The Rebecca L Cooper Medical Research Foundation Ltd v Woollahra Municipal Council

Section 17 of the Roads Act requires that the council cause at least 28 days' notice of its intention to dedicate the land to be served on the owner of the land. The owner may apply to this Court for a declaration that the land should not be dedicated as a public road. If the Court makes that declaration, under s 17, the land may not be dedicated as a public road pursuant to s 16 of the Roads Act .

A notice pursuant to s 17 of the Roads Act was given to the applicant by the respondent on 25 October 2000.

The land is described in the notice as being part of lots 19 and 20 of section 3 DP 3454 at Paddington in the Parish of Alexandria and County of Cumberland the subject of a right of way described in a lease of lots 16, 17, 18 and 21 and part of lots 19 and 20 dated 10 August 1898.

The registered proprietor of the land is the applicant. The applicant is the registered proprietor of lots 16 to 21 inclusive of section 3 in DP 3454. The property comprises seven terrace houses known as No 37 to No 49 inclusive in Stafford Street, Paddington. The houses situated at No 45 and No 47 Stafford Street are separated from the other five houses by a vacant parcel of land which adjoins and forms a prolongation of Bennetts Grove Avenue. The vacant parcel is that part of lots 19 and 20 the subject of the proceedings. The land is constructed with kerbs and road surfacing. Services in the form of water and sewer mains are laid in it. Over the years the council have expended funds on its upkeep.

The council's claim does not rely upon the land being set aside for the purposes of a road left in a plan of subdivision that was registered between 1 January 1907 and 1 January 1920.

Its claim to dedicate the land as a public road is on the basis that the land is set aside for the purposes of a road left in a subdivision of land effected before 1 January 1907.

Not surprisingly, the evidence in support of the council's case is entirely documentary except in so far as it is relevant to the exercise of the Court's discretion pursuant to s 17(3) of the Roads Act. Section 17(3) provides as follows:- The Land and Environment Court may make such decision as it thinks fit with respect to the application.

The following records are in evidence without objection from either party:- (1) DP 3454 which bears a date of 19 April 1998 shows lots 16 to 21 of section 3 having a frontage to Stafford Street on the north side with a rear boundary abutting the Underwood Estate;

(2) Memorandum of Transfer registered No 277922 from Thomas Broughton to Frederick Thomas Humphery dated 19 May 1898 dealt with lots 16 to 21; (3) Certificate of Title Volume 1249 Folio 218 (now cancelled) issued on 30 May 1898 records The Honourable Frederick Thomas Humphery as being the registered proprietor of lots 16 to 21; and (4) Memorandum of Lease registered No 281208 made between Frederick Thomas Humphery and James Lowe Phegan demised part of the land in Certificate of Title Volume 1249 Folio 218 to Mr Phegan for the term of 99 years computed from 1 August 1898. The land the subject of the demise is described as follows:- the land shewn on the plan endorsed hereon and therein edged red together with full and free right and liberty for the said James Lowe Phegan his heirs executors administrators and assigns and his and their agents and servants and the respective tenants and occupiers for the time being of the land hereby leased and all and every other persons and person for the benefit and advantage of the said James Lowe Phegan his heirs executors administrators and assigns from time to time and at all times hereafter at his or their will and pleasure by night and by day and for all purposes to go return pass and repass with horses carts waggons and other carriages laden or unladen through along and over the land shewn on the said plan and therein edged green. 12. The copy of the Memorandum of Lease, which is in evidence, does not discern between different parts of the land in colour. Argument has proceeded on an assumption that the edged green comprises a strip five feet wide excised from the eastern section of lot 19 and 10 feet wide excised from the western section of lot 20. Whereas the balance of the lands presumably are edged red.

The following documentary evidence has been tendered in support of the council's contention that if the land is found to be set aside for the purposes of a road left in a subdivision of land effected before 1 January 1907, then the Court should exercise its discretion and not prevent the council from proceeding to dedicate the land as a public road:- (1) Memorandum of Dedication registered No B96178 relates to a strip of land partly contiguous with the rear boundaries of lots 19 and 20 now forming part of Bennetts Grove Avenue intersecting with the southern side of Underwood Street. The plan annexed to the Memorandum of Dedication shows a stone wall running along the rear of the properties having a frontage to Stafford Street with an apparent break in the wall where the dedicated land appears to abut the rear of lots 19 and 20;

(2) File Plan 192377 (formerly Roll Plan 730) shows Bennetts Grove Avenue, including the land the subject of the Memorandum of Dedication B96178 and further land to the east of that land, as being a public road. This parcel of land does not appear to extend in a northerly direction to Stafford Street; (3) Certificate of Title Volume 1470 Folio 27 issued on 25 May 1903 shows that the area of land running in a northerly direction off Underwood Street has the same juxtaposition to the land to its north and fronting Stafford Street as demonstrated in the Memorandum of Dedication B96178 and showing a similar break in a "stone wall" ;

