Procedure - Costs - Jurisdiction - Persons not parties to proceedings - Third parties - Municipal and planning authority with direct interest in outcome of proceedings.

Supreme Court Civil Procedure Act 1932 (Tas), s12.

Knight v F P Special Assets Ltd [1992] HCA 28; (1982) 174 CLR 178, applied.

Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965; National Mutual Life Association of Australasia Limited ERROR! BOOKMARK NOT DEFINED.v Chris Poulson Insurance Agencies Pty Ltd (No 6) (1998) 8 Tas R 123; Symphony Group plc v Hodgson [1993] 4 All ER 143; Bischof v Adams [1992] VicRp 61; [1992] 2 VR 198; Bischof v Adams [1992] VicRp 61; [1992] 2 VR 198; Vestris v Cashman (1998) 72 SASR 449; Gore v Justice Corporation Pty Ltd (2002) 189 ALR 712; Yates Property Corporation Pty Ltd v Boland [2000] FCA 1106, followed.

Procedure - Costs - Departing from the general rule - Nature of proceedings - Public duty involved - Matter of general public interest - Authority not exempt from paying costs.

Howlin v Brinckman (No 2) [2007] TASSC 100; R (on the Application of Godmanchester Town Council) v Secretary of State [2005] EWCA Civ 1597; [2006] 2 All ER 960; [2007] 4 All ER 273 HL, referred to.

Procedure - Costs- Judges generally - Disqualification for interest or bias - In general - Reasonable suspicion for bias in prejudgment of legal issues - Legal issues determined in primary case - No grounds for reasonable suspicion that a proper hearing would not be obtained.

Mentyn v Law Society of Tasmania [2004] TASSC 24, followed.

Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302, R v Burrell [2007] NSWCCA 79; (2006) 175 A Crim R 21; Burrell v R (2008) HCA 34, applied.

Symphony Group plc v Hodgson [1993] 4 All ER 143, considered.

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.

Howlin v Brinckman [2007] TASSC 59; Howlin v Brinckman (No 2) [2007] TASSC 100; City of Hobart v Chen [1966] Tas SR 271; Permanent Trustee Co NSW Ltd v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401; Country Roads Board v Neale Ads Pty Ltd [1930] HCA 5; (1930) 43 CLR 126; R v West Tamar Council [1999] TASSC 107, referred to.

Judgment Number: [2009] TASSC 18

1 Following the decision of this Court in Howlin v Brinckman ([2007] TASSC 59) declaring, at the suit of the plaintiffs ("the applicants") a declaration that land adjoining their own property had become, by dedication and usage, a public highway, they unsuccessfully sought a costs order against the owner of the servient tenement, the defendant to their action. Ordinarily costs would have followed the event, but in the exercise of discretion (Howlin v Brinckman (No 2) [2007] TASSC 100), the court ordered that each party "pay their own costs of the application". I did so because:

(1) In many cases the existence or loss of a public right is considered as a matter requiring joinder or representation of the public interest by a public body.

(2) The defendant had limited options in her response to the action and had conducted her case in an appropriate manner.

(3) The defendant was involved in substantial liabilities resulting from the original action or suit (R (on the Application of Godmanchester Town Council) v Secretary of State [2005] EWCA Civ 1597; [2006] 2 All ER 960; [2007] 4 All ER 273 HL) and suffered loss of amenity and dispossession without compensation.

(4) The plaintiffs had sought the declaration to further a commercial aim in the division and future development of their land.

2 Following the costs determination, the applicants sought a third party costs order against the City of Clarence ("the council") as the public authority of the municipality in which the land was situate and the relevant planning authority. The council had been aware of the proceedings and had been directly involved as the planning authority in the disputation between the parties to the action and the issues as to the status of the land. The council was neither joined as a party, nor sought to intervene as a public authority interested in the proceedings.

3 The history of the land and its title, its development and usage, and involvement by the council are complex. The land is situate at Opossum Bay, a place of beauty, inviting retreat and combined with the quintessence of a small community. It was rural and historically regarded by many as a holiday or shack resort. The land in question was subdivided into household or "shack" blocks in 1945. Its virtues attracted residents and, over time, development. In 1978, Margaret Brinckman, the defendant to the action, purchased land, portion of which was subject to an easement permitting access to the main arterial road by a number of adjoining owners or occupiers. There remained historic problems with the dominant right of easement, in part a product of the title of a block of land which abutted the arterial road and which problems are outlined in the original reasons for judgment (supra). Mrs Brinckman was entitled to believe that she had discovered her place of retreat. In 1999 the applicants purchased approximately 10 hectares of land adjoining the "roadway" or easement which was the subject of the declaration. The contract of sale dated 17 February 1999, showed the permitted purpose as "a residential dwelling". The purchased land included a narrow lane shown on plan P119543 as a "roadway" some 5.7 metres wide, separate from the Marsh Street egress which was the subject of the original suit. In April 1999 and July 2000, the council issued a s337 Certificate in accordance with the Local Government Regulations 1994, reg27(2), Form 3, to the applicants providing the responsibility for the maintenance and repair of their access road to the arterial road whilst retaining "entitlement to make any part of the specified highway(s) construction at the owner's expense" (Book 1, page 206). The import of that Certificate was contested at this hearing.

4 In 2000, the applicants made inquiry of a planning officer employed by the council in relation to the proposed subdivision of their land. Attempts to subdivide the land have continued to this day (Howlin v Resource Management and Planning Appeal Tribunal [2009] TASSC 9). The processes have been complex, time consuming and acrimonious. They will later be, but briefly, summarised. The proposed subdivision divided the community, excited nearby landowners, caused legal and administrative difficulties for the council, created political or social controversy, and faced the steadfast opposition of the owner of the land subject to the easement. The planning scheme precluded certain forms of subdivision, absent access through a public roadway, and repeated and varied applications were rejected, in part, because of the status of the "right of way". The conflict was the classic tension of development and existing peaceful amenity, and once commenced, involved officers of the council, councillors, residents, and the planning tribunal. The councillors, as representatives of the community, were responsible to their electors for the social and political ramifications of the project (Hobart City Council v Resource Management & Planning Appeal Tribunal [2007] TASSC 99; Irwin v Meander Valley Council [2008] TASSC 82). This Court is not concerned with the conflict, except for the issue of the status of the "roadway". It is not concerned with the merits of the development application or the objections to it, nor with the decisions of the planning tribunal. It is solely concerned with the costs application, the responsibility of a public authority, the outcome of the "declaration proceedings" and the role played by the "status of roadway" issue. The above is to provide context to those relevant matters. Some history of the general course of the dealings between the applicants and the council can be seen in the decisions of the Resource Management and Planning Appeal Tribunal ("RMPAT") [2006] TASRMPAT 217; [2007] TASRMPAT 316; [2007] TASRMPAT 326, and a decision of this Court in Howlin v Resource Management and Planning Appeal Tribunal (supra).

5 The applicants are litigants in person. The application is complex and the material relied on by the parties voluminous. It was necessary for the Court to conduct a number of pre-trial or case-management hearings to ensure appropriate discovery, definition of issues, and compilation of material to be relied upon in an orderly manner.

6 Council officers and their legal representatives assisted greatly in that process and the applicants were assiduous in their endeavours to comply with suggestions or directions given by the Court. On 16 July 2008, counsel gave notice that his client wished to seek my disqualification as the hearing judge on the ground of apprehended bias. The general nature of its basis was courteously set out by counsel, and properly and fully articulated at the commencement of the hearing on 19 August. The Court acknowledges the courtesy of counsel. In simple form, the request was formulated in the following terms:

(1) My decision in [2007] TASSC 59 was, in part, incorrect in law.

(3) My conclusion and some obiter comments suggested a view predisposed to the applicants.

7 I refused the request. The principles governing bias and disqualification have been extensively stated (Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39; Mentyn v Law Society of Tasmania [2004] TASSC 24). I adopted as a commencing point the self-evident proposition that in cases such as this it is preferable for the original or determining judicial officer to hear and determine the third party costs application (Symphony Group plc v Hodgson [1993] 4 All ER 143; see generally Bischof v Adams [1992] VicRp 61; [1992] 2 VR 198). In Ebner v Official Trustee [2000] HCA 63; (2001) 205 CLR 337, the High Court determined that there is no automatic need for disqualification where there has been a failure to disclose an indirect interest in outcome simply because there has been a claim of procedural unfairness. Here obiter comments made in the primary judgment ought not show an interest in the outcome of these proceedings. Here I am required to determine the matter on the material presented by the parties. If that material discloses differences with the case as argued by the original parties and shows original error, then I ought act on new material and, if necessary, reach a different conclusion (Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302; Polites; ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78). In R v Burrell [2007] NSWCCA 79; (2006) 175 A Crim R 21 and Burrell v R (2008) HCA 34, the New South Wales Court of Appeal and the High Court respectively, dealt with the questions of apprehended bias and the revisiting by the same court of previous factual errors. Both courts accepted that it was not uncommon for courts to revisit a ruling or factual determination without creating a basis for the appearance of bias. In their joint judgment, Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ stated the question at 10:

"The present appellant submitted to the Court of Criminal Appeal that that Court had no power to reopen the appeals and further submitted that the Court of Criminal Appeal, as then constituted, should not redetermine the matter because there would be a reasonable apprehension in the ordinary fair-minded person that the Court as then constituted may be biased. In its reasons delivered on 23 March 2007, the Court of Criminal Appeal rejected both submissions. The Court of Criminal Appeal held ([2007] NSWCCA 79 at [39]) that the Court had power to reopen the appeals. In particular, the Court of Criminal Appeal concluded ([2007] NSWCCA 79 at [41]) that:

'In this case the appeal has been determined and reasons published upon a false understanding as to some matters. The appeal has not been determined in relation to the relevant evidence. For that reason it has not been finally determined.'

