Sydney City Council v. Griffin Corporation P/L [2003] NSWSC 26

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2712/01 THE COUNCIL OF THE CITY OF SYDNEY v. GRIFFIN CORPORATION PTY LTD & ORS JUDGMENT 1 HIS HONOUR: The Sydney City Council (the Council) claims by Summons filed on 18 May 2001 a declaration that land in the City is a public road vested in the Council. The land is an irregularly shaped lane running generally northward from King Street between buildings at the southern end of the block bounded by King Street on the south, Kent Street and Clarence Street on the east and Erskine Street on the north. Apart from the lane, buildings occupy the whole King Street frontage of that block. Title to the land is under the general law or Old System and not the Real Property Act 1900. By the Summons and orders substituting and adding parties, ten defendants were joined in the proceedings; they are the persons who own or have or may have other interests in land with frontage to the lane, and also persons who are or claim to be the trustees of the estate of the late Arthur Little, who so far as search in the General Register of Deeds shows was the first and also the last person to have a documentary title to the land. (At some places his name is given as Archibald Little). Some of the defendants filed submitting appearances, and the others, although some of them filed unqualified appearances, indicated, by correspondence to the plaintiff's solicitor or by appearing by their solicitor before me at the commencement of the hearing, that they did not oppose the plaintiff's claim and did not propose to take any part in the hearing. So the plaintiff's claim is not contentious. The land is described in Schedule 2 of the Summons in these terms: SCHEDULE 2 Land in respect of which order sought

The lane bearing in a northerly direction off King Street, Sydney bounded on the west by No.306 Kent Street (also known in part as 40 King Street) and No. 304 Kent Street; on the north by No.302 Kent Street and No. 161 Clarence Street, and on the east by Nos 163-165 Clarence Street and Nos 167-175 Clarence Street (also known in part as 42 King Street) in the City of Sydney. 2 The Council tendered the evidence of Dr Shirley Fitzgerald, who holds the position of City Historian. She has access to the historical and other records of the Council and is familiar with its documents, plans and records. She produced a number of Nineteenth Century documents from the Council's archives. She gave evidence of opinions based on investigations of the historical background of the lane. She has had a career of over 30 years as a professional historian and is a Doctor of Philosophy of Macquarie University. She has had a distinguished career, with several academic and other positions and many publications, and the history of the City has been a central part of her work. In her evidence she produced and explained the historical material which refers to the lane, and to Arthur Little in relation to his owning the land of which the lane is part. 3 Doctor Fitzgerald is, in my opinion, well qualified by academic qualifications, and also in terms of practical experience as a historian, especially in practical experience in relation to the use and occupation of land in the City of Sydney, and I have confidence in her evidence and opinions. As the hearing was not contentious there was no objection to any part of her evidence. 4 Information compiled from the Census of November 1828 - Exhibit E - shows that Arthur Little was then free, was 43 years of age implying that he was born in 1785, had a ticket of leave, had arrived on the second voyage of the Providence in 1811, had been sentenced to penal servitude for life and was a Protestant; his occupation was a dealer, he lived in King Street Sydney, and he owned three horses.

