Weber v Ankin

10 Mr and Mrs Weber's property known as 13 Wallace Street is Lot 10 in the subdivision. Ms Ankin's and Ms Myers' property known as 11A Wallace Street is part of what was Lot 12, and abuts the lane. 11 On 17 February 1885, certificates of title volume 732 folio 10 and volume 732 folio 11 were issued. Certificate of title volume 732 folio 10 was the certificate of title for lot 11 in DP 1351. It showed that lot 11 was bounded by Birtley Street on the west, Glen Street on the south, lot 12 on the north and a "lane 25 foot wide" on the east. Certificate of title volume 732 folio 11 was the certificate of title for lots 1-10 and lot 12 of DP 1351. (The photocopy tendered appeared to describe the land as lots 1-11 rather than lots 1-10. This was either due to poor photocopying or a mistake. It is clear from the description of the area of the land in the certificate of title that the certificate of title did not cover lot 11 which was the subject of a separate certificate of title.) The plan on certificate of title volume 732 folio 11 also showed lots 10, 11 and 12 abutting a lane 25 foot wide. 12 Certificate of title volume 284 folio 45 had also included in it four lots in another subdivision. Those four lots had been transferred on 25 July 1877. After the registration of the transfer 87402 dated 2 December 1884 from Mr Campbell to Mr Sharp there is an undated entry on the certificate of title vol 284 folio 45 which reads "Cancelled as regards the land in above transfer 87402 see certificate of title vol 732 fol 10-11 Residue". The word "Residue" appears to denote that the land in transfer 87402 was the residue of the land in the certificate of title, after the transfer of lots 15, 18, 19 and 20 of section 3 DP 279 registered on 25 July 1877, rather than that there was a residue of land still covered by the certificate of title. That is so because all of the residue of the land in the certificate of title was the subject of transfer 87402. The certificate of title was stamped "cancelled". There is no evidence as to when that was done. At some time, possibly as late as the conversion of titles to a computer based system, a "W" was placed on the certificate of title against the stamp "cancelled" indicating its cancellation as to the whole. On 2 September 2003, this entry was changed and the initial "R" was placed on the certificate of title to indicate that a residue remained. 13 As at 1884, the position was that Mr Sharp had transferred all of the land, including the land marked on the 1884 plan of subdivision as a lane, to Mr Bushby. That transfer had been registered. New certificates of title had been issued to Mr Bushby in respect of lots 1-12, but not in respect of the lane. Nonetheless, the certificate of title volume 284 folio 45 was cancelled in respect of all of the land transferred to Mr Bushby. 14 An historian with the Marrickville Council, Ms Meader, produced from the Council's records a copy of a deed of dedication dated 29 March 1890. The document was a standard printed form with blanks to be completed. It stated that: " We the undersigned (Proprietors or Legal Representatives), hereby dedicate to the council for a public street the following piece or parcel of land viz:- Wallace Street Marrickville all that ... and being the Land tinted Red in the accompanying Plan. "

The document was signed on 9 April 1890 apparently by J Bushby and two others whose signatures are indecipherable. The form provided for a surveyor's description to be included, but that part of the form was left blank. No plan was attached to the copy of the deed of dedication produced by Ms Meader. I was informed by counsel that no such plan is now available. 15 It was submitted by Mr A Coleman who appeared for the Council that it should be inferred that the instrument of dedication related only to Wallace Street and not to the adjacent lane. No reason was advanced as to why in 1890 it should have been thought necessary to execute a formal instrument of dedication of Wallace Street. It appears from certificate of title volume 284 folio 45 and its reference to Glen Street East, and from the subsequent references to Glen Street and Wallace Street East, that Wallace Street had been a public road since before 1877. On the other hand, unless the unidentified signatures on the instrument of dedication were the mortgagees of Lot 11 (that lot had been mortgaged to Robert Taylor and John Booth Jones on 9 December 1887 and that mortgage had not been discharged as at April 1890), there is no obvious reason for persons other than Mr Bushby to sign an instrument of dedication if the land dedicated as a public road was merely the lane. The signatures do not appear to be the signatures of persons having the surname Jones or Taylor. 16 On 2 June 1890, a report was made by certain of the aldermen to the Council as follows: " We recommend that the offer made by [illegible] Bushby and others to dedicate Wallace Street - Illawarra Road to the Council be accepted as per overseers report. "