The Court reconsidered the conclusions it had earlier expressed having regard to the identified factual errors that had been made in its first reasons for judgment, and ordered that the orders of the Court dismissing the appeals should be 'confirmed'."

8 The question is not the revisiting of error, but whether the parties are afforded the opportunity to make submissions before the perfecting of the order. As their Honours stated at 27 - 28:

"Rather, it is sufficient in this case to say that formally recording the orders of the Court of Criminal Appeal before the parties had examined the published reasons of the Court did not amount to any denial of procedural fairness. Each party had had a full opportunity to place his or its arguments before the Court of Criminal Appeal. If either party had detected the factual errors made in this matter in the reasons of the Court of Criminal Appeal before its orders were perfected, that party could have and should have (Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457; [1940] HCA 9; DJL [2000] HCA 17; (2000) 201 CLR 226 at 244 [34]) at once moved the Court of Criminal Appeal to intercept the processes of formal recording of the orders and to hear argument about whether errors had been made. But it would be contrary to principle to hold that the Court of Criminal Appeal must afford a sufficient opportunity for parties to consider whether such an application should be made.

The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken."

9 The responding council contends that errors of law and principle were made in the primary decision. The arguments can be summarised as:

(1) There was no power to approve the subdivision in 1944 and no power to require the construction of a road at that time.

(2) The Towns Act 1934 did not apply to the locality until 1947; there was nothing requiring the original owner to adopt that statutory regime and he was entitled to proceed under the Real Property Act. In doing so he did not intend to dedicate land for a highway.

(3) The then Bellerive Council assumed that it had power but could not do what it purported to effect.

(4) The Highways Act 1951 provided a scheme which limited "the ways in which a highway can be created". Counsel articulated the argument during the course of an exchange during the hearing:

"So, there's a scheme in the Tasmanian legislative - in the Tasmanian Parliament that says, well, we're going to limit the ways in which highways can be created. Now, the real problem is, there's a hole in that scheme between 1 January 1964 and November 1988.

HIS HONOUR: I follow that. I must say, I don't think we went down that road if I may mix my metaphors.

MR McELWAINE: Well, exactly and that's why I'm challenging usage, I'm simply saying that one would need to be very precise in this case about what period of usage one is looking at because by statute it wouldn't matter how much use there was during certain periods of time it couldn't create a highway. For example, your Honour refers to the installation of public services, I think in 1998, 2000 and 2001. Well, none of that could possible have supported the creation of a highway. In substance they're the areas in which we would say that there is no proper basis as one of the bases would be application for costs against the council. Now, in certain respects this discussion with your Honour has clarified the meaning of certain paragraphs in the judgement but in other respects there are some fairly fundamental propositions which I will have to put, with respect, that are inconsistent with the way in which the case was presented to your Honour and your Honour's ultimate conclusion."

(5) There had been no acceptance of dedication by the council and insufficient evidence to warrant a finding by usage.

10 These matters are to be considered in the course of this judgment. I accepted for the purpose of the bias submission, as I did in my original judgment, that there had been no formal acceptance of dedication of the land other than what might have been the 1944 proposal. I was prepared at the time of the disqualification request to reconsider any determination or application of law on the basis of material and argument put by the parties in these costs proceedings and no argument of estoppel by judgment arises as against the council.

11 The claimed errors, accepted on their face at the time of the disqualification request, did not persuade me to accede to that request.

12 One of the claimed mistakes was a product of misunderstanding of nomenclature. Historically, South Arm Road ceased at or near Marsh Street and continued as Spitfarm Road (T5 - 10). I had used the modern usage of South Arm Road to encompass the whole of the arterial road. Another concerned whether a particular event occurred in 1944, 1946, or some few years earlier (T3 - 4). The third concerned the dates of transfer and/or grants of easements as occurring in the early 1950s, or all completed in the late 1940s (T13 - 16). I adhere to my outline of historic events. But if I am wrong, the impugned findings of fact have but little or no import in my determination. As counsel pointed out, there had been an omission on the part of the Recorder of Titles to record the burden in relation to a particular title (T11, 17, 18). Discussion with counsel clarified the meaning and significance of the impugned factual matters (T23) and did not affect my approach to the legal arguments advanced by counsel that there had not been dedication and usage. On this hearing I have taken into account the legal consequences of the "recording" omissions and the forms of rectification executed in the subsequent transfers. In Symphony Group (supra), the Court of Appeal stated relevant principles at 193:

"(4) An application for payment of costs by a non-party should normally be determined by the trial judge: see Bahai v Rashidan [1985] 1 WLR 1337.

(5) The fact that the trial judge may in the course of his judgment in the action have expressed views on the conduct of the non-party constitutes neither bias nor the appearance of bias. Bias is the antithesis of the proper exercise of a judicial function: Bahai v Rashidan [1985] 1 WLR 1337, 1342H, 1346F."

I saw no reason to disqualify myself from hearing the application on this claimed basis for the disqualification application.

13 During the course of my reasons for judgment I made a number of observations concerning the role of the council in the varying phases of disputation and the problems which had arisen subsequent to the 1944 proposal survey and subdivision considered by the "Bellerive Council". The reasons for judgment stated at par32:

"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."

14 It ought be apparent from my reasons that I had respect for, and empathy towards, the original litigants for their respective positions. I noted that the council had maintained a neutral position and would have preferred it to be an active participant in the determination of a matter involving "public right" and which might "burden" the public authority. I do not resile from the observation that there were other available vehicles of recourse for a difficult and divisive issue. That said, the sentences: "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" were unnecessary but remained obiter. They ought not be regarded as a predisposition towards an outcome determined on the material advanced on this hearing. Here the basis of the costs application is the dealings between the council and the applicants, rather than a state of affairs concerning the original parties (Symphony Group (supra)).

15 In Howlin v Brinkman (No 2) (supra), I noted the detriment occasioned to the land burdened by the easement and the limited options open to the defendant in response to the action. I observed at par4:

"In future cases of this nature it might be more prudent for the Court to require the joinder of a public authority to represent the public interests, rather than risk either having no contradictor to a claim of 'public right' by a commercial venture, or detriment to another private landowner. A reading of the progress of an English case involving dedication through the Queens Bench Division (R (on the Application of Godmanchester Town Council) v Secretary of State [2004] EWHC 1217 (Admin); [2004] 4 All ER 342) to the Court of Appeal (R (on the Application of Godmanchester Town Council) v Secretary of State [2005] EWCA Civ 1597; [2006] 2 All ER 960), and ultimately the House of Lords [2007] 4 All ER 273) shows that almost every relevant case of precedent cited, relied on in argument, or referred to in the respective reasons for judgment, involved as a party a public or statutory authority or an instrument of State. The existence or loss of a public right was considered as a matter requiring joinder or representation of the public interest by a public body."

16 The impugned comments do not outweigh the desirability of the original judge aware of the history of the land and the relevant issues determining a subsequent costs application and ought not require disqualification.

17 During the course of pre-trial and case-management proceedings, counsel for the respondent raised the question of the bases of the argument it was to meet. The applicants agreed to provide the basis of their claim through a statement of claim to which the respondent replied by way of a defence. Both documents are compendious and extracts only stated as an indication of the respective contentions.

1 The Applicants are and were at all material times the registered proprietors of the land with a 16.54 metre frontage to Marsh Street, Opossum Bay in Tasmania, more particularly contained within Certificate of Title Volume 119543 Folio 1 ('the land'), comprising some 9.854 hectares and the land contained in Certificate of Title Volume 219376 Folio 6 ('the Howlin portion of Marsh Street').

1 (a) It is admitted that the Plaintiffs are the owners of the land comprised in Certificate of Title Volume 119543 Folio 1 and it is said that such land has a frontage to Spit Farm Road Opossum Bay;

(b) It is admitted that the Plaintiffs are the owners of the land comprised in Certificate of Title Volume 219376 Folio 6;

2 The Respondents are and were at all material times the council having jurisdiction of the municipal area within which the land lies.

3 Prior to the purchase of the land, the Applicants through their solicitors requested in writing in the appropriate format information from the Respondent in the form of a Council Land Information Certificate pursuant to section 337 of the Local Government Act 1993 ('the 337 Certificate').

4 Upon the payment of a fee, the Respondent duly provided to the Applicants the answers requested in a 337 Certificate dated 27 April 1999.

5 The Applicants relied upon the Respondent to exercise reasonable care in advising whether the land subject to the purchase contract fronted on to a public road.

6 The 337 Certificate represented, inter alia, the following information:

(a) that the land fronted onto a public road, namely Marsh Street, which was maintainable by Council.

6 Paragraph 6 is denied. Expressly the Section 337 certificate provided by the Clarence City Council (the Council):

(a) was submitted pursuant to a request dated 20 April 1999 which described the property address at 33 Spit Farm Road Opossum Bay and specified the highway (road frontage) as Spit Farm Road;

(b) at all material times the land situate and known as 33 Spit Farm Road Opossum Bay has had and still does have a frontage to Spit Farm Road;

(c) the application referred to the 'specified highway' being Spit Farm Road;

(d) question 12 asked whether; is Council responsible for the maintenance and repair of the specified highways? To which Council answered 'yes' which answer properly construed was a reference to Spit Farm Road and not Marsh Street; and

(e) the balance of paragraph 6 to the extent to which it is inconsistent with these admissions, is denied.

7 At the time of providing the 337 Certificate, the Respondent intended and well knew or ought to have known that the Applicants would rely on the information contained therein.