5 The documentary title to the land of which the lane forms part commences with Town Grant dated 23 September 1839 to Arthur Little of Allotment No. 1 Section No. 53, Town of Sydney, Parish of St Phillip, County of Cumberland; a parcel of 1 rood and 18 perches with frontages to Kent Street, King Street and Clarence Street, forming roughly the southern end of Section 53, which is the block bounded by Kent Street, King Street, Clarence Street and Erskine Street. It is probable that Arthur Little had occupied Lot 1 since some time earlier than 30 June 1823. Lot 1 is roughly rectangular: except that a smaller rectangle at its north-west forms Lot 21, with a frontage to Kent Street, which was granted to Thomas Howell. There are other small irregularities. 6 The Town Grant to Arthur Little followed an administrative process shown by documents in Exhibit D. Proclamation dated 8 June 1829 in the Sydney Gazette Volume 27 Number 1668 called for applications for allotments in the Town of Sydney from persons bona fide in possession on or before 30 June 1823, and offered an opportunity of proving claims. Notification by the Colonial Secretary dated 15 September 1835 published in the New South Wales Government Gazette Number 185 of Wednesday 16 September 1835 page 649 and following notified that Deeds of Grant would be prepared in favour of a number of claimants but offered an opportunity for caveats. The claimants and claims notified included Arthur Little for Allotment No. 1, Section 53, Parish of St Phillip. The notification included a description of the metes and bounds of Allotment No. 1 and its area 1 rood 18 perches. (The notification also accepted the claim by Arthur Little to Allotment No. 19, a non-contiguous parcel of 9 perches also in Section 53 with a frontage to Kent Street, and also the claim of William Thorne to Allotment No. 20; William Thorne appears to have been related to Arthur Little. Allotment No. 20 also contained 9 perches with a frontage to Kent Street, and had a short common boundary with Allotment No. 1). Notification dated 13 April 1839 and published in a Supplement to the New South Wales Government Gazette on 13 April 1839 page 439 again advertised an intention to prepare Deeds of Grant for many claims for town allotments including Arthur Little's claim to Allotment No. 1, Section No. 53, Parish of St Phillip. It is not known why this intention was advertised a second time but the second advertisement referred to the Commissioners of Claims and may have related to the creation of the Court of Claims under the Claims to Grants Act 1835. 7 Arthur Little may have disposed of parts of Allotment No. 1 during his lifetime, but it is clear that he did not dispose of the part which now comprises the lane by any Conveyance or other document which has been registered. His will dated 8 January 1857 made elaborate provisions for the disposition of his real property. The will shows that the lane existed by 8 January 1857; the provision of the will which refers to it is in these terms: … My trustees are also…to convey in strict settlement for the use and benefit of my grandchild Emma Jane Little…Firstly...and secondly…And thirdly all that parcel of land and hereditaments with the messuage or dwelling house thereon situated in King Street aforesaid between "The Wollongong Hotel" at the corner of Kent Street and the said "White Hart" Inn at the Corner of Clarence Street as the said messuage or tenement and hereditaments is now (that is to say at the date of this my will) occupied by Excepting always out of the said last mentioned piece of land a roadway or passage from King Street aforesaid in over along and upon the said land to the property of the said William James Hobart Thorne situated in Kent Street the aforesaid which said excepted piece of land or roadway my trustees are after the death of my said wife to convey to the said William James Hobart Thorne his heirs and assigns forever… 8 It is significant that the laneway was referred to as a roadway and passage, and that it was referred to in terms which show that it already existed, and that it was means of access, or that Arthur Little wished it to be available as means of access, to the land of William Thorne Lot 20 to the north. William Thorne is probably identical with William James Hobart Thorne who was appointed one of the executors and trustees of the will. Arthur Little had never owned Allotment No. 20, nor had he owned Allotment No. 21, yet the lane had frontages to both those Allotments and could give both of them access to King Street. The frontage of Allotment No. 1 to Allotment No. 21 was shown by plan to be 86½ links, or 57 feet one inch. This gives significance to the description of the lane as a roadway and passage which is greater than, say, the significance which those words would have if all the land with frontage to the lane had then been owned by Arthur Little. 9 Arthur Little died on 28 March 1862 and Probate No. 1/5339 was granted by this Court in its Ecclesiastical Jurisdiction on 25 April 1862. Search papers in evidence include copies of several deeds relating to appointment of new trustees and otherwise relating to dealings with Arthur Little's real property. By an Indenture of 4 April 1881 registered No. 661 Book 218 his then trustees created a strict settlement by conveying Arthur Little's real property to Richard Yeomans solicitor upon trusts set out in the indenture. Recitals in the Deed show that, under provisions of the will which took effect, the real property was to be conveyed in strict settlement for Arthur Little's grandchild Emma Jane Hitchins then named Emma Jane Little as her separate estate (so that her husband would have no power over that land). The land so settled includes a number of parcels which appear to have been part but not all of Allotment No. 1, suggesting that by 4 April 1881 some parts of Allotment No. 1 had been sold. The presently important provision of the Deed creates a settlement of parcels of land described in these terms: "… And thirdly all that parcel of land and hereditaments with the messuage or dwelling house thereon situated in King Street Sydney between the Wollongong Hotel at the corner of Kent Street and the White Hart Inn at the corner of Clarence Street aforesaid as the said messuage or tenement and hereditaments was at the date of the herein before recited will occupied by (excepting and reserving out of the said parcel of land thirdly hereinbefore described a certain roadway from King Street aforesaid in on along and upon the said parcel of land to the property of the said William James Hobart Thorne)." That is to say, the roadway referred to was not conveyed to Richard Yeomans on strict settlement but, if it was then vested in the then trustees, remained so vested. 10 A further deed in evidence is a Disentailing Deed dated 13 January 1905 registered No. 280 Book 773 by Frederick James Archibald Lytton Hitchins. This Deed recited the provisions of Arthur Little's will and the circumstances leading to the creation of the strict settlement, and also recited that Emma James Hitchins died on 2 November 1896 and that Frederick James Archibald Lytton Hitchins was her first and elder son. The object of the Disentailing Deed was to defeat and bar the entail and in effect to bring an end to the strict settlement. I am not concerned with its effectiveness; what is presently significant is that its schedule refers to a number of parcels of land to which the Disentailing Deed was intended to apply and among other parcels refers to the parcel thirdly described in the strict settlement including the exception and reservation of the roadway. Of course, the roadway would not have passed under the settlement, so the Disentailing Deed could have no operation on it.

