Groeneveld v Wollongong City Council

17 Although the May 2005 application was only for a half-width of the roadway of Cabbage Tree Lane, the plaintiff says that the proposed closure and sale would still be of great significance to him. He says that the topography of the area is such that the closure of that half-width would only leave the wholly impassable balance of the road for the plaintiff to use as access to the rear of his property. 18 Throughout this judgment, the plaintiff's property at New Mount Pleasant Road, Mount Pleasant is described as the property of the plaintiff himself. The plaintiff has brought these proceedings in his own name alone and described himself in submissions as the owner of this property. There is in the materials before the Court a letter dated 27 March 2007 from Messrs Kearns and Garside to the defendant, in which Kearns and Garside claim to be acting for John Groeneveld and Tracey Elizabeth Groeneveld, "the owners" of the New Mount Pleasant Road, Mount Pleasant property. This case has however been prosecuted on the basis that the property in question is in the sole ownership of the plaintiff. 19 Two aspects of the defendant's conduct of the road closure application feature prominently in the plaintiff's complaints. Firstly, the plaintiff is troubled that the defendant stated in the May 2005 road closure application to the Minister, that Cabbage Tree Lane was unnecessary and had "not [been] used for access" for the previous 5 years. The plaintiff says that this assertion of fact was wrong. The plaintiff's evidence is that the access has been used continuously over many years. The photographic evidence, from which recent usage may be inferred, is a basis for concluding that the defendant's assertion in the May 2005 road closure application may well be incorrect, although I do not have to decide the question of usage of the access at this hearing. 20 The second prominent complaint of the plaintiff about the defendant's conduct is that throughout the road closure application process the plaintiff was never notified either by his neighbours or by the defendant about the proposed closure and sale of Cabbage Tree Lane. According to the plaintiff the failure to notify the plaintiff of this application led to the item being considered by the meeting of the defendant on 26 April 2005 without the plaintiff being aware that any decision about the matter was going to be made. 21 The defendant's officers certainly recommended to the meeting of the defendant of 26 April 2005 that the defendant should consent to closure of a portion of the public road, Cabbage Tree Lane, and that subject to formal closure, the defendant should authorise the sale of that portion to Dr and Mrs J Byrne the adjoining land owners or their nominee. This recommendation led to the defendant's resolution of the same date which in turn authorised the May 2005 application. 22 There can be little doubt that the plaintiff was at least aware that the road closure was in a general sense on the defendant's agenda prior to its meeting of 26 April 2005. This may be inferred from a letter sent by the plaintiff and his wife to the defendant in February 2005 recording their opposition to the private acquisition of the roadway. The plaintiff says in this letter: "it has come to our notice that a small group of residents on Cabbage Tree Lane are pursuing the options of purchasing part of the public roadway known as Cabbage Tree Lane". 23 This letter also makes the point that public road access is a necessary part of the plaintiff's proposed development application on the site and that the plaintiff does not have driveway access to the rear of his property from New Mount Pleasant Road, and that the existence of Cabbage Tree Lane as a public roadway is an integral part of the plaintiff's continued enjoyment of his property. 24 On 26 April 2005 the defendant resolved in accordance with the recommendations of its officers to consent to the closure of the half width of public road. The resolution, on the motion of Councillor Wood, and seconded by Councillor Griffith was that: "1 Council consent to the closure of a portion of public road adjoining Lot 45 DP264560…Cabbage Tree Lane, Mount Pleasant as shown on Attachment 1 and upon closure declare the land Operational under the Local Government Act 1993. 2 Subject to formal closure, Council authorise the sale of the portion of closed road to Mr & Mrs J Byrne, the adjoining landowners, or their nominee, on the following conditions: a A purchase price of $10,000 (GST exclusive) be paid for the land. b The applicant be responsible for all costs associate with the closure and sale including their legal fees, survey and plan lodgement fees and Council's reasonable legal fees. c The applicant be responsible for the locating of stormwater and other public utilities within the road reserve and the creation of any easement if required. d The sale to be conditional upon Wollongong City Council developing a covenant which prevents the removal of natural vegetations within the designated area. 3 Authority be granted to affix the Common Seal of Council to the Plan of Survey and Transfer documents relating to this matter". 25 The agenda papers that accompanied Item 6 in the defendant's general business papers for the meeting on 26 April 2005, summarised the plaintiff's interests in the road closure application, initiated by Dr and Mrs Byrne in the following way: "The issue raised in the submission provided by the resident of… New Mt Pleasant Road has been addressed by the consent authority (see DAC comment) assessing their DA and it is apparent that the public road in question provides no future opportunity for construction or other public thoroughfare use. The public road in question has been identified as being surplus to council requirements and serves no practical or physical purpose in being retained as a road and therefore it is recommended that the request by the adjoining landowners for the closure and sale be approved". 26 It is evident from these business papers that officers of the defendant disagreed with the plaintiff's contentions about the usefulness of the road for public access purposes. Whether the defendant's officers or the plaintiff are correct about the usage of the access from Cabbage Tree Lane to the plaintiff's property is not a matter that this Court now has to determine. It is sufficient to observe for present purposes that the plaintiff's objections to the road closure initiated by Dr and Mrs Byrne do seem to have been brought to the attention of councillors.