8 Acting on the faith of the 337 Certificate and induced by the information contained therein:

(a) the Applicants purchased the land on the 21 July 1999 with a view to subdividing it into smaller lots; and

(b) Following discussions on 26 February 2003 between the Respondent and the Applicants' agents, a development application for subdivision of the land ('the development application') was submitted to the Respondent on 19 May 2003 in compliance with the Respondent's advice.

9 On 28 May 2003 the Respondent represented to the Applicants that Marsh Street was not necessarily a public road.

9 (a) it is admitted that by letter dated 28 May 2003 from the Council to Mr CB Rogerson it represented that March [sic] Street was not necessarily a public road;

10 On 6 August 2003 the Respondent represented to the Applicants that Marsh Street was not a public road.

11 On 23 October 2003 the Respondent represented to the Applicants that Marsh Street had not been dedicated to and accepted by the council as a road.

12 The Respondent further represented to the Applicants, prior to the formal consideration of the development application, that the application was incapable of being successful as the land did not front on to a public road.

13 At the time of making the said representations referred to in paragraph 9, 10, 11 and 12 above, the Respondent intended and well knew or ought to have known that the Applicants would rely on the representations.

14 Acting in reliance on the representations referred to in paragraph 9, 10, 11, and 12 above and induced thereby, the Applicants cancelled the development application and sought further legal advice on the status of Marsh Street.

15 In the premises, the Respondent is a public authority in the business of providing information upon which the recipients are likely to rely for serious purposes.

18 Essentially the same assertions were relied upon as negligence, untrue or misleading representations, in pars16 - 21, with similar, but not identical, responses.

22 On or about the 15 December 2003, the Respondent advised the Applicants that:

(a) the Respondent could not resolve the issue of the status of Marsh Street; and

(b) the Applicants' only remedy was to pursue a private right through the Court against Mrs Brinckman.

23 At the time of making the representations in paragraph 22 above, the Respondent intended and well knew or ought to have known that the Applicant would rely upon that advice.

24 The Applicant made repeated requests to the Respondent between about August 2003 and December 2005 to correct their records to show that Marsh Street was a public road.

25 The Respondent repeatedly refused to correct their records to show that Marsh Street was a public road.

25 (a) admits that at no time prior to the publication of the reasons for decision of His Honour Justice Slicer on 14 August 2007 in this proceeding did it accept that Marsh Street was a local highway within the meaning of the Local Government (Highways) Act 1982; and

(b) the council still does not accept that Marsh Street is a local highway within the meaning of the Local Government (Highways) Act 1982; and

26 Acting in reliance on the representations referred to in paragraph 22 above, and the subsequent actions of the Respondent referred to in paragraphs 24 and 25 above, and induced thereby, the Applicants commenced legal proceedings by way of Writ number 523 of 2005 on 2 December 2005 in the Supreme Court of Tasmania against Mrs Brinckman seeking a declaration that Marsh Street was a public highway.

30 In breach of the said duty, the Respondent was negligent in making the representations referred to in paragraph 22 above which they knew or ought to have known were false and untrue and inaccurate and misleading.

(a) The Respondent could have amended its records to reflect Marsh Street as a public road; and

(b) it was reckless and careless to have advised the Applicant to commence legal proceedings against Mrs Brinckman.

32 In the consequences of the matters aforesaid, the Applicants have incurred expense and suffered loss and damage.

33 The Respondent failed to take any or any reasonable steps to resolve the issue of the status of Marsh Street to prevent the Applicant from suffering loss or damage or being put to further expense.

34 The Applicant alleges that the Respondent had the power and the opportunity to resolve the issue of the rededication of Marsh Street without the Applicant resorting to legal proceedings against Mrs Brinckman.

19 The "defence" sets out in Part 2 the answer of the council to the entirety of the statement of claim, and its substantive arguments countering the applicants' claims. Given my conclusions later stated, it is convenient to state some of those "pleaded matters". They included:

(a) Sections 48 (excluding the words 'in accordance with Section 48A' at the end of subsection 2), 48B, 48C, 48D and 48E of the Towns Act did not apply to land situated in Opossum Bay, Tasmania until 24 September 1947;

(d) by letter of 6 November 1944 from a surveyor engaged by Brown and addressed to the statutory predecessor of the Council, the surveyor enclosed a tracing plan (tracing plan) of a proposed subdivision of land into five lots within the Brown internal land. This tracing plan included a 'proposed roadway' over part of the Brown internal land and over the full extent of the Brown road lot. This letter requested approval for the proposal. The letter also stated that a final plan would be forwarded for stamping, and the requirements for lots not less than 5000 square feet would be provided, and that any drainage easements would be shown if necessary;

(e) by resolution of the statutory predecessor of the Council of 9 November 1944 the Council purported to approve the proposal set out in the tracing plan subject to the roadway being constructed to the satisfaction of the Council by Brown;

(f) at no time in November 1944 was Brown required by legislation to obtain approval for a subdivision of the land referred to in paragraph 48(d) from the Council and the Council had no jurisdiction to grant such approval in the terms that it purported to do;

(g) the roadway referred to on the tracing plan and in the resolution of the Council was not constructed as required by the resolution of the Council by any person;

(h) no further final plan of subdivision of the land as intended by the proposal enclosed with the letter of 6 November 1944 and as described in that letter was lodged with the predecessor of the Council by the registered proprietor, Brown, or anyone else on his behalf, or approved of by it as a final plan of subdivision."

20 Although the pleadings are in a sense artificial, their substance appeals for an exercise of discretion in the grant or refusal of a third party costs order. It was an apposite process.

21 The hearing was conducted through the forms of affidavits, agreed documentation, and cross-examination of nominated witnesses. Affidavits and documents tendered by the applicants exceed 2,000 pages and the useful Court Book provided by Mr McElwaine comprises 179 pages. The main affidavit relied on by the respondent, that of Michael Bartlett, remains uncounted, but is in the vicinity of 400 pages. The hearing was conducted between 19 and 27 August 2008, with written submissions received after that date.

22 No question arising under the Evidence Act 2001, s120, providing for unrepresented parties, was raised in these proceedings.

23 The Supreme Court Civil Procedure Act 1932, s12(2), provides:

"(2) Subject as provided in subsection (1) the costs of all proceedings whatsoever in the Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power and authority to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid."

24 The interpretation afforded to like provisions permits the making of a costs order against a non-party to the proceedings (Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965). That interpretation has been followed in Australia (Knight v F P Special Assets Ltd [1992] HCA 28; (1982) 174 CLR 178) and applied within this jurisdiction (National Mutual Life Association of Australasia Limited ERROR! BOOKMARK NOT DEFINED.v Chris Poulson Insurance Agencies Pty Ltd (No 6) (1998) 8 Tas R 123). The Supreme Court Rules 2000, rr9, 57 and 186, relevantly provide:

"9 - Court acting on own motion or on application

The Court or a judge may exercise any power under these rules -

(b) on the application of a person who has a sufficient interest.

57 ** - Costs in discretion of Court**

(1) The costs of the proceeding in the Court or before a judge are to be in the discretion of the Court or judge.

(2) ...

186 ** - Direction to serve a person not a party**

The Court or a judge may direct that a person who is not a party to an originating application be served with the application without joining that person as a party."

25 The basis of any order is not unfettered. The discretion is bound by the requirements that it be "just and equitable" (Vestris v Cashman (1998) 72 SASR 449), discretion be confirmed by principle (Knight (supra)), and exercised with extreme caution (Symphony (supra)). The categories of permitted exercise of discretion ought not be closed (Bischof v Adams (supra)), but general factors of availability by joinder (Vestris (supra); Latrobe Council v Williams [2008] TASSC 56), notice (Poulson (supra); Gore v Justice Corporation Pty Ltd (2002) 189 ALR 712), financial capacity (Knight), and conduct (Vestris) govern the exercise of discretion. Central to that exercise is the requirement of real and direct connection with the original proceedings and material to the issue of costs (Bischof (supra)). The nature of the proceedings is not dissimilar to public interest litigation (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Barrett-Peacock v State of Tasmania (A90/1995); [1995] TASSC 157). Here a public right was claimed which impacted on adjoining landowners who would be affected by the outcome. Although the applicants were seeking an eventual commercial advantage, general questions of use, construction and maintenance costs, provision of review and the like were raised. The issues included public amenity and the nature of the locality. The council was both a planning authority and the authority responsible for the collection and allocation of financial resources and the provision of services within the locality. Public authorities are not immune from party costs orders. Whilst certain judicial officers have but a qualified immunity, they remain subject to orders. However, that qualified immunity requires rare and exceptional applications and tests described as perverse, serious misconduct, astounding blunders, or impropriety (Magistrates Court of Victoria at Heidelberg v Robinson [2000] VSCA 198; [2000] 2 VR 233; cf El Deeb v Magistrates Court of South Australia [1999] SASC 113; (1999) 72 SASR 596) is not apposite in a case such as here involving a non-judicial authority. The appropriate test is that of connection and capacity to initiate or control the processes of resolution or outcome of the matter giving rise to the litigation (see Marriage of Millea and Duke (1994) 122 FLR 449; Collins and the Victorian Legal Aid Commission (1984) FLC 91-508; Kelly v South Manchester Health Authority [1997] 3 All ER 274).

