Highways - Creation and extinction of highways - Dedication - What constitutes dedication - In general - Common law principles - Intention to dedicate - Presumption from user - Whether intention may be inferred contrary to actual intention - Necessity for acceptance of offer to dedicate by public use - Whether sufficient evidence.

Towns Act 1934 (Tas), ss48F, 48B, 48C, 48D and 48E.

Wheeldon v Burrows (1878) 12 Ch D 31; Aldridge v Wright [929] 2 QB 117; McGrath v Campbell [2006] NSWCA 180, considered.

Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504, followed.

Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633, not followed.

Judgment Number: [2007] TASSC 59

1 The plaintiffs are the registered proprietors of land at Spitfarm Road, Opossum Bay, and in August 2003 became the registered proprietors of further land described in the statement of claim as the "Howlin portion of Marsh Street". The defendant is the registered proprietor of land which adjoins both the "Spitfarm Road" and "Howlin portion" and has as its access to the main north/south road for Opossum Bay, South Arm Road over the Howlin portion.

2 The defendant's land can be described as the "Brinckman" portion of Marsh Street and together the two portions can be described as and comprise the whole of the land known as Marsh Street.

3 Four plans are annexed to these reasons for judgment which assist in the identification of the respective lands and titles and the issues raised in these proceedings. The first plan annexed is a survey plan dated 23 February 1945 which shows a "proposed roadway" encompassing Marsh Street, referred to above, and the "blocking" lot 6 adjacent to the public road and on the eastern side of the plan. The second plan shows the defendant's land as 5,354m2 on the southern side of the plan and the "Brinckman" portion marked as roadway. The plaintiffs' land adjoins the eastern side of the plan and access is provided, irrespective of whether the disputed area is subject to a right of way or is a public roadway, over the section marked "D" and "C" on the plan. The respective lots, 1 to 5, and 6 to 9, shown on the northern and southern sides of the "roadway", possess rights of way over the "roadway" and lot 6 (shown on the western side of the plan) onto South Arm Road. The third plan shows the plaintiffs' land as, wholly or in part, lot 1 (any difference is immaterial) and the defendant's land (or at least portion of its southern boundary of 48.76m) and the "roadway".

4 The fourth plan is a marked and colour copy of the original proposal prepared for the council in 1944. The yellow portion is the "Howlin" portion and the surrounding yellow lines show the borders of their dominant tenement. The mauve is the "Brinckman" portion and the surrounding lines show the dominant tenement. The other lots and colours show different titles which also enjoy a right of way over the "disputed" land.

5 Simply put:

(1) South Arm, a public road, is the main arterial road for the Opossum Bay region.

(2) Both the plaintiffs and defendant own land which requires the use of another portion of land (referred to for convenience as "Marsh Street") to obtain access to South Arm Road.

(3) That land, shown as a "roadway", historically did not permit access to South Arm Road because of the existence of another block of land (lot 6) which itself adjoined South Arm Road.

(4) The land marked "roadway" is indisputably subject to a right of way which affords access to both properties owned by the parties.

(5) The plaintiffs wish to subdivide their land in a form which would comprise a number of blocks of land. However, if the plaintiffs' land has a right of access by easement only, the number of allotments permitted through subdivision would be limited to three. The defendant would retain the right of way over the questioned land.

(6) If the "disputed" land has become, through statute or usage, a public street or roadway, the number of allotments permitted on the "Spitfarm Road" allotment would be greater and permit the plaintiffs' wish to further develop that land. The defendant has reason to seek a declaration that the respective rights of access be limited to those afforded by a right of way.

(7) The Local Government authority, the Municipality of Clarence, has maintained a neutral position on the matter and has neither attempted to use statutory power to resolve the question nor involved itself in these proceedings.

6 The various permutations of the law of real property and equity created by the historic dealings with the various parcels of public and private land would doubtless provide a rich lode for lecturers and students alike, but those interesting considerations are not necessary for the determination of these proceedings. The plaintiffs' contention is that the disputed land:

"... has become and remains a public highway by dedication of the right of passage to the public by the owner of the soil and acceptance, that is user, of that right by the public".

7 The particulars outlining the basis of that claim state:

"(a) Marsh Street was shown on a plan of subdivision as a road in 1944 and has been similarly shown on a number of subsequent plans.

(b) Marsh Street has been open and available for unimpeded public use since at least 1945.