11 The existence of the laneway is reflected in a number of plans. Exhibit F is a plan of Section 53 of the Parish of St Phillip held in the archives of the City of Sydney. This forms part of a series of drawings of Sections prepared in or soon after 1880 but based on a series of survey plans drawn in the 1830s. Notations in other parts of the series indicate that some of the plans were prepared in 1832, some were prepared in 1835; and some bear the signature of Robert Russell, Assistant Town Surveyor with the date 1835. Exhibit F is the plan of Section 53 in this series, but it has no date and no surveyor's signature. The original plans have not been found and the circumstances in which they were redrawn in or about 1880 do not appear. The plan of Section 53 bears some marks and indications which strongly suggest that further work was done on the plan after the original survey. However references to Lot 1 and to its area, metes and bounds conform exactly to the references to Allotment No. 1 in the Town Grant and the earlier Gazette notifications. The plan shows (at least) four structures on Lot 1, and also much open space; it also shows structures on the adjoining Lot 20 of William Thorne, and open space as part of Lot 20 along most of the common boundary; that is, the plan shows no obstruction to access to the rear of William Thorne's Lot 20 from the lane. Dotted lines running across Allotment No. 1, taken with the outlines of structures and boundaries, are generally consistent with the position of the laneway. It is not clear whether the dotted lines were part of the original survey made in the period 1832 to 1835, or were placed on the plan later. Nor is it clear what is indicated by the dotted lines; they may indicate fencing. It is not stated on the plan that they indicate a lane: but they are in the right place to do so. 12 Exhibit M is a Map of the City of Sydney published by Woollcott and Clarke in 1854. This map is very detailed, and shows, for example, many property boundaries and the locations of many buildings. It is regarded by historians as highly accurate and was well accepted at the time of its publication. The Woollcott and Clarke Map is of such a small scale that it does not show very detailed information about Allotment No. 1 of Section 53, although it appears to contain indications consistent with the then existence of the laneway. 13 Exhibit K is an extract from a plan of the City prepared by Percy Dove in 1880. It is not clear in what circumstances this plan was prepared and came to be kept by Council in its archives. It appears that Percy Dove was a surveyor, but was not employed by the City of Sydney; his plan may have been prepared for publication generally. Its preparation followed closely on enactment of the Sydney Corporation Act 1879. It has a reputation with historians as being meticulous for its representation of lanes, rights of way and passages in the City. It bears the name "John Sands Lith Sydney" suggesting that it was published generally. It includes a street plan in which most buildings have street numbers. It depicts structures, yards and vacant land; it does not attempt to depict title boundaries. It indicates for structures whether they are of brick or stone, of iron or of wood, and shows the number of storeys and whether there is a shingle roof. The lane is indicated by the word "lane" and is shown as open to King Street. Boundaries of occupation are shown, but it is not indicated clearly whether the boundaries of occupation are fenced. A number of occupations are shown as having frontages (or rear lines) to the lane. To the west of the lane the Star of Peace Hotel at 312 Kent Street is shown as having a rear yard with small structures with frontage to the lane. A two-storey wooden structure at 310 Kent Street is shown as having a rear yard with a frontage to the lane and a small structure in the yard not otherwise accessible to King Street. A wooden structure of one storey at 308 Kent Street is shown as having two-storey iron stables at the rear, and also a yard; the stables may have had access to the lane. 308 Kent Street appears to have been part of Allotment No. 21, not part of the land granted to Arthur Little. To the north of No. 308 is vacant land shown open to Kent Street and with a rear line to the lane; this vacant land was also part of Allotment No. 21. 14 On the eastern side of the lane Percy Dove's plan shows a small brick or stone one-storey structure with shingle roof with frontage to King Street (also shown on Exhibit F), a one-storey wooden structure with shingle roof with its only apparent street frontage to the lane, and two-storey brick or stone stables with shingle roof and with no street frontage other than to the lane. The stables were shown as number 74, although it does not appear to which street that relates. Beyond the stables is a yard at the rear of numbers 165 and 167 Clarence Street, and the yard is shown as completely open to the lane. 15 In interpretation of the Dove Plan, it seems highly probable that the lane was in 1880 used as access to the yard at the rear of 165 and 167 Clarence Street, to the stables with No. 74, and it is on the whole likely that it was used for access to the one-storey wooden structure. It is also on the whole likely, although not completely certain that it was used for access to the two-storey stables on the western side at the rear of No. 308 Kent Street and it may have been used for access to the yards at the rear of 310 and 312 and to the vacant land, and also to the yards at the rear of 302 Kent Street (which was part of William Thorne's Allotment No. 21). 