Highways - Definition and general matters - Road - "Public road" - Proposed subdivision - Meaning of "road" in the Local Government (Building and Miscellaneous Provisions) Act 1993, s109 - Whether a Crown reserved road satisfied that meaning.

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), ss3, 84, 89(1), 109.

Judgment Number: [1999] TASSC 107

Ex Parte GERALD ROBERT PHILIPS and HELEN LORNA PHILLIPS

1 This is the return of an order to show cause, directed to the West Tamar Council ("the Council"), why a writ of mandamus should not issue to command the Council to seal a final plan of subdivision lodged by Gerald Robert Phillips and Helen Lorna Phillips ("the prosecutors") and forward the same to the Recorder of Titles.

2 On 14 September 1994, the Council granted the prosecutors a development permit in relation to their proposal to subdivide a block of land which fronts on Asbestos Road, west of York Town. By the proposal, the block is to be subdivided into two lots; a lot of 23.3 hectares fronting on Asbestos Road and an internal lot of 29.5 hectares. The internal lot is to obtain access to York Town Road via a track over adjoining land marked on the subdivision plan as a reserved road, 20.12 metres wide. This access is not a public road. It has not been dedicated as a public way.

3 The terms of the permit are set out in a letter from the Council to the prosecutors, the relevant portion of which is as follows:

"In accordance with Section 57(8) of the Land Use Planning and Approvals Act 1993 you are advised that council has agreed to approve the proposal and to issue a permit subject to the following conditions.

2 All necessary easements including an HEC wayleave easement for a power supply to lot 1.

3 The issuing of an access licence from the Department of Environment and Land Management over the reserved road.

4 Subdividers written agreement to these conditions of approval.

5 Review of these conditions of approval if the survey diagram is not sealed within 2 years of the date of issue of this permit."

4 With a view to satisfying condition 3 of the permit, the prosecutors sought and obtained an access licence from the Department of Environment and Land Management. The licence is granted to the prosecutors for 50 years, so long as they own the block. The conditions of the licence entitle the grantor:

* to terminate the licence in the event of a breach.

5 There appear to me to be a number of problems with the licence. It purports to be given under the Crown Lands Act 1976, s42(5). That provision authorises the grant of a licence subject to a condition that the licence may be determined on three months' notice. There is no condition in the licence to that effect. Perhaps more significantly, the licence purports to be in relation to the "reserved road described in the Schedule hereto". There is no Schedule to the licence containing a description of the reserved road. These problems were not adverted to in the course of the hearing and I have not had the benefit of counsels' submissions on them. I proceed to consider the application on the assumption that the licence relates to a track which leads from the internal lot over adjoining land to York Town Road and that the land over which the track passes is marked on the titles of the adjoining land as a reserved road, 20.12 metres wide.

6 Besides obtaining the licence, the prosecutors by their surveyors, prepared a final plan of the subdivision and requested solicitors to prepare a schedule of easements. This had to be done before the final plan could be submitted to the Council for sealing. It had not been done by 7 January 1997. On that date, the Council wrote to the prosecutors' surveyors in relation to the development permit stating:

"In accordance with section 53(5) of the Land Use Planning and Approvals Act 1993 you are hereby advised that the above permit has lapsed having not been substantially commenced within two years of the date of approval."

7 In subsequent communications with the prosecutors, the Council also took the stance that the development permit was invalid and the Council was prohibited from approving a final plan of subdivision which contained the internal lot. The Council's position is that the internal lot does not comply with the road frontage requirements of the Local Government (Building and Miscellaneous Provisions) Act 1993 ("the Act"), s109. The Council says that when it granted the permit, it breached the Act, s84(1) and it is prohibited by the Act, s89(1) from sealing a final plan containing the internal lot. The Council's refusal to countenance sealing the final plan, if presented by the prosecutors, prompted these proceedings.

8 The Act, s84 provides as follows:

"84 - (1) The council is not to approve a plan of subdivision if -

(a) any proposed lot has not the qualities of a minimum lot; or

(b) it includes any lot or other block of land smaller than is required or permitted by a finally approved planning scheme or interim order; or

(c) the subdivision includes any road or other works whereby drainage will be concentrated and discharged into any drain or culvert on or under any State highway, unless the Minister administering the Roads and Jetties Act 1935 has first approved so much of the application as affects the drainage.

(2) For the purposes of subsection (1) the Minister administering the Roads and Jetties Act 1935 -

(a) is only bound to approve an application which does not materially increase the total amount of water coming into or under a State highway in any period of time and which provide for its discharge at a point or points accepted or reasonably required by the Minister; and

(b) may require as a condition of approval a covenant by the owner -

(i) to indemnify the Crown against any claim which may arise from an increase in the water flowing away from or under the State highway, or its rate of flow, by reason of the works approved; or

(ii) to pay for any specified works considered by that Minister necessary by reason of the works approved for clearing water from or under the State highway; or

(iii) to do both matters specified in subparagraphs (i) and (ii).