(c) Marsh Street has a gravelled carriageway and was and is used by public pedestrian and vehicular traffic.

(d) The verges of Marsh Street have and continue to be used for public parking by visitors to Opossum Bay beach and surrounding areas.

(e) Marsh Street was and is the sole access to approximately eleven (11) separate properties.

(f) Marsh Street carried and still carries public utility services such as electricity, street lighting and telephone lines serving the various properties fronting onto it.

(g) Clarence City Council utilise [sic] Marsh Street for the regular collection of refuse from the various properties fronting onto it.

(h) Australia Post contractors utilise Marsh Street for the delivery of mail to the various properties fronting onto it.

(i) A public bus stop was and is located within Marsh Street.

(j) Residents of various properties have requested Clarence City Council and its predecessors to carry out maintenance works on the carriageway of Marsh Street.

(k) Clarence City Council has undertaken various maintenance works on the carriageway and verges of Marsh Street over a number of years.

(l) Clarence City Council has acknowledged in writing that Marsh Street is 'a public road that is not maintained by Council'.

(m) Marsh Street has been assigned that name and been street signed accordingly, for many years. It has also been shown as such on various maps and atlases."

8 The defendant denies the factual basis for some of the claimed events and/or contends that the history and circumstances of usage are consistent with an easement and the exercise of rights by the adjoining property owners.

9 Much of the evidence adduced on the hearing is not contentious but the associated documentation and historic record remain complex. The parties disagree more on inferences, conclusions, nuances and differing interpretations of historic memory and perspective. No issues of integrity or credibility of witnesses are raised other than ones inherent to memory and the passage of time.

10 The plaintiffs seek:

"A A declaration that Marsh Street Opossum Bay in Tasmania comprising the Howlin portion of Marsh Street and the Brinckman portion of Marsh Street is a public highway."

11 In 1923, George Henry Gellibrand transferred a parcel of land, distinguished as Lot 1, comprising 30 acres, 1 rood, 5 perches, and being portion of 3,900 acres, previously owned by the transferor, to George Alfred Barber and Ethel Stephenson-Barber. George Henry Gellibrand had originally been granted 3,900 acres of land by the Crown in the 19th Century and by 1923, his descendant, Albert Edward Gellibrand, had begun the process of sale which gave rise to separate titles, some of which became registered in accordance with the provisions of the Land Titles Act 1863. The land transferred extended to the foreshore of the River Derwent and the plan shows the existence of a public road, five feet wide, running roughly along that foreshore. The land was subject to a right of way to Jean Jeffrey Green and other owners of identified land. In April 1940, George Barber and Ethel Stephenson-Barber transferred portion of that land comprising 26 acres, 3 roods and 191/10 perches to Alec Charles Barwick. The plan accompanying that transfer shows that some of the land, the subject of the 1923 transfer, had been excised to form small allotments between the River Derwent and the roadway previously shown. The title of Jean Green was then extant. The roadway (now the South Arm Road) is shown as being 50 links wide. The legislative history suggests that the dimensions of the road were regularised or fixed following the enactment of the Towns Act 1934. However, the Barber transfer did not include the "Howlin" portion of the land which eventually became identified as lot 6, adjoining the South Arm Road.

12 Relevant to these proceedings, Barwick sold portion of that land, comprising 2 acres, 2 roods and 3 perches, to Thomas Brown (being portion of the 3,900 acres originally granted to Gellibrand). That land did not adjoin the public road (50 links wide - now South Arm Road) but was afforded access along a portion of land shown as a "roadway".

13 The plans annexed to these reasons show that Barwick retained ownership of some of the remaining land. The ownership of lot 6 remained with Barber.

14 Brown subdivided, or at least, prepared the subdivision, of the land purchased from Barwick in 1944. The records do not fully show how the original proposal was made (it was for eight lots numbered 1, 2, 3, 4, 5, 7, 8, 9), but the survey plan, annexed, shows lots 1, 2, 3, 4, 5, to the eastern side of the previously subdivided lots 1 to 6, and the public road. There is no plan previous to survey 167/34 which shows the eight lots. The lots can be identified by reference to subsequent letters dated 20 May 1949 from a legal firm to the council clerk of the "Bellerive Council", which includes the lot 6 shown on the existing plan. However, it is possible, in part, to identify the history of the proposal and its outcome. On 6 November 1944, a licensed surveyor wrote to "the Council Clerk Bellerive", advising:

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

15 Attached to the letter is a sketch plan (32.3) showing five lots which correspond with those shown on the northern section of Plan D 167/34. A "proposed roadway" is shown (with no delineation between the boundary and the public road) from the Barwick land (the land presently owned by the plaintiffs) to the South Arm Road. The minutes of council for November 1944 record:

Cr C N Hughes mvd Cr R M Calvert 2nd That Plan be approved subject to roadway being constructed to satisfaction of Council by Mr T G Brown crd."