There is a notation " Adopted 2/6/90 ". The overseer's report is not available. The Council minutes are not available as only the minute books from December 1913 have been kept. 17 Between August and September 1890, James Bushby gave three successive mortgages over lots 1-10 and lot 12 of DP 1351 to the Bank of New South Wales. On 23 September 1904, Mrs Philadelphia Wymer became the registered proprietor of those lots pursuant to a transfer from the Bank of New South Wales in exercise of its power of sale. Lot 10 (now known as 13 Wallace Street, and owned by the plaintiffs) was transferred by Mrs Wymer to a Mrs O'Connor in 1909. Neither the transfer to Mrs O'Connor nor the certificate of title issued to her was tendered. Lots 8 and 9 were sold in 1910. Lots 1 and 2 were sold on 8 July 1912. By a transfer dated 29 November 1912, Mrs Wymer transferred part of Lot 12. It is clear from a later certificate of title that the part of Lot 12 then transferred was a northern part of Lot 12 with frontage to Livingstone Road. Mrs Wymer retained title to Lot 12 where it abutted Lot 11, the lane and Lot 10. (See certificate of title volume 3264 folio 29; exhibit 22.) 18 As noted above, Lot 11 was mortgaged to Mr Taylor and Mr Jones on 9 December 1887. (There had been a prior mortgage which had been discharged and which is not relevant.) After various transfers of the mortgage, the lot was sold by the mortgagees in exercise of their power of sale to a Mr Matthews. He became registered as proprietor of Lot 11 on 13 January 1911. 19 The Council's minutes of 2 March 1914 record that an application was received from Mr Wymer to have the lane at the rear of his property at Livingstone Road formed so as to permit an entrance by vehicle to the back portion. On 16 March 1914, the minutes record that Mr Wymer stated that he was prepared to carry out the work of forming the lane at the rear of his property on the Council paying him £40. The minutes record that he be informed that the Council could not accede to his request. The minutes of 30 March 1914 record: " G Wymer. With further reference to the construction of a cart track in the lane of his property and asking for £18 towards the construction. Received and referred to Works Overseer for report. " 20 The Works Overseer's report is not available. 21 The minutes of the Council's meeting of 18 January 1915 record: " On G Wymer's offer to roughly form lane of Wallace Street so as to give vehicle access through the lane to his premises fronting Livingstone Road. Received and referred to Works Committee for report. " 22 The Works Committee's report was received and adopted at a meeting of the Council on 1 February 1915. It is not known what the report contained. There is no record of the Council having spent money on Wallace Lane as requested by Mr Wymer, but the financial records are not complete. The fact that the request was made and the Council was prepared to consider the request by referring it to its Works committee for report, suggests that those involved believed, or assumed, that the Council had the care and maintenance of the lane. If the lane were a private lane, there is no obvious reason why Mr or Mrs Wymer would ask the Council to contribute to the cost of forming it. 23 A map of the area prepared by the Metropolitan Water Sewerage and Drainage Board following a survey of 21 January 1915 describes the lane as a private lane. A sewerage pipe was laid under Wallace Street and the lane and through Lot 12 and other lots. It can be seen from the survey map that Mr and Mrs Weber's house had been constructed by January 1915. A house had also been constructed on Lot 11 and two houses on Lot 12. Houses had also been built on the other side of Wallace Street. 24 Part IX of the Local Government Act 1919 (NSW) came into force on 1 January 1920. Part XII came into force on 1 July 1920. Section 237 (in Pt IX) and s 323 (in Pt XII) forbad the opening of new public roads except in accordance with the provisions of the Act. Existing public roads (a defined expression which included roads the public was entitled to use), other than a main road, were vested in the councils. 25 There is no evidence as to whether, and if so, how, the lane was used prior to 1 July 1920 other than such inferences as might be drawn from Mr Wymer's request from which it would appear that up to at least 1915 the lane was not capable of taking vehicular traffic. 26 The lane remained unnamed until the 1980s. Ms Meader gave evidence, which I accept, that there are many lanes within the Marrickville local government area which do not have names, some of which are private and some of which are public. 