(1) File Plan 924583 bearing a date of survey of October 1901 confirms the relationship between the strip of land leading off Underwood Street and the strip running in a northerly direction towards Stafford Street through a break in a stone wall. FP 924583 appears to come into existence for the purpose of a transfer of land shown as abutting the private lane the subject of the Memorandum of Dedication B96178 and again confirms an apparent continuation of the private lane in a northerly direction through a separation in a stone wall;

(2) City of Sydney City Engineer's Department Plan R1091 dated 25 November 1949 shows the same relationship between the abovementioned parcels of land fronting Underwood Street and Stafford Street respectively; (3) An aerial photograph taken in May 1951 confirms the existence of an open passage from the southern section of Bennetts Grove Avenue off Underwood Street running through to Stafford Street in the north; (4) Sydney Water Plan dated 1958 shows water and sewerage mains laid in a strip of land separating No 45 and No 47 Stafford Street; (5) Council Memorandum dated 7 May 1980 confirming instructions to "hotmix the section of footpath from No. 1 Bennetts Grove Avenue to Stafford Street on the eastern side" ; (6) A Sewerage Service Diagram produced by the Metropolitan Water Sewerage and Drainage Board bearing a stamp dated 16 April 1982 shows the Board's sewer running in a northerly direction through land marked as a lane east of No 45 Stafford Street; and (7) Engineering Plans prepared on behalf of the council in 1998 showing works to adjust kerb and gutter proposed in the extension of Bennetts Grove Avenue between Underwood Street and Stafford Street.

Setting aside the inconclusive nature of the evidence contained in most of the above documents so far as the northern section of Bennetts Grove Avenue, so called, is concerned its purpose is to support the council's argument that the land has been regarded as a public road for the most part of the twentieth century and that if s 16(1) of the Roads Act is otherwise satisfied then the Court should not restrain the council from proceeding to dedicate the land as a public road by a notice published in the Gazette.

Dr John Frances Frith lives at 42 Underwood Street, Paddington with his family. He has lived in Paddington for 23 years. His evidence is to the effect that Bennetts Grove Avenue allows a cross flow of traffic between Underwood Street and Stafford Street. The narrow streets in this part of Paddington are frequently blocked by traffic activity. Bennetts Grove Avenue provides a further route option when travelling to or from his home.

Greg Stewart is the council's Manager of Public Infrastructure. He told the Court that in July 2000 the northern section of Bennetts Grove Avenue abutting Stafford Street was closed to vehicular traffic by the owners of the adjoining properties. Since that time the northern section of Bennetts Grove Avenue has been closed to vehicular traffic. However, the narrow footpath on the eastern side of the closed section of roadway has been left open for pedestrian traffic. Building site sheds associated with development works to the adjoining property in Stafford Street have been placed on the closed section of roadway.

Mr Stewart told the Court that prior to July 2000 Bennetts Grove Avenue was a two way local road linking Underwood Street to Stafford Street. It is approximately 90 metres long. The southern end is approximately six metres wide between kerb lines with a two metre footpath on either side. At the northern end the roadway is approximately 3.5 metres wide between kerb lines with a 600mm footpath on either side. There are 37 separate residences with Bennetts Grove Avenue as their address. None of these residences have a frontage to the northern end of the street. Mr Stewart reiterated the concerns expressed by Dr Frith in regard to the potential inconvenience to pedestrians and the motor traffic that currently use Bennetts Grove Avenue.

Other residents have protested in respect of the closure of Bennetts Grove Avenue in the form of written submissions to the council.

Frank Dobozy is a builder contracted to carry out work for the applicant. Mr Dobozy states that, after 1985, in order to facilitate the demolition of one of the houses facing Stafford Street the lane was closed for various periods, seldom exceeding one day. Furthermore, in early to mid 1989 contractors removed a large tree and the lane was again closed off for the whole day. Towards the end of 1989 the lane was again closed to vehicular traffic while a brick wall adjacent to the lane was constructed.

By Transfer of Lease dated 18 April 1900, the 99 year lease was transferred by James Lowe Phegan to John Henry Want. Ultimately the lease was transferred to Robert Clementine Gunning by transfer dated 3 May 1948. The freehold title to the land was transferred to Robert Clementine Gunning and Ella May Gunning as joint tenants by transfer dated 1 June 1950. It appears not to be disputed that the names of the transferees were assumed. Rebecca L Cooper (otherwise known as Ella May Gunning) became the registered proprietor of the land as surviving joint tenant following the death of her husband. Mrs Cooper established the Rebecca L Cooper Medical Research Foundation shortly before her death in 1984 for the sole purpose of funding medical research in Australia. Upon her death the properties in Stafford Street were transmitted to Rebecca L Cooper Medical Research Foundation Ltd as trustee of the foundation. The trustee is the present registered proprietor of the land.