16 On 10 November the council clerk wrote to the surveyor, advising:

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

17 A sketch plan exists which provides the dimensions for the existing plan and records the survey as having been completed in April 1945. The records include a letter dated 12 July 1948 from solicitors to the council clerk advising of the sale of lot 1 to Mr Leonard Hughes and enclosing a sketch plan, presumably of the subdivision. A later letter from the same solicitors, dated 20 May 1949, advises of the sale of the remaining eight lots to different, but identified, purchasers. No precise record can be located which shows what the council actually approved at its November 1944 meeting, but the presumption of regularity will be applied (Presumption in Criminal Law, Ross, Aust Bar Review, Vol 29, 127), so that all lots later identified 6 to 9 were properly approved by council. But it is obvious that there was a significant delay between sale and that notice to council.

18 At an early stage, Brown had no right to grant, on sale, any means of access to the arterial road. The council, as the planning authority, had granted permission for a subdivision in a form which did not permit access to the public road which, because of geography, provided the main, or only, means of contact within the district and the other parts of the municipality.

19 Thomas Brown purchased lot 6, ie, the lot adjoining the public road, from Ethel Stephenson-Barber, the surviving joint tenant, with the title being registered by the Recorder of Titles on 8 July 1946, as certificate of title, volume 497, folio 33. However, that land was not burdened with any easement granting a right of way to any of the interior lots of the original subdivision or the large allotment which eventually was purchased by the plaintiffs.

20 Each of the interior lots, 1 to 9, had been sold and title issued which provided a right of way over the eastern portion of the "roadway", but no specific reference was made in the title document to a right of access to South Arm Road. Their rights of way were recognised by the Recorder by reference to a plan. The title to lot 7 assigned by Brown to Francis Marsh by transfer 111244A, dated 20 September 1945, states that it was:

"TOGETHER WITH a right of way over the land marked 'Proposed Road' hereon on the said diagram which said piece of land is part of 3900 acres, the allotment delineated in the public map of the said County deposited in the Office of the Surveyor-General originally granted to GEORGE HENRY BLAKE GELLIBRAND."

That assignment was recorded by the Land Titles Office on 20 May 1946.

21 Similar terms and descriptions have been recorded on the title of lot 9 assigned by Brown to James Purden, evidenced by Transfer 111393, dated 31 October 1945, registered or recorded on 26 July 1946.

22 On 17 January 1951, Brown assigned to Victor John Wheeler, as evidenced by Memorandum 136274, land containing 1 acre, 1 rood and 312/10 perches of land which now comprises the land of the defendant. The assignment, registered on 9 March 1951, included the land shown as the "proposed roadway" to the line of the eastern boundary of the original six, or that to the northern and southern boundaries of the "Brown" subdivision, lots 5 and 6. The title was expressed to be:

"... SUBJECT TO a right of carriageway (as appurtenant to the several lots on Diagram No 167/34 in my office) over the land marked A B C D hereon T W a right of carriageway over the land marked A B E F hereon the allotment delineated in the public map of the said County deposited in the Office of the Surveyor-General originally granted to GEORGE HENRY BLAKE GELIBRAND."

23 The assignment was recorded or registered by the Recorder of Titles on 4 February 1953. Wheeler assigned his interest to Geoffrey Calvert by Transfer A30291 lodged on 8 July 1954 and registered on 14 July 1954. In 1952, Wheeler sold lot 6, which had been excised from the area of land of 1 acre, 1 rood, 117/10 perches purchased from Brown in 1951, back to Brown. The right of way of the "Brinckman" portion of Marsh Street was maintained.

24 In 1954, Wheeler transferred 1 acre, 1 rood and 117/10 perches, to Geoffrey Calvert.

25 There is a slight discrepancy in the calculation, a matter irrelevant to these proceedings. On 8 July 1954, a Transfer of Easement from Brown to Calvert was produced which included the description:

"... as appurtenant to the land above described, a right of carriageway over the land above described, a right of carriage way over the land surrounded by a yellow line on the diagram hereon."

