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Cases Cited: City of Canada Bay Council v Bonaccorso Pty Ltd (2007) 71 NSWLR 424; [2007] NSWCA 351
Dabbs v Seaman (1925) 36 CLR 538; [1925] HCA 26
Handevel Pty Ltd v Comptroller of Stamps (Victoria) (1985) 157 CLR 177; [1985] HCA 73
Lake Macquarie City Council v Luka [1999] NSWCA 447
Little v Dardier (1891) 12 NSWLR (Eq) 319
Newington v Windeyer (1985) 3 NSWLR 555
Palmisano v Hawse [2003] NSWSC 566
Permanent Trustee Co of NSW Limited v Campbelltown Municipal Council (1960) 105 CLR 401; [1960] HCA 62
President of the Shire of Narracan v Leviston (1906) 3 CLR 846; [1906] HCA 34
Re Forrest Trust; Trustees, Executors and Agency Co Ltd v Anson [1953] VLR 246
The Council of the City of Shoalhaven v The Director-General National Parks & Wildlife Service & Ors [2004] NSWCA 163
Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354
Weber v Ankin [2008] NSWSC 106

Category: Principal judgment

Parties: Robert James Laing (First Plaintiff)
Tronmill Pty Limited (Second Plaintiff)
Port Macquarie-Hastings Council (First Defendant)
Sean Bernard McInherny (Second Defendant)
Peter Robert Bugden (Third Defendant)
Judith Anne Bugden (Fourth Defendant)
Cathrowe Nominees Pty Ltd (Fifth Defendant)
June Mary Freeman (Seventh Defendant)
Bernard Bede McInherny (Eighth Defendant)
Michael James McInherny (Ninth Defendant)

Representation: Counsel:
R S Lancaster SC / S Hanscomb (Plaintiffs)
J Doyle (Second Defendant)
Solicitors:
HWL Ebsworth (Plaintiffs)
Litigation Specialists (Second Defendant)

File Number(s): 2023/00207217

JUDGMENT

1. This case is about a road which runs south from Telegraph Point Road near the Pacific Highway inland from Port Macquarie. Made of dirt and gravel, the road is about 2km long and passes through a State Forest to three rural holdings on a peninsula formed by the Hastings River. In order not to prejudge the issues in the case, I will refer to the road as the Wharf Road Alignment. The Plaintiffs are the owners of one of the rural holdings and claim that a public road runs down the full length of the Wharf Road Alignment from Telegraph Point Road to the river reserve on the banks of the river. The Second Defendant owns one of the other rural holdings. He and his brothers are the registered proprietors of the Wharf Road Alignment. He denies that there is a public road, although he accepts that the Plaintiffs have an implied right of way over part of the Wharf Road Alignment. In 2022 he erected a fence and gate across the Wharf Road Alignment although the gate is generally left open.

2. The resolution to the controversy lies in events which occurred between 1890 and 1920 when the rural holdings and the surrounding land was brought under the Torrens system as part of an aborted plan to subdivide a larger parcel of land into 47 allotments serviced by a network of twelve roads. The subdivision was called the Irvine Estate.

3. As stated above, the Wharf Road Alignment commences at Telegraph Point Road which was previously named Kempsey Road. In these reasons I will use the name which best fits the context. In 1890, Kempsey Road was the nearest public road.

4. The nature of the case makes it necessary to set out the details of the original parcel of land and each of the changes of title from 1890 to the present. It is a lengthy history. To enhance the readability of these reasons, the detailed history is set out in Schedule 1. Pertinent aspects of the history are referred to in the reasons as they progress.

Proceedings before the Court

5. The Plaintiffs bring these proceedings to seek final adjudication of their contention that the Wharf Road Alignment is a public road for the purposes of the Roads Act 1993 (NSW).

6. Some ancillary issues also arise, specifically the identity of the owner of the strip of land upon which the Wharf Road Alignment is located, the state of the Register maintained by the Registrar-General, whether the Plaintiffs have alternative rights of way and whether the Second Defendant ought to be ordered to remove his gate. The answers to the ancillary issues will be informed by the question whether there is a public road, so that issue must be decided first.

7. Without criticising any party, the position of each remaining active party and some of the other parties has changed since the litigation commenced on 28 June 2023, including on the first day of the trial. Some of the changes were significant, such as the local council’s transition from an active contradictor to a submitting appearance. Other changes have been more nuanced. The changes reflect, and in some instances have been directly caused by, revelations about the positions of those concerned with the Wharf Road Alignment over the last 135 years. As the narrative of background facts and the reasons below show, attitudes to the Wharf Road Alignment have changed from time to time. Given the changes, it is appropriate to determine the case by reference not just to the pleadings but also to the way the case was conducted at trial. Neither remaining active party claimed to have suffered material prejudice from the way the trial was conducted by any other party.

Orientating the land

8. With sufficient precision for current purposes, the following plan depicts the layout of the land:

9. The Wharf Road Alignment is the long vertical red line, terminating at the top at Kempsey Road. Although the plan depicts the bottom end of the Wharf Road Alignment as terminating short of the Hastings River, it in fact runs all the way down to the 100-foot river bank reserve. The alignment for Hastings Road runs to the right and the alignment for Marks Road runs up from the end of the Hastings Road, again all the way to the edge of the coloured land despite what is depicted in the plan. The other important road alignment is for Freemans Road which runs away from the left of the Wharf Road alignment just below the “Freeman” label.

10. The Plaintiffs’ land is the orange parcel on the left labelled “Freeman”. It is comprised of a number of lots. Lot 12 is as the bottom. The Second Defendant’s land is the pale green parcel labelled “McInherny”. One of his brothers owns the yellow parcel on the right and the other brother owns the red parcel. The Budgen parcel is blue. The Bugden parcel was previously owned by Mr Downes whose name appears on many of the documents.

The Plaintiffs’ case

11. The Plaintiffs’ primary case is that in 1890 the National Building Land and Investment Company was the registered proprietor of a large parcel of land which included all the land depicted in the plan at [8] above plus more land to the north west. It is submitted that in about 1890 or 1892 the NBLI Company dedicated the Wharf Road Alignment as a public road and the dedication was accepted by the conduct of the general public in the years which followed. Acceptance of the dedication was complete by no later than 1 January 1920 when the Local Government Act 1919 (NSW) commenced. Thus, the Wharf Road Alignment became a public road at common law. Upon commencement of the Local Government Act 1919 the public road vested in fee simple in the local council by virtue of s 232 and the local council became entitled to be registered as the proprietor of the strip of land upon which the Wharf Road Alignment is located. When the Roads Act 1993 was subsequently enacted, the Wharf Road Alignment was taken to be a public road for the purposes of the new statute under cl 15 of the transitional provisions. By virtue of s 145 of the statute it continued to be vested in fee simple in the local council. At no time since the acceptance of the original dedication has the public road been closed. It follows that the Wharf Road Alignment continues as a public road today. The Plaintiffs submit that the Court should so find and grant such relief as is necessary to quell the controversy between the parties.

12. Strictly as an alternative, if the Wharf Road Alignment is today privately owned by the Second Defendant and his brothers, then the Plaintiffs submit that rights of way exist which benefit their land and burden the Wharf Road Alignment.

13. The Plaintiffs’ case is directed to the Wharf Road Alignment for its full length from today’s intersection with Telegraph Point Road (and thence to the Pacific Highway) all the way down to the 100-foot reserve on the banks of the Hastings River. The Plaintiffs make no claim in relation to the Hastings, Marks and Freemans road alignments. The geography means that they have no interest in the other roads.

Mr McInherny’s case

14. The contradictor is the Second Defendant who I will refer to as Mr McInherny. I will refer to Mr McInherny and his two brothers collectively as the McInherny brothers. The McInherny brothers are the latest generation of a family which has owned relevant land since 1892. It is not necessary to distinguish between the individual ancestors so I will refer to them collectively as the McInherny family.

15. Mr McInherny first filed a Defence on 19 September 2023. Without objection, his most recent Defence was filed in Court on the first day of the trial.

16. Despite filing the new Defence so late, Mr McInherny’s case needs to be understood by reference to the way it was conducted over the subsequent days of the trial. At some points there is a lack of clarity, but three essential contentions may be distilled from the submissions made in writing and orally.

17. First, Mr McInherny disputes the inferences to be drawn from the events prior to 1 January 1920, both as to the dedication of a public road by the NBLI Company and as to the acceptance of the dedication by the general public. Apart from observations about the sparsity and imprecision of the Plaintiffs’ evidence about events so long ago, the cornerstone of Mr McInherny’s first argument is the positive contention that private rights of way over the Wharf Road Alignment were created by operation of law each time an otherwise isolated parcel of land adjacent to the Wharf Road Alignment was subdivided from it. Mr McInherny says that such a conclusion is equally supported by the facts and uniquely supported by notations on certificates of title which were subsequently issued by the Registrar-General. The creation of private rights of way is said to be significant because they undermine the inference that the NBLI Company intended to dedicate a public road. If private rights of way were intended, a public road would have been unnecessary. Mr McInherny goes so far as to submit that a public road cannot exist because it would be inconsistent with the private rights of way.

18. Mr McInherny’s second argument is that the NBLI Company was not legally capable to dedicate a public road on any part of its land because the land was encumbered by a mortgage to a bank. Drawing on the reasoning of the High Court in President of the Shire of Narracan v Leviston (1906) 3 CLR 846; [1906] HCA 34, Mr McInherny submits that a mortgagor is not able to dedicate a road over mortgaged land any more than a tenant is able to do so over land held under a lease.

19. Mr McInherny’s third argument is that on 21 September 1942 the Registrar-General issued Certificate of Title Volume 5345 Folio 227 in which the McInherny family was recorded as the registered proprietor of an estate in fee simple of a parcel of land which included the Wharf Road Alignment. Mr McInherny submits that, by reason of s 42 of the Real Property Act 1900 (NSW), the McInherny family thereafter held its estate in the Wharf Road Alignment absolutely free from all other estates and interests that were not recorded on the Register. No estate or interest in a public road was recorded on the Register for the local council. Therefore the McInherny family took its interest free of any public road. Further, on 20 July 2023 the Registrar-General registered DP 1296248 by which land, including the Wharf Road Alignment, was created as a separate parcel of land of which the McInherny brothers are now the registered proprietors of an estate in fee simple. Section 42 continues to operate, with the result that the McInherny brothers hold their estate free of any estate or interest in a public road for the local council. Hence, if previously there was a public road (which Mr McInherny denies) it did not survive the McInherny family obtaining indefeasibility of title by no later than 21 September 1942.

20. Mr McInherny submits that the ultimate conclusion to be reached from these arguments is that there is no public road on the land located in the Wharf Road Alignment.

21. Mr McInherny accepts that the corollary of his ultimate conclusion is that the Plaintiffs’ land has the benefit of private rights of way over the Wharf Road Alignment. Whilst Mr McInherny contends that a mortgagor is not competent to dedicate a public road, he submits that there is nothing to prevent a mortgagor from granting a right of way. Mr McInherny further submits that s 42(1) does not apply to a right of way because of the exception to indefeasibility in s 42(1)(a1). Mr McInherny’s acceptance of rights of way may go so far as to accept that the Plaintiffs are entitled to have them recorded on the Register.

