APPEALED FROM: Clarence City Council v Howlin [2012] TASSC 26

Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Powers of Court - Further evidence - Power of Court to permit on hearing.

Supreme Court Civil Procedure Act 1932 (Tas), s48.

Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Powers of Court - When appeal lies - By leave of Court - Appeal against order for costs.

Supreme Court Civil Procedure Act 1932 (Tas), s44.

Highways - Creation and extinction of highways - Dedication - What constitutes dedication - In general - Common law principles - Intention to dedicate - Rebuttal of the presumption of dedication that arises from user.

President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846, followed.

Highways - Construction, maintenance and repair - Roads - Whether road maintained as shown on municipal map.

Judgment Number: [2013] TASFC 7

1 I have read the judgment of Tennent J in draft form. I agree that this appeal should be dismissed. I agree with her Honour's reasons for that conclusion. In my view the appellant has not identified any error on the part of the learned trial judge, either in relation to the action that he tried or the costs application that followed it.

2 These reasons relate to an appeal against a decision of Evans J handed down 28 May 2012 in proceedings commenced by the Clarence City Council ("the Council") in which it sought a declaration that Marsh Street, Opossum Bay, was not a highway, or alternatively a declaration that Marsh Street was not a highway maintainable by it pursuant to the Local Government (Highways) Act 1982. His Honour concluded that Marsh Street was not a highway and was not maintainable by the Council, and so declared. His Honour subsequently dealt with an application for costs by the Council, and determined that Mr Howlin should pay the Council's costs of the action. Mr Howlin, the appellant, has appealed against both the original decision of Evans J and his Honour's costs order.

3 It is useful to set out pars[1] - [3] inclusive of his Honour's substantive judgment because they deal with the background to this matter and issues of proof:

"1 At issue in these proceedings is whether Marsh Street, Opossum Bay is a highway and whether it is maintainable by the plaintiff, pursuant to the Local Government (Highways) Act 1982. The plaintiff seeks declarations that it is not, and the first named defendant, Darryl Howlin, seeks declarations to the opposite effect. It is the plaintiff that bears the burden of establishing the negative of the key issues in question, that is, whether Marsh Street has been dedicated as a highway and whether Marsh Street is maintainable by the plaintiff. Throughout, I have been conscious of the need to keep in mind that, regardless of whether an issue that the plaintiff must establish requires a positive or a negative finding, the burden of proof is on the plaintiff. The standard of proof is on the balance of probabilities; the Evidence Act 2001, s140, and more generally see Carney v Newton [2006] TASSC 4, [51].

2 The significance of the status of Marsh Street is that it is the access to land owned by Mr Howlin and his former wife, which he seeks to subdivide. The several subdivision proposals that he has put forward have involved up to 35 blocks. If, as the plaintiff contends, Marsh Street is not a highway and the Howlin land's right of access over Marsh Street is pursuant to a right of carriageway, it cannot be subdivided because it does not have a road frontage as is required for a subdivision. See the Local Government (Building and Miscellaneous Provisions) Act 1993, s109, and R v West Tamar Council; ex parte Phillips [1999] TASSC 107.

3 My decision in these proceedings is one of many that have dealt with disputes linked to Marsh Street and Mr Howlin's endeavours to subdivide the land mentioned. Earlier decisions include: Howlin v Brinkman [2007] TASSC 59, Howlin v Brinkman (No 2) [2007] TASSC 100; (2007) 17 Tas R 99, Howlin v Resource Management and Planning Appeal Tribunal (2009) 18 Tas R 323, Howlin v Brinkman [2009] TASSC 18, Howlin v Resource Management and Planning Appeal Tribunal (No 2) (2009) 18 Tas R 397, Clarence City Council v Howlin [2010] TASFC 2, and Clarence City Council v Howlin (No 2) [2010] TASFC 10."

4 Five days before the appellant's appeal was to be heard, he filed an interlocutory application "for discovery". The application sought orders in the following terms:

"That the Respondent be issued with a subpoena to produce the following documents:

(1) The pre 1998 Marsh Street General File and individual Marsh Street No. Files;

(2) The records of building approval granted for 7 Marsh Street Opossum Bay;

(3) All records of amendments to records on electronic data base 'Latitude' from c1989 pertaining to Marsh Street and Spitfarm Road;

(4) All records of signed and authorized certificates issued under the Local Government Act 1962 s695 and Local Government (Building and Miscellaneous Provisions) Act 1993 s337 pertaining to Marsh Street including copies of the electronic maps downloaded from 'Latitude' for the purpose of certification certificates issued;

(5) All electronic or hard copy records of street widths approved by the Clarence Municipal Council in Town & Rural areas c1940-c1950."

5 In support of the application, the appellant swore an affidavit on 14 November 2012. The appellant initially suggested that the application could be adjourned sine die, and the appeal could just proceed. However, counsel for the respondent objected to that course of action. The Court determined to hear the application. The appellant's affidavit was taken in provisionally for the purpose of the application only. The application was treated, not as an application for a subpoena, but as an application pursuant to the Supreme Court Civil Procedure Act 1932, s48. That section empowers the Full Court to receive further evidence upon questions of fact. However, s48(3) provides:

"(3) Upon any appeal from a judgment, order, or other determination given or made after the trial of any cause or matter on the merits, such further evidence (except as to matters which have occurred after the date of judgment, order, or determination) shall be admitted only by special leave of the Full Court, which shall only be granted in cases in which -

(a) the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by him, before the termination of the trial; or

(b) there is some other special circumstance which, in the opinion of the Full Court, justifies the admission of it."

6 After hearing submissions, the appellant's interlocutory application was dismissed and the hearing of the appeal proceeded. The application was dismissed on the basis that reasons for that dismissal would be given as part of the ultimate judgment. My reasons for dismissing that application are contained in pars[7] - [16] of these reasons.

7 In effect, the application was one by which the appellant sought to compel the Council to produce documents. He submitted that he had, over a long time, been pleading for the records that he sought, and that the Council had persistently refused and/or failed to provide them. The same issue was agitated before the trial judge, and has been agitated in other proceedings. The response from the Council is, in general terms, that the documents as described do not exist, or, if they do, they have either already been produced or are irrelevant.

8 As to the first document sought, the appellant submitted that, notwithstanding the Council's claim that a file described as the "pre 1998 Marsh Street General File" did not exist, it did, and he referred to various occasions in this and earlier proceedings where people had been questioned about the existence of such a file. Counsel for the Council made a number of points in relation to this particular issue.

9 Firstly, on 29 June 2011, an affidavit of discovery was made on behalf of the Council. That affidavit disclosed no such general file. The appellant did not challenge the sufficiency of that discovery. At trial, before Evans J, the appellant raised the same issue. A letter dated 8 October 2010 sent by the Council to the appellant in response to a right to information request was tendered on the trial and became exhibit D184. Item 4 on page two of that letter set out the Council's response to the request for this file as follows:

"Copy of the full content of Marsh Street file (file reference M011) is provided. It is noted that the first entry in this file is January 1998. Further, it is noted that there is no record of a prior road file in respect of Marsh Street within Council's filing system.

The currently held Spitfarm Road file has also been checked for the period 1985 -1998 for any documents relating to Marsh Street and documents mentioning the existence of the bus turning area at the Marsh Street/Spitfarm Road intersection have been identified and are also provided."

Counsel for the Council submitted that the issue had been dealt with and there was no such file. The appellant simply refuses to accept that.

10 The appellant did not in his affidavit suggest there was material on any such file which might be relevant to this appeal and make a significant difference to the outcome. Nor did he identify what special circumstances existed which might justify the admission of the file even if it were found to exist.

11 As to the second document, counsel for the Council submitted that the appellant had asked more than once for that document as well, and counsel's instructions were that no such document existed. Save for submissions as to the Council's failure to provide this document, the appellant did not identify what its significance might be and what relevance it had to his appeal.

12 As to the third document sought, counsel for the Council identified the document sought as having been an exhibit on the trial and being a document as a consequence already before the Court. The document was exhibit P38 and was annexed to the appellant's affidavit. The appellant's application appeared to relate, not so much to the existence of the document provided, but to an assertion that what was provided had been altered.

13 As to the fourth document sought, the relevance of this to the appellant's case was, he said, that Council officers acknowledged in Council certificates issued in respect of properties other than his, that the Council was responsible for the maintenance of Spitfarm Road. Counsel for the Council acknowledged that there were inconsistencies in some of the certificates, but submitted that simply because a Council officer said something in a certificate for another property did not necessarily make it so. Counsel's submission relating to this category of documents was simply that they were not relevant to the issue this Court, and indeed Evans J, had to consider.

14 As to the documents identified in point 5, counsel for the Council was unable to identify if such documents even existed. However, he submitted that street widths were a matter provided for by law. If the Council at any time had approved a street with a lesser width for some reason, that did not make that action determinative of anything in relation to these proceedings.

15 In his reply to the submissions of counsel for the Council, the appellant conceded he had raised all these matters before Evans J but he did not pursue them to any sort of finality because he did not want to get into prolonged arguments about them.

16 If this Court is to permit further evidence to be admitted on the hearing of the appeal, it must be satisfied that the material exists, that it is relevant to the issues to be determined, and, more particularly, that it is likely to make a difference to the outcome of this appeal. The appellant has over some years in different fora pursued the Council in relation to the documents he now seeks. He pursued the issue to a limited degree before the learned trial judge. He has left his application until only a few days before the hearing of his appeal which he first initiated many months before. He has not satisfied the Court that the material he now seeks, if indeed it exists, would affect the outcome of the appeal such as to justify any order requiring production at this stage and its admission as further evidence on this appeal.

17 The appellant's notice of appeal contained 51 grounds and identified that the appellant sought six orders. It is doubtful whether the Court has power to make the orders the appellant seeks even if he is successful on the appeal. As to the grounds themselves, nearly all start with words to the effect that the Court erred in fact and law. There are other grounds which assert, either alone or with an assertion that there has been an error in fact and law, a denial of natural justice or procedural fairness. There are also allegations of actual bias. The grounds of appeal generally do not identify where in his Honour's judgment the asserted errors are said to have occurred. Many of the grounds do not actually make sense. Other grounds are confusing and overlap. The appellant's arguments, both orally and in writing, were themselves confusing and difficult to follow. In many cases, they did not appear to address a particular ground of appeal but were simply used as an opportunity to rerun arguments mounted in previous years.

18 As to written submissions generally on the appeal, the appellant filed three. The first was on 13 November 2012, the second was on 12 December 2012 and the third was on 11 January 2013. I have concentrated on the first, and most detailed set, for the purpose of considering this appeal, and where I refer to the appellant's written submissions it is those to which I am referring. Issues were raised in all written submissions which were not related to actual grounds of appeal. References, and what purported to be quotes from documents or legislation, were often inaccurate.

19 In those grounds in which a denial of natural justice or procedural fairness is asserted, in almost all cases the basis for the appellant's assertion appeared to be that the learned trial judge either made a finding the appellant did not like or failed to make a finding the appellant said should have been made. The appellant did not identify what it was otherwise that the learned trial judge was said to have done or not done which resulted in a denial of natural justice or procedural fairness. The making of a finding which is contrary to that which a litigant seeks at trial does not in itself amount to a denial of natural justice or procedural fairness. The failure to make a finding about a matter which is irrelevant to the issue a trial judge has to determine also does not amount to a denial of natural justice or procedural fairness even where the litigant may have led evidence about the issue. Given the above factors, unless a particular ground identifies an issue which may give rise to a legitimate assertion of there having been a denial of natural justice or procedural fairness, I will not deal with the issue when dealing with the ground.

20 At the commencement of the hearing, the appellant handed up a red folder entitled "Appellant's Condensed Exhibit List". It was not helpful. It had no index or any means of precisely identifying what the documents were. On examination, some appeared to be exhibits or parts of exhibits on the trial. Others were not, and the precise source of them was unclear. It contained extracts of transcripts from other trials. An example of the difficulty created by the book was the first document in the folder. It was a copy of a page from Certificate of Title Volume 2793 Folio 51 which had areas coloured in and information hand-printed on it. It was initially suggested it had been annexed to a defence the appellant had filed. Had it been such a document, it would not have been one the Court could have regard to unless it had been an actual exhibit on the trial. When he was queried about it, the appellant acknowledged that the document itself in an unmarked form had been before the judge at first instance, but not the coloured version. Efforts were made during the course of the appellant's submissions to identify the various documents in that folder, not always with success.

21 The Supreme Court Civil Procedure Act, s46, provides that every appeal to a Full Court shall be by way of rehearing.

22 I propose to deal with some particular grounds of appeal out of order because, having read the particular grounds, and the appellant's written submissions in relation to them, it is clear that he misunderstands the interrelationship between the various decisions of the Court in relation to this matter since 2007, and at times misrepresents the effect of some of those decisions. The grounds to which I refer are 11, 12 and 13.

"(11) The Court erred in fact and law by failing to hold that Marsh Street was declared a public highway at Common Law by acceptance of user in the judgment Howlin v Brinkman [2007] TASSC 59 which finding was not overturned by the Full Court on Appeal;

(12) The Court erred in fact and law by failing to hold that the Respondent abandoned a defence to the declaration of dedication and acceptance by user in Howlin v Brinkman [2007] TASSC 59 in the subsequent action Howlin v Brinkman [2009] TASSC 18, then again abandoned a defence to that finding on Appeal in Clarence City Council v Howlin [2010] TASFC 10 and yet again made no pleading or bona fide defence to that finding in Clarence City Council v D R Howlin [2012 TASSC 26;

(13) The Court erred in fact and law by failing to hold that all the frontagers to Marsh Street and the CCC were formally served with notice and invited to join in the substantive action Howlin v Brinkman [2007] TASSC 59 and that the notified parties did not appeal that judgment; ...".

24 As was plain from par[3] of the judgment at first instance, there have been a number of other proceedings involving the appellant, and, to an extent, the Council, related to the issues in this case. It may be considered unfortunate that those proceedings have taken the course they have. However, the course of history cannot now be changed, and the appellant is bound by that history. What the appellant has failed to appreciate throughout the long and sorry saga is that decisions of one single judge of this Court are not automatically binding on other single judges, decisions made by a single judge in proceedings as between two particular parties are not binding on others not parties to those proceedings, and a party to a set of proceedings cannot simply send a notice of those proceedings to a third party and invite them to join in, and then seek to have them bound by the decision when they do not join in.

25 It is necessary to indicate briefly the nature of each set of proceedings in this Court starting with the decision of Slicer J in Howlin v Brinckman [2007] TASSC 59 ("the first 2007 proceedings"). These were proceedings commenced by the appellant and his former wife. The respondent was a neighbour in Marsh Street, a Mrs Brinckman. Slicer J determined in those proceedings that, as between the appellant and his wife and Mrs Brinckman, Marsh Street was a public highway. In effect, the appellant and his former wife succeeded in those proceedings. Mrs Brinckman did not appeal that decision. That decision did not bind the Council.

26 Following that decision, Mr and Mrs Howlin sought an order that Mrs Brinckman pay their costs of the proceedings. They failed in that application, and that decision was published as Howlin v Brinckman (No 2) [2007] TASSC 100 ("the 2007 costs application"). Nobody appealed that decision.

27 Despite the fact that the Council was not a party to the action as between the appellant and his former wife and Mrs Brinckman, Mr and Mrs Howlin then initiated proceedings against the Council in which they sought an order that the Council pay their costs of the proceedings between them and Mrs Brinckman. That application was also heard by Slicer J, and he ordered in Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18 ("the 2009 costs proceedings") that the Council pay the costs as sought. The Council was quite obviously a party to those proceedings. Those proceedings did not involve a merits based review of the decision of Slicer J in the first 2007 proceedings.

28 The Council appealed that decision, that is, the decision by which it was ordered to pay costs. The Council's appeal was successful, and the decision in relation to that was published as Clarence City Council v Howlin [2010] TASFC 2. That appeal also did not involve any merits based review of the decision of Slicer J insofar as it related to his declaration that Marsh Street was a public highway. It was a challenge to his Honour's decision as to third party costs.

29 The decision in respect of the Council's appeal was published on 23 April 2010. The Council then applied for an order that the appellant and his former wife pay its costs of the appeal and of the proceedings before Slicer J (relating to the third party costs matter). For reasons which are not relevant, the hearing of that application was delayed, and was eventually set down for hearing on 13 October 2010. Two days before that hearing, the appellant and his former wife filed an application by which they sought to re-open the appeal for the purpose of presenting fresh evidence and further argument. That application to re-open the hearing of the appeal failed, and the appellant and his former wife were ordered to pay the costs sought by the Council. The reasons for that decision, published on 22 December 2010, are those published as Clarence City Council v Howlin [2010] TASFC 10. Those proceedings did not involve any merits based review of the decision of Slicer J in the first 2007 proceedings.

30 Ground 11 asserts a failure by Evans J to make a finding that Marsh Street was declared a public highway in the first 2007 proceedings, which decision was not overturned on appeal. With respect, his Honour had no need to make such a finding. He was not bound by the decision of Slicer J. Further, it is not correct to say that the decision in the first 2007 proceedings was not overturned on appeal, because there never was an appeal against that decision. That ground of appeal must fail.

31 Ground 12 must also fail. It implies that there were merits based reviews of the decision of Slicer J in the first 2007 proceedings in which the Council abandoned its position that Marsh Street was not a public highway. That was never the case. What counsel for the Council did say at one point is that, if the Court in proceedings in which the Council was involved made a declaration that Marsh Street was a public highway, it would abide by that decision. That is not an abandonment of any claim.

32 As to ground 13, it is a matter of fact that the Council was notified of the first 2007 proceedings and declined to take part, and that it took no step as a third party which might have been open to it to seek to review the decision made. Evans J did not have to make a finding to that effect, and it cannot be an error on his part if he did not make such a finding. That ground must fail.

"The Court erred in fact and law by failing to hold that the 9 November 1944 dedication and acceptance of Marsh Street for the purpose of a minimum 50' frontage to a street was a valid and enforceable contract at common law and 'animus dedicandi'; ...".