Thereafter the title in the land was further transferred, eventually ending with ownership by the defendant.

26 In July 1954, Brown transferred (A30290) a right of carriageway over lot 6, the particulars being entered onto the respective titles on 1 October 1954. Thus for the first time the owner of the "Brinckman" land had a legal right of passage from his or her interior block to the public road. The Calvert land (certificate of title volume 700 folio 60) was subject to and afforded rights of carriageway over the two areas of land.

27 In 1978, Carter sold the land to Margaret Brinckman, the defendant. The transfer was followed with a grant of easement A707666 of a right of carriageway therein mentioned over portion of the within land registered on 15 September 1980. Also in 1980, Brown sold the "Howlin" portion of Marsh Street to Gillies, who had concurrently bought the 9.854 hectares of land now owned by the plaintiffs. The long historic irregularities and/or absence of rights of access were eventually dealt with between 1980 and 2003. In 1980, Mrs Brinckman granted Gillies a right of way over the "Brinckman" portion of Marsh Street. In 1999, the plaintiffs bought their present land from Gillies. That land had a right of way over "Spitfarm Road" approximately one kilometre "south of" Marsh Street and what could be described as an apparent access to South Arm Road via Marsh Street, as marked on the plan L M N O, but not including the original lot 6. The plaintiffs' land remained subject to separate easements of rights of way to Jean Jeffrey Green, the owner of land identified on Plan No 119543 and the heirs or assigns of George Alfred Barber and Ethel Stephenson Barber. In 2003, the plaintiffs purchased the original lot 6 (the "Howlin" portion of Marsh Street) which was subject to:

"A right of carriage way (appurtenant to the land comprised in Certificate of Title Volume 700 Folio 60) over the land comprised herein."

28 Certificate of title volume 700 folio 60 had been issued on 24 May 1951 and replaced an earlier title, volume 647 folio 81. The entries on the title documents of the other allotments adjoining the "proposed road" vary:

(1) 10 Marsh Street (certificates of title volume 62456 folio 1 and 2) contains two titles and has a benefiting easement marked "proposed road way". No burdening easement is shown on lot 6 purchased by the plaintiffs.

(2) 7 Marsh Street (certificate of title volume 62456 folio 9) has a benefiting easement over land identified as "proposed roadway". No burdening easement is shown on lot 6 purchased by the plaintiffs.

(3) 6 Marsh Street (certificate of title volume 62456 folio 3) has a benefiting easement over land identified as "proposed roadway". No burdening easement is shown on lot 6 purchased by the plaintiffs.

(4) 5 Marsh Street (certificate of title volume 62456 folio 8) has a benefiting easement over land identified as "proposed roadway". No burdening easement is shown on lot 6 purchased by the plaintiffs.

(5) 4 Marsh Street (certificate of title volume 62456 folio 4) has a benefiting easement over land identified as "proposed roadway". No burdening easement is shown on lot 6 purchased by the plaintiffs.

(6) 3 Marsh Street (certificate of title volume 62456 folio 7) has a benefiting easement over land identified as "proposed roadway". No burdening easement is shown on lot 6 purchased by the plaintiffs.

(7) 1 Marsh Street (certificate of title volume 62456 folio 6) has a benefiting easement over land marked "roadway" only on the "Brinckman" title. In that respect it differs from allotments 1 to 6 above. There is no burdening easement on lot 6 purchased by the plaintiffs.

(8) 2 Marsh Street (certificate of title volume 199983 folio 1) has been granted an access through an adherence order and is now known as 59 Spit Farm Road. However it retains a benefiting access over land marked "roadway" but only on the "Brinckman" title. There is no burdening easement on lot 6 purchased by the plaintiffs.

(9) The plaintiffs' land is shown (certificate of title volume 119543 folio 1) as having a benefiting easement of a right of carriageway over the roadway marked L M N O on Plan 119543, a marking which excludes lot 6.

29 The defendant's right of way over the "Howlin land" can be traced through transfers from Calvert in 1955 through to Carter in 1976 and thence to the defendant in 1978. The defendant, in 1980, granted a right of way to the plaintiffs' land through a transfer to Gillies.