22. Another matter emphasised by Mr McInherny is that on a number of occasions over the last thirty years the local council has denied that the Wharf Road Alignment is a public road. Mr McInherny has not identified the legal significance of Council’s attitude after 1920 and it is not otherwise apparent. In any event, the Council is a party to these proceedings and has now filed a submitting appearance (see below). The Council’s subjective view about the legal status of the Wharf Road Alignment may be put to one side, as may be the conduct of Council after 1 January 1920.

Positions of the other parties

23. Turning then to the other Defendants in these proceedings, the First Defendant is the present local council. The local council for the relevant land has changed over the centuries with mergers and adjustment, but neither party attributed any significance to the precise identity of the local council at any particular time. I will refer to it as the Council. The Council initially played an active role in these proceedings. On 20 September 2023 it filed a Defence in which it did not admit that the Wharf Road Alignment is a public road. In July 2024 the Council served an Affidavit which reported a search of its records which turned up very little of relevance and nothing of sufficient antiquity to inform the issues in the case. There are some relevant Council papers, but they were located by research undertaken on behalf of the Plaintiffs. On 19 February 2025 the Council changed its position. It filed a submitting appearance and has played no further role. The evidence does not explain why the Council changed its position.

24. The Third, Fourth and Fifth Defendants may collectively be referred to as the Bugdens. They purchased Lots 9, 10 and 11 from Mr Downes in 1992. The Bugdens previously supported the Plaintiffs. However, on 6 March 2025 they struck out on their own and filed a Cross-Claim against the Council and the McInherny brothers by which they asserted that the Wharf Road Alignment is burdened by a right of way which benefits their land. It is not clear whether the rights asserted in the Cross-Claim were intended to be consistent with the Plaintiffs’ assertion that there is a public road. In any event, shortly before the trial commenced the Bugdens settled with Mr McInherny. Pursuant to the settlement deed Mr McInherny agreed to take steps to have recorded on the Register a right of way over part of the Wharf Road Alignment which benefits the Bugdens’ land. Mr McInherny’s obligations included obtaining the consent of his brothers. The Bugdens then discontinued their Cross-Claim and filed a submitting appearance.

25. The Sixth and Seventh Defendants are the Freemans, from whom the Plaintiffs purchased their land by a contract dated 24 June 2022. As the registered proprietors when the proceedings commenced, the Freemans were necessary parties. The sale to the Plaintiffs subsequently completed and the Plaintiffs are now the registered proprietors. The Freemans were never active, although Mr Freeman and his daughter, Ms Barrie, gave evidence supportive of the Plaintiffs’ case.

26. The Eighth and Ninth Defendants are Mr McInherny’s brothers who have submitted to the orders of the Court. They were not called to give evidence.

27. The Registrar-General is not a party to the proceedings. Mr McInherny submitted that the Registrar-General is a necessary party but correspondence from the Registrar-General suggests otherwise, at least as at the date of the trial. Since the conclusion of the trial Mr McInherny has sought to adduce evidence that the Registrar-General has now acceded to his request (Request AV 148714) to have a right of way notified on the Register as burdening the Wharf Road Alignment and benefitting the Bugden’s land. The Plaintiffs do not oppose this part of the further evidence being adduced. The Affidavit of Greg Stilianou affirmed 31 July 2025 may be taken as read in the proceedings and the exhibit to it adduced into evidence and marked Exhibit GS-2.

28. It is unclear whether the post-trial developments with the Register now necessitate the Registrar-General being added as a party. The liaison between the parties as to the terms of the final orders ought to address that issue to the extent necessary.

Was a public road created at common law?

Legal principles

29. If a public road exists along the Wharf Road Alignment it was created at the end of the nineteenth century or at the beginning of the twentieth century. There is no dispute between the parties that prior to 1920 a public road could be dedicated at common law by the owner of the land having an intention to dedicate it as a public road and the general public accepting the proffered dedication. In Newington v Windeyer (1985) 3 NSWLR 555 at 558–559, McHugh JA, with whom Kirby P and Hope JA agreed, summarised the principles as follows:

“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: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401 at 420; Pratt and McKenzie, Law of Highways, 21st ed (1967) at 16. 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: Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; 37 WN 51 at 53; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 412, 415, 422). 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: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 415) per Menzies J. 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: Turner v Walsh (1881) 6 App Cas 636 at 639, 641; Folkestone Corporation v Brockman [1914] AC 338 at 352, 362. 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.”

30. In Palmisano v Hawse [2003] NSWSC 566, Bryson J said at [7]:

“The law relating to the creation of public roads operated differently in the 19th Century to the highly structured processes under modern statutes, in which public roads are created by unmistakably clear processes of dedication, with registration of survey plans, and only with the agreement of the local or other public authority to which ownership of the land passes. At common law a public road was created by dedication of land for that purpose by the owner of the land, whether the Crown or a private owner, and by acceptance by the public of the dedication. Dedication was not usually a formal act, but was to be understood from events such as leaving ways open to the public when constructing buildings or laying out subdivisions, referring to land as a road in a plan published in some way such as exhibiting it when lands are offered for sale, or even more usually simply by leaving the land open for unobstructed public use for a lengthy period. Acceptance of a dedication was to be understood from use by the public for an extended period. Title to the land over which the public road ran was not altered by its dedication; the land remained the property of the dedicating owner, but became subject to public rights.”

31. The intention to dedicate is to be determined objectively: the Narracan case at 858–859 (Griffith CJ). As the passage quoted above from McHugh JA’s judgment in Newington v Windeyer states, an intention to dedicate need not be express but may be inferred from conduct. An example of such conduct may be lodging a plan of subdivision with the Registrar-General which depicts part of the land as an “open street” giving access to subdivided lots. This is especially so where the road connects to the existing public road system.

32. In Permanent Trustee Co of NSW Limited v Campbelltown Municipal Council (1960) 105 CLR 401; [1960] HCA 62, Menzies J said at 415; [6]:

“…I regard it as an artificial and unreal conception that when roads are left in subdivision they are left as private roads merely for the use of those who want to get to land in the subdivision. It seems more realistic to treat such roads as shown as part of the general roadway system and as open to all so that unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road.”

33. Another example of conduct from which an intention to dedicate may be inferred is where the attributes of a subdivision suggest that there is an expectation that building work will occur at the subdivided lots necessitating access from the public road network: Newington v Windeyer at 561.

34. These cases make clear that the conduct from which an intention to dedicate may be inferred need not be constituted by physical action in relation to the land. It may be inferred from the creation and use of documents such as leases, plans and maps. In an appropriate case they need not be public documents: Newington v Windeyer at 559.

35. Turning to acceptance of the dedication, it may also be inferred from conduct. The conduct may include the public using the relevant land as a road: Weber v Ankin [2008] NSWSC 106 at [69] (White J). Use by the public includes use both by people who have just purchased land in the subdivision and by people who have not: Campbelltown Municipal Council at 415; [6].

36. In addition to acceptance being inferred from the conduct of the general public it may also be inferred from the conduct of the local council. Such conduct is sometimes described as being “on behalf of” the general public. It may include the local council recording the road in its register of roads: Weber v Ankin at [68]. It may include the local council spending public money on the road, especially in the early twentieth century when, under the Local Government Act 1906 (NSW), councils did not have control and management of roads unless they were public roads: Weber v Ankin at [71]–[72]. Evidence of a local council’s expenditure on a road at that time is evidence from which it may be inferred that the dedication had been accepted by the public: Weber v Ankin at [72].

37. Prior to 1920 there was no requirement that the local council formally approve the dedication of a new public road: Weber v Anakin at [51]. Prior to 1920 the dedication of a new public road did not, without more, change the title of the land across which the public road ran. Although the local council had control of the public road and was entitled to carry out works on it, the local council did not have rights of ownership: Weber v Ankin at [53].

38. In New South Wales the creation of public roads became the subject of statutory regulation when the Local Government Act 1906 and then the Local Government Act 1919 were enacted. Where a dedication of a public road had been proffered before the commencement of the former statute, common law acceptance of the dedication was still possible up to the commencement of the latter statute on 1 January 1920: Weber v Ankin at [67]. In such a case the conduct of the general public up until 1 January 1920 may be considered to determine whether the dedication was accepted.

39. Whilst conduct after 1 January 1920 is not directly relevant to whether the dedication was accepted, it may support an inference about conduct which occurred before that date: Weber v Ankin at [67].

40. From 1 January 1920 dedication of a new public road has been governed by the Local Government Act 1919: Lake Macquarie City Council v Luka [1999] NSWCA 447 at [63] (Handley JA with whom Sheller and Stein JJA agreed).

Application of the principles to the facts of this case – dedication by the NBLI Company

41. The primary facts set out in the Schedule show that the Wharf Road Alignment was brought under the provisions of the Real Property Act 1862 (NSW) on 7 or 8 October 1892 when DP 2837 was registered. The Plaintiffs submit that the NBLI Company dedicated the Wharf Road Alignment as a public road by registering DP 2837.

42. DP 2837 depicted a subdivision of the NBLI Company’s entire parcel of land into 47 lots of broadly consistent dimensions arranged in a regular linear pattern throughout the subdivision. Twelve road alignments were depicted amongst the 47 lots running either parallel or perpendicular to each other and arranged in a way that ensured that each of the 47 lots could be accessed by a road. The twelve roads were all connected so it was possible to get from any road to any other road. At three places the road network was depicted as connected to existing public roads, namely Kempsey Road and Rollands Plains Road. In this way, each subdivided lot was depicted as having road access to the outside world. In DP 2837 each road was described as a “road” and allocated a name. A central road was named “Irving Road” in common with the entire subdivision being named “Irving Estate”. In the words of Kitto J at 412; [7] in the Campbellton Municipal Council case, there was nothing in DP 2837 to distinguish the twelve new roads from the two existing public roads.

43. The intention of the NBLI Company is to be considered in the context of the law which applied at the time DP 2837 was lodged for registration. At that time, s 100 of the Real Property Act 1862 provided:

100 Map of subdivided land

Any proprietor subdividing any land under the provisions of this Act for the purpose of selling the same in allotments as a township shall deposit with the Registrar General a map of such township provided that such map shall exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for public use and also all allotments into which the said land may be divided marked with distinct numbers or symbols and every such map shall be certified as accurate by declaration of a licensed surveyor before the Registrar General or a Justice of the Peace. Provided that no person shall be permitted to practise as a surveyor under the provisions of this Act unless specially licensed for that purpose by the Surveyor General.

44. DP 2837 was certified by “Mr Licensed Surveyor JH Laycock”.

45. The lodgement of DP 2837 in conformity with s 100 strongly supports the inference that the NBLI Company intended to dedicate the road alignments depicted on it as public roads, including the Wharf Road Alignment: Campbelltown Municipal Council at 422; [9].

46. The Plaintiffs see further support for that inference from an advertising brochure apparently used by the NBLI Company from 1890. The brochure depicted the full layout of the planned subdivision with each lot numbered from 1 to 47 in accordance with DP 2837 as subsequently registered. In addition to the other eleven roads, the advertising brochure depicted the Wharf Road Alignment and labelled it “Wharf Rd”. The network of roads within the subdivision was depicted in the advertising brochure as connected to Kempsey Road and Rollands Plains Road. The brochure includes the following text: “Note: All Roads are 1 Chain Wide”. The evidence does not address the significance of a road being one chain wide, although at 363 in the Narracan case Griffiths CJ contrasted such a road with “a mere track”.