34 I have presumed that the reference to 9 November 1944 in this ground is a reference to the date of the meeting of Council at which it considered a tracing prepared by surveyor Mr Terry relating to a subdivision of land proposed by Thomas George Charles Brown. That tracing showed a proposed roadway, and the blocks of land fronting onto it as having frontages of 50 feet or slightly over. The Council wrote to Mr Terry after the meeting to the effect that his proposed tracing was approved at its meeting subject to Mr Brown constructing the road to the satisfaction of the Council. Those facts as such are not challenged by the appellant.

35 The appellant, as I understood this ground, asserted that those facts should have resulted in a finding that there was a dedication of the land identified as "Proposed Roadway" by Mr Brown because there was "a valid and enforceable contract at common law and animus dedicandi", and that, in failing to so find, the learned trial judge made an error.

36 His Honour's conclusion that there was no such dedication and acceptance was, in my view, unimpeachable. Any valid and enforceable contract which could have any relevance to this case could only have been one between Mr Brown and the Council. It is difficult to see how such a contract could have come into existence in November 1944 because Mr Brown did not then own part of the land which made up the proposed roadway, and, as a consequence, would have had no legal or other right to dedicate it for any purpose. The learned trial judge attached to his reasons as annexure B a copy of the survey diagram prepared by surveyor Mr Terry and lodged with the Recorder of Titles. On that, his Honour noted Lots A and B "to identify and distinguish between the two lots that make up the area of the proposed roadway." As the learned trial judge noted at par[8] of his reasons, Mr Brown did not become the owner of Lot B until July 1946.

37 The learned trial judge, at pars[9] - [12], considered the issue of the creation of a highway by dedication and acceptance. As he pointed out at par[10], both dedication by the owner of land for its use as a highway and use by the public of that land as a highway (that is acceptance) must occur to create a highway. At par[11], his Honour set out extracts from Halsbury's Laws of England, 2nd ed, Vol 16, 1935, current as at 1944, which set out the common law principles relating to the dedication of land as a highway. The extracts set out were as follows:

"11 It is convenient to go to the law as enunciated in Halsbury's Laws of England, 2nd ed, Vol 16, 1935 for relevant common law principles on the dedication of land as a highway. This edition of Halsbury was current in 1944. The following passages, with citations omitted, are taken from it:

'212 A "highway" is a way over which all members of the public are entitled to pass and repass; and, conversely, every piece of land which is subject to such public right of passage is a highway or part of a highway. ...

258 Land dedicated by a person legally competent to do so to the public for the purposes of passage becomes a highway when accepted for such purposes by the public; but whether in any particular case there has been a dedication and acceptance is a question of fact and not of law.

259 Dedication necessarily presupposes an intention to dedicate - there must be animus dedicandi. The intention may be openly expressed in words or writing, but, as a rule, it is a matter of inference; and it is for a Court or jury to say whether such intention is to be inferred from the evidence as to the acts and behaviour of the landowner when viewed in the light of all the surrounding circumstances.

260 Acceptance by the public requires no formal act of adoption by any persons or authority_,_ but is to be inferred from public user of the way in question. Even if an express intention to dedicate is proved, it is necessary to prove also that the way has been in fact thrown open to the public and used by them_._

The evidence from which Courts or juries are asked to infer both dedication and acceptance is, as a rule, open and unobstructed user by the public for a substantial time.

261 An intention to dedicate land as a highway can only be inferred against a person who was at the material time in a position to make an effective dedication - that is, as a rule, a person who is absolute owner in fee simple and sui juris. When, however, a primâ facie case is proved of an intention to dedicate, express or implied, it lies upon the defendant to show that the state of the title to the land is or was such as to render any such intention inoperative.

271 [T]here is no fixed minimum period [of user] which must be proved in order to justify an inference of dedication, and no fixed maximum period which compels such an inference'."

"12 For the purposes of the issue before me, it is important to keep in mind that the conflicting declarations sought by the plaintiff and the defendant relate to whether Marsh Street is a highway. The law that governs the creation of highways is not the same law as that which governs private easements such as rights of way."

39 In his written submissions, the appellant referred to the survey plan (annexure B to the judgment at first instance) which largely reproduces Mr Terry's tracing. That survey plan contained a certificate by Mr Terry dated 23 February 1945 which provided as follows:

"... do hereby certify that this plan has been made from surveys executed by me or under my own personal supervision, inspection, and field check, and that both the plan and survey are correct, and have been made in accordance with the by-laws of the Surveyor's Board, dated 1st May 1913."

The appellant also referred to what he described as "By-Law Section 44 of By-Law No 2" which he quoted as saying:

"The Surveyor must measure whatever the applicant declares himself entitled to, but he must use his best discretion to ascertain whether such claims be just ones, and will be required to indicate on his plan any doubts, discrepancies, or difficulties, that may exist."

The appellant submitted by reference to the certification and the by-law that an inference could be drawn that by certifying the plan as he did, Mr Terry was confirming that Mr Brown had the legal capacity to dedicate all the land shown as the proposed roadway. He further submitted that the plan was registered on 26 September 1945. In fact, that was the date it was lodged with the Recorder of Titles.

40 With respect, the inference for which the appellant contended could not properly have been drawn in the face of documents which clearly showed that Mr Brown did not become the owner of all of the land until July 1946. There was no other evidence which might have supported a finding he had any sort of equitable interest prior to then. The reason why the learned trial judge did not make the finding for which the appellant contended by this ground of appeal was clear. Mr Brown could not, as at November 1944, have entered into a contract with the Council by which he dedicated the whole of the land which constituted the proposed roadway, because he was not then the owner of all of it. For the same reason, it would be difficult to draw any inference that he intended to dedicate it. As the extracts from Halsbury's make clear, for an inference to be drawn that a person intended to dedicate land as a highway, that person has to be in a position to make an effective dedication. As a rule that would require the person concerned to be the owner of the fee simple. This ground of appeal should fail.

"The Court erred in fact and law by holding that the Public Health Act 1903 its amendments and the By-laws adopted by the Clarence Municipal Council (CMC) under the said Act, proclaimed only for the 'District of Clarence', were applicable to subdivision in Opossum Bay;..."

42 His Honour considered the impact of the Public Health Act 1903 and by-laws made pursuant to that Act at pars[25] - [33] of his decision. He said at par[26]:

"...at all relevant times Opossum Bay has been within the Municipality of Clarence and its successor, the Clarence City Council."

43 As I understood the issue raised by this ground, it was that by-laws made by what was then the Municipal Council of the Municipality of Clarence under the Public Health Act 1903 which were gazetted in May 1913 (referred to by his Honour as the "Public Health By-laws 1913") applied only to the "District of Clarence" which did not cover the area in which Marsh Street was.

44 The appellant's written submissions in relation to this ground were not logical and contained incorrect references to legislation. For example at point (v) of his submissions the appellant said:

"If the Public Health Act 1903 CMC by-laws were applicable to Opossum Bay in circa 1944 Amendment 26 Geo. V. No.48 dated 1 November 1938 would have applied and building approval could have only been granted if there was '...such access to a public street as in the opinion of the local authority is sufficient in the circumstances of the particular case'."

45 The amending Act to which the appellant referred was in fact passed in 1938 in the reign of King George VI, and not King George V. It amended the Public Health Act 1935 in a very limited way. The amendment did not provide as asserted by the appellant. What it did was add a proviso to the then existing s122 in the following terms:

"Provided that the Minister, on the request in writing of a local authority, may grant permission for the building of a dwelling house in a sparsely settled bush area if the same has such access to a public street as in the opinion of the local authority is sufficient in the circumstances of the particular case."

46 At point (vi) of his submissions as to this ground, the appellant referred to an amendment to the Acts Interpretation Act 1931 brought about by the Local Government (Consequential Amendments) Act 1962 which was said to have resulted in an amended definition of the term "local authority". The appellant set out the new definition which came into force, it appeared, early in 1963. This ground of appeal dealt with by-laws made under the Public Health Act 1903. The appellant did not explain how this submission was relevant to the ground of appeal. I am unable to see how it can have any relevance given his Honour's finding was to the effect that the by-laws would have ceased to have any force in any event when the Public Health Act 1935 was repealed by the Public Health Act 1962.

47 As his Honour said at par[25] of his reasons, the Public Health Act 1903, s164, provided that "every Local Authority" could make by-laws with respect to the level, width and construction of new streets. "Local Authority" was defined to mean:

"the Municipal Council of every City, and every Rural Municipality, and the Board of every Town which has been proclaimed or shall hereafter be proclaimed a Town, under and for the purposes of the 'Town Boards Act, 1896,' and also every Local Board appointed under the provisions of any Act hereby repealed, or any Local Authority hereafter appointed under the provisions of this Act."

48 The relevant gazette entry commenced at page 7 of what was exhibit D2 on the trial. The entry was headed "BY-LAWS UNDER PUBLIC HEALTH ACT". The preamble to the entry was in the following terms:

"The Local Authority in and for the District of Clarence, in the State of Tasmania, by virtue of the powers contained in 'Public Health Act 1903,' and every other power enabling the said Local Authority in this behalf, and for the purpose of carrying the said Act into execution within the jurisdiction of the said Local Authority, doth hereby make the following by-laws;"

"District" was defined in the by-laws to mean "the town or other district under the jurisdiction of the Local Authority".

49 The Local Authority at the relevant time was the Municipal Council of the Municipality of Clarence. Nothing has been put to the Court by the appellant which demonstrates that Opossum Bay was not an area for which that Council was responsible. This ground of appeal must fail.

50 These grounds may conveniently be dealt with together and provided as follows:

"(3) The Court erred in fact and law by holding that TG Brown did not proceed in compliance with the CMC 9 November 1944 subdivision approval over Marsh Street;

(4) The Court erred in fact and law by holding that T G Brown proceeded to subdivide his land by rights of carriageway under the Real Property Act 1886 to avoid the statutory requirements of street width and construction standards defined in pars 53-55 of the Public Health Act 1903;..."

51 Both of these grounds were challenges to factual findings. There was nothing which would indicate they asserted any legal error.

52 At pars[38] - [57] under the heading "The period from 21 March 1946 to 23 September 1947", the learned trial judge dealt with various events and pieces of legislation, and canvassed evidence of surveyors at the trial as to the meaning of the words "Proposed Roadway" on Mr Terry's plan. He said at par[45]:

"45 The evidence satisfies me that Mr Brown took no steps to construct a new street on the area of land marked 'Proposed Roadway', whether in conformity with the Council's advice that its approval of his subdivision proposal was subject to him 'constructing the road to the satisfaction of the Council' or otherwise. The defendant submits that, as the subdivision proceeded, I should infer that the road had been constructed to the Council's satisfaction. I am unable to do so. The evidence establishes that it had not and has not been developed beyond the state of track created by usage that has from time-to-time been potholed and gravelled. Moreover, to infer that the road had been constructed would fly in the face of the soundly-based contrary inference that in order to avoid constructing the road, Mr Brown proceeded with his subdivision by granting rights of way, rather than constructing the road and dedicating it as a highway. As a matter of practice it was open to Mr Brown to avoid the burden of constructing a new street or roadway by granting those who purchased lots in his subdivision rights of carriageway over the proposed roadway, and this is what he did."

His Honour then summarised the various dealings by Mr Brown with the lots in the subdivision and noted that by the way in which each lot had been dealt with, Mr Brown had confirmed his intention to provide purchasers with rights of way rather than dedicate land as a public highway.

"57 The significance of the foregoing is what it says about the intention of those who owned Lots A and B of the proposed roadway. From and including Mr Brown's execution of the first transfer of a lot in his subdivision on 20 September 1945, no owner of either or both of Lot A or Lot B of the proposed roadway has manifested an intention to dedicate it as a highway. The foregoing also negatives the presumption of dedication that arises from long use of land as a road."

54 His Honour makes no specific reference, in the section of his judgment to which I have referred, to the effect, as asserted by the appellant in ground 4, that Mr Brown acted as he did to avoid the statutory requirements "in pars 53-55 of the Public Health Act 1903."

55 The appellant submitted that the evidence was that the Council approved Mr Brown's subdivision. The evidence was that the Council approved a tracing by a surveyor of a subdivision subject to Mr Brown constructing a road to the satisfaction of the Council. The evidence canvassed by his Honour was to the effect there was no evidence any road was constructed to the satisfaction of the Council, and that the condition of the road over the years would suggest it was not.

56 The appellant further submitted that purchasers of lots fronting onto what was known as Marsh Street had been granted permission to build on their blocks under regulations made in 1938 under the Building Act 1937. Regulation 16 of those regulations provided that no person could build on an allotment unless it had a clear frontage "upon a street". The appellant contended that frontage was 50 feet. That width was defined by reference to whether the allotment was in a central area, an inner area or an outer area. There were no definitions of those terms to assist in determining which of the categories applied to Opossum Bay. The appellant chose the outer area. The difference, if it were relevant, is between 30 and 50 feet. The street itself had to be at least 30 feet wide or such lesser width as the Council might approve.

57 The appellant contended that the effect of these regulations and the 1938 amendments to the Public Health Act 1935, to which I referred in par[45], was that, if a person could not provide a frontage to a public street, building approval would not be granted absent the Council seeking express permission from the Minister.

58 With respect, the submissions made by the appellant in relation to these grounds do not address the issues raised. The challenges covered by grounds 3 and 4 are to findings of fact made by his Honour about the activities of Mr Brown. The fact that building approvals may have been given to property owners which do not appear, on their face, to comply with applicable requirements for road frontage widths, did not assist the appellant in challenging the particular findings of fact. His Honour, as I have indicated, canvassed the dealings with the lots in the subdivision and it was apparent that Mr Brown had granted purchasers rights of carriageway. The findings of his Honour were open on the evidence before him and these grounds must fail.

59 These grounds may also be conveniently dealt with together because they relate to easements. The grounds provided:

"(5) The Court erred in fact and law by disregarding Common Law Principle and holding that easements over Marsh Street were validly created over contiguous fee simple titles to Marsh Street (Lot A and Lot B) when at the time of registration both titles to Marsh Street were owned by T G Brown in 'unity of seisin';

(6) The Court erred in fact and law by failing to hold that none of the easements held to be benefitting easements for the frontagers to Marsh Street, over the Appellants fee simple, are registered on the title to 'Lot A' excepting a benefitting easement for the fee simple owners of Marsh Street 'Lot B';

(7) The Court erred in fact and law by failing to hold that when the 'Lot A' and 'Lot B' titles to Marsh Street came into 'disunity of seisin' the purported rights of carriageway over 'Lot A' and 'Lot B' were not validly created;

(8) The Court erred in fact and law by failing to hold that under the provisions of s138L(d) of the Land Titles Act 1980 prescriptive easements cannot be vested to frontagers to Marsh Street over the Appellants 'Lot A' fee simple title when at the relevant time there has been 'unity of seisin' of the dominant and servient tenements; ...".

60 Because the appellant did not identify precisely where the findings were in his Honour's judgment which were being challenged by these grounds, it was difficult to understand precisely what it was the appellant alleged were erroneous findings. Dealing with ground 5, firstly I was unable to find anywhere in his Honour's judgment where he held that "easements over Marsh Street were validly created over contiguous fee simple titles Marsh Street (Lot A and Lot B)". At par[38] of his reasons, his Honour said the following:

"38 Arguably Mr Brown had the capacity to dedicate the proposed roadway as a highway by 21 March 1946, the date of the transfer of Lot A to him. He unquestionably had that capacity by 8 July 1946, when the title to that lot was issued to him and in result, he was the registered proprietor of both Lot A and Lot B. The defendant submits that: 'As a consequence of this unity of seisin rights of carriageway over the proposed roadway reservation could not be lawfully created'. I reject this submission. That Mr Brown owned both Lots A and B did not mean that he could not lawfully create rights of carriageway or rights of way over either or both of them in favour of those who purchased lots in his subdivision. I mention that the dominant tenement and the servient tenement need not be contiguous; Todrick v Western National Omnibus Company Ltd [1934] 1 Ch 561. Insofar as the defendant may be contending that such rights as were created have since been extinguished by unity of seisin in consequence of the same person owning both the dominant and servient tenements, I note that this contention finds no support in relation to registered land. See the Real Property Act 1886, s27H(1), which was inserted by number 73 of 1962, the Land Titles Act 1980, s109(1), Re Standard and the Conveyancing Act, 1919 (1970) 92 WN (NSW) 953; Australian Hi-fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 at 627, and Margil Pty Ltd v Stegul Pastoral Pty Ltd [1984] 2 NSWLR 1 at 10 and 11. Moreover, the importance of Mr Brown's actions in taking steps to grant rights of way or rights of carriageway over the proposed roadway is not so much the lawful effect of his actions, but that they show he did not intend to dedicate the proposed roadway as a highway. In the context of the defendant's submissions with regard to unity of seisin he placed some reliance on the Conveyancing and Law of Property Act 1884, s9A. It does not assist him."

There was no finding in those remarks as asserted by the appellant.

61 Secondly, in relation to ground 5, I was unclear as to precisely what the appellant's complaint was. The appellant referred in his written submissions to a report by the Tasmanian Law Reform Institute entitled "Law of Easements". The appellant summarised from that what he said were the essential characteristics of easements at common law. He then submitted that, because "at the relevant time" the titles to Lot A and Lot B (making up Marsh Street) were both owned by Mr Brown, Mr Brown could not create an easement over Lot A as a servient tenement in favour of Lot B as the dominant tenement.

62 His Honour dealt at some length in his judgment with the various rights of carriageway which had been granted by Mr Brown over Lots A and B to benefit other lots he sold. The evidence his Honour dealt with also included, at pars[51] - [56], a summary of dealings with Lots A and B themselves. The material was summarised for the purpose of demonstrating that the granting of the various rights of carriageway was inconsistent with Mr Brown having any intention to dedicate the land marked as a proposed roadway as a road. The legal implications of what he did were really not particularly relevant. It was the fact of what he did, and the inference to be drawn from that, which was.

