason to include provisions as to new streets in the Public Health By-laws 1913 unless they were intended to apply to areas of the municipality other than towns.

31 In 1941, the Towns Act 1934 was amended by 5 Geo VI, No 41, so as to include s48F which empowered a council to pass a special resolution to the effect that its provisions applied to an area beyond the boundaries of any town. The sections introduced by that amending Act included detailed provisions in relation to private streets. By a special resolution notified in the Gazette on 24 September 1947, the Council applied some of those provisions to the whole of that portion of the municipality that was outside the boundaries of any town. This suggests that it was believed that only towns were the subject of the Public Health By-laws 1913, or that their existence was overlooked. Whilst there is some conflict between the provisions of the Towns Act 1934 that the resolution applied to the municipality outside any town and pars53 - 55 of the Public Health By-laws 1913, that conflict arises regardless of whether those paragraphs applied generally, or only to towns, or only to areas outside of towns.

32 During the period that the Public Health By-laws 1913, pars53 - 55, remained in force, they prohibited laying out or constructing a new street, save where:

•

the local authority had been provided with notice of the proposal, together with a plan of it, and had consented in writing to the street being laid out and the construction commencing, par53;

•

the street was of a width of not less than 66 feet at its narrowest part, and had footpaths of not less than 8 feet wide on each side, par54; and

•

the construction of the street complied with the requirements detailed in par55.

33 On their face these paragraphs impacted very significantly on the common law entitlement of a landowner to dedicate land as a highway.

34 During the period from 6 November 1944 to 21 March 1946, Mr Brown was not the registered proprietor of Lot A, and accordingly he did not have the capacity to dedicate the proposed roadway as a highway even if he had been minded to do so.

35 Moreover, as explained, I have been unable to find any justification for finding other than that the Public Health By-laws 1913, or more particularly pars53 - 55 thereof, applied to Opossum Bay. That being so those paragraphs prohibited Mr Brown from dedicating the proposed roadway in the tracing and diagram prepared by Mr Terry as a highway, as the width of the same is only 54 feet and three inches, which is considerably less than the minimum width of 66 feet that was allowed. Even if the width of the proposed roadway had been sufficient, the requirements of par55 of that by-law in relation to the construction of a new street were sufficiently onerous to deter a developer from dedicating land as a highway. The existence of the by-laws is a reason for inferring that Mr Brown did not intend to dedicate the proposed roadway as a highway.

36 The defendant contends that it should be inferred that Lot A was dedicated as a highway by the owner or owners of the lot prior to its transfer to Mr Brown. George Alfred Barber and Ethel Stephenson Barber were joint owners of the block prior to Mr Barber's death on 14 December 1944. Thereafter Mrs Barber was its sole owner. It was sold to Mr Brown for ₤50. By a memorandum of transfer dated 21 March 1946, Mrs Barber transferred the lot to Mr Brown. That transfer was registered on 8 July 1946. The defendant contends that it should be inferred that prior to this transaction the Barbers, or Mrs Barber alone, dedicated the lot as a highway. He submits that this inference should be drawn as "proper planning" required that access be provided over the lot to Spitfarm Road for land to the east of those lots that fronted on Spitfarm Road. As I understand it, the defendant also submits that I should draw this inference on the basis that the Barbers or Mrs Barber co-developed the Brown subdivision together with Mr Brown. There is no evidence whatsoever to support the drawing of this inference on either of these bases, and to do so would be contrary to the established facts. Had the Barbers or Mrs Barber dedicated the lot as a highway, there would have been no reason for Mr Brown to have purchased it for ₤50. I note from other transfers in evidence that ₤50 was the going rate for lots in that vicinity at that time.

The period from 21 March 1946 to 23 September 1947

37 In order to address a number of the contentions that have been canvassed in the course of the hearing, I will proceed on the assumption (without so finding) that the Public Health By-laws 1913, or more particularly pars53 - 55 thereof, did not apply to Opossum Bay.

38 Arguably Mr Brown had the capacity to dedicate the proposed roadway as a highway by 21 March 1946, the date of the transfer of Lot A to him. He unquestionably had that capacity by 8 July 1946, when the title to that lot was issued to him and in result, he was the registered proprietor of both Lot A and Lot B. The defendant submits that: "As a consequence of this unity of seisin rights of carriageway over the proposed roadway reservation could not be lawfully created". I reject this submission. That Mr Brown owned both Lots A and B did not mean that he could not lawfully create rights of carriageway or rights of way over either or both of them in favour of those who purchased lots in his subdivision. I mention that the dominant tenement and the servient tenement need not be contiguous; Todrick v Western National Omnibus Company Ltd [1934] 1 Ch 561. Insofar as the defendant may be contending that such rights as were created have since been extinguished by unity of seisin in consequence of the same person owning both the dominant and servient tenements, I note that this contention finds no support in relation to registered land. See the Real Property Act 1886, s27H(1), which was inserted by number 73 of 1962, the Land Titles Act 1980, s109(1), Re Standard and the Conveyancing Act, 1919 (1970) 92 WN (NSW) 953; Australian Hi-fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 at 627, and Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] 2 NSWLR 1 at 10 and 11. Moreover, the importance of Mr Brown's actions in taking steps to grant rights of way or rights of carriageway over the proposed roadway is not so much the lawful effect of his actions, but that they show he did not intend to dedicate the proposed roadway as a highway. In the context of the defendant's submissions with regard to unity of seisin he placed some reliance on the Conveyancing and Law of Property Act 1884, s9A. It does not assist him.

39 The defendant contends that the use of the term "Proposed Roadway" in the tracing provided to the Council and the diagram lodged with the Recorder of Titles, evidenced an intention on the part of Mr Brown to dedicate that land as a highway, and that by proceeding with the subdivision he made that dedication.

40 What was intended by the use of the term "Proposed Roadway" in the tracing and diagram prepared by Mr Terry? Consistent with some of the many and varied definitions which, prior to 1944 had been adopted in legislation, the meaning of the term "road" included or was synonymous with "streets or lanes of every description" (Roads Act 1884, s3) and "public highway" (Roads and Jetties Act 1935, s3). Illustrations of the wide scope given to words such as road and street in some legislation are the definition of "street" in the Public Health Act 1935, s3, where it was defined as "any highway and any public bridge, road, lane, footway, square, court, alley or passage, whether a thoroughfare or not", and its definition in the Police Act 1905, which provided that a street "extends to and includes any public and common highway, road, square, court, passage, alley, thoroughfare, or public way, and the footways within any Town, any place of public resort, and any avenue leading thereto".

41 I have been unable to locate and have not been referred to any definition given to the terms "road" or "roadway" in any of the Real Property Acts. What is clear however, from the parts I have underlined in the following provisions in the Real Property Act 1886, is that in the context of the real property system it was appropriate to describe an area of land that was, or was to become, subject to a right of carriageway as a road or roadway. These provisions were:

"26 Certificate conclusive evidence as to easement therein specified. - Whenever any certificate of title, or any duplicate thereof, whenever registered or issued under any of the provisions or otherwise under the operation of the Principal Act shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified, such statement shall be conclusive evidence that he is so entitled.

27 Creation of right of way. - Whenever any transfer or any such certificate of title as aforesaid shall contain the words 'together with (or subject to, as the case may be) a right of carriage way over ', (specifying or describing the road or roads over which the easement is created, and referring to a diagram indorsed where on such road or roads is or are distinguished by a green line), such words shall have the same effect and shall be construed as if there had been inserted in such transfer or certificate the words contained in form II in the schedule.

...

