Newington v Windeyer (1985) 3 NSWLR 555, considered.

Permanent Trustee Co of New South Wales v Campbelltown Corporation [1960] HCA 62; (1961) 105 CLR 401, followed.

Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4; City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353; Clarence City Council v Howlin [2012] TASSC 26; Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18, referred to.

Judgment Number: [2022] TASSC 26

1. The plaintiff is the owner of residential land situate at South Esk Road, Trevallyn. It is comprised of 2 adjacent lots, each with separate title, and depicted on plan of subdivision 77524. That plan shows a narrow strip of land, which commences at South Esk Road, and runs along two sides of the plaintiff's land. It is marked "Roadway 10 feet wide". Other plans show that it continues past the plaintiff's land, along the boundary of two adjacent allotments, until it intersects with Trevallyn Road. I will hereafter refer to that strip of land as "the laneway".
2. The residential subdivision which includes the laneway and the plaintiff's land, was created in 1884 as part of the original development of the suburb of Trevallyn. It consists of 6 residential blocks, surrounded on 3 sides by South Esk Road, Trevallyn Road, and the laneway. The laneway was depicted in the original plan of subdivision, and, since then, in relevant plans of survey relating to the area, albeit with varying nomenclature. It has been used from time to time since its creation as a walkway, providing a direct route between the southern part of Trevallyn and King's Bridge, and thereby Launceston. It has, in the past, contained a formed footway for its entire length, but is currently overgrown and effectively unpassable, at least in the lower section. There is no evidence that it has ever carried wheeled traffic and given its narrow width and steep gradient, it is unlikely that it ever did.
3. A dispute has arisen between the parties as to whether the laneway is a highway, and, in particular, a local highway as defined by s 4 of the Local Government Highways Act 1982 (the Act). The defendant is the relevant municipal council and, hence, its interest in the land is that if it is a local highway, then it is maintainable by the defendant pursuant to the provisions of the said Act. If it is not a local highway, then the defendant claims ownership of the land as part of the Gorge Reserve at Trevallyn. The resolution of the question as to whether the laneway is a highway is important to both parties because the boundary fence of the plaintiff's land encroaches onto the laneway, and the rights and obligations of each party with respect of the said encroachment depend to an extent on whether this land is a highway. It would seem that negotiations and legal proceedings concerning the encroachment have been ongoing for some years. The plaintiff seeks a declaration that the laneway is not a highway or if it is, is not a local highway maintainable by the defendant pursuant to the said Act. The defendant's position is that it does not know if the land is a highway but agrees that this question requires determination, and has acted as a contradictor in respect of the plaintiff's case. It follows that the grant or refusal of the claimed declaratory relief will affect in a real and substantial way the resolution of the dispute concerning the encroachment, and hence concerns a real issue between the parties and will have clear utility.
4. For reasons which I will explain shortly, the critical issue is whether the laneway was created as a highway under the common law prior to 13 December 1886. This arises from conclusions which are not in serious contest between the parties. If the laneway became a highway before that date, then it has remained a highway since, and became a local highway upon the commencement of the said Act. If not, legislation since that time has continuously restricted the common law right of the land owner to create a highway over the land, expect in circumstances defined by the legislation, which have not occurred, and it has not become a highway thereafter in accordance with relevant legislation. Hence, if it was not a highway by 13 December 1886, it has not become one since. Because the plaintiff seeks a declaration to that effect, the plaintiff bears the onus of establishing the facts necessary to support the declaration, including that the laneway had not become a highway under the common law prior to that date.

