Fenelon & Anor v Dove & Anor [2010] VSCA 187

1 I will ask Beach AJA to deliver the first judgment.

2 This appeal concerns rights of access to a strip of land known as Scott Road, Yarra Glen. Specifically, it concerns rights of access to that part of Scott Road which has been determined to be an 'unused road' by the operation of s 400 of the Land Act 1958.

3 The appellants (Mr and Mrs Fenelon) reside at what is now known as 51 Scott Road, Yarra Glen. The respondents (Mr and Mrs Dove) reside at what is now known as 63 Scott Road. The relevant part of Scott Road runs along the south-east boundary of the Fenelons' property before terminating at the north-east corner of the Doves' property. Mrs Fenelon holds a licence issued by the Department of Conservation and Natural Resources over the relevant part of Scott Road. The licence permits her to use the land for the purpose of grazing.

4 Whilst Mr and Mrs Dove have other means of accessing their property, for reasons which are immaterial to this appeal, they wish to access their property by using Scott Road - which would involve passing over the licensed land. On the other hand, Mr and Mrs Fenelon wish to maintain fences around the licensed land which would exclude the Doves from being able to pass over it.

5 Over the years, disputes have arisen between the Doves and the Fenelons. The Doves have placed gravel on the licensed land and have installed gates in the fences so as to enable them to gain access to the land and pass over it. When the Fenelons have attempted to secure the land with locks and chains, the Doves have broken the locks and chains and cut fencing wire and posts. On occasions, Mr Fenelon secured the licensed land - but within days the Doves used bolt and

wire cutters and, on one occasion, a chainsaw to gain access to the land.

6 On 17 March 2008, the Fenelons issued proceedings in the County Court seeking injunctions preventing the Doves from interfering with the fences around the licensed land and damages for trespass. The Doves responded to this by counterclaiming for a declaration that they are entitled to 'full and free right of use of passageway over the licensed land' and an injunction preventing the Fenelons from obstructing their passageway over the licensed land.

7 The matter came on for hearing in the County Court in December 2008. On 19 December 2008, the Fenelons' claims were dismissed and the Court granted a declaration that the Doves 'are lawfully entitled to pass and repass over [the licensed land]'.

8 The Fenelons now appeal from the judgment dismissing their claims and the judgment on the counterclaim granting the declaration in favour of the Doves.

9 At trial, there was little dispute on the facts. Indeed, the parties tendered a statement of agreed facts and documents. Omitting footnotes (which deal largely with the documents supporting the agreed facts and the fact that the councils referred to were the relevant councils), the statement of agreed facts and documents provided as follows:

1. Noella Fenelon is the owner of Lot 2 PS404822E (formerly, part Crown Allotment Lot 34C, Yarra Glen in the Parish of Burgoyne), also known as 51 Scott Road, Yarra Glen ('51 Scott Rd'). Anthony Fenelon is married to Noella Fenelon.
2. She bought 51 Scott Rd from Richard Powles and Judith Powles in about June 2000 and became the registered proprietor on 25 July 2000. Mr and Mrs Fenelon completed building their family home on the property in August 2003. They have lived there ever since.
3. Before that, in about June 1993, Mr Powles (as part owner of 51 Scott Rd) and Mr Steve Hosking (part owner of the land (part owned by his wife Debbie Hosking) formerly known as Crown Allotment Lot 34E (now known as 49 Scott Road Yarra Glen in the Parish of Burgoyne) applied to the Department of Conservation & Natural Resources to obtain a grazing licence over land situated between their respective properties and located immediately adjacent to the southern boundary of 51 Scott Rd ('the Licensed Land').
4. On about 8 May 1994, Mr Powles was granted a grazing licence number UR 91134 dated 11 May 1994 commencing on 1 April 1994 and of six months' duration) by the Department of Conservation and Natural Resources ('the Department') to graze cattle on the Licensed Land. The licence provided:

"[the licensee had] licence and liberty to enter and use ... the land described in the [sic] Schedule A below, subject to any right-of-way described in the said Schedule A and to the Conditions on the back hereof and to use the lad (sic) for the purpose stated in Schedule B".

1. Schedule A to the licence described above was in the following terms:

"All that land in the Shire of Healesville Parish of Burgoyne containing 0.2 hectares being unused road between Crown Allotments 34C and 34E".