16 Doctor Fitzgerald produced copies of two extracts from Trigonometrical Surveys (or Trig Surveys) which showed drainage and water supply. The name Trig Survey suggests professional surveying. The first is attributed to 1865, the second to 1874, a redrawing or retracing with different information about water or sewerage connections. This plan is believed to have been prepared by the City Council when it bore responsibility for water and sewerage, and to have passed into the hands of the Metropolitan Water Sewerage and Drainage Board, which was formed later. The lane is plainly shown on both versions of the Trig Survey. 17 Exhibit G is a copy of an extract from the City of Sydney Assessment Book for 1845, and lists four assessable buildings numbered from 41 to 49 King Street for which the proprietor or landlord has the surname Little. On the basis of these surnames and of the descriptions of the properties it was Dr Fitzgerald's opinion that it is reasonable to assume that these refer to the section of the northern side of King Street between Clarence Street to the east and of Kent Street to the west; in my finding this assumption is correct. The Assessment Book shows House no. 49 Roll No. 972, of which the proprietor or landlord is Jonathan Little, the occupant is George Ashton, a brick house with a single roof, two-storeys and 10 rooms with kitchen and stables, of yearly tenure, with a value fixed by Council at 100 pounds per year. In Dr Fitzerald's opinion this should be identified with the White Hart Hotel, on the eastern or Clarence Street side of Allotment No. 1. House No. 41, Roll No. 975, the proprietor or landlord was Arthur Little, the occupant was James Harris, a house of two storeys with a shingle roof, 10 rooms, occupied on a weekly tenancy, with a kitchen and a room over and valued by Council at 100 pounds per year; this should be identified with the Cross Keys public house on the western or Kent Street side. Between the two was House No. 45, Roll No. 973, proprietor or landlord Arthur Little and the rated occupant was Jonathan Longford. This was a brick house of one storey with a shingle roof, four rooms, on a weekly tenancy with an annual value fixed at 32 pounds. In my view this should reasonably be identified with the small brick structure to the east of the lane shown in Exhibit F and Exhibit K. 18 Roll No. 974 is not given a street number; its proprietor or landlord and rated occupant was Jonathan Little (who was the proprietor of the Cross Keys), a brick house with a shingle roof, two floors, three rooms, held as freehold, described as "Coach house, stable and loft - in a lane" and valued at 20 pounds per year. This cannot be readily identified with any structure on Exhibit F or Exhibit K. It is significant that, according to the return, it was a separate freehold house with coach house, stable and loft, and it was in a lane, that is, it did not have a frontage to King Street or a street number in King Street. This is a strong basis for inferring that the lane was then used for access to a dwelling house, coach house and stable which did not have any other street access. 19 Exhibit H is a copy of an extract from the City Assessment Book for 1863. This shows at No. 42 King Street a public house owned by Miss Little, occupied by Mary McCarthy, brick or stone with a shingle roof, three-storeys, nine rooms, with an annual value of 132 pounds; the Star of Peace, plainly the building and business earlier called the Cross Keys and the Wollongong Hotel. Then, without a street number but indicated as "off" meaning off King Street, is an unoccupied stable owned by Miss Little, made of brick with a shingle roof, two-storeys, two rooms with an annual value of 16 pounds; then at No. 44 a house owned by Miss Little and occupied by Dural Delastac, brick with a shingle room, one storey, four rooms with an annual value of 32 pounds; then and at No. 46 owned by Miss Little and occupied by Josephs Spinks, a public house of brick with a shingle roof, three storeys, 10 rooms, annual value of 152 pounds noted in the assessment Book as "White Hart, corner of Clarence Street". The reference to a home at No. 44 is consistent with earlier indications that there was a brick structure off King Street, plainly accessible by the lane. 20 Exhibit J is a copy extract from the Assessment Book for the year 1867. In this record the street numbers do not correspond with those in the Assessment Book for 1863. The street numbers in various sources are chaotic, and it is obvious that they were changed several times. There is no entry corresponding with the Star of Peace Hotel, and the first entry apparently between Kent and Clarence Streets is indicated as "Space". "Space" was a word commonly used by the assessor