1. The portion of Baldocks Road so described is the spur. The application refers to Certificate of Title Volume 24311 Folio 1. The applicant's request to the Council and the report by Mr Cornelius referred to below both identify Rosewick as within Certificate of Title Volume 243111 Folio 1, but nothing turns on that difference in description.

1. The application falls within the review jurisdiction of the Tribunal under Div 3 of Pt 7 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act). Pursuant to s 75(2) the review is to be undertaken as a hearing de novo of the matter to which the reviewable decision relates.
2. I am therefore not concerned with finding an error by the Council on the material that was before it, but with making the correct and preferable decision as to whether the municipal map should be corrected to show the spur as a local highway maintainable by the Council, on the material before me.
3. Section 78(1) of the TASCAT Act provides that on a review of a reviewable decision the Tribunal may affirm, vary or set aside the decision. If the decision is set aside the Tribunal may substitute its own decision or remit the matter to the original decision maker.

1. The central issue in this case is whether the spur is a public highway. It was common ground that that part of Baldocks road up to the point at which the spur deviates from the line of the road is a public highway.
2. At common law a public highway may be established by the owner dedicating land as a highway and the public accepting that dedication. The term 'highway' simply means a public road: Smart v Launceston City Council [2022] TASSC 26 [11]. It need not be constructed or made: Batt v Burnie City Council [2018] TASSC 65 [7].
3. In Smart v Launceston City Council (supra) at [14] Brett J referred to the requirements of dedication and acceptance:

12. In Newington v Windeyer (1985) 3 NSWLR 555, McHugh JA summarised what was necessary to create a highway or public road at common law: > > "At common law, the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn. When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action. In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn. Dedication to the public may also be presumed from uninterrupted user of the road by the public. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public." (Case references omitted) > > 13. The existence of the requisite dedication and acceptance are questions of fact. As noted in the above passage, in determining those facts, the Court can draw inferences from the surrounding circumstances. Dedication of land as a highway must be by a person with lawful entitlement to make that dedication. This would normally be the owner. It must involve an intention to irrevocably and permanently dedicate the land for that purpose and an act which manifests that intention: Permanent Trustee Co of New South Wales v Campbelltown Corporation [1960] HCA 62; (1961) 105 CLR 401 at 420. The owner does not relinquish ownership but must intend to give away the right to restrict its use by the public for the purpose of passage. Anything less will not result in the creation of a highway at common law.

4. In Batt v Burnie City Council (supra) at [15] Wood J observed that dedication and acceptance are questions of fact, and at [9] that the onus lies on the party claiming the existence of a highway to prove facts from which a court can determine or draw an inference that the owner did dedicate the land. Her Honour noted at [11] that generally "courts are asked to infer both dedication and acceptance from evidence of open and unobstructed user by the public of the land as a way for a substantial period of time". Her Honour discussed considerations relevant to drawing such an inference at [9]-[16].

1. I am grateful to counsel for the Council for his summary of the history of the relevant legislation concerning the creation and vesting of highways in councils.
2. Section 332 of the now repealed Local Government Act 1962 (the 1962 Act) deemed a local councils to have responsibility for highways within its municipality, not including state highways and certain other roads. The section provided:

332 - (1) The duty at common law of the inhabitants at large to repair the highways shall be deemed to have passed from the inhabitants of parishes to the corporations of municipalities. > > (2) The corporation's duty referred to in subsection (1) does not include the repair of - > > (a) any State highway, except as provided in s 11 of the Roads and Jetties Act 1935: or > > (b) except as otherwise expressly provided in this Part any highway in a city or town open before the commencement of this Act which has not - > > (i) been declared public under an Act; > > (ii) at any time been informed, made, repaired, or improved by a highway authority at its own cost; or > > (iii) been made under Division 11A of Part II of the Towns Act 1934.

3. Section 335(1) of the 1962 Act vested those highways in councils:

(1) in the corporation is vested every highway repairable by it and, subject to the Traffic Act 1925, the care, control, and management of every such highway.