26 The applicants purchased the property referred to as 33 Spitfarm Road in February 1999. Their title (certificate of tile 119543, folio 1) recorded a burdening easement over the roadway shown on Plan P119543 (attached to this judgment) marked A, B, C, D and a benefit easement over the Marsh Street "roadway" marked 119543. On 20 April 1999, their solicitors applied for a Certificate of Council Rights or powers over land, stating the nature of the interest to be "sale purposes". The certificate identifying the property address as 33 Spitfarm Road stated that the council was responsible for the maintenance of the specified highway. On the applicants' argument the document, on its face, referred to the roadway subject to the burdening easement, an interpretation contested by the council. The Court accepts that in the period of 2000 - 2003, the applicants or, at least the first named applicant made a number of preliminary enquiries of the council's Planning Officer as to subdivision. There had been a meeting, or meetings, between a surveyor, C B Rogerson, now deceased, in the period February to April 2003, details of which are imprecise, but certainly concerning lot sizes and technical matters concerning a proposed subdivision. A letter dated 14 May 2003 from Rogerson to the council referred to a meeting and discussion on 26 February 2003. On 14 May Rogerson forwarded a proposed development document to council which provided for a 28 lot subdivision. The council's GDA document plan shows two access points, number one for the Marsh Street entrance and a second for the narrow number 33 Spitfarm narrow roadway (Book 1, page 213). Notices were placed at those points but a later notation carries the notation with clear markings stating "David This one must be placed at beginning of street and not the end" (Book 2, page 214A). A notation dated 22 May 2003 made by the council officer Daniel Marr, raised the question of the status of Marsh Street, adding:

"I believe Council does not maintain it - See John H this issue will be crucial in the assessment of the application". (Book 1, page 215)

27 Further file notations dated 27 and 28 May refer to the problematic status of Marsh Street. The advice of counsel was sought and obtained. On 6 October 2003, the general manager wrote to Mr Howlin, relevantly advising:

"The other issue you raise concerning construction of works in Marsh Street is more of a problem. Currently Marsh Street is not a public road but a number of properties have a right of carriageway over this land. As such, Council has no obligation to construct or maintain the roadway. Should Marsh Street ever need to be upgraded, the developer would be responsible for engaging a consultant engineer to design the upgraded works in accord with Council's bylaw." (Book 1, page 219)

28 A file memo dated 31 October between John Hingston, the manager of asset quality and Marr, records a discussion of possible traffic problems, and in relation to access for Spitfarm Road, records:

"The road reservation for Spitfarm Road varies in width from 9.4 metres to 15 metres. To be consistent with the road asset management the any [sic] upgrade of Spitfarm Road would require a 5.5 metre wide carriageway and a footpath on one side. Give [sic] the narrow road reservation in parts of the road this would be difficult to achieve without major impacts on properties fronting these sections of the road.

The cost to the community to reconstruct Spitfarm Road to a standard that would cater for both vehicles and pedestrians safely is substantially more than the contribution provided by the developer of the Arm End subdivision (in the order of $800,000 to $1,000,000). Reconstruction in the near future would almost certainly be required to cater for additional traffic generated by the proposed subdivision.

The proposed subdivision accesses Spitfarm Road some 440 metres from the intersection of Spitfarm Road and South Arm Road. If the developer undertook the upgrading of this section of Spitfarm Road as a condition of subdivision it would put pressure on Council to upgrade the remaining 400 metres of road." (Book 1, pages 220 - 221)

29 On 28 May, council advised the applicants that Marsh Street was not necessarily a public road, reinforced by a statement dated 6 August referring to Lot 6 marked as the proposed roadway and that "Marsh Street is not a public road but a number of properties have a right of carriageway over this land". In relation to the question of access, the letter further advised:

"The argument of simply conditioning the permit to require the upgrade of Marsh Street to a public road is not accepted for two reasons. Firstly, it would include private land outside the scope of the application and any condition affecting that land would be invalid. Secondly, it would involve private land outside the scope of the application for which the notification requirements under Section 52 of the Land Use Planning and Approvals Act 1993 have not been met.

While it is accepted that, as owners [sic] consent is not required, an application could be made incorporating the adjacent land, the road would be required to be dedicated to the public and its subsequent transfer to Council may be an issue as the property owner would have to sign the transfer document. Standard Council practice is to require any land nominated as 'road' or 'public open space' is to be transferred to Council for a nominal fee and I fail to see any reason why it should not be applied in this case." (Book 2, pages 405 - 406)

30 It was lot 6 which was a cause of the problem, analysed in the original decision [2007] TASSC 59. On 15 August 2003, the applicants purchased Lot 6, the "Howlin" portion of Marsh Street adjoining Spitfarm Road which was burdened with the right of way for the Brinckman land only. The accuracy of the above advice was challenged by the applicants' solicitors. The issue had at this stage been clearly identified. By letter dated 23 October 2003, the general manager indicated that the absence of a public connection required rejection of the proposal in accordance with the Eastern Shore (Area 2) Planning Scheme 1986, Schedule 2.2 and the Local Government (Building and Miscellaneous Provisions) Act 1993, s109(8). The parties had entered the labyrinth.

31 There followed discussions, the provision of legal opinion and meetings, culminating in a recommendation to council, resulting in a report to council, concluding that:

"10.1 Application is made to subdivide 28 lots from a large property at 33 Spitfarm Road, Opossum Bay.

10.2 The proposal was advertised and 49 representations were received which included 2 that were received outside the statutory advertising period.

10.3 It is considered that the proposal is incapable of being approved in accordance with the Planning Scheme as the land, known as Marsh Street, is not a public road.

10.4 In addition, the current standard of Spitfarm Road is considered unsuitable to service the increased number of lots." (Book 2, pages 426 - 427)

"RECOMMENDATION:

That the application for a 28 lot subdivision at 33 Spitfarm Road, Opossum Bay (Cl Ref SD-2003/31) be refused for the following reasons.

1 Each lot cannot be provided with legal frontage as required under Schedule 2.2 of the Eastern Shore (Area 2) Planning Scheme 1986.

2 The proposal is incapable of be [sic] approved under Section 84(1)(a) of the Local Government (Building and Miscellaneous Provisions) Act 1993.

3 REFUSAL 05 - TRAFFIC.

4 REFUSAL 02 - REPRESENTATIONS.

5 REFUSAL 03 - PLANNING, insert 'current and future' before 'proper'."

6 REFUSAL 08 - OBJECTIVES."

32 The controversy continued throughout 2004 resulting in a 28 lot subdivision application SD-2004/81 being lodged with council on 8 October 2004. The ensuing report advised:

"5.3 A decision to declare Marsh Street a highway under the Local Government (Highways) Act 1982 and/or to acquire the subject land could result in pre-committing Council into the making of the street to an acceptable standard. Council could seek contributions from the frontagers based on frontage and area and could further include contributions based on 'the benefit derived from those lands from the carrying out of those street works'. This could work in a similar way to a headworks contribution that Council may wish to seek from the principal benefiting party, however would be limited to a one third contribution as provided for under the frontager contribution provisions.

5.4 The solution to this would normally be to conditionally require the full cost of road works to upgrade Marsh Street from the subdivision of 33 Spitfarm Road. If Council were of the mind to support the subdivision application then the officers would recommend this requirement when the subdivision report is presented to Council. Prior to any consultation occurring the subdivider should be requested to consider this possible conditional requirement. Under normal circumstances the consultation would occur based on the possibility of a frontager scheme.

If on the other hand, the subdivider volunteers in advance to meet the costs to construct Marsh Street, then consultation could proceed based on this understanding.

5.5 Once declared a public road under the Local Government (Highways) Act 1982, Council would be committed to the on-going maintenance of Marsh Street." (Book 1, page 113)

33 It suggested further undertaking community consultation and recommended that "at this stage Council declines to declare Marsh Street as a highway maintainable by the Corporation under the provisions of Section 12 of the Local Government (Highways) Act 1982". The proposal was dismissed. Both refusals were appealed (103/05 s2106 S) and a hearing conducted by the Resource Management and Planning Appeal Tribunal on 13 and 14 November 2007. In its decision ([2007] TASRMPAT at 316) (Council Book 19) Appeal 103/05 was upheld and the matter remitted to council. In upholding the appeal, the Tribunal gave as its opinion:

"... the issue of access is one that, in the Tribunal's view, ought be capable of resolution as between Mr and Mrs Howlin and the Council."

"... reached the view that some type of subdivision is appropriate."

34 Following publication of those reasons supporting remission, the Tribunal was persuaded that its order was a nullity since it was not empowered to correct an error or amend a decision and could not require or call upon council "to do something that the Tribunal is satisfied as a matter of law it could not do, ie issue a permit". Accordingly it dismissed the appeal.

35 It is not for this Court to consider either the merits of the council's refusal, the original decision of the Tribunal, or the validity of its ultimate decision, except insofar as they involved the status of the roadway. Central to the above decisions lies the status of the road. Logic suggests that its claimed status was relied upon as the main impediment to a grant of approval, leading to the refusal of development without examination of competing issues of social division and economic burden, or conversely as a vehicle to avoid the repercussions of those competing pressures. Irrespective of that conclusion, the status question required resolution either by agreement, acquisition, or legal determination.

36 Previous to the Tribunal hearing, the applicants had written to the mayor of the municipality on 11 December 2005 confirming:

"... our offer to indemnify Council for a resolution which declares Marsh Street a public road under the Highways Act, the Land Acquisition Act or the general powers under the Local Government Act and Local Government Regulations. This would also include indemnity to any claim for compensation made by Mrs Brinckman as proposed by Mr O'Farrell." (Book 2, page 393)

37 The Court accepts that the applicants had entered into bona fide negotiations with Mrs Brinckman to either purchase her property or provide compensation. On 11 December 2005, in the same letter, they annexed a copy of the writ in action 523/2005 which constitutes these proceedings. The council, through its mayor, had notice of the disputation, its basis, and the existence of the suit. The Court accepts the evidence of the first applicant provided in his affidavit sworn on 22 June 2006 that on 17 February 2006, at a directions hearing of RMPAT, he offered Mr and Mrs Brinckman the opportunity to have the road status question determined by the Tribunal, rather than the Supreme Court, a course repeated by the applicants' counsel. The Court accepts the evidence that the then counsel for the council was present at that hearing and discussion, and supported the opinion that the issue required determination by the Supreme Court. Accepting that to be an appropriate opinion, the import is that the council, through its legal representation, was aware of the necessity for a judicial determination of the question. It did not seek to be joined, nor to intervene, in the proceedings.