of 1867, who did not use the expressions "lane" or "vacant land" but consistently recorded "space", sometimes (but not in these cases) with a dimension. Number 48 King Street is recorded as owned by Miss Little, rated to Robert Hughes, a brick house with a shingle roof, one storey, four rooms, and an annual value of 42 pounds; this could well be the small rectangular building recorded at a number of other places and shown in Exhibit K as immediately east of the lane. Then there is again a space and at No. 52 owned by Miss Little and rated to Joseph Spinks is a hotel of brick, with a shingle, two storeys, 10 rooms, annual value of 128 pounds, the White Hart Inn. This record is consistent with the continued existence of the laneway. No property with frontage to the lane or off King Street is here recorded. 21 The City Assessment Book for the year 1882 does not list the public houses in King Street; they were treated as situated in Kent and Clarence Streets. Two rated properties are referred to as "off" meaning off King Street - No. 1 - owned by Mrs J. Little, rated to Jonathan Brady, stables and No. 2 also owned by Mrs J. Little, rated person not legible, also stables. This is consistent with the Dove Plan, which shows two buildings referred to as stables accessible from the lane. 22 The City of Sydney Directory, a publication prepared by Francis Lowe in or about 1844 and 1845, shows two businesses on the northern side of King Street between Kent Street and Clarence Street, and they were public houses called the Cross Keys on the west and the White Hart on the east; no other business is shown. There is no reference to the lane, and from the nature of the publication reference to the lane would only be appropriate if there was a business in the lane. 23 The Sands Sydney Directory, first edition, relates to information of 1857 and 1858. When listing the businesses on the north side of King Street this Directory shows, proceeding from Kent Street to Clarence Street, first No. 42 Joseph Thompson, the Wollongong Hotel, then No. 44 U.O (which I interpret as unoccupied), and No. 46 Joseph Spinks, the White Hart Public House. There is no reference to the lane, or to any business with frontage to the lane. 24 The Sands Directory for 1860 lists two businesses namely the Star of Peace Hotel at the Kent Street corner and the White Hart Hotel on the Clarence Street corner; Robert Hughes, builder is listed in between. This accords generally but not exactly with the 1863 and 1867 Assessment Records. The lane is not listed. 25 The 1879 Sands Directory shows, between Kent Street and Clarence Street, first the Star of Peace Hotel conducted by Edward Ryan, then a skittle ground given the street number 44, then the White Hart Hotel conducted by John Brady. The lane is not mentioned, unless (as seems possible) it is referred to as the skittle ground. No business with frontage to the lane is listed. 26 Doctor Fitzgerald gave opinion evidence as a historian that the precinct indicated in Exhibit F would during the 1830s have been heavily trafficked by workers from wharves and workshops at the western end of King Street and by soldiers moving to and from the military barracks immediately to the north in and near the area now known as Wynyard Square. Referring to the period of the 1840s she said: 14. The "Cross Keys" and "White Hart" hotels form part of a cluster of hotels between King Street and the military barracks to the north in what is now known as Barrack Street. There were at least six hotels on King Street between Kent and York Streets. The area serviced the military barracks and the Darling Harbour wharves which had been expanding rapidly since the 1830's. It is probable, in my opinion, that the Lane would have been used for deliveries to the hotels and other establishments with frontages to Kent and Clarence Streets that backed onto the Lane as well as accommodating the nefarious types of both legal and illegal past-times which would be likely to occur in a lane behind a hotel in a seaport populated largely by convicts, ex-convicts and soldiers. 27 In my view this opinion is reasonably based, and I accept it. On the probabilities it should be found that the lane existed throughout the 1840s, and indeed earlier, and was used for general access to houses, stables and yards, including for deliveries to hotels and houses which had frontages to Kent Street, Clarence Street and King Street and rear access to the lane. 28 Doctor Fitzgerald gave in evidence an opinion as to the likely level of activity in the area at about 1857 when Arthur Little made his will. In her view the area was a well-established commercial/residential area, with numerous shops at street level with residences above, several boarding houses, a high level of residential occupancy and continued and frequent movements of people and goods. 