1. Mr Powles' licence was granted on the basis that that portion of the Crown land had been declared an 'unused road' by the Shire of Healesville.
2. Subsequently, on about 1 October 1994, the Department granted a licence to Mr Powles in respect of the Licensed Land. That licence bore the number 1205311, commenced on 1 October 1994 and was of 99 years' duration.
3. On about 27 July 2000, the Department of Natural Resources and Environment indicated that it would transfer the licence granted to Mr and Mrs Powles referred to above to Mrs Fenelon. In about August 2000, the licence was paid in full for the remainder of the 99 years.
4. Shortly after about 22 August 2000 (ie when the Department sent the receipt in respect of Mr and Mrs Fenelon's payment of the transfer fee and fee for the remainder of the 99 years), Mrs Fenelon received from the Department an agricultural licence to graze cattle on the Licensed Land.
5. On about 23 November 2001, the Department of Natural Resources and Environment sent to Mrs Fenelon an amended Agricultural licence no 1205311 authorising the use of the Licensed Land for grazing ('the Agricultural Licence').
6. Robert Dove became the owner of Lot 1 PS 341137 (Part Lot 34D) known as 59 Scott Road, Yarra Glen ('59 Scott Road') in about April 1999 (since 24 August 2006, known as 63 Scott Road). At no stage has he (or his wife) been granted a licence in respect of the Licensed Land.
7. In about May 2001, the Yarra Ranges Shire Council, considered and refused Mr and Mrs Dove's application to open the unformed section of Scott Road as a public road. The Council notified Mr and Mrs Fenelon of this decision by letter dated 24 May 2001.
8. The Licensed Land is both a 'road' and an 'unused road' for the purposes of the Land Act 1958.

10 The trial judge identified the issues at trial as follows:[1]

The issues for determination in the proceeding are:

(a) whether the land, having become an unused road or being the subject of a licence for grazing purposes, affected the defendants' [Doves'] rights of passage over the land without trespassing;

(b) the statutory provisions determinative of that issue.

11 The trial judge expressed his conclusion in the following terms:[2]

I do not consider that at the time the licence was granted to the first plaintiff [Mrs Fenelon] the rights of members of the public, including those of the defendants [the Doves], to lawfully pass and repass over the licensed land without trespassing were taken away, or suspended for the period of the licence. The passage of the Road Management Act 2004 did not affect that position. I see no basis for concluding that the completion of the procedure under s 400, either by itself or in conjunction with the possible (or actual) grant of a grazing or agricultural licence affects the rights of passage by members of the public over the land.

12 His Honour then set out what he described as the limits of the respective rights of the parties.[3] His Honour said:

(a) Mrs Fenelon as licensee can use the licensed land for the purpose of grazing.

(b) Members of the public, including the Doves, can pass and repass over the licensed land without trespassing, although apart from the Doves and their invitees, other persons are unlikely to contemplate using the road.

(c) The Doves can not otherwise enter the licensed land, for example, to destroy vegetation or to carry out improvements including roadworks.

(d) Neither the Fenelons, nor the municipal council, has any obligation to maintain any part of the land for the passage of motor vehicles.

(e) Mrs Fenelon can restore the licensed land to grazing land by removing the gravel placed by the Doves.

(f) Mrs Fenelon must provide a means of access at each end of the licensed land and through the diagonal fence.

(g) In the longer term, if the licensed land reverts to grazing land, it may be more appropriate for the Doves to upgrade the existing right of way on their own property where they allege that a 'slippage' makes it unsafe.

13 In this appeal, the Fenelons rely on three grounds. Their grounds of appeal are as follows:

1. The learned trial judge made an error of law in holding that the Appellants' use of the Licensed Land for grazing (by animals) - the purpose provided for in the Agricultural Licence - was not incompatible with members of the public using the land to pass and repass. No reasonable trier of fact could have reached such a conclusion on the statement of agreed facts put before his Honour. Or alternatively, such a conclusion was against the weight of the evidence (being the contents of statement of agreed facts).
2. The learned trial judge made an error of law in holding that:

2.1 the declaration by the local municipal council that the Licensed Land was an 'unused road' pursuant to section 400(1) of the Land Act 1958 ('the Act');[4] and

2.2 the Department of Natural Resources and Environment's granting in August 2000 of the Agricultural Licence to the First Appellant pursuant to section 130 of the Act,

did not take away or suspend the Respondents' rights, as members of the public, to lawfully pass and repass over the Licensed Land without trespassing. His Honour fell into error by:

2.3 reaching the above conclusion on the basis that section 400(1) and section 130 of the Act did not expressly provide that the rights of the public in relation to land (the subject of those sections) are suspended or extinguished;[5]

2.4 taking into account the fact that the Agricultural Licence was said to be 'non-exclusive', when that fact was not relevant to the proper determination of the issue;

2.5 not properly taking into account the effect of sections 401A(1), 401A(2), 407(1) and 407(3)(a) and of the Act and section 3A(3) of the Road Management Act 2004; and

2.6 failing to properly apply and/or distinguish the Court of Appeal's decision in Bass Coast Shire Council v King.[6]

1. The learned trial judge made an error of law in holding, in effect, that the Appellants' actions in maintaining and/or reinstating the fences (that were in existence at the time the First Appellant obtained the Agricultural Licence) on the Licensed Land constitute a nuisance which could be abated by the Respondents. His Honour fell into error because an express term of the (written) conditions of the Agricultural Licence explicitly required the First Appellant to keep 'in good order and condition' all such fences.[7]

14 The Fenelons' contentions may be summarised briefly as follows. The licensed land, as an unused road over which a licence was first granted in 1994, was fenced off before the Doves came to live at 63 Scott Road so as to incorporate it into the Fenelons' land. The fencing is an improvement which Mrs Fenelon is under an obligation to maintain. The Doves hold no rights in respect of the licensed land. Further, they have no entitlement to use the licensed land as a road to gain access to their property. Additionally, this fact has been known to the Doves at all times following the rejection of their application to open the licensed land as a road necessary for public use.

15 On the other hand, the Doves contend that the licensed land is a 'road' at common law, being a 'public highway'. They contend that, as a result of the road being a public highway, they have a right to pass and repass over it. Further, they contend that whilst a public highway may be extinguished by legislation, this must be done by express terms or necessary implication (ie, if the powers conferred by the statutory provision could not be exercised without that result). They submit that the power conferred in relation to the granting of a grazing licence over an unused road is able to be exercised without public rights of way being extinguished and that such private rights of use and public rights of way 'regularly co-exist'.

16 Before proceeding further, it is necessary to examine the statutory provisions concerning unused roads, licenses to occupy and use unused roads and the rights and obligations of licensees of unused roads.

Part 1, Division 8 and Part 13 of the Land Act 1958

17 The current provisions concerning unused roads and licences for agricultural purposes are contained in Division 8 of Part 1 and Part 13 of the Land Act 1958. Section 400 of the Land Act provides:

(1) A municipal council may give notice to the Secretary that any road or part of a road which is within the municipal district of that municipal council and which it considers is not required for public traffic is an unused road and upon the giving of any such notice any road or part of a road specified therein shall be an unused road.

(2) Every such notice shall be in the prescribed form and shall contain such particulars as may be prescribed.

18 Section 402 of the Land Act provides:

(1) Where the land on one side only of an unused road is fenced off from such road the occupier of any unfenced private land on the opposite side of such road shall obtain a licence under Division 8 of Part I or section 138 of this Act to enter and use the whole of such road to the extent to which his land abuts thereon. The occupier of such unfenced private land while he is the licensee of such unused road shall when any dividing fence between such road and any private land on the other side of the road is out of repair or becomes insufficient be liable for one-half the cost of repairing such fence as if he were an occupier within the meaning of the Fences Act 1968.

(2) Where the land on both sides of an unused road is not fenced off from such road the occupier of any private land on either side of such road shall obtain a licence under Division 8 of Part I or section 138 of this Act to enter and use the half of such road on which his land abuts:

Provided that -

(a) if the occupier of the land on one side of the road consents in writing the occupier of the land on the opposite side may obtain a licence under Division 8 of Part I or section 138 of this Act to enter and use the whole of the road to the extent to which his land abuts thereon; or

(b) if both occupiers agree in writing as to the parts of the road for which each of them shall obtain a licence under Division 8 of Part I or section 138 of this Act and those parts together comprise the whole of the road to the extent to which their lands abut thereon they may obtain licences accordingly but no fence shall be placed on the road except at right angles thereto.