30 The evidence clearly shows that irrespective of title particulars, the owners and occupants of all of the land relied on both sections of Marsh Street for access. Each used lot 6 as of right. Each, including the owners of the plaintiffs' present land, used the "Brinckman" portion of Marsh Street as of right. Each title holder would have acquired, at least, a prescriptive easement over lot 6 and the defendant's land. Wheeler might have had a personal right of action arising from a covenant with Brown.

31 It has been necessary to traverse in detail the history of the various allotments, titles and transfers to provide a context for the evidence of subsequent use and user.

32 The original grant of land was 3,900 acres. As portions were sold, the provision of access becomes more complex, especially given the confines of the geography of the area and the existence of one central arterial road. Here the solution was to provide a roadway, approved by council, to permit access to the interior blocks. The error was made in assuming that lot 6 "could readily form part of the scheme but its withholding from transfer by Barber, a matter overlooked", created the problem. The solution provided at various times was to use interdependent rights of way. But as the history of the above transactions shows, the solution could only work if each part of the mosaic was carefully crafted. The ad hoc remedies had made the solution either cumbersome or unworkable. I have observed earlier in these reasons that the council has maintained a neutral position in these proceedings. Such is regrettable. It could have exercised its power to remedy the problem which had arisen as a result of the council's initial error. It ought to have accepted responsibility for that error and rectified or regularised the scheme long ago. It could still have done so at the time of this disputation between the plaintiffs and the defendant.

33 The position is not dissimilar from the circumstances giving rise to the litigation in Burke v MacLeod [2007] 1 NZLR 694. For the purpose of this determination I will assume that the operation of the Torrens System in Tasmania does not provide title simply by registration (Peldan v Anderson [2006] HCA 48; (2006) 80 ALJR 1588) but does provide for evidentiary presumptions and barriers to challenge any registered title.

34 A pattern emerges from the transactions and the history, from 1923, of each title of the allotments adjoining Marsh Street. As each portion of land is sold, provision must be made for access to the arterial road. As the number of blocks increase and the area decreases, provision of access becomes more complicated and the titles interdependent. In 1944, all concerned assumed that the solution was the provision of a public roadway. Oversight and the existence of lot 6 proved to be either a punishment of Tantalus or the Gordian Knot.

35 Some allotments depended on a right of way over a "land-locked block" (the defendant's land) which did not directly provide access to South Arm Road, and relied on its subsequently acquired right of way, granted ex post facto from a different dominant tenement. No challenge has been made to the legal status of that dependence and here the defendant seeks to uphold its efficaciousness.

36 It is in the light of the above history that evidence of usage will be considered. There can be little doubt that usage has given rise to a prescriptive right, at least for the title holder of the interior blocks. The question becomes whether that right is private or public.

37 The Towns Act 1934 provided through DivXII for roadways and streets, and s44 defined a private street as meaning:

"... a highway laid out on private property but intended for the use of the public generally."

38 In 1941, the Towns Act was amended by the addition of s48D(1) which stated:

"Except as herein otherwise provided, no land in any town shall be subdivided into allotments for the purposes of sale, or which are capable of being sold as separate allotments, or shall be sold in allotments unless every such allotment ¾

(i) has a frontage upon a street of not less than 50 feet and a depth of not less than 90 feet ...".

39 The provision has been considered in a decision of the Resource Management and Planning Appeal Tribunal (as it was) which referred to as authority the case of Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

40 The amendments required the owner or developer intending to subdivide to provide such a plan to the council which, following reference to an engineer, could require a final plan for sealing. Before the completion of any sale of an allotment, the subdivider was required to lodge the plan with the Recorder of Titles under the Real Property Act 1862.

41 The Court accepts that it was this process which was undertaken and submitted to council for approval in 1944. The attempt was flawed. The owner and surveyor had overlooked the fact that lot 6 remained in the ownership of another, and that Opossum Bay had not been proclaimed a town. The 1941 amendment had provided the power by the Towns Act, s48F, but the Clarence Municipality did not confirm the application of ss48B, 48C, 48D and 48E to Opossum Bay until September 1947, after the sale of at least some of the allotments.

42 Section 48F had provided:

"A council at any time by special resolution may define any area beyond the boundaries of any town within which it may thereby declare that the provisions of this Act shall apply and thereupon the said provisions shall apply to such area as if the same were a town."