FORM II

(Section 27)

CREATION OF RIGHT OF CARRIAGE WAY IN A TRANSFER OF FREEHOLD LAND

TOGETHER with (or subject to, as the case may be) full and free right and liberty to and for the transferee hereunder, and to and for the registered proprietor or proprietors for the time being of the land hereby transferred, or any part thereof, and his, her, and their tenants, servants, agents, workmen, and visitors to go, pass, and repass at all times hereafter and for all purposes, and either with or without horses or other animals, carts, or other carriages, into and out of and from the said land, or any part thereof, through, over, and along the road or way, or several roads or ways, delineated and distinguished by a green line on the said diagram."

42 I infer that consistent with the above provisions the occasional practice of surveyors at the relevant time was to describe land in a plan over which a right of carriageway was created or was to be created as a road or roadway. That this was so is confirmed by the evidence of John Medbury, a registered surveyor with 44 years of experience in searching titles and surveys at the Land Titles Office. Mr Medbury says that until about the 1950s it was not uncommon for the terms "road or roadway" to be used in instruments to denote what is now commonly referred to as a "right of way" and that these words were used interchangeably by surveyors, conveyancers and officers of the Land Titles Office. That this was so is also confirmed by examples of where this has occurred that were elicited in the course of the evidence of Mr Medbury and another surveyor who gave evidence, Craig Rogerson.

43 The above provisions in the Real Property Act 1886 as to rights of carriageway require that the "road or roads" or "road or way" over which the right of carriageway is created be "distinguished by a green line" on a diagram. With regard to the link between these provisions, and the practice of those involved with the creation of rights of carriageway and rights of way, it is noteworthy that green lines were used to distinguish the proposed roadway in at least six of the transactions by which Mr Brown sold lots in his subdivision. As to this see [50] to [51] below.

44 There are sound reasons for inferring that the use of the term "Proposed Roadway" in the tracing and diagram prepared by Mr Terry was not an indication that Mr Brown's intent was to dedicate that land as a highway. For present purposes, I do not draw any distinction between a highway, road or street, or any distinction based on the same being on land that was privately owned or had been transferred to a public entity. In this context, I use the term highway regardless of these distinctions. The only distinction I draw is that between a highway and a right of way, or right of carriageway over land that remained in the ownership of the grantor of that right.

45 The evidence satisfies me that Mr Brown took no steps to construct a new street on the area of land marked "Proposed Roadway", whether in conformity with the Council's advice that its approval of his subdivision proposal was subject to him "constructing the road to the satisfaction of the Council" or otherwise. The defendant submits that, as the subdivision proceeded, I should infer that the road had been constructed to the Council's satisfaction. I am unable to do so. The evidence establishes that it had not and has not been developed beyond the state of track created by usage that has from time-to-time been potholed and gravelled. Moreover, to infer that the road had been constructed would fly in the face of the soundly-based contrary inference that in order to avoid constructing the road, Mr Brown proceeded with his subdivision by granting rights of way, rather than constructing the road and dedicating it as a highway. As a matter of practice it was open to Mr Brown to avoid the burden of constructing a new street or roadway by granting those who purchased lots in his subdivision rights of carriageway over the proposed roadway, and this is what he did.

46 At the relevant time the combined effect of the Real Property Act 1862 ss42, 44, 45 and 104 as modified by the Real Property Act 1886, ss13 and 14, was that a registered proprietor of land who desired to transfer any portion of it, that is, subdivide it, could achieve that result by the following means:

•

Depositing with the Recorder of Titles an appropriate plan of the land certified by a Government surveyor; s104.

•

Lodging a transfer of the portion of the land, or right of way or easement to be created, together with the certificate of title to the land; ss42 and 44(1).

•

After registering the transfer, the Recorder was required to partly cancel the certificate of title, consistent with the effect of the transfer, and return it to the transferor; ss44(2) and 13.

•

Having partially cancelled the certificate of title, the Recorder was required to provide the transferee with a new certificate of title to the land that had been the subject of the transfer; ss45 and 14.

1">47 The Real Property Act 1862 required that a plan lodged pursuant to s104 be certified by a "Government surveyor". That Act pre-dated the Land Surveyors Act 1909, which provided for the registration of land surveyors and regulated the practice of surveyors It detailed the qualifications required of those who sought registration as a surveyor, and defined an authorised survey as including a survey of land authorised or required under any Act. It created the Surveyors' Board and empowered that Board to make by-laws. By-laws made pursuant to that Act and dated 1 May 1913, were gazetted on 13 May 1913. The effect of by-laws 36 to 41 was that from the date of the by-laws a surveyor who was registered under the Land Surveyors Act was entitled to make surveys under the Real Property Act and that plans made under that Act should be certified in the manner there prescribed. Diagram 167/34 is so certified by Mr Terry.

48 I conclude that from the outset Mr Brown did not intend to dedicate the proposed roadway as a highway. Prior to him obtaining the capacity to so dedicate it he manifested and acted on a contrary intention. That intention was to provide those who purchased a lot from his subdivision with access to Spitfarm Road by means of a right of way or a right of carriageway. This plainly shows that he had no intention to dedicate the land as a highway. If the land was to be a highway, there was no reason to grant any purchaser a right of way or right of carriageway over it.

49 The first unequivocal manifestation of Mr Brown's intention to provide purchasers of lots from his subdivision with access to Spitfarm Road by means of rights of way over the proposed roadway, rather than by dedicating the proposed roadway to be a highway, was a Memorandum of Transfer, dated 20 September 1945, by which he transferred Lot 7 to Francis Marsh. By that instrument Mr Brown transferred "Lot 7 on a subdivision plan made by Mr Redvers Alan [sic] Terry filed herewith and being part of the land comprised in Certificate of Title Volume 455 Folio 96 TOGETHER WITH a right of way over the land marked 'Proposed Roadway' in the said plan". Mr Brown's title to the land that was the subject of his subdivision was Certificate of Title Volume 455 Folio 96. The receipt stamps on the Memorandum of Transfer and diagram show that, consistent with that which was said in the transfer, both it and the plan were filed with the Recorder of Titles at the same time, on 26 September 1945. Presumably, because of the delay in Mr Brown obtaining title to Lot A of the proposed roadway, particulars of the transfer were not entered on the register until 6 May 1946. The title was issued to Francis Marsh on 20 May 1946. It is expressed in terms that gave him a right of way over all the "Proposed Roadway" in diagram 167/34.

50 By his transfers of the other lots in the subdivision Mr Brown confirmed his above noted intention to provide the purchasers with access over the proposed roadway by means of rights of way, or rights of carriageway, rather than by dedicating the roadway as a highway. Relevant details of the transfers, in date order, are:

•

Lot 9. Memorandum of Transfer to James Purden dated 31 October 1945. By that instrument Mr Brown transferred "Lot 9 on a subdivision plan made by Mr Redvers Alan [sic] Terry filed herewith and being part of the land comprised in Certificate of Title Volume 455 Folio 96 TOGETHER WITH a right of way over the land marked 'Proposed Roadway' in the said plan ...". The effect of the title issued to Mr Purden was that he received a right of way over all the "Proposed Roadway" on diagram 167/34.

•

Lot 5. Memorandum of Transfer to Doreen Chamberlain dated 20 January 1947. By that instrument Mr Brown transferred Lot 5 "TOGETHER WITH a right of carriage way over the area shown in the said plan and drawn hereon and therein surrounded by green boundary lines." The plans drawn on the transfer and the title did not confine the "Proposed Roadway" to Lot A or Lot B. The effect of the title issued to Ms Chamberlain was that she received a right of carriageway over all the land marked "Proposed Roadway".