47. The evidence does not address the dissemination of the advertising brochure. An inference may be drawn from the fact that it was designed and produced that the NBLI Company promoted sales of the land in accordance with the brochure. The brochure proclaimed an auction to take place on 22 February 1890. There is evidence of an advertisement in the Sydney Morning Herald on 22 February 1890 stating that the auction was postponed by rain. An auction on an “early date” was again advertised in the Sydney Morning Herald on 22 March 1890. The lots were advertised in the Cumberland Mercury and Paramatta Gazette on 8 August 1891 and 19 September 1891 respectively. Use of the advertising brochure and promotion of the subdivision in accordance with it may further be inferred from the fact that DP 2836 was subsequently registered and eighteen of the depicted lots sold.

48. There is a clear inference from these facts that, viewed objectively, the NBLI Company intended to dedicate the Wharf Road Alignment as a public road together with the other eleven roads depicted on DP 2837. In the words of Menzies J, it would be an artificial and unreal conception to conclude otherwise.

49. In this regard a number of features of the intended subdivision warrant emphasis. The 47 lots are large by urban standards but not by rural standards. The newspaper advertisements proclaimed suitability for dairy farming and fruitgrowing. Had all 47 lots been sold to different purchasers, a rural community of 49 households would have emerged, taking into account the separate land already owned in the neighbourhood by JT Hughes and the Freeman family.

50. There were a number of roads depicted in DP 2837 as extending to the external boundary of the intended subdivision even though access to all 47 of the subdivided lots could have been achieved more efficiently by shorter roads which ran to the nearest point of each lot and no further. In addition to the Wharf Road Alignment itself, each of Marks Road, Hastings Road, Freemans Road, Hughes Road, Rawson Road and Naret Road extended (unnecessarily) to the boundary of the subdivision. The extension of three of these roads is telling. Marks Road was depicted as extending the full length of Lot 1 with the apparent purpose of providing access to and from external land beyond the eastern edge of the land in DP 2837. Each of Freemans Road and Hughes Road appears to have had no purpose other than to provide access to and from the land of JT Hughes and the Freeman family even though that land was not part of the subdivision by the NBLI Company. People going to and from these external lands may have had nothing to do with landholding within the subdivisions. That includes JT Hughes. It also includes the Freeman family. Although the Freeman family subsequently purchased lots within the subdivision, their original landholding was separate. In relation to the subdivision, these outsiders are properly described as the general public.

51. Another important matter is that it is wrong to view the Wharf Road Alignment as running from existing public roads to an isolated dead end bounded by a peninsula in a bend of the Hastings River and otherwise cut off by bush. Such an image might be conveyed by subsequent events, especially the NBLI Company’s failure to sell other lots to more people, the creation of the State Forest between the sold lots and the existing public roads and the invention and widespread adoption of the motor car. However, the NBLI Company’s intention is to be ascertained as at 1892. When DP 2837 was registered, public roads for horse drawn vehicles was only one part of a broader transport framework. Another important part was water-borne craft. The subdivision road network touched the Hastings River and its tributaries at four places, unnecessarily so for a community which was intended to be accessed only by road. The evidence proves the prior existence of a wharf at the end of the Wharf Road Alignment, the pillars of which are still standing. The newspaper advertisements in 1890 and 1891 highlighted river access to the subdivision (and a planned railway to the west). The advertising brochure offered transport to the on-site auction by steamer.

52. By 1890 Port Macquarie was already located at the nearby estuary of the Hastings River. It may well have been intended that the general public might transport people and goods from Port Macquarie to the interior not only by using Telegraph Point Road but also by barge to the wharf at the end of the Wharf Road Alignment and thence up to Telegraph Point Road and beyond. From the (unknown) time when dairy production began within the subdivision until 1961, a barge took the dairy produce away and returned the empty cans. The evidence proves that the barge collected dairy produce not just from farms operated by the Freemans, the Downes and the McInhernys but also from other farms accessed from other wharfs. There may have been dairy farms to the north of Telegraph Point Road which used the wharf at the end of the Wharf Road Alignment to access the barge, although the evidence does not address that possibility.

53. Apart from dairy produce, there is plausible evidence that the Hastings River was “pivotal to mercantile trade” which included milling, sugar and timber. There have always been forests to the north of the Freemans’ land from which timber has been harvested. The Wharf Road Alignment may have been used to transport other goods to the wharf for on-shipment to Port Macquarie. There is evidence that the Downes family owned land on both sides of the Hastings River between which transport by boat would be expected in the closing decade of the nineteenth century and the opening decades of the twentieth century.

54. Whether or not any particular use of the Wharf Road Alignment actually occurred is not relevant for current purposes. The intention of the NBLI Company when it registered DP 2837 is to be considered in the context of the road network depicted in the plan. The road network included ten separate access points to the outside world: three to existing public roads, three to adjacent lands which were not included in the subdivision and four to the Hastings River. Viewed through 1890 eyes, it depicted a central hub for transport throughout the surrounding district.

55. The fact that the NBLI Company’s original subdivision plan was not subsequently achieved and lots were only ever sold in one part of the subdivision (and only to three families) does not negate the intention of the NBLI Company when DP 2837 was registered. Nor does the fact that roads have now come to dominate transport in Australia, not river transport.

56. Another important aspect of the case is that the subdivision contemplated by DP 2837 was clearly intended to dispose of the entire parcel of land which the NBLI Company owned. In other words, the NBLI Company intended to dispose of all 47 lots and the twelve road alignments depicted in DP 2837. As may be inferred from the name of the company (“building land and investment”) and from the plan of subdivision which the company drew up, it was no part of the NBLI Company’s plan to retain ownership of some of the subdivided lots. The NBLI Company operated from Pitt Street in Sydney and produced the advertising brochure in which it offered all 47 lots for sale. If, as it obviously intended, the NBLI Company succeeded in selling all 47 lots, there would have been no sensible reason for it to retain ownership of the twelve road alignments. On the contrary, permanent ownership of the road alignments without any remaining interest in the surrounding land would have subjected the NBLI Company to a perpetual burden of road maintenance without the inclination (let alone the means) to discharge that burden. Such an outcome would have been uncommercial and not something which the NBLI Company should be taken to have intended.

57. Confronted with that commercial reality, counsel for Mr McInherny accepted at the trial that “the developer had in mind that at some point there would be public roads”. It was further conceded that “it was anticipated that if the subdivision described in the Irvine estate completed, with its various road connections, that these roads would become public roads”. The concessions seem inescapable.

58. The evidence establishes that in 1892 the NBLI Company dedicated the road network depicted in DP 2837 as public roads, including the Wharf Road Alignment for its full length from Kempsey Road to the Hastings River bank reserve.

Acceptance by the general public

59. The Plaintiffs contend that acceptance of the dedication may be inferred from conduct. The Plaintiffs rely on the following conduct by purchasers of lots in the subdivision:

(a) in 1892 the McInherny family purchased lots (Lots 7 and 8) which, although not immediately adjacent to the Wharf Road Alignment, were adjacent to Hastings Road which had no access to the nearest public road other than via the Wharf Road Alignment; (b) in 1892 lots adjacent to, and only accessible by road from, the Wharf Road Alignment were purchased by Mr Downes (Lots 9, 10 and 11) and Mr Garrett (Lot 12); (c) in 1899 the McInherny family purchased further lots (Lots 1, 2 and 3) which were adjacent to Hastings Road and Marks Road and had no access to the nearest public road other than via those roads and thence the Wharf Road Alignment; (d) at some unknown date a road was physically formed along the Wharf Road Alignment; (e) the purchasers all subsequently used the Wharf Road Alignment to access their land by road; (f) the purchasers’ access included using the Wharf Road Alignment (either from Kempsey Road or possibly from the wharf on the Hastings River) to transport materials and labour necessary to build houses to live in, including Mr Downes in about 1899 or 1900; (g) in about 1902 and 1904 the erstwhile mortgagee of the now failed NBLI Company sold further lots to the Freeman family (Lots 13–18), all of which were adjacent to the Wharf Road Alignment – the Freeman family already owned neighbouring land and by purchasing Lots 13–18 the neighbouring land became contiguous with the Wharf Road Alignment and thereby accessible to the nearest public road; (h) the Freeman family built a house on its land in about 1900 (and in any event before 1920); (i) in 1903 land was sold within the subdivision when Mr Garrett sold Lot 12 to the Freeman family; and (j) in 1905 the mortgagee sold to the McInherny family the entire residue of the subdivision (including Lots 4, 5 and 6 which were adjacent to the Wharf Road Alignment).

60. There is evidence that until recently the physical use of the road followed the Wharf Road Alignment as a straight line except that a minor deviation occurred just north of the intersection with Hastings Road where the gradient of the natural slope diverted cars (and presumably before that carriages) slightly onto Mr McInherny’s Lot 6. In the context of the Wharf Road Alignment as a whole, the deviation was de minimis. In any event, the aerial photographic evidence shows that once the steep slope was passed the line of traffic returned to the Wharf Road Alignment. The interruption does not affect the outcome of the case.

61. The Plaintiffs also rely on the conduct of the mortgagee in a broader sense. In September 1892 the Commercial Banking Company of Sydney (which I will refer to as the Bank) lent £18,000 to the NBLI Company on the security of a registered mortgage. The mortgaged land was described as the land comprised in the NBLI Company’s “application to bring lands under the provisions of the Real Property Act numbered 8395”. DP 2837 was issued by the Registrar-General as a result of Primary Application 8395. Thereafter the Bank’s mortgage was reinstated after each lot was sold by the NBLI Company. The evident commercial purpose of the transaction was for the Bank to finance the NBLI Company‘s subdivision venture and to be repaid out of the proceeds of sale of the 47 lots. The Bank’s willingness to lend on the security of the subdivision supports the inference that the general public (of which the Bank was a part) accepted the dedication of public roads proffered by the NBLI Company. The saleability (and hence the value) of the lots within the subdivision presupposed access to each lot by public road (whether it be from Kempsey Road, the wharf at the end of the Wharf Road Alignment or one of the other access points contemplated by the subdivision road network).

62. Although the conduct by the Bank was not physical use of the Wharf Road Alignment, it is still relevant to inferring acceptance of the dedication. As Menzies J said in the Campbelltown Municipal Council case at 415; [6], the inference may be drawn from documentation, including private transaction documents concerning the land. The Bank’s conduct from 1892 supports the Plaintiffs’ case on acceptance of the dedication.

63. The Plaintiffs further rely on conduct by the Council. On 5 February 1910 the Council wrote to the Lands Department and enclosed a lithographic map of the County of Macquarie on which the Council had marked in red the roads over which the Council “wishes to assume control”. The attached map was small in scale and by modern standards lacked precision. The parties agree that it depicted in red a road running down the Wharf Road Alignment from the intersection with Telegraph Road to a point which is approximately halfway to the Hastings River. At that point there was another road depicted in red which ran at a right angle away to the east. It is unclear whether that perpendicular road was Hastings Road as depicted in the original subdivision or whether it was another road (Swamp Road) which was further north near the northern boundary between the McInherny Lots 1, 3, 4, 5 and 6 and land outside the subdivision. The proportions and lengths depicted on the map and the broad geography of the Hastings River suggest that the latter is more likely. In any event, there is no dispute that the map depicted the northern part of the Wharf Road Alignment as a road over which the Council wished to assume control in 1910.