(3) If the council approves an application contrary to this section, its approval is effective in law and the council -

(a) is liable to the Crown to do anything which, if this section had been complied with, the owner could have been required to covenant to do; and

(b) is not punishable except upon indictment with the consent in writing of the Attorney-General."

9 Pursuant to s84(1)(a), the Council is not to approve a plan of subdivision if any proposed lot has not the qualities of a minimum lot. The Act, s109, deals with minimum lots. The subject land is in a country building area and is covered by s109(1)(d). I set out that provision, together with other parts of s109 which shed some light on the meaning of "road" as used in the section:

"109 - (1) Unless the relevant planning scheme or interim order provides otherwise, the minimum lot is to have -

(i) an area of not less than 1 000 square metres; and

(3) Unless the relevant planning scheme or interim order provides otherwise, a lot has the qualities of a minimum lot -

(i) if, being in any building area and having all the qualities of a minimum lot except in respect of frontage it -

(i) has access to a road by a right of way at least 3·6 metres wide over land not required as the sole or principal means of access to any other land and not required to give the lot, if any, of which it is part the qualities of a minimum lot; and

(ii) is approved by the Commission given at the request of the council, as equivalent to a minimum lot; or

(j) if, being in any building area and lying behind a block fronting a road and being in all respects a minimum lot if that block were a road it -

(i) has a private road at least 3·6 metres wide to the public road, which private road is not required as the sole or principal means of access to any other land; and

(ii) is approved by the Commission given at the request of the council, as equivalent to a minimum lot;"

10 No planning scheme or interim order contains a provision contrary to the provisions of the Act, s109, so the prosecutors' subdivision proposal is governed by the section. Section 109(1)(d)(ii) requires that a lot has a frontage of six metres upon a road. The conditions of the planning permit approving the subdivision include a condition that an access licence be obtained from the Department of Environment and Land Management over the reserved road. The width of the land marked "reserved road" is 20.12 metres. It seems that when granting the permit, the Council proceeded on the basis that an access licence to the reserved road would give the internal lot a frontage of six metres upon a road. The Council now resiles from that position and says that the lot does not have the requisite road frontage.

11 Counsel for the Council submits that the track along the reserved road over which the prosecutors have an access licence is not a road within the meaning of that term in s109. He submits that "road" in s109 means a public road as was held by the Resource Management and Planning Appeal Tribunal in Hallam v Brighton Council J78/1995. In a decision handed down by the Tribunal on 12 April 1995, it said:

"In the Tribunal's view, Section 109(1)(c)(ii), Section 109(3)(b)(i) and Section 109(3)(h) when referring to the word 'road', mean, notwithstanding the definition in Section 3, a public road. Otherwise chaos would reign with private roads being closed or licences to use, such as the present Crown licence to use Westwood Street issued to Mr and Mrs Hallam, being withdrawn, or ending, and land becoming land locked or inaccessible.

This view is in the Tribunal's opinion, reinforced most considerably by the provisions of Section 109(3)(j), which when again using the word 'road' indicates in sub paragraph (i) that the road that it is referring to is a public road. It uses the words 'the public road'."

12 Counsel for the prosecutors rejects this interpretation of "road" and submits that its meaning is as provided in the Act, s3 which is as follows:

"3 - (1) In this Act -

(a) any land subject to a right of way for wheeled vehicles; and

(b) any land which obviously appears to be regularly used for the passage of wheeled vehicles; and

(c) any land made ready to be regularly so used, together with any adjoining path;"

13 Although the definition section is not expressly stated to be subject to the qualification that it applies unless the contrary intention appears, that is implicit; Transport Accident Commission v Treloar [1992] VicRp 31; [1992] 1 VR 447.

14 As to the meaning of "road" in the Act, s109, I was referred to the divergent views expressed about its meaning in the Local Government Act 1919 (NSW), s333 in Hurstville Municipal Council v Hall (1972) 1 NSWLR 542; Warringah Shire Council v Rippledeen (1973) 2 NSWLR 124 and Sutherland Shire Council v Currey (1991) 24 NSWLR 703. I did not derive any assistance from these decisions. Whilst the Local Government Act 1919 (NSW), s333 deals with subdivisions, it is expressed in quite different terms to the Act, s109. Decided cases are of little assistance in determining the scope of general words in a particular statute. Everything depends upon the subject matter and the context; Hall v Jones (1942) 42 SR(NSW) 203.

* the provision of planning guidelines for those who wish to subdivide land and those charged with the responsibility of approving subdivision applications; and

* ensuring that appropriate access is available to all lots.