•

Lot 2. Memorandum of Transfer to Percy Verrell dated 15 January 1948. By that instrument Mr Brown transferred "Lot 2 on subdivision plan by Mr Redvers Allan Terry filed in the office of the Recorder of Titles as the same is shown on the plan drawn hereon and therein surrounded with red boundary lines TOGETHER with a right of carriage way over the line [sic, for line I read land] shown in the said plan and hereon and in the said plan and hereon marked 'Proposed Roadway'". The plan drawn on the title did not confine the "Proposed Roadway" to Lot A or Lot B. The effect of the title issued to Mr Verrell was that he received a right of carriageway over all the land marked "Proposed Roadway".

•

Lot 1. Memorandum of Transfer to Leonard Hughes dated 20 July 1948. By that instrument Mr Brown transferred Lot 1 "as the same is shown in the plan hereon endorsed and therein surrounded by red lines together with the right of carriage way over the area shown in the said plan and therein surrounded by green boundary lines". In the plans drawn on the transfer and the title, only Lot B of the "Proposed Roadway" is surrounded by green lines. The effect of the title issued to Mr Hughes was that he only received a right of carriageway over Lot B of the "Proposed Roadway".

•

Lot 4. Memorandum of Transfer to Victor Marsh dated 18 November 1948. By that instrument Mr Brown transferred Lot 4 "TOGETHER WITH a right of carriage way over the area shown in the said plan drawn hereon and therein surrounded by green boundary lines". The plan drawn on the transfer covered the whole of the "Proposed Roadway". The effect of the title issued to Mr Marsh was that he received a right of carriageway over all the "Proposed Roadway".

•

Lot 8. Memorandum of Transfer to Lewis and Annie Walker dated 24 November 1948. By that instrument Mr Brown transferred Lot 8 "as the same is shown in the plan hereon endorsed and therein surrounded by red lines TOGETHER WITH a right of carriage way over the line [sic, for line I read land] shown on the said plan and therein surrounded by green boundary lines and marked 'Proposed Roadway'". As with the transfer of Lot 1, the plan on the transfer and the title only identifies Lot B as the "Proposed Roadway". The effect of the title issued to the Walkers was that they only received a right of carriageway over Lot B of the "Proposed Roadway".

•

Lot 3. Memorandum of Transfer from Mr Brown to Joseph Mason dated 24 February 1949. The title issued to Mr Mason records that the lot was transferred to him "TOGETHER WITH a right of carriage way over the land surrounded by a green line on the said diagram". The diagram drawn on the title covered the whole of the "Proposed Roadway". The effect of the title issued to Mr Mason was that he received a right of carriageway over all the "Proposed Roadway".

51 Lot 6, together with other land, was transferred by Mr Brown to Victor Wheeler by a Memorandum of Transfer dated 17 January 1951. The land transferred encircled Lots 7, 8 and 9. Relating this to the attached copy of diagram 167/34, Mr Brown transferred Lot 6, Lot B and Lot 10 to Mr Wheeler. The title issued to Mr Wheeler recorded that this land was "SUBJECT TO a right of carriage way for the registered proprietor of the several lots shown on diagram No 167/34 in my office over the land on the said diagram surrounded by a green line on the said diagram". This land was Lot B of the "Proposed Roadway".

52 Lot 6 was transferred back to Mr Brown by Victor Wheeler by a Memorandum of Transfer dated 29 September 1952. The title issued to Mr Brown recorded that Lot 6 was "delineated in the diagram hereon and distinguished by a pink line TOGETHER WITH a right of carriage way over the strip of land marked 'proposed roadway' and shown surrounded by a green line on the said diagram". That diagram only had a green line around that part of the "Proposed Roadway" that is Lot B. As with Lots 1 and 8, the effect of this title was that the registered proprietor only received a right of carriageway over Lot B.

53 Lot 10, together with Lot B of the "Proposed Roadway", were transferred by Victor Wheeler to Geoffrey Calvert. His title records that this transfer was produced to the Recorder of Titles on 8 July 1954. By a transfer of easement produced to the Recorder of Titles on the same date, Mr Brown granted Mr Calvert, a right of carriageway over Lot A of the "Proposed Roadway". This transaction is recorded on Mr Brown's title to Lot A, as well as Mr Calvert's title to Lot 10 and Lot B. The burden of this easement remains on the title to Lot A. That title was transferred to the defendant and his then wife Helen Howlin. That transfer was registered on 21 July 1999.

54 As I read the current titles of those who own Lots 1 to 10, save for Lot 6, each lot is expressed to have the benefit of a right of way, or right of carriageway over the full extent of the proposed roadway. The right of carriageway conferred on Lot 6, is confined to Lot B. Lot 10 and Lot B are currently owned by Paul and Jenny-Anne Geappen. Their title records that it is subject to rights of carriageway in favour of the several lots appurtenant to it on diagram 62456, the registration number that now applies to diagram 167/34.

55 In about 1980 Mr and Mrs Gillies were the owners of the Howlin land As they wished to use Marsh Street to access their land they sought and obtained a right of carriageway over Lot B from its then owner, Margaret Brinckman. The title of her successors in title, Paul and Jenny-Anne Geappen, records the burden of that right of carriageway, which now benefits Mr Howlin.

56 For completeness I mention that by a transfer from Mr and Mrs Gillies, registered on 15 August 2003, Mr Howlin and his then wife obtained the title to Lot A.

57 The significance of the foregoing is what it says about the intention of those who owned Lots A and B of the proposed roadway. From and including Mr Brown's execution of the first transfer of a lot in his subdivision on 20 September 1945, no owner of either or both of Lot A or Lot B of the proposed roadway has manifested an intention to dedicate it as a highway. The foregoing also negatives the presumption of dedication that arises from long use of land as a road.

58 An illustration of the rebuttal of the presumption of a dedication that arises from long use is the decision in President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846. In that case the owner of land allowed a track to be raised over it, the cost of which was paid by neighbours. The municipality arranged for the track to be surveyed and from time-to-time, it cleared, made and repaired the road at its own cost. The road appeared in maps of the municipality. For upwards of 20 years the road was used by the public as a highway. The High Court held that the road had not been dedicated as a highway because, from its inception, the owner had acquiesced to its use by the public on the basis of an implied agreement with the municipality that he would permit the public to use it pending the municipality's proclamation of the road as a public road, whereupon he would be compensated. In the course of his judgment Griffith CJ, at 857 - 859, referred to the decision in Barraclough v Johnson 8 A & E 99. At 858 he quoted a passage from the judgment of Lord Denman CJ in that case which included the following:

"A dedication must be made with intention to dedicate. The mere acting so as to lead persons into the supposition that the way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction ...".

"The doctrine, therefore, that dedication may be presumed from continuous user must be qualified by adding the words 'if unexplained,' and it is always permissible, as pointed out [in Barraclough v Johnson] ... , to inquire under what circumstances the piece of land came to be used as a road. Was it under such circumstances as showed an intention to dedicate? Or was it under such circumstances as to negative such an intention? Or was it under such circumstances as not to point in one direction rather than the other?"

59 A more recent authority that touches on this issue is Newington v Windeyer (1985) 3 NSWLR 555. In that case at 558 - 559, McHugh JA, agreed with by Kirby P and Hope JA said the following, from which the citations have been omitted:

"At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn. 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. In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn. Dedication to the public may also be presumed from uninterrupted user of the road by the public. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public."

60 It is highly likely that since 1944 only those who purchased lots that depended on Marsh Street for access were aware that it was a right of way or a right of carriageway that entitled them to that access. Again, it is highly likely that casual users of Marsh Street believed they were entitled to do so. There is no suggestion that there has been any interference with public access over Marsh Street since 1944. Nonetheless, I conclude that Marsh Street was not and never has been dedicated as a highway, and it cannot be inferred that it was dedicated as a highway.

The period from 24 September 1947 until 1 January 1964

61 By reason of a special resolution of the Council gazetted on 24 September 1947, particular provisions in the Towns Act 1934 applied to Opossum Bay from that date. They continued to do so until the Towns Act was repealed by the Local Government Act 1962, with effect from 1 January 1964.