38 In the period March/April 2006, the applicants provided the council with documentation relevant to the 1944 - 5 processes and decisions in support of their cause. On 20 June 2006 a council officer advised the applicants that the council did not seek to have its legal opinion reviewed. On the following day, Richard John Macqueen, an experienced valuer, swore an affidavit (Book 2, page 853) which was filed with this Court in action 523/2005, the original action, in which he deposed (inter alia) that he had commenced his instructions in July 2004 and:

"4 As part of my investigation into the subdivision potential of the 9.854 hectare property I made verbal enquiries to the Clarence City Council.

7 I was further advised that Marsh Street was an unconstructed public road which was not maintained by the Clarence Council."

The affidavit was tendered as part of these proceedings but was not tested through cross-examination.

39 On 6 July 2006, a fresh subdivision application for three lots was filed with the council. This was refused on 17 August on grounds which included: (Book 1, page 120)

"1 Each lot cannot be provided with legal frontage as required under Schedule 2.2 of the Eastern Shore (Area 2) Planning Scheme 1986.

2 The proposal is incapable of being approved under Section 84(1)(a) of the Local Government (Building and Miscellaneous Provisions) Act 1993.

3 The proposal will have an adverse effect upon traffic in the area.

40 The Court notes an earlier document (Book 2, pages 426 - 427) that as of 2003, 49 representations had been received. It notes another document (Book 1, page 116) dated 10 January 2005 recommending further consultation with the community. There is a further consultative process of frontage holders recommended in the Governance Report dated 15 October 2007 which led to a return of 11 survey forms, eight of which were against the proposal and three in favour. As a result of that return, council decided at its meeting of 3 December 2007, "That the results of the consultation be noted and that at this time the construction of Marsh Street under a 'frontager' scheme not proceed." (Book 2, page 883). The purpose of this interpolation is twofold. The commendable process of consultation in relation to the proposed development extended over four years and adds another dimension to the consistent approach taken by council or councillors to the issue. The second is that the primary decision and declaration was made on 14 August 2007, the frontager scheme rejected on 3 December 2007, whilst here the council maintains the primary decision to be wrong in law.

41 On 7 August 2006, the general manager received the advice from counsel, which included:

"Whether or not the land has frontage depends on a determination of whether it has been dedicated to the public.

... the fundamental question is the status of Marsh Street as a public street, or private access. The resolution of this question is best left to the Court."

42 It was aware of the significance of action 523/2005, but chose to allow the question to be determined between two of its ratepayers rather than accept some responsibility as the governance authority directly connected with the issue.

43 On 17 August 2006, the Delegated Authority (appointed by Delegation 132 granted by council on 29 July 2002) rejected the three lot subdivision proposal. It referred to the Supreme Court proceedings and maintained its opinion that Marsh Street was privately owned. It also referred to a decision of council made on 28 February 2005 refusing a request from the applicants to declare Marsh Street to be a highway maintainable by the corporation under the Local Government (Highways) Act 1982, s12. (Book 2, pages 618 - 630).

"Council's legal advice is that the previously stated opinions remain unchanged. The land known as Marsh Street is not shown as a road on a sealed plan, nor has it been dedicated to and accepted by Council as a road. Accordingly, it is not a public road. Subject to any decision of the Supreme Court on the status of Marsh Street it appears that the proposed lots will not have frontage to a public road as required under Schedule 2.2 of the Eastern Short (Area 2) Planning Scheme 1986."

45 Interestingly that document tendered on this hearing was annexed to an affidavit of Michael Bartlett, a witness on the original hearing, sworn on 21 February 2008 and filed in support of action 523/2005.

46 The problem caused by lot 6 was acknowledged by council in August 2006 when it wrote to a number of landowners whose properties fronted Marsh Street, advising in near identical terms: (Book 2, page 312)

"From a perusal of your title a benefiting easement over only part of the adjoining land (part of 9 Marsh Street) would appear to have been registered. It would appear that when a transfer of 1 Marsh Street was made in 1952 that it was the intention of the owner at the time to also create an easement over the adjoining lot which fronts Spitfarm Road (which is certificate of title volume 219376 folio 6). In this regard I am enclosing a copy of the relevant transfer (number 4113) and a copy of the diagram referred to in that transfer, 167/34 and survey notes. I am also enclosing a copy of your title and a previous title (volume 700 folio 59).

As this review has raised complex legal issues regarding these access arrangements I suggest you discuss these matters with a solicitor, and the Land Titles Office which is responsible for registering property title information."

47 The council communicated with Mrs Brinckman's solicitors on 11 September 2006 (Book 2, pages 843 - 844) referring to the Supreme Court proceedings and advising of administrative arrangements in the event that Mrs Brinckman wished to subpoena a council officer as a witness in the proceedings. The letter was supportive of Mrs Brinckman's position in that it restated its 28 February 2005 decision referred to above, adding:

"Further, the Council has not otherwise decided that this land is municipal public land."

48 Following the council's rejection of the three lot proposal, the applicants sought review by RMPAT. Council provided written submissions opposing the review which required a preliminary ruling on jurisdiction. The Tribunal upheld the council's contention on jurisdiction, determining:

"1 Mr and Mrs Howlin own some land at Opossum Bay. It is comprised in two separate Certificates of Title Volume 119543 folio 1 and volume 219376 Folio 6. They wish to subdivide the land into three lots. The Clarence Council has refused them a permit. They have appealed this decision.

2 The approval that they seek proposes, amongst other things, that each of the three subdivided lots would have access to Spitfarm Road over a street known as Marsh Street.

3 Marsh Street is in private ownership. It is not a public road.

4 The issue that must be determined, as a preliminary point, is whether or not the appeal can ever succeed given the status of Marsh Street.

6 The relevant Planning Scheme in this instance is the Eastern Shore (Area 2) Planning Scheme 1986 (the 'Scheme'). Clause 3.2.1 of the scheme requires land to be subdivided in accordance with various provisions contained in Schedule 2.2.

7 In S2 of Schedule 2 frontage is defined as meaning 'The minimum dimension of a boundary of a lot to a public road unless otherwise determined by [the] Council in accordance with Section 472 of the Act'.

8 In this instance the exception is of no application.

9 It is plain on the basis of the application that the land to be subdivided does not, and cannot, comply with the minimum requirements in relation to frontage under the Scheme in the sense that at least some of the land simply has no frontage to a public street.

10 Accordingly the conclusion of the Tribunal is that the appeal cannot succeed.

11 The Tribunal will hear the parties further as to the disposition of the matter."

49 It is not for this Court to consider the correctness or otherwise of that preliminary ruling (but see Attorney-General v Estcourt and the Wilderness Society Inc [1995] TASSC 65; (1994) 4 Tas R 355). It is the position taken by council which is significant. It claimed to maintain a consistent view unless and until a superior court declared for the status of the land. It did not adopt a neutral position as between competing landholders. It was an active participant in the controversy. Here, it maintains its position that the decision [2007] TASSC 59 is wrong in both fact and law and that the land remains private, subject only to easement. As a public authority it had a responsibility to advance its cause in a superior court, rather than confine itself to jurisdictional grounds before a planning tribunal. The attitude adopted by council can be seen in its dealing with another development. In late 2005, the applicants submitted a plan of a subdivision of one lot (lot 7, comprising 24482m). It had direct access through the roadway identified as 33 Spitfarm Road. It had no connection with Marsh Street. It is recorded by council as letter A193142, file S036-33. It had been prepared by Mr Rogerson, the surveyor previously identified in these reasons. On 22 December 2005, the applicants wrote to the general manager asking if the council would oppose the application for the one lot. The reply dated 4 January 2006 understandably avoids answer, but provides only bland and meaningless response. On 23 May 2006, the manager integrated assessment, made a further meaningless response. On the hearing of these proceedings, the council, through its legal advisers, objected to the reception of the letter into evidence (Book 2, page 330A). The Court was required to make a ruling of provisional relevance. It is ruled relevant and admissible. The basis of the objection remains unclear, but I suspect it was feared the letter might show indifference or disdain towards any proposal which the applicants might make. That reply differs significantly from those given to the landholders following discovery by the council of the lot 6 issue and suggesting they approach Mr and Mrs Howlin for assistance. The decision of this Court was pronounced on 14 August 2007.

50 The Court has read the affidavits and annexures tendered by the parties and has outlined their chronology in the above history. Some of the deponents were cross-examined and added detail to the documentation.