1. The evidence concerning the early history of the land upon which the laneway is located consists of a report containing an historical analysis by Dr David Young, a statement of evidence by a surveyor, Ian Cornelius, and supporting documents. The evidence is not in dispute, although the inferences available from that evidence are the subject of submission.
2. As already noted, the laneway was created as part of the initial subdivision of land which created Trevallyn. The subdivided land was part of a parcel of 2130 acres owned by William Barnes. His father had secured this land from the Crown, but without certain title, in 1834. On 21 July 1882, Mr Barnes acquired title to the parcel by purchase grant. He immediately instructed a surveyor, Joshua Higgs, to create by subdivision a number of building allotments. Although the area was not then within the boundaries of Launceston, it was conveniently close by and the evidence suggests that there was considerable demand for housing in that area.
3. The construction of roads and the marking out of building allotments on subdivision plans commenced immediately. Lots were advertised for sale in September 1882, and the first lot was sold on 12 December 1882. By 1883, twenty purchasers had purchased lots, some more than one. The laneway was first depicted in a plan of subdivision prepared by Surveyor Higgs and registered in the Land Titles Office on 3 September 1884. The registered plan was numbered 88359. It was prepared and registered for the purpose of creating six allotments, which had already been sold to nominated purchasers. Lot 55, on which the plaintiff's land is now located, was created by this plan. It bears the name of the purchaser of the allotment, Mary Adams. The laneway is shown on the boundary of three lots, including lot 55, and extends between South Esk Road and Trevallyn Road. It is marked "RIGHT OF WAY TEN FEET WIDE".
4. At around the same time, surveyor Higgs prepared another plan showing the entire proposed suburb of Trevallyn. The plan showed Trevallyn Road and South Esk Road, which by that time had been constructed as carriageways. It is apparent from the plan that these were intended to be public roads, dedicated for public use. The plan also shows the six allotments contained on plan 88359 and depicts the laneway, although it has no nomenclature.
5. The certificate of title relating to Lot 55 was signed on 18 July 1885 and showed the date of sale to Mary Adams as 3 January 1885. The certificate contains a plan showing Lot 55 and depicting the part of the laneway that adjoins the boundary of that lot. The laneway is marked "ROADWAY". The wording in the certificate describes the allotment's boundary by reference to the "roadway" along the southeast and southwest of the property. This, of course, can only be a reference to the laneway.
6. Although not shown on this plan, Dr Young's report demonstrates that a plan on the title of the lot to the immediate south of Lot 55, Lot 55A, also depicted the laneway on its boundary with the marking "roadway".

1. Although the term "highway" originated in England, where it related to public ways connecting towns or inhabited places, in Australia, it simply means a public road. This was noted by Windeyer J in City of Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353 at 363, as follows:

"But it is no longer necessary that to be a highway a road should lead from town to town, or village to village. Indeed it need not be a thoroughfare at all: it may be a cul-de-sac. It need not be a main road, a high-way as distinct from a by-way. In short, the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions".

1. 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)

1. 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.
2. Accordingly, while evidence of public user over time can contribute to an inference that the land has been dedicated as a highway, of itself, it may be equivocal. Public user pursuant to revocable licence will not establish a highway at common law. Further, the unrestricted right of usage by the public which identifies a highway at common law can be distinguished from a private right of way or carriage way, where the land remains in the ownership of and under the control of the grantor of the right and benefits a limited class of persons. See discussion by Evans J in Clarence City Council v Howlin [2012] TASSC 26.

1. In Howlin, Evans J, on the basis of what was obviously extensive research, observed as follows:

"Highways and the like were the subject of a considerable quantity of legislation in this jurisdiction in the 19th century. That legislation included the following Acts and amendments thereto:

I have found nothing in this legislation that relevantly impinges on the common law as to dedicating land as a highway."

1. However, his Honour went on to discuss legislation which in his view did "impinge on the common law of highway dedication, but only insofar as it applied to towns". In particular, his Honour referred to the Town Boards Act 1891, which was replaced by the Town Boards Act 1896. That legislation empowered town boards to "make by-laws regulating the opening of new public streets, roads and ways, and the width and construction of the same". His Honour also discussed the Police Act 1905, which replicated relevant provisions of the Police Act 1865. Under that legislation, the term "street" was defined to extend to and include "any public and common highway, road, ... any thoroughfare public way or place and the footways within any town." It also provided that any person who intended to make or layout any new street in any town was required to give notice to the municipal council and the council had the power to fix the level of the street. Of critical importance to this case is s 201 (of the 1865 Act) which provided as follows:

"It shall not be lawful to make or layout any new street in any Town unless the same, being a carriage-road, is at least Fifty feet wide, or not being a carriage-road is at least Twenty feet wide".