62 The Towns Act, PtII, DivXII, dealt with private streets in towns. It contained a number of new provisions and replicated many of those that had been in the repealed Town Boards Act 1896 and Police Act 1905. When enacted it contained ss44 to 51. They had no application to Opossum Bay as it was not a town. In 1946 that Act, as amended, was further amended (10 Geo VI No 53) by amending s48F so as to enable a municipal council by special resolution to declare that all or any of the provisions of ss48 to 48E applied to the whole or any portion of the municipality. A subsection to the same effect was included in s45. Section 45, as amended by 5 Geo VI No 41_,_ enabled a municipal council to cause any private street, laid out as a public thoroughfare prior to 1 January 1940, to be constructed in such manner as the council determined and that the cost be borne and paid for by the owners of land fronting or abutting on that private street. Although the Council did not extend the application of s45 to the Municipality of Clarence, by a special resolution gazetted on 24 September 1947, it adopted ss48 (excluding the words "in accordance with section 48A" at the end of subs(2)), 48B, 48C, 48D and 48E, and applied them to the whole of that portion of the municipality outside the boundaries of any town.

63 Whilst the Council could have applied s48A to that part of the Municipality of Clarence that was outside the boundaries of any town, it chose not to do so. That section contained detailed requirements in relation to the construction of new private streets.

64 I turn to relevant provisions in the Towns Act that applied to Opossum Bay from 24 September 1947 until 1 January 1964.

•

Section 44 provided that, "private street means a highway laid out on private property, but intended for the use of the public generally".

•

Section 48 included the following:

"48 - (1) No new private street shall be constructed, opened, or used, or the construction thereof commenced, until a plan drawn to scale showing such proposed new street, its width and direction, and the proposed provision for its drainage, has been submitted to and approved by the council.

(2) No land upon or in relation to which it is proposed to provide a new private street shall be subdivided, and no sale of any part thereof as an allotment shall be completed until the provisions of this section in respect of such street have been complied with and such street has been constructed in accordance with section forty-eight A, or the owner of the land has deposited with the council an approved bank guarantee or a sum sufficient to construct, or complete the construction of, such street in accordance with that section. [The words that I have printed in italics had no application as they were excluded by the special resolution of Council gazetted on 24 September 1947]

(3) Except as provided by this Act, every new private street shall be of the width of sixty feet at least, and shall be constructed for use as a carriageway.

(4) Within such areas as the council may by resolution determine, the council, with the approval of the Governor, may permit the construction of a new private street of such width and construction as the council in each case may determine."

•

Section 48B required that new private streets be constructed by the council at the request and cost of the owner or the owner, subject to supervision by the council.

•

Section 48C provided:

"48C - (1) No new private street shall be opened or used until the foregoing requirements of this division have been complied with.

(2) The owner of the land on which such street is constructed shall maintain such street to the satisfaction of the council for three months after the date on which it is opened.

(3) After the expiration of the said period of three months, the owner may convey or transfer to the council the land comprising such street, or may dedicate the same as a public street in such manner as the council may approve, and thereupon the council shall take over, and at all times maintain such street as a public street."

65 During the period that these provisions of the Towns Act applied to Opossum Bay, they severely curtailed the common law entitlement of a landowner to declare land to be a highway. During this period it would not have been possible to open and construct a new private street of the width of Marsh Street. Section 48(3) required that the width of a new private street be at least 60 feet. There is no evidence to suggest that the Council passed a resolution, with the approval of the Governor pursuant to s48(4), permitting the construction of new private streets of a width of less than 60 feet in the area of Opossum Bay or anywhere else. So, even if there was evidence that during this period the owners of Marsh Street purported to dedicate it as a highway and constructed it, which there is not, this would have been prohibited by the provisions of the Towns Act and of no relevant legal effect.

66 The Highways Act 1951 provides no assistance in determining the issues before me. It may have, had the Council acted on its entitlement pursuant to that Act, s4, to acquire a public right to pass and re-pass over Marsh Street. It did not. Had it done so, when s8 was inserted into that Act by No 68 of 1962, consistent with that provision the private rights of way of the owners of lots adjoining Marsh Street over that street would have been incapable of existing along with the public right of way.

67 One of the statutes repealed by the Local Government Act 1962 was the Towns Act. The repeal took effect on 1 January 1964. When enacted, the Local Government Act 1962, s363(1), provided that with exceptions that are not relevant: "it is not possible in a city or town to dedicate land for a highway without the consent of the corporation under its corporate seal". It contained no similar provision in relation to land outside a city or town.

68 Counsel for the plaintiff submits that the repeal of the Towns Act did not revive the common law of highway dedication. Counsel relies on the decision in R v Jennings [1998] VSCA 69; [1999] 1 VR 352, [22] and the Acts Interpretation Act 1931, s16(1)(a), which provides:

"(1) Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not -

(a) revive anything not in force or existing at the time such repeal took, or shall take, effect; ...".

Counsel submits that the Towns Act had supplanted the common law of highway dedication, within the Municipality of Clarence, in September 1947. I reject this submission for two reasons. The first is that I do not accept that by reason of the Towns Act, the common law of highway dedication ceased to exist. The effect of that Act and other legislative provisions that have been referred to was to significantly impinge on that law, but not abolish it. The second reason is that when enacted the Local Government Act 1962, s337, expressly recognised that a person could dedicate land outside a city or town to be a highway, albeit that unless the conditions there specified were satisfied, the corporation would not be liable to repair the highway. It was as follows:

"337-(1) The corporation is not liable to repair a highway opened after the commencement of this Act without a city or town by any other person than the Crown or the corporation unless the person proposing to dedicate the highway -

(a) has given notice in writing to the corporation of his intention so to do;

(b) has made the highway in a proper manner to the satisfaction of the corporation's engineer or surveyor; and

(c) has kept the highway in good repair for three months after it has first been opened to the public.

(2) If the council on receipt of a notice under subsection (1) considers that the proposed highway is not useful enough to the inhabitants of its district to justify its being kept in repair at the expense of the corporation it may within three months of the receipt of the notice notify the giver of the notice accordingly and will then not become liable to repair the proposed highway."

69 The Local Government Act 1962, s332(1), provided: "The duty at common law of the inhabitants at large to repair the highways shall be deemed to have passed from the inhabitants of parishes to the corporation of municipalities". This provision did not apply to Marsh Street as the precondition for its application was that Marsh Street was a highway. It was only if Marsh Street had been dedicated as a highway that it could have been said that, consistent with the common law in England, the inhabitants of the parish that encompassed Marsh Street would have been subject to a duty to repair it. See Chen (supra) at 216 - 217.

70 As previously mentioned, the evidence establishes that Marsh Street has not been developed beyond the state of a track created by usage that has from time-to-time been potholed and gravelled. Had it been dedicated as a highway, this level of development might have meant that it was well and sufficiently made within the meaning ascribed to that phrase in the Local Government Act 1962, s394(2), which provided that "a street shall be deemed to have been well and sufficiently made good if, when it was alleged to have been made good, it would then have been deemed fit for the daily passage to and fro of either a carriage and pair or a loaded wagon drawn by four horses". Had Marsh Street not been made good, had it been a public highway, s394(1), and had been in a city or town at the relevant time, s392, the Council could have prepared a scheme for its construction, s397, obtained a contribution of one-third of the estimated cost from the State, s395 and s410(1), and obtained reimbursement for the balance cost from frontagers, s396.

71 I have mentioned these provisions in the Local Government Act 1962 for two reasons. Firstly, the defendant placed some reliance on what s394(2) deemed to be a well and sufficiently made street. It does not assist his case. Secondly, in 1977 the Council was involved in an exchange of correspondence referrable to these provisions, which, for different reasons, both parties have relied on.