27 Lot 12 was further subdivided in 1923. It was subdivided into three lots: A, B and C. Lot C is now 11A Wallace Street and is owned by Ms Ankin and Ms Myers. A note on the 1923 plan of subdivision states that the subdivision was approved subject to Lot C not being used for residential purposes. There is no evidence as to whether that condition was subsequently formally rescinded. There is no access from Lot C to any road, except its access to the lane and thence to Wallace Street. 28 On 18 May 1923, a transfer was registered of part of Lot 12 from Mrs Wymer to Grace and Edith Nicholson. The part transferred was the land which was subsequently described as Lot B which abutted Livingstone Road on the west and whose south-eastern boundary abutted the northern end of the lane. New certificates of title were issued to Grace and Edith Nicholson on 21 May 1923 showing their land as abutting the lane. The balance of Lot 12 which Mrs Wymer had not previously transferred was transferred to a Mr Robert Bushby by a transfer dated 27 July 1934. That was a transfer of Lot C. A new certificate of title was issued on 18 February 1935 corresponding with Lot C in the subdivision. That certificate of title also described the land by reference to the plan shown on the certificate of title. It showed the lot as abutting the northern boundary of the lane. 29 Although neither the transfer of Lot 10 (that is, 13 Wallace Street) from Mrs Wymer to Mrs O'Connor on 29 January 1909, nor the new certificate of title issued in respect of that lot were in evidence, it is a reasonable inference from the certificates of title which are in evidence in relation to other lots in the subdivision that the new certificate of title would likewise have described Lot 10 by reference to a plan; and the certificate of title would have included a plan showing the lot as abutting the lane. The same is likely to be true in respect of the transfer of Lot 11. 30 The significance of this is that if the lane is not a public road, the transfers by the person entitled to ownership of the lane of land adjoining the lane, where the certificate of title of the land transferred described the land by reference to a plan showing that the land abutting the lane, would impliedly convey rights of way over the lane (Little v Dardier (1891) 12 LR (NSW) 319; Dabbs v Seaman at 546-548, 572-573; Lake Macquarie City Council v Luka [1999] NSWCA 447; (1999) 106 LGERA 94 at 98). In Lake Macquarie City Council v Luka, the Court of Appeal held that such a right of way not only enured to the benefit of the successors in title to the transferee, but was also enforceable against the successors in title to the transferor. 31 As Mr M Bradford, counsel for the first and second defendants pointed out, the plaintiffs did not propound a claim that they were entitled to a right of way over the lane on the basis of the implication from the description of the land appearing on the certificate of title to Lot 10. The certificate of title to Lot 10 was not tendered. However, the likely existence of such rights of way in respect of all of the owners of lots abutting the lane (if the lane is not a public road) is material to the claims of both the plaintiffs and the first and second defendants. 32 A survey of Lot 10 was carried out on 8 January 1960. It showed a substantial encroachment by Lot 10 over the lane. Wallace Street slopes steeply downwards from west to east. A retaining wall was constructed on the western side of Lot 10 on the lane. It can be inferred that the wall was constructed at the time the house on Lot 10 was built, that is, before 1915. The wall stands 4' 5.75'' inches over the lane on the southern boundary. The extent of encroachment diminishes in the northerly direction. 33 No witness had any knowledge of the lane and its surrounding areas prior to the 1960s. Mr Weber used the lane to move building materials to his property when he constructed extensions to the house on Lot 10 between 1965 and 1968. Mr and Mrs Weber used fill from excavation work they carried out on their land to build up a high mound of earth at the rear of their property adjacent to the lane. They have parked motor vehicles in the lane. When they carried out the building work in the 1960s, they used the lane to transport building materials. There is a sharp drop from the level of the lane to their back yard. Mr and Mrs Weber have parked a vehicle and trailers on top of the mound. They also store old building material and assorted rubbish on the mound. The access to that part of Lot 10 is via the lane. 34 In the 1970s, the then owner of 11A Wallace Street (that is, Lot C) used an electric hammer to chop rock on the northern side of the lane to level the lane. Mr Weber assisted in that work. The owner of 11A Wallace Street constructed the carport at the end of his property on the northern boundary of the lane. 35 I mention for completeness that in the 1960s and 1970s Wallace Street was