1. It is accepted by the parties in this case that this provision effectively abolished the right of a landowner to dedicate a new public road or highway unless the proposed road complied with the minimum specifications. The provision was in force from 1865, but it only applied to land within a town. At the relevant time, a town was capable of being created by proclamation of the Governor pursuant to the Police Act 1865. The town of Trevallyn was created by proclamation on 13 December 1886. It is common ground that the relevant lot was located within the boundaries of the new town, and, before then, did not fall within the boundaries of any municipality. Accordingly, prior to 13 December 1886, the question of whether the laneway was created as a public road or highway was governed solely by the common law.
2. However, after that date, because of the legislative provisions already discussed, it was not possible for the owner to dedicate the laneway as a highway or public road. It is common ground that the laneway has never satisfied the minimum dimensions prescribed by those legislative provisions for the creation of a road within a town. It is accepted that this is the case even if it was only intended that the laneway would be used as a public footway. I was referred to authority which suggests that a carriage-road, although not defined in the legislation, is a road intended to carry vehicular traffic, but I do not think that it is an important point. Even if the intention of the owner was only to create a highway in the nature of a public footway, it still does not comply with the minimum dimension for a street which is not a carriageway.
3. Under the said legislation, there were provisions which permitted the municipality to take over a street which was not properly formed, or not a public highway, improve it and then declare it to be a public highway. ss 159-160 of the Police Act 1865, and provisions to similar effect in the Police Act 1905. Detailed and extensive research by counsel, reveals a continuous matrix of legislation applicable to the laneway after Trevallyn was proclaimed as a town, which maintained a minimum width for carriageways and streets, which was not less than the specifications already discussed. In fact, the minimum specification actually increased as time went on. For example, s 47 of the Towns Act 1934 prescribed a minimum width of fifty feet for streets intended to be used as carriageways and thirty feet otherwise. These requirements have applied continuously to the present time, notwithstanding a change in municipal jurisdiction. On 31 August 1907, the Town Board of Trevallyn was abolished and the relevant land came within the boundaries, and hence the municipal control, of the City of Launceston. See The Greater Launceston Act 1907. Section 15 of that Act specifically provided that only streets which had been recognised by the Town Board as public streets by that time were taken to be public streets.
4. As Evans J noted in Howlin, the right of a land owner to create a highway at common law, within a municipality without the consent of the municipal council, effectively came to an end with amendments to the Towns Act 1934, introduced by The Towns Act 1941. See s 3 which introduced ss 48 to 48F. This legislative position has been maintained to the present time. Further, there has been ongoing provision for the municipal authority to take over and create a public road. The defendant agrees that there is no record of any municipal action by it or its predecessor to take over and bring the laneway to the standard of a public road or street at any time to the present, and that it is unlikely any such action has ever taken place. The probability that that has not occurred is also supported by the history of the timing and nature of the formation of a footpath over the laneway, and its subsequent use.
5. I am satisfied, therefore, that if the laneway had not become a highway in accordance with the common law by 13 December 1886, it did not become one after that time. The critical question, therefore, is whether it was a highway on that date.