64. The Council evidently got its wish. The Council’s minutes record that on 19 March 1912 the Council resolved that an engineer be instructed to inspect and report on “the road heading from the main road to M’Inheney and others”. The Plaintiffs submit that this is a reference to the Wharf Road Alignment. That is plausible. The evidence shows that at some unknown but early time a road was physically formed and used along the Wharf Road Alignment. The road was described in the minutes as running not only to the land owned by the McInherny family but also to “others” which is consistent with the pattern of land ownership in 1912 which included the Freeman family, Mr Downes and possibly JT Hughes (see further below). Mr McInherny submits that the Council minutes could instead have been referring to a road coming to the land owned by the McInherny family from the east and joining up with the Hastings Road Alignment (or further north with Swamp Road). There is no evidence of such a road other than the perpendicular red line depicted on the 1910 lithographic map. If such a road existed, it would have been inapposite to describe it as going “to M’Inheney and others”. Without more, the existence of this alternative road does not rise above speculation.

65. On the balance of probabilities I accept the Plaintiffs’ submission that the minutes show that in 1912 the Council sent an engineer to inspect the Wharf Road Alignment. It was described in the minutes as a “road”. It was sufficient to warrant the Council’s attention. The inspection must have been required as least as far south as the intersection with Hastings Road because by 1912 Mr Downes had built a house on his land. Given the existence and use of the wharf (actual or anticipated and subsequently carried out), in all probability the inspection was required all the way to the banks of the Hastings River.

66. The Council’s minutes further record that on 18 June 1912 the Council received a report from the engineer that the “Road to McInhernys” served three settlers, which would most likely be the McInherny family, the Freeman family and Mr Downes. The “necessary work would cost about” £3d. The amount was not provided for in “this years estimate and if the work is to be carried out it must be taken from the other Votes”. The minutes record that this item was “Adopted”.

67. The minutes further record that on 20 August 1912 the engineer reported that the work on “McInherney’s Road” “as approved by the council” had been arranged and should be in progress by the end of the month.

68. On 22 October 1913 the Council again considered the “Road out from McInherney’s near Blackman’s Point” and resolved that the balance of the amount voted (£4) be expended when “the Maintenance Man is in the district”.

69. Both parties also drew attention to events after 1920. As set out above, conduct by the general public or Council after 1 January 1920 is not directly relevant to acceptance of the dedication of the Wharf Road Alignment as a public road. However, subsequent events may throw light on the inference to be drawn about acceptance prior to 1 January 1920. The further removed from 1920, the less probative the evidence will be.

70. There is evidence from a number of sources that the minute books for meetings of the Council are missing for the period between April 1922 and September 1947 and for the period between May 1951 and 1959. Given the explanation, the absence of evidence about the Council’s attitude during those periods does not support an inference either way.

71. For their part, the Plaintiffs point to evidence of local landowners using the Wharf Road Alignment and the Council’s maintenance of a road down the Wharf Road Alignment throughout the first half of the twentieth century. Specifically, the evidence demonstrates the following:

72. until much more recent times, the only road access used by the McInherny family and Mr Downes to their respective land has been by the Wharf Road Alignment;

73. the Freemans only ever accessed their land via the Wharf Road Alignment, both before and after the introduction of the motor car;

74. the Freemans extended their house, most likely in the first half of the twentieth century;

75. the Freemans lived at and farmed their land. The farming activity included dairy farming, an aspect of which was transportation of dairy produce to the wharf at the end of the Wharf Road Alignment from where it was taken away by barge;

76. aerial photographs from 1942 show the Wharf Road Alignment stark against the surrounding countryside in a way which is consistent with there being no other roads in the neighbourhood;

77. during World War II Mr Downes sold farming equipment from his property with customer access via the Wharf Road Alignment;

78. the Council’s minutes record that on 28 August 1950 the Council resolved to compensate Mr Freeman for “work on McInherney’s Road”, which can only be a reference to a road located on the Wharf Road Alignment (given the location of the Freemans’ land there would be no reason for Mr Freeman to have worked on any other road even if one existed);

79. in the late 1950s the Department of Main Roads used the Wharf Road Alignment to cart road material from a quarry located on the McInherny land;

80. a second house was built by the Freeman family in 1963 which, whilst not on land originally acquired from the NBLI company, only had road access via the Wharf Road Alignment;

81. the evidence of the Council’s earliest inactivity in terms of maintenance of the Wharf Road Alignment is in the 1980s; and

82. the evidence of the Council’s earliest antipathy to a maintenance obligation is in the 1990s.

83. Lyle Freeman gave evidence in these proceedings at the age of 90. He remembers riding his bike on his way to school past workmen working on the road on the Wharf Road Alignment. The work was undertaken regularly using machinery which was originally horse-drawn and "manual" but which was modernised over time. Mr Freeman said that the work was performed by the Council up until about 1980.

84. On the balance of probabilities, Mr Freeman’s evidence ought to be accepted, including his evidence that the workmen worked for the Council. That is for the following reasons:

(a) Mr Freeman’s evidence is consistent with the continuation of the work contemplated by Council’s minutes in 1912 and 1913; (b) Mr Freeman knew one of the workers personally and from time to time stopped and chatted with him as an acquaintance. Mr Freeman said that the acquaintance knew his family and was employed by the Council; (c) although he is elderly I found Mr Freeman to be a sharp and precise witness who gave his evidence in a straightforward and matter-of-fact way. His evidence was sprinkled with occasional details of which he clearly had a genuine recollection. One such detail was that the family acquaintance worked for the Council; and (d) there is no plausible alternative to the conclusion that the road work was undertaken by the Council. Mr Freeman’s evidence is suggestive of regularity, systemisation and growing mechanisation of the maintenance, which seems inconsistent with work being undertaken by a coalition of willing local landowners. Neither Mr Freeman nor Mr McInherny (who is also elderly) gave evidence about any such an arrangement in the twentieth century, formal or informal. In his submissions, Mr McInherny suggested that the Forestry Commission, which regularly logged the nearby forests, might be an alternative candidate for the provider of road maintenance but there is no evidence to support that suggestion. Mr Freeman’s daughter gave evidence of seeing machinery which was Council yellow, not Forestry Commission green. Mr McInherny also referred to the Department of Main Roads, but the suggestion that the road might have been maintained by the Department of Main Roads makes no sense in a contest between a public road for which the Council is the relevant road authority and a private road over which locals have private rights of way.

74. Although removed in time, these matters lend some support to the inference that prior to 1920 the general public and the Council had accepted the dedication of a public road along the Wharf Road Alignment. They are consistent with a continuous pattern of conduct which commenced before 1920.

75. Mr McInherny points out that even on the Plaintiffs’ case there is no evidence of the Council maintaining the Wharf Road Alignment after the 1970s. He further emphasises that in the 1990s and 2000s the Council began actively to deny that there was a public road. As part of Mr McInherny’s effort to have rights of way recorded on the Register in 2023 the Council informed the Registrar-General that it could locate no evidence that the Wharf Road Alignment was a public road. Mr McInherny placed especial reliance on the Council’s attitude in 2023. When these proceedings commenced the Council initially participated as an active defendant, apparently to resist the Plaintiffs’ claims. Even though the Council ultimately decided to file a submitting appearance, the more recent conduct by the Council is inconsistent with the inference that the dedication of a public road was accepted prior to 1920.

76. Very little weight can be given to the attitude displayed by the Council since the 1960s, it being more removed from the time relevant to acceptance of the dedication. The Council’s more recent attitude has evidently been hampered by the lost Council minutes. In any event the acceptance of the public road dedication turns on a finding of fact about events before 1920 which the Court is now required to make.

77. Mr McInherny further points out that there is no evidence that the dedication of other public roads was accepted within those parts of the original subdivision where no lots were ever sold. The lion’s share of the original subdivision never sold and the evidence indicates that it has physically remained undisturbed bush throughout. No work was ever done physically to form any roads other than along the Wharf Road Alignment, Hastings Road and possibly parts of Marks Road. Mr McInherny submits that the Court ought therefore find that the dedication of the entire public road network proffered by the NBLI Company was never accepted.

78. This submission may be accepted at a factual level but it does not have the significance for which Mr McInherny contends. Whilst the NBLI Company dedicated the whole of the road network, there is no reason to find that the dedication was proffered as a single indivisible whole. The public roads which were created by the dedication are to be ascertained by the extent of the acceptance by the general public. In the Campbelltown Municipal Council case the Court considered the status of one of the many road alignments left in a plan of subdivision by reference to the general public’s use of the particular road in question. No issue is raised in these proceedings about any land other than the Wharf Road Alignment. All the conduct of acceptance set out above is directed to that specific strip of land. The inference of acceptance to be drawn from the conduct in relation to the Wharf Road Alignment is not undermined by the fact that the general public did not accept other roads which were dedicated at the same time.

79. The inference to be drawn from the evidence as a whole is that by 1 January 1920 the dedication of a public road along the Wharf Road Alignment had been accepted by the general public, both directly and by the Council on the public’s behalf. The inference of acceptance applies to the entire length of the Wharf Road Alignment. The evidence of acceptance is stronger for that part of the Wharf Road Alignment which runs north from the intersection with Hastings Road. The evidence about acceptance of the dedication south of the intersection with Hastings Road to the banks of the Hastings River is less strong. It is nonetheless sufficient on the balance of probabilities. It includes the fact that the Hastings River lay to the south, there was a wharf physically constructed at the southern most part of the road, there is no suggestion that use of the wharf was restricted to landowners within the subdivision, on the balance of probabilities the wharf was used to transport dairy products before 1920 (given that the Freeman family, the McInherny family and Mr Downes evidently commenced dairy operation after their respective acquisitions of the land, in each case well before 1920), the Freemans’ residence was located well to the south of the intersection with Hastings Road and the Bank lent money on the security of the land which was depicted in DP 2837. In this respect, the dedication by the NBLI Company was constituted by the registration of DP 2837, which depicted the Wharf Road Alignment running down to the banks of the river. For such a dedication, no great amount of public use was necessary to make the dedication complete: the Campbelltown Municipal Council case at 423; [6]–[7].

Summary

80. It follows that by 1920 a public road existed along the full length of the Wharf Road Alignment from Telegraph Point Road to the river bank reserve.

Subsequent statutory enactments

81. Subject to Mr McInherny’s contrary arguments, the public road continues to exist today. On 1 January 1907 the Local Government Act 1906 commenced in which public road was defined to mean a “road which the public are entitled to use.” By s 75, control and management of all public roads was given to the local council. In this respect, the Local Government Act 1906 essentially repeated the provisions of the Local Government (Shires) Act 1905 (NSW). If the dedication of the Wharf Road Alignment had been accepted by 1906, control and management was given to the Council at that time.

82. On 1 January 1920 the Local Government Act 1919 commenced. The term “public road” was defined in s 4 as:

[R]oad which the public are entitled to use, and includes any road dedicated as a public road by any person or notified proclaimed or dedicated as a public road under the authority of any Act, including this Act, or classified as a main road in the Gazette of the thirty-first day of December, one thousand nine hundred and six.