72 On 13 January 1977 the Council Clerk wrote to the Department of Public Works in relation to discussions councillors and Council officers had with ratepayers who lived adjacent to unconstructed public roads or streets. The Council Clerk said the discussions were made difficult when the people were told that as their road was unconstructed, the Council could not perform any work on it for fear of losing a grant from the State under the Local Government Act 1962, s410. He said that Council had, in the past, obtained the benefit of one or two such grants per year and the Council wanted this to continue. The letter proceeded:

"However, to enable Council to offer some form of relief in the worst areas it is requested that the following list of unconstructed streets be inspected and agreed as being suitable for the eventual construction with Government Assistance.

Once this has been established it is assumed that Council may then be permitted (from its own resources) to perform minor works to make these tracks a little more trafficable for the adjoining owners without jeopardising further grants.

Would you therefore kindly arrange inspections of the following roads and streets as soon as possible, and advise Council of those acceptable for grants."

The roads and streets listed in the letter included Lagoon Road (Old Beach) and March [sic] Street.

73 By letter dated 18 May 1977, the Secretary of the Department of Main Roads replied to the Council Clerk listing 17 roads that were considered to be eligible for assistance pursuant to s410, and advising that Lagoon Road and Marsh Street, amongst others, were not eligible, as they appeared on the municipal list of rural roads for which the Council received an annual maintenance grant.

74 By letter dated 12 July 1977, the Council Clerk replied saying it was understood that the list of rural roads included all public roads and not necessarily only those maintained by Council, and that as to Lagoon Road and Marsh Street, amongst others, "as far as Council is concerned, these roads have never, at any stage, been maintained by it".

75 The Acting Secretary of the Department of Main Roads replied by letter dated 18 August 1977 advising that: "In the compilation of the Rural Roads and Town Streets lists, only those roads and streets which are the responsibility of Council are included whether they have been constructed or not and or maintained by them". The letter continued:

"In the case of Lagoon Road, ... , Marsh St, and Bisdee St, all these roads are outside the boundary of the declared town and must therefore be considered as Country Roads, which are not eligible for assistance under the Local Government Act as unconstructed town streets.

I hope the above assists in clarifying the situation and if Council considers that any road or street on their list is not their responsibility, we would be pleased to arrange a further inspection."

76 By letter dated 26 August 1977, the Council Clerk responded, noting the Acting Secretary's comments and requesting a reconsideration of the position with respect to Lagoon Road, as it was within the declared town of Lindisfarne.

77 By letter dated 26 October 1977, the Secretary responded, confirming that Lagoon Road could be considered as an unconstructed town street.

•

All concerned considered that Marsh Street was a public street.

•

Marsh Street was unconstructed and the Council was contemplating constructing it in due course, subject to it being able to obtain assistance from the State pursuant to the abovementioned provisions of the Local Government Act 1962.

•

The Council did not appreciate that the abovementioned provisions only applied to cities and towns and did not apply to unconstructed streets in rural areas, like Marsh Street.

•

That Marsh Street was on the municipalitiy's list of rural roads for which it received an annual maintenance grant.

•

That the Council was of the view that the list of rural roads included all public roads and not necessarily only those maintained by it.

•

That so far as the Council was concerned, Marsh Street, had never, at any stage, been maintained by it, and that if the rural roads list was intended to cover only those roads maintained by Council, then Marsh Street and other roads to which it referred should be deleted from it.

•

The Department's view was that in the compilation of the rural roads list, only those roads and streets which were the responsibility of Council were included, whether they had been constructed or not, or maintained by the Council.

•

The Department considered that as to Marsh Street and other unconstructed roads outside the boundary of a town, it was necessary only to maintain them in the state in which they existed.

•

The Council did not take up an invitation contained in the last paragraph of the Department's letter of 18 August 1977 that:

"... if Council considers that any road or street on their list is not their responsibility, we would be pleased to arrange a further inspection."

•

The Council successfully challenged the Department's assertion that Lagoon Road was not in a town and hence could not be constructed on the basis that the Council could obtain a contribution from the State and reimbursement from ratepayers for the construction pursuant to the provisions of the Local Government Act 1962.

79 This exchange of correspondence assists the plaintiff Council insofar as it establishes that in 1977, Marsh Street was unconstructed, and that so far as the Council was concerned, Marsh Street had never, at any stage, been maintained by it. It also demonstrates that at that time Council was only prepared to assume responsibility for the maintenance of Marsh Street if it could obtain a one-third contribution towards the estimated cost of constructing the street from the State, and reimbursement for the balance cost from frontagers. The correspondence assists the defendant insofar as it proceeds on the assumed basis that Marsh Street is a public street. This does not however overcome the clear evidence that Marsh Street has never been dedicated as a highway and the evidence to which I will refer, that Marsh Street has never been included in a municipal map as a road repairable or maintainable by the Council.

80 The Local Government (Consequential Amendments) Act 1982 repealed many of the provisions in the Local Government Act 1962 that related to highways, and this included s337. This repeal came into effect on the day the Local Government (Highways) Act 1982 came into force. That Act, s8, is similar to but in wider terms than the Local Government Act 1962, s337. Section 8 applies to highways "opened or to be opened". That section and s10 of the Local Government (Highways) Act 1982 are as follows:

"8 Maintenance of highways opened outside cities or towns by private persons

(1) An owner may, by notice in writing, notify the corporation, in respect of a highway opened or to be opened elsewhere than in a city or town, that he requires the highway to be maintained by the corporation.

(2) Where the corporation is of the opinion that the highway in respect of which a notice is served under subsection (1) is not, or will not be, useful enough to the inhabitants of its district to justify its being maintained by the corporation, it may, within 3 months of the receipt of the notice, notify the owner accordingly.

(3) A highway in respect of which a notification is given under subsection (2) by the corporation is not maintainable by the corporation.

(4) Except where the corporation notifies the owner as mentioned in subsection (2), section 10 applies to a highway in respect of which a notice is served under subsection (1).

(5) Where by virtue of subsection (4) any works are or may be required to be carried out before the highway becomes maintainable by the corporation and the corporation is of the opinion that those works should be carried out as soon as possible, it may serve notice on the owner requiring him to carry out his obligations under section 10, and that notice accordingly has such effect as is provided for in section 11(10).

...

10 Obligations on landowners opening highways

(1) Where this section applies to a highway opened or to be opened on any land, the owner shall ensure -

(a) that works (in this section referred to as "the construction works") are carried out, in accordance with plans and specifications approved by the corporation, for the construction of a road or other way on the land or for the improvement, widening, or other alteration of a road or other way already existing on the land; and

(b) that the road or other way is kept in repair throughout the statutory period."

81 During the period that the above provisions applied to Opossum Bay, no notice was provided to the Council pursuant to s8 by an owner of Marsh Street.

82 By a proclamation dated 10 November 1988, the whole of the Municipality of Clarence was declared to be a city under the Local Government Act 1962. From that date the Local Government (Highways) Act 1982, s7, and other provisions in that Act that were confined in their application to a city or town applied to Opossum Bay, and s8 of that Act ceased to apply to Opossum Bay. Section 7 is:

"7 Limitation on opening of highways in cities and towns by private persons

(1) Subject to this section, the dedication as a highway of land in a city or town is of no effect unless the approval of the corporation under its seal is or has been given to the dedication.

(2) The corporation shall, before giving its approval under this section to the dedication of any land as a highway, give at least 28 days' written notice to the Transport Commission of its intention to give such an approval.

(3) An approval given under this section may be given subject to compliance with section 10, and that section applies accordingly in respect of the highway to which the approval relates.

