Mr I McP Pitt of Best Hooper, Lawyers, appeared on behalf of the respondent.

Mr W Nelson of Harwood Andrews, Lawyers, appeared on behalf of the responsible authority (Council).

1. This was the hearing of a preliminary legal point raised by the Applicant Alesios Fishing Company Pty Ltd ("Alesios") in relation to its Application under Section 82 of the Planning and Environment Act 1987 for review of the decision of the Greater Geelong City Council ("the Council") as responsible authority under the Greater Geelong Planning Scheme to grant a permit in application no.52/00.

2. The permit application proposes a six-storey residential redevelopment of a property known as 1 Dennys Place, or alternatively, 8 McLarty Place, Geelong ("the subject land"). It is situated between Malop and Little Malop Street in the central business area of Geelong. As the two addresses indicate, it has a frontage to both these "Places" or lanes. ("Dennys Place" appears as "Denny's Place" on some documents).

3. The subject land is in the Business 1 zone related to CBD, and is also in a Design and Development Overlay 2 area.

4. The subject land is owned by Medved Development Group Pty Ltd, which made the permit application, and is the respondent to this Application. The subject land is shown in the application by its two street addresses, and by plans.

5. The Council has supplied copies of the documents comprising the permit application, pursuant to Practice Note Planning List 2. Both Mr Pitt, who appeared for the permit applicant, and Mr Porter, who appeared for Alesios, tendered written submissions accompanied by a book of relevant copy documents and copies of the principal authorities to which they referred.

6. Mr Pitt went through the plans to demonstrate their relevant features. The site analysis plan is the most helpful for the purpose of establishing the land included in the application, as it shows the subject land surrounded by neighbouring land, buildings and other features. I note that the proposed development is shown to be located wholly within the rectangular site marked as "the subject site", and not in any way including any part of McLarty Place. The permit applicant relies on the elevations to show that part of McLarty Place is included in the application.

7. The main pedestrian access of the proposed development is to the north end of McLarty Place, where there is an entrance to the lift foyer. The ground floor level is dedicated to the car park and service areas. The car park entrance is from the north, by way of a right of way off Dennys Place. There is also a service entry doorway onto Dennys Place.

8. The other floors are residential. Although the floor plans for the upper floors are not drawn as to show their relationships to the property boundary, it is common ground that certain balconies jut over the airspace of the abutting lanes, and the elevations do show this.

9. Alesios is registered as proprietor of four titles in part adjoining the subject land, and in part forming "McLarty Place", which is the subject of this preliminary argument.

10. The grounds of review relied on by Alesios include:

"3. The objector contends that it is the owner of McLarty Place, Geelong and that the proposal amounts to a trespass on the air space over McLarty Place and over McLarty Place itself or a nuisance. In particular, the proposed balconies over McLarty Place and proposed access to McLarty Place would be unlawful."

11. Mr Porter submitted that the permit application was defective on two grounds related to the building:

· It allowed three balconies and a porch (canopy) over the entrance to project into the airspace above McLarty Place, which he contended was owned in fee simple by Alesios;

· It allowed proposed windows be located on or too close to the common boundary between the subject land and Alesios' adjoining land.

12. In addition, Alesios contends that the owners of land on the west side of McLarty Place (including the permit applicant) do not have rights of way over it, either by easement or by virtue of it being a public highway.

13. If McLarty Place is a public highway, the owner of land abutting it will be entitled to use it for access, but would not be entitled to obstruct it. If it is not a highway, but the owner of abutting land has an easement of way over it, he may use it for access, but not obstruct it. The question would then arise whether construction of balconies into the airspace above the lane at the proposed height would be an obstruction.

14. A previous objection, involving projection of the edge of the proposed roof into the airspace above McLarty Place, had been resolved by the permit applicant agreeing to modify the design to contain the roof within the title boundary of the subject land.

15. Mr Pitt, who represented the permit applicant, advised that the "windows" complained of were either comprised of fire rated glass blocks, or (in the case of ordinary glazed windows) were set back 1.5 metres from the common boundary with Alesios' land. It would appear that this is not a matter for preliminary argument, as it does not raise a threshold point as to the legality of the application or whether the permit (if granted) could be acted on.

16. In reaching its decision on the permit application, the Council acted on the advice of Mr Pitt, which was confirmed by its own solicitor, Mr Nelson of Harwood Andrews (who appeared for it at this hearing) that McLarty Place was a public highway, and it was therefore vested in the Council, which could reach a decision about the use of the airspace for projecting balconies.

17. Hansen Partnership, acting on behalf of the permit applicant, wrote to the Tribunal on 15 June 2000 asking for a hearing date that had been fixed to be adjourned so that Mr Pitt would be available, with particular reference to the "trespass" argument, and in order to obtain a longer fixture. By a letter dated 19 June 2000, the Council requested a "directions hearing" to deal with the legal issues associated with ownership of McLarty Place. Copies of the opinions of the lawyers for all three parties, which had been supplied to the Council, were enclosed.

18. Clause 4.3(b) of Practice Note Planning List 1 provides, with respect to questions of law, which are required to be identified before the hearing:

"If the question is one which could determine the outcome of the Application without a consideration of its merits a party may apply to the Tribunal for a preliminary hearing of that question...."

19. As Mr Porter pointed out, this is scarcely a matter that can be considered a "preliminary point" that could be determined with little or no evidence, deciding whether the Tribunal had jurisdiction or some other matter that determined the outcome without needing to get into the merits of the Application. After two hearing days, however, Mr Pitt submitted that it would be a waste from everyone's point of view if the questions raised were not determined.

20. There is justification from a practical viewpoint in dealing with these arguments separately, as they have little to do with the other issues raised, and there is no need to involve expert witnesses on the planning issues in this part of the hearing. In any event, the separate hearing of the legal issues which had been raised was organised.

21. I queried whether these points could determine the outcome, in the sense that whether or not the balconies, or the access, infringed on the private rights of the Applicant was a matter of private enforcement rather than of relevance to a planning permit application. Mr Pitt referred to the decision of Balmford J in the unreported case of Calabro v Bayside City Council [1999] VSC 509, in which (he submitted) her Honour found on appeal that the Tribunal had had jurisdiction to declare that the subject land was a public highway, and that it had vested in the Council.

22. The Application which was the subject of the appeal had been brought under Section 149B of the Planning and Environment Act 1987, under which:

(1) A person may apply to the Tribunal for a declaration concerning--

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

23. No such Application has been brought in the present instance. Mr Porter submitted that the respondent was in effect seeking a declaration without having made an application for one. A power to make a declaration instead of any other orders it could make exists under Section 124 of the Victorian Civil and Administrative Tribunal Act 1998; but it cannot be exercised by me. This power is vested only in judicial members.