63 The fact that Lots A and B were at some point owned by the one person was no impediment to that person granting rights of carriageway over either or both of those lots to benefit other nearby lots. The points in the appellant's written submissions appeared to relate to the proposition that when Mr Brown became the owner of both Lots A and B, there could not be a right of carriageway over one of those lots to benefit the other. Even if that were so, with respect, it has no impact on the legal status of Marsh Street and the conclusion the learned trial judge drew, in part based on the fact that Mr Brown granted rights of carriageway to benefit owners of land other than Lots A and B, that Mr Brown had no intention to dedicate the land shown as Lots A and B as a highway. Ground 5 must fail.

64 As to ground 6, this seemed to be a challenge to the effect that his Honour failed to make a particular finding of fact as set out in the ground of appeal. Firstly, it should be noted that there was no reason why his Honour needed to make the particular finding of fact. This was particularly so in the context of his summary of the evidence which, in itself, was not challenged, and the reason why he was dealing with the facts surrounding the granting of rights of carriageway in the first place. I have already identified that in par[62]. His Honour's summary of the evidence relating to the various rights of carriageway granted by Mr Brown did include reference to whether the easements were granted over Lot A and/or Lot B or something else. For example, at par[50], his Honour referred to the transfers of lots 2, 3, 4, 5 and 9 and recorded that the purchasers of those lots received the benefit of a right of carriageway over all the "Proposed Roadway" as opposed to areas described as Lots A or B. Further, at par[53], his Honour recorded the dealings relating to Lot A.

65 The exhibits which supported the findings in par[53] were exhibits P3, P28 and P29. Exhibit P3 was a copy of Certificate of Title Volume 497 Folio 33 which was the title to Lot A. It had recorded on it an easement for the benefit of the land in Certificate of Title Volume 700 Folio 60. That was the title to the land transferred by Victor Wheeler to Geoffrey Edward Calvert which included Lot B and other surrounding land, some of which also fronted onto what became Marsh Street. Even therefore if the finding the appellant contended should have been made was a relevant finding, it was not one supported by the evidence. Ground 6 should therefore fail.

66 As to ground 7, for the same reasons I have already articulated in relation to ground 5, this ground should fail.

67 As to ground 8, the issue of prescriptive easements was not a matter raised on the pleadings, nor a matter relevant to the issue the learned trial judge had to determine. It was not therefore a matter in respect of which his Honour was required to make any finding. To fail to do so was not an error. Ground 8 should therefore also fail.

"The Court erred in fact and law, denied natural justice and demonstrated bias by declaring that under the provisions of the Real Property Act 1886 that a right of carriageway created under the said Act be 'distinguished by a green line' on a diagram but failed to declare that the green lines drawn on the roadway reservation were granted by T G Brown but confined to the 'Lot B' part of the roadway which remained in the balance Lot owned by T G Brown; ...".

69 The first point to be made about this ground is that, as I said earlier, findings to the effect that there had been a denial of natural justice or that bias had been demonstrated do not automatically flow where a judge makes a finding or findings which are adverse to those for which a litigant contends. That seemed to be the sole basis for the contention made in this ground that there was a denial of natural justice and a demonstration of bias. No argument at all was addressed to matters which might support findings as to these matters. Consideration of this ground of appeal will therefore be confined to the assertion that his Honour erred in fact or in law in the manner identified.

70 The second aspect of the ground was that the appellant, as indeed was the case for almost all of the grounds of appeal, failed to identify the impugned finding or where and in what context a failure to make a particular finding occurred. The first part of the ground suggested his Honour declared that:

"... under the provisions of the Real Property Act 1886 that a right of carriageway created under the said Act be 'distinguished by a green line' on a diagram."

At par[41] of his judgment, his Honour set out material from the Real Property Act 1986. In s27 and Form II, as reproduced, there was reference to roads being distinguished by a green line. At par[43] his Honour repeated in summary form the references to a green line and then said:

"With regard to the link between these provisions, and the practice of those involved with the creation of rights of carriageway and rights of way, it is noteworthy that green lines were used to distinguish the proposed roadway in at least six of the transactions by which Mr Brown sold lots in his subdivision. As to this see [50] to [51] below."

The use of green lines in certain transfers was also referred to in the summary of dealings which appeared at pars[50] - [52] of his Honour's reasons. Apart from those references, I have been unable to find anywhere in his Honour's judgment a declaration to the effect asserted by the appellant.

71 The second part of the ground appeared to be an assertion that his Honour, having made the declaration that I have been unable to find:

"...failed to declare that the green lines drawn on the roadway reservation were granted by T G Brown but confined to the 'Lot B' part of the roadway which remained in the balance Lot owned by T G Brown."

This part of the ground made little sense. It appeared to be predicated upon an assumption that, as a matter of fact, Mr Brown granted rights of carriageway only over what was described as Lot B. That was not correct as can be seen from the summary of evidence in par[50] of his Honour's judgment. An example was the summary relating to lot 5. There was no challenge to the correctness of that summary and it accorded with the evidence disclosed in the relevant exhibits.

"The Court erred in fact and law and denied natural justice by failing to hold that the practices and procedures of conveyancing clerks and the advice of CMC in the era under Common Law principle was to retain ownership of fee simple roadway in the balance land and to create rights of carriageway over the roadway to ensure access to the balance Lot and adjoining land for further or future subdivision purposes; ..."

74 My earlier comments about an assertion that natural justice has been denied are apposite to this ground. As to the assertion that there was an error of fact and law in failing to make a certain finding as sought, there was evidence before his Honour as to the practice of surveyors and conveyancing clerks which his Honour clearly accepted to make the findings he did about practice. The only basis put forward otherwise by the appellant to support the asserted failure was a reference to a letter written by a Council officer which was exhibit D95. That letter was written in respect of a subdivision proposal put to the Council in 1965 which was entirely unrelated to the area with which this case dealt. There was no evidence that somehow the advice in that letter represented "Common law principle" or even that it was a policy which was applied across the board by the Council and had been so applied at the time the Brown subdivision was dealt with. It was irrelevant. The ground is not made out and should fail.

"The Court erred in fact and law by following Narracan v Leviston (1906) and failing to take into account or make mention that the Local Government Act 1874 in the State of Victoria, unlike Tasmania, required the addition of a divesting intention to comply with the requisites of an effective animus dedicandi; ..."

76 When his Honour referred to the case of President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846, he did so to provide an illustration of the rebuttal of the presumption of a dedication that might arise from long use. He said at pars[58] - [59]:

"58 An illustration of the rebuttal of the presumption of a dedication that arises from long use is the decision in President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846. In that case the owner of land allowed a track to be raised over it, the cost of which was paid by neighbours. The municipality arranged for the track to be surveyed and from time-to-time, it cleared, made and repaired the road at its own cost. The road appeared in maps of the municipality. For upwards of 20 years the road was used by the public as a highway. The High Court held that the road had not been dedicated as a highway because, from its inception, the owner had acquiesced to its use by the public on the basis of an implied agreement with the municipality that he would permit the public to use it pending the municipality's proclamation of the road as a public road, whereupon he would be compensated. In the course of his judgment Griffith CJ, at 857 - 859, referred to the decision in Barraclough v Johnson 8 A & E 99. At 858 he quoted a passage from the judgment of Lord Denman CJ in that case which included the following:

'A dedication must be made with intention to dedicate. The mere acting so as to lead persons into the supposition that the way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction ...'.

'The doctrine, therefore, that dedication may be presumed from continuous user must be qualified by adding the words "if unexplained," and it is always permissible, as pointed out [in Barraclough v Johnson] ... , to inquire under what circumstances the piece of land came to be used as a road. Was it under such circumstances as showed an intention to dedicate? Or was it under such circumstances as to negative such an intention? Or was it under such circumstances as not to point in one direction rather than the other?'

59 A more recent authority that touches on this issue is Newington v Windeyer (1985) 3 NSWLR 555. In that case at 558 - 559, McHugh JA, agreed with by Kirby P and Hope JA said the following, from which the citations have been omitted:

'At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn. When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action. In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn. Dedication to the public may also be presumed from uninterrupted user of the road by the public. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.'"

77 Narracan was an appeal from a decision of the Supreme Court of Victoria and considered a factual scenario against a backdrop of some provisions in Victorian legislation which were not the same as in Tasmania. The appellant's written submissions as to this ground were:

"(i) unlike the Local Government Act 1906 and its amendments in force at the relevant time in Tasmania the Local Government Act 1874 which was in force in Vitoria at the time of the HCA decision in Narracan v Leviston 1906 had a statutory vesting provision incorporated in the Act which required the addition of that divesting intention to the requisites of an effective animus dedicandi;

(ii) The merit of the decision in Narracan v Leviston 1906 is comprehensively dealt with by the NZ Privy Council (see Man O' War Station Ltd v Auckland City Council (2003) Part 7 Case 12 at 47 & 56)."

78 This ground of appeal must fail. The comments of Griffiths CJ in Narracan were an analysis of common law principles and were unaffected by the particular statutory provision in Victoria. There was no reason not to use the analysis in the manner in which the learned trial judge did. The decision in Man O' War Station Ltd v Auckland City Council (Judgment No 2) [2002] UKPC 32; [2002] 3 NZLR 584 did not, in any way, detract from the analysis in Narracan. It referred to and commented upon the analysis and the position taken by the High Court. However, it did not make any binding finding to the effect that the Narracan decision was wrong.

"The Court erred in fact and law by failing to hold that at Common Law the dedication of land as a public highway creates a public right of passage but does not divest the landowner of the private ownership of the title to the underlying soil or prevent animus dedicandi;..."

80 I have been unable to establish the relevance of the finding it was asserted his Honour failed to make to the case presented to him. The written submissions of the appellant did not clarify the issue at all. In the absence of any clear and concise argument which might persuade the Court a relevant error has occurred, this ground must fail.

"The Court erred in fact and law by failing to hold the common law principle on the evidence that where an easement increases markedly beyond that for which it was intended easements may be extinguished; ..."

A reading of this ground in isolation did not, with respect, make clear just what the asserted error was. I inferred from the appellant's written submissions however that what he was asserting was that there was "markedly" increased usage over Marsh Street and therefore a principle, he asserted was established by common law, meant any easement which may have been granted might have been extinguished.

82 With respect, even had his Honour accepted that such a common law principle existed as identified, he would then need to have made factual findings and applied the principle to them. Such findings were not necessary to determine the issues on this case, and it can therefore not be said to be an error that his Honour failed to "hold" as asserted by the appellant. This ground must fail.

"The Court erred in fact and law by holding that the purported creation of rights of carriageway easements over Marsh Street is an impediment to the Common Law doctrine of implied dedication; ..."

84 The issue of whether the creation by a landowner of rights of carriageway could be relied on as an indication that that landowner had no intention to dedicate the land over which the rights of carriageway were granted has already been dealt with. The appellant's written submissions in relation to this ground referred to subdivisions unconnected with that being considered in this case, and referred the Court to certain exhibits and a transcript of the evidence of surveyor Mr Medbury. I have looked at the exhibits and read the transcript. They appeared to be relied on to show that in other situations on other dates, different things have happened to certain titles. With respect, the written submissions and the material referred to did not assist the appellant with this ground, and it should fail.

"The Court erred in fact and law and denied natural justice by failing to hold or make mention of an electronic map (exhibit D610) produced by the Appellant from records of the Clarence City Council (CCC) and dated 14 November 2001 denotes Marsh Street as a road maintainable by CCC and that maps produced subsequent to this map on the same CCC electronic data base have since been changed; ..."

86 I repeat and rely upon my earlier comments about assertions of a denial of natural justice. They are apposite here. The appellant's written submissions in relation to this ground were as follows:

"(i) The evidence is that an electronic copy of a map dated 14 November 2001 downloaded from the CCC electronic data base for the purpose of preparing and certifying a 337 certificate for 37 Spitfram Road denotes both Spitfarm Road and Marsh Street as highways maintainable by Council. The evidence is that the markings on the map are different to that on maps subsequently produced by Council (see AEL V2 D610).

(ii) The evidence is that within 3 days of the CCC being advised of the pending issue of a subpoena to produce in the matter of Howlin v Brinkman [2007] TASSC 59 (see AEL V2 D164) the electronic records held by CCC pertaining to Marsh Street and Spitfarm Road were amended (see SAB V1 pages 34 &37);

(iii) The evidence is that between 19 August 2010 and 28 May 2012 the CCC deleted Marsh Street from its electronic 'CCC Roads Maintained Map - Legend' (sss AB V1 pages 202 & 203); ...".

87 The document which was exhibit D610 was a copy of an undated document. It was admitted into evidence during the examination-in-chief of Mr Rumbold, a client services manager for the Council. He had been subpoenaed by the appellant to give evidence. He identified the document as a Council document produced from the Council's GIS database dated 14 November 2001. It showed Spitfarm Road and Marsh Street, both with lines down the centre of them. Lot 37 on the plan which was on Spitfarm Road had lines across it. There was nothing on the document to the effect that Spitfarm Road and Marsh Street were highways maintainable by Council, and Mr Rumbold did not give evidence to that effect.

88 The appellant did not identify where else in the evidence before the learned trial judge there was any evidence as he asserted existed in point (i) of his written submissions. In his submissions, counsel for the Council identified evidence given by Mr Van Der Hek, the appellant and Mr Wicks about the database referred to by Mr Rumbold. I have reviewed the evidence referred to. It did not support the appellant's contentions.

89 In support of his contention numbered (ii) in respect of this ground, the appellant referred to pages 34 and 37 of his supplementary appeal book. His submission was that those documents showed that electronic records held by the Council relating to Marsh Street and Spitfarm Road were "amended" (I infer to his disadvantage and that is the basis upon which I have dealt with the ground). Both documents appeared to be documents which were numbered SW5 and SW8 referred to in the witness statement of Mr Wicks dated 4 July 2011 which was exhibit P102/1. At par2.13 of his witness statement, Mr Wicks dealt with those documents. He described a system called "Maximo" operated by the Council. He said:

"Maximo is an asset management database which was introduced in 1998. Maximo can deliver a wide range of information about any item of equipment including a road or a length of road (Geo Segment). Attachments SW5 and SW6 are extracts relating to Marsh Street which simply show its length and that it is privately owned. By way of comparison, attachments SW7 and SW8 are the same extracts relating to the segment of Spitfarm Road where it joins with Marsh Street."

On SW5, there was an entry which recorded that the system was modified by A Brown at 11.52 on 5 March 2007. There was nothing at all to indicate what on that record was modified. It did not support the appellant's contention, and he has not identified any portion of the evidence before the learned trial judge which might have done so. I comment in passing that computer records will generally show they were "modified" if anyone accesses the records for any reason and not necessarily to change them.

As to SW8, there was nothing on the face of that document to indicate it had been amended at all, let alone on an unspecified date in 2007. The appellant has not identified any portion of the evidence before the learned trial judge which might suggest this record has been altered, and, if so, in what way.

As to the documents which appeared at pages 202 and 203 of Appeal Book Volume 1, they did not support the appellant's contention that, between dates in 2010 and 2012, the Council deleted Marsh Street from its electronic "CCC Roads Maintenance Map - Legend".

90 His Honour dealt with the issue of the Councils' electronic systems. He said at pars[118] - [122]:

"118 From about 1989, the Council developed two electronic databases known as Latitude and Maximo which record various information in relation to roads and streets in the municipality. Layer 64 of Latitude has replaced the hard copies of the municipal maps of roads maintained by the Council to which I have referred. Within layer 64, the roads maintained by Council are shown marked with a heavy pink line. The information recorded on this layer in relation to Marsh Street is the same as that which appears on map 39 in the 1980 edition and the 1991 edition. Whilst the roads in the immediate vicinity of Marsh Street are marked with a heavy line, in this case a heavy pink line, Marsh Street is not so marked, although, as in the former maps, it appears. The information recorded on Maximo referrable to roads and streets includes whether a street is privately owned or not. Maximo records that Marsh Street is privately owned.

119 I find that Marsh Street is not and never has been recorded on a municipal map as a highway repairable by the Council (the 1962 Act, s694(1)(a)), or as a highway maintainable by the Council (the 1993 Act, s208(1)(a)). Accordingly, I find that Marsh Street is not and never has been a local highway maintainable by the Council as shown on its municipal map for the purposes of the Local Government (Highways) Act 1982, s21.

120 As is to be expected, Marsh Street appears on other maps kept by the Council. An example is a map referred to in the card index as 'Rural Roads' numbered 910/4. There is no suggestion in the index or the map itself that it is or was a municipal map, let alone a map depicting any of the matters detailed in pars(a), (b), (c), or (d) in the 1962 Act, s694(1), or the 1993 Act, s208(1). I make similar comments in relation to maps reproduced in the defendant's court book, Volume 3, at 777, 779, 786, 796 and 797. Moreover, whilst it is clear that some of these maps, for example, 796 and 797, were maps of the Council, it is not clear that others were in fact kept by the Council. My understanding is that the other maps were obtained from the Public Works Department or the Department of Main Roads.

121 The defendant sought to derive assistance from Council maps on layer 19 of Latitude. These maps identify roads to which the public has access and distinguish between State roads, Council roads and private roads. Marsh Street appears on these maps as a Council road. Layer 19 maps do not assist the defendant as they patently are not municipal maps maintained for the purposes of the Local Government Act 1993, s208(1)(a)(b)(c) or (d).

122 In his written and oral submissions, and in the course of questioning witnesses, the defendant has, in substance, asserted that officers of the Council have deliberately failed to disclose maps and other documents that record that Marsh Street is a road maintainable by the Council and have altered records that were to that effect. I reject these assertions. I am in no doubt that the reason why no municipal map has been produced that records Marsh Street as a road maintainable by the Council is that no such map is or has existed."

91 The appellant's submissions have misrepresented the evidence which was led before the learned trial judge as to the maps maintained by the Council generally, and as to the particular document to which this ground of appeal related. The evidence did not support his contentions and no error has been made out. The ground of appeal must fail.