43 It had been amended on 8 June 1945, presumably to accommodate the terms of the proclamation made on 15 May 1945 under the Town and Country Planning Act 1944, declaring the whole of the Municipality of Clarence to be subject to the provisions of that legislation, notice of which was published in the Gazette on 22 August 1945. The Clarence Council applied the provisions of the Towns Act ss48, 48A, 48B, 48C, 48D and 48E, to the whole of the Municipality on 24 September 1947. Those provisions referred to above remained in force until their repeal and replacement by the Local Government Act 1962. That enactment relevantly provided:

"468 ¾ (1) Where land comprised in a sealed plan ¾

(a) is shown as a road, street, alley, lane, court, terrace, footpath or other kind of way it shall be deemed dedicated to and accepted by the public unless called 'private' on the plan; ...".

44 The scheme of the legislation in place at the time of the relevant preparation of the survey plan, the decision of the owner of the land to subdivide and sell the land, the proposal to council and its acceptance of that proposal by the council, and the dealings with the land, show an intention by the owner to dedicate "all of the land" shown on the plan as a public street, a dedication accepted by the Clarence Municipality, acting on behalf of the public. That attempted dedication was vitiated by the fact that the owner had no title to lot 6, a matter later rectified, but which required the use of "easements" or "grants of rights of way" as a form of remedy or rectification. Those grants did not affect the original intention of the parties. Rather, they reflected an attempt to give effect to those intentions. The minutes of the meeting of council approving the scheme and accepting the dedication provided for the performance of further work, but at least evidenced the existence of an unconstructed public road which was not (subject to any future decision) mentioned by the council. As Samuels JA observed in Scott v Wollongong City Council 75 GRA 112 at 118:

"... it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or offences [sic] to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of a proposal with absolute precision."

See also Winn v Director General of National Parks and Wildlife [2001] NSWCA 17.

45 The later transfers to the portion of the roadway to the "Brinckman" dominant "home block" were but a reflection of the original problem. The other lots were sold, together with a right of way, because of the complications originally created through lot 6. The current "Brinckman" title (including the portion of Marsh Street) is a product of excision of the other land and the need to "house" or retain a dominant tenement. It is not strong evidence which would easily defeat evidence of usage. The deposit of the plan might not itself be a dedication to the public of the road shown on it, but is evidence towards establishing such a dedication (Baird v Jackson 11 (1884) NZLR 271, Richmond J at 275).

46 The findings in relation to the legislative scheme and the objectives of the council and owner/owners of the land do not necessarily require the conclusion that the residual interest in the "Brinckman" portion of the title, as the dominant tenement, either never came into force or had not been extinguished. It is still necessary to consider usage.

47 Registration of an interest on a title, which might include a plan, might create a "property which did not otherwise exist" Peldan v Anderson (supra); see case note Metaphysics of Severance, (2007) 81 ALJ 59-6. It may be that the owners of the interior lots adjoining "Marsh Street" and including the existing "Howlin" land had acquired an implied easement over the original lot 6 once the problem had been recognised and the lot purchased by Brown in 1946 (Wheeldon v Burrows (1878) 12 Ch D 31; Aldridge v Wright [1929] 2 QB 117; McGrath v Campbell [2006] NSWCA 180), but it is not necessary to determine whether "non-registration of the rights of way", without more, established the "existence" of a public roadway. It is not necessary to consider the relationship between prescriptive or implied easement and land held under a Torrens system (Williams v State Transit Authority of NSW [2004] NSWCA 179; (2004) 60 NSWLR 286) the "omission" or enforceability against a registered proprietor as an "exception" to indefeasibility (Dobbie v Davidson (1991) 23 NSWLR 625; Australian Hi Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618). Some titles show the benefit of grants of rights of way without another necessary title showing the burden, or described as a servient tenement. When lots 1 to 5 and 8 were sold, Brown owned lot 6, but did not take steps to burden that title with a right of way in favour of either of the original two purchasers of lots 7 and 9, nor the subsequent purchasers (eg, Wheeler). To that extent, only those lots which have both a "benefiting" and "burdening" easement have an enforceable right over the "Howlin" portion of Marsh Street unless, consistent with the principles stated by the High Court in Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633, the proprietors can show an implied easement or rectification of the Register. However, it is not necessary to consider the implications of those distinctions since this case is to be determined by the evidence of dedication and acceptance, and by findings of fact which establish dedication or acquisition of a public right through usage.