19 Section 407 of the Land Act deals with the cancellation of licences in respect of unused roads. Section 407(1B) provides that where a licence relating to an unused road has been cancelled, then the road 'shall cease to be an unused road for the purposes of this Act'. Section 407(3) provides:

(3) Where a licence under Division 8 of Part I or section 138 of this Act for an unused road has been cancelled under subsection (1) of this section the council of the municipality in whose municipal district the unused road is situated-

(a) shall keep the unused road open for public use and free from obstruction; and

(b) may cause any building hedge ditch fence hole heap drain or obstruction which has been made on across or in the unused road to be taken down or filled up or removed or otherwise made good at the expense of any person by whom the same was made or to whom it belongs and may in default of payment of such expense recover the amount thereof in the Magistrates' Court.

20 Section 130 of the Land Act provides:

(1) The Minister or a person authorised in writing by the Minister may grant a licence for agricultural purposes.

(2) A licence granted under subsection (1) is subject to -

(a) the payment of a fee or fees determined by the person granting the licence; and

(b) the terms and conditions that the person granting the licence thinks fit.

(3) Without limiting subsection (2), a licence granted under subsection (1) may contain options for the licensee to renew the licence for a further period or periods.

21 Whilst the expression 'agricultural purposes' is not defined in the Land Act, by s 3, 'agriculture' is defined to include 'horticulture and grazing'.

22 Section 130AB of the Land Act provides:

A licence under this Division may be granted over -

(a) unreserved Crown land;

(b) Crown land reserved under section 4 of the Crown Land (Reserves) Act 1978 which -

(i) is not vested in trustees; and

(ii) is not vested in a municipal council; and

(iii) has not had a committee of management appointed; and

(iv) is not placed under the control and management of a person or body under section 18 of that Act;

(c) unused roads;

(d) water frontages.

23 Section 130AC of the Land Act provides:

Without limiting section 130(2), a licence may contain conditions regarding the following -

(a) payment of fees in advance and review of fees;

(b) improvements on the land, including the ownership of improvements on the land;

(c) fencing;

(d) compliance with directions issued by the Secretary regarding-

(i) grazing or management of the land (including fencing), or the number and type of stock which may be depastured on the land;

(ii) frequency, timing and method of cultivation;

(iii) water supply and other improvements;

(iv) reclamation of eroded areas and land degradation;

(v) retention or clearance of native vegetation;

(e) cancellation or termination;

(f) clearing of land;

(g) entry by the Minister, authorised officers or appointed persons to monitor compliance with the licence or for other purposes.

24 As the trial judge noted, the Doves' admission that the licensed land was an 'unused road' pursuant to the Land Act, necessarily involves a concession that at some time prior to 1993 the local council, the Shire of Healesville, gave notice pursuant to s 400 of the Land Act that it considered the relevant part of the road was 'not required for public traffic' and therefore was an unused road.[8] The material does not disclose precisely when the licensed land became an 'unused road'. In their notice of appeal, the Fenelons contend that the relevant version of the Land Act is that which was in force before 26 January 1995.[9]

25 The origins of the current provisions are to be found in the Unused Roads and Water Frontages Act 1903 ('the 1903 Act'). By s 2 of the 1903 Act, 'unused road' was defined to mean 'so much of any road or part of a road as is specified as unused in any return made by any council as hereinafter provided or which whether included in any such return or not is declared by the Governor in Council to be unused road.'

26 Section 5 of the 1903 Act permitted the Minister to grant licences for the occupation and use of any unused road. Section 10(1) of the 1903 Act required the licence to contain certain conditions, including:

(d) a condition that on payment of [an] increased rate of licence fees ... the licensee may cultivate or break the soil of the licensed land with the written consent of the Minister and the council of the municipality within which such road ... is situated;

...

(f) such other conditions and provisions as may be necessary for carrying out the objects and intention of this Act including a condition requiring the erection and maintenance of suitable unlocked swing gates when in the opinion of the Minister such a condition is reasonable.

27 Section 12 of the 1903 Act provided that all unused roads licensed under the 1903 Act 'shall for the purpose of the local government Acts be deemed to be rateable property, and the licensee ... shall be deemed to be the occupier thereof'.

Where any council of a municipal district in which there is an unused road ... proves to the satisfaction of the Minister that it is desirable that such road ... be made available for traffic, the Minister may require and compel any licensee thereof to open such road ... to be used for traffic or by the public and may cancel his licence thereof. ...