29 Doctor Fitzgerald has concluded, on the basis of material I have set out, and has given in evidence her opinion that at least since the early 1830s and up to the enactment of the Sydney Corporation Act of 1879 it is more likely than not that members of the public would have regularly used the lane for access purposes, on foot and with horses or otherwise, and that it is more likely than not that the lane has throughout those times been continually left open at its junction with King Street. In my finding this opinion is well based, and should be accepted. It accords with the indications in the Percy Dove plan, which was prepared at about the end of that period. It is strongly reinforced by the reference in Arthur Little's will to the lane as a roadway, and by his making special provision excepting it from its dispositions. 30 The common law relating to dedication of roads is part of the general reception of the common law applicable to the circumstances of New South Wales in 1828 under The Australian Courts Act 1828, 9 Geo. IV Ch 83. The following short account of the common law was given by McHugh JA with the concurrence of Kirby P and Hope JA in Newington v. Windeyer (1985) 3 NSWLR 555 at 558-559: 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 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. 31 The common law continued to govern the creation of public roads over privately owned land until statute law required the approval of a Local Council for so doing; for most parts of New South Wales which were included in incorporated areas this occurred in 1906 when the Local Government Act 1906 ss99 to 101 came into effect; and see later Local Government Act 1919 s323. In 1834 the land in question was already within the Town of Sydney. There have of course been many alterations of the boundaries of the Town and City of Sydney since then, but this land has never been out of it. Proof of dedication was greatly assisted by legislation. The Alignment of Sydney Streets Act 1834 prescribed procedures and standards for public streets in the Town of Sydney and included the following provision in the second part of s.3:- … And provided also that all land which shall have been at the time of the publication of the general objects of this Act in the New South Wales Government Gazette or shall hereafter be left open and used as a carriage or foot-way within the said town as well as all land which has been or shall hereafter be formed into a street within the said town at the public expense shall be deemed and taken to be dedicated to the public and shall not be fenced in or resumed on any pretence whatsoever but shall be subject to all such and the like regulations orders powers authorities and provisions to which land used as a public thoroughfare now is or hereafter shall be subject by law. 32 The effect was that dedication to the public was taken to be established if land was left open and used as a carriage or footway. This provision simplified proof and made for ready reliance on the kind of inference referred to by McHugh JA in the sentence based on the judgment of Menzies J in Permanent Trustee Co of New South Wales v. Campbelltown Municipal Council. The element of acceptance by the public is not dealt with by the Alignment of Sydney Streets Act 1834; however acceptance may be readily inferred in the circumstances referred to by McHugh JA; acceptance by the public may be presumed from uninterrupted user of the road by the public. 33 Section 3 of the Alignment of Sydney Streets Act 1834 refers to land being left open, and to land being used as a carriage or footway. The nature of the subject matter and the context make it clear, in my opinion, that the references are to land being left open to the public, and to land being used as a carriage or footway by the public. A similar approach was made by Harvey J. in Attorney General v. The City Bank of Sydney (1920) 20 SR NSW 216 at 220 to the Local Government Act 1906; the later legislation was not closely similar to s.3 of the Act of 1834, but the context of legislation about public rights to streets leads to a similar conclusion. 34 In 1838 similar provision was made for other towns by s.47 of the Police Act 1838, 2 Vic. No. 2, also referred to as the Police Towns Act and the Police In Towns Act. The decision of the Court of Appeal in Newington v. Windeyer applied the Police Act 1838, which in relevant respects was identical with the Alignment of Sydney Streets Act 1834. 35 The Alignment of Sydney Streets Act 1834 was amended, but not relevantly, by the Act 6 Will. 4 No. 9, and was repealed by the Sydney Corporation Act 1879; see s.2 and Sched. A. By s.2 the repeal was expressed to be "… but without prejudicing or in any way affecting anything lawfully established, done or commenced under any of such Acts". Part 5 of the Sydney Corporation Act regulated public ways so that within the City of Sydney it was from then on necessary to obtain the approval of the Council for creation of a road, and Council's approval was held to be a dedication of the land of the public; see s.70. From then on a dedication could not take place within the City under common law principles. 