51 Mr Howlin provided accounts of his discussions and meetings with council officers. He presented as a witness as one fixed in his claims of unfairness and injustice. That said, he is accepted as an honest witness, but one who sees matters and draws inferences through a fixed perspective or vantage. But many of his claims and interpretation of events were supported by documentation and independent evidence. He might not have been entitled to rely on the s337 documentation entitled 33 Spitfarm Road since its terms could be interpreted to mean the access afforded by the roadway marked A, B, C, D marked on Plan P119543. But he was entitled to rely on other like certificates issued to other landowners whose only access was through Marsh Street. His evidence of usage identified in [2007] TASSC 59 was supported by independent sources. He conceded that he had not instructed his legal advisers to join the council as a party, claiming to have acted on legal advice. His evidence on the reason for non-joinder was ambiguous, but the decision as to joinder could also be seen as tactical or one based on economics. He had certainly suggested to council other forms of resolution. He purchased lot 6 to solve one of the bases of objection. He attempted negotiations with Mrs Brinckman for the purchase of her property. In his letter dated 18 January 2005 (Book 2, page 738) he had reaffirmed his offer to "upgrade Marsh Street" at no cost to council or the frontagers. There is no doubt that he developed antipathy to Mrs Brinckman and officers of the council. But as of 6 December 2005, (Book 2, page 931) he had offered to indemnify council for any claim which might be made by Mrs Brinckman. He was querulous and stood to make commercial gain through his venture. He has blamed both his own legal advisers and those of the council for his predicament. The Court accepts the above criticisms made through cross-examination. But that criticism did not significantly weaken the import of his evidence on the substantive matters. Mr McElwaine conducted his cross-examination fairly and properly and made allowance for difficulties inherent in cases involving litigants in person (Law Society v Mentyn (supra)). He also made allowance for Mrs Howlin's course of cross-examination which, on occasion, strayed into wider fields.

52 The critique made by counsel in his closing submissions (T500-507) of the evidence given by the first applicant might, in large part, be appropriate, but does not alter the substance of the applicants' case which is largely based on documentation. Inferences or interpretations made by the first applicant might reflect self-interest or be a result of a fixed view, but they are peripheral to the issues. It is for this Court to make its own interpretation and draw its own conclusions from the varying material.

53 The evidence of Andrew Paul, the general manager of the council, and Michael Bartlett, its in-house legal, officer was likewise tested. The substance of their evidence was supported by documentation and no suggestion of personal dishonesty arises from these reasons. Cross-examination was conducted politely and ably by Mrs Howlin and she is commended for its conduct and her preparation. Cross-examination of Mr Paul established that other Regulation 27 certificates issued to other properties such as 7 Marsh Street stated the council to be responsible for the maintenance of the specified highway and entitled to do so in part at the owner's expense. (Book 1, insert prior to page 251.) It elicited that some information was provided orally, and that the council attempted to provide accurate information. The details of meetings and conversations were tested for detail and accuracy of recall. Mr Paul agreed that some documents (MO 119, MO 111 - Book 1, Tab 9) contradicted other certification; eg, question 27 for lots 1 - 9 of Marsh Street (compared with document 5036 - 59) (Book 1, page 247, question 23). Mr Paul conceded documentation January - March 1998, June 2000 and November 2001 (Book 1, pages 1083 - 1090) which showed the council had effected repairs to, and maintenance of, Marsh Street, which weakened the council's position. The letter dated 23 October 2003 (Book 2, page 840) showed that the council had options to deal with the road status issue other than awaiting the outcome of private litigation. The letter to Rogerson dated 28 May 2003 (Book 2, page 403) showed ambiguity and provided an inadequate response to what was to be a long and divisive problem. Cross-examination on the advice to council dated 21 October 2003 (Book 2, pages 476 - 480) showed that council had other options and suggested that the road status definition was susceptible to differing meanings. The line of questioning suggested, with some effect, that officers of the council became fixed in their position and deflected their perception of the problem from solution to a more reactive approach. That, in turn, suggests that the tension between amenity, permitted use and development, created political pressures inherent in governance. Cross-examination of the legal advice on the document dated 15 December 2003 (Book 2, pages 483 - 488, pars12 and 13), namely:

"12 There may be a question of mixed fact and law to be determined between the Howlins and Mrs Brinkman [sic] as to whether Marsh Street has been dedicated to and accepted by the public as a highway. However, that will depend on a detailed inquiry into the evidence of its use. In my view, that inquiry is better dealt with by the Courts as it will involve the determination of conflicting rights to property.

13 Accordingly, in my view, so far as the Highways Act is concerned, without Mrs Brinkman's [sic] consent, any dedication that the Council makes will be deemed ineffective. Therefore, it could not be said on the strength of s 7 that the approval sought by the Howlins will give the lots on the Howlins' land the qualities of minimum lots."

illustrated that tension by showing the issue to be a mixed question of fact and law. That analysis suggests that the council's response ought to have included consideration of resolution through involvement in the legal process. Mr Paul denied the suggestion that he had improperly influenced councillors, responding that "Councillors do not always follow our advice". The Court accepts the answer and the position he was required to follow, but experience shows the processes to be far more complex. Council officers are required to provide information, advice and options but in governance, omissions or alternatives are not without import. The document dated 28 February 2005 (Book 2, pages 518 - 520), contained recommendations based on legal opinion, not directions. Inconsistency in documentation previously identified was properly conceded by the deponent. The initial response of the general manager identified the question of responsibility of the cost of the upgrading of the roadway in his letter of 6 October 2003 (Book 1, page 219). The likely objection by Mrs Brinckman was recognised at the same time, as shown in the legal opinion provided to council dated 21 October 2003 (Book 2, page 590). Mr Paul was asked about documents retrieved from archives (Book 1, pages 165 - 177) including a letter dated 10 November 1944 from the Council Clerk granting approval "subject to Mr Brown constructing the roadway subject to the satisfaction of the Council". In relation to that documentation, Mr Paul gave the following answers to questions put by Mrs Howlin:

"If you'd been aware that there were documents claiming a dedication and acceptance in 1944, you would not have advised the council that the application must be refused on the basis of access?......If the legal advice I'd got had advised me that on the basis of that document that they - that dedication had been - in fact occurred back in 1944 and that that was the advice I got, I would have undoubtedly advised council differently in respect of the road frontage aspect of my report to council.

Mr Paul, Council has relied on the advice of Mr Michael O'Farrell. On page 594 of the court book, Mr O'Farrell states..........Yes, I have page 594.

None of the plans show that Marsh Street are sealed plans. Accordingly Marsh Street is not presently taken to be dedicated to the public under Section S95.

...........Yes, that's what is says, yes.

Okay, so had, before asking for Mr O'Farrell's opinion, would Council have undertaken research to ascertain whether there were any sealed plans over Marsh Street?.............I believe that we would have undertaken some research, yes, we would have undertaken some research."

"HIS HONOUR: Now, she keeps putting a new piece on the table saying but if you'd known about the sealed plan issue, the 84 one, or if you'd known about the documents in the archives or when you know or the council knows about the ones that are on microfiche and so on, in other words, there were new jigsaw pieces coming out or mosaics going on, do you change your position?

WITNESS: Only to the extent that if I'd known about those documents prior to the substantive court action I would have referred them again to Mr O'Farrell and say, well can you review your earlier advice to council on the basis of these documents? And if his advice had in the light of these documents I affirm my earlier advice or I change my earlier advice I would have advised council accordingly."

54 The questioning was directed to the factual basis of the position held by council. In relation to the question of the role played by council in the dispute between the applicants and Mrs Brinckman, he stated:

"HIS HONOUR: Now, you've sat here through the hearing thus far and you've heard Mrs Howlin articulate that in a way the council encouraged us to join Brinckman and to stay - engage with Brinckman because it solved our question for us rather than getting, I think you've heard her say that?

WITNESS: Yes, words to that effect, yes.

HIS HONOUR: And it was sort of, well, too hard so you go and see the Brinckmans and sort it, that's clumsy by me but you know what I mean?

WITNESS: I certainly don't believe we ever encouraged either directly or indirectly anyone to actually necessarily pursue the matter.

HIS HONOUR: But you did start it -sorry.

WITNESS: I was also conscious in my mind too of - whilst, I suppose, in my mind trying to balance perhaps the entitlements of the Howlins' that I also had to be even handed in respect of the Brinckmans too.

...

Did council have any discussions with Mrs Brinckman along, about the resolving the issue of Marsh Street?.....Not in any way that I can recollect. I've certainly had discussions with the Brinckman's but they were primarily were they made time to come and see me to express their concern about you know the proposed subdivision and expressed their belief that they had title over that land.

It might have been in council's interest though, wouldn't it, to have resolved the issue quickly?.....Well I suppose I'd say at the time that we didn't necessarily think there was an issue to resolve because I was getting advice that it was quite straight forward so in resolve in that context I'm not sure is the right word.

So when we advised you that the issue of access over Marsh Street wasn't in fact straight forward, that there was a legal problem, did you take that advice seriously?....I certainly noted your advice and I think probably on every occasion I suspect on every occasion I asked for that to be referred to Mr Bartlett to seek his comment, on the basis that I thought it was prudent as an advisor to council to seek independent advice."

55 Mr Bartlett was cross-examined in a similar manner. He agreed that he had not initially provided the 1944 documentation to council for the initial advice. Much of the cross-examination was directed to what consideration he gave to the offers of indemnification made by the applicants and the acceptance of dedication of the land. In relation to conversations he had with Mr Armstrong and Mr Spence in January and February 2005 and November 2006, he stated that he had no notes of any discussion concerning joinder of the council as a party to these proceedings.

56 For reasons which will become apparent, the exchanges, late discovery and provision of those documents are relevant to both the question of joinder and the making of a costs order. The applicants contend that the late discovery and production of some of the 1944 documents inhibited any serious consideration of joinder. They contend, with some justice, that had they been earlier provided or discovered, they may well have joined the council to the proceedings. Conversely the exchange shows that the provision of the documentation did not alert council officers to re-examine its consistent position.

57 The evidence shows that both sides held intractable positions and compromise was impossible. It shows that the council was directly committed to the issue of the status of Marsh Street. It shows that it was aware of the nature and necessity of the proceedings. At one stage in 2005, Mr Howlin had threatened to sue the general manager personally. The evidence shows that the council was informed of the progress of the proceedings and, through subpoenas, inspections and discussions with the parties, of the hearing. It shows that without resolution of the access provided through Marsh Street any development was impossible. It shows that without a court determination neither the applicants nor the council could progress the matter further. The council had other statutory powers, but decided, in its judgment, not to exercise those powers. Mrs Brinckman was entitled to maintain her position until a declaration of status was made by a judicial body. The evidence shows that the issue involved community division, competing interests, policy and political pressures.