29 Subject to various amendments, the relevant provisions were subsequently to be found in s 732 and following of the Local Government Act 1915, s 858 of the Local Government Act 1928 and s 904 of the Local Government Act 1958 - before finding their way into the Land Act.[10]

30 Until its repeal on 26 January 1995, by s 28 of the Crown Lands Acts (Amendment) Act 1994, s 401 of the Land Act provided:

(1) Notwithstanding anything in any Act or in any proclamation or order of the Governor in Council or in any map or plan, the Minister or any person duly authorized by him in that behalf may grant to a person -

(a) a licence to enter an unused road or part of an unused road and to use the road for a purpose specified in the licence; or

(b) a licence to enter a water frontage and to use it to depasture cattle or sheep.

(2) No such licence shall be granted unless the Director-General has consulted in relation thereto with the municipal council within whose municipal district the unused road or the water frontage or any part thereof is situated.

(3) In this section 'cattle' means bulls, cows, oxen, heifers, steers, calves, horses, mares, geldings, colts and fillies.

31 On that day (26 January 1995), s 401 was repealed. However, the power to grant a licence over an unused road was not abolished because when s 401 was repealed, s 130AB was enacted - paragraph (c) of which permitted licences to be granted over unused roads.

32 Similarly, until 26 January 1995, s 405(2) of the Land Act provided that a licence to enter and use and unused road must contain a condition that the licensee would not, except with relevant written permission and upon payment of an additional fee, 'cultivate or break the soil of the licensed land'. Further, s 405(2) provided that a licence may contain 'a condition requiring the erection and maintenance of suitable unlocked swing gates, cattle pits, ramps or other suitable means of passage'. Upon the repeal of s 405(2), the statutory provision dealing with licence conditions was enacted in s 130AC.

33 An analysis of the statutory provisions concerning licences over unused roads shows that from the commencement of the 1903 Act to the present, the Minister or authorised person has been permitted to grant a licence over an unused road, which licence might have the effect of allowing members of the public to pass over the unused road or which might have the effect of closing the unused road to members of the public.

34 At one end of the spectrum, the legislative provisions permit the granting of licences on terms that might require gates in any fences so that members of the public could pass over the unused road. At the other end of the spectrum, a licence might be granted which did not require the provision of gates, and for a use inconsistent with the notion that members of the public retained some right to pass over the unused road. An example of such a purpose would be the planting of a crop.

35 Whilst the Fenelons sought to point to statutory provisions which were said to deny members of the public a right to pass over a licensed unused road,[11] and whilst the Doves sought to point to the absence of statutory provisions extinguishing the public's right to pass over a licensed unused road as showing that the right co-existed with any rights granted by a licence,[12] the true position is that the legislative framework permits licences which might or might not (depending on their terms) exclude members of the public from passing over the licensed land. In my view, the question of whether a member of the public may pass over an unused road which is the subject of a licence depends upon the terms of the licence and the circumstances of the case.

36 The licence granted to Mr Powles in October 1994[13] contained a condition that the licensee 'must if directed to do so in writing by the licensor maintain suitable unlocked swing gates, cattle pits, ramps and other suitable means of passage in any fence across the licensed land'. After the licence was transferred to Mrs Fenelon, the Department of Natural Resources and Environment sent to Mrs Fenelon an amended licence. The amended licence bore the same number as the licence granted to the Powles. In the schedule, the term was noted to be 99 years from 1 October 1994. However, the licence issued to Mrs Fenelon did not contain the condition relating to the provision of suitable unlocked swing gates and other means of passage in any fences across the licensed land.

37 The licence issued to Mrs Fenelon contained the following conditions:

The rights conferred by this Licence are non-exclusive, do not create or confer upon the Licensee any tenancy or any estate or interest in or over the licensed land or any part of it, and do not comprise or include any rights other than those granted or to which the Licensee is otherwise entitled by law.

The Licensee Hereby Covenants with the Licensor that during the term the Licensee will:-

...

...

...

2.4 Maintenance

2.4.1 Throughout the term keep the licensed land in good order and condition and the improvements (if any) on it in good order and condition having regard to their condition at the commencement date or, if constructed or added to the licensed land after the commencement date, at the date of such construction or addition as the case may be and in particular but without restricting the generality of the foregoing will:-

2.4.1.1 Keep the licensed land free of pest animals and weeds;

2.4.1.2 Remedy every default of which notice is given by the Licensor to the Licensee within a reasonable time specified in the notice but in any event the time specified in the notice will not be less than 14 days.

...