36 Council's claim to be the owner of the land is based on events which occurred before 1 August 1879, and on of the Sydney Corporation Act 1879 which is the root of the title claimed by the Sydney City Council in these proceedings. The Act came into force on 1 August 1879. Section 67 provided among other things: "All public ways in the City of Sydney now or hereafter formed shall be vested in the Council …". If when the Sydney Corporation Act came into force the lane had already been dedicated as a public way it was then by the force of the Act vested in the Council. Under the common law in effect until then, land dedicated as a public way remained vested in its owner, whose rights were subject to the rights of the public to use the land as a way. Section 67 operates in quite a different way, does not relate only to rights of way or use of the surface, and vests the land in the Council in the full sense. Section 67 of the Sydney Corporation Act 1879 overrode any competing title based on documents or based on occupation of the laneway, so later purported dealings with title by persons other than the City Council could not injure the title thus conferred on Council. The Sydney Corporation Act was amended and some of its provisions were repealed by various Acts; its remaining provisions including s67 were repealed by the Sydney Corporation Act 1902. However the repeal does not affect title to land which had earlier been created by the operation of s 67: see the Interpretation Act 1899 s.8(b)

37 The evidence does not show the history of the dispositions by Arthur Little and his successors of the parts of Allotment No. 1 other than the lane. However Exhibit M the Woollcott and Clarke Map shows that by 1854 that land had come to be in a number of separate holdings. Even by 1845 the Assessment Book Exhibit G attributed holdings which were apparently parts of Allotment No. 1 to an owner other than Arthur Little, namely Jonathan Little, and the four holdings there referred to which can be identified with the land granted to Arthur Little had four different rateable occupants. Notwithstanding the delineation in the Section Plan Exhibit F of a separation of some kind of the lane from other parts of Allotment No. 1, the evidence does not show with certainty that by 1845 the laneway was open to the public, or was used as a carriage or a footway by the public. However the probability is that, even if the laneway originally was only a convenient means of getting access to internal parts of Arthur Little's allotment, or getting access across the allotment to the rear yard of his relative William Thorne, with the passage of time and the appearance of other freehold and leasehold occupations, the lane became open to the public, and the public in general used it for access to and from buildings in the lane and the rear yards of various premises with frontage to Kent Street and Clarence Street, as well as to King Street, which had formerly been owned by Arthur Little, and others nearby. 38 By 1857 Arthur Little was willing to refer, in a will the terms of which show that it was prepared with legal professional expertise, to the laneway as a roadway, a word charged with legal meaning, and he excepted it from the gifts in his will. The use of this language by Arthur Little in his will is not so much evidence of a dedication as evidence of an understanding by him that the laneway had already been dedicated to the public and that the public had accepted the dedication so that it was fully effective. His will provided for the lane to be conveyed to William James Hobart Thorne, but there is no registered conveyance by which that provision was ever carried out, and if the land was used by the public as a roadway there was no obvious advantage in securing title to land over which the public had rights. Such indications as there are in directories, assessment books and plans indicate that a multiplicity of occupations which would have been advantaged by using the lane for access existed before the relevant period closed on 1 August 1879. The existence of rateable buildings the location of which is related in assessment records to the lane, or to some situation off King Street, makes it a fair certainty that there would have been use by many persons of the lane for access. 39 In the Dove Plan, prepared about the end of the period, the lane is bounded on the west by the rear yard of the Star of Peace Hotel, the rear yard of house No. 310 in Kent Street, the rear yard and stables at the rear of house No. 308 Kent Street and by vacant land. On the east it is bounded by a side wall of a brick house, a wooden house and two storey stables and by the yard at the rear of numbers 165 and 167 Clarence Street, which is shown to be open. There is no indication in the Dove Plan (or indeed anywhere else) of the lane being closed off at King Street by fencing, gates or any other means. Ordinary knowledge of human behaviour shows that a laneway accessible from and useful to a number of properties, including stables, could only be defended against use by the public for access to those properties by active measures, and a fence and a gate would be the first of those measures. It is a fair certainty that, as well as for deliveries and access to stables and coach houses, the lane would have been used by many properties for removal of rubbish, night-soil, horse manure and other nuisances. 