83. Part IX of the Local Government Act 1919 made provisions for public roads. Section 222 provided:

This Act shall apply to a public road notwithstanding that it may not at the commencement of this Act have been approved, accepted, and taken over by or been placed or taken under the care, control, and management of a council under the Local Government Act. 1906, or any Act repealed by that Act.

84. Section 232 provided:

(1) Except where otherwise expressly provided, every public road, and the soil thereof, and all materials of which the road is composed, shall by virtue of this Act vest in fee-simple in the council, and the council, if it so desire, shall by virtue of this Act be entitled to be registered as the proprietor of the road under the provisions of the Real Property Act, 1900.

(2) The vesting in fee-simple under this section shall be deemed to be not merely as regards so much of the soil below and of the air above as may be necessary for the ordinary use of the road as a road, but so as to confer on the council subject to the provisions of this Act the same estate and rights in and with respect to the site of the road as a private person would have if he were entitled to the site as private land held in fee-simple with full rights both as to the soil below and to the air above.

(3) Unless otherwise expressly provided nothing in this section shall be deemed—

(a) to affect any express or implied dedication to the public;

(b) to affect any existing right of the Crown or of any person in respect of any easement or under the provisions of any Act, except in so far as the council is authorised by or under this Act to control and regulate the digging up of public roads;

(c) to affect any right of the Crown or of any person in respect of any minerals below the surface of any road;

(d) to authorise the council to grant, demise, dispose of, or alienate the road or the soil or materials thereof;

(e) to impose on the council any liability in respect of any rate under any Act or in respect of any dividing fence under the Dividing Fences Act, 1902, or any liability in any case where the council would not be subject to the liability if this Act conferred on the council the case, control, and management of the road and did not vest the road in fee-simple in the council; or

(f) to prevent any land from being considered as adjoining within the meaning of section one hundred and twenty-four of the Public Works Act, 1912.

(4) This section shall bind the Crown.

85. It follows that on 1 January 1920 the Wharf Road Alignment vested in fee simple in the Council whether or not the NBLI Company’s dedication had been accepted by 1 January 1907.

86. Upon vesting, the Council became entitled, though not obliged, to be registered as the proprietor of the road.

87. In 1993 the Roads Act 1993 commenced. Transitional provisions are contained in Sch 2. Relevantly, cl 15 provides:

Any road that, immediately before the relevant commencement, was a public road is taken to be a public road within the meaning of this Act.

88. Section 7 relevantly provides that Council is the roads authority for a public road such as that situated on the Wharf Road Alignment. Section 145 provides that all public roads within a local government area (other than freeways and Crown roads) “are vested in fee simple” in the Council.

89. By reason of these statutes, the public road along the Wharf Road Alignment has subsisted as a public road to the present day. The question then is whether Mr McInherny’s contrary arguments warrant a different conclusion.

Mr McInherny’s contrary arguments

Rights of way instead of a public road

90. The first argument is the positive contention that the correct interpretation of the events at the end of the nineteenth century and the beginning of the twentieth century is not the dedication and acceptance of a public road but the creation of implied private rights of way.

91. Mr McInherny’s argument involves a path of reasoning which is comprised of four propositions:

(a) an intention to dedicate a public road will not arise if there is an alternative explanation for the landowner’s conduct; (b) such an alternative explanation will exist where there is a scheme of creating private rights of way which will provide the access for which the public road would otherwise be necessary; (c) such a scheme appears on the Register in this case; and (d) the existence of such private rights of way is inconsistent with a public road over the same land.

92. Mr McInherny’s first proposition is based on the judgment of Griffith CJ in the Narracan case. In that case the local shire initially had a right to resume certain Crown land for a highway upon payment of compensation to the licensee, Mr Turner. An implied agreement was found to have been formed under which Mr Turner would immediately permit the public to use the land pending a future resumption and compensation payment. Mr Turner’s interest in the land subsequently changed and was transferred to others and, ultimately, to Mr Leviston, by which time the local shire had lost the right to resume the land for a highway. The local shire then contended that the conduct of the successive owners and the general public constituted a dedication of a public road which had been accepted. The contention was rejected. In his Honour’s judgment at 859, Griffith CJ said:

“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 by Patteson J., 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?”

93. The flaw in Mr McInherny’s argument is that it takes two words from this passage (“if unexplained”) and elevates them to a principle of law that there will be no public road unless the Plaintiffs eliminate all possible alternatives.

94. The Narracan case neither adds to nor detracts from the general principles set out above. Both in relation to dedication by the landowner and acceptance by the general public, the task is to ascertain the parties’ objective intentions having regard to all the circumstances of the particular case. That is the exercise undertaken in the preceding part of this judgment. The Narracan case simply demonstrates that there may be cases where a different conclusion is arrived at because the facts demonstrate that it was not the intention of the landowner to dedicate a public road even though the landowner permitted the general public to use the land as a road over a lengthy period of time. The facts in the Narracan case are far removed from the facts in the present case. Unlike the Narracan case, the dedication in this case is not inferred simply from the NBLI Company permitting continuous use over a lengthy period but from the matters referred to above, especially the lodgement of DP 2837.

95. Mr McInherny’s second proposition proceeds from the following passage in The Council of the City of Shoalhaven v The Director-General National Park**s & Wildlife Service & Ors [2004] NSWCA 163, where Bryson JA (with the agreement of Ipp JA and Cripps AJA) said at [26]:

“The project of subdividing land into allotments with a view to their sale could not be achieved unless roads were created and the allotments had road frontage and access to the general road system. It is only on the basis that the roads were public roads that any address could be made to proposing purchasers; nobody would be interested in buying allotments on any other basis. There is no indication of any scheme of creating private rights of way; if there had been any such scheme, the private rights of way would have clearly appeared at many places in the Torrens Register.”

96. Mr McInherny emphasises the last sentence (albeit a negative proposition on the facts in the Shoalhaven case) and submits that there was a scheme of creating private rights of way in the NBLI Company’s subdivision. He concedes that no such scheme was expressed. He is right to make that concession. The NBLI Company (and subsequently the Bank) transferred the subdivided lots variously to Mr Garrett, Mr Downes, the McInherny family and the Freeman family by way of transfers registered with the Registrar-General. None of the transfers referred to, let alone purported to create, a right of way over the Wharf Road Alignment. Had private rights of way been intended, the transfers would have been the proper place to record that intention.

97. Mr McInherny’s contention is that on the occasion of each transfer a right of way implicitly arose in accordance with the principles in Dabbs v Seaman (1925) 36 CLR 538; [1925] HCA 26. Dabbs v Seaman was a case where land under the Real Property Act 1900 was subdivided from a larger lot and transferred ultimately to Ms Dabbs. The transfer document did not refer to a right of way but it described and depicted the transferred lot as being bordered on one side by the residue lot, the immediately contiguous part of which was marked “Lane 20ft wide”. The new certificate of title issued to Ms Dabbs depicted the transferred lot and the adjacent land in the same way. The High Court accepted Ms Dabbs’ contention that her lot had the benefit of a right of way over the marked lane because it was implied from the depiction of the land in the original transfer. At 541–542 Isaacs J held the following to be good law:

“Where A, a registered proprietor of land under the Real Property Act, transfers to B a part of his land described by a plan indicating that the transferred land is bounded on one side by a 20 ft. lane situated on the other part of the transferor's land and the transfer is duly registered, then, in the absence of either a provision to the contrary on B's certificate of title or some subsequent personal legal or equitable relation to the contrary between B and the owner of the adjoining land, B, as long as he remains registered proprietor of the land so transferred and described, is entitled (1) to have the land marked “twenty feet lane” preserved as such, and (2) to a right of way over the lane.”

98. Isaacs J did not state definitively the jurisprudential basis for the entitlement of the transferee. Isaacs J addressed the proper construction of the phrase “land therein described” as it appears in s 40 of the Real Property Act 1900. At 546 his Honour held that the phrase means the parcel delimited with all the inherent characteristics with which the terms of delimitation invest it. Ms Dabbs’ lot was described by reference to a plan which depicted it as contiguous with a 20-foot lane. Isaacs J held that contiguity to the lane was an inherent characteristic of the lot described. His Honour referred to a number of cases where a sale of land which was described as “abutting” upon a road precluded the vendor subsequently from disputing the purchaser’s right to access the road. At 552, Isaacs J considered that the existence of a right of way benefitting Ms Dabbs’ lot depended upon the natural import of the word “lane” as used by the document which was before his Honour. His Honour construed the word as denoting a means of access to two or more lots which, in the absence of an alternative candidate, meant the vendor’s residue lot and Ms Dabbs’ lot. It appears that Isaacs J considered that Ms Dabbs’ entitlement essentially arose by way of an estoppel. His Honour referred both to conventional estoppel and estoppel by deed.

99. In a separate judgment Starke J agreed on the outcome of the case. Starke J said at 573–574 that Ms Dabbs’ lot was benefitted by a right of way over the lane depicted in the residue certificate of title either by reason of an implication from the description of the land in the transfer or by reason of an estoppel.

100. Although the judgment in Dabbs v Seaman was not handed down by the High Court until 1925 (after the intention of the NBLI Company is to be determined), Mr McInherny submits that the result was heralded in Little v Dardier (1891) 12 NSWLR (Eq) 319. In Little v Dardier Owen CJ in Eq held that where a vendor conveys land described as “bounded” by a street or road, the vendor is estopped from disputing that there is a right of way granted to the purchaser over the street or road.

101. In the present case Mr McInherny approached this issue at a high level of generality, contending for the existence of a “Dabbs v Seaman right of way”. His submissions focussed on an abstract proposition of law and not so much the facts. Neither Dabbs v Seaman nor Little v Dardier lays down a principle of general application which is determinative of the legal status of the Wharf Road Alignment. In any particular case, whether a right of way has arisen by implication from the terms of a transfer or by estoppel is to be determined by the construction of the words (and plans) in the transfer and possibly also by reference to the conduct of the parties.

102. In the present case, all the relevant transfers occurred under the Real Property Act 1862 and the Real Property Act 1900. There is a degree of standardisation in the transfer documents. The first transfer, registered Transfer 202479, was the transfer of Lots 9–11 to Mr Downes on 24 October 1892. That document was typical. The transferred land was described as:

“All [the NBLI Company’s] Estate and Interest, as such registered proprietor, in ALL THAT piece of land containing one hundred and seventeen acres two roods and seven perches situate in Partish of Cairncross County of Macquarie being part of the land comprised in Certificate of Title dated the 28th September 1892 registered volume No. 1070 folio 177 and being lots 9, 10 & 11 on Plan deposited in the Land Titles Office Numbered 2837.”

103. Apart from the cross reference to DP 2837, Transfer 202479 did not include a plan. Deposited Plan 2837 is described above. Although the words “abutting” and “bounded” were not used, DP 2837 depicted Lot 11 as immediately adjacent to the Wharf Road Alignment, and also to Hastings Road. Lots 9 and 10 were depicted as contiguous with Lot 11 and immediately adjacent to Hastings Road but not the Wharf Road Alignment.