1. Division 7 of Pt XV of the 1962 Act established a process for the opening of new highways. Section 360 provided Councils with the power to make and open highways. Section 361 provided for the establishment of local highways by subdivision. Section 363 provided that land could not be dedicated for a highway in a city or town without the consent of the Council.
2. Section 694 of the 1962 Act required a Council to maintain a municipal map showing, inter alia, "all highways repairable wholly or in part by it".
3. Save for certain parts that are not relevant to this case, the 1962 Act commenced on 29 January 1964. The Council's submissions put the date of commencement as 1 January 1964. In Batt v Burnie City Council [2018] TASSC 65 at [26] Wood J referred to s 363 coming into force on 29 January 1964. For the purposes of this case there is no practical difference between the Act having commenced on 1 January 1964 or 29 January 1964, and I will refer to the later date.
4. The 1962 Act was repealed by the LGA on 1 September 1983. The Highways Act commenced on that date. Since 1 September 1983 the creation of local highways maintainable by councils has been regulated by Div 1 of Pt II of the Highways Act.
5. Section 4(3) of the Highways Act provides that "a highway that, immediately before the proclaimed day, was repairable by a corporation becomes on that day a highway maintainable by the corporation".

1. In Clarence City Council v Howlin [2012] TASSC 26 Evans J undertook a comprehensive analysis of the effect of Tasmanian statutes from time to time on common law dedication of streets within towns. His Honour's analysis shows that legislation has restricted the common law of highway dedication insofar as it applies to towns since 1891. It is not apparent from his Honour's analysis that the legislated restrictions extended to highways outside towns, except in certain circumstances under certain legislation where the effect of the legislation could be extended beyond the boundaries of a town by way of a by-law or a special resolution.
2. It appears that a public highway could continue be created at common law outside a city or town after 29 January 1962, as there is no express prohibition on doing so in the 1962 Act or the Highways Act. Division 1 of Pt II of the Highways Act provides certain powers and obligations for councils in respect to highways opened by private persons, by which a local highway may become maintainable by the Council.
3. The common law and the 1962 Act and the Highways Act have determined the creation of highways outside cities and towns. I have proceeded on the basis that the spur is not within a town.
4. Broadly, for the purposes of this case, a public highway could be established outside a town by dedication and acceptance at common law prior to 29 January 1964 and thereafter by common law or under statute.

1. The parties agreed certain facts. Those facts included that there is no evidence that the Council opened a public road connecting Rosewick to Baldocks Road. The Council says that as a consequence I should find that the spur has never been opened as a local highway under the 1962 Act or the Highways Act. The applicant did not contend to the contrary. There was no evidence that the spur was opened under the Highways Act as a local highway maintainable by the Council.
2. The spur could therefore only have become a public highway by common law dedication and acceptance.
3. By reason of the 1962 Act, to be a local highway maintainable by the Council that dedication must have occurred before that Act commenced on 29 January 1964. That status would carry through to the Highways Act.
4. Section 209 of the LGA gives no guidance as to how an application to the Tribunal to correct a municipal map is to be undertaken. In order to correct the map to show a road as a local highway maintainable by the Council I would have to be satisfied that the road was vested in the Council and that the Council has an obligation to maintain the road. In this case that would arise under the 1962 Act from the spur being a public highway prior to 29 January 1964.
5. The factual issue to be determined is whether the spur was a highway as at 29 January 1964.
6. As to the standard of evidence, the Council points to the burden that the care and management of local highways imposes on the resources of councils, and contends that a finding that the municipal map should be adjusted, although to be determined on the balance of probabilities, should only be done on the basis of compelling objective evidence where there is a lack of material ambiguity. Although the Council did not refer to Briginshaw v Briginshaw [1938] HCA 34, its submission suggests that a Briginshaw-type standard of evidence should be applied to the civil standard of proof.
7. While I accept that the management and maintenance of a highway imposes a burden on the resources and finances of Councils, it may be seen as a core function of local government, as recognised by the Highways Act. I am not satisfied that any particular evidentiary gloss should be added to the civil standard of proof in this matter.