40 The City Council's case is assisted by the reference to the laneway, including its description as a roadway, in Arthur Little's will, and also by later references to it in conveyancing documents the last of which is dated 1905, in similar terms. It is also in my view assisted by the absence of any competing claim or opposition from any of the persons who have title to land with frontage to the land, and by the existence of the lane now, after many generations, open and accessible to general use. No-one has ever successfully established any competing claim, or closed the lane off and established control over it, although since 1879 the land has become very valuable. 41 I felt some concern whether there had been any dealings with title to the laneway, as it seemed possible, at least in concept, that conveyances or other documents purportedly dealing with title after 1879 might throw some light on whether or not there had been an event constituting a dedication before 1 August 1879. I asked for and was given further search material, and a reference to the judgment of Barrett J. dated 10 April 2001 in Kent St Pty Ltd v. The Council of the City of Sydney [2001] NSWSC 268. I have also taken notice of affidavits in proceedings 1659/01 in which that judgment was given which show facts relating to the title of land with frontage to the laneway, and incidentally show in an oblique way some matters relating to title to the laneway. 42 A number of conveyances of adjoining property have referred to the laneway in descriptions of the metes and bounds of adjoining properties. It seems that at different times all adjoining properties have been the subject of primary applications; and from time to time the laneway has been referred to in deposited plans produced in connection with primary applications. A clear example is Deposited Plan 214639, which was prepared in relation to Primary Application 42695 by which Douvick Pty Ltd. successfully applied for registration under the Real Property Act 1900 of its title to land which in 1961 was known as No. 165 Clarence Street, more or less exactly a strip of land in the north-east of Allotment 1 with a frontage to Clarence Street and a rear line to the lane. Deposited Plan 214639 contains survey work of Mr Surveyor William Lawrence Rein completed on 23 August 1961, and as well as giving survey information relating to the land subject to the Primary Application gives much information about properties near by, including a very detailed survey of the boundaries of the lane. 43 In the proceedings before Barrett J, the plaintiff was the registered proprietor of a large parcel known as No. 171 Clarence Street at the corner of Clarence Street and King St, with frontages to both streets and a rear line to the lane. The plaintiff claimed and obtained an order of the court under s88K of Conveyancing Act 1919 conferring on the plaintiff easements over the lane; the easements were a right of carriageway, an easement to drain water and an easement for light and air. To give effect to the Court's order Deposited Plan 1028899 was prepared by Mr Surveyor Geoffrey Alan Cook and completed on 12 December 2000. This survey establishes in a detailed way the boundaries of the lane, the whole of which was made subject to the easements created under s88K. In those proceedings a number of persons who might conceivably have had interests in the laneway were joined as defendants, but none of them opposed the claim then made. Most of those persons have been in the same situation in the present litigation. Evidence in those proceedings included a Registrar General's Official Search of the title to the laneway, and other search papers. No search given in evidence in those proceedings, or in the present proceedings, has shown any conveyance or other document by trustees of Arthur Little's will dealing with title to the lane. 44 In weighing the probabilities bearing on the alleged facts on which Council's claim is based it is significant, and strongly supportive of the Council's claim that no person has emerged in either of these litigations or in any registered document claiming or purporting to claim any title to the laneway since 1 August 1879, or for that matter at any earlier date since Allotment No 1. was granted to Arthur Little in 1839. 45 Upon the material in evidence before me, and bearing in mind that proof is required on the balance of probabilities, I find that in and before 1879, the lane had for a long period been left open, and had for a long period been used as a carriageway and as a footway by the public. I find that having regard to the terms of s.3 of the Alignment of Sydney Streets Act 1834 it then was and had long been the case that the land should be deemed and taken to be dedicated to the public by Arthur Little and his successors as owners, and it should be found that the public had accepted the dedication by use of the land as a public road. For these reasons the plaintiff should succeed. 46 It appears to me that it is appropriate to adopt Deposited Plan 1028899 and the references in it to the laneway when identifying the lane in the terms of my order. Plaintiff's counsel should draft minutes of order accordingly. The order should recognize the rights created by order of Barrett J.

Last Modified: 03/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.