104. The words used to describe the land in Transfer 202479 were expansive. The description expressly incorporated DP 2837. Properly construed, it may be accepted that Lot 11 (and possibly also Lots 9 & 10) was to be transferred with all the inherent characteristics of land immediately adjacent to a “road” and that those characteristics included an entitlement to use the road. If Mr Downes had otherwise been without a right to enter upon and use the Wharf Road Alignment as a way to access the nearest public road (and possibly the wharf, even though Mr Downes’ land had its own river frontage) a private right of way would have been necessary to ensure that Mr Downes did not receive land without road access to the outside world. Applying the reasoning in Dabbs v Seaman, it would have been arguable that the transfer included a private right of way. The original transferor (the NBLI Company) and, as addressed in Dabbs v Seaman, its successors to the title of the residue lot may also have been estopped from asserting otherwise.

105. However, by expressly incorporating DP 2837, Transfer 202479 is to be construed in the context of DP 2837 as a plan of subdivision. Any question of estoppel would also have be considered in that context. For the reasons given above, the intention of the NBLI Company which is objectively ascertained from DP 2837 is that the Wharf Road Alignment would be dedicated as a public road. In particular, the NBLI Company registered DP 2837 when s 100 of the Real Property Act 1862 provided for the deposit of a plan which depicted “all roads streets passages thoroughfares square or reserves appropriated or set apart for public use”. I have underlined the word “public”. This is a material difference to the transfers in Dabbs v Seaman (where the plan relevantly related to two lots only and the lane was depicted as being part of the vendor’s residue lot) and in Little v Dardier (where there was no plan of subdivision). Were the dedication to be accepted, the purchaser of Lot 11 would by definition be entitled to use the Wharf Road Alignment without the need for a private right of way.

106. Construed in that context, there is no room for the implication into Transfer 202479 of a private right of way, and certainly not one which would have operated to the exclusion of a public road should the dedication be accepted. Nor is it apparent why the NBLI Company would have been estopped from denying that there was a private right of way when it had dedicated a public road. The early transfers to Mr Garrett, Mr Downes and the McInherny family occurred in 1892 when the NBLI Company’s subdivision was evidently in progress. The transfers are to be construed (and any estoppel considered) as at that date. Regard may not be had to the subsequent failure of the subdivision.

107. Mr McInherny has not made good his second proposition.

108. Nor is Mr McInherny correct with his third proposition that private rights of way over the Wharf Road Alignment appeared on the Register. At no time prior to the conclusion of the trial in these proceedings did the Register contain a record of or reference to any such right of way. The first time such a record appeared was 31 July 2025 when the Registrar-General acceded to Request AU148714 which had been lodged by Mr McInherny to add a notification of private rights of way over the current title for the Wharf Road Alignment.

109. As stated above, none of the registered transfers by the NBLI Company (or the Bank) referred to a right of way over the Wharf Road Alignment. Nor was any such right of way ever registered as a separate dealing.

110. Had rights of way come into existence, it was possible for them to be recorded on the certificate of title for any parcel of land which benefitted from them and also for the land which was burdened by them. Section 43 of the Real Property Act 1862 provided as follows:

Whenever any easement or any incorporeal right other than an annuity or rent charge in or over any land under the provisions of this Act is created for the purpose of being annexed to or used and enjoyed together with other land under the provisions of this Act the Registrar General shall enter a memorial of the instrument creating such easement or incorporeal right upon the folium of the Register Book constituted by the existing grant or certificate of title of such other land.

111. Section 47 of the Real Property Act 1900 was in largely the same terms. Despite these provisions, none of the new certificates of title issued to the purchasers of lots recorded the benefit of a right of way over the Wharf Road Alignment. There is no dispute about that.

112. Mr McInherny’s contention is that private rights of way over the Wharf Road Alignment were referred to in the certificates of title for the residue lot which were issued successively to the NBLI Company, the Bank and ultimately the McInherny family. None of those certificates of title specifically referred to rights of way over the Wharf Road Alignment but Mr McInherny submits that they were included in general notifications.

113. Chronologically, the first certificate of title for the residue lot was Volume 1089 Folio 182 which was issued to the NBLI Company on 8 April 1893 after the first sale of lots to Mr Garrett, Mr Downes and the McInherny family. The details of that Certificate of Title are set out in the Schedule at paragraph [10]. That Certificate of Title does not support Mr McInherny’s argument but contradicts it. Despite the requirement of s 43 of the Real Property Act 1862, the Certificate of Title did not make any reference (general or specific) to rights of way over the Wharf Road Alignment. On Mr McInherny’s case, at least three “Dabbs v Seaman” rights of way had been created in 1892 when the NBLI Company sold the lots to the earliest purchasers. On Mr McInherny’s case, the omission of the rights of way from Certificate of Title Volume 1089 Folio 182 in inexplicable. If there was error, it occurred in the documentation of three separate transactions on at least two separate dates (the transfers to Mr Downes and the McInherny family may have occurred on the same date).

114. The next certificate of title for the residue lot was Volume 1291 Folio 77 which was issued to the NBLI Company on 12 August 1899 after the sale of further lots to the McInherny family. The details of that Certificate of Title are set out in the Schedule at paragraph [11]. It included the same two notifications as Certificate of Title Volume 1087 Folio 182 plus a third notification which referred to rights of way. All three notifications are set out here:

“Reservations of all mines of gold and silver.”

“Reserving thereout Kempsey Road and Rollands Plains Old Road each 1 chain wide respectively coloured brown on plan hereon.”

“This Certificate of Title is issued subject to all rights of way over the Roads shown on deposited plan No 2837 existing in respect or by virtue of the several transfers registered for the several lots shown by green edging on the said deposited plan.”

115. There is no dispute that the lots shown by green edging are the lots which had previously been sold to Mr Garrett and Mr Downes and all the lots which had been sold to the McInherny family as at 12 August 1899.

116. Mr McInherny submits that the third notification is evidence that a scheme of creating private rights of way existed in accordance with the reasoning of Owen CJ in Eq in Little v Dardier and subsequently articulated by the High Court in Dabbs v Seaman. He argues that there is no evidence of any other rights of way so the third notification must have been a notification of “Dabbs v Seaman rights of way”.

117. The argument raises a question of the proper construction of the third notification. To some extent the text of the notification was specific. It referred to the transfers which had already occurred for lots identified in DP 2837 and edged green. The location and route of the rights of way were specified as “over the Roads shown on” DP 2837.

118. In other ways the text of the notification was generic. The rights of way were not enumerated (“all”). Nor were the transfers of the lots edged green (“several”). The description of the location and route of the rights of way was also generic in the sense that twelve “Roads” were shown on DP 2837, many of which were entirely unrelated to the lots edged green and all of which were unrelated for their full length. Had some rights of way arisen in accordance with the reasoning in Dabbs v Seaman, they would have been different for each lot.

119. The third notification gave two alternatives for the relationship between the existence of the rights of way and the transfers (“in respect of” or “by virtue of”) although that may be explained by unconfident or cautious drafting. Neither alternative is particularly apposite as the description of the relationship between the right of way and the transfer which was addressed in Little v Dardier, an estoppel case. As at 1899 Dibbs v Seaman had not yet been decided.

120. The subject matter of the notification informs the construction. A right of way not expressed but arising by implication or by estoppel is an inherently uncertain thing, both as to its existence and as to its content. As Dabbs v Seaman would subsequently illustrate, the existence of such a right of way depends upon the circumstances of the case, including the layout and ownership of the surrounding land. For example an implied right of way over the Wharf Road Alignment might have extended to the banks of the Hastings River for Lot 6, but not for Lot 10 which had its own river frontage. That might depend upon the importance or otherwise of the wharf infrastructure at any given time which in turn might depend upon the attributes of the Hastings River which the wharf serviced. An implied right of way might have arisen for Lot 3 if sold separately but not if sold with Lots 4, 5 and 6. The existence of a private right to way would also depend on the alternative existence of public roads along the road alignments which in turn might depend upon acceptance by the general public objectively ascertained from conduct over time. The potential for uncertainty about the existence of public roads in such circumstances is demonstrated by the 1908 amendment to s 73 of the Local Government Act 1906 by which a mechanism was introduced for the District Court to determine disputes about public roads.

121. The existence of a right of way is not something the Registrar-General would be expected to know or be capable of knowing when issuing a certificate of title. The Registrar-General would not even be capable of knowing whether rights of way existed as contemplated by those parts of the third notification which were specific: “over the Roads shown on deposited plan No 2837 existing in respect or by virtue of the several transfers registered for the several lots shown by green edging”.

122. Having regard to the generic language and the subject matter, the third notification in Certificate of Title Volume 1291 Folio 77 is to be construed not as a statement that rights of way existed in 1899, but as a notification that the NBLI Company was the proprietor of the residue lot subject to all rights of way of the kind described, should any such rights of way exist.

123. Support for this construction comes from the fact that no equivalent notification was included in Certificate of Title Volume 1089 Folio 182. Certificate of Title Volume 1291 Folio 77 expressly referred to the preceding certificate of title as part of the opening description of the circumstances in which the new certificate of title came to be issued. The new certificate of title may be construed having regard to the terms of (and omissions from) the preceding certificate of title. It may be inferred from the omission of a notification of rights of way from the preceding certificate of title that the inclusion of the third notification in the new certificate of title was intended to be a notification of a possibility rather than an established certainty.

124. Further support for this construction comes from the context of the other two notifications recorded in Certificate of Title Volume 1291 Folio 77. The first notification referred to “all mines of gold and silver”. The Registrar-General had no way of knowing whether there were any such mines on the residue land. Without any violence to the language, the first notification was clearly a generic notification with the word “all” implicitly qualified by “if any”. The same word (“all”) was used to specify the rights of way the subject of the third notification and ought to be construed consistently. By contrast, the second notification about Kempsey Road and Rollands Plains Old Road was specific. Those two roads were depicted in the certificate of title and coloured brown to identify their precise location, length and (in the text of the second notification) width. The three notifications are to be read harmoniously by giving the third notification a generic operation like the first rather than a specific operation like the second.

125. Mr McInherny also relies upon Certificate of Title Volume 1597 Folio 188 which was issued to the McInherny family on 29 March 1905 upon its acquisition of the residue from the Bank. The details of that Certificate of Title are set out in the Schedule at paragraph [15]. It contained three notifications which correspond to those in Certificate of Title Volume 1291 Folio 77 but in slightly different words. The third notation referred to:

“all existing rights of way or other rights (if any) over the roads respectively coloured brown in plan hereon and also shown on deposited plan No.2837”

The “plan hereon” depicted at least nine of the roads from the original subdivision, including the Wharf Road Alignment.

126. There is a question about whether the bracketed words (“if any”) qualified both to the disjunctive alternatives which precede them (“rights of way” and “other rights”) or just to the immediately preceding alternative (“other rights”). This is a question of construction which sometimes arises and may be decided either way depending on the context: eg, Doyle’s Farm Produce Pty Ltd v Murray-Darling Basin Authority (No.2) (2021) 106 NSWLR 41 at 63; [2021] NSWCA 246 at [75]. The former construction is harmonious with a generic operation of the notification in line with the reasons set out above for Certificate of Title Volume 1291 Folio 77, including the use of some generic language, the subject matter of the notification, the terms of the preceding certificates of title and the context of the other two notifications. The former construction of “if any” is to be preferred. In short, the third notification in Certificate of Title Volume 1597 Folio 188 stated explicitly what was implicit in the third notification in Certificate of Title Volume 1291 Folio 77. It was not a statement that rights of way existed any more than the first notification was a statement that there were mines of gold and silver present on the residue lot.