(4) Except in a case to which subsection (3) applies, where approval is given under this section to the dedication of any land as a highway, that land shall be deemed not to have been dedicated as a highway unless the person capable of so dedicating the land has served notice on the corporation that it has been so dedicated.

(5) This section does not prevent the creation of a highway under the Roads and Jetties Act 1935 or any other Act, nor does it prevent the exercise by a corporation of its powers under section 6."

During the period that the above section applied to Opossum Bay no owner of either or both of the lots that make up Marsh Street purported to dedicate the lot or lots to be a highway and, had an owner done so, it would have been of no effect without the approval of the Council under its seal.

83 Further potentially relevant sections in the Local Government Act 1962 were replaced by broadly similar sections in the Local Government (Building and Miscellaneous Provisions) Act 1993. Each Act contained provisions governing the subdivision of land. The former Act also contained provisions governing building estates. Each Act provided that a plan approved pursuant to those provisions would only come into effect upon the plan being sealed in accordance with the requirements of that Act. The effect of the former Act, s468(1)(a) was, and the latter Act, s95 is, that any land shown on such a sealed plan as a road, street or the like is taken to be dedicated to, and accepted by the public unless called "private" on the plan. No sealed plan for the purposes of these provisions in either Act has depicted Marsh Street as a road or street.

84 The defendant sought to derive some benefit from the former Act, s468(1)(a), on the basis that the Council had sealed an adhesion order referrable to Lot 5 in Marsh Street and Lot 7 in Spitfarm Road in 1984. An adhesion order is a means by which the owner of adjoining parcels of land, one or more of which does not have the qualities of a minimum lot, can adhere them in order to create a block which has the qualities of a minimum lot. See the former Act, s477A(1). Subsection (3) of the same provision reads:

"(3) For the purposes of this section an adhesion order is an order of the corporation that the parcels comprised in the block subject to the order shall not be dealt with so that they come or may come into the possession of different persons for an estate of freehold at law or in equity or for a term at law or in equity of 3 years or more."

85 An adhesion order was not a sealed plan for the purposes of the former Act, s468(1)(a). Pursuant to that Act, s462, a sealed plan was one which had been approved and sealed by the corporation under s464, or s469 and had been accepted by the Recorder of Titles pursuant to s464(20). Section 464 related to the building estates, and s469 related to subdivisions. Adhesion orders were not made under either of those provisions. They were made under s477A. The sealing of an adhesion order that involved Lot 5 in Marsh Street does not assist the defendant.

86 The Council seeks a declaration that Marsh Street is not a highway maintainable by it pursuant to the Local Government (Highways) Act 1982, and the defendant seeks a declaration to the contrary.

87 The effect of the Local Government (Highways) Act 1982, s4(3), is that a highway that immediately before its commencement was repairable by the Council, was maintainable by the Council. As Marsh Street had not been dedicated as a highway prior to the Act, it could not have been a highway repairable by the Council immediately before its commencement in the absence of a statutory provision that achieved that result. One provision that could have done so is the Local Government Act 1962, s694, to which I will return.

88 The effect of Local Government (Highways) Act, s6, is that the Council could make and open highways, subject to requirements that included giving 28 days' written notice to the Transport Commission. A highway opened under this section is maintainable by the Council. The Council has not exercised its power under this section to open Marsh Street as a highway.

89 The effect of that Act, s12, is that by resolution of the Council it could have declared that Marsh Street should become a highway maintainable by it. The Council has not done so.

90 That Act, s66(4)(a), is in PtV of the Act. That Part deals with the construction of unmade streets in cities and towns. The relevant portions of s66 are:

"66 Proof that street is subject to Part V

(4) The corporation -

(a) may prepare a copy of all or part of its municipal map showing any or all of the streets in its municipal district that it says have not been well and sufficiently made and also showing the date on which the copy was prepared; and

(b) shall, if it prepares such a copy, advertise on at least 3 successive Saturdays when and where the copy is exhibited and the effect of the advertisement and exhibition.

(5) The copy of the map prepared under subsection (4) shall be on show at the corporation's municipal office at all reasonable times for the period of 3 months after the last advertisement required by that subsection, and thereafter it is conclusive evidence that the streets shown on the copy as not well and sufficiently made have not been so made, unless, before the end of that period, a person concerned has given to the corporation notice of objection to the inclusion of a particular street."

91 That Act, ss67 to 82, contains detailed provisions as to how a corporation may carry out street works in a street that has not been well and sufficiently made, and recover the costs of the same from frontagers on the street. Pursuant to that Act, s75, upon the completion of the street works, the street becomes a highway maintainable by the corporation.

92 Had the Council chosen to prepare a copy of a municipal map for the purposes of that Act, s66, showing any or all of the streets that were not well and sufficiently made, it would have had to advertise when and where the map was exhibited on at least three successive Saturdays, and exhibit the map in its office for a period of three months after the last advertisement. The Council did not do any of these things. The Act, s66, has no relevant application.

93 The defendant contends that Marsh Street is a local highway maintainable by the plaintiff under that Act, s21, which relevantly provides:

"21 General responsibility of corporations

(1) Subject to this Act, the corporation of a municipality is charged with the duty of maintaining the local highways in the municipality that are maintainable by the corporation as shown on its municipal map, and, in any particular case, it shall discharge that duty in such manner as, having regard to all the circumstances of the case, it considers practicable and appropriate.

..."

94 The effect of that Act, ss3(1) and 4(1), is that all State highways and subsidiary roads within the meaning of the Roads and Jetties Act 1935 are State highways, and all other highways (except highways that immediately before the Act's commencement, were repairable by State authorities) are local highways.

95 The term "municipal map" is not defined in the Local Government (Highways) Act 1982. The concept of a "municipal map" comes from the Local Government Act 1962, s694, which was contained in PtXVI of that Act. That Part of the 1962 Act came into effect on 1 January 1964. Section 694 relevantly provided:

"694-(1) Every municipality shall have and keep up to date a map of its municipal district showing -

(a) all highways repairable wholly or in part by it;

(b) all other highways (not being State highways) at any time well and sufficiently made, formed, paved, or otherwise made good;

(c) all roads known to it that a landowner is liable to repair;

(d) all streets that it has resolved to construct under Division XI of Part XV;

(e) all roads leased under section three hundred and seventy-eight;

(f) all lands, freehold or leasehold, of the municipality not wholly subject to a highway; and

(g) all lands of which the municipality is in possession under section seven hundred and seventy-one.

(2) ...

(3) A map under this section may be on one sheet or several and different information may be shown on different sheets of the same area.

(4) A map under this section may be inspected, free of charge, by any ratepayer or elector of the municipality or his agent while the municipal office is open.

(5) A map under this section is prima facie evidence of the matters mentioned in paragraphs (a), (b), and (c) of subsection (1), and any landowner thereby aggrieved may request the corporation to correct the map by notice setting forth the grounds for the correction.

(6) If the corporation does not correct the map as requested within one hundred and twenty days after delivery of a notice under subsection (5), the person giving the notice may appeal to a police magistrate against the council's resolution not to amend the map as requested or if there has been no such resolution as if there had been.

(7) ...

(8) ...

(9) The corporation has three years from the commencement of this Act and such further time (if any) as the Minister may allow to comply with subsection (1).

(10) Subsection (5) does not operate in a municipality until five years from the commencement of this Act.

(11) ..."

96 The only relevant amendment made to s694 prior to its repeal was made by No 51 of 1982, which substituted: "all local highways maintainable by it" for that which had been in subs(1)(a). The amendments then made coincided with the Local Government (Highways) Act 1982 coming into effect and included inserting references to that Act in s694(1)(d) and (e).