48 The Court accepts, for the purposes of this determination only, that only land contiguous with a public highway can be itself dedicated as a highway (Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504) but observes that later developments or events might make such land a public thoroughfare. Eventual connection at varying times of portions of thoroughfares might itself establish a public right (Bailey v Jamieson (1876) 1 CPD 329; City of Keilor v O'Donohue [1971] HCA 77; (1972) 126 CLR 353). Public acceptance of an intention to dedicate by the owner might be shown by subsequent events if "user" and "dedication" are connected (Newington v Windeyer [1985] 3 NSWLR 555, McHugh J). Here the claimed right of public use commences, at least so far as the "Brinckman" portion is concerned, from a lawful origin rather than a series of trespasses (Newington v Windeyer (supra)). The same can be said of the "Howlin" portion as and from the date of the post-1945 sale of lot 6 (Owen v O'Connor [1964] NSWLR 1312). The fact that the "Brinckman" portion of "roadway" forms a cul-de-sac is no bar to the existence of a public right (City of Keilor v O'Donohue (supra), Owen J at 363).

49 The right claimed by the plaintiffs is one factually based, namely, usage. They are required to show more than occasional harmless use over country land (Headlam v Casimaty [1952] Tas SR 47) and real and repeated use extending beyond occasional or casual use (Owen v O'Connor (supra)). Here where there has been a clear manifestation of an intention and offer to dedicate the land as a public road (or at least the "Brinckman" portion), no great amount of public use is necessary to make the dedication complete (Lynch v Eaves (Max) Pty Ltd (1996) 91 LGERA 166).

50 Dedication by usage is rarely a product of a formal act. It arises through events of permission, conduct and uncontested public use over a lengthy period (Palmisano v Hawse [2003] NSWSC 566; Mayor, Aldermen and Citizens of the City of Launceston v Bradford 2/1990). The length of usage might vary when user and intended dedication together are clear (Mayor, Councillors and Citizens of the City of Brunswick v Baker [1916] HCA 84; (1916) 21 CLR 407). Where land is subdivided, a court ought not, absent clear evidence, engage in an artificial exercise. In Permanent Trustee Co Limited of NSW v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401, Menzies J stated at 415:

"Coming now to whether it was doubtful whether St George's Parade is a public road, I would say first that I regard it as an artificial and unreal conception that when roads are left in subdivision they are left as private roads merely for the use of those who want to get to land in the subdivision. It seems more realistic to treat such roads as shown as part of the general roadway system and as open to all so that unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road: Attorney-General v The City Bank of Sydney (1920) 20 SR (NSW) 216; 37 WN 51."

In the same judgment, Kitto J concluded that an intention to limit use to frontages or persons entitled to access those allotments ought not be presumed or accepted.

51 Evidence that only portion of such a thoroughfare was utilised does not prevent the whole of the land being accepted as a "public highway" (Nicol v Beaumont (1883) 53 LJ Ch 853). In Burke v MacLeod (supra), Hansen J at pars72 - 74 referred to with approval to citations from The Law of Roads Bridges and Streets at 24 - 25, which reads:

"A private road pure and simple is a road on private land intended to be used as such by the owner of the land, or his assigns, for his or their own purposes, and is not intended for use by other persons or by the general public; and, so long as the owner limits the use accordingly, the road will not become a public road, neither will the public or any other person acquire any rights over the same.

Another sort of Private Road arises in cases where a land owner has cut up his land into allotments and has laid off a road or roads giving access to such allotments, and has sold or leased the same, and where in doing so he has either shown such road or roads on the lease, conveyance, or transfer of the land, or else has deposited a plan of the subdivision showing the road or roads in the Land Transfer or Deeds Registration Office, and has done nothing more which can be construed as a dedication of such roads to the public. In such a case the fee simple of the road will remain in the owner of the land even after he may have leased or sold all the allotments, and, strictly, the only persons who have a right to use these roads are the persons who may have purchased or leased any of the allotments, and their assigns."

52 He did not consider the former category to apply to a road which ran through land owned by others. The latter summation does not apply in the circumstances of this case. There has been no historic limitation of the use of the land and the original owner had done far more than simply lodging a subdivision plan. Here the respective rights are either those of easement or public right. Here the historic differing treatments of the titles of the "Brinckman" and "Howlin" portions of the road suggest that the outcome of private or public right referable to the separate portions ought, on the evidence, be identical.