"The Court erred in fact and law and denied natural justice by refusing to take into evidence an electronic CCC colour coded map denoted 'Roads Maintained Map- Legend' dated 19/8/2010 depicting Marsh Street as a road maintained by Council; ..."

93 This ground overlapped with ground 18. The appellant in his written submissions relied on a number of documents which it appeared were marked for identification and did not become evidence on the trial. He did not otherwise identify in the evidence where it was that there was evidence to support his contention.

94 Counsel for the Council provided an explanation which assisted with an understanding of the ground. The explanation was supported by the material in the supplementary appeal book prepared on behalf of the Council ("SAB") for the purpose of the appeal hearing. On Wednesday 23 May 2012, some time after the hearing of this action was completed, but prior to the decision being published, the appellant sent an email to Mr Wicks at the Council. He copied that email to the associate for the learned trial judge. The proceedings were listed before the learned trial judge for the purpose of his publishing his reasons in this action at 10am on Monday 28 May (I infer this is the reason for the use of this date in submission (iii) in respect of ground 18). Before publishing his reasons, the learned trial judge dealt with the email. The appellant informed the Court that he had received a document anonymously the previous Tuesday. He said the document was a complete map of the whole of the municipality showing roads maintained by Clarence Council and roads maintained by the State. He did not however have the document with him at Court. Mr Wicks was present at Court. He was unable to explain, from the appellant's description of the document he said he had received, what it might be. The matter was stood down until later in the afternoon to allow the appellant to get the document he received and take it to Mr Wicks to enable him to examine it.

95 When the matter resumed before his Honour, counsel for the Council provided an explanation. It was in the following terms. On 19 August 2010, at 11.23am, Mr Wicks sent an email to the appellant. In that email he said:

"Coincidentally I understand that Mrs Howlin may have visited Council offices yesterday and asked for a copy of Council's statutory register showing roads maintainable by Council. If that was the case I also understand from speaking with the Council officer who dealt with the enquiry that Mrs Howlin was not provided with the correct information from our records. I understand Mrs Howlin may have been given an extract from Council's GIS database of a part ('layer') known as Geo Segments. This layer shows, marked with a blue line every road in Clarence node to node and, I understand, is generally used for calculating lengths of road segments.

The municipal map which Council is required to keep pursuant to section21(1) of the Local Government (Highways) Act is also kept within the same GIS database but in a 'different' layer. Attached are extracts from that map which show the map legend and specific detail on Opossum Bay. Roads maintained by Council are shown marked with a dark line on the attachment. On the electronic map that line is coloured pink. I shall send colour copies to you by mail."

Counsel said that, attached to that email, were three pages of extracts. The first was entitled "CCC Roads Maintained Map - Legend". The second was entitled "Opossum Bay Roads Maintained - 1" and the third, "Opossum Bay Roads Maintained - 2". Counsel for the Council produced copies of the email and maps. The maps showed the time at which they had been printed which was 10.30am, 19 August 2010. Mr Wicks said he then posted colour copies of the same material to the appellant.

96 The document which the appellant claimed he had just received anonymously was the first of those extracts Mr Wicks said he sent by email. The appellant submitted that it showed that Marsh Street was marked as a road. The appellant was asked a number of questions about the document he said he had just received anonymously, and the email and letter which Mr Wicks sent in 2010. There could be no doubt that the appellant received the email and the letter and part of the attachments. His explanation for his suggestion that he did not receive this particular document was confusing and not wholly believable. However, his Honour did not see the need to make any finding as to that. He said by way of a ruling late on the afternoon of 28 May:

"... I have treated Mr Howlin's reference to the map in contention to the Court as an application to re-open the evidence. Mr Howlin has explained that the map in contention was received by him from an anonymous source on Tuesday last week, which I believe to be the 22nd May. On the submission put before me the map in contention, which is MFI-2, is a copy of the first of three maps in MFI-1. An expanded copy of it, or enlarged is a better term, an enlarged copy of it is MFI-4. Nothing in the map in contention, particularly when coupled with the two further maps in MFI-1, to which it relates, satisfy me that this map assists the defendant. Accepting that it is part of layer 64 the map in contention does not itself show Marsh Street to be a road maintained by council and the accompanying two maps plainly show that Marsh Street is not a road maintained by council. I will accordingly not reopen the evidence to go further in this matter."

97 His Honour subsequently published his reasons for decision which are now the subject of appeal. The material referred to by the appellant in his submissions, and upon which he relied in respect of this ground, were all the items marked for identification only during the hearing of the matter on 28 May 2012 and included the transcript with the ruling set out above.

98 I am not satisfied that the appellant has demonstrated the learned trial judge made any error. From the documents identified, and the transcript of the argument heard on 28 May, it was apparent his Honour dealt appropriately with the issue of electronic maps in his judgment. This ground should fail.

99 All of these grounds related to provisions of the Building Act 1937 and it is appropriate in the circumstances that they be dealt with together. They provided:

"(20) The Court erred in fact and law by failing to hold the statutory interpretation of 'Roadway' and 'Way' in the Building Act 1937, the interpretation of 'Right of Way' in the Local Government Act 1906 and denied natural justice by failing to adopt or refer to the true and natural meaning of 'Roadway';

(21) The Court erred in fact and law by failing to hold that the whole of the Municipality of Clarence was declared a 'Building Area' under the Building Act 1937 and that by resolution dated 9 April 1941 CMC adopted By-laws made under the Act on 22 December 1938 which contained regulatory powers for subdivision plans and streets under s7, s10, & s16 of the said Act;

(22) The Court erred in fact and law by failing to hold the miscellaneous statutory powers of CMC under the Building Act 1937 Part VIII s50 (1) & (2);

(23) The Court erred in fact and law by failing to hold that under the Building Act 1937 the powers adopted by CMC under The Building Regulations 1938 required that building approval in Marsh Street could only be obtained under s16 ll (c) by providing a clear frontage upon a 'street' of not less than 50 feet; ..."

100 It should first be said that the grounds were not easy to understand. All asserted that the learned trial judge failed to hold certain things, but none identified why that should be said to be an error. Further, the arguments which appeared to be being made did not appear from the transcript to have been mounted before the learned trial judge. Notwithstanding that, in considering these grounds, it is relevant to consider the matters with which the learned trial judge was dealing. He had to determine whether Marsh Street had ever been dedicated as a highway. To that end, he considered the various submissions the appellant made about what was asserted to be relevant legislation, and, in particular, whether he could be satisfied Mr Brown had an intention to dedicate the land designated "Proposed Roadway" or not. One of the matters he looked at was what the surveyor, Mr Terry, might have intended by his use of that term. It appeared to be his Honour's findings in relation to that last issue which underpinned these grounds. The appellant appeared to be asserting that his Honour's conclusion about what was meant by that term was wrong having regard to the various pieces of legislation referred to by the appellant.

101 In his reasons the learned trial judge dealt with references by the appellant to the Local Government Act 1906 and the Building Act 1937. He said at pars[15] - [17]:

"15 The Local Government Act 1906, s205(10), empowered the Council to make by-laws:

I Providing for the control and management of roads:

II Providing for the aligning, forming, metalling, kerbing, paving, guttering, gravelling, asphalting, repairing, cleansing, and watering of public and private roads, including the determining of the respective widths of the carriage and foot ways of such roads, and the materials to be used for any of the aforesaid purposes: ...'

16 The Local Government Act 1935 amended s205(10) by adding a power to make by-laws:

'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.'

17 No relevant by-laws were made by the Council under the Local Government Act 1906."

102 His Honour then made a general reference at par[18]:

"Throughout the hearing the defendant has mentioned many different statutes in a way that suggests that he considers that they bear on the outcome of this case. I will try to address them all in the course of these reasons."

"19 On a number of occasions the defendant has referred to the Building Act 1937. By a proclamation gazetted on 6 March 1938 the whole of the Municipality of Clarence was declared to be a building area for the purposes of that Act. Pursuant to that Act, s60(2)(ii)(b), the Council was authorised to make by-laws in respect of a defined area prohibiting the erection or construction of new buildings where the same necessitated or involved the laying-out, construction, or opening of new streets, until plans as prescribed had been submitted to and approved by the Council in accordance with the by-laws. There is no evidence of any by-law or the like made pursuant to that Act that has any bearing on this case. "

103 His Honour also considered what was intended by the term "Proposed Roadway" on Mr Terry's tracing. He dealt with this at pars[40] and continuing in his reasons. He dealt with it in the context of the appellant's submission at trial to the effect that the use of the term evidenced an intention on the part of Mr Brown to dedicate the land as a highway.

104 The appellant, in his written submissions, referred to the by-laws made by the Municipality of Clarence under the Local Government Act 1906 which were gazetted on 28 May 1913. He did not however identify the significance of those by-laws to his argument. His Honour determined that no relevant by-laws had been made. A review of those by-laws, which were exhibit D2 on the trial, supported that finding. The appellant did not identify any other relevant by-law made under that Act.

105 The appellant went on to refer to the definitions of a number of terms as they appeared in the Local Government Act 1906 and the Building Act 1937. He set out definitions of the terms "Roadway", "Street" and "Way". He then made two submissions. The first, at point (ii) in his written submissions, was that:

"(ii) in the TG Brown subdivision over what is now known as Marsh Street Surveyor Terry declares the road reservation as 'Proposed Roadway' and upon acceptance of the Survey Plan by the Recorder of Titles the land therein is bound in perpetuity as 'Roadway' which notation can only be removed under s84C of the Conveyancing and Law of Property Act 1884."

The second appeared at point (v) of the submissions, and appeared after references to the various definitions I mentioned above were set out. The appellant said:

"(v) It follows, given the statutory interpretation above, and given that the CMC were statute bound to enforce the Building Act 1937 under the adopted Regulations under the Building Act 1937, no inference should be drawn that the endorsement "Proposed Roadway" on the T G Brown subdivision survey registered with the Recorder of Titles was intended to be a 'Private Right of Carriageway'."

106 As to the appellant's submission at point (ii), Mr Terry was not declaring anything. He simply drew a plan and described an area on it as being a proposed roadway. The appellant went on to assert that, once that plan was accepted by the Recorder, the land designated "Proposed Roadway" was bound in perpetuity as a roadway. There was nothing in his submissions, either written or oral, which explained the basis for that assertion. It seemed that he relied on that to then make the submission in point (v). That was, he said, that the relevant piece of land was a roadway as a consequence of the submission in point (ii), and, if regard was had to the various statutory definitions of what a roadway was, then no inference could be drawn to the effect the land was not a roadway. That argument must fail without some legal basis for the argument mounted at point (ii).

107 As to ground 21, his Honour said in par[19] that:

"By a proclamation gazetted on 6 March 1938 the whole of the Municipality of Clarence was declared to be a building area for the purposes of that Act."

In fact, the relevant proclamation was gazetted on 9 November 1938 (see exhibit D5). I infer from this ground that the appellant was submitting that there were relevant by-laws contrary to his Honour's finding in the last sentence of par[19]. I infer the relevant by-laws were those identified in the second part of this ground.

108 On 28 December 1938, regulations under the Building Act 1937 were gazetted. I have proceeded on the basis that these were what the appellant was referring to in this ground of appeal because in his written submission he recites certain parts of the regulations. I have read the sections in the Building Act 1937 and the regulations to which the appellant referred. Leaving aside any issue as to their application to this case, the regulations do not deal with streets or roads or highways. They deal with the building of houses. They cannot be relevant to the argument mounted by the appellant and no error has been demonstrated in the fact that his Honour did not "hold" as the appellant asserted he should have.

109 As to ground 22, the ground as drawn, with respect, did not make sense. It was only when regard was had to the appellant's written submissions that some understanding could be gained of what alleged error the appellant complained of. The error identified appeared to be that the learned trial judge did not find that the Council had an obligation to enforce any conditions it placed on subdivisions. The appellant submitted that there was no evidence the Council had enforced the requirement it placed upon Mr Brown about the making of the road to its satisfaction. Further, the appellant submitted that the Council gave building approval for houses to be built and it should not have absent the road being made.

110 It was not the role of the learned trial judge to make findings about whether or not the Council had complied with any statutory obligations it may have had, and the consequences of any possible failures to do so. What his Honour had to determine was whether Mr Brown had dedicated the land as a highway. No error on the part of the learned trial judge has been demonstrated by this ground and it should fail.

"(24) The Court demonstrated actual bias by failing to give any weight to or make any mention of evidence which contradicted the testimony of Surveyor Medbury (a declared acquaintance of the Learned Trial Judge) or to the contradictory evidence of Surveyor Rogerson and other relevant historical evidence;..."

112 The first matter to which I will refer relates to the comment by the appellant in this ground to the effect that the learned trial judge was a "declared acquaintance" of surveyor, Mr Medbury. The learned trial judge declared that fact in open court at the commencement of the trial. The appellant made no objection to his Honour hearing the matter. It is not now open to him to assert bias as a consequence of that fact simply because his Honour has paid regard to Mr Medbury's evidence and not necessarily accepted other evidence of Mr Rogerson.

113 The only other basis for asserted bias in this ground was that it was asserted his Honour did not give appropriate weight to or mention evidence of Mr Rogerson which contradicted that of Mr Medbury.

114 In Sun v Minister for Immigration (1997) 81 FCR 71, the Federal Court considered the concept of actual bias, albeit in the context of a specific ground of review provided for in the Migration Act 1958 (Cth), s476(1)(f), which allowed for a review of a decision on the basis that a decision was induced by actual bias. At 122, Wilcox J referred to a summary of leading authorities on bias conducted by Lindgren J, the judge whose decision was being appealed. From that summary, it can be seen that bias may exist where a judicial officer approaches issues otherwise than with an impartial and unprejudiced mind. To avoid that conclusion, any decision-maker must remain willing to be persuaded out of any express or implied view which might have been apparent.

115 For a person to show that there has been actual bias, they need to demonstrate that the decision-maker had a closed mind to the issues raised and was not open to persuasion. It would not be sufficient to show that a decision-maker, for example, may have displayed irritation or impatience or even used sarcasm. It would also not be sufficient to show that a decision-maker had formed a preliminary view. It could only be so if that preliminary view was incapable of alteration. It was accepted that a finding of actual bias should not be made lightly; cogent evidence would be needed.

116 Mr Medbury's witness statement was an exhibit on the trial, as was that of Mr Rogerson. Both gave oral evidence. The learned trial judge referred to their evidence briefly at par[42] of his reasons. Having had regard to the appellant's written submissions in relation to this ground, it was apparent that his complaint was simply that the learned trial judge accepted certain evidence in preference to other evidence. There has been nothing beyond that put by the appellant which might suggest that in doing so, the learned trial judge demonstrated any actual bias. Adopting the above summary of general principles relating to the issue of bias, this ground must fail.

117 Both of these grounds dealt with an issue raised by the appellant at trial about the relevance of material relating to road funding. They may conveniently be dealt with together. They provided:

"(25) The Court erred in fact and law, denied natural justice and demonstrated bias by failing to hold or mention that CCC has made certified claims to both the State and Federal Government for about 40 years for the maintenance and repair of Marsh Street as part of its Municipal Roads Inventory, and prior to that time CMC received road rate levies, C.A.R maintenance funds and petrol tax grants for the maintenance and repair of Marsh Street as part of CMC's rural roads inventory;

(26) The Court erred in fact and law by failing to hold that funding for the maintenance and repair of Marsh Street as a Rural Local Road was and is only available for public roads and granted under legislation on the certified submissions of Council; ...".

118 I repeat and rely on comments made earlier in these reasons about assertions of a denial of natural justice and actual bias. There is no basis for any such claim properly raised by ground 25.

119 A significant amount of material was placed before the learned trial judge by the appellant about funding received by the Council and funds expended from time to time in relation to various roads. It was the appellant's position that, because the Council had received funding at times for the maintenance of Marsh Street and had spent money on maintaining the street, this reinforced the "common law position on dedication".

120 The learned trial judge dealt with this issue at pars[70] - [79]. He said as follows:

"70 As previously mentioned, the evidence establishes that Marsh Street has not been developed beyond the state of a track created by usage that has from time-to-time been potholed and gravelled. Had it been dedicated as a highway, this level of development might have meant that it was well and sufficiently made within the meaning ascribed to that phrase in the Local Government Act 1962, s394(2), which provided that 'a street shall be deemed to have been well and sufficiently made good if, when it was alleged to have been made good, it would then have been deemed fit for the daily passage to and fro of either a carriage and pair or a loaded wagon drawn by four horses'. Had Marsh Street not been made good, had it been a public highway, s394(1), and had been in a city or town at the relevant time, s392, the Council could have prepared a scheme for its construction, s397, obtained a contribution of one-third of the estimated cost from the State, s395 and s410(1), and obtained reimbursement for the balance cost from frontagers, s396.

71 I have mentioned these provisions in the Local Government Act 1962 for two reasons. Firstly, the defendant placed some reliance on what s394(2) deemed to be a well and sufficiently made street. It does not assist his case. Secondly, in 1977 the Council was involved in an exchange of correspondence referrable to these provisions, which, for different reasons, both parties have relied on.

72 On 13 January 1977 the Council Clerk wrote to the Department of Public Works in relation to discussions councillors and Council officers had with ratepayers who lived adjacent to unconstructed public roads or streets. The Council Clerk said the discussions were made difficult when the people were told that as their road was unconstructed, the Council could not perform any work on it for fear of losing a grant from the State under the Local Government Act 1962, s410. He said that Council had, in the past, obtained the benefit of one or two such grants per year and the Council wanted this to continue. The letter proceeded:

'However, to enable Council to offer some form of relief in the worst areas it is requested that the following list of unconstructed streets be inspected and agreed as being suitable for the eventual construction with Government Assistance.

Once this has been established it is assumed that Council may then be permitted (from its own resources) to perform minor works to make these tracks a little more trafficable for the adjoining owners without jeopardising further grants.