97 The 1962 Act, s694, was replaced by the Local Government Act 1993, ss208 and 209, which then provided:

"Council map

208 - (1) A council is to keep up to date a map of its municipal area showing the following:-

(b) all other highways, other than State highways, made, formed, paved or otherwise made good;

(c) all roads known to it that an owner is liable to maintain;

(d) All streets that it has resolved to construct under Part V of the Local Government (Highways) Act 1982;

(e) all roads leased under section 63 (2) of the Local Government (Highways) Act 1982;

(2) One combined map may be used for the purposes of this section, section 60 of the Waterworks Clauses Act 1952 and section 13 of the Sewers and Drains Act 1954.

(3) A map -

(a) may be on one sheet or several sheets and different information may be shown on different sheets of the same area; and

(b) may be inspected, free of charge, by any person; and

(c) is evidence of the matters mentioned in subsection (1) (a), (b) and (c).

Corrections of map

209 - (1) An owner who is aggrieved by any matter included in the map under section 208 (1) (a), (b) or (c) may, by notice in writing, request the council to correct the map.

(2) A notice is to -

(a) state the grounds for the request for correction; and

(3) If the council does not correct the map as requested within 120 days after the owner has lodged a notice, the owner may appeal to a magistrate.

(4) In the hearing of the appeal -

(a) the magistrate may summon any other interested party; and

(b) Part XI of the Justices Act 1959 applies."

98 With effect from 14 July 2000, par(ab) was added to s208(3). It provides that a map may be in an electronic form.

99 With effect from 1 July 2005, s208(1) was amended to impose the obligation to keep the map on the general manager, not the Council. That subsection now begins:

"The general manager is to keep up to date a map of its municipal area showing ...".

100 Save for the insertion of par(ab) into s208(3) with the result that a map may now be in an electronic form, I do not consider that the differences between the 1962 Act, s694, and the 1993 Act, ss208 and 209 to be of significance.

101 I find that consistent with the obligations imposed by the 1962 Act, s694, and the 1993 Act, s208, the Council, and more recently its general manager, has kept up-to-date maps of its municipal district/area, "municipal maps".

102 I make the obvious point that not every map of the municipality that is or has been kept by the Council is a municipal map. For a map to be a municipal map, it must have been prepared as such. After all, it is only a municipal map that is open to objection by any ratepayer or elector/person, and is prima facie evidence/evidence of the matters referred to in pars(a), (b) and (c) of ss694(1) and 208(1).

103 The oldest substantial index of maps held by the Council is a batch of handwritten index cards. This system of recording maps and plans commenced in about 1964. Both sides of each card have been used. The index runs to 272 pages. Card number 79 includes details of municipal maps. As originally written, it relevantly recorded:

104 The substance of the above record was carried forward onto a typed series of index cards headed "TP & Municipal Maps". It seems clear from the other entries in this index that the initials "TP" refer to Town Planning. These typed cards form part of a system introduced in about 1977 that eventually replaced the handwritten cards.

105 As originally typed, this index relevantly recorded:

106 It is clear that the maps numbered 1025, 1026, 1027, 1028 and 1029 were initially kept, and kept up-to-date, for the purposes of one or other of pars(a), (b), (c) and (d) of s694(1):

•

Maps numbered 1026, like maps numbered 1025, are recorded in the handwritten index as relating to "H'ways repairable by CMC". The former relate to rural areas and the latter to metropolitan areas. Clearly these maps were initially kept and maintained pursuant to par(a).

•

Each map numbered 1027 is designated "All highways (not State) at any time well and sufficiently made good". Plainly they relate to par(b).

•

The map numbered 1028 is designated "All roads known that a landowner is liable to repair". Plainly this relates to par(c).

•

All maps numbered 1029 are designated "All roads resolved to construct at frontagers' expense". Plainly they relate to par(d).

107 Prior to 1970, the maps were kept in the form of transparencies. The maps that are the basis for transparencies numbered 1025 and 1026 are maps of the Southern Metropolitan Master Planning Authority. Nearly all the maps record that they were prepared from information supplied by the Surveyor-General and aerial photographs, in the main, said to have been taken in 1958. Transparency 1025 sheet "V" is the map of Opossum Bay. The only streets in the vicinity of where Marsh Street now is, that are marked on this map, are Gellibrand Lane and Spitfarm Road. They are marked on the map with a heavy black line. Marsh Street is not named or marked on the map. There is a single dotted line where I assume Marsh Street now is. To my eye, as represented on the map, what is now Marsh Street was an unnamed walking track. The scale on these transparencies was imperial. The scale on map 1025 sheet "V" was one mile to an inch.

108 The transparencies of maps numbered 1025 and 1026 are tied together with transparencies of a handwritten index headed "Municipality of Clarence Roads Maintained by the Council". The person who wrote the index had a most distinctive style. It seems that the same person maintained it throughout the period that it was current. It is also apparent that when initially prepared, a not wholly successful effort was made to list the streets in alphabetical order. In result, it is possible to discern where streets have been added to the index as they have been added at the end of the list of streets, beginning with the same letter, but are out of alphabetical order. Examples are Bisdee Street, Chelsea Court, Longview Court, Longview Walk, McClements Street and Waters Edge Court. This shows that throughout the period of the currency of the transparency system the maps were updated from time-to-time.

109 I mention some handwritten alterations that have been made to relevant portions of the card indexes. A faint line has been put through the first line of the municipal maps entry in the handwritten index, as well as through the words "metropolitan areas" in the next line. The first two lines of the municipal maps entries on the typed index have been altered by handwritten entries bracketing the entry "Rural Roads - Municipal Maps" with the entry "Urban Roads - Municipal Maps" and the reference to maps numbered 1025 next to the entry "Rural Roads - Municipal Maps" has been crossed out. The following is a rough indication of the result:

110 These alterations do not diminish the evidentiary value of the index cards or map 1025 Sheet "V". What is clear from the original entries made in the index cards is that the maps were designated to be municipal maps. It is likely that the alterations to the cards were made some time after the Council ceased distinguishing between municipal maps of the rural roads it maintained and municipal maps of the urban roads it maintained. It seems that the Council ceased drawing this distinction at about the time that the index to the transparencies was prepared.

111 Throughout the 1970s the maps were metricated. Metrication had been finalised by 1980, and from that time, municipal maps of roads were kept in A3 paper form and updated by hand as new roads or streets became the Council's responsibility.

112 Four volumes of the metric maps of roads maintained by Council are in evidence. The volume that followed the transparencies is titled "Municipality of Clarence Roads Maintained by the Council". A note on its cover indicates that it belonged to the "Field Engineer". Once again the maps upon which it is based are maps of the Southern Metropolitan Master Planning Authority, however these maps were released between October 1974 and December 1980, the majority being released in 1980. I will refer to this volume as the 1980 edition. Map 39, sheet number 5270-7, in this volume is the map of Opossum Bay. It was released in May 1976. In addition to Spitfarm Road and Gellibrand Lane, two streets in the vicinity of where Marsh Street now is have been drawn on this map, named and marked with a heavy black line. They have also been included in the index to the volume. They are Driftwood Drive and Bodega Court. Whilst Marsh Street is drawn on this map and named, it is not marked with a heavy black line. Marsh Street has not been included in the index.

113 It is clear from the form, content and presentation of the handwritten index to the 1980 edition that it is an update of the handwritten index to the transparencies and was prepared by the same person who prepared the former index. Once again it is apparent that when there has been an addition to the roads maintained by the Council it has been added to the list of streets beginning with the same letter, but at the end of that list and accordingly out of alphabetical order. Examples are: Baragoola Lane and the streets that follow it, which include Bodega Court; Chelsea Court and the streets that follow it; Driftwood Drive and Downhams Road; Link Road off South Terrace; Pipeclay Esplanade; and the road to Tranmere Reservoir. Again it seems that throughout the period of the currency of this volume it was updated from time-to-time.