24. As far as I am concerned, the only power to determine such matters as whether or not land is a public highway in this Application depends on such a finding being necessary to determine that the Tribunal has jurisdiction to decide the issues properly raised in the Application for Review.

25. In Calabro v Bayside, Balmford J records (at 7) that there was no objection taken to the Tribunal's jurisdiction to determine the Application and make the declarations sought. She did not consider the question of whether the Tribunal had jurisdiction. In this case, Mr Porter has challenged the Tribunal's jurisdiction.

26. Balmford J "noted" that as well as the Application for declarations, there were also Applications for Review - both of the decision of the Council to grant a permit, and by the permit applicant, of a condition included in the Notice of Decision. The land included in the permit application was not the subject land, but its owners claimed a right of access to their land via the subject land. The owner of the title to the subject land wished to be able to sell it to the abutting owners. The condition in question required construction of part of the subject land. A further argument concerned whether the Council had power to include such a condition.

27. In the present case, it appears to me that there is a jurisdictional issue involved in the Council's decision to grant a permit including balconies that intruded into the airspace above McLarty Place. Although this was not apparent from the site analysis plan and floor plans, it was from the elevations. There is some inconsistency in the plans; but the Council had clearly understood what the issue was, and reached its decision on the basis that it was the owner of McLarty Place, so could consent to the construction in the airspace if it thought it appropriate. The Council acted on the basis that the application included the McLarty Place airspace, and the Application for Review challenges its assumption of power to consent to the construction of the balconies both as owner and as responsible authority.

28. In my view, there is an issue arising from the application that can be dealt with by the Tribunal as a preliminary to its consideration of the merits of the Application. If the Council did not deal properly with the McLarty Place issue, the application would appear to have been defective, in that the permit applicant completed the application form stating "I am the owner of the land. I have seen this application". While the Council can be taken to have known the true position, and to have processed the application in the believe that it was itself the owner of the part of the proposal that intruded into McLarty Place, that could not be taken to be the case if the land in McLarty Place is in fact owned by Alesios. In that event, in view of the Tribunal's wide powers of amendment and waiver, there may be an opportunity for the permit applicant to correct the plans if it wishes to proceed (with a possibility that further notice may be required). Mr Pitt indicated that the balconies over McLarty Place are not essential to the project. No objection has been taken to other projecting balconies over another Council lane.

29. As regards the argument that the pedestrian access to the proposed development over McLarty Place is not as of right but would constitute a trespass, I do not consider that I can make any finding to the effect that title to McLarty Place has been divested that would determine the rights of competing claimants for ownership. That is a question that deals only with their private property rights, which are not a matter for the Planning List of VCAT. But whether or not there is adequate access to the proposed building is a matter that the Tribunal can consider. Although if the proposed pedestrian access was not available to the permit applicant, this would not bar the proposal from any chance of being carried out in some form (as the subject land has alternative access) the proposal in the form shown in the application would be impossible to implement. It would be a waste of everyone's time to even consider the proposal.

30. If there is no right of access over McLarty Place, an amendment of the plans may be possible to circumvent the need for it. This is therefore not a matter comparable to say Walker v Shire of Flinders [1984] VicRp 33; [1984] VR 409, where an absolute statutory prohibition under other legislation meant that the proposed development would be unlawful, so that a permit should be refused under the Planning Act. It is also quite possible that if Alesios is the owner of McLarty Place, it might reach agreement for the permit applicant to access over it, as the owners of land to the south of the Alesios holding already have rights of access over it (for reasons I will come to), apart from any finding that it is a public highway. But there is no reason for the permit applicant to bargain with Alesios unless Alesios owns the land free of any rights of way to which the permit applicant is entitled, so that this issue still needs to be determined. In any event, the permit applicant is entitled to have a decision on the application as submitted. It may not wish to get involved in arguments over whether an amendment to the access is a proper amendment or a transformation of the proposal requiring a fresh permit application.

31. Although my findings in relation to rights of access and use of the airspace above McLarty Place may have consequences that follow logically with respect to the ownership of the land in McLarty Place, they are not declarations of the property rights of the parties. Even if I had jurisdiction to make a declaration as to ownership as between competing claimants of the land in McLarty (which I do not believe I do), there would have to be an Application under Section 149B of the Planning and Environment Act 1987 asking for the declaration, and no such Application has been made. Neither has Alesios applied for a declaration that the permit applicant has no such right.

32. The photographs tendered by Mr Pitt show that the existing building at the subject land has a shop front to McLarty Place. There is a central strip of asphalt roadway. Outside the shops on the west side is a red paver footpath, with cast iron bollards marking the edge of the pavers in the absence of kerb and channel, continuing down the west side of McLarty Place from outside the entrance to the Market at the subject land, but not as far as the intersection with Little Malop Street. There is also at least one matching cast iron street light. On the east side of the Place there is a wider footpath with planter boxes for the length of four shops on land subdivided in 1991, and a kerb and channel continuing past these four shops to the corner. The newer shops have a verandah with signs under it, as does the two-storey building extending to the southern corner of the Place, so that on that side there is a footpath sheltered by continuous verandahs. The premises on the west side do not have verandahs.

33. There is a mix of single storey and two storey buildings. The premises fronting the Place on both sides appear to be the sort of small retail premises that one expects to find in a city "lane" that has been the subject of Council treatment intended to make it more attractive to pedestrians. The documents produced by the Council confirm that this is exactly what has happened.

34. There is a vehicle barrier placed across the north end of McLarty Place, dividing what I will call the "NAB car park" from the land in the Place. This also marks a boundary in the road treatment. The central asphalt, brick pavers and kerb and channel cease, and the surface to the north of the barrier is sheet concrete with a row of car spaces marked out on it. Pedestrians can pass through the barrier and also a gate at the north end of this lane, into Malop Street.

35. The history of McLarty Place begins when Crown Allotment 3, Section 35 Township of North Geelong Parish of Corio was granted to one Matthew Cantlon in 1827. Part of Crown Allotment 3, fronting Malop Street, became the "Black Bull Inn" at 22 Malop Street. The first recorded licensee of the Black Bull was Alexander McLarty (1848-1851).

36. In 1848 and 1849, John Kimber as owner conveyed three lots out of Crown Allotment 3. The land described in Book L No.866 was the lot on the north-east corner of the intersection of Little Malop Street and McLarty Place, and was conveyed to Andrew Baxter in 1948 together with a right to use "a private lane" 18 feet wide, which bounded the lot on the west. The land described in Book G No.374 was situated immediately to the north of the corner site, and had no other access that the private lane leading to Little Malop Street. This was conveyed to Thomas Meheghan in 1849. The land described in Book G No.135 was situated on the south boundary of the Inn site, not abutting the northern boundary of the land in Book G No.374, but with a strip of land separating the two lots. It too had access only to the private lane. This was conveyed to Robert Langley in 1849.