127. The fact that the notification of rights of way was expressly qualified by the words “if any” undermines Mr McInherny’s argument. It shows that in 1905 the Registrar-General did not know one way or the other whether rights of way existed over the roads depicted in DP 2837. The Registrar-General would not have been in any better position in 1899, which further demonstrates that he did not intend anything more by the third notation in Certificate of Title Volume 1291 Folio 77.

128. The last certificate of title relied upon by Mr McInherny was issued for the residue lot on 21 September 1942. Certificate of Title Volume 5345 Folio 227 was issued to the McInherny family following the transfer to the State of the northern forest part of the residue. The details of that Certificate of Title are set out in the Schedule at paragraph [19]. After the transfer of the forest, the residue lot comprised Lots 4, 5 and 6 from the original subdivision plus the Wharf Road Alignment, Freemans Road, Hastings Road and Marks Road. Certificate of Title Volume 5345 Folio 227 included a notation about rights of way which was essentially the same as that included in Certificate of Title Volume 1597 Folio 188. It included the words “if any” but not the brackets. For the reasons just given, Certificate of Title Volume 5345 Folio 227 does not assist Mr McInherny’s argument.

129. For completeness, by the time of the trial the residue lot was comprised in two Computer Folios on the Register. On 1 May 2006 the Registrar-General issued Auto Consol 5345-227 for Lots 4, 5 and 6. On 20 July 2023 the Registrar-General issued a computer folio for the Wharf Road Alignment, Freemans Road and so much of Hastings Road and Marks Road as was previously included in Certificate of Title Volume 5345 Folio 227 following the resumption of some small portions at the extremities for the purposes of the Pacific Highway. The computer folio is for Lot 1 of DP 1296248. No relevant notifications were recorded on the Register for the land in Lot 1 of DP 1296248, including the Wharf Road Alignment. If Mr McInherny's argument is to be accepted, the absence of any such notifications even in generic terms is inexplicable.

130. As stated above, after the conclusion of the trial a notation was added to the Register for Lot 1 in DP 1296248 which records rights of way for the benefit of the Bugden’s Lots. The notification followed submissions by Mr McInherny to the Registrar-General about the history of the NBLI Company land and, in particular, the implication of rights of way said to be in accordance with Dabbs v Seaman. For the reasons given above, the submissions were incorrect. The fact that the Registrar-General accepted them in July 2025 has no probative value to the issues in this case.

131. Having regard to the proper construction of the certificates of title, Mr McInherny has not made good his third proposition. A scheme of private rights of way did not appear on the Register at any time prior to July 2025. The absence of any such appearance supports the Plaintiffs’ case. As Bryson JA observed in the Shoalhaven case, if there was a scheme of creating private rights of way which obviated the need for the dedication of a public road, such a scheme would have clearly appeared at many places in the Register.

132. Mr McInherny’s fourth proposition is that a scheme of private rights of way is inconsistent with the creation of a public road at common law. In view of my finding that there was no scheme of private rights of way it is not necessary to decide this issue. Suffice it to say for present purposes that the correctness of the fourth proposition is to be doubted. In the Campbelltown Municipal Council case at 422; [8], Windeyer J held that a private right of way arose for the private benefit of the purchasers of lots in the subdivision but that the private rights did not preclude the dedication of public roads along the same road alignments.

Dedication of a public road by a mortgagor

133. Mr McInherny’s second argument is not pleaded but was raised orally on the first day of the trial. The Plaintiffs’ objection was faint and they addressed the argument on its merits, so I will decide it.

134. From 29 September 1892 (the day after DP 2837 was registered), the Bank held a registered mortgage over the NBLI Company’s land, namely Registered Mortgage 201481. The mortgage was evidently executed a week or so earlier. The terms of the mortgage described the NBLI Company as “registered as the proprietor of an Estate in fee simple in the land hereafter described subject however to such encumbrances liens and interests as are notified by memorandum underwritten or endorsed hereon.” The operative provision provided that the NBLI Company:

“hereby Mortgage to [the Bank] ALL our Estate and Interest as such registered proprietors as aforesaid in ALL THAT piece of land containing two thousand five hundred and sixty acres or thereabouts situated in the Parish of River Hastings County of Macquarie being the whole of the land comprised in our application to bring lands under the provision of the Real Property Act numbered 8395.”

135. The mortgage went on to record the parties’ agreement that in the event of a default the Bank “shall immediately have and be at liberty to exercise all or any of the powers of a mortgagee under the Real Property Act” and that it would be lawful for the Bank “to enter into possession of the mortgaged property and to make and lease thereof or any part thereof and to exercise all and every or any of the powers of sale entry and possession distress ejectment and foreclosure and all and every other the powers vested in Mortgagees under and by virtue of the Real Property Act in respect of the property hereby mortgaged”.

136. The mortgage further provided that the Bank was to have sole custody of the certificate of title.

137. Mr McInherny submitted that the registered proprietor of land which is subject to a mortgage cannot dedicate a public road over the land, and certainly not without the consent of the mortgagee. The authority given for the proposition is the Narracan case. The facts of the Narracan case are set out at [92]. Some further detail is necessary to understand this issue. Mr Turner’s interest in the Crown land arose first from a licence issued to him under the Lands Act 1869 (Vic). The licence subsequently matured into a lease. Upon fulfilment of certain conditions, including the payment of rent, in due course Mr Turner would be granted the freehold. Before the freehold was granted, Mr Turner mortgaged the lease. The local shire’s contention that Mr Turner had dedicated the land as a public road required the Court to consider whether Mr Turner’s conduct after the mortgage was granted was capable of evidencing an intention to dedicate a public road.

138. Griffith CJ said at 864:

“I may say at once that, in my opinion, a mortgagor cannot without the consent of his mortgagee dedicate a road over the mortgaged property. There is no more reason why he should be able to do so than there is reason why a lessee should be able to dedicate without the consent of his lessor.”

139. O’Connor J said at 875:

“where land is under a mortgage, the mortgagor can no more assent to the dedication of a road by user than he can give an interest in the land of any other kind to a third person without the mortgagee’s consent express or implied. Therefore, if it is desired to prove dedication by user while the land was subject to mortgage, it must be shown that there was knowledge of the user on the part of the mortgagees, just as it would be necessary to show knowledge on the part of a lessor of land under similar circumstances.”

140. The first point to appreciate is that the Narracan case concerned old system land. A mortgage of old system land was effected by a conveyance to the mortgagee so that thereafter the mortgagee had title to the land subject to the mortgagor’s right of redemption: Handevel Pty Ltd v Comptroller of Stamps (Victoria) (1985) 157 CLR 177 at 192; [1985] HCA 73 at [12] (Mason, Wilson, Deane and Dawson JJ). The reason why the mortgagor of old system land was not capable of dedicating a public road is readily apparent. For old system land, the analogy of a tenant being incapable of dedicating a public road over the landlord’s land is apt.

141. A mortgage of land registered under the Torrens statute operates differently: Re Forrest Trust; Trustees, Executors and Agency Co Ltd v Anson [1953] VLR 246 at 256 (Herring CJ, with whom Gavan, Duffy and Deane JJ agreed). As at 1892, s 55 of the Real Property Act 1862 provided that a mortgage “shall have effect as security but shall not operate as a transfer of the land thereby charged”. The mortgagor remains the registered proprietor of the land throughout. The analogy between a mortgagor and a tenant does not therefore hold for land under the Torrens statute. There was no occasion in the Narracan case for the High Court to consider dedication by a mortgagor of land under the Torrens statute and there is nothing in the judgments to indicate that it was considered.

142. Mr McInherny was not able to point to a case where the dedication of a public road over land under the Torrens system has been doubted because the land was mortgaged.

143. The Campbelltown Municipal Council case was a case about land under the Torrens statute but there was no mortgage. Nonetheless Windeyer J said at 420:

“At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road. The main exceptions are mortgagors, who require the consent of their mortgagees, and trustees and bodies corporate if they are not empowered to do so.”

144. In view of the fact that there was no mortgage, these remarks were not part of the reasoning for Windeyer J’s conclusion (and indeed Windeyer J joined in the High Court’s conclusion that a public road had been dedicated). In any event, the remarks of Windeyer J specify the reason why mortgagors are not competent to dedicate land as a public road, namely that they require the consent of the mortgagee. That suggests that Windeyer J was referring to the typical situation where the mortgage expressly prohibits the mortgagor from dealing with the land without the mortgagee’s consent. The relevant provisions of Mortgage 201481 are set out above. They did not oblige the NBLI Company to obtain the consent of the Bank before it dealt with the land. The fact that the NBLI Company retained the ability lawfully to deal with its land may be inferred from the Bank’s contractual entitlement to have physical possession of the certificate of title by which it would be able to exercise de facto control over the NBLI Company’s future dealings with the land.

145. The outer limits on the ability of a mortgagor to dedicate a public road over Torrens land does not need to be decided in the present case because it is common ground that the NBLI Company could have dedicated a public road over the Wharf Road Alignment if the Bank consented. The consent may be expressed or implied. Indeed, whilst both Griffith CJ and O’Connor J referred to the “consent” of the mortgagee in the Narracan case, both approached the issue as one of acquiescence: at 864–866 and at 875–876. For acquiescence all that is necessary is to show that the mortgagee was aware that the mortgagor’s conduct constituted the dedication of a public road. Beyond that, it is not necessary to show further conduct by the mortgagee to draw the inference that it consented to the dedication. The same approach was taken to the landlord’s acquiescence to the tenant’s dedication of the public road in Newington v Windeyer at 560–561.

146. The Plaintiffs submit that there is every reason to infer that the Bank consented to the NBLI Company dedicating a public road along each road alignment depicted in DP 2837, including the Wharf Road Alignment. I accept that submission. Ultimately there does not appear to be in dispute about them although Mr McInherny’s position was imprecise. The Bank was evidently lending £18,000 against the success of the subdivision. After the Bank enforced the security in 1900 it initially sought to carry on by selling further lots to the Freeman family. Success of the subdivision depended upon road access to each of the 47 lots for which the dedication of public roads was by far the most obvious answer.

147. In that commercial context, it is inconceivable that the Bank was not fully aware of the NBLI Company’s dedication of public roads throughout the subdivision. In 1891 the NBLI Company made a primary application to bring the land under the provisions of the Real Property Act 1862. The application referred to the Bank as a mortgagee, which makes clear that it was the NBLI Company’s secured lender from a time prior to the lodgement of the primary application. The land could not have been brought under the Torrens statute without the Bank’s consent. On 28 September 1892 the Registrar-General issued Certificate of Title Volume 1070 Folio 177 to the NBLI Company. The next day Mortgage 201481 was registered. As set out above the land was described in Mortgage 201481 by reference to the NBLI Company’s primary application. The following week DP 2837 was registered. Having regard to s 100 of the Real Property Act 1862, of which the Bank would have been aware, the lodgement of DP 2837 was the primary act of dedication of the public roads by the NBLI Company. Assuming compliance with the terms of the mortgage under which the Bank held the Certificate of Title, DP 2837 could not have been registered without the Bank’s knowledge and consent.