114 The other three volumes of metric maps are copies of the volume that followed the 1980 edition. The typed index to these volumes has no title but is headed "List Current as from 1 June 1991". I will refer to this volume as the 1991 edition. Once again, maps of the Southern Metropolitan Master Planning Authority are the basis for the volume. The release date of the maps is recorded on most of them. Map 104 was released in January 1978. The great majority of the maps were released in 1987. Some were released in 1988, and map 76 was released in June 1990. Again, map 39, sheet number 5270-7, in this volume is the map of Opossum Bay. The release date of this map was May 1987. Additional streets in the vicinity of Marsh Street is have been marked with a heavy black line. They are Bangor Road, Pier Road and Rainbow Terrace. There is no change in the way in which Marsh Street is dealt with on this map. Whilst it appears on the map and is named, it is not marked with a heavy black line.

115 The title on the cover of one of the three volumes of the 1991 edition is "Roads Maintained by Council". The title on the blue cover of another volume is "City of Clarence Roads Maintained by Council". I will refer to it as the Blue volume. The title on the cover of the third volume is the same, but this cover is also marked "Technical Services Officer". "Superseded" has been written across this cover. It seems clear that these volumes were kept in different offices in the Council. As typed, the index in each volume is the same and includes Marsh Street. Each index includes a handwritten addition; "Katrina Court". It is obvious that this addition was made to the index before it was photocopied for each volume.

116 The attention given to updating the typed index in each volume of the 1991 edition with handwritten additions varies considerably. Ignoring the handwritten addition of "Katrina Court" that appears in each copy of the index, no handwritten additions have been made to the index in the "Roads Maintained by Council" volume. The handwritten additions to the index in the volume of the Technical Services Officer are:

•

Gray Court

•

Harry Place

•

Jeune Drive

•

Kelson Place

The handwritten additions to the index in the Blue volume are:

•

Cahill Place

•

Cobblers Street

•

Direction Drive

•

Pindos Drive

•

Sadler Place

•

Shelomith Drive.

117 It is significant that notwithstanding the varied and indifferent attention given to updating the index in each volume, close attention was given to updating the maps in each volume. In result, regardless of whether the index was updated, the map in the volume was updated. The maps in each volume reflect all of the handwritten additions to the indexes to which I have referred, regardless of whether that handwritten addition was made to the index of that volume. Moreover, some streets have been added to the maps in each volume, and no index records their addition. An examples is Sollamer Place, map 4. The only inconsistency between the content of the maps that I have noted is that whilst Cobblers Street has been added to map 83 in each volume, the extent of that addition is less in that map in the volume titled "Roads Maintained by Council".

118 From about 1989, the Council developed two electronic databases known as Latitude and Maximo which record various information in relation to roads and streets in the municipality. Layer 64 of Latitude has replaced the hard copies of the municipal maps of roads maintained by the Council to which I have referred. Within layer 64, the roads maintained by Council are shown marked with a heavy pink line. The information recorded on this layer in relation to Marsh Street is the same as that which appears on map 39 in the 1980 edition and the 1991 edition. Whilst the roads in the immediate vicinity of Marsh Street are marked with a heavy line, in this case a heavy pink line, Marsh Street is not so marked, although, as in the former maps, it appears. The information recorded on Maximo referrable to roads and streets includes whether a street is privately owned or not. Maximo records that Marsh Street is privately owned.

119 I find that Marsh Street is not and never has been recorded on a municipal map as a highway repairable by the Council (the 1962 Act, s694(1)(a)), or as a highway maintainable by the Council (the 1993 Act, s208(1)(a)). Accordingly, I find that Marsh Street is not and never has been a local highway maintainable by the Council as shown on its municipal map for the purposes of the Local Government (Highways) Act 1982, s21.

120 As is to be expected, Marsh Street appears on other maps kept by the Council. An example is a map referred to in the card index as "Rural Roads" numbered 910/4. There is no suggestion in the index or the map itself that it is or was a municipal map, let alone a map depicting any of the matters detailed in pars(a), (b), (c), or (d) in the 1962 Act, s694(1), or the 1993 Act, s208(1). I make similar comments in relation to maps reproduced in the defendant's court book, Volume 3, at 777, 779, 786, 796 and 797. Moreover, whilst it is clear that some of these maps, for example, 796 and 797, were maps of the Council, it is not clear that others were in fact kept by the Council. My understanding is that the other maps were obtained from the Public Works Department or the Department of Main Roads.

121 The defendant sought to derive assistance from Council maps on layer 19 of Latitude. These maps identify roads to which the public has access and distinguish between State roads, Council roads and private roads. Marsh Street appears on these maps as a Council road. Layer 19 maps do not assist the defendant as they patently are not municipal maps maintained for the purposes of the Local Government Act 1993, s208(1)(a)(b)(c) or (d).

122 In his written and oral submissions, and in the course of questioning witnesses, the defendant has, in substance, asserted that officers of the Council have deliberately failed to disclose maps and other documents that record that Marsh Street is a road maintainable by the Council and have altered records that were to that effect. I reject these assertions. I am in no doubt that the reason why no municipal map has been produced that records Marsh Street as a road maintainable by the Council is that no such map is or has existed.

123 More generally, I note that documents have been produced that record that on a number of occasions and by a variety of means various officers of the Council have in substance said that Marsh Street was a public street, or said that Marsh Street was maintainable by the Council. Witnesses have also given evidence to this effect. There is also evidence to the contrary effect. There has obviously been considerable confusion amongst officers of the Council, and others, about the legal status of Marsh Street. An instance of this that was relied upon by the defendant is the Council's approval of a subdivision proposal in 1972 that was submitted on behalf of Mrs E J Burbury, the then owner of Lot 10. As I read the documents that resulted in the approval of that subdivision, it was assumed by all concerned that Marsh Street was a public road. The subdivision did not proceed. Incidentally, in the map of that subdivision that was presented to the Council by surveyor, Mr G W Griggs, Marsh Street is described as "unmade".

124 That officers of the Council have said words to the effect that it was a public street and maintainable by the Council does not change its legal status, and does not change the facts in relation to the manner in which it is and has been dealt with in the Council's municipal maps. The same can be said of other evidence which includes evidence that:

•

A street sign has and does identify Marsh Sreet.

•

There are street lights in Marsh Street and garbage is collected from residences in the street.

•

The owners of Marsh Street have not been charged rates or land tax referrable to it.

•

Buses that service the public have used the entrance to Marsh Street in order to turn around, and there is a bus stop sign inside that entrance.

•

In 1951 the State Government made ₤500 available to the Public Works Department to carry out work on the turning point at Opossum Bay, which I take to be the area at the entrance to Marsh Street where the bus turned.

•

Workers employed by the Council have on occasions slashed grass in Marsh Street, repaired potholes and the like where the bus turned, left excess gravel in that area so as to increase the turning area, left other material that could improve the road surface in Marsh Street, and cleared away a tree that had fallen on the side of the street.

•

The Council's Maximo record of work orders referrable to Marsh Street is:

o a sign repair in 1999;

o pot-hole repairs in 2001;

o a request for a grade in May 2003;

o a note that the street sign had been removed in June 2004;

o an inspection in March 2010, and

o an entry referrable to the street sign in February 2011.

125 This and other evidence establishes a public perception that Marsh Street is and has been a public street and a belief on the part of some Council personnel that the Council had an entitlement or responsibility to maintain Marsh Street. This evidence does not prevail over the clear evidence that Marsh Street has never been dedicated as a highway. Nor does it contradict the clear evidence that Marsh Street has never been recorded on a municipal map, kept by the Council pursuant to its statutory obligations in that regard, as a road that was repairable or maintainable by the Council.

126 I declare that Marsh Street is not a highway and is not maintainable by the Council pursuant to the Local Government (Highways) Act 1982.