The Licensee Hereby Covenants with the Licensor that during the term the Licensee will not -

3.1 Use of Licensed Land

Use the licensed land for any purpose specified in Item 12 of the Schedule or any additional purpose specified in Item 14 of the Schedule without first obtaining the Licensor's written consent which can be given or withheld at the absolute discretion of the Licensor or be given subject to conditions.

3.2 ...

3.3 ...

3.4 ...

3.5 ...

3.6 Licensor's Entry

3.6.1 Prevent, attempt to prevent or in any other way hinder, obstruct or permit the hindrance or obstruction of the Licensor or the Licensor's employee or agent at any time from entering and remaining on the licensed land either with or without motor vehicles or other equipment for any purpose and in particular, but without restricting the generality of the foregoing, for any of the following purposes:-

3.6.1.1 retaking or attempting to retake possession of the licensed land;

3.6.1.2 inspection; or

3.6.1.3 any other lawful purpose.

3.7 ...

3.8 Cultivation and Use of Licensed land

3.8.1 Without the Licensor's prior written approval, which can be given or withheld at the absolute discretion of the Licensor or be given subject to conditions:-

3.8.1.1 fell, ringbark, injure, destroy or remove any living or dead vegetation (except weeds) or fallen timber on the licensed land;

3.8.1.2 plough, cultivate, work, break up or remove soil or construct any earthworks on the licensed land;

3.8.1.3 plant any vegetation, seed or crop on the licensed land; or

3.8.1.4 apply fertilizer to the licensed land.

3.9 Erection of Improvements

Erect or permit the erection of any improvement on the licensed land without the Licensor's prior written approval, which can be given or withheld at the absolute discretion of the Licensor or be given subject to conditions.

...

4.2 Termination without Default

4.2.1 In addition to and not in substitution for the power to cancel this Licence under clause 4.1, the Licensor may by giving to the Licensee at least 30 days' written notice to that effect cancel this Licence upon a date to be specified in that notice notwithstanding that there has been no breach by the Licensee of any term or condition of this Licence.

4.2.2 If the licence is terminated under this clause the Licensee is entitled to receive and will be paid by the Licensor a refund of an amount of the licence fee paid.

4.2.3 The amount of refund will be determined by the Licensor on a pro rata basis, taking into account any period of the licence remaining at the date of cancellation.

4.2.4 Except as provided in sub clause 4.2.2 above no compensation is payable in respect of the cancellation of the licence.

4.3 Licensee's Improvements

4.3.1 The Licensee's improvements shall remain the property of the Licensee.

4.3.2 On the cancellation or expiration of the Licence the Licensee must, within a period of time specified by the Secretary, remove all Licensee's improvements from the licensed land and forthwith make good all damage caused to the licensed land by the affixing, retention or removal of Licensee's improvements to the satisfaction of the Secretary.

38 Clause 2.4 refers to the maintenance of improvements. 'Improvement' is defined in clause 5 of the licence to include 'building, dam, levee, channel, sign, permanent fence, or other structure and any addition to any existing improvement'.

39 Clause 3.1 prohibits the licensee from using the land for any purpose other than the specified purpose referred to in Item 12 of the schedule or any additional purpose specified in Item 14 of the schedule without the licensee first obtaining written consent. The specified purpose in Item 12 of the schedule is 'grazing'. Item 14 of the schedule (which on its face appears to deal with special conditions) does not set out any additional purpose as contemplated by clause 3.1.

40 It is convenient to turn now to the appellants' (Fenelons') grounds of appeal.

41 In ground one, it is asserted that the trial judge erred in holding that 'the appellants' use of the licensed land for grazing (by animals) ... was not incompatible with members of the public using the land to pass and repass'. Further, it is asserted that no reasonable trier of fact could have reached such a conclusion on the statement of agreed facts; alternatively, such a conclusion was against the weight of the evidence (said to be 'the contents of (sic) statement of agreed facts').

42 The trial judge made no express conclusion that the Fenelons' use of the licensed land for grazing was not incompatible with members of the public using the land to pass and repass. His Honour said:[14] 'It is possible to conceive of licences granted over unused roads which do not affect the right of the public to pass and repass over the licensed land'. Subsequently, his Honour referred to certain correspondence from the Department as[15] 'simply illustrative of the fact that the exercise of the power to grant an agricultural licence was not necessarily inconsistent with the continuation of the rights of members of the public to pass over the land'. In reaching the conclusion his Honour reached, it is nevertheless apparent that his Honour considered that the Fenelons' use of the licensed land for grazing was not incompatible with members of the public using the land to pass and repass.