37. All three conveyances included a right of "ingress and egress" to and from Little Malop Street "through over and along" a private lane 18 feet wide, "with horses carts and carriages". This "private lane" is agreed by all parties to have been what is now known as McLarty Place.

38. By 1855, John Kimber owned the Inn site. In that year, he granted a lease of the Inn to one Joseph Rice, Licensed Victualler, together with an easement of "ingress egress and regress" both to and from Malop Street and to and from Little Malop Street "through over and along" a private lane 18 feet wide, "with horses bullocks cattle drays and other carriages".

39. In 1856, John Kimber conveyed the Inn site to the Bank of Victoria, together with an easement in the same form over the "private lane", by Conveyance no.672 Book 34.

40. In 1858, John Kimber conveyed the land in the "private lane" to the Bank of Victoria, by Conveyance no.56 Book 69. The right of way previously enjoyed by the Bank merged; but the conveyance preserved the rights of the other persons to whom easements had been granted. It was expressed to be "subject nevertheless to such rights of way over and along the said piece of land of any part thereof as have heretofore been granted by the said John Kimber." The Indenture has a plan in the margin showing the Bank site to the north, with the laneway through from the southern boundary of the bank site to Little Malop Street, and the three properties with rights to it on the eastern side of the laneway, each identified by the name of the person to whom it had been conveyed. I should clarify that the laneway was not shown as such as far as I can distinguish, but was simply shown as a strip of land coloured red. I do not regard this plan as creating any rights other than the rights described in it. It is not a plan deposited for the purpose of identifying roads, or of recording a subdivision of the land contained in it.

41. The site as then assembled was inherited by various bank mergers and so on by the National Australia Bank ("NAB"). The main lot fronted Malop Street, and was developed as a bank and associated car park. (I will refer to the bank and car park site collectively as "the NAB land" unless it is necessary to distinguish the owner for the time being.) There was rear access via McLarty Place to Little Malop Street. All the properties on the east side of McLarty Place had easements of way over McLarty Place, being the land conveyed to the bank in 1858.

42. The subject land lies on the west side of McLarty Place, but only overlaps McLarty Place at its southern end. The proposed entrance to the residential development is at the top end of McLarty Place, but the southern end of the subject land. The greater part of the subject land immediately adjoins the NAB site without the intervention of McLarty Place. The part of the bank site that it adjoins is the car park area. I will mention here that there is also a further lane from the north end of McLarty Place through to Malop Street, to which I will have to make further reference later.

43. In 1998, Mr Porter's client bought the NAB site, including (on paper, at least) McLarty Place. It also acquired the land abutting the east side of McLarty Place immediately south of the bank site. It then brought the entire holding under the Transfer of Land Act 1958, and the whole parcel is now shown on a Plan of Subdivision, TP 12282H. It is shown as four lots, with the old bank site as Lot 1, McLarty Place as Lot 4, and Lots 2 and 3 being a car park site with the remnant strip unaccounted for between the Meheghan and Langley sites in 1849. Mr Porter indicated his client's concern for the development potential of its own land.

44. I accept Mr Porter's submission summarising the position, supported by copies of the relevant documents, that as far as the title documents and records are concerned, the situation is this: Private rights of way over what was then described as a "private lane" had been created in favour of three properties before McLarty Place was sold to NAB. The site that became the NAB site was sold with an easement over the 18 foot-strip that became McLarty Place. Then three other lots to the south of the NAB site were sold with easements of way over it. Only the southern most of these three lots had any alternative access. NAB bought the title to McLarty Place after these three lots had been transferred, and the transfer expressly reserved the existing rights of way over McLarty Place. But the new title to Lot 4 (the land in McLarty Place) created after his client bought the land does not show it as a road, or as being subject to any express easements of way. It is shown subject only to "any encumbrances created by Section 98 Transfer of Land Act 1958 or Section 24 Subdivision Act 1988".

45. No proclamation of McLarty Place as a public highway has been produced. But land can become a public highway either by dedication, or by user from which dedication is presumed. The land becomes a highway if the dedication is accepted by the public. It is not necessary for there to be a deed evidencing the dedication. It has been held that dedication not only can but should be presumed, in the absence of anything to rebut the presumption, from long, continuous user by the public: Turner v Walsh [1881] 6 AC 636. The words that I have emphasised are omitted from the reference to the principle for which this case stands in the judgment of McHugh J in Newington v Windeyer (1985) 3 NSWLR 555 at 559, but his Honour did not indicate any disagreement with it, although he did refer to the necessity to distinguish mere long user by trespass from user evidencing dedication.

46. Turner v Walsh was a decision of the Privy Council from NSW, dealing with common law principles applicable to land that had been used by the public as a road for 40 years. It was recognised as standing for the proposition as I have just put it in Collins & Meaden's Local Government Law and Practice 1905 at 355, so can be considered to have been a principle well understood by Councils in carrying out their functions with respect to roads prior to the Local Government Act 1958 . Mr Pitt referred to it in his submission, but I will quote directly from the passage (at 639) which is most significant for this purpose:

"From long-continued user of a way by the public, whether the land belongs to the Crown or to a private owner, dedication from the Crown or the private owner, as the case may be, in the absence of anything to rebut the presumption, may and indeed ought to be presumed."

47. The common law principles governing dedication of public highways have always included recognition that the owner may act so as to rebut a presumption of dedication through user. If the owner interrupts the public's use of the land, that rebuts the presumption. This is usually done by placing an obstruction across the path once a year. "A single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment": Poole v Huskinson [1843] 11 M & W at 830, per Parke B, quoted and applied in Shire of Narracan v Leviston [1906] HCA 34; [1906] 3 CLR 846 at 856, 868.

48. Parke B continued it the passage quoted by Griffith CJ in Shire of Narracan v Leviston at 856, which I find appropriate to the circumstances here :

"But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was."

49. Mr Nelson played a short but vital role in this hearing. A copy of the Council's rate and construction records relevant to McLarty Place, as far back as the early 1960s, had been provided to the parties. Mr Nelson tendered the originals, which were returned to him on the first day of the hearing, and a copy was supplied to the Tribunal before the second hearing day. Mr Nelson also called as witness Mr Wenlock, a former city valuer. Mr Nelson generally adopted the submissions of Mr Pitt. His advice to the Council as to the status of McLarty Place had been filed.

50. Mr Pitt submitted that the public record on title, the physical characteristics of McLarty Place, and the history of its construction and maintenance demonstrated that it had been dedicated and accepted as a public highway, and accordingly had been vested in the Council by operation of Section 203 of the Local Government Act 1989.