Would you therefore kindly arrange inspections of the following roads and streets as soon as possible, and advise Council of those acceptable for grants.'

The roads and streets listed in the letter included Lagoon Road (Old Beach) and March [sic] Street.

73 By letter dated 18 May 1977, the Secretary of the Department of Main Roads replied to the Council Clerk listing 17 roads that were considered to be eligible for assistance pursuant to s410, and advising that Lagoon Road and Marsh Street, amongst others, were not eligible, as they appeared on the municipal list of rural roads for which the Council received an annual maintenance grant.

74 By letter dated 12 July 1977, the Council Clerk replied saying it was understood that the list of rural roads included all public roads and not necessarily only those maintained by Council, and that as to Lagoon Road and Marsh Street, amongst others, 'as far as Council is concerned, these roads have never, at any stage, been maintained by it'.

75 The Acting Secretary of the Department of Main Roads replied by letter dated 18 August 1977 advising that: 'In the compilation of the Rural Roads and Town Streets lists, only those roads and streets which are the responsibility of Council are included whether they have been constructed or not and or maintained by them'. The letter continued:

'In the case of Lagoon Road, ... , Marsh St, and Bisdee St, all these roads are outside the boundary of the declared town and must therefore be considered as Country Roads, which are not eligible for assistance under the Local Government Act as unconstructed town streets.

I hope the above assists in clarifying the situation and if Council considers that any road or street on their list is not their responsibility, we would be pleased to arrange a further inspection.'

76 By letter dated 26 August 1977, the Council Clerk responded, noting the Acting Secretary's comments and requesting a reconsideration of the position with respect to Lagoon Road, as it was within the declared town of Lindisfarne.

77 By letter dated 26 October 1977, the Secretary responded, confirming that Lagoon Road could be considered as an unconstructed town street.

• All concerned considered that Marsh Street was a public street.
• Marsh Street was unconstructed and the Council was contemplating constructing it in due course, subject to it being able to obtain assistance from the State pursuant to the abovementioned provisions of the Local Government Act 1962.
• The Council did not appreciate that the abovementioned provisions only applied to cities and towns and did not apply to unconstructed streets in rural areas, like Marsh Street.
• That Marsh Street was on the municipality's list of rural roads for which it received an annual maintenance grant.
• That the Council was of the view that the list of rural roads included all public roads and not necessarily only those maintained by it.
• That so far as the Council was concerned, Marsh Street, had never, at any stage, been maintained by it, and that if the rural roads list was intended to cover only those roads maintained by Council, then Marsh Street and other roads to which it referred should be deleted from it.
• The Department's view was that in the compilation of the rural roads list, only those roads and streets which were the responsibility of Council were included, whether they had been constructed or not, or maintained by the Council.
• The Department considered that as to Marsh Street and other unconstructed roads outside the boundary of a town, it was necessary only to maintain them in the state in which they existed.
• The Council did not take up an invitation contained in the last paragraph of the Department's letter of 18 August 1977 that:
• '... if Council considers that any road or street on their list is not their responsibility, we would be pleased to arrange a further inspection.'
• The Council successfully challenged the Department's assertion that Lagoon Road was not in a town and hence could not be constructed on the basis that the Council could obtain a contribution from the State and reimbursement from ratepayers for the construction pursuant to the provisions of the Local Government Act 1962.

79 This exchange of correspondence assists the plaintiff Council insofar as it establishes that in 1977, Marsh Street was unconstructed, and that so far as the Council was concerned, Marsh Street had never, at any stage, been maintained by it. It also demonstrates that at that time Council was only prepared to assume responsibility for the maintenance of Marsh Street if it could obtain a one-third contribution towards the estimated cost of constructing the street from the State, and reimbursement for the balance cost from frontagers. The correspondence assists the defendant insofar as it proceeds on the assumed basis that Marsh Street is a public street. This does not however overcome the clear evidence that Marsh Street has never been dedicated as a highway and the evidence to which I will refer, that Marsh Street has never been included in a municipal map as a road repairable or maintainable by the Council."

121 The appellant's written submissions in support of ground 25 identified a number of documents which appeared in his exhibit books. These were D59, D60, D61, D65, D66, D67A, D73, D80, D81, D82, D105 page 2, D109 and D117. I have reviewed these documents. Counsel for the Council has also canvassed some of them, and also referred to others in his written submissions.

122 D59, D60 and D61 were copies of correspondence between the Council and the Department of Public Works in 1950 about "C.A.R." funds availability for roads in local areas. There was no mention of any specific streets or Marsh Street. Exhibit D65 appeared to be an extract from Council minutes which was undated. Beside the entry, "Opossum Bay Turning Point", it was noted that the relevant minister had made £500 available and that work would be put in hand, soon. There was no specific reference to Marsh Street in the document. D66 was a copy of a letter dated 14 August 1951 from the Council which referred to petrol tax grants. Again, there was no apparent connection with Marsh Street. D67A was what appeared to be an extract from minutes of a Council meeting held on 17 April 1969. An item highlighted referred to the Opossum Bay Beach Reserve. There was no reference to maintenance of roads or Marsh Street. D73 was a memorandum dated 15 July 1954 from the Director of Public Works to an unnamed person. It referred to funds to assist with rural road construction. There was no indication this had anything to do with Marsh Street. D80, D81 and D82 were correspondence relating to Spitfarm Road. The second page of D105 was the same as D67A. D109 was a letter from the Director of Public Works to the Council dated 10 November 1971. It related to C.A.R funds for the municipality, but was in general terms and made no reference to Marsh Street.

123 None of the material identified in the previous paragraph showed that the Council:

"... made certified claims to both the State and Federal Government for about 40 years for the maintenance and repair of Marsh Street as part of its Municipal Roads Inventory, and prior to that time CMC received road rate levies, C.A.R maintenance funds and petrol tax grants for the maintenance and repair of Marsh Street as part of CMC's rural roads inventory; ...".

124 D117 contained some correspondence between the Council and the Department of Main Roads which began in January 1977. Initially, the Council pointed out that it had had complaints from ratepayers about unconstructed roads and streets, and asked that certain roads be inspected with a view to some form of work being done on them with government assistance. Marsh Street was one of the streets referred to. A substantive reply was not received until May 1977. At that point, the person responding said that Marsh Street was not eligible because it was on the Council's list of rural roads "for which you receive an annual Maintenance Grant". On 12 July, the Council responded seeking clarification of information relating to roads identified as ineligible. The Council said:

"The relationship you mention between the Municipal list of Rural Roads and the Annual Maintenance Grant is not clear, as it is understood that this list of Rural Roads includes all public roads and not necessarily only those maintained by the Council.

In the case of Lagoon Road - Old Beach, Gellibrand Lane and Marsh Street - Opossum Bay and Bisdee Street - South Arm, as far as Council is concerned, those roads have never, at any stage, been maintained by it.

If the Rural Roads list is intended to cover only those roads maintained by Council, then the above roads should be deleted from it."

The remaining correspondence, which was shown as being part of that exhibit, did not assist. Again, the material referred to did not establish the contentions the appellant appeared to suggest his Honour should have made findings about. It cannot be said in those circumstances that his Honour made an error in failing to mention the issue (which he clearly has) if it was unlikely to assist him with his ultimate determination. This ground must fail.

125 As to ground 26, the written submissions and material identified in them as being relevant to this ground did not provide any explanation as to precisely where the evidence was to support the appellant's contention, and, more relevantly, to support any suggestion there had been an error. The ground must fail.

"(27) The Court denied natural justice by failing to hold the Common law principle that it is in the public interest that even landlocked land be utilised as without such property rights the economic value attached to land can be significantly reduced, if not eliminated; ..."

127 With respect, there is no such common law principle as asserted. The appellant referred in his submissions to the publication, "Law of Easements in Tasmania Final Report No 12", for this proposition. In the introduction to a report of the Tasmania Law Reform Institute entitled "Law of Easements in Tasmania" published as a final report in March 2010 under the heading "Background" at page 2, the author notes at par1.1.4 that:

"easements are a vital land use management tool; they may very well provide the only means of access to a particular property ...".

Footnoted to that statement was a reference to the case of Hanny v Lewis (1998) 9 BPR 16, 205 where Young J made the comment which has been quoted by the appellant. The quote is taken out of context and has no relevance to this appeal. This ground must fail.

"(28) The Court erred in fact and law by failing to hold the statutory provisions of The Land Surveyors Act 1909 s30, s31, s37, s44 & s55 which regulated the practice of land surveyors in respect of subdivisions registered under the Real Property Act 1886; ...".

129 On its face, this ground of appeal made no sense. Further, the appellant did not identify, either in the ground of appeal or his written or oral submissions, why the sections of the particular legislation referred to had any relevance to this matter. He also did not identify, beyond saying his Honour should have "held" these provisions, why it was necessary for his Honour to do so. His Honour dealt with the legislation at par[47] of his reasons. In the absence of any explanation to identify any specific error, this ground should fail.

"(29) The Court erred in fact and law by failing to hold that under the provisions of the Local Government Act 1962 Division II - Building estates and subdivisions s462 (1) (a) (iv) the approval of the T G Brown subdivision over Marsh Street was deemed to be a 'previously approved plan';...".

131 I have been unable to determine from the ground of appeal itself or the appellant's oral and written submissions just why the appellant asserted the factor he identified here was relevant to the case before the learned trial judge and on this appeal. As a consequence, it was difficult to deal with any asserted error. I note that the Local Government Act 1962, s463(1), provided that:

"The owner of a building estate shall not subdivide it except in accordance with a previously approved plan or a scheme approved under section 464."

The term "previously approved plan" is relevantly defined in the same Act to mean:

(a) registered under the Real Property Act 1862 or the Registration of Deeds Act 1935 -

(i) in the case of land in the city of Hobart before the twenty first day of December 1939;

(ii) in the case of land in the city of Launceston before the nineteenth day of February 1941;

(iii) in the case of land subject to a resolution under section forty-eight F of the Towns Act 1934 before the date of the publication of the resolution in the Gazette;

(d) approved by the council of a municipality under section forty eight D of the Towns Act 1934 and so registered."

132 The subdivision undertaken by Mr T G Brown was completed well before the commencement of this Act. Having considered these matters, I am still unable to determine just what relevant error it was said the learned trial judge made. In the absence of that being identified, this ground must fail.

"(30) The Court erred in fact and law by failing to hold that CMC were statute bound to maintain the c1951 PWD works undertaken over the turnaround in Marsh Street funded by the Minister at the request of the CMC; ...".

134 In this ground of appeal, the appellant did not identify by what statute he asserted the Council was required to maintain the works he identified. In his written submissions, he identified the Local Government Act 1962, s332. However, in doing so, he did not, with respect, quote that section accurately, and he did not identify the relevance of the matter he has identified to the decision his Honour had to make, or identify what the error was said to be.

135 The Local Government Act 1962, s332, was contained in Part XV of the Act under the heading "Highways". The Division of the Part in which it appears was headed "Repair of Highways". The section provided:

"332(1) The duty at common law of the inhabitants at large to repair highways shall be deemed to have passed from the inhabitants of parishes to the corporations of municipalities.

(2) The corporation's duty referred to in subsection (1) does not include the repair of -

(a) any State highway, except as provided in section eleven of the Roads and Jetties Act 1935; or

(b) except as otherwise expressly provided in this Part, any highway in a city or town opened before the commencement of this Act which has not-

(ii) at any time been formed, made, repaired, or improved by a highway authority; or

(iii) been made under Division IIA of Part II of the Towns Act 1934."

136 The section related to highways. Marsh Street was not accepted as being a highway.

137 In his written submissions, the appellant submitted that "the evidence" showed a number of things, and he referred to a number of documents in his exhibit books to support that proposition. The documents he referred to were D65, D67 and D67A. I have already referred to some of these documents in par[122]. D65 made no reference to Marsh Street as asserted by the appellant. D67 was an extract from Council minutes dated 13 September 1951. It recorded in relation to the entry, "Opossum Bay Turntable", that "... reported PWD had done an excellent job". It might be inferred this meant that whatever the work was that was to be done had been completed. However, precisely what that work was, was not clear.

138 As to D67A, there was nothing in the extracted minute to indicate that the proposal to employ a man to do a number of things which included "potholing" carried with it an obligation to repair or maintain Marsh Street. The appellant also referred to a portion of the evidence of a Rodney Milton. He said that evidence supported the proposition that "The CMC and CCC have since that time (he referred to 1969) maintained Marsh Street." That was not the evidence of Mr Milton. He was employed by the Council between about 1980 and 1990, in effect as a labourer. During that period he did some work repairing potholes in what was a gravel road known as Marsh Street and some grass slashing of the verges on a very irregular, and it appeared, informal basis. His evidence did not support the proposition put by the appellant.

139 Nothing relied on by the appellant demonstrated that any finding of the nature he identified in this ground, even if there were any evidence to support it, was relevant to the decision his Honour had to make. This ground of appeal must fail.

140 I have dealt with these grounds together because what underpinned both to a degree was an assertion by the appellant that a map numbered 910/4 was a municipal map.

"(31) The Court erred in fact and law by failing to hold that Marsh Street, Gellibrand Lane and Bisdee Street were deemed in c1976, by onsite agreement with an authorised Manager of CMC and authorised Managers of the Department of Main Roads (DMR), to be made roads according to the standards at the time of their creation, which were not eligible for a construction grant under s410 of the Local Government Act 1962; ...

(38) The Court erred in fact and law and denied natural justice by failing to hold that the most recently dated map on the index (noting map 1025 was at this time crossed out) identified as 'T&P Municipal Map 910/4' depicting Marsh Street on the map and marked 'Revised June 1971' and 'Revised Jan. 1976' was not a Municipal Map for the purposes of s694 of the Local Government Act 1962 and/or a Municipal Map of Rural Roads in the CMC;..."

142 The appellant's written submissions in relation to ground 31 identified the propositions to be argued as follows:

"(i) The evidence is that Council met with officers of the PWD/DMR on site in Opossum Bay in C1976 and it was mutually agreed that three streets namely Marsh Street, Gellibrand Lane and Bisdee Street were not eligible for a construction grant because they had been constructed to the standard acceptable at the time.

(ii) Significantly the CMC later objected to this assessment but in response to further communication from the DMR the Council withdrew its objection to the assessment of the DMR.

(iii) The evidence is that at the time Marsh Street, Gellibrand Lane and Bisdee Street were denoted as Rural Roads on its Municipal Map 910/4. Notably the Municipal Map 910/4 is marked as a Southern Metropolitan Master Planning Authority (SMMPA) map but the fact is that the SMMPA was a body corporate which comprised 2 elected members of the CMC.

(iv) The evidence is a handwritten work sheet dated 20/1/76 shows '83 R538 Marsh Street too far 0.08 mls by us' (see AB V1 page 198);

(v) Compounding that evidence is the fact previously alerted to in Ground 26 at 'ii' which confirms that Marsh Street, Gellibrand Road and Bisdee Street are designated as 'Formed ROADS FOR WHICH COUNCIL HAVE - FULL RESPONSIBILITY' That document is dated '1975'.

143 Point (ii) of the appellant's written submissions in relation to ground 26 provided:

"A CMC document headed 'Form 1' 'Length of roads open for general traffic' dated c1975 and used for the calculation of CMC road lengths for government funding dated records that '82 Marsh Street' 'Formed only 0.08' comprises part of the '1.58 Formed only' 'ROADS FOR WHICH COUNCIL HAS - 'FULL RESPONSIBILITY' (a).

Two other sections on the document state 'PARTIAL RESPONSIBILITY' and 'NO RESPONSIBILITY'

The document has a notation in the top right hand corner 'Mr Judge please complete' Mr Judge gave witness evidence in CCC v Howlin [2012] TASSC 26 hearing and also swore a witness statement.

(See SAB V1 pages 153-159, REL V2 D111 and transcript 14/2/12 pages 502-511)"

144 The appellant's written submissions in relation to ground 38 identified the propositions to be argued as:

"(i) The evidence is that the 'T&P Municipal Map 910/4' is the only recent map (post 1976) that CCC have declared prior to transferring their hard copy records to electronic records in c1980. The records on the 910/4 map are entirely consistent with the printed road data sheet records specified at Ground 37 above;

(ii) The evidence is that the 910/4 map depicts Marsh Street as a 'Rural Road' along with all other 'Rural Roads' included in the printed road data sheets prior to and after that era;

(iii) In the absence of any more recent mapping records the proper inference is that there are none and accordingly T&P Municipal Map 901/4 is the only map that the CMC could have relied upon in transferring their hard copy records to electronic records. (Jones v Dunkell 1958-1959 HCA).

145 Dealing firstly with the status of map number 910/4, D220, page 17, was a copy of a map with the number 910/4. It was a map which appeared to have been produced by the Southern Metropolitan Master Planning Authority. It was entitled "Hobart Metropolitan Area - Rural Roads". According to a notation in the bottom right-hand corner, it was last revised in January 1976. Marsh Street was recorded on it. The document was not entitled "T&P Municipal Map 910/4" as asserted by the appellant in ground 38. It was clear from the learned trial judge's reasons that he examined the various records of the Council presented to him. He canvassed the history of those records beginning with a batch of handwritten index cards which he described in the following terms:

"This system of recording maps and plans commenced in about 1964. Both sides of each card have been used. The index runs to 272 pages. Card number 79 includes details of municipal maps."

His Honour said that, as originally written, card number 79 relevantly recorded references to plan numbers 1025, 1026, 1027, 1028 and 1029. These were respectively:

1025 - Municipal Maps - Rural Areas - Highways repairable by CMC

1026 - Municipal Maps - Metropolitan Areas - All Highways repairable by CMC

1027 - Municipal Maps - All Highways (Not State) - K & G paths & Constructed roads

1028 - Municipal Maps - All roads - Repairable by Land Owner

1029 - Municipal Maps - Resolved to be constructed at Frontagers' expense.