58 The council contended that on the evidence adduced and arguments advanced, this Court ought conclude that Marsh Street could never be declared a public road and accordingly no costs order can properly be made. Had it intervened in the original action it could have challenged my declaration on appeal. I will not regard the challenge as being one of a collateral attack on a judgment of this Court, but deal with the substance of the contention. I repeat my factual findings of usage stated in [2007] TASSC 59.

59 The arguments of council can be summarised in the following manner:

(1) The applicants were required to comply with the Local Government (Building and Miscellaneous Provisions) Act 1993 (96 of 1993), ss109, 110. It was for them to establish a public right of access through Marsh Street. In order to succeed they required an extinguishment of the private easement attached to Mrs Brinckman's land which, in turn, made necessary a private action. They did not choose to either join the council or follow the course taken in R v West Tamar Council [1999] TASSC 107.

(2) Failure to join or directly take the "West Tamar" path deprived the council of the opportunity to meet a suit or action which might directly impact on it (Gore v Justice Corporation Pty Ltd (2001) 189 ALR 712; Yates Property Corporation Pty Ltd v Boland [2000] FCA 1895).

(3) The original s337 certificate did not refer to Marsh Street, but applied to the connecting roadway on the southern boundary of the applicants' land. It did not constitute a negligent or misleading statement. The original letter of Rogerson dated 28 May 2003 clearly stated the doubt about the status of the land. There had been no representation.

(4) There was a plan which showed the land to be a road but never a Sealed Plan. There is a clear distinction between plans registered under the Real Property Act and a Sealed Plan; eg, Local Government Act 1962, s468. Before the enactment of the Local Government Act 1962, there was no provision which provided that land shown as "road" on a Sealed Plan was deemed to be a highway maintainable by the public. Sufficient intercommunication is a precondition to any subdivision (Local Government (Building and Miscellaneous) Act, s81 (s85 is discretionary).

(5) The Local Government (Highways) Act 1982, Pt2, governs the creation and closure of highways, provides for status and duties of maintenance. That Act, s7, does not permit dedication until a corporation has approved under seal. Here neither approval nor seal had been given or evidenced.

(6) It follows from (5) that the council was not required to do anything and owed no duty to the applicants. Failure to search for or produce the 1944-5 documents does not alter the legal position and adds nothing to the legislative regime.

(7) The minute of council of 9 November 1944 which read: "Cr C N Hughes mvd Cr R M Calvert 2nd That Plan be approved subject to roadway being constructed to satisfaction of Council" did not establish dedication nor evidence acceptance. The Towns Act 1934 which regulated the subdivision of land did not apply to Opossum Bay until September 1947 (Tasmanian Government Gazette, 24 September 1947). The Town and Country Planning Act 1944 permitting planning schemes did not apply. Whilst the Real Property Act 1862 provided a regime for the division of land, it limited a "private street not intended for the use of the public" by "rights of way". The subdivider Brown had no need to seek council approval. The structure chosen by the original developer was by way of grant of easement and there was neither dedication nor acceptance. The 1946 transfer to Hughes included a "right of carriageway" which is recorded as being over the "proposed roadway".

(8) Accepting (7), the land could not be a highway. Each subsequent transfer repeats the methodology of grant of easement. The records have become incorrect because the Recorder of Titles registered the easement on the dominant, but not the subservient, tenement.

(9) Even if the council believed it was exercising power, its decision did not impact on the status of the land. Brown could not use the retained and unencumbered lot 6 to bar use by the other title holders since he was contractually bound. What he created was a road on private land which could not become a public road (Burke v MacLeod [2007] 1 NZLR 694). Brown chose the vehicle of easements to effect his subdivision.

(10) Even if the council believed it was accepting dedication, that acceptance was conditional on the satisfactory construction of a road, a condition never fulfilled (T494). Any evidence of usage after 1998 does not assist the application in establishing the existence of a highway since the only dedication could have been made by Mrs Brinckman.

(11) The common law governing private streets, highways, and the like became modified or excluded by the passage of the Towns Act and its amendment in 1941 and thereafter was confined by statute. While there might be a legislative gap between 1964 and 1988, or perhaps a "window of opportunity" between September 1947 and November 1988, no action was taken by any person to obtain a declaration by usage.

60 Some, but not all, of these arguments had been advanced and dealt with during the primary hearing. The conclusion reached in [2007] TASSC 59 was in three parts:

(1) Marsh Street is a public street or road through the process of dedication and usage.

(2) Marsh Street is a public street or road through usage akin to a presumptive right.

61 The declaration is couched in the term "public highway". The Court was not asked to determine whether the street, road or highway was one maintainable by the council. It did what was required by the parties. Mrs Brinckman maintained that it was governed only by easement. The declaration effectively extinguished the easements and replaced limited rights of access with a declaration of public right. The defendant had not been concerned with the assertion that the lower or western portion of Marsh Street was a public right of way, but contested the portion adjoining the applicants' property. The term "highway" used in the declaration meant no more than an historic term and did not seek to interpret current statutes.

62 The parties, at the suggestion of the Court, stated their respective positions by way of a statement of claim and defence. It was a productive exercise. The applicants stated their claim by referring to negligence and representations, and the council replied accordingly. But the pleadings were but a guide. These are costs proceedings consequent upon a judgment of this Court. The applicants were not required to prove negligence or misstatements in the ordinary way. The council was entitled to show that it ought not, in equity, be required to pay costs and to assail the conduct of the applicants. But the Court is not required to determine the issues of negligence and representation, and does not do so. The matter is to be determined on the basis of competing equities governing an award of costs.

63 The matter does not concern the grant or otherwise of the subdivision application. The parties addressed much of their respective causes to the question of the status of the roadway, implicitly to the question of "maintainable by the council". This Court ought not attempt to answer that question. I will, however, address the legal issues raised by the council since they concern the question of whether I ought decide the declaration differently on the basis of the material and submissions made here. I will use, for convenience, the same identification used in the summary of the council's argument.

(1) The applicants were required to establish a public right of access as a precondition to the question of whether it was sufficient or suitable. Secondary questions of cost, suitability, traffic and the like have nothing to do with these proceedings.

(2) It might have been prudent for them to have joined the council as a party. The question of joinder has three foundations:

(a) The applicants could have joined the council as an interested party but irrespective of the council's decision, their primary aim was to extinguish the easement controlled by Mrs Brinckman. Without that they could not proceed to the secondary matters or preconditions. The opponent was the adjoining landowner. Failure to join does not of itself deprive them of entitlements.

The Court notes that the Registrar of RMPAT joined Margaret Brinckman as a party to the appeal Howlin v Clarence City Council 250/06S, on 6 September 2006. In its written submissions dated 10 October 2006 to the Tribunal seeking that the planning appeal ought be dismissed, the council argued:

2 In fairness to the appellant, the Council identifies, as a preliminary matter, whether the appeal was within the Tribunal's jurisdiction. The issue is whether the question of whether Marsh Street was a public road is a jurisdictional fact that the Tribunal was required objectively to establish before embarking on the appeal, or whether it was simply a fact within the province of the Tribunal that, if it could not be established would entail that the appeal would fail.[1]

3 The Tribunal found, as a fact, that Marsh Street was not a public road.

4 This then entailed a question of whether the provisions of the Scheme would allow the lots in subdivision as having minimum requirements.

5 It is submitted that to determine that issue the Scheme had to be applied to the facts. It is submitted that the Tribunal was required to do that as part of its jurisdiction to determine whether the appeal could succeed. That is a different question than an inquiry into whether the jurisdictional facts are established.

(a) An application for subdivision was made the [sic] Council under s57. It was rejected.

(b) An appeal was filed in the Tribunal against the Council's refusal within the time limited by the Act, s61(4).

7 There was no issue that the subdivisional application was invalid, or should not have been considered by the Council.

8 It is submitted that the Tribunal correctly embarked on the appeal. The issue for determination was one on the merits. However, a matter prescribed by the Scheme for the determination of the merits was against the appellant. He could not succeed. This was not a question of jurisdiction. It was a question that the Tribunal had power to decide."

The council was content to argue that the status of the road had been determined as a matter of fact and accept the finding of the Tribunal. Yet it was aware that a superior court of record possessing equitable jurisdiction was to be urged to make a declaration that in law the land was a public road. Whether that declaration made it one which required maintenance by the council was a separate issue.

My original costs order, which departed from the ordinary principle that costs ought follow the event, was recognition of the defendant's predicament, the fact that the case involved a public right, and the responsibility of the council as the community representative local authority and the primary planning body. I believed it to be unfair to require her to pay the costs of the successful parties.

The council adhered to a position based on the original absence of power in 1944 and the title documents showing easements. The original documents were not discovered for some time, at the behest of, and following, the endeavours of the applicants. There is merit in their contention that had they been earlier discovered, they may have followed a different course and joined the council as a party. Conversely, had the council further considered the issue of status in the light of those documents, it might have sought joinder as an interested party. That failure is a factor advantageous to the applicants.

(b) Joinder by Mrs Brinckman of the council as a third party. This is not relevant to these proceedings.

(c) Intervention by the council. The council was entitled to intervene as a party or an interested person. It had notice of the proceedings at an early stage and was able to follow its course. It had a direct interest, with wider import, in the outcome of the proceedings.

(3) I agree with council's interpretation of the original certificate, but note that certificates issued to other landowners contained similar answers:

responsible for repair or maintenance of the highway?