43 Contrary to the implicit assertion in ground one that the evidence below was confined to an agreed statement of facts, oral evidence was given by Mr Fenelon at trial and documents, from which inferences could be drawn, were tendered.

44 The licence discloses that the licensed land is approximately .5 of a hectare in size. A scale drawing tendered at trial suggests that the dimensions of the licensed land are approximately 20 metres in width by 250 metres in length. Photographs tendered at trial do not show any animals grazing on the licensed land. Further, these photographs show no impediment which might prevent the licensed land from being used for grazing at the same time as permitting the Doves to pass and repass over it. In my view, it was well open to the trial judge to conclude (if he did) that the Fenelons' use of the licensed land for grazing was not incompatible with members of the public using the land to pass and repass.

45 It follows that, to the extent the judgment below relies upon a conclusion that the appellants' use of the licensed land for grazing is not incompatible with members of the public using the land to pass and repass, the appellants' attack on this finding is not made out. Ground one therefore fails.

46 In ground two, complaint is made that the trial judge was wrong in holding that the declaration pursuant to s 400 of the Land Act that the licensed land was an unused road and the issuing of an agricultural licence pursuant to s 130 of that Act 'did not take away or suspend the respondents' [Doves'] rights, as members of the public to lawfully pass and repass over the licensed land without trespassing'. The Fenelons do not challenge the finding below that the licensed land was a public highway and that the public therefore had a lawful right to pass and repass over it without trespassing until it was specified (or declared) an unused road.

47 Neither side suggested that it was the mere specification (or declaration) that a road was an unused road which was capable of taking away rights of members of the public to lawfully pass over the road without trespassing. The point of dispute so far as this ground (and this appeal) is concerned is whether or not the applicable agricultural licence in this case had the result of taking away or suspending the rights of members of the public to lawfully pass and repass over the licensed land. The answer to any suggestion that it was the specification of the road as an unused road which was capable of taking away the rights of members of the public to pass over the licensed land is to be found in s 407(3)(a) of the Land Act - which provides that where a licence is cancelled, then the council is required to 'keep the unused road open for public use and free from obstruction'.

48 The fallacy in respect of the Fenelons' argument in relation to ground two is their contention that the issuing of an agricultural licence for any purpose and on any terms precludes any person not a party to the licence from using the licensed land. None of the statutory provisions in force over time mandate this result. To the contrary, it is clear that there will be circumstances in which a licence issued on particular terms must, by necessary implication, exclude members of the public from passing over the land and other circumstances where the terms of the licence would permit members of the public to continue to have access over the land.

49 In support of their contentions, the Fenelons rely upon a number of provisions of the Land Act. First, reliance is placed upon s 3A(3).[16] Section 3A(3) provides:

Nothing in the Road Management Act 2004 is to be construed as requiring that a road which is specified to be an unused road under section 400 must be opened to the public or maintained.

50 Whilst it may be accepted that s 3A(3) has the effect of not requiring an unused road to be open to the public, all this provision highlights is that there may be unused roads which are in fact open to the public and others which are not open to the public.

51 Secondly, the Fenelons rely upon s 401A of the Land Act. Section 401A(1) provides: 'Any person may ... enter and remain for recreational purposes on a waterfrontage in respect of which a licence has been granted ... [under the relevant provisions of the Land Act]'. Section 401A(2) requires a licence for the occupation and use of a waterfrontage to be subject to a condition that the licensee shall erect and maintain a suitable means of pedestrian access through any fence on or around the waterfrontage. The Fenelons submit that had Parliament intended members of the public to have a similar access to pass over an unused road the subject of a licence, then Parliament would have expressly so provided.

52 The answer to this submission is that s 401A is necessary to grant access to members of the public to water frontages for recreational purposes. Such a right does not exist at common law. This is to be contrasted with the rights of members of the public to pass over a road. The right to pass over a road exists independently of the Land Act. The position with respect to such rights is that these rights must be extinguished expressly or by necessary implication.[17]

53 Thirdly, the Fenelons rely upon s 402 of the Land Act. The Fenelons submit that if members of the public were entitled to have unobstructed access to an unused road, it would render absurd the requirement in s 402 for an owner on one side of the unused road to obtain a licence to enter and use the road.