146 Plan or map number 910/4 was not shown on that card, or indeed anywhere else in the handwritten index cards, as a municipal map. It was shown however on card 69. It was not shown there as a municipal map. The entry on card 69 was as follows:

147 His Honour said about the handwritten index cards at par[104]:

"The substance of the above record was carried forward onto a typed series of index cards headed 'TP & Municipal Maps'. It seems clear from the other entries in this index that the initials 'TP' refer to Town Planning. These typed cards form part of a system introduced in about 1977 that eventually replaced the handwritten cards."

The typed index cards referred to the same plan numbers as identified in par[145 ] of these reasons. Plan number 910/4 was not there referred to as a municipal map.

"It is clear that the maps numbered 1025, 1026, 1027, 1028 and 1029 were initially kept, and kept up-to-date, for the purposes of one or other of pars(a), (b), (c) and (d) of s694(1):

• Maps numbered 1026, like maps numbered 1025, are recorded in the handwritten index as relating to 'H'ways repairable by CMC'. The former relate to rural areas and the latter to metropolitan areas. Clearly these maps were initially kept and maintained pursuant to par(a).
• Each map numbered 1027 is designated 'All highways (not State) at any time well and sufficiently made good'. Plainly they relate to par(b).
• The map numbered 1028 is designated 'All roads known that a landowner is liable to repair'. Plainly this relates to par(c).
• All maps numbered 1029 are designated 'All roads resolved to construct at frontagers' expense'. Plainly they relate to par(d)."

149 At par[120], the learned trial judge referred to map 910/4. He said:

"120 As is to be expected, Marsh Street appears on other maps kept by the Council. An example is a map referred to in the card index as 'Rural Roads' numbered 910/4. There is no suggestion in the index or the map itself that it is or was a municipal map, let alone a map depicting any of the matters detailed in pars(a), (b), (c), or (d) in the 1962 Act, s694(1), or the 1993 Act, s208(1)."

The appellant appeared to have been arguing in both grounds 31 and 38 that his Honour's finding in this paragraph was wrong. It was clear from a consideration of the records to which his Honour referred that his conclusion was supported by the evidence. The appellant has misstated the evidence in his submissions and, having regard to what was in fact the evidence, he did not identify any error in his Honour's reasoning. Ground 38 must fail and for the purpose of considering ground 31, I accept that map number 910/4 was not a municipal map.

150 Returning to ground 31, the appellant appeared to raise two issues. The first was that Gellibrand Lane, Bisdee Street and Marsh Street should be treated alike, and therefore, if a particular situation existed in relation to Gellibrand Lane and Bisdee Street, it should exist in relation to Marsh Street. The second was that the Council was bound in some way by statements which may have been made by its officers and others from time to time, even where there was contrary evidence to show those statements were wrong.

151 The appellant did not identify, in point (i) of his submissions as to ground 31, where the evidence to which he referred might be found. There was certainly correspondence which suggested Marsh Street was inspected in 1977 and which related to the issue which resulted in the inspection. The learned trial judge dealt with a number of submissions made by the appellant about what could be drawn from various pieces of correspondence and meetings between, and statements by, various people, at pars[70] - [79] of his reasons. I have set out these paragraphs in the context of grounds 25 and 26 at par[120] of these reasons. His Honour returned to the issue at par[123] of his reasons. He said at pars[123] - [125]:

"123 More generally, I note that documents have been produced that record that on a number of occasions and by a variety of means various officers of the Council have in substance said that Marsh Street was a public street, or said that Marsh Street was maintainable by the Council. Witnesses have also given evidence to this effect. There is also evidence to the contrary effect. There has obviously been considerable confusion amongst officers of the Council, and others, about the legal status of Marsh Street. An instance of this that was relied upon by the defendant is the Council's approval of a subdivision proposal in 1972 that was submitted on behalf of Mrs E J Burbury, the then owner of Lot 10. As I read the documents that resulted in the approval of that subdivision, it was assumed by all concerned that Marsh Street was a public road. The subdivision did not proceed. Incidentally, in the map of that subdivision that was presented to the Council by surveyor, Mr G W Griggs, Marsh Street is described as 'unmade'.

124 That officers of the Council have said words to the effect that it was a public street and maintainable by the Council does not change its legal status, and does not change the facts in relation to the manner in which it is and has been dealt with in the Council's municipal maps. The same can be said of other evidence which includes evidence that:

• A street sign has and does identify Marsh Street.
• There are street lights in Marsh Street and garbage is collected from residences in the street.
• The owners of Marsh Street have not been charged rates or land tax referrable to it.
• Buses that service the public have used the entrance to Marsh Street in order to turn around, and there is a bus stop sign inside that entrance.
• In 1951 the State Government made ₤500 available to the Public Works Department to carry out work on the turning point at Opossum Bay, which I take to be the area at the entrance to Marsh Street where the bus turned.
• Workers employed by the Council have on occasions slashed grass in Marsh Street, repaired potholes and the like where the bus turned, left excess gravel in that area so as to increase the turning area, left other material that could improve the road surface in Marsh Street, and cleared away a tree that had fallen on the side of the street.
• The Council's Maximo record of work orders referrable to Marsh Street is:
  • a sign repair in 1999;
  • pot-hole repairs in 2001;
  • a request for a grade in May 2003;
  • a note that the street sign had been removed in June 2004;
  • an inspection in March 2010, and
  • an entry referrable to the street sign in February 2011.

125 This and other evidence establishes a public perception that Marsh Street is and has been a public street and a belief on the part of some Council personnel that the Council had an entitlement or responsibility to maintain Marsh Street. This evidence does not prevail over the clear evidence that Marsh Street has never been dedicated as a highway. Nor does it contradict the clear evidence that Marsh Street has never been recorded on a municipal map, kept by the Council pursuant to its statutory obligations in that regard, as a road that was repairable or maintainable by the Council."

152 As to the appellant's submission made in point (iii) of his written submissions in respect of ground 31, I have already dealt with the status of map number 910/4. Point (iv) does not assist the appellant. As to point (v), and the propositions to be argued under point (ii) in respect of ground 26 (see par[143] of these reasons), I have reviewed all the material referred to, noting that D111 should in fact be P111.

153 The documents in the supplementary appeal book volume 1 (SAB V1) to which the appellant referred started at page (or document) 153 with a Clarence Municipality Rural Roads list for June 1971. Marsh Street appeared on that list with a reference number, 82. There were a number of columns and in two, that is "Mileage" and "Formed only", beside the entry for Marsh Street, there appeared the number "0.08". The next page was entitled "Form 1 (continued)" and appeared to have been completed in July 1975. The document had handwritten entries under headings of "Full Responsibility", "Partial Responsibility" and "No Responsibility". In none of those entries was there anything which referred to Marsh Street. I can only assume that the appellant has drawn the conclusion that he identified for the purpose of ground 26 by assuming that the 1975 document referred to the "Formed only" roads identified in the 1971 document. There was nothing otherwise to underpin his assumption. I was unable to find any evidence which made the connection between the two.

154 Page 155 was a handwritten note entitled "Roads sealed to May 1971". There was no mention of Marsh Street. Page 156 was another handwritten note entitled "Roads sealed to May 1971" relating to Seven Mile Beach. Page 157 was another handwritten note entitled "Rural Roads". It was undated. It listed Marsh Street as being unformed. Pages 158 and 159 were typed documents headed "T.P 7 Municipal Maps". Both were undated. Neither had any reference to Marsh Street. Exhibit P111 was the witness statement of Mr Judge, and the transcript reference related to part of his evidence. With respect, none of this evidence supported the contentions of the appellant.

155 It was apparent from a reading of the transcript of the entirety of Mr Judge's evidence that the appellant has assumed to be evidence statements he made to witnesses which were not agreed with and his characterizations of documents shown to witnesses which were not accepted. Of course, they are not.

156 The appellant has not established by his submissions that the learned trial judge made any error as asserted in ground 31, and it must fail.

157 These grounds of appeal were interrelated and can conveniently be dealt with together. They provided:

"(32) The Court erred in fact and law by failing to hold that Marsh Street, Gellibrand Lane and Bisdee Street were deemed to be made roads for the purposes of s394 & s332 (b) (ii) of the Local Government Act 1962 and s66 of the Local Government (Highways) Act 1982;

(33) The Court erred in fact and law and denied natural justice by failing to properly define and interpret the meaning of the words 'made' and 'unconstructed' as applied to statute; ..."

158 I infer from ground 32 that the appellant's complaint was that, by reference to the legislative provisions identified, the learned trial judge should have found that the three roads referred to were "deemed" to be made roads. With respect, the appellant was selective in quoting from the Local Government Act 1962, s394, and the provisions identified do not produce the result he contended for. Section 394 appeared in the same Division of the Local Government Act 1962, as does s332, which I have set out in par[135]. Section 394 gave a council power to construct streets in certain circumstances. It provided as follows:

"394(1) If any street which is a public highway has not at any time been well and sufficiently made, formed, paved, flagged, or otherwise made good, the corporation may, in accordance with this Division, construct that street and obtain reimbursement therefor.

(2) For the purposes of this section a street shall be deemed to have been well and sufficiently made good if, when it was alleged to have been made good, it would then have been deemed fit for the daily passage to and fro of either a carriage and pair or a loaded wagon drawn by four horses."

Section 394 was not a provision by which a road may be deemed to be a made road for purposes other than that identified in subs(1).

159 Section 332 was also clearly not a deeming provision either. As to the Local Government (Highways) Act 1982, s66, it was contained in a part of that Act which related to the construction of unmade streets. It provided for a scheme whereby a council could make a determination as to the state of a street, and determine it needed work. It could then seek to recover some of the cost of that work from landowners. For the purpose of such a scheme, s66 provided in part as the appellant asserted in his written submissions. However, it was not a deeming provision of any kind and could not produce the result for which the appellant contended in ground 32. The appellant did not otherwise identify any evidence which would support the contention he wanted by this ground or identify why, if there were such evidence, the learned trial judge made an error in not so finding. The ground must fail.

160 As to ground 33, the appellant did not identify why it was relevant for the learned trial judge to "define and interpret" the words identified in this ground. Absent establishing any such relevance, this ground must also fail. It should be kept in mind that, simply because the learned trial judge may not have made a finding that the appellant wanted, it does not automatically mean there has been an error. Were the appellant to establish that such a failure related to a material issue, the situation might be different.

"(34) The Court erred in fact and law and denied natural justice by failing to hold the evidence that the access over Bisdee Street was constructed of fine loose sand in c1987, and that in c1946 the CMC submitted a subdivision plan to the Town and Country Planning Commissioner for the creation of what is now Bisdee Street and the Town Planner and CMC confirmed;

(i) 'Land cannot be subdivided having frontage to a right of way, ...';

(ii) the approval of the subdivision with frontage to a street 50 feet wide without any requirement for the construction of the roadway; ..."

162 The decision of the learned trial judge related to the status of Marsh Street. The surface of Bisdee Street, and what the Council or any other authority chose to do in relation to that street, had no impact on whether or not Mr Brown dedicated Marsh Street. This ground has not identified any relevant error and must fail.

"(35) The Court erred in fact and law and denied natural justice by failing to hold the presumption of regularity between Marsh Street, Gellibrand Lane and Bisdee Street and holding by implication that only roads denoted with a black line on map 1025 (without any key) and recorded in the index cards relating to that map were public highways maintainable by CMC; ..."

164 The appellant commenced his written submissions with the statement:

"The fundamental precept of justice is that like cases should be decided alike."

He then proceeded to argue that the evidence demonstrated that there were no real differences in the way the three streets identified in the ground were dealt with by the Council. That appeared to be what he meant by the "presumption of regularity". In effect, the error complained of was that the learned trial judge failed to conclude that, if a particular situation applied to Bisdee Street and Gellibrand Lane, it should have applied to Marsh Street.

165 With respect, this demonstrates a lack of understanding of what the presumption of regularity is. The learned author of the text Cross On Evidence, 8th Australian LexisNexis Butterworth 2010 Ed, at par[7240] dealt with just what presumptions were and, in particular, referred to the presumption of regularity. He said:

"There are two main senses in which the word 'presumption' is used by lawyers, and the fact that they are closely connected with each other makes it all the more desirable to distinguish carefully between them. In the first place, a presumption sometimes means nothing more than a conclusion which must be drawn until the contrary is proved; secondly, and more frequently, it denotes a conclusion that a fact (conveniently called the 'presumed fact') exists which may or must be drawn if some other fact (conveniently called the 'basic fact') is proved or admitted. The difference between the two uses of the term thus depends on the presence or absence of a fact which can constitute the basis of the presumption in question. Examples of the first sense are the presumption of innocence and the presumption of sanity in criminal cases. An example of the second sense is the presumption of sanity in testamentary cases, for that depends on proof of a basic fact - the execution of a rational will. Another example is the presumption of undue influence or that of advancement which depends upon proof of a specific relationship between the parties in question. The presumption of regularity whereby, upon proof of a public act, it will be presumed that the pre-conditions to the lawful performance of that act exist, falls somewhere between these two senses. Like the second sense it requires proof of the performance of the act whose validity is in issue; but in truth the presumption is merely a principle of expediency whereby it falls upon the impugning party to assert and justify the grounds of his attack."

As I understood the appellant's argument, it was that, borrowing terminology from the text above, the Council treated the three streets in the same way, therefore the presumed fact was that they are all public highways. That, with respect, is not what the presumption means. What it means is, in very basic terms, that if a public act occurs it is presumed it was done lawfully. That presumption however may be rebutted for example if there is evidence to show it was not done lawfully.

166 The learned trial judge dealt with the map referred to in this ground and traced in his reasons the history which included reference to the index cards. He did this at pars[103] - [117]. The appellant's complaint in this ground appeared to be simply that his Honour did not draw the conclusion that the appellant wished him to. The appellant did not otherwise identify any specific error the learned trial judge was said to have made. Having regard to the evidence, the findings the learned trial judge did make in the identified paragraphs in his reasons were open to him. In the circumstances, this ground of appeal must fail.

"(36) The Court erred in fact and law and denied natural justice by finding that T G Brown did not construct Marsh Street to the satisfaction of CMC, whereas the evidence of the approval of Bisdee Street that is not mentioned by the Court, confirms that there were no such construction standards in the area or the era until a resolution was made by CMC to under the Towns Act 1934 and gazetted on 24 September 1947; ...".

168 With respect, the fact that Bisdee Street may have been constructed to a certain standard was not relevant to the issue the learned trial judge had to determine. His Honour was dealing with Marsh Street and, insofar as this ground was concerned, whether Mr Brown ever constructed Marsh Street to the satisfaction of the Council. Otherwise, this ground amounted to no more than a complaint that the learned trial judge did not make a finding which the appellant wanted. In the absence of there being established why his Honour should have made the finding it was said he failed to make, this ground must fail.

"(37) The Court denied natural justice by holding that Municipal Maps kept under s694 of the Local Government Act 1962 which were deemed to be only prima facie evidence of the existence of a highway, carried more weight than the extensive evidence of other written records and certified declarations made by CMC & CCC which contradicted entries on Municipal Maps; ..."

170 The only basis for this ground was that there was a denial of natural justice arising from a finding asserted to have been made by the learned trial judge which was contrary to one which the appellant wanted. Given the failure of the appellant to identify any basis for this giving rise to a denial of natural justice, this ground should fail. I will however deal with it on the basis that the appellant has asserted that the learned trial judge made an error of some kind. It should be remembered that simply making a finding contrary to what the appellant contended for, if indeed that was what his Honour did, does not by itself establish an appealable error.

171 The learned trial judge set out the Local Government Act 1962, s694 at pars[95] - [97] of his reasons. He identified when that section came into force and amendments thereafter. He identified that it was replaced by the Local Government Act 1993, s208, which he also set out. Section 694(5) provided that:

"A map under this section is prima facie evidence of the matters mentioned in paragraphs (a), (b) and (c) of subsection (1), and any landowner thereby aggrieved may request the corporation to correct the map by notice setting forth the grounds of that correction."

Subparagraphs (a), (b) and (c) of subs(1) dealt with all highways repairable wholly or partly by the Council, all other highways at any time well and sufficiently made, formed, paved, or otherwise made good, and all roads known to it that a landowner is liable to repair. His Honour went on at pars[98] - [102] to deal with the effect of these sections and said at par[102]:

"102 I make the obvious point that not every map of the municipality that is or has been kept by the Council is a municipal map. For a map to be a municipal map, it must have been prepared as such. After all, it is only a municipal map that is open to objection by any ratepayer or elector/person, and is prima facie evidence/evidence of the matters referred to in pars(a), (b) and (c) of ss694(1) and 208(1)."

172 The appellant's written submissions in relation to this ground were as follows:

"(i) There is a welter of evidence confirming that Marsh Street, Gellibrand Lane and Bisdee Street have been denoted in like terms on the hard copy records kept by both the CMC and the CCC.

(ii) The evidence is the PWD and the DMR also held similar or identical records to the CMC that confirm Marsh Street is a highway maintainable by CMC & CCC.

(iii) The evidence is that the CMC & CCC have a long history of regular communication with the PWD & DMR;

(iv) The evidence is that Marsh Street is included on the CCC 'Roads inventory 1996'. Other roads are shown on the same inventory as 'Not Maintainable by Council'. Marsh Street is not shown as 'Not Maintainable'. (see AEL V1 D217 pages 1-11)

(See also AEL V2 D202A, D204 pages 1 - 3, D205 pages 1 - 3, D208 page 5, D209 page 5, D210 page 5, D212 page 8, D214 page 3, D215 page 710, D215A page 9, D220 pages 1 - 27, D610)."

In the absence of any other identification of what constituted a "welter of evidence", I have had regard to the material specifically identified by the appellant.

173 As to D217, it was entitled "Roads Inventory - 1996". There were approximately 105 listings in that document. Six roads were marked not maintainable and these did not include Marsh Street. However, almost all of those were marked not maintainable because they were at the airport.