also a cul-de-sac. It was closed at the bottom of the street near Illawarra Road. There is no evidence as to whether it was an open thoroughfare in 1877, 1890, and 1915, but whether it was or was not does not affect the status of the lane. 36 In 1973, the then owner of 11A Wallace Street, Mr Donnelly, applied to the Council for it to close the lane and sell it to him. A report from the Acting Chief Engineer to the Council described the lane as a public lane. The Council notified the other adjoining owners, two of whom objected the proposal. The Council decided that, in view of the objections, the requested closure and sale of the lane should not be proceeded with. At that time, the Council was clearly of the view that the lane was a public road. 37 A similar application was made by the next owner of 11A Wallace Street, a Mr Flanagan, in 1976. The report of the Municipal Engineer at that time stated that: " Any proposal to dispose of the lane would require prior to determination by the Land Board Office all adjacent owners to consent to the proposal. The disposal at this stage would limit the future amenity to the area as options would not be open in respect to access if sites 11 Wallace Street and 376 Livingstone Road were developed. "

He recommended: " The Council reaffirm its previous decision not to dispose of the laneway and that Mr Flanagan be advised that although property owners adjacent to the laneway do not at this stage utilise it for access they have an interest in maintaining the laneway in public ownership and that a Lands Department Form A400 being the application for the Closing and Purchase of an Unnecessary Road be forwarded to Mr Flanagan to illustrate that all adjacent property owners must consent to be successful in an application at the Land Board office. " 38 In the 1970s, the Council laid a concrete driveway in front of 13 Wallace Street and the lane. The Council also laid a bitumen surface along part of the lane adjacent to Wallace Street where the lane slopes downwards to Wallace Street. There is a pole carrying electricity in front of 13 Wallace Street some metres to the east of the lane. The concrete driveway was extended to the pole in front of 13 Wallace Street which has been regularly used by the Webers for parking, although such parking is not legal. The Webers paid $100 to the Council to extend the cementing to the pole to make a driveway in front of 13 Wallace Street. The balance of the cost of forming the driveway to the lane and laying bitumen on the lane was borne by the Council. 39 There are two power poles carrying overhead power lines on the lane. There is no evidence as to when they were constructed. 40 In March or April 1988, the Council erected a street sign naming the lane as Wallace Lane. 41 On 13 April 1988, Mr Weber was convicted on charges of standing an unregistered motor vehicle on Wallace Lane, depositing litter on Wallace Lane, and standing an unregistered backhoe on Wallace Lane. It was common ground that an essential element of these offences would have been that Wallace Lane was a public road. He was fined a total of $750 and ordered to pay costs. Again, this conduct of the Council is only consistent with its then being of the view that the lane was a public road. That is so notwithstanding that on 3 December 1985 the Council wrote to Mr McEnroe, solicitor, who acted for Mr Weber, advising that the Council had no "further records" to indicate whether the lane was a public or private lane. There was no evidence of what records the Council then had and to which it was referring when it indicated it had no "further" records on the subject. It must have been satisfied by 1988 that the lane was a public lane, although it subsequently took a different view when asked to carry out maintenance. 42 Ms Ankin and Ms Myers purchased 11A Wallace Street in about 1990. Ms Myers gave evidence that over the time of their residence in 11A Wallace Street the surface of the lane has deteriorated leaving bad ruts with a bumpy, uneven surface. This has been caused by the cars using the lane, primarily cars belonging to Ms Ankin and Ms Myers. In about 1997, the telephone line from 11A Wallace Street which runs under the lane became exposed. Ms Myers telephoned the Council to attempt to have the Council repair and maintain the lane. She contended that the Council should regularly mow and weed the lane. Shortly after March 1998, she requested the Council to apply roadbase over the lane to make a more even surface and prevent surface deterioration and exposure of the telephone line. She was advised that the Council would not provide roadbase. Problems with the telephone line continued until a new line was laid by Telstra in September 2001. In 1999, Council officers inspected and visited 11A Wallace Street and one of the officers told Ms Myers that she and Ms Ankin would be fined for