Can Council make or construct the highway at owners' expense?

(Q 16, Page 182)

(Q 18, Page 182)

(Q 12, Page 193)

(Q 13, Page 193)

(Q 12, Page 206)

(Q 13, Page 206)

(Q 12, Page 202)

(Q 13, Page 202)

responsible for repair or maintenance of the highway?

Can Council make or construct the highway at owners' expense?

(Q 16, Page 188)

(Q 18, Page 188)

(Q 23, Page 14

(Q 27, Page 16

(Q 12, Page 2

(Q 13, Page 2

(Q 23, Page 14 of

(Q 27, Page 16

(Q 23, Page 14

(Q 27, Page 16

The differing answers suggest ambiguity or uncertainty. They provided reason for the applicants to believe in the correctness of their cause. In these proceedings they were not required to establish either negligence or misstatement. But their differences are relevant to the wider issues of joinder and any discretion to make or refuse a costs order.

(4) There has been a legislative history in the continuum of the successive legislative schemes. The requirement for a sealed plan was not necessary for the making of my declaration. I am not concerned with the separate question of "highway maintainable" by the public or a public authority.

The history of the creation of highways, public and private streets, and the responsibilities of residents, parishes or public authorities, was examined by Neasey J in City of Hobart v Chen [1966] Tas SR 271. Historic creation was not dependent upon "sealed plans". His Honour accepted at 276 - 277 the evidence of Dr Wettenhall tendered before the police magistrate that "no duty ... ever attached to inhabitants of parishes in Tasmania" to repair highways. He concluded that the validity of a "statutory fiction" accepted by the Local Government Act 1962, s332, in the transfer to corporations of municipalities remained a valid exercise of power. The point of the above is that "dedication" was historically not to the residents of the parish as representing the "public", but to their representatives, the officers of the municipality (see generally the Town Boards Act 1896 (60 Vict No 31). Irrespective of historic analysis, the amendments made by the Local Government Act 1940, s245(6) and (7), together with the presumption of regularity, suggest that a sealed plan was returned to the owner.

(5) The council owed the same duty to the applicants as to every other ratepayer. I make no finding of negligence. Evidence of the 1944 documents assists the court and forms part of the material relevant to the costs application.

(6) This issue is more problematic. Brown did seek approval by the council. The Local Government Act 1940, PtXVII, provided for "subdivisions and Private Streets". Section 245 relevantly provided:

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

(2) No land upon or in relation to which it is proposed to provide a new private street shall be subdivided or sold until the provisions of this section in respect of such street have been complied with and such street has been constructed in accordance with section two hundred and forty-six.

(6) On receipt of such plans and specifications the council shall consider the same, and may give or refuse its approval, or may approve the same with such alterations as the council may think necessary."

Notwithstanding the import of s249, it was open to the council to refuse the proposed division of land until it was satisfied that there was sufficient access to the identified lots. The Towns Act 1934 was amended in 1941 (Act 42 of 1941) by the addition of a new s48F, which provided:

"48F 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."

In turn, s48F was replaced by Act 46 of 1945 (8 June) and amended to read:

"48F - (1) Subject to this section, a council may, by special resolution, declare that the provisions of section forty-eight D shall apply, with such modifications and adaptations, if any, as may be specified in the resolution, to and in respect of the whole or any portion of the municipality defined in the resolution which is situated outside the boundaries of any town.

(2) Every resolution under this section shall be published in the Gazette, and, upon the publication thereof, the provisions of section forty-eight D shall apply to and in respect of the whole or any portion of the municipality therein defined, with such modifications and adaptations, if any, as are contained in the resolution, as if the same were a town.

(3) Subsection (1) shall not apply to any land outside the boundaries of a town which has been subdivided into allotments before the first day of January, 1945, but, in respect of any such subdivision, the council may, by notice in writing, at any time before the thirty-first day of December, 1945, require the owner of the land to supply to it a plan containing the particulars specified in subsection (2) of section forty-eight D, and every owner shall comply with any such requirement by the council within such time as is specified in the notice."

Section 48D prohibited any subdivision unless specified conditions which required street frontage and included the provision for the construction of streets and the return to the owner of a sealed plan. The evidence shows the recording of the survey plan "as having been completed in April 1945" ([2007] TASSC 59, par17). The Town and Country Planning Act 1944, s36, recognised the right of a local authority to approve a "plan of subdivision without reference to the Commissioner". The Towns Act 1934, s44, defined a private street as meaning "a highway laid out on private property but intended for the use of the public generally". The transfer to Marsh on 31 October 1945 post-dated the above legislative provision s48F(3), strengthening the presumption of regularity. It may be that there were doubts about regularity which led to confusion and the insertion of "right of carriageway" clauses in transfers effected in the period 1951 - 1954.

The above analysis strengthens my confidence in my earlier determination that there had been dedication of a street, even if its legal status was that of a private street. My declaration does not "stand or fall" on this point since I also based my conclusion on usage and usage akin to a prescriptive right. Irrespective of the above, the submission of the plan and approval by the council, on conditions, was permitted by the Local Government Act 1906, the whole of which was not repealed until the enactment of the Local Government Act 1962, s2, Sch1.

(7) The council did not act beyond power. The Local Government Act 1906, s205, provided:

"... a council may make by-laws for all or any of the purposes of this Act, or in this section mentioned; that is to say: -

[XIV Regulating the construction of roads and streets for the purposes of the subdivision of land into allotments, and prohibiting the sale of any such allotment which is dependent for access thereto upon any proposed road or street until such road or street is constructed as prescribed]." (See 1936 Reprint, Vol5, at 131.)

Section 205, Div10, ParXIII, was amended by 26 Geo V No 64, s2 (relating to the use of roads for timber cartage) by the addition of a new subpar(f). The same enactment, s2, provided:

"2 The Principal Act is hereby amended -

II As to section two hundred and five thereof -

(c) By inserting after paragraph XIII aforesaid the following new paragraph XIV: -

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

It appears in the 1959 reprint as s205(10)(n) and was repealed by the Local Government Act 1962, s2 (First Schedule). The 1962 legislation, s384, provided for streets existing before 1951 (cf s385) whilst ss675, 676 preserved some historic provisions for hamlets and villages. Exercise of that power is precisely what the council did at its meeting on 9 November 1944. This is precisely what the council clerk told the surveyor in his letter of 10 November 1944. The approval resulted in a survey completed on 25 January 1945 and the completion of the Plan on 23 February 1945. The letters A, B, C, D, E, and F were added on 31 May 1945. It was registered as number 62456, and has since governed each allotment. The notes to the 1936 reprint state at 139:

"Division (10), para XIV: With respect to subdivisions in towns, where it is proposed to open private streets, see the Towns Act, 1934, s 38."

The Court has not been provided with the bylaws in force at the relevant time but accepts regularity and compliance in the procedures which they provided. I do not accept that the decision was flawed as I suggested in the original judgment. If there is in fact a power given under which a bylaw can be upheld, the fact that a bylaw is wrongly instituted is immaterial (Bysouth v City of Northcote [1924] VicLawRp 91; [1924] VLR 587). Here the council required the landowner to provide a public thoroughfare, whatever its status or obligation for construction, maintenance or repair. In doing so, it accepted the dedication on behalf of the public.

If the process was flawed, then it was a consequence of the procedures and processes of the Bellerive Council, the same public authority which now claims invalidity and acts undertaken beyond power. When the Opossum Bay district was proclaimed in September 1947, the council inherited decisions it had made under the legislative provisions identified above and in (7) above. Brown was bound by his dealings with lot 6 not only by contract, but by estoppel. The landowner could no longer deny to the public what he had dedicated (Permanent Trustee Co NSW Ltd v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401).

(8) There is no evidence that the council was dissatisfied with whatever Brown did to the land to make it serviceable for passageway to the allotments. The council has from time to time serviced the road without complaint of inadequacy. Even if inadequate, the following observation by Kitto J in Permanent Trustee (supra) at 412 is apposite:

"It is true that St George's Parade has remained largely in a state of nature, and that not only is it even now impassable over substantial portions of its length but the terrain is so difficult that the cost of constructing a roadway would seem likely to be prohibitive. But there is nothing in these circumstances to justify a conclusion that the depositing of the plan offered the use of the Parade to a restricted class of persons only, while offering the use of the other roads to the public generally."

When the purpose of a power to make bylaws is both prohibitive and regulatory, it authorises a bylaw which forbids conditionally, although the conditions may properly be regarded as regulatory (Country Roads Board v Neale Ads Pty Ltd [1930] HCA 5; (1930) 43 CLR 126 at 135 - 136). Here the council might have regulated the standard of the road but has permitted the sale of allotments, as it did, pending a satisfactory standard of completion.

(9) Dedication and acceptance do not necessarily depend on statute. The 1944-5 events were either effected by statute or, if not, by agreement as a matter of fact. It might have been created as a "private street" and retained that status on the proclamation of the Opossum Bay area in 1947 (Towns Act, s44) which did not attract the attention of s45. But it was one intended for the use of the public generally or did so by usage. As such it could be declared in the terms of [2007] TASSC 59.

64 Nothing in the arguments advanced persuades me that my declaration was erroneous.

65 There is a real connection between the council and the action 523/2005. The council has had notice of the action at an early stage and remained interested in, and aware of, its continuance. The tests for an award of costs stated in Symphony and Knight have been met.

66 The applicants are entitled to have their costs of the action paid by the Clarence City Council, such costs to be taxed. Given the issue of notice, those costs ought be paid as and from 11 December 2005, the date of the delivery of the writ to the then mayor.

[1] For a discussion on jurisdictional facts, see The Laws of Australia, LBC, Administrative Law, par 2.4.111