54 The answer to this submission is that s 402 says nothing about public rights to pass and repass over an unused road. The section deals with a landowner on one side of the road who wishes to enter and use the road. Such a landowner must obtain a licence to so enter and use the land. That the section does not interfere with public rights to pass over the road is demonstrated by the absence of any requirement for an owner of land at the end of an unused road to obtain any licence. The purpose of s 402 is to prevent an owner on one side of an unused road from using the road for some specified purpose without having first obtained a licence under the Land Act.

55 Fourthly, the Fenelons rely upon s 407(3) of the Land Act, which provides that where a licence has been cancelled, the council must keep the unused road open for public use and free from obstruction and may cause structures and the like on, across or in the unused road to be taken down. Again, this section does not gainsay the possibility that in certain circumstances the issuing of a licence does not suspend public access rights and in other circumstances the issuing of a licence might necessarily be incompatible with any rights of public access.

57 In ground three, complaint is made that the trial judge erred in holding that the appellants' (Fenelons') actions in maintaining and/or reinstating the fences on the licensed land constituted a nuisance which could be abated by the respondents (Doves). His Honour said:[18]

[T]he Doves had the right to pass and repass over the land. If they were prevented from exercising that right because of locks or fencing, they were entitled to abate the nuisance by appropriate remedial action.

58 There is no doubt that in the case of an obstruction to a public way, any member of the public may abate the nuisance and pull the obstruction down.[19] Indeed, this proposition is not disputed by the Fenelons. Their written argument on this ground was as follows:

1. One of the conditions of the agricultural licence required the first appellant to keep 'in good order and condition' all ... fences [on the licensed land].
2. In effect, s 130(2)(a) of the [Land] Act imposes an obligation upon a licence holder to comply with such a condition.
3. As a result, the respondents are not entitled to a remedy in nuisance for 'the inevitable consequences' of Mrs Fenelon complying with her

statutory obligation and maintaining the relevant fences.[20]

59 The short answer to ground three is that the condition of the licence requiring Mrs Fenelon to keep the fences in good order and condition did not (and does not) require her to maintain fencing which obstructs members of the public from legitimately passing and repassing over the licensed land. Neither the Land Act nor the terms of the licence compelled the provision and continued maintenance of fences without gates that obstructed members of the public from lawfully passing and repassing over the land. It follows that ground three must fail.

60 For the reasons given above, the appeal must be dismissed.

63 The order of the Court is that the appeal is dismissed with costs.

[4] By the Shire of Healesville in July 1993 (pursuant to sections 400 and 401 of the Act as in force before 26 January 1995) and by the Yarra Ranges Shire Council in May 2001.

[5] And sections 400 and 401 of the Act as in force before 26 January 1995.

[6] [1997] 2 VR 5.

[9] See footnote 2 of the notice of appeal.

[10] See the Land Act 1958 as originally enacted and as amended by the Land (Unused Roads and Waterfrontages) Act 1961.

[11] For example, the Fenelons rely upon the definition of 'agriculture' including 'horticulture and grazing', the fact that s 130AC(c) provides that 'fencing' is one of the conditions that may be imposed on a licence and the fact that s 402(2)(b) permits a fence to be placed at right angles to the unused road in certain circumstances.

[12] Cf the express power given by s 349 of the Land Act to the Governor in Council with the concurrence in writing of the council of a municipality to close an unused road by publishing an order in the Government Gazette - the result of such closure being that the land may then be dealt with as unalienated Crown land.

[13] Whilst the agreed facts assert that the October 1994 licence was granted to Mr Powles, the licence itself refers to the licensee as Richard Powles and Judith Powles. However, nothing turns on this discrepancy.

[16] Whilst paragraph 2.5 of the notice of appeal refers to s 3A(3) of the Road Management Act 2004, it is tolerably clear that this should be a reference to s 3A(3) of the Land Act 1958.

[17] Cf Chief Commissioner of Railways and Tramways (NSW) v The Attorney-General for New South Wales and the Council of the Municipality of Carrington [1909] HCA 75; (1909) 9 CLR 547, 560 (O'Connor J).

[19] Dimes v Petley [1850] EngR 573; (1850) 15 QB 276, 283; [1850] EngR 573; 117 ER 462, 465.

[20] In support of this proposition, the Fenelons relied upon Benning v Wong [1969] HCA 58; (1969) 122 CLR 249, 308-10 and York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391, 397 (Powell J).