allowing W2 weeds to grow in the lane. Ms Myers said that the lane was not their property but was owned by the Council. No action was taken against them. Until December 2001, Ms Myers made numerous telephone calls to the Council regarding maintenance to the lane. She and Ms Ankin had attended to mowing the lane and spraying it for weeds as well as cutting and pruning. On 5 December 2001, employees from the Council used a whipper-snipper to cut the grass and they also sprayed weeds. On 2 February 2002, there was a clear-up of the lane. This had been organised by Ms Myers with the Council. The Council employed a contractor to use a backhoe and whipper-snipper to clear the lane. 43 From time to time Mr Weber has mowed the grass on the lane, although he has done so infrequently once Ms Ankin and Ms Myers undertook the task. A hedge growing on the retaining wall of 13 Wallace Street (and within the boundaries of the lane as shown on the deposited plan, although not within its physical boundaries as built) is trimmed by the Webers from time to time when it extends to the lane as physically built. Ms Ankin gave evidence that she recalled seeing the Webers mow the grass and the lane only on two occasions, which were at least eight years before August 2004. Mr and Mrs Weber have also occasionally done weeding in the lane although it is not clear when they have done so. 44 On 22 January 2002, a registered surveyor, Mr McNiff, reported to the Council on the status of the lane. He wrote: " The laneway as requested has been searched at the Department of Land and Property Information and found to be the residue of Certificate of Title Volume 284 Folio 45. The land was originally shown in Deposited Plan 1351 which was surveyed in November 1884. As this subdivision pre-dates the implementation of the Local Government Act in 1920 and there and there is no record of the laneway being dedicated as a public road since that date, the fee of the laneway comprises the residue of the original certificate of title and remains in the name of John Campbell Sharp who was the original proprietor of the subject Certificate of Title or James Bushby who in Dealing No. 87402 was conveyed the whole of 20-25 in Section 1 in Deposited Plan 272 which included the site of the lane. If the Council accepts the care and maintenance of the laneway, it may be dedicated to the public as road by the preparation of a notification in the Government Gazette pursuant to Section 16 Roads Act 1993. " 45 The second paragraph quoted above contains an unexpressed assumption about a critical matter. The fact that the subdivision predated the implementation of the Local Government Act 1919 in 1920 and there is no record of the lane being dedicated as a public road since that date does not mean that the lane did not vest in the Council in 1920. It would have so vested in the Council if it were a public road as defined in the Local Government Act 1919. It would be a public road if the owner of the fee simple had professed his intention to dedicate the lane as a public road, and if that proffered dedication had been accepted before 1920. The proffered dedication could be accepted by members of the public using the lane as a public road before 1920, or, could be accepted by the Council. The question which needed to be answered before the Council could properly have taken the view that the lane was not a public road (which it had previously assumed and asserted it to have been) was whether it had been dedicated as a public road before 1920. 46 The Council did not address that question. Nonetheless, on 25 February 2002, the Council advised Ms Ankin that it had conducted "a thorough search to determine the ownership status of the lane". It advised that the results of the search indicated that the laneway was not owned by the Council and therefore the Council was not in a position, nor was it responsible, to undertake maintenance or repair works. On 27 February 2002, Mr Strickland, the Manager, Engineering, of the Council, wrote to Ms Ankin and enclosed a copy of Mr McNiff's letter of 22 January 2002. Mr Strickland wrote: " As discussed, the 'laneway' has never been dedicated as public road and, accordingly, its title remains in the name of one John Campbell Sharp. Council has not made any decision with regard to the future of this, or the many other similar 'laneways' in the local government area and, while Council will periodically control the weed growth therein, it is not appropriate for it to construct and seal the 'laneway' as it is not Council land. " 47 On 13 March 2002, Mr Strickland wrote again to Ms Ankin advising that: " There is no record of the 'laneway' ever being dedicated as a public road. It is assumed that John Campbell Sharp is long since deceased, so the land is now vested in his heirs and successors in title but Council has no record of their whereabouts.