148. The clear inference from the chronology, and that which I draw on the balance of probabilities, is that the Bank lent money to the NBLI Company specifically for the purpose of undertaking the subdivision contemplated by DP 2837. Having regard to the documentation and the commercial reality revealed by the documents, the Bank’s consent to the dedication of public roads in the subdivision, including one within the Wharf Road Alignment, is inescapable.

149. Mr McInherny’s second argument is to be rejected.

Public road does not survive Mr McInherny’s indefeasibility of title

150. Mr McInherny’s third argument arises from the events in 1942, when the majority of the land in the then residue lot was resumed by the State for the purposes of the Cairncross State Forest. Thereafter the McInherny family was the registered proprietor of an oddly-shaped parcel of land comprised of Lots 4, 5, 6 with the Wharf Road Alignment sticking to the top. The McInherny family had first become the registered proprietor of land which included the Wharf Road Alignment when it purchased the entire residue from the Bank in 1905. This argument may also be applicable to that transfer, but Mr McInherny’s submissions focussed on his family’s ongoing registered proprietorship of the residue after the 1942 transfer.

151. The Certificate of Title which was issued in 1942 was Volume 5345 Folio 227 which is referred to above and which is set out in the Schedule at paragraph [19]. Mr McInherny submits that a public road over the Wharf Road Alignment is not recorded on the Certificate of Title so his family’s indefeasibility of title prevailed against any claim that there is a public road.

152. Mr McInherny further submits that, upon DP 1296248 being registered on 20 July 2023, the McInherny brothers have been the registered proprietors of the Wharf Road Alignment (Lot 1) and in the continuing absence of a record of a public road on the Register their indefeasibility of title continues today.

153. Section 42 of the Real Property Act 1900 provides as follows:

(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except—

(a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land,

(a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act,

(b) in the case of the omission or misdescription of any profit à prendre created in or existing upon any land,

(c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, and

(d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected—

Provided that—

(i) The term for which the tenancy was created does not exceed three years, and

(ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years.

(2) In subsection (1), a reference to an estate or interest in land recorded in a folio of the Register includes a reference to an estate or interest recorded in a registered mortgage, charge or lease that may be directly or indirectly identified from a distinctive reference in that folio.

(3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section.

154. So far as Certificate of Title Volume 5345 Folio 227 is concerned, there is a tension between Mr McInherny’s third argument and his first argument. The Certificate of Title was issued to the McInherny family subject to “all existing rights of way or other rights if any” over roads which included the Wharf Road Alignment. The language is generic but it may be construed as extending to the public rights over the public road created before 1920 and thereafter preserved by s 232 of the Local Government Act 1919. If so, the McInherny family’s estate or interest was subject to those rights notwithstanding s 42 (“subject to such other estates and interests and such entries”).

155. However, in 2023 Certificate of Title Volume 5345 Folio 227 was cancelled when DP 1296248 was registered. Thereafter there has been no record on the Register of a public road over Lot 1, generic or otherwise. Nonetheless, Mr McInherny’s contention that the public road is now defeated by his indefeasibility of title is contrary to authority and must be rejected.

156. As set out above, under the old system a public road could be dedicated and accepted over private land without a change to the title in the affected land. In Palmisano v Hawse Bryson J said at [7] “the land remained the property of the dedicating owner but became subject to public rights”. See also the Shoalhaven case at [13].

157. The land was subject to such public rights even when it was under the Torrens system and the public road was not recorded in the Register. In Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 at 362–363, Rich AJ said:

“It is clear, therefore, that a registered proprietor holds his land absolutely free from all encumbrances, liens, estates, or interests whatsoever other than those notified on the grant or certificate of title, save in the cases expressly mentioned. Is this language sufficiently wide to cover public rights of highway? I am of opinion that it is not. The language of s. 42 itself suggests that the interests referred to are such as are capable of existing in an individual; this is inconsistent with its applicability to public rights of user. But, apart from this, public highways appear to lie wholly outside the scope of the Act. In the case of private easements, their registration is contemplated and provided for by s. 47. No provision has been made for the recording of the dedication of land for a highway, and, indeed, it has been held in New Zealand that such a dedication is unregistrable: Howell v. The District Land Registrar (27 N.A. 1073).”

158. After the statement by Rich AJ in Vickery v Municipality of Strathfield, the Local Government Act 1919 was enacted which for the first time prescribed an exclusive statutory mechanism for creating public roads (s 237). It also provided for public roads to vest in fee simple in the local council (s 232(1)) including public roads which already existed (definition of a “public road” in s 4). Upon the statutory vesting, the nature of the council’s interest in a public road is apparent from s 232(1) which provided that the council had the entitlement (but not the obligation) to be registered as the proprietor of the land on which the public road was located. The council’s interest is not dependent upon registration. In that sense, it continued to exist outside the scope of the Torrens system. At the same time, it was an interest which was capable of being registered if the council “so desired”.

159. The statutory title of the council continued after the enactment of the Roads Act 1993 in which s 145 used the same language to provide that all public roads “are vested in fee simple” in the relevant council.

160. The application of these principles in a case similar to the present case is the Court of Appeal’s decision in the Shoalhaven case. In that case Mr Halloran was the registered proprietor of a large parcel of land for which he deposited a plan of subdivision in 1915. The new subdivision was to be named Pacific City. In accordance with s 113 of the Real Property Act 1900 (now repealed but closely resembling s 100 of the Real Property Act 1862), the deposited plan of subdivision delineated a network of roads set apart for public use. By depositing the plan Mr Halloran dedicated the delineated roads as public roads which was accepted by the general public before 1920. Over time Mr Halloran sold numerous lots in the subdivision and was successively issued with new certificates of title for the residue. At no time was the local council’s statutory interest in the public roads recorded on the Register. Apart from the formation of the roads and the construction of Pacific House, a guest house for prospective purchasers, Pacific City did not eventuate. In 1998 the State compulsorily acquired Mr Halloran’s interest as the registered proprietor of the residue lot where some of the roads were located, now overgrown and difficult to distinguish from the bush. For compensation purposes, the question arose whether the local council’s interest under s 232 of the Local Government Act 1919 still existed even though no such interest was recorded on the Register. The Court of Appeal applied the principle stated by Rich AJ in Vickery v Municipality of Strathfield and held that the local council’s interest in the public roads had continued to exist up until the compulsory acquisition.

161. The same principles were affirmed by the Court of Appeal in Canada Bay Council v Bonaccorso Pty Ltd (2007) 71 NSWLR 424 at 437–438; [2007] NSWCA 351 at [46]. Citing Rich AJ in Vickery v Municipality of Strathfield, in the Court of Appeal said:

“However, apart from fraud and the exceptions set out in s 42(1)(a)–(d) of the Real Property Act, it is clear that rights in land under the Torrens system might arise outside the Real Property Act and that in some circumstances those rights effectively supplant the rights under that Act. Thus, before the enactment of legislation such as the Roads Act 1993, which vested the fee simple of public roads in a local council as the relevant roads authority (see s 7(4) and s 145(3)), the common law right of the public to use a dedicated highway could not be defeated by the registered proprietor of the land on which the highway was located.”

162. Mr McInherny submitted that the statutory interest created by s 232(1) of the Local Government Act 1919 and continued by s 145 of the Roads Act 1993 entitled the Council to have its interest in the public road registered, and also to restrain the registration of some other interest by which Council’s interest would be defeated. Absent registration by the Council, the registered proprietor for the time being of the land over where the public road is located held his or her interest absolutely free from the Council’s interest in accordance with s 42 of the Real Property Act 1900. Mr McInherny has not explained how his submission is to be reconciled with Vickery v Municipality of Strathfield, the Shoalhaven case and Canada Bay Council v Bonaccorso and it is not otherwise apparent. He has not identified a principled basis for the Court now to depict from them.

163. Mr McInherny further relies on s 46C which was added to the Real Property Act 1900 in 1970 (Real Property (Amendment) Act 1970 (NSW), s 22). Section 46C(1) provides:

Where, by the operation of a statute, either directly or by reason of anything done in pursuance thereof—

(a) land under the provisions of this Act became, before the commencement of the Real Property (Amendment) Act 1970, or becomes, after that commencement, vested in a person (other than the registered proprietor of the land) either alone or jointly or in common with that registered proprietor, or

(b) land that is the site of a closed road or part thereof so became, or so becomes, vested in a person registered under this Act as the proprietor of adjoining land,

the Registrar-General may, of the Registrar-General’s own motion, and shall, at the written request (made in the approved form) of a person in whom there has been such a vesting on such evidence as appears to the Registrar-General sufficient, and after such notice (if any) to such person as the Registrar-General deems proper, register the person in whom any such land is vested as the proprietor of such estate therein as the Registrar-General deems to be appropriate, and for that purpose the Registrar-General may make such recordings in the Register and create such folios of the Register, as appears to the Registrar-General to be necessary or proper.

164. Mr McInherny submits that s 46C now provides a mechanism for the registration of a local council’s interest in a public road. It is unclear how s 46C assists Mr McInherny’s argument. On the contrary, s 46C(1)(a) contemplates that the operation of a statute may vest land in a person who is not the registered proprietor. The word “land” includes any estate or interest in the land. Where that occurs, the person in whom the estate or interest has vested is entitled to have his or her estate or interest recorded on the Register. To that extent s 46C appears to be a mechanism of general application similar to the road-specific mechanism in s 232(1) of the Local Council Act 1919. The enactment of the general mechanism does not advance Mr McInherny’s argument based on indefeasibility.

Summary

165. None of the arguments put forward by Mr McInherny warrant a conclusion other than that set out above, namely that a public road exists along the full length of the Wharf Road Alignment.

Ancillary issues

166. It follows from the foregoing, and notwithstanding the current state of the Register, the Wharf Road Alignment is vested in fee simple in the Council. No issue has been raised in these proceedings about any other road alignment originally contemplated by the NBLI Company’s subdivision and I have not made any finding beyond the Wharf Road Alignment.

167. Various submissions were made at the trial about what if any measures might be necessary or desirable to attend to the Register in light of my findings. The submissions were necessarily hypothetical and to some extent premature. The parties properly reserved their final position pending publication of these reasons. In any event, the post-trial developments with the Register now need to be taken into account.

168. As in the Shoalhaven case, the conclusion that a public road exists makes it unnecessary to decide the Plaintiffs’ alternative case based on an implied right of way.

169. In relation to Mr McInherny’s gate and fence, s 5(1) of the Roads Act 1993 provides:

A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road.

170. Section 6(1) provides:

The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road.

171. As the road authority, Council is authorised to regulate obstructions of public roads and may direct their removal: s 107. It is an offence for someone to erect a structure on a public road without Council’s consent. Nothing has been identified in the evidence which would suggest that the gate and fence are lawful.

Relief

172. In view of these ancillary matters and the post trial developments with the Register, the most efficient way to proceed is first to provide the parties with an opportunity to consider these reasons and then to liaise with each other about the form of final relief to be granted to give effect to the judgment and to quell all aspects of the controversy between them. In the first instance, the proceedings will be stood over for four weeks with the view then to considering an agreed form of final orders or, absent agreement, directions for the determination of the final orders by the Court.

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