Was the laneway created as a highway prior to 13 December 1886

1. As already discussed, the laneway will only have become a highway before 13 December 1886 if a person with lawful authority to do so dedicated the land for that purpose and that dedication was accepted by the public. As I have already noted, the onus is on the plaintiff to satisfy me on the balance of probabilities that this did not take place.
2. The plaintiff relies on a number of pieces of evidence to support the argument that I should find positively that the owner had not dedicated the laneway as a highway prior to 13 December 1886. Firstly, there is the question of nomenclature. When the laneway first appeared in a public plan, that is plan no 88359, the laneway is described as a "right of way". However, in the subsequent title deeds, the laneway is described as a "roadway". Mr Cornelius expresses the opinion that, from an historical perspective, the use of either term is equivocal. The practice in the Land Titles Office at the relevant time was to describe rights of carriageway of any nature, public or private, as "roadways". In any event, he opines that the term was probably inserted by an official of the Land Titles Office. I accept that this is probable. Similarly, the use by surveyor Higgs of the term "right of way" in plan 88359 is, in my view, also equivocal. Mr Cornelius' statement establishes that there is no evidence that any of the subdivided land was recorded as benefiting from the right of way as one would expect if the intention of the owner was to confer private rights of carriageway over the laneway, on the owners of the adjoining land. On the other hand, the use of the term "right of way" by surveyor Higgs can be contrasted to the setting out and marking of public roads on the plan, in particular South Esk Road, Trevallyn Road and West Tamar Road. These are clearly shown as roads, with markings which are clearly distinguishable from those relating to the laneway.
3. A further clue to the intended use and purpose of the laneway can be derived from consideration of its design and location, within the context of the overall subdivision. When regard is had to the plan of the proposed suburb of Trevallyn prepared by surveyor Higgs in 1884, it seems obvious that the laneway was not intended to benefit only the three blocks with which it is contiguous. It seems obvious that it was intended to provide a walkway, which would afford a convenient shortcut between all of the residential blocks in the new suburb, and Kings Bridge and thereby Launceston. The only other option for such access to Kings Bridge, particularly in the case of residences at the southern end of the suburb, was to travel a circuitous route along public roads which ultimately intersected with Trevallyn Road at a point which is a significant distance from the bridge. At that time, Kings Bridge provided the only access between Trevallyn and Launceston. It is a reasonable inference that the owner intended that the laneway be used by the public in this way. It is also reasonable to infer that he would have considered it to be an attractive feature of the new subdivision, thereby increasing the demand for residential land in that area.
4. A further matter of importance is the history of the construction of a footpath on the laneway, and the related question of its usage up to and around 13 December 1886. Photographic evidence at that time indicates that by 1885, only one house had been constructed in the relevant part of the subdivision and, although South Esk Road and Trevallyn Road had been formed, they were still in a rudimentary state. This house was on Lot 55, which had been purchased by Mary Adams. Dr Young's analysis of a photograph taken in 1885 fails to reveal any evidence of development on the adjoining lots, or of construction of a footpath on the laneway. The evidence suggests that by that time, little if anything had been done to construct a walkway over the laneway and that it was not being used for that purpose.
5. Some events which occurred shortly after the proclamation of Trevallyn as a town are relevant to this question. As already noted, the proclamation was made on 13 December 1886. On 30 December 1886, the Trevallyn Town Board was elected at a public meeting. Those elected included Dr Stewart. He had purchased land on the opposite side of South Esk Road to the entrance of the laneway in January 1886. The title to these properties contains a plan which shows South Esk Road without a break or marking for the laneway's entrance. Dr Young comments "while this is not conclusive proof that no footway existed at this time, it is indicative that this was likely the case".
6. According to Dr Young, a record of a meeting of the Town Board on 17 May 1887, notes that "a vote of thanks was passed to one of its members, Mr S Pinnington, for superintending the construction of the zig-zag known as Stewarts Pass". Dr Young concludes that "Stewarts Pass" is a reference to the newly constructed path which followed the laneway. Dr Stewart owned the land opposite its entrance from South Esk Road. He had also been elected as Trevallyn's health officer on 28 February 1887. Dr Young concludes that the fact that Mr Pinnington was being thanked for "superintending the construction of zig-zag known as Stewarts Pass" at the next meeting of the Board on 17 May 1887, taken with the other evidence already discussed, leads to an inference that the work to construct the track had been carried out between 28 February 1887, the date of Dr Stewart's appointment, and 17 May 1887. I agree with and accept this conclusion. At the very least, the formal expression of gratitude logically suggests a temporal proximity between that meeting and the construction work. It can also be concluded that this was the first significant construction of the track, and therefore it must have been in an undeveloped state as at 13 December 1886.