The subject parcel may have been intended to provide access for sanitary services to the adjoining properties prior to the area being sewered. Its purpose now is solely for the provision of pedestrian and vehicular access to these properties and it provides little benefit to the community at large. ... At the present time the issue has not been resolved and Council has made no decision as to the future of this or the many similar 'laneways'. " 48 It will be recalled that the land in question was not described in the plan of subdivision as a "laneway", but as a lane. At the time of the subdivision, the word "lane" meant a species of street or road and ordinarily denoted a public way (Dabbs v Seaman at 552-553; Davey v Richardson & Wrench Ltd (1907) 7 SR 189 at 197). 49 The Council was joined as a party to the proceedings and maintained its contention that the lane was not a public road. It adduced further evidence which was not before me on 15 March 2007 when I ordered that it be joined as a defendant. No evidence was given as to the searches conducted by the Council in 2002 which led it to make the categorical assertions in its correspondence of 25 and 27 February and 13 March 2002. It proffered no explanation as to why in the 1970s and 1980s it had acted on the basis that the lane was a public road. The Council's correspondence of 25 and 27 February, and 13 March, 2002 has no evidentiary value on that question. 50 On about 1 May 2003, Ms Ankin and Ms Myers applied under s 45D of the Real Property Act 1900 (NSW) for possessory title over the lane. Until the Council asserted that the lane was not vested in it, Ms Ankin's and Ms Myers' position was that the Council was responsible for the maintenance of the lane. Their work in cutting the grass, weeding and pruning was undertaken not by way of assertion of any rights of ownership of the lane, but merely because the Council did not fulfil what they regarded as its responsibilities. Nor is there any evidence that Ms Ankin or Ms Myers ever sought to exclude the Webers from use of the laneway. The Webers parked a vehicle, or vehicles, on the laneway from time to time without objection from them. On rare occasions, a vehicle parked by the Webers or one of their visitors blocked access by Ms Ankin or Ms Myers to their carport. On those occasions, they asked for the car to be moved to permit access and that was done. On one occasion only Ms Ankin blocked a car parked on the mound at 13 Wallace Street. But that was on an occasion when she believed Mr Weber was away. Is the Lane a Public Road? 51 In 1884, although councils had the care, construction and maintenance of public roads other than main roads in their municipality, (s 117, Municipalities Act 1867 (NSW)) there was no statutory requirement for councils' approval to the dedication of a road as a public road. A municipality could not be compelled to take the charge or maintenance of a new road less than forty feet wide until the same had been fully made (s 117, Municipalities Act 1867; Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council (1960) 105 CLR 401 at 421). In 1884, a lane could be dedicated as a public road by a competent landowner manifesting an intention to dedicate the land as a public road and by the public acceptance of the proffered dedication (Permanent Trustee Co of NSW v Campbelltown Municipal Council at 420). 52 The public acceptance of the proffered dedication could arise either from the use of the road as a road by members of the public, or by acceptance by the relevant public authority on the public's behalf. Dedication was not complete by the expression of intention on the part of the landowner to dedicate land as a public road, but only became complete on the proffered dedication being accepted. Such acceptance could take the form of the local authority undertaking the care and maintenance of the road, such as by expending moneys on its formation, upkeep or lighting (Permanent Trustee Co of NSW v Campbelltown Municipal Council at 422). In my view, acceptance could also be effected by a formal act. 53 Prior to 1920, dedication of land as a public road did not divest the landowner of his or her title to the soil. (The position was otherwise if the land was compulsorily acquired and compensation paid, (Act 4 Wm IV No. 11, s 11).) Although the Council had control of a public road and was entitled to carry out works to it, the Council's rights were not rights of ownership. Hence, a council was not entitled to compensation on resumption of a public road by another public authority (Municipal Council of Sydney v Young (1898) 14 WN (NSW) 205b; [1898] AC 457), and did not have a proprietary interest sufficient to support a caveat (Tierney v Loxton (1891) 12 NSWLR 308; Municipal District of Concord v Coles (1905) 3 CLR 96). 