16 For those objectives to be achieved, the word "road" needs to have a reasonably precise meaning. I am in no doubt that such an imprecise meaning as that assigned to "road" in the definition section is not intended in s109. No useful planning objective would be achieved if the meaning of road included par(b) of the definition, which is "any land which obviously appears to be regularly used for the passage of wheeled vehicles". Such a road could be created with little difficulty and could be held to exist, notwithstanding the absence of any existing or, more importantly, continuing entitlement in the public or a person relying on the road for a subdivision proposal to use the asserted road as of right. There would be no ongoing guarantee of access to a lot which relied on such a road. Difficulties in establishing whether the criteria for the existence of such a road were satisfied, together with the ambulatory nature of the road's boundaries, would be a planning nightmare.

17 Section 109(2)(i) and (j) assist in the identification of characteristics which, although commonly associated with a thoroughfare, are insufficient for the thoroughfare to be a road within the meaning of s109. The effect of par(i) is that a lack of frontage to a road can be overcome by an appropriate right-of-way access. This suggests that a private right-of-way is not a road. If it was, there would be no reason for the provision, as frontage on to a private right-of-way would be the same as frontage on to a road.

18 Paragraph (j) indicates that a private road is not a road for the purposes of s109. If it was, there would be no reason to provide that private road frontage, as specified, would suffice in the absence of road frontage. The uses made of the words "road", "public road" and "private road" in par(j) are informative. The word "road" is used as a synonym for "public road" and in a manner which indicates that a "private road" is not encompassed by the meaning of "road". Whilst this is a very strong indication that in s109 "road" means "public road", it is not necessary for me to go that far in order to determine this application. It is manifest from par(j) that a private right-of-way cannot be a road for the purposes of s109. Plainly a less secure right of access than a private right-of-way also cannot be a road. Usually, a private right-of-way is granted to the dominant tenement in perpetuity and it is not subject to any entitlement in the subservient tenement to terminate it. The right of access relied on by the prosecutors is a licence for a fixed term of 50 years, so long as they own the lot. The conditions of their licence can be unilaterally varied by the grantor and it can be terminated for a breach of its conditions. In my view, the right of access provided by the licence is considerably less secure than that which is provided by the usual private right-of-way, and for this reason I am in no doubt that the licence is insufficient to enable the land over which it operates to be classified as a "road" for the purposes of s109. As a consequence, the internal lot does not have a road frontage. As the lot does not satisfy the road frontage requirements of s109(1)(d)(ii), the Council contravened s84(1) when it granted the prosecutors a planning permit for the proposed subdivision and the permit is invalid; Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242, Parramatta City Council v Hale (1982) 47 LGRA 319 and Parkes Developments Pty Ltd v Cambridge Credit Corporation Ltd (1974) 33 LGRA 196 at 216 - 217.

19 Counsel for the Council submits that if the prosecutors proffer a final plan based on the invalid permit, the Council is prohibited from sealing it because the internal lot does not satisfy the minimum lot requirement of s109. That section is in the Act, Pt3 and pursuant to s89(1), the Council is prohibited from sealing a final plan that does not comply with that Part. Section s89(1) is as follows:

"89 - (1) If satisfied that a final plan complies with this Part, the council is to -

(b) cause the sealed plan to be lodged in the office of the Recorder of Titles."

20 Counsel for the prosecutors submits that if the permit is invalid for being granted in contravention of s84(1), it is, nevertheless, effective in law by reason of s84(3). He says that as the permit was effective in law, a final plan based on it complies with the Act, Pt3 and s89(1) is satisfied.

21 Notwithstanding that s84(3) is expressed to apply to approvals "contrary to the section", counsel for the Council submits that subs(3) only applies to approvals which breach the requirements of the section in relation to the Minister administering the Roads and Jetties Act 1935. Because of the view I have formed on the prosecutors' contention, it is not necessary for me to deal with this submission. I proceed on the basis that s84(3) applies to make the permit effective in law.

22 The obligation imposed on the Council by s89(1) is to satisfy itself that a final plan complies with the Act, Pt3. The minimum lot requirements of s109 are included in Pt3 and those requirements will not have been complied with if the prosecutors present the Council with a final plan which reflects the permit. Whether or not the permit is effective in law, is of no consequence. Upon the Council receiving a final plan, its concern is whether it complies with Pt3. The lawfulness of the permit which preceded the preparation of the final plan does not overcome anything in the final plan which amounts to a non-compliance with Pt3. I am accordingly of the view that the Council is prohibited from sealing a final plan presented by the prosecutors based on the permit, as the plan would not satisfy the minimum lot requirements of s109. In the circumstances, it is unnecessary for me to consider the Council's alternative ground for refusing to seal the final plan on the ground that the permit has lapsed because the prosecutors have not substantially commenced the subdivision development within two years of the date upon which it was granted. As to that ground, I say no more than that from my cursory consideration of the facts and the applicable law, my impression is that the ground has little merit.