Mr O'Rourke, who appears for the council, relies on the effect of the Memorandum of Lease executed for a term of 99 years in 1898 to support the claim that parts of lots 19 and 20, now physically used as part of the Bennetts Grove Avenue extension to Stafford Street, was relevantly set aside by the lease for the purposes of a road left in the subdivision of the land. The council's argument is that the lessor gave exclusive possession of the remainder of lots 19 and 20 together with lots 16, 17, 18 and 21 to the lessee while reserving part of lots 19 and 20 but, nevertheless, purporting to grant a separate right from time to time for the lessee "his heirs executors administrators and assigns and his and their agents and servants and the respective tenants and occupiers for the time being of the land" leased and "all and every other persons and person for the benefit and advantage of the said James Lowe Phegan his heirs executors administrators and assigns" to "go return pass and repass with horses carts waggons and other carriages laden or unladen" along the land edged green on the plan.

Mr O'Rourke asserts that the provisions of s 16(1) of the Roads Act make it clear that the draftsperson recognised that prior to 1907 a subdivision could be created otherwise than by registration of a plan of subdivision whereas after that date plans were required to be registered by deposit with the Registrar General. The council relies on the lease to prove that there was a subdivision created in 1898.

There is no definition of subdivision in the Roads Act and accordingly the council submits that it must be given its ordinary meaning. The Australian Oxford Dictionary refers to a subdivision as the act or an instance of dividing again after a first division, whereas the Macquarie Dictionary refers to the act or process of dividing into smaller parts or to divide into parts.

In Re Nelson and Tammer's Contract (1952) VLR 391 at p 398, Smith J appeared to accept that a subdivision could occur as a consequence of " overt acts by which land is divided into two or more parts with the intention that those parts should be separately occupied". In that case a plan had been prepared showing separate lots of land held in one certificate of title. One of eight terrace houses was situated on each lot and the plan showed the lot as being divided from the adjoining lot on each side by a party wall and fences. It was agreed that the physical condition of the land had existed before the commencement of the relevant legislation requiring approval to subdivision and that the houses had all been occupied by separate tenants since before that time.

Other cases in New South Wales to which Mr O'Rourke refers, although sparsely reported, garner some support for the proposition that a physical demarcation could be relevant to confirm that subdivision has taken place. Alternatively, the subdivision could have been affected by a division of title or holding rights in the land ( Lloyd v Frape (1922) 6 LGR 93; Deniliquin Municipal Council v Jones (1929) 9 LGR 96; Green v Cregan (1965) 12 LGRA 135).

The evidence in the present case does not extend to confirming a physical demarcation between different parts of lots 19 and 20 prior to 1 January 1907. However, the Memorandum of Lease registered No 281208 raises the clear prospect that the land was subdivided by the distinct method of disposition adopted by the terms of the lease.

Mr O'Rourke referred the Court to the Real Property (Title and Transfer) Act 26 Victoria No 9 and in particular s 49, s 100 and s 101 to support his argument that there was no mandatory requirement for a plan to be registered where land was subdivided by a lease prior to 1900. The Court agrees that the requirement for the lodgement of a plan of subdivision arguably rested within the discretion of the Registrar General. The early plans, that have already been referred to, raise a strong inference that there was an opening running off Stafford Street in a southerly direction which joined up with land dedicated for the purposes of Bennetts Grove Avenue. The latter running in a northerly direction off Underwood Street.

Apart from the inconcise information in the plans produced from the old records there is no evidence that the prolongation of Bennetts Grove Avenue to Stafford Street was recognised as a road. Here again, Mr O'Rourke has resorted to the dictionary meaning of a road as the definition in the Roads Act is contextually unhelpful.

A finding that the land was subdivided, prior to the commencement of the Local Government Act 1906, begs the question whether it was set aside for the purposes of a road. As I have said, there is no evidence that enables the Court to understand the physical conditions of the parts of lots 19 and 20, which are now claimed to be identified as part of Bennetts Grove Avenue, prior to 1907.

The Australian Oxford Dictionary defines a road as a path or way with a specially prepared surface used by vehicles, pedestrians et cetera. The Macquarie Dictionary refers to a way, usually open to the public for the passage of vehicles, persons and animals and includes a path or course leading from one place to another as one of the definitions of " way ". Mr O'Rourke says that the council does not have to establish the physical condition of the land or even that it was capable of being traversed but merely has to show that it provided a path or course to Stafford Street.