54 The only statutory provision of which I am aware for the lodgment of the 1884 plan of subdivision was section 100 of the Real Property Act 1862 (NSW). It provided: " Any proprietor subdividing any land under the provisions of this Act for the purpose of selling the same in allotments as a township shall deposit with the Registrar General a map of such township provided that such map shall exhibit distinctly delienated [sic] all roads streets passages thoroughfares squares or reserves appropriated or set apart for public use and also all allotments into which the said land may be divided marked with distinct numbers or symbols and every such map shall be certified as accurate by declaration of a licensed surveyor before the Registrar General or a Justice of the Peace Provided that no person shall be permitted to practise as a surveyor under the provisions of this Act unless specially licensed for that purpose by the Surveyor General. " 55 In 1884, there was no requirement that a plan of subdivision, whether or not it provided for the opening of new roads, be approved by the local council. In Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216, Harvey J held (at 221) that the lodging of a deposited plan in the Land Titles Office showing the road as an open street and giving access to subdivided lots was an invitation to the public to use the street as such and was evidence from which the inference of dedication as a public road could be drawn (at 221). In Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council, Kitto J (at 412) and Windeyer J (at 422) approved of this statement. It is not entirely clear what his Honour meant by the expression "open street". Counsel for the Council and for Ms Ankin and Ms Myers submitted that the inference should not be drawn where the road shown was not a through road leading from one public road to another, but was a cul-de-sac giving access only to the subdivided lots. At common law a cul-de-sac could be a highway, that is, a public road, but the fact that the road was a cul-de-sac was "an important circumstance to be considered in weighing presumptive evidence of dedication" (Pratt & Mackenzie's Law of Highways, 15th ed, p 8; Bateman v Black (1852) 18 QB 870; 118 ER 329). 56 In Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council, Menzies J expressed himself more widely. His Honour said (at 415): " ... I regard it as an artificial and unreal conception that when roads are left in subdivision they are left as private roads merely for the use of those who want to get to land in the subdivision. It seems more realistic to treat such roads as shown as part of the general roadway system and as open to all so that unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road. " 57 Menzies J did not suggest that the inference that roads shown on a plan of subdivision are intended to be dedicated as public roads applied only where the road was open at both ends. His Honour's statement of principle was adopted by McHugh JA, with the concurrence of Kirby P and Hope JA in Newington v Windeyer (1985) 3 NSWLR 555 (at 559). McHugh JA said: " 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. "

This is consistent with treating as an "open street" a road which has not been closed, even though it is not a thoroughfare. The prima facie inference from the lodgment of the plan of subdivision is that Mr Bushby was proffering the lane for dedication as a public road. 58 Any doubts about that which might arise from the fact that the lane is a cul-de-sac, and not a thoroughfare, are resolved by the actions of the Registrar-General, with the evident concurrence of Mr Bushby, in not issuing a certificate of title for the lane. That is only consistent with the Registrar-General's office forming the view that the lane was intended to be a public road. 59 Even though a public road did not then vest in a local authority, it would not have been necessary to issue a separate certificate of title for the road because the adjoining land owner, Mr Bushby, would be presumed to own the soil of the road to its middle line. As he owned all of the adjoining lots he would be presumed to own the lane. The ad medium filum rule is that there is a rebuttable presumption that the owner of land adjoining a public highway is the owner of the soil up to the middle line of the road, and that a conveyance of land adjoining a public road conveys also the soil up to the middle line of the road, without, of course, affecting the status of the road as a public way. It was later held that the rule of construction applied to a transfer of land under the Real Property Act (In re Priddle) (1916) 16 SR (NSW) 54). This was ultimately confirmed by s 45A of the Real Property Act 1900 inserted in 1931. (Of course, from 1920, that presumption could not apply to transfers of land abutting public roads because the owners of the adjoining lands did not have title to the roads: see Peter Butt, Land Law, Lawbook Co, 5th ed at [242].) 