51. The present provision relevant to this issue is Section 203 of the Local Government Act 1989, which provides (omitting irrelevant parts):

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

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

52. Roads on Crown land, or vested in a Minister or in a public authority are exempted from this provision by Section 203(3).

53. Alternatively, and as a secondary submission, Mr Pitt argued that even if McLarty Place were not a public highway, the subject land has acquired rights of carriageway over it, by reason of the premises now constructed on the subject land having had open, public and regularly used access for the length of McLarty Place for upwards of five decades.

54. Mr Pitt conceded that the subject land had no expressed registered grants of rights of carriageway over McLarty Place. But he tendered a copy of a title to the land situated to the south of the subject land, with an abuttal to both McLarty Place and Dennys Place. This is Certificate of Title volume 5831 folio 105, dated 16 September 1932. The land is part of Crown Allotment 4, which is situated to the west of Crown Allotment 3. It shows McLarty Place (which is part of Crown Allotment 3) as a "road", joining into Little Malop Street. Little Malop Street is part of the public road system, and leads into both Moorabool and Gheringhap Streets. The title made no distinction between the way McLarty Place was shown and how Dennys Place was shown.

55. The title to the land on the north-east corner of McLarty Place and Little Malop Street (being part of Crown Allotment 3) was also tendered. This is Certificate of Title volume 5831 folio 104, also dated 16 September 1932. On the original plan of the land included in the title, McLarty Place is shown as an unnamed "road", without any distinction between the way it was shown in this title and the way is appeared in Certificate of Title volume 5831 folio 105. However, the title is annotated with the deletion of the original plan and a reference to an attached plan. The attached plan shows the "road" by name, as "McLarty Place". The change is related to rectification of entries concerning easements that do not affect the issues, and which occurred in 1991.

56. The title out of which the four shops on the eastern side of McLarty Place were strata subdivided in 1991 was cancelled when the new titles issued; but Mr Pitt produced a copy of it with them. It was Certificate of Title volume 5349 folio 745, dated 5 August 1927. It showed McLarty Place originally as an unnamed "road", but that entry had also been rectified, and "McLarty Place" substituted, apparently also in 1991. There is no reason apparent from the document why the name of the road should have been inserted, other than that it was known from the survey produced for the subdivision.

57. Mr Pitt submitted that the title to the subject land also shows abuttals to McLarty Place and Dennys Place without distinguishing between them as regards their status as roads. That is a recent title, and the title plan (checked by the Titles Office in 1994) was produced. It shows both McLarty Place and Dennys Place as named roads.

58. In summary, Mr Pitt relied on these title documents to show that for nearly 70 years, owners had held titles showing McLarty Place as a "road"; that this had been acted on by the creation of lots that had no other access; that sites had been developed with shopfronts to McLarty Place as shown in the photographs; that no distinction had been made between the road comprising McLarty Place and the next parallel road. The more recent titles also showed McLarty Place as a named road.

59. Mr Pitt also relied on the long record of road construction and other activity in McLarty Place by the Council, details of which had been supplied to his client prior to purchase, to show that for many decades, it has been constructed and maintained as a public highway. He submitted that the records show that the Council had treated McLarty Place as a public highway since at least 1963. I will not detail all of the works referred to in Mr Pitt's submission and the Council files. They are a record of the Council carrying out the kind of works that are consistent with the care and management of the road being Council's responsibility.

60. In 1963 a public lighting system was organised by the Council, involving obtaining consents from owners to attach structures to their premises. As part of the communications with owners about this, there was correspondence with the Commercial Banking Co of Sydney Ltd (later merged with NAB) as owner of the bank premises, and another owner, referring to the negotiation of a pedestrian "walk through" between McLarty Place and Malop Street. The terms make a clear distinction between McLarty Place ("the approach laneway") and the walkway, which was to be lit all night "for a similar period as the street lights", by an agreement that the Council would reimburse the cost. This required an arrangement that the walkway lighting be separately metered, as SEC policy "does not permit the installation of lights connected to a street lighting circuit on private property". There is no suggestion that the lighting of McLarty Place required any special arrangement.

61. In 1964, a complaint was made by an intending lessee of land in McLarty Place that there was only one small blue sign at the corner of McLarty Place, asking for better signs. This shows that McLarty Place was a named road by 1964, not only in the records but by a street sign.

62. In 1968, Council considered complaints of damage to property from commercial vehicles in McLarty Place, and resolved to consider its engineer's report which recommended that McLarty Place should be regarded primarily as a pedestrian access to the Council walkway through the NAB site which gives access to Malop Street. It was predicted that pedestrian traffic would increase when Council's proposed car park on the corner of Gheringhap and Little Malop Streets was developed. This car park is now a substantial feature of the area. The report also recognises that McLarty Place is the only vehicular access to the NAB car park, so that it must be retained for cars; but commercial vehicles could be discouraged through proper development, and prohibiting standing of vehicles should be considered. The issues are stated in terms inconsistent with recognition of NAB as owner of McLarty Place, with the power to control access to its own car park.

63. Between 1978 and 1982, an annual letter to the Council from Commercial Banking Co of Sydney Ltd advised that both sets of access gates to the "cement walkway" would be closed for three days. As this term is apt to describe the walk through between the top of McLarty Place and Malop Street, but not McLarty Place, it is a fair inference that the bank was asserting its rights as owner over the walkway area, but that there was no attempt to include McLarty Place.

64. The miscellaneous correspondence from the Council to Commercial Banking Co of Sydney Ltd named McLarty Place as such. Replies from the bank show no signs of an assertion that "McLarty Place" was the private property of the bank.

65. In 1977, a proposal for development of one of the properties between McLarty Place and Dennys Place raised a question about whether the Council would provide a footpath on the west side of McLarty Place, as none existed. The architect Buchan Laird & Buchan Pty Ltd referred to the considerable volume of pedestrian traffic along McLarty Place, indicating that this frontage was intended for display windows. At a Council committee meeting, an officer's report refers to a further request that the requirement for a loading dock be dispensed with "due to the land being surrounded on three boundaries with Council laneways". Comment was made about the footpath proposal, but there was no attempt to comment on and correct the assertion that McLarty Place was a Council laneway.

66. In 1985, the developer of the shops on the strata subdivision on the east side of McLarty Place asked the Council for permission to construct kerb and channel outside the new shops as an edge to the footway of up to 2 metres wide that had been provided as part of the development, and also asked Council to contribute to the cost. The Council agreed to carry out the construction and bear half the cost.

67. There is no instance of a complaint about the state of the road being referred to the NAB as owner. All were dealt with by the Council.

68. During the 1980s, there were several schemes for promotion of McLarty Place and other "back streets" by the retailers, who formed a series of Action Groups. Closure of McLarty Place to all vehicular traffic was considered. Temporary closures were authorised by the Council for special promotional days.

69. On 19 August 1988 the Council wrote to NAB about one such scheme, which involved closing McLarty Place at the rear of the bank's car park, and providing a vehicular crossing from Malop Street instead of Little Malop Street. The NAB branch manager relied on 9 September 1988, stating a preference to continue to use McLarty Place, "as we have a doorway facing the laneway which could present problems to our customers should a vehicular way be installed as proposed..." The Council agreed not to implement any change at that stage, and NAB wrote on 13 October 1988 thanking the Council for it. There was no assertion on the part of NAB of ownership of McLarty Place, or that it was entitled to refuse to give up the right to use McLarty Place for access to its own car park. The response is consistent with recognition that the Council had the management and control of McLarty Place, and inconsistent with a belief on the part of the bank that it owned McLarty Place free of public rights of user.

70. Streetscape improvements were planned in conjunction with the "McLarty Place Traders" in 1989-1991 and proceeded in McLarty Place at the Council's cost in 1991.

71. Mr Pitt related the activities recorded in the Council's files to the powers under which it carried out such activities at the time. A major change occurred in Local Government legislation with the commencement of the Local Government Act 1989, and almost all the activities relied on occurred before that date. All the records produced by the Council (as opposed to records obtained through title searches, some of which were sealed by the Council) could be related to the Local Government Act 1958. Although there were many amendments to this Act during the period referred to in the files and broadly summarised above, the main provisions remained substantially the same.

72. The starting point was the Council's powers over roads. Under Section 3 of the Local Government Act 1958, the word "road" was defined to mean "a road being a public highway", and included every public highway. Mr Pitt submitted that the Council expenditure in McLarty Place demonstrated that the Council had treated it as a highway.

73. He further referred to the power of the Council to "make improve and maintain public highways streets roads ...." in Section 535 of the Local Government Act 1958 as being the only explicable source of power for the Council's actions and expenditure in McLarty Place.

Local Government Act

74. In Section 3 of the Local Government Act 1958, the definitions were only operative "unless inconsistent with the context or subject-matter". A road is therefore "a road being a public highway" unless there is inconsistency.

75. A series of provisions governing streets, roads etc appeared in Part XIX, commencing at Section 518.

76. In Section 518, the "contrary intention" referred to in Section 3 was evident, as the provision dealt with land reserved or proclaimed under the Land Act 1958 as "a road street or highway", and vested it in the Crown. This dichotomy is preserved in a number of other provisions relevant to roads and to the operations of the Council.

77. Under Section 519, a Council could request the Governor in Council to proclaim land:

"...reserved used or by purchase or exchange acquired for a street road highway thoroughfare bridge square court alley or right-of-way or any street road lane or passage made or laid out or proposed to be made or laid out on any land of which a plan of subdivision delineating that street road lane or passage has been sealed with the seal of the municipality.... to be a public highway."

78. Unlike roads laid out on Crown land that vested in the Crown, the Council prior to the Local Government Act 1989 did not obtain ownership of the land in a public highway. Instead, the Council was given "care and management of all public highways streets roads ....." etc, in a form going back to at least 1903, but continued as Section 535 of the Local Government Act 1958. The materials of all public highways streets and roads, however, belonged to the Council: Section 551 of the Local Government Act 1958.

79. The provisions in Part XIX included some vesting provisions, but they were mainly powers to carry out works. When it is considered that there has never been a single, unified way of creating a public highway, and never a comprehensive record of what streets and roads are public highways, it is hardly surprising that the necessary powers for works to be carried out over public streets and roads were not made dependent on the road being capable of being shown to be a public highway.

80. Although these provisions contemplate that a "road" may not be a "highway", yet may still be "public", the Act also identified another class of street or road. That was the "private road" (to use the more relevant option) defined in Section 3 of the Act as:

"A carriage-way either accessible to the public from a public street or forming common access to lands and premises separately occupied, but not being a public highway."

81. This definition goes back to at least the Local Government Act 1903. It seems to confuse the issue of the status of the road by incorporating the element of "accessibility to the public". But McLarty Place is certainly a "common access" to those premises which had rights of way over it. There was no barrier to stop it being accessible to the public, and it was also accessible from a public street, so that it satisfied both branches of the definition of a "private road". Whether or not it is a highway must be determined by other means.

82. The three defined terms "road", "private road" and "public highway" existed together in the 1903 Act as they did in the 1958 Act. I conclude that during the period to 1989 (when the new Local Government Act commenced), if the Council carried out works of construction and repair on McLarty Place other than at the cost of the owners of land in the Place, it recognised McLarty Place as either a "road" not being a "private road", or a public highway.

83. A further class of "private street" appeared in Section 575 by an extended definition for the purpose of road construction schemes to be carried out at the cost of abutting owners. Like roads constructed as a requirement of subdivision, once these roads had been constructed, they were deemed to have been dedicated to the public and became highways, falling under the "care and management" of the Council, which then had to maintain them.

84. In the 1903 Act, there was a distinction between streets greater and less than 33 feet in width, and also streets dedicated to the public. A street less than 33 feet could be not only repaired but fully constructed at the cost of the owners fronting it from time to time without any question of dedication arising. The same provision applied to streets that were "not dedicated to the public". But if a private street of 33 feet or more was constructed to the satisfaction of the Council, the owners could ask for the Council to declare the street to be a public street. If the majority of the properties by rateable value made the request, the Council would have the street declared as a public street, and it would then come under the Council's management and control: Sections 538-9 of the Local Government Act 1903.

85. This distinction had been eliminated by the 1958 Act, before the Council's records of construction produced at this hearing began. But by the earliest of the Council records, there had clearly already been construction of McLarty Place, although apparently there was no differentiation between road and footpath on either side, at least in the northern part as regards the eastern side of it.

86. The "road or highway" dichotomy continued in other provisions containing powers likely to have been relevant to the status of McLarty Place. Section 535(2) empowered the Council to "make improve and maintain public highways streets roads" etc.

87. Under Section 553, it was the duty of the Council -

"...to keep open for public use and free from obstruction every road street or highway required for public traffic."

88. Every such road street or highway was considered to be required for public traffic unless the Council and the Minister decided otherwise: Section 553(2).

89. The consequences of construction or other public expenditure on an 18-foot laneway have therefore varied over the life of McLarty Place. But by the time the Council records tendered in this case begin, which is after commencement of the 1958 Act, the Council had plainly accepted that McLarty Place was a road for which it had responsibility as regards care, maintenance and traffic.

90. Mr Nelson called Mr Wenlock to give evidence as to how McLarty Place was treated in the valuation and rate records. Mr Wenlock was employed as a valuer by the City of Greater Geelong from 1993 to 10/1/1997, and prior to that by the former City of Geelong. He had started as a rate collector on 10/1/1955, and in 1966 had become both rate collector and city valuer. He had carried out revaluations for the City of Geelong over the years, especially in the central city area. He was also thoroughly familiar with McLarty Place, having regularly walked through it, and also past it to go to his office, a short distance up the street.

91. Mr Wenlock stated that in all the time had had observed McLarty Place, it had always been open without restriction. By contrast, the NAB (or its predecessors) had annually excluded the public by closing off the passage at the north end of McLarty Place by bollards or other structures, to preserve its rights over that area. The barrier was placed so as not to include McLarty Place in the area of exclusion.

92. Mr Wenlock stated that the dimensions of the NAB land as shown on the rate cards are consistent with the site of the bank its and car park, but not with the inclusion of the McLarty Place land. He did not include McLarty Place in the rateable parcel.

93. Mr Wenlock recalled that there had been vehicle access to buildings on the west side of McLarty Place. He recalled a roller door always there at 1 Dennys Place, until a new door was installed in the 1980s. Three other buildings had access to both McLarty Place and Dennys Place. There is no vehicle access now on the western side, however, since the bollards were installed in the 1980s. (This was done by the Council, as described in its records to which I have referred, and I am satisfied that vehicle access was prevented by powers under the Local Government Act 1958 for the Council to deal with traffic on a road or highway under its care and management).

94. Mr Wenlock stated that as City Valuer, he valued all the businesses on the rateable properties in McLarty Place. The ones that had doors onto McLarty Place were valued as being entitled to access over a public highway.

95. In cross-examination, Mr Porter referred to the identification of parcels on the rate cards by street address. The bank's street address was 34-36 Malop Street. He put it that there was no way the bank would have known whether the McLarty Place land was included or not. Mr Wenlock suggested that it may have worked it out from the amount it was rated on and the dimensions of the land. He was valuing a bank site which was a rectangular site on which the bank building and car park were situated. He obtained the dimensions by measurement, not from title. He never included the land in McLarty Place.

96. The Contract of Sale of the NAB site includes the Land Information Certificate issued for purposes of the sale of the land to Alesios by NAB. The area and rate per dollar details were not of course included in it, and were thus not available to the purchaser for the purpose of drawing conclusions as to how much land was rated.

97. Mr Pitt referred to the extensive analysis of the creation and vesting of public highways set out in Calabro v Bayside. In that case, Balmford J reviewed the authorities on dedication of land as a public highway, with specific reference to the delineation of roads on plans of subdivision as a manifestation of an intention and offer to dedicate roads so shown. This review confirmed that dedication by this means was still not complete until there was acceptance by the public.

98. The land which was the subject of Calabro v Bayside was under the Transfer of Land Act 1958, and evidence of title went back to only 1916, so that the legislative background was clearer than is the case with the subject land. It had originally been included with a larger piece of land in the first title, and was shown as a "road", as well as being subject to an easement. This was referred to in other documents as an easement of carriage way. In 1930 it was set out on a plan of subdivision as a "road". No transfers of the other lots in the subdivision were registered, and in 1992 the estate was resubdivided.

99. Although prior to the resubdivision in 1992, the subject land was shown both as a "road" on its title, and as being subject to easements of carriage way, after resubdivision it was included in the same title as other land which formed a residential lot, and was no longer shown as a "road". It was still shown on the title as being subject to easements of way. A further resubdivision in 1994 separated the house lot from the subject land, which then went into a separate title, not as a "road" but as subject to the easements. It had no street name, but did have a street number. It was separately rated. It had never been made or lighted by the Council. There was evidence of use of the subject land as a roadway by the public from 1920, with an interruption by an obstruction in the 1960s, which was removed following an assertion of the rights of the holders of the easements of carriageway.

100. The situation of McLarty Place is comparable to that of the land in Calabro in that the designation of McLarty Place as a "road" does not appear on the latest subdivision, following Alesios' purchase and its bringing the land under the Transfer of Land Act 1958. But use by the general public as a pedestrian way between Little Malop Street and the NAB walkway leading to Malop Street has been referred to as a factor in a number of the decisions made by and submissions put to the Council about McLarty Place, as shown by correspondence on the Council files, and Mr Wenlock has given evidence as to the absence of obstruction. Further, properties on the western side of McLarty Place have been able to function as retail businesses with shopfronts to the Place, despite the absence of express easements of way. The land in McLarty Place has not been rated since at least 1955, and had certainly not been valued for rating purposes since 1966, on Mr Wenlock's evidence. It has been the subject of roadworks, traffic control measures and other public expenditure going back to the early 1960s.

101. When Balmford J dealt in Calabro with the effects of inclusion of the subject land as a "road" in a plan of subdivision, she was referring to the Transfer of Land Acts current when the plans were lodged, which created rights flowing from the way in which "roads" were shown. The land in McLarty Place was not shown as a road in a plan of subdivision. It was not shown as a road when Alesios resubdivided. It had been shown as a road on plans of subdivision of abutting land previously.

102. In Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504 at 518-9, Ashley J considered whether lodging a plan of subdivision at the Titles Office could be more than an offer to dedicate, and found support for that proposition, most strongly in Newington v Windeyer (1983) 3 NSWLR 555 at 559 (per McHugh JA):

"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 ..."

103. Balmford J did not indicate any dissent from that proposition. The relevant passages appear at pp 8-9 of her judgment. She found no vitiating error in the Tribunal's findings as to the principles applicable to the creation of a public highway (p10).

104. McHugh JA also sounded a warning in Newington v Windeyer (at 559) that -

"....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."

105. Balmford J also (at 9-10) considered submissions on the modern meaning of a public highway as common law, following the judgment of Windeyer J in City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353 at 363:

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

106. The subject land in Calabro had been shown as a "road" on a plan of subdivision that had been deposited in 1930. The public had been shown to use the land for a period including 1930-39. Having found that public use had caused the declared intention to dedicate the subject land to ripen into dedication, Balmford J found that the status of the subject land as a highway was not altered by the fact that the subdivision was not otherwise acted on by transfer of lots. Nor did the omission of the word "road" from the plan of resubdivision alter the status that had already been created. Nor was any question of Council expenditure relevant, seeing that public use following dedication had been the basis on which the subject land became a highway.

107. The reference to Council expenditure was not, however, the subject to any criticism as a statement of law. It was its relevance that was the issue. It has relevance in the present case. The reference is to the judgment of Windeyer J in Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campelltown [1960] HCA 62; (1960) 105 CLR 401 at 422:

"A declared intention to dedicate would be ripened into dedication by public user of the land as a road, or by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road." (emphasis added).

108. In considering the effect of public expenditure on the status of a road, it is noted that from the 1838 Police Towns Act 2 Vict No.2, forming a street at public expense within certain towns was taken to be dedication to the public: see Newington v Windeyer (1983) 3 NSWLR 555 at 561. The equivalent provision in the early Victorian Local Government Acts was not as absolute as the NSW provision, but involved qualifications based on completion of construction, and a required a request for a declaration of a street as a public highway. I have no evidence as to when McLarty Place was first constructed except that it had been constructed prior to the references in the Council files starting in 1963, so the legal consequences of that construction are not clear. But as far as I am aware, construction in Victoria prior to the Local Government Act 1989 never amounted to dedication as such, but was a ground for Council to declare the road as a highway. There is no evidence of a declaration of McLarty Place as a highway, whether following construction or otherwise.

109. Balmford J also considered the vesting of public highways on land other than Crown land in Calabro v Bayside.

110. Between the commencement of the Local Government Act 1989 on 1 November 1989 and the commencement date of Section 22 of the Local Government (Miscellaneous Amendments) Act 1993 (noted in Reprint no.5 of the Act as 1/10/1995), Section 203(2) had provided:

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

111. I note that Balmford J quoted the assent date of the Local Government (Miscellaneous Amendments) Act 1993 as its commencement date, while in fact there was a long delay; but nothing relevant turns on that in this case.

112. Vesting of land that had previously been a public highway thus occurred on 1/11/89 or 1/10/1995, while any land that becomes a public highway after that date automatically vests in the Council. To establish whether McLarty Place is vested in the Council, it is necessary to establish that it was a public highway before 1/11/89 or 1/10/1995, or has become one since. The terms of which a highway vests depend on which provision governs the vesting.

113. Alternative powers enable the Council to declare a road to be a public highway for the purposes of the Local Government Act 1989: Section 204(1), and to declare a road that is "reasonably required for public use" to be open to public traffic without it becoming a public highway: Section 204(2). A Council has the care and management of public highways vested in it, or declared as described, and roads that it "has agreed to have the care and management of ": Section 205. After 1 November 1989, therefore, Council's "care and management" depends on the land being either a public highway vested in the Council, on there being a declaration, or on there being an agreement. No declaration or agreement is relevant here.

114. Balmford J held in Calabro v Bayside that vesting under the statutory provisions of the Local Government Act 1989 took effect despite the "indefeasibility" provisions of Section 42 of the Transfer of Land Act 1958, as by enacting Section 203 in 1989, and extending its effect in 1993, Parliament had demonstrated an intention to have the statutory vesting of public highways take effect, and it must prevail over the inconsistent earlier provision. The difficulties created by such a vesting provision, which has no machinery provisions for recording the change of ownership on title, were remarked on by her Honour.

115. Mr Porter contended that McLarty Place had never been a public highway; the rights to use it granted to others resulted from easements of way; and there was no evidence of intention on the part of the owner to dedicate the laneway for public traffic. He submitted that McLarty Place comprised valuable central city land, and dedication should not lightly be inferred.

116. While Mr Pitt's arguments derived largely from the activities of the Council carried out under the Local Government Acts from time to time, Mr Porter relied on principles of real property and matters of title. While property rights, including rights to use the land of others such as easements of way, are largely (although not exclusively) to be found through examination of the conveyances of the subject land as General Law land, the records of creation of public highways largely come from other sources.

117. Mr Porter submitted that the fact that McLarty Place was shown as a "road" to which land in several titles (copies of which were tendered by himself and Mr Pitt) abutted on both the east and west sides of the Place did not prove that it was in fact a "road", and still less that it was a public highway. He submitted that it has been Titles Office practice to mark the access to a lot as a "road" if there was an easement of way over it, or any manner of legal access. The recording of access rights by the Titles Office was independent of any question of whether the "road" was a public highway.

118. I am unable to find any evidence in the materials tendered to me of such a practice as would justify the use of the word "road" to mark an abuttal on a title where the land in the title did not have an easement of carriageway over the land so marked, unless the land was a public road or highway. While I agree that the Titles Office is concerned with easements and other access rights, rather than highway status, Mr Porter submitted that it was Titles Office practice to call the abuttal a "road" if anyone had a right of way over it. This suggests that it was Titles Office practice to adopt as the sole access to a property which was the subject of a Transfer of Land Act application or a new subdivision, land that was subject to an easement in favour of other unrelated property, and simply call it a "road" without any basis of right or entitlement to the use of the land being established in favour of the land in question. This goes far beyond anything I have ever heard suggested as Titles Office practice. The fact that the titles on the west side of McLarty Place had alternative access to Dendys Place does not assist this argument, as the Titles Office could have limited the way the rights of access were shown to Dendys Place if that had been appropriate. It was not necessary to mark McLarty Place as a "road" on these titles in order to provide them with access.

119. I do not find Wolfe v Freijah's Holdings Pty Ltd [1988] VicRp 92; [1988] VR 1017 helpful to Mr Porter's case on this issue. It deals with abandonment of easements that are registered on title, and the necessity for abandonment or extinguishment to be proved as a fact. The fact that the Registrar was required to consider the contention of the owner of the dominant tenement that he had not abandoned the easement after 30 years of non-user if anything shows that the Registrar has to be very careful about marking easements on title; and I would have thought this was all the more important in the case of "roads", because of the wider claim of public use as of right that may follow. But even if only the issue of easements is considered, the issue of a title to McLarty Place as "Lot 4" without reference to the easements in favour of the land on the eastern side which remained after the Alesios purchases merged title to the northern lots with easement rights is still inexplicable.

120. Relying on such cases as Shelmerdine v Ringen Pty Ltd [1993] VicRp 23; [1993] 1 VR 315 at 322-327, Mr Porter submitted that in order for McLarty Place to have become a public highway through being marked as a "road" on a title, it would have had to have been included in a plan of subdivision and shown as a road in the plan. The description of land which was not in the ownership of the subdivider as a "road" to which lots abutted did not demonstrate intention to dedicate land as a public highway. Intention to dedicate could be drawn from subdivision, but it had to be the intention of the owner of the land to dedicate his own land as part of the subdivision.

121. In Shelmerdine, the Court was concerned with easement rights, rather than public highway rights. It does not go so far as to state that a road must in all circumstances have to be within the ownership of the subdivider before its presence on the plan created easement rights in favour of the owners of new lots created. While Brooking J does state that no easement of way could be created under Section 98 of the Transfer of Land Act 1958 by virtue of the subdivision of land abutting a road when the road itself was in different ownership, an easement over the road in favour of the land subdivided was found to have already existed. This easement of carriageway was certainly found to pass on subdivision of the dominant tenement to the lots created (at 331-2). Brooking J found that this was a matter of well established principle, quoting from sources going back to Newcomen v Coulson (1877) 5 Ch D 133.

122. The "subdivision" created by the sale of the parcels with rights over McLarty Place in 1848-49 took place before the earliest of the Real Property Acts referred to by Brooking J in Shelmerdine, being the 1862 Act. The later Acts were all Transfer of Land Acts, dealing with deposited plans and, from 1921, creation of easement rights by reference to roads shown on a deposited plan. Rights over McLarty Place enjoyed by the subdivider of the land on the eastern side, when the subdivider has a right of way (rather than ownership) on the periphery of the subdivision would, however, pass at common law under the principles applied by Brooking J in Shelmerdine.

123. At all relevant times, therefore, the owners of the land on the east side of McLarty Place (including the owners of the four strata title lots) had rights of carriageway over McLarty Place, whether or not McLarty Place was a public highway.

124. I therefore agree with Mr Porter's argument that the easement of way enjoyed by the properties on the east side of McLarty Place would have been sufficient to explain how one of those properties was strata subdivided into four lots, each of which had their only access to, and rights over, the road shown abutting them to the west, being McLarty Place. This subdivision was effected by SP 33763G, sealed by the Council on 13 June 1989 and registered in 1991. But "McLarty Place" was shown on the plan of subdivision as a named road, not merely as an easement or an unnamed "road".

125. In my view, both the Council in sealing this plan of subdivision and the Titles Office in registering it evidenced their belief that McLarty Place was a public road, not a mere easement of way.

126. Mr Porter agued that a highway could not be created by a Titles Office decision to show an easement of carriageway as anything more than it was. Dedication by the owner could not be replaced by a mistake at the Titles Office. But we are dealing with land derived from two Crown Allotments that were brought under the Transfer of Land Act 1958 at various times between the 1920s and the 1990s. Survey plans would have supported these applications. I think it may be assumed that the Titles Office examiners had records supplied by surveyors showing what the surveyors believed to be public roads. Although the current provision is only recent, a licensed surveyor preparing a plan of survey must ensure that:

".......the plan clearly portrays all relevant information which relates to the property boundaries, road alignments and any registered easements or reservations or conditions in the nature of an easement which relate to the land under survey": Reg. 11(3)(b) of the Surveyors (Cadastral Surveys) Regulations 1995.

127. There is also good reason to believe that the Council had records of which roads and lanes were public highways. The Council has a good deal to do with public road and highway status in its daily operations, and needed to understand its responsibilities in that regard in order to budget for its works programs. The evidence of the titles to land on both sides of McLarty Place confirmed the Council's understanding that McLarty Place was a road, not merely an easement in favour of the properties on the eastern side.

128. The NAB and its predecessors in the bank site must have been aware of the works carried out by the Council in McLarty Place, as it was the vehicular entry to the bank car park. Mr Porter submitted that there was no reason for the bank to treat these works as matters of title. However, when the owner of the lane (over which there are easements of way in favour of the owners on the eastern side) sees the lane constructed, lit, named, a sign put up calling it "McLarty Place", and doorways start to appear onto the lane accessing it from the land on the western side, it should have asked questions if it intended to assert rights over the lane inconsistent with the public's right to pass over it.

129. As time went by, and the Council negotiated the walkway through from the north end of McLarty Place to Malop Street, it was obvious that McLarty Place was being treated as a road open to the public. The NAB joined in this pedestrian scheme, distinguishing between the walkway land to which it did continue a claim as of right, and the McLarty Place land, where there was never any obstruction of public access (other than pursuant to Council management of special promotional days).

130. The successive owners of McLarty Place have evidenced intention to dedicate the lane as a public highway by opening it up to the public to enter and pass over from the public street system without obstruction, by accepting the expenditure of public money on improving the lane for the purpose of making it more suitable as a road to which the public has access, and by entering into correspondence with the Council on a basis that assumes McLarty Place is a public road. The public has accepted the dedication, by using the lane to visit the premises fronting its west side, and later by using it in conjunction with the walkway as a pedestrian thoroughfare which is described as having considerable use, and also by paying through Council rates for its improvement. This general public use has been continuing since at least 1955, according to the evidence of Mr Wenlock, which is uncontradicted.

131. This usage goes beyond what may be explicable as usage pursuant to easements of way enjoyed by the owners on the eastern side of McLarty Place.

132. I therefore conclude that McLarty Place is a public highway. I do not consider that it is necessary to go into the question of whether the owners on the western side acquired easement rights prior to McLarty Place becoming a public highway. There is certainly evidence of long user of McLarty Place, which was described in their titles as a road, by these owners and their licensees and invitees; but it is possible that McLarty Place became a highway much earlier than 1955.

133. The Council has powers over "roads" which are as set out in Schedule 10 to the Act. But it has the "management and control" only of public highways that are vested in it (in the absence of a relevant declaration) under Section 205 of the Local Government Act 1989. The current definitions do not now define "roads" in the Local Government Act 1989 as necessarily being public highways. A "public highway" is defined as "a road which is open to the public for traffic as a right", plus statutory additions such as the case of a declaration under Section 204(1). The Council can only give permission as owner as to whether balconies should be able to protrude over McLarty Place if it is owner pursuant to Section 205, although is can decide whether the pedestrian access is satisfactory as a matter of traffic management in the Place. Whether the balconies and access are appropriate pursuant to the Planning Scheme remains to be considered.

134. In his reply, Mr Pitt submitted that although Mr Porter has dealt with the question of the impact on his client's title that a finding that McLarty Place is a public highway would have under the Local Government Act 1989 pursuant to the principles set out in Calabro, strictly speaking the issues raised for determination at this hearing do not require me to go into that question.

135. As regards access to the subject land, I agree. I need only be concerned with a right of access. However, under Clause 16 of the Planning and Environment Regulations 1998, an application for a permit under section 47(1)(a) of the Act must (inter alia) state who owns the land. Further, Section 48 of the Planning and Environment Act 1987 requires that if the applicant is not the owner, the application must include a declaration that the applicant has notified the owner about the application. The applicant has completed the permit application as owner, which on no view could be correct as far as the airspace over McLarty Place is concerned.

136. Both candidates for ownership of McLarty Place have now been notified of the application, and had their opportunity to make submissions about their status. But I have not been asked to exercise the Tribunal's powers of amendment or waiver with respect to this question, and consider it inappropriate to deal with it now. It is a matter that the parties should consider in the light of my decision in the preliminary points.

137. The hearing of the Application can proceed on the basis that the permit applicant has a right of access over McLarty Place. If Alesios wishes to maintain a claim of trespass with respect to the protruding balconies, it will have to do so elsewhere, as that is not a matter for this Tribunal.

138. I will accordingly adjourn the further hearing of this Application to a date to be fixed, no sooner than six weeks from the date of this Order, in order to give the permit applicant an opportunity to consider its position and give notice to the other parties of any amendments that it may wish to make. When the Application comes on for a hearing on the merits, the Tribunal should be constituted so as to include a member who is a qualified planner.