1. The applicant acknowledged that evidence of dedication is limited, but says that it is not so limited as to be incapable of founding the necessary inference of dedication.
2. The applicant asserted that the absence of the spur from the municipal map is not determinative of its status as a public road. The applicant pointed to the decision of Wood J in Batt v Burnie City Council (supra) at [110], where her Honour did not consider the fact that a disputed roadway was not on the relevant municipal map was determinative of whether or not it had been dedicated.
3. The applicant contends that the spur is included in the whole of the road known as Baldocks Road. In the applicant's written submissions there was reference to the municipal map identifying the whole of the road inclusive of the spur prior to 2003. I was not provided with a copy of the municipal map as at that time. The agreed documents included an image described as a screen dump of Meander Valley Council roads in 2003 which shows the spur, but I had no further evidence, and no evidence of why, if the spur was on the municipal map prior to 2003, it is not currently on the map. This issue was not addressed in oral submissions.
4. The applicant referred to the expenditure of funds for the making of Baldocks Road, as referred to in the minutes of the Council on 24 August 1964. The minutes disclosed a road grant from the State Minister for Lands and Works authorising expenditure by the Public Works Department in the sum of £460. It does not expressly refer to Baldocks Road or Camerons Road, but identifies that area of road by reference to the owners of the properties the relevant road served. It does not identify whether that expenditure specifically included work on the spur.
5. The applicant also pointed to a letter from the Secretary of the Department of Main Roads to the Council dated 4 September 1981 which refers to work carried out in 1964 to construct a 600m road. That is consistent with the expenditure referred to in the Council minutes.
6. The historic material does not identify expenditure on the spur, although the applicant invites a finding that the road historically included the spur. The parties did not point to evidence of Council expenditure on the spur, or Camerons Road or Baldocks Road, although the Council accepts that it is responsible for Baldocks Road, not including the spur.
7. The Council points to historical aerial photography as the best evidence of the use of the spur. Four aerial images were in evidence. The closest in time to the relevant date of 29 January 1964 are images taken in 1953 and 1969. The 1953 image shows a faint indication on the line of the spur. The 1969 image shows the spur in a state of construction comparable to that of the portion of Baldocks Road from which it extends. The 1969 image would reflect the 1964 roadwork referred to in the Department of Main Roads letter of 1981. There is no direct evidence that the spur was constructed or improved in the course of those works, but there is an apparent temporal link. If the work was undertaken by the Council it would be consistent with the spur being a highway maintainable by the Council, however the evidence does not show whether the Council undertook the work.
8. The Council contends that even if work was undertaken on the spur, then that work would not have the effect of creating a highway across the spur. The funding came from the State in 1964, as noted in the 24 August 1964 minutes, and there is no indication who actually undertook the work. It is inherently unlikely that the work was undertaken before 29 January 1964.
9. The Council points out that the spur has no general public utility and is, in effect, a driveway between Baldocks Road and Rosewick. The evidence did not include any evidence of the occurrence or frequency of use by the public.
10. The evidence included a report by Mr Ian Cornelius, a land information consultant, addressed to the Council's practitioners. Mr Cornelius was not called. His report stated that it is possible that the spur has been used for access to Rosewick for over 100 years. He said that the spur was surveyed in 1906 as part of a private roadway. A transfer in 1933 created a separate title and granted and retained certain rights of way, including over the spur, but not including a right of way benefitting Rosewick. The Council contends that the fact that the spur was surveyed as a private road in 1906 and that a right of carriageway was granted in favour of land that did not include Rosewick mitigates against the spur being a public road.
11. The spur would be a convenient access to Rosewick from Baldocks Road, but without it Rosewick would not be landlocked, as it has access from Miles Road, a public highway.
12. There is no direct evidence of an express dedication of the spur as a public road at common law. There is no historic or contemporary evidence of any particular conduct or intention by the owner of the land on which the spur is located in respect to the passage of persons over the roadway.
13. There is no direct evidence of the extent of any public use from which acceptance might be inferred. There is little by way of evidence from which dedication or acceptance may be inferred. I can infer that the applicant, and by extension, his family and invitees use the spur as a roadway, but there was no evidence of broader use.
14. The evidence does not establish that it is more likely than not that the spur was a highway at common law prior to 29 January 1964. There is no evidence that the spur was opened as a highway on or after that date either under a process in a relevant statute or at common law.

1. I am not satisfied that the spur is a public highway. I am therefore not satisfied that the municipal map should be corrected to include the spur as a local highway maintainable by the Council. The application should be refused and the reviewable decision affirmed.
2. Accordingly:
   1. The decision of the Menader Valley Council to refuse the applicant's request to correct the Council's Municipal Map is affirmed.