60 On the other hand, there was serious doubt, not removed until 1911, as to whether the issue of a certificate of title for land which was a public road would vest the land in the registered proprietor free from its dedication to public use as a highway. That doubt was referred to but not resolved in Municipal District of Concord v Coles at 104-106. The point was not decided until Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354. In 1884, there would have been a perceived risk that the issue of a certificate of title for the lane could be inconsistent with the dedication of the lane as a public road. 61 Most significantly, it must be inferred that Mr Bushby was content not to receive a certificate of title over the lane. Mr Bushby's acceptance of that position is a further indication of his intention to dedicate the lane as a public road. 62 Section 232 of the Local Government Act 1919 provided that, except where otherwise expressly provided, every public road should vest in the council. This section applied to what were then present as well as to future public roads (s 223). The expression "public road" was defined in s 4 to mean: " road which the public are entitled to use, and includes any road dedicated as a public road by any person or notified, proclaimed or dedicated as a public road under the authority of any Act, including this Act, or classified as a main road in the Gazette of the thirty-first day of December, one thousand nine hundred and six. " 63 It was held in Lake Macquarie City Council v Luka at 101 that only roads whose dedication had been completed before 1920 vested in the local council pursuant to s 232 of the Local Government Act 1919, so that if the dedication had not been completed by that date, a road could only become a public road if the requirements of that Act were satisfied. It is unnecessary to consider in any detail the reasoning which has led to this conclusion, but in case the matter goes further, I venture the following comments. 64 In reaching this conclusion the Court of Appeal preferred the reasoning of Windeyer J in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council at 420 to that of Kitto J at 411. Windeyer J said (at 420) of the definition of "public road" in s 4: " What exactly this means is not clear. It seems suggested that it means that any road that any member of the public may use without being a trespasser is, for the purposes of the Act, a public road. That would include roads not dedicated for public use but which the public are permitted to use by a temporary licence or by a revocable but subsisting licence from the landowner. But as such they would come under the care of the council (s 249), would vest in the council in fee simple (s 232) and could not be closed to the public except by the council and in accordance with the Act. None of this would be consistent with a revocable licence. In my view, therefore, when the Act speaks of a public road as a road the public are entitled to use, it means land over which a public right of way exists - that is to say, a highway in the common law sense. The latter part of the definition I think merely indicates that the dedication that creates a highway may have been effected by any of the several methods there mentioned. "

65 With respect, this is a false dichotomy. It does not follow that because the definition was not intended to cover roads not dedicated for public use but which the public were permitted to use by revocable licence, that the definition did not extend to roads which had been dedicated for public use (in the sense that the land owner had proffered the dedication). There is no explanation as to why, once a road was proffered for dedication as a public road, the public were not entitled to use it as of right. A proffered dedication would entitle all members of the public, not particular individuals or classes of individuals, to use the road. The construction which has been adopted renders otiose the words "road which the public are entitled to use and". Nor, with respect, does Re a Caveat by the Council of the Municipality of Botany (1936) 36 SR (NSW) 615 bear on this question. Nicholas J was there only dealing with roads dedicated to the public under a subdivision made after 1920. 66 This is by the way. It follows from Lake Macquarie City Council v Luka that the lane was not vested in the Marrickville Council in 1920 merely because Mr Bushby had proffered a dedication of the lane as a public road. Nor could the Council's conduct in the 1970s and 1980s cannot amount to an acceptance of the dedication of the lane as a public road. The question is whether there was such acceptance before 1920. 67 Subsection 99(1) of the Local Government Act 1906 (NSW) provided that every person, other than a person acting by authority of the council, who proposed to open any road in order that the same might be used as a public road or as a means of access to two or more parcels of land should submit to the Council a plan and specification of such road with the prescribed particulars