7. In July 1888, the Roads Committee of the Trevallyn Town Board was ordered by the Board to place a load of gravel on Stewarts Pass. There is evidence that "far more extensive work" was undertaken in 1889. Dr Young references an article in the Launceston Examiner in that year, which notes that by then, the path was used "extensively" by residents of Trevallyn and discusses the danger arising from the fact that "nothing has in the past been done to improve it". It then discusses work being done by the Board to improve the track, including by building steps, a hand rail and sealing the surface. It also notes that the land is on "private property". This evidence suggests that steps were first installed in 1889. Dr Young concludes that having regard to the steep and dangerous nature of the land, it is unlikely that the footway was used "a great deal -if at all- before steps were added".
8. The evidence presented by Dr Young, in my view, strongly supports an inference that although the owner may have reserved this land in subdivision plan 88359 drawn and registered in 1884, with the future intention of permitting its use by the public as a walkway in order to provide a shortcut between the subdivision and Launceston, nothing had been done to manifest that intention nor had there been public acceptance of the land for that purpose before 13 December 1886. The evidence supports the probability that it was only after Dr Stewart's election as the town's health officer on 28 February 1887 that a proposal to utilise the laneway in this way crystallised with its construction between that date and 17 May 1887. Even then, it is unlikely that there was widespread use of the laneway as a footpath before steps were constructed in 1889.
9. The defendant's counsel concedes that the evidence supports these inferences, but submits that it is also consistent with other conclusions, in particular that the laneway was dedicated to public use, and actually used by the public before the critical date. Having regard to Dr Young's analysis, I think there is little support for this alternative inference. In any event, there is no direct evidence concerning these questions and any inferences which are available rely on circumstantial evidence. The question of the proper approach to a case based on circumstantial evidence where there are competing inferences and the onus of proof is on the balance of probabilities was discussed by Blow CJ in Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4. His Honour referred to the following summary by Porter J in Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC, 6 24 Tas R 18:
   • "Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found". "A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."
   • "All that is necessary is that according to the course of common experience the more probable inference from the circumstances ... should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood."
   • "Evidence of possibility is capable of supporting a probative inference, and expert evidence of possibility may, as circumstantial evidence, alone or in combination with other evidence, establish causation" (Case references omitted)

1. In my view, the combination of evidence which I have discussed persuades me on the balance of probabilities that the laneway was not dedicated as a highway prior to 13 December 1886. The evidence strongly supports the inference that the owner, advised by surveyor Higgs, reserved the land in order to develop a walkway at an undefined time in the future. Given the state of development of the new suburb at the time that the plans were made and lodged with the Land Titles Office, it is likely that the owner considered that the walkway would be a convenient and attractive feature of the overall design of the new suburb, and accordingly assist in marketing the saleable land to prospective residents. However, as at the relevant date, I am satisfied that this intention had gone no further than this, and that in fact because of the undeveloped state of the laneway and indeed the suburb, and the laneway's difficult topography, that there was little, if any, use of it by members of the public prior to construction work, which did not take place until after the proclamation of Trevallyn as a town.
2. Having regard to these findings, I am positively satisfied that the laneway was not at the time of commencement of the Act, a highway, and, accordingly, is not a local highway within the meaning of the Act. I am satisfied that a declaration should be made to that effect. Accordingly, I declare that the disputed laneway is not a highway and, further, is not a local highway maintainable by the defendant pursuant to the Local Government (Highways) Act 1982.