174 D202A was a Public Works department document entitled "Road Classification and Number". Marsh Street appeared with a number RO538. Neither Gellibrand Lane nor Bisdee Street were mentioned. D204 was a Council rural roads list dated June 1971. Marsh Street appeared on the list as a formed road, as did Gellibrand Lane and Bisdee Street. D205 consisted of three pages. The first two made no reference to Marsh Street. The third was a handwritten document entitled "Rural Roads". It listed Marsh Street as an unformed road. Neither Gellibrand Lane nor Bisdee Street were referred to. D208 was a letter from the Public Works Department to the Council to which were attached lists which contained road names and new numbers allocated to them by the department for reference purposes. Marsh Street, Bisdee Street and Gellibrand Lane all appeared in the list. D209 was said to be a rural roads list of the Council dated in 1981. Marsh Street was shown on page five. It was not shown as a formed road, simply one which was cleared. Gellibrand Lane and Bisdee Street were also in the list and were also shown as cleared.

175 D210 was what was described as "Commonwealth Functional Classification of Roads". It was sent by the Department of Main Roads to the Council in August 1987. Marsh Street was listed on page five. Gellibrand Lane and Bisdee Street were also listed. D212 was a "surface type listing" of roads prepared by the Department of Main Roads and sent to the Council in August 1987. Marsh Street and Bisdee Street were shown as natural surface or cleared only, while Gellibrand Lane was shown as being sealed. D214 was said to be an extract from a Department of Main Roads and Council road inventory. Marsh Street was referred to twice but there was nothing to indicate its status or anything relevant to this ground of appeal. The other two streets were also shown. The part of D215 to which the appellant referred was another road surface summary. Marsh Street was listed in page 711 in this document but not on page 710. It was shown as having a natural surface, meaning cleared only. Both Bisdee Street and Gellibrand Lane were shown as having a natural surface.

176 As to D215A, the appellant's appeal book index describes this exhibit as being "Letters Roads and Transport dated 25 February 1991 (Page 714)". The document in volume 2 of the appellant's exhibit books which is marked D215A is not that document. I have checked the original exhibit on the trial. The original exhibit was as identified in the index. However, it consisted of only one page. There was no page 9. D215, however, had a number of pages. In the appellant's exhibit book, although this numbering does not appear in the original exhibit, the appellant has numbered the pages of the exhibit from one to 1 to 31. The page numbered 9 was a list of codes. One was headed "Legal class description" with the letters "LC" underneath it. There then appeared a list of numbers and what I presumed to be a category beside each number. The number "1" had beside it the word "Highway". In D215 on page 711 beside the entry to Marsh Street was a set of columns numbered "1" to "7". There is an entry under column 1, "0.12". I was unable to determine whether it was this page to which the appellant meant to refer and, if so, if he was seeking to submit that the code numbered 1 beside the entry for Marsh Street on page 711 meant it was a highway. If that was what the appellant meant by his submission, it cannot be accepted. There is nothing on page 711 of D215 to indicate that the columns refer to other than road surface types only.

177 D220 was described as being "Various PWD, DMR, R&T, CMC, CCC Municipal Maps c1946 to 2004". This document was made up of 27 pages. On the face of the documents, it was not possible to identify what maps belonged to what entity, who may have prepared them and what status they may have had. The appellant did not identify any page he said was particularly relevant. In the absence of assistance in that regard, it was impossible to tell the relevance of these pages to the argument. Certainly some of the maps showed black lines running roughly on some roads. D610 was described as a GOS Data printout. It was a map which showed Marsh Street with a heavy black line on it.

178 The appellant made no reference to any other documents which were before the learned trial judge. Counsel for the Council did so at length in his written submissions, although none of the exhibits, that is P60, P61, P63, P64, P65, P66, P67, P68, P69, P70, P71 or P72, were in any of the appeal books produced on behalf of the Council. However, from reading Mr Wicks' witness statement, which was P102/1, it was possible to identify that parts of some of those exhibits were part of the document which was D220.

179 For example, page 2 of D220 was Transparency V referred to in Part 4 of Mr Wicks' statement at par4.4. Marsh Street was not shown on that map. Page 3 of D220 was a close-up of page 2. It carried the date 1958. It was impossible to gain any useful information from the fourth or fifth pages. As to page 6, it appeared to be a similar document to that at page 3 although it bore the date 1967. On this document, there were what looked like hand-drawn black lines and one seemed to be where Marsh Street was, with a reference number 82. Page 7 was of no assistance. As to page 8, it was a map but not identified. Marsh Street was marked with a black line. Pages 9, 10, 11, 12 and 13 were of no assistance. Page 14 was a Southern Metropolitan Master Planning Authority Map dated May 1976. It showed Marsh Street but it was not marked with a black line as was Spitfarm Road. Page 15 was virtually a copy of page 14, save that there was a reference to what appeared to be another subdivision unrelated to Marsh Street at the top. Page 16 showed no useful information.

180 Page 17 was map numbered 910/4 which was the subject of ground of appeal 38. It contained a reference to Marsh Street, and that street appeared to be marked with a black line. Page 18 was another Southern Metropolitan Master Planning Authority map dated May 1987. Marsh Street was on the map. There was no black line on it. Page 19 had no useful information. Page 20 was what appeared to be an index although there was nothing to indicate to what it referred. Marsh Street appeared on it. Page 21 was a different version of the map at page 18. I was unable to establish the relevance of it. Page 22 was a map which showed Bisdee Street, partially marked with a black line. Page 23 was effectively a copy of page 18. Page 24 showed nothing useful. Pages 25 to 27 showed no new information which might be relevant.

181 With respect, while the material identified does show that, in a limited number of documents, Marsh Street, Bisdee Street and Gellibrand Lane are all referred to and, on occasions, without differentiation, that fact alone does not support the appellant's contention in this ground. As to the second proposition in the appellant's written submissions, that was not supported at all by the material referred to. As to the third submission, leaving aside whether the evidence showed such a fact, the relevance of it to this ground has not been established. I have already dealt with document D217. The appellant has not demonstrated any error by this ground and it must fail.

"(39) The Court erred in fact and in law and denied natural justice by failing to hold the evidence confirming that all Municipal Roads shown as a blue line on 'layer 19' of CCC '1996 Roads Inventory' list, which includes Marsh Street, are public highways maintainable by CCC excepting those that are denoted on the list as being 'Not Maintained'; ...".

183 In support of this ground, the appellant argued that the evidence was that all the roads denoted by a blue line were highways that the public had access over, and that the blue line was used to the present day for creating the aggregate total of road lengths for the purpose of claiming Federal maintenance funding. To support his submission, he referred to evidence given by Mr Wicks.

184 I have reviewed the evidence given by Mr Wicks at pages 794 to 802 of the transcript. In that, as a result of being requested during an adjournment to extract material from Council records, he gave certain information to the Court. He referred to a number of roads. Some appeared on what has been described as Layer 19 of the Council's electronic record-keeping system, while others did not. Two roads, apart from Marsh Street, were designated with a blue line on Layer 19, but were shown on Layer 64 as being not maintainable by the Council. Mr Wicks told the Court that this was the same situation as with Marsh Street.

185 In his witness statement, exhibit P102/1, Mr Wicks explained that the electronic system consisted of some 190 layers. Layer 19 was a description and length of any road within the municipal area, without drawing any distinction between highways and other roads. Layer 64 showed all highways maintainable by the Council, and showed them as being marked with a pink line. Marsh Street was not marked on Layer 64 with a pink line. This information was confirmed in the course of his oral evidence.

186 With respect, the appellant has misrepresented the evidence which was given to the Court. It did not support the contention he raised, and there can be no error on the part of the learned trial judge in having failed to find as the appellant contended he should have. This ground must fail.

"(40) The Court erred in fact and law by failing to hold that the c1984 sealing of an adhesion plan over Lot 5 in Marsh Street and Lot 7 on Spitfarm Road was not a sealed plan for the purposes of s95 of the Local Government (Building and Miscellaneous Provisions) Act 1993 and/or the intention of parliament in introducing the provisions of the said Act; ..."

188 His Honour dealt with this issue at pars[84] - [85] of his reasons. He said:

"84 The defendant sought to derive some benefit from the former Act, s468(1)(a), on the basis that the Council had sealed an adhesion order referrable to Lot 5 in Marsh Street and Lot 7 in Spitfarm Road in 1984. An adhesion order is a means by which the owner of adjoining parcels of land, one or more of which does not have the qualities of a minimum lot, can adhere them in order to create a block which has the qualities of a minimum lot. See the former Act, s477A(1). Subsection (3) of the same provision reads:

'(3) For the purposes of this section an adhesion order is an order of the corporation that the parcels comprised in the block subject to the order shall not be dealt with so that they come or may come into the possession of different persons for an estate of freehold at law or in equity or for a term at law or in equity of 3 years or more.'

85 An adhesion order was not a sealed plan for the purposes of the former Act, s468(1)(a). Pursuant to that Act, s462, a sealed plan was one which had been approved and sealed by the corporation under s464, or s469 and had been accepted by the Recorder of Titles pursuant to s464(20). Section 464 related to the building estates, and s469 related to subdivisions. Adhesion orders were not made under either of those provisions. They were made under s477A. The sealing of an adhesion order that involved Lot 5 in Marsh Street does not assist the defendant."

189 The appellant by his written submissions ignored the difference between an adhesion order and a sealed plan. He concentrated on provisions relating to sealed plans which did not assist with any argument about the impact of an adhesion order. The appellant did not identify any error on the part of the learned trial judge in his findings set out above. This ground must therefore fail.

"(41) The Court erred in fact and law by failing to hold that under the Land Valuation Act 1940 any person aggrieved by a valuation assessment had the right to appeal under s18 (4) of the said Act and that there was no evidence of any objection by T G Brown or any other owner of the fee simple titles to 'Lot A' and 'Lot B' of Marsh Street being exempted from rates and land tax; ..."

191 The appellant's written submissions in relation to this ground were as follows:

"(i) There is no evidence that any of the previous owners of the 'Lot A' and 'Lot B' portions of Marsh Street have objected to having no rates and taxes levied on the fee simple titles to Marsh Street over the preceding 60+ years.

(ii) There is evidence of significant public expenditure over Marsh Street. Irrespective of whether the CCC claims that Marsh Street is not the responsibility of Council there remains an ongoing CCC maintenance responsibility to the street lights installed in Marsh Street at the bequest of CCC in c1975. Furthermore CCC, Australia Post and Metro Tasmania retain an ongoing use of Marsh Street for the provision of public services. As such under common law principle Marsh Street is vested to the public interest.

192 D157 was a copy of an email from someone at Aurora Energy to the appellant's former wife dated 21 June 2006 in which that person said:

"In response to request from Darrel regarding installation of streetlights please note the following:

Aurora Energy installs streetlights within council maintained roadways when requested by the relevant council. All charging for installation of the lights and ongoing energy costs are met by the council.

Once the light has been installed Aurora is responsible for maintenance of the the streetlight head ie lamp etc."

193 The second submission in relation to this ground and the document referred to bear no relationship to the ground at all.

194 This ground appeared to be an attempt to suggest that owners of Lot A and Lot B from time to time were not charged rates in respect of those lots, and that, since those owners did not object to that situation when they could have done so, some inference to support the appellant's case could be drawn. With respect, the issue which the learned trial judge had to determine was the legal status of Marsh Street. His Honour noted at par[124] that the owners of Marsh Street had not been charged rates. That those owners did not object to a situation where they were not being required to pay rates, which perhaps is not surprising, is not relevant to the issue of the street's legal status. It cannot be an error if a judge fails to make a finding or draw an inference not relevant to the decision he or she has to make. This ground must fail.

"(42) The Court denied natural justice by failing to hold or make any mention of the Respondent's failure to produce and declare its knowledge of highly relevant records under order of separate subpoena's, the failure of duty to make proper discovery and the claimed loss of other records previously produced by the Respondent on subpoena, that have since been discovered by the Appellant, when the conduct of the Respondent remains unexplained; ..."

196 The appellant has, on a number of occasions before different judicial officers, asserted that the Council has failed or refused to produce what he says are relevant documents. On each occasion the issue has been dealt with, the issue has been resolved against the appellant. Most recently the issue was raised in the interlocutory application to this Court. It was raised before the learned trial judge, both at trial and during the course of a bid to re-open the appellant's case, just before the decision now under appeal was handed down. This ground is predicated upon an assumption that indeed the Council has refused or failed to produce relevant documents. The appellant has not satisfied either this Court or the learned trial judge as to that. It was unnecessary in the circumstances for the learned trial judge to "hold" anything or make mention of any failure by the Council, which it was not accepted had occurred. This ground of appeal must fail.

"(43) The Court erred in fact and law by failing to hold or make mention of the provisions of PART IV s36 (2) (a), (3), (6) & (8) of the Town and Country Planning Act 1944; ..."

198 The learned trial judge said at par[24] of his reasons in relation to this Act:

"24 Reference has also been made to the Town and Country Planning Act 1944. By a proclamation gazetted on 23 May 1945, that Act applied to the whole of the Municipality of Clarence. There is no evidence that any town planning scheme prepared pursuant to that Act has any bearing on this case. The provisions of that Act provide no assistance in determining the issues before me."

199 The appellant conceded in his written submissions that this Act "had not been adopted at the time CMC granted approval for TG Brown subdivision.." but then submitted:

"...there were transitory provisions and principles contained in the Act that should be raised and considered."

He went on to set out extracts from s36 in this Act and submitted at point (ii):

"It is apparent that to comply with the law CMC was statute bound to forward a copy of the T G Brown subdivision approval to the Commissioner. The inference is that there is no evidence of the Commissioner having taken issue with the plan and conditions of approval."

200 The Town and Country Planning Act commenced in July 1944. It was limited in its application, by s2, to those areas declared by proclamation. The proclamation by which this Act was applied to the Municipality of Clarence was gazetted on 23 May 1945. This Act provided for the appointment of a town and country planning commissioner and facilitated the preparation and approval of planning schemes. By a notice dated 15 August 1945 published in the gazette by the Council Clerk of the Clarence Municipality, notice was given that this Act was then in operation in the municipality and that by a resolution passed by the Council on 9 August 1945, the council resolved to prepare a town planning scheme for the whole of the area of the municipality. Notice was also given that the approval of the commissioner had been received. As the learned trial judge pointed out at par[24] of his reasons there was no evidence any town planning scheme which may have been prepared had any bearing on this case.

201 It must be assumed that, at least by the date of that notice, a town and country planning commissioner had been appointed, although it is evident from the wording of the notice that no town planning scheme at all was then in existence.

202 Part IV of this Act was entitled "Miscellaneous". Section 36 dealt with approval of subdivisions. The appellant referred to s36(2)(a), (3), (6) and (8) in his ground of appeal and then extracted them in his submissions. Unfortunately, those subsections produced a somewhat misleading picture. The section in its entirety provided as follows:

"36 - (1) Except as hereinafter provided, every local authority shall, after the expiration of six months after the date of the appointment of the Commissioner, submit to him all plans for the subdivision of any land situated within its boundary.

(2) A local authority may approve of a plan of subdivision of land without reference to the Commissioner if -

(a) the plan has been submitted to the local authority not later than six months after the appointment of the Commissioner, and if it complies with the provisions of every Act relating to the subdivision of land within the area concerned;

(b) a scheme for the area concerned has been approved by the Commissioner, and the proposed plan of subdivision does not contravene such scheme;

(c) the local authority has submitted to the Commissioner a scheme relating to such area and the Commissioner has not within three months thereafter approved the scheme, or notified the local authority, in writing, of his disapproval, giving his reasons therefor; or

(d) the Commissioner has in any case authorised the local authority, as prescribed, to deal with the plan.

(3) In all cases where a local authority may approve of a plan of subdivision without reference to the Commissioner, it shall, within one month of such approval, forward a copy to him.

(4) Except as provided by this section, no plan for the subdivision of any land shall be approved by a local authority except with the consent of the Commissioner.

(5) The Commissioner may require amendments to any plans submitted to him, or may refuse to permit land to be subdivided, or its present use changed, except for the erection of such buildings as may be required in connection with its present use.

(6) A local authority may approve of any plan notwithstanding that any building lines or streets or proposed streets shown thereon are not in conformity with the provisions of the Building Act 1937, or of any Act relating to the subdivision of land in its area, if there is endorsed on such plan a certificate by the Commissioner to the effect that compliance with the Act, in relation to those matters is not, in the circumstances, necessary or advisable, and that the plan is in all other respects in conformity with such Acts.

(7) No person shall be deemed to have committed a breach of the provisions of any such Act in relation to such matters if he has in all respects conformed to the requirements of any plan approved by the Commissioner in respect of which a certificate has been issued under subsection (6).

(8) For the purposes of this section, any division of land, whether into two or more allotments, shall be deemed to be a subdivision of that land, notwithstanding that only one or any number less than the whole of the allotments may be intended for disposal by sale, or lease, or otherwise."

203 There was nothing in this section which required the Council to forward a subdivision plan approved in November 1944 to a town and country planning commissioner appointed under the Act at some later date. In any event, there was no planning scheme for the municipality at the time of the approval of the T G Brown subdivision. Therefore, there could be no question arising as to whether that subdivision did or did not comply with a planning scheme.

"(44) The Court denied natural justice by instructing the Appellant to confine written submissions to less than 20 pages and then advantaged the Respondent by accepting and relying on 50 pages of written submissions; ..."

206 Even if it were to appear that the learned trial judge did what was asserted by the appellant, the appellant did not identify the basis upon which it was said he suffered any disadvantage. He did not suggest he was prevented from addressing any particular relevant issue, either in writing or indeed orally. The appellant's written submissions in relation to this ground were as follows:

"The comments of HH Justice Evans during the course of the trial led me to believe that the documentary evidence and its relationship to the law 'speaks for itself' and rightly or wrongly a sense of certainty was instilled in me that, given the evidence and the relevant law, justice would be done and be seen to be done. Had the circumstances to which I am now aware been apparent to me at the relevant time my written closing submissions would have been authoritative."