Mr O'Rourke relies on the following passage from the judgment of Kitto J in Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown and Another (1960) 105 CLR 401 at 410:- The point to observe is that since a subdivision in the sense of the Act is not the result of physical actions, but is the result of transactions dividing up land in point of title, it is necessary to give the word "road" in s. 224 (3) a meaning such that a division of private land into parts by dealings affecting title may, without more, leave a "road". In my opinion there is a road left in subdivision, within the meaning of the provision, at least where transactions of the kinds included by the definition in the modes by which subdivision may be effected have been carried out by way of giving effect to a plan of subdivision, and have left either undisposed of or disposed of for the purposes of a road a strip of land shown as a road on the plan.

Kitto J thought it would be a mistake to construe the provisions of s 224(3) of the Local Government Act 1919 thereunder discussion, which referred to a road left in subdivision, as applying only in respect of a road in the sense of a formed way or even a tract of land in the physical condition admitting of use for purposes of traffic. Even accepting that broad approach it is not open, on the evidence before it, for the Court in this case to conclude that the separate demise (if that is what it was) of parts of lots 19 and 20 amounted to setting aside that land "for the purposes of a road" .

Although it is not clear from the terms of the Memorandum of Lease what estate or interest was demised in respect of the subject parts of lots 19 and 20 it can only be construed as a private right. That is so, irrespective of whether the whole of lots 16 to 21 were demised to the lessee for the period of the 99 years with special rights to the named categories of persons to pass and repass over parts of lots 19 and 20 or whether those parts of lots 19 and 20 were excluded from the lease itself and the right to pass and repass was the subject of a separate disposition. The separate parts of lots 19 and 20 were not designated or set aside in terms for use as a road or otherwise.

It is on that basis alone that the council's claim must fail.

Questions of discretion only arise if s 16 of the Roads Act applies to the land. The Court is not able to make a declaration under s 17 of the Roads Act to the effect that the land may be dedicated if the conditions in s 16(1) have not been satisfied.

Accordingly, it is incumbent upon the Court to make a declaration that the land should not be dedicated as a public road by a notice published in the Gazette pursuant to s 16(2) of the Roads Act.

The council raised a number of matters in support of the exercise of the Courts discretion in favour of dedication in the event that the Court was satisfied that the land had been set aside for the purposes of a road left in a subdivision effected before 1 January 1907.

The discretion given to the Court pursuant to s 17(3) of the Roads Act is a wide one and is not fettered by the terms of the section itself. No guidance is accorded as to the manner in which the discretion should be exercised or what matters should be taken into account.

Although it is clear that the subject land appears to have been left open for a more general use by the class of persons referred to in the Memorandum of Lease registered No 281208 and the council has obviously carried out capital and maintenance works on the land in the nature of road works from time to time, there is no direct evidence that any person having a legal interest in, or the title to, the land has ever recognised the public nature of any rights to pass and repass over the land. Nor is there any evidence that a claim to a legal title to the land has been abandoned.

The lease continued until 1997. Although persons having a common interest in the land and the lease held those interests from 1948, that common interest was not sufficient to merge the reversionary interest of the registered proprietor with the interests of the lessee. The provision of services within the land and the use by members of the public as a matter of convenience are relevant matters that could have been taken into account.

Before the lease expired private rights were exercised from time to time by the closing of the lane area to facilitate the carrying out of works on the adjoining land.

Although it is not necessary for the Court to exercise a discretion as a consequence of the findings already made it is appropriate to indicate that if the Court had been called upon to consider the questions which arise, pursuant to s 17(3) of the Roads Act, it would not have been inclined to exercise the discretion in favour of the council in light of the consequence that no compensation would be payable to the owner of the land by way of s 16(4) of the Roads Act. The decision not to exercise the Court's discretion in favour of the council does not preclude the acquisition of that part of Bennetts Grove Avenue for the purpose of a road. That option is still open to the council. The consequence may be that if the land is otherwise compulsorily acquired compensation would be payable. That is not a matter to be resolved in these proceedings.

There has been no formal argument on the question of costs. It is relevant to observe that these proceedings are not brought within the ambit of Practice Direction 10, which is directed to planning and building appeals. Furthermore, they do not fall within the class of proceedings where it is the practice of the Court not to make an order for costs unless there are exceptional circumstances.

It would seem, therefore, that the Court would be required to exercise its discretion in relation to an order for costs in accordance with the ordinary principle. It must be acknowledged that the applicant has been wholly successful in the litigation. However, in the absence of argument, the Court is not able to make a final decision in regard to the issue of costs and accordingly, it is appropriate for that question to be reserved.

The Court makes the following orders:- (1) Pursuant to s 17 of the Roads Act the Court declares that the part of land known as Bennetts Grove Avenue, Paddington comprised in Certificate of Title Auto-Consol 1249-218 should not be dedicated as a public road pursuant to s 16 of the Roads Act.

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.