53 Both parties adduced evidence in support of their respective causes. There is little substantive difference between the two historic versions. Differences are those of nuance, perception and details of memory. No significant questions of credibility exist. No questions of integrity or honesty arise.

54 Evidence of use includes:

•

access by persons buying vegetables from Mr Peterson who lived in upper Marsh Street and whose garden was on lower Marsh Street;

•

children riding bicycles up and down the area;

•

service bus all day parking and school bus pick up and drop off;

•

parking of service bus and school bus;

•

parking for cars waiting for the service bus and parking for cars with boat trailers:

•

the use as a terminating bus stop by the MTT;

•

Marsh Street being shown on plans as a named street;

•

Marsh Street being signed as a named street;

•

Marsh Street being acknowledged by that name by the council and the nomenclature board since 1983;

•

the made and maintained nature of the road over many years;

•

the erection of power poles;

•

the installation of street lighting;

•

the provision of public rubbish collection;

•

the delivery of Australia Post to numbered letter boxes;

•

the maintenance of the road, limited though it may be, by council;

•

council spreading gravel over upper Marsh Street;

•

exemption of the area from rates and land tax valuations.

55 The Court accepts that evidence.

56 In the late 1940s and 1950s, there were few permanent residents of Opossum Bay. Most of the dwellings were for the benefit of weekenders or holiday-makers. A vegetable garden had been established, mostly for local users, on one of the Marsh Street allotments. There was a general store on South Arm Road near, or opposite, to the junction with Marsh Street. The bus service for the Hobart to Opossum Bay connection used that store as its end of service stop and "depot". The driver of the bus would use the eastern section of Marsh Street as a turning and parking area. That area was used by vehicle owners using the general store. The local school bus service would use the eastern section for parking and collection of students. Occupants of the lots adjoining the whole of Marsh Street would use the marked area irrespective of the status or form of their easement. There was no restriction of access. The "Brinckman" portion was not included as rateable property for land tax or general rates and a calculated value, based on the dimensions of that portion of the title, excluded from any easement. As the locality became busier, boat owners would use the "roadway" for parking of both vehicles and boat trailers. The bus would be left in the area overnight during school terms and weekends. People would use the access road for their collection of vegetables from the garden established by Peterson. The water carter would use Marsh Street for deliveries to the various homes adjoining the area. In 1975 the Metropolitan Transport Trust commenced a commuter service to Opossum Bay and used Marsh Street as an en terminus. In 1980 a fence on the eastern end of the marked area was altered to permit vehicular access to the present "Howlin" property. The "roadway" had been used to enable agisting cattle to be driven to and from that land. Public services were provided on and through the land. Those services included mail delivery (2000), rubbish removal (2001), street lighting (approximately 1987), street signage and removal of a tree hazard. The Clarence Council has included the area on its maintenance programs, including the mowing of grass areas and verges, gravel and limited road maintenance over a long period of time for at least the western portion of the area and, more recently, to at least the mid to eastern sections. The residents have not been required to contribute to the cost of erection or maintenance of power or light facilities, or servicing, pipes and cables along the section of the "roadway". Neither the plaintiffs nor the defendant have been required to pay rates or land tax over those areas.

57 In 1983 the Nomenclature Board recognised the name attributed to the area as Marsh Street which is currently shown on maps of the area publicly available. The Court accepts the critiques of some that residents provided some of the existing gravel at varying times, that there have been differences between the state and usage of the eastern and western ends of the area. It accepts that the "Howlin" portion has historically been more subject to use and would be more likely to be regarded as a public street. But, in substance, there is little reason to distinguish between the two portions. There has been no denial of access to any person or institution. The majority of the allotments have access through and over the "Brinckman" portion.

58 The conduct of the respective cases by competent and learned counsel and their organisation and presentation of complex and voluminous documentation and histories of transactions, changes in the statute and usage and the applicable law, has made the task of this Court less difficult. The Court is indebted to counsel and their instructors.

59 Marsh Street is a public street or road through the process of dedication and acceptance as evidenced by intention and usage. It is a public street or road through usage akin to a prescriptive right. The area identified on Plan No 167/34 is an area subject to a public right of access.

60 The plaintiffs are entitled to a declaration that:

"Marsh Street, Opossum Bay in Tasmania, comprising the Howlin portion of Marsh Street and the Brinckman portion of Marsh Street is a public highway."

Plans referred to in para 3 can be obtained by sending an email request to: SCIS@justice.tas.gov.au