207 With respect, that written submission was not directed to the ground as drawn, and appeared to refer to some unspecified disadvantage the appellant suffered. A review of the transcript revealed that, first thing on the morning of 17 February 2012, the learned trial judge raised with the appellant the issue of closing submissions. His Honour made clear he did not want huge amounts of documents and said his "thinking" was in the region of 30 pages for written submissions. The appellant asked to consider that, and was given time to do so. No direction or order was then made about the matter. On 22 February when the appellant ended his case, the learned trial judge had a discussion with the appellant and counsel for the Council about a timetable for the preparation of written submissions. His Honour, after some discussion, said that he was noting that the parties would endeavour to do the following, namely that counsel for the Council would file and serve his written submissions by 29 February, the appellant would do his by 7 March, and the Council would respond by 14 March. There was no direction made restricting the length of the written submissions in any way.

208 The hearing resumed for the purpose of oral submissions on 4 April 2012, by which time the written submissions of both parties had been provided. The appellant began his oral submissions. At that point, he made no complaint about any limit on the length of his written submissions. He spoke for some considerable time that day. There was no indication from the transcript that the learned trial judge prevented the appellant from advancing any relevant submission he wished to make. There followed counsel for the Council's oral submissions. Once they were finished, the appellant was given an opportunity to reply even though he was told he was not entitled to it.

209 This ground of appeal was simply not supported by what actually occurred and must fail.

"(45) The Court denied procedural fairness and natural justice by:

(i) breaching accepted Court practice and procedure without notice and ordering the Appellant to give evidence and argument before the Respondent had first put its case;

(ii) addressing the Appellant in a confrontational manner when seeking agreement to records of the registration of rights of carriageway over Marsh Street discovered by the Respondent which were subsequently found to not be true copies of the creating documents;"

211 The appellant's written submissions about propositions to be argued were:

"(i) The Court procedure applied y HH Justice Evans whereby I was required to argue my case 'off the cuff without notice', rather than being able to reply to the submissions of the Plaintiff in the normal turn, defocused and disadvantaged my defence and raised issues that significantly diverted the course of the Trial from the confinement of the pleadings.

(ii) The confrontational manner referred to suggested to me early in proceedings that the Learned Trail Judge came to the trial with an unsettling degree of prejudgment. In my view this concern is reinforced by a bizarre or perverse reliance on the Public Health Act 1903 By-Laws adopted by the CMC for the 'District of Clarence' some 30+ years beforehand.

(iii) Notably in the course of the trial the Learned Judge declared that HH was not concerned with what the Full Court had found. In another instance express a concern, in reference to the coloured transfer documents, that the Chief Justice had made a mistake however there was no reference to that observation in the judgment. It is however appreciated that His Honour in being charged with hearing the Trial, was in an most unusual and difficult position."

212 As to the first aspect of this ground, I firstly observe that the appellant is well experienced in court proceedings and has appeared in them often enough to have gained a knowledge of procedure. Against that background, the facts of this matter simply do not bear out this aspect of the ground of appeal. The appellant was the last witness on the trial. All the Council's witnesses had already been dealt with. The appellant was not ordered to give evidence at that point, or indeed at any other point in the trial I have been able to identify. As to submissions once the evidence was finished, counsel for the Council was asked to file and serve his written submissions first, with the appellant's to follow. When it came to the issue of oral submissions, the appellant was called on first which is accepted practice. The first part of this ground must fail.

213 As to the second aspect of this ground, the written submissions did not directly address the ground of appeal as drawn. The ground of appeal in point (ii) asserted a denial of natural justice and procedural fairness arising from what was said to be a confrontational manner adopted by the learned trial judge in relation to a particular matter. It did not however identify how it was said that, if the learned trial judge did indeed act in a confrontational manner, that, in some way, disadvantaged the appellant to the extent he was not fairly able to present evidence to the Court and argue his case. The propositions to be argued in points (ii) and (iii) suggested rather that the learned trial judge demonstrated bias against the appellant. Again, however, the appellant did not identify specifically how any confrontational behaviour may have evidenced any sort of bias against him. He also did not identify in what way the manner in which the learned trial judge dealt with the 1913 by-laws made under the Public Health Act 1903 in his judgment showed "a bizarre or perverse reliance" on those by-laws. He did not identify how it was said the matters referred to in point (iii) impacted adversely upon him in any way.

214 Dealing with the second part of this ground of appeal, the appellant did not identify where in the course of the trial, by reference to the transcript, the asserted "confrontational manner" was said to have been demonstrated by the learned trial judge. The exhibits tendered by the Council relating to the creation of rights of carriageway, as far as I can tell from an examination of the exhibit list, were contained in a book tendered at the beginning of the trial by counsel for the Council. They were exhibits P1 to P59 which were contained in a court book prepared by the Council. The learned trial judge had a discussion with the appellant and counsel about whether those documents could go in as exhibits. The book of proposed exhibits contained black and white copies of documents.

215 The appellant initially refused to agree to the material going in because he said that some of the documents were not accurate because there were coloured copy versions which were different. Counsel for the Council gave an undertaking to the Court to make the coloured versions available to allow the appellant to check them, and told the Court that if a coloured version was different to any of the documents to which the appellant objected, the coloured copy would prevail and would be interleaved into the book. The learned trial judge admitted the exhibits but on the basis that an original document, if available, would in effect override what was in the book. I have examined the original exhibit and it does not contain any interleaved pages of documents with colours.

216 If the exchange which the appellant had with the learned trial judge and counsel for the Council which I have identified is that in which the appellant claims the learned trial judge acted in a confrontational manner, the transcript does not, in my view, support the characterization put on what occurred by the appellant. His Honour was simply trying to ensure exhibits were recorded in a sensible manner and allowed for the appellant's concerns.

217 The exchange could not in any way have suggested to the appellant that the learned trial judge had prejudged the case. The exchange occurred at the end of the first day and evidence commenced the next. During the course of lengthy exchanges between the learned trial judge and the parties prior to the exchange which seemed to be the subject of the complaint, his Honour attempted to identify with the appellant just what the issues were and what his case was. On occasion when the appellant made a statement, his Honour told him it was not relevant. With respect, the exchange in the transcript did not in my view constitute any evidence of pre-judgment or bias, but simply an attempt to establish the proper parameters of the trial.

218 As to the other assertions of the appellant contained in points (ii) and (iii) of his written submissions, they do not disclose appealable error. This ground of appeal must fail.

"(46) The Court denied natural justice by holding that 'Maximo', records (from about c2010) that Marsh Street is privately owned and failing to give any weight to the evidence that Marsh Street is not denoted 'Private' on any plan or other historical document before the Court; ..."

220 The appellant's written submission in relation to this ground was as follows:

"Weighting evidence of a notation on a CCC electronic record against historical documentary evidence to the contrary is, from a fair minded observers view, a denial of natural justice."

221 The appellant did not by this ground identify where in his judgment the learned trial judge made the finding complained of. A review of the judgment disclosed that the Maximo system was mentioned at par[118]. His Honour said:

"118 From about 1989, the Council developed two electronic databases known as Latitude and Maximo which record various information in relation to roads and streets in the municipality. Layer 64 of Latitude has replaced the hard copies of the municipal maps of roads maintained by the Council to which I have referred. Within layer 64, the roads maintained by Council are shown marked with a heavy pink line. The information recorded on this layer in relation to Marsh Street is the same as that which appears on map 39 in the 1980 edition and the 1991 edition. Whilst the roads in the immediate vicinity of Marsh Street are marked with a heavy line, in this case a heavy pink line, Marsh Street is not so marked, although, as in the former maps, it appears. The information recorded on Maximo referrable to roads and streets includes whether a street is privately owned or not. Maximo records that Marsh Street is privately owned."

222 This paragraph appeared at the end of a number of paragraphs during which the learned trial judge dealt with the various records maintained by the Council over many years and what they showed. His Honour did not "hold" that "Maximo, records (from about c2010) that Marsh Street is privately owned". What he did was record a matter of fact. His Honour's overall conclusion about Marsh Street was guided by a number of factors and not simply that arising from the evidence about Maximo records.

223 Again this ground appeared to be an assertion that the appellant was denied natural justice because the learned trial judge did not ultimately make a finding the appellant considered to be favourable to him. That assertion does not raise an appealable error. This ground must fail.

"(47) The Court denied natural justice by failing to hold the witness evidence of the Respondents Planning Manager Mr R Lovell in respect of the confirmation of co-development being a commonplace and lawful practice; ..."

225 The appellant called as a witness Mr Ross Lovell who said he was the manager of integrated assessment with the Council. He had been employed with the Council for 12 years. I have reviewed the transcript relating to the evidence of Mr Lovell. He did not give evidence as asserted by the appellant. The appellant tried to question Mr Lovell about "co-development" and another development he had been involved in. There were objections as to relevance which were upheld. The appellant was repeatedly told to ask relevant questions of Mr Lovell. Virtually none were forthcoming. There were however a number of exchanges between the appellant and the learned trial judge about co-development and the fact that it had been and could be done. Further, in any event, my examination of the transcript of the evidence of Mr Lovell did not reveal any denial of procedural fairness by the learned trial judge, nor any basis for a conclusion that he dealt inappropriately with that evidence. This ground must fail.

"(48) The Court denied natural justice by declaring that 'No relevant by-laws were made by the Council under the Local Government Act 1906.' but failed to make reasonable enquiry of Council as to whether CCC had any historical records of 'Existing By-Laws' as defined in s203 of the Local Government Act 1906 under which the statutory provisions in the amendments to the Local Government Act 1935 could be enforced under s205 ll (c) of the said Act; ..."

227 What must first be said in relation to this ground is that the role of a judge in a civil trial is to determine issues raised by the parties on the basis of the evidence presented by the parties. It is not the role of a judge to make independent enquiries. Another point which should be made is that there was no evidence the Council had any obligation to keep historical records of "Existing By-Laws". By-laws either existed or did not as a matter of law. The appellant was as capable as anyone else of researching past legislation and gazettes to establish whether any by-laws of the type he referred to had been made.

228 This ground disclosed no appealable error on the part of the learned trial judge, and must fail.

"(49) The Court erred in fact and law and denied natural justice by failing to hold that in respect of the approval of the c1972 'Burbury' subdivision over Marsh Street the Respondent was required under statute to provide maps, plans and other particulars to the Local Government Office and the Minister for Lands and Works, who was empowered to assess compliance with the statutory regulations before granting or refusing approval for subdivision within the CMC; ..."

230 With respect, whether or not the Council was required to provide certain documents in relation to a subdivision by somebody in 1972, had no relevance to the legal status of Marsh Street. Further, the appellant's written submissions in respect of this ground appeared to be predicated on an assumption that map 910/4, to which reference has already been made, was a municipal map, which it was not.

231 This ground disclosed no appealable error on the part of the learned trial judge.

"(50) The Court denied natural justice by failing to instruct the Respondent to produce hard copies of the pre 1998 Marsh Street files and other records that had been produced to the Court in microfiche form only, and therefore could not be reviewed by the Court or the Appellant at trial, noting that the evidence of the Respondents Corporate Secretary under oath was that the records did not exist and that the same position was formally corroborated by Counsel for the Respondent;"

233 This ground appeared to be a two-fold complaint. Firstly, it was that the Council was not told to produce what the appellant referred to as the pre-1998 Marsh Street files, and secondly, that the Council produced certain records on microfiche as opposed to hard copies, and should have been instructed to provide hard copies. The appellant's written submissions appeared to relate entirely to the first part of the complaint. They were as follows:

"(i) The XM evidence of former CMC Town Planner and then General Manager of the CCC Mr Roger Howlett contradicts the evidence of CCC Corporate Secretary Me Alex Van Der Hek. Mr Howlett's evidence, considering his former role as a Town Planner in the relevant era, should have been preferred over that of Mr Van Der Hek.

(see 21/2/12 XM Mr Howlett Transcript pages 968-973

(ii) By claiming that there are no records of any pre c1998 Marsh Street General File or individual Marsh Street property files Mr Van Der Hek's evidence is fatuous to the degree that it represents that CCC has retained no records of Marsh Street up until about 5 years prior to the commencement of the controversy over the status of Marsh Street.

(iii) The evidence is that the CCC does keep records under its corporate and public obligations.

(iv) Since this ground was drawn an inspection of microfiches records produced to the Court has been undertaken and it is confirmed that no pre c1998 to c1985 Marsh Street records have been produced to the Court."

234 The transcript reference provided in relation to Mr Howlett's evidence in fact covers the entirety of his evidence both in-chief and in cross-examination. I have reviewed the transcript of his evidence and have also reviewed that relating to the evidence of Mr Van Der Hek which follows that relating to Mr Howlett. Mr Howlett was employed by the Council from 1979 to 2003. He was a town planner until 1993 although he did not indicate when he took up that role. He said he was not involved in any of the details relating to the status of Marsh Street and had no knowledge about specific facts relating to that street. He thought that from about the mid 1980's there were separate property and street files. Their size depended on what correspondence may have been received. He was shown exhibit P75 (which was the Council's Marsh Street file commencing in January 1998) and agreed that was what he would have described as the Marsh Street file.

235 As to Mr Van Der Hek, at page 989 of the transcript of evidence at trial, the following exchange occurred between him and the appellant in relation to this issue:

"Okay. In respect of information request number 4, where I asked under rights of information, the Marsh Street general file, and advised it had been previously ordered under subpoena, and the records hadn't been produced. Your response was:

That the copy of the - the full copy of the Marsh Street file is provided. It is noted that in this file is January 1998. It is noted that there is no record of a prior road filed in respect to Marsh Street within council's filing system.

Do you still stand by that?......Absolutely. Your Honour, may I explain? The council did not have a property base, and therefore a street based central general file system prior to the date mentioned here in January '98, or some time before that, a little short time before that. Prior to that, matters were dealt with based on subject and subject only. What I'm trying to explain here in the correspondence to Mr Howlin, is that the Marsh Street file, as it stood, only started, as far as the entries were concerned, in 1998. "

236 The evidence of Mr Howlett did not contradict that of Mr Van Der Hek. This ground is a repeat of a longstanding complaint by the appellant about what he alleges is a refusal and/or failure of the Council to produce records. It has already been discussed in the context of the appellant's interlocutory application at pars[7] - [16] of these reasons. The learned trial judge accepted that, insofar as any file which might be called the Marsh Street general file relating to the period prior to 1998 was concerned, it did not exist. It cannot therefore be said to be an error on his part to not require the Council to produce it.

237 As to the second part of this ground, that was that part relating to a failure to produce hard copies, the appellant did not identify how it could be said there was an error. He was afforded the opportunity to inspect the microfiche material before the hearing of the appeal, but has not identified anything in that material which, in my view, might have made a difference to the outcome of the proceedings. With respect, this ground must fail.

238 This ground related to the order made by the learned trial judge to the effect that the appellant pay the respondent's costs at trial. It provides as follows:

"(51) The cost order of 20 July 2012 was unreasonably or clearly unjust, based on errors of fact and law, a failure to take into account material considerations, gave undue weight to the evidence, acted on wrong principle, allowed extraneous irrelevant matters and misrepresentation by the Respondent to guide or affect the Learned Trial Judge."

239 The order sought to be appealed was made by the learned trial judge almost two months after his substantive reasons were published. The order was made following the delivery of written submissions and oral argument. Regard must first be had to the relevant provision of the Supreme Court Civil Procedure Act, s44. It provides:

"44 Appeals as to costs only, and appeals by a person admitted to sue or defend as a poor person

(1) No appeal shall lie to a Full Court from any judgment or order given or made by a judge, whether sitting in court or in chambers, as to costs only, which are by any statute or any Order or Rule of Court left to the discretion of the judge, except -

(a) by leave of the judge giving such judgment or making such order;

(b) in cases in which the judge has declined or failed to exercise the discretion; or

(c) in cases in which the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has failed to consider any material fact."

240 The effect of s44 is that no appeal lies from the learned trial judge's order as to costs unless the appellant is able to bring himself within one of the exceptions set out. There was no evidence that the appellant sought leave from the learned trial judge to appeal. As to any suggestion that the learned trial judge declined or failed to exercise his discretion as to costs, that is not supported by his written reasons. The learned trial judge identified in those reasons the legal principles to which he had to have regard, and then applied those principles to the facts of the case. The appellant must therefore bring himself within par(c). While the appellant's ground of appeal appeared in part to mirror the terms of this subsection, it did not identify in any way what wrong principle the learned trial judge had regard to, what were the irrelevant materials the learned trial judge had regard to, what the insufficient materials were that the learned trial should have considered, or what material facts the learned trial judge failed to consider. In his written submissions the appellant simply identified as the proposition he proposed to argue:

"This Ground is effectively pleaded in the foregoing Grounds"

With respect, that was of little assistance to the Court because it did not address factors relevant to the costs issue.

241 The written submissions of the Council as to costs were dated 27 June 2012. They appear in Appeal Book 1 commencing at page 110. At 119, counsel for the Council set out a chronological summary of matters he contended were relevant to the exercise of the learned trial judge's discretion. The appellant had an opportunity to address those submissions in writing. His submissions are contained in the same appeal book. The appellant also had an opportunity to address the Court orally about the issue of costs.

242 The appellant's ground of appeal and the proposition he sought to argue were completely lacking in any detail indicating precisely what the appellant said were his Honour's errors in respect of his decision as to costs, as opposed to being simply a repeat of his complaints about the substantive judgment. Very generally, the appellant was unsuccessful in the proceedings before the learned trial judge. The usual rule is that costs follow the event. The learned trial judge identified in his decision as to costs the matters which might justify a departure from that general rule. He then considered the various features of the case before him and determined that it was appropriate to make the order that he did.

243 The learned trial judge's reasons, on their face, reveal no error which might bring this appeal within s44(1)(c) and this ground must fail.

244 The appellant has not successfully argued any ground of appeal. I would in those circumstances dismiss the appeal.

245 I have read the draft reasons for judgment of Tennent J. I agree with those reasons and would also dismiss the appeal.