The Parties' Submissions 27 In addition to the plaintiff's submissions recorded above in the course of setting out the background, the plaintiff submits that denial of access to the rear of his property from Cabbage Tree Lane is a contravention of s 6 of the Roads Act, which provides: "6 (1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. (2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law." 28 In response to the case put by the plaintiff the defendant submits that it will not take steps to advance the road closure application until after the Land and Environment Court hears the subdivision application in respect of the plaintiff's property. The defendant further submits that there must be a clear legal basis on which the plaintiff seeks to challenge the defendant's decision of 26 April 2005. As none is demonstrated in the plaintiff's submissions the defendant says that it assumes therefore that there is no challenge. The defendant further says that there is no requirement for the defendant to formally resolve at general meeting before initiating a proposal to close a road under the Roads Act. 29 The defendant does not propose to submit in the Land and Environment Court proceedings that one reason why the development application might be refused is that the road closure application might subsequently proceed only leaving half a road width to be used to support the proposed development.

Roads Act 1993 30 Some of the various steps taken by the Council set out above are provided for under Part 4 Division 1 of the Roads Act 1993 (the Roads Act). Applications for the closing of a public road may be made pursuant to s 34 of the Roads Act, which relevantly provides: "34 (1) An application for the closing of a public road (other than a freeway) may be made: (a) in the case of a Crown road, by any person, and (b) in the case of any other public road, by the roads authority for the road or by any other public authority. (2) An application may be transferred, in accordance with the regulations: (a) in the case of a Crown road, to any person, and (b) in the case of any other public road, to the roads authority for the road or to any other public authority.

31 Cabbage Tree Lane is a public road not a Crown road. It is not a freeway. The "roads authority" under the Roads Act for Cabbage Tree Lane is the defendant. 32 The Minister may propose the closure of a road upon an application under s 34 or otherwise: Roads Act s 33. The Minister must cause notice of the proposed closing of a public road to be published in a local newspaper identifying the road proposed to be closed, stating the entitlement of persons to make submissions to the Minister about the closing of the road and indicating the period (of at least 28 days) within which any submissions should be made. Any person may make submissions to the Minister with respect to the closing of the road: Roads Act s 36. 33 Once the Minister considers any submissions duly made with respect to the proposal to close the road the Minister may close the public road concerned by notice published in the Gazette: Roads Act s 37(1). The requirement in s 37(1) that the Minister may close a public road by publication in the Gazette "after considering any submissions", demonstrates the importance of the requirement to advertise. 34 A public road owned by a council such as the defendant may not be closed unless the council consents to the closure: s 37(2)(b). 35 The effect of the publication of a notice of closure by the Minister is provided for by s 38: " 38 Effect of notice of closure (1) On publication of the notice closing the public road concerned: (a) the road ceases to be a public road, and (b) the rights of passage and access that previously existed in relation to the road are extinguished. (2) The land comprising a former road: (a) in the case of a freeway, remains vested in the RTA, and (b) in the case of a public road that was previously vested in a council (other than a public road in respect of which no construction has ever taken place), remains vested in the council, and (c) in any other case, becomes (or, if previously vested in the Crown, remains) vested in the Crown as Crown land." 36 Although the May 2005 and the February 2006 applications for the closing of Cabbage Tree Lane have been made by the defendant under s 34, the application has not yet been published by the Minister in conformity with s 35. Therefore the Minister may not now close Cabbage Tree Lane consequent upon this application and will be prevented from doing so until the publication of an advertisement takes place. 37 Given the plaintiff's fears about the action of neighbours it should be noted that the exercise of public powers and discretions such as these under Part 4 Division 1 by the defendant (and by the Minister) cannot be fettered by agreement with any third party: New South Wales Trotting Club Limited v The Council for the Municipality of Glebe (1937) 37 SR (NSW) 288 and Roberts v Gilgandra Shire Council [2008] NSWSC 1244 at [94] and [96]. Consideration of the Issues 38 It is common ground between the parties that the Minister has undertaken not to publish an advertisement until after the resolution of the Land and Environment Court proceedings. Thus there is no immediate prospect that the road will be closed. Furthermore, if and when the Minister does decide to take a further step and publish an advertisement about the closure of Cabbage Tree Lane in conformity with s 35, the plaintiff will have a opportunity to make submissions opposing the closure of the road. 39 On several occasions in the correspondence between the parties and in the course of submissions, the defendant has made clear that it:

a has delayed the taking of any steps on its road closure application until after the final determination of the Land and Environment Court proceedings; b would not request the Department or the Minister to take any steps in relation to the road closure application until the Land and Environment Court proceedings are finally disposed of; c had requested the Department not to take any steps in furtherance of the road closure application, including requesting that the advertising of the application scheduled for 13 February 2009 be withdrawn; and d would amend the road closure application to ensure that the plaintiff's proposed subdivision is not adversely impacted in any way in the event of the plaintiff's appeal to the Land and Environment Court was allowed. 40 This position was taken by the defendant early in the proceedings in letters sent to the plaintiff by Kells, the solicitors for the defendant, in letters dated 17 February 2009, 23 February 2009 and 12 March 2009. This position was confirmed by Ms Berglund, counsel for the defendant, in submissions before me. She also made clear (see page 50 of the transcript) that the defendant would not be putting a case to the Land and Environment Court that the plaintiff's development application over his property should be refused because only half a road, and an impassable half at that, was likely to be the available access to the proposed development after a future road closure. 41 In those circumstances, there is no threatened decision by the Minister to close this public road. Nor is the defendant proposing to take any steps to assist the making of such a decision by the Minister. Nor is the defendant threatening to prejudice the plaintiff's case in the Land and Environment Court by taking advantage of the future possibility of the Minister making a decision to close the road. That has been expressly disclaimed. 42 Thus, there is no imminent threat to the plaintiff's interests through the closure of this public road. At the earliest such a threat could only arise at the conclusion of all appeal processes from the Land and Environment Court. That time has not yet come and the defendant has not indicated, even then, it would revive the application for the closure of Cabbage Tree Lane in its present form. The precise form of any final road closure application based on the Byrne's request is uncertain. There is thus no utility served by granting the injunction sought. 43 The plaintiff's difficulties are more fundamental than this. In order to obtain a permanent injunction, as he does, a plaintiff must demonstrate grounds for granting final relief. What then is the plaintiff's equity in this case? His right of access and use of the public road, Cabbage Tree Lane, is governed by the Roads Act 1993. Under that Act he does not have an unlimited right of access to a public road adjacent to the rear of his property. Rather, his continued access to and from and indeed the very existence of that public road, are limited by the Roads Act itself. Section 34 of the Roads Act gives rights to various persons to apply to close any public road. The plaintiff does not have an equity to restrain a person, including the defendant, from exercising their statutory rights under s 34 merely by reason of his ownership of his land adjacent to the public road. He has not pointed to any other cause of action available to him outside the Roads Act which would permit such final relief to be granted. 44 The right that the plaintiff does have, in relation to this public road, is to use the statutory mechanism under Part 4 Division 1 of the Roads Act to take such steps and make such representations as he sees fit to attempt to keep the public road open and available to him, once the proposal to close the road is publicised. 45 The plaintiff's statutory entitlement is to have the Minister listen to his submissions. He may advance a broad range of submissions to the Minister under s 36 to advance his own interests in relation to the public road before the Minister makes a decision. That statutory entitlement to make submissions to the Minister is not presently under threat. Indeed, the delay in publication of the notice of road closure which the Council and the Minister have offered during these proceedings will improve the quality of the plaintiff's exercise of his right to make a future submission under s 36 of the Roads Act. At the time of any lodging of such submissions he will know the outcome of the Land and Environment Court proceedings. 46 If there is a result that favours the plaintiff's development application in the Land and Environment Court proceedings, the defendant may perhaps modify its road closure application under s 34, so as to accommodate the development. The plaintiff's argument to the Minister against closure would then be strengthened. Fundamentally, the difficulty that the plaintiff's case presently faces is that there is no threat being offered by the defendant (or indeed the Minister) to the relevant right the plaintiff does have, arising from his ownership of land adjacent to this public road, namely his right to make submissions to the Minister when the time comes. The plaintiff has not pointed to any other cause of action or common law right that he might have which would prevent closure of this public road which is threatened by the actions of the defendant. The plaintiff also fails on the relief he seeks for this reason. 47 The plaintiff also points to s 6 of the Roads Act which he claims the defendant is threatening to contravene by proceeding with the road closure. 48 Section 6 gives the owner of land adjoining a public road a right of access across the boundary between that land and the public road. This right is subject to the Roads Act itself and in particular, to the provisions which allow the closure of the public roads. An application to close the road under Pt 4 Div 1 of the Roads Act would not contravene s 6, as the plaintiff appears to be submitting to this court. Rather, a road closure application is a process contemplated by the Act that, if successful would cause the area to cease being a public road altogether, and all rights of passage and access in relation to the road would be extinguished. This is the effect of s 38(1). Thus, upon road closure s 6 would then cease to have any relevant application. 49 This is enough to dispose of the plaintiff's claim. Other arguments have been advanced by the plaintiff to ground the injunction sought. In deference to these arguments. I deal with them in the next section. The plaintiff has also attempted to put a case based on a challenge to the Council's decision of 26th April 2005. That is also dealt with below.

The Plaintiff's Supplementary Arguments 50 In submissions, the plaintiff has taken me to aspects of the Council's road closure application under s 34 that he says make that application factually wrong or misleading. Not all of those are dealt with here but they are all to be resolved by considerations similar to the examples that are mentioned below. Even if the plaintiff is right in this submission it may not have any legal consequences. If the Council's application is factually wrong or misleading, then that can be fully addressed in the submissions made to the Minister by the plaintiff under s 36 of the Roads Act. Some of the errors the plaintiff alleges against the defendants are not significant. 51 First, the plaintiff says the defendant has made misleading statement in the May 2005 application about the use of the road for access by adjacent land owners and the public in the last five years, namely the statement recorded in paragraph [19] above. The plaintiff points out that Cabbage Tree Lane is a well-worn road, to which he has had access over the last five years. Any inaccuracy in this particular statement made in a s 34 application can be cured in submissions to the Minister. 52 A successful outcome for the plaintiff of the Land and Environment Court proceedings could well lead to modifications to the application under s 34 to expand the need for access from an approved development. In any event, errors in a s 34 application do not obviously vitiate the whole road closure process, especially because the opportunity to make s 36 submissions is available. 53 Another complaint the plaintiff makes about the s 34 application is, that it does not "attach documentation from the land owner to your application that indicates their agreement to the road closure proposal" as the application form requires. The plaintiff asks why there was no notification to him of the proposal and no documentation supplied in the application from adjoining land owners or from himself. He submits that documentation from all these should have been included. This only seems to be a problem for the May 2005 application. Again, to the extent it exists, this problem can be cured if and when the plaintiff comes to exercise his s 36 rights. The plaintiff's active pursuit of these proceedings proves that he is alert to the potential for his rights to be adversely affected and he will be able to exercise his s 36 rights under the Roads Act. 54 Ms Berglund also points out that any list of the persons who have been notified of a road closure application provided by the defendant to the Minister, does not bind the Minister when the Minister later takes steps to notify persons he regards as potentially affected when he calls for submissions under s 36. In my opinion, that submission is correct and should be accepted. There is nothing before me from which it could be inferred that the Minister would not be likely to notify the plaintiff when the time comes for calling for submissions. 55 The plaintiff also made suggestions of general allegations of misconduct against officers of the defendant but I declined to entertain them, in the absence of the plaintiff having given to the defendant clear particulars of the allegations being made in response to the defendant's request for particulars of them on 12 March 2009. These issues are covered in a separate procedural judgment in the proceedings.

The challenge to the Council's decision of 26 April 2006 56 The defendant submits that the amended summons does not make any claim challenging the validity of the defendant's decision of 26 April 2005. On the face of the amended summons, this submission is correct. There is no such claim. Nevertheless, the plaintiff did seek to treat certain draft orders contained in a document that was marked MFI 1 before White J on 2 March 2009 as part of the relief that he now sought. The orders provided for in the draft of 2nd March 2009 are that: "(1) The defendant be restrained from selling a portion of public Roadway known as Cabbage Tree Lane (2) Order the Defendant to rescind the original decision of 26 April 2005(sic)" 57 There is an obstacle to the plaintiff being able now to pursue order (2) of these draft orders. After the interlocutory hearing before White J, the defendant became concerned that the plaintiff might be broadening the relief he claims to include a challenge to the validity of the Council's decision of 26 April 2005. The defendant wrote to the plaintiff on 12 March 2009 seeking particulars of the allegations that the defendant's resolution of that date should be set aside. The plaintiff did not reply to this correspondence. Nor has he provided a satisfactory explanation to the Court for his failure to reply. Even allowing some latitude for the fact that the plaintiff is a litigant in person, it is difficult in fairness to the defendant to permit him now to pursue such an allegation. Had it been the subject of formal amendment and had there been a supply of particulars, the defendant would have been in a position to deal with it. On this ground alone, the plaintiff's proposal to seek this relief must be rejected. However, I have permitted the plaintiff to articulate this part of his claim in submissions and from that it appears to me that had this claim for relief been allowed to proceed, that it would have failed on other grounds that I will now briefly mention. 58 First, the plaintiff sought to challenge the making of the defendant's decision on 26 April 2005 by reference to the content of the defendant's February 2006 application for closure of this public road, which issued some ten months after the decision being impugned. It is not obvious from what the plaintiff has submitted on what possible basis this later document could be a basis for impugning in any respect the defendant's earlier decision on 26 April 2005. 59 Second, the plaintiff claimed that he had no knowledge of the defendant's meeting at which this decision was made. He says that otherwise he would have attended. The plaintiff did not articulate how the lack of his being informed of the meeting provided a legal basis for it to be set aside. It is clear from the business papers before the meeting of 26 April 2005 that the plaintiff's objection to the proposed decision was recorded in terms that are not inaccurate, namely, that the plaintiff "object[s] on the basis that a DA currently being assessed which may require this portion of road for access". This was a reference to the plaintiff's development application for subdivision of his property. This was a clear statement of the plaintiff's objections to the proposal being considered by the councillors. 60 Third, the plaintiff said that the defendant was misled at the meeting by the information provided by the officers from its Property Department when those officers said in the briefing paper to Council that, "It is apparent that the public road in question provides no further opportunity for construction or other public thoroughfare use". The plaintiff says that this was misleading because it gave no consideration to the plaintiff's existing usage of the roadway. 61 This statement made by the defendant's officers should be construed not as a statement about the rights of access of adjacent owners such as the plaintiff. Such rights of access are separately recognised and dealt with in the defendant's business papers for the meeting. Rather, this statement is properly to be construed as a statement about through-traffic by pedestrian members of the public. As to that, the statement is not misleading. Even if there were some factual inaccuracies in the underlying opinions offered by the Council officers, it was not made clear from the plaintiff's submissions on what legal basis such inaccuracies could lead to his being able to set aside the Council's decision of 26th April. 62 For all these reasons I decline to grant the relief sought. Costs are reserved and I otherwise dismiss the plaintiff's claim. I will hear the parties on the issue of costs at a time convenient to them in the near future.

11/08/2009 - Correction to spelling of Plaintiff surname - Paragraph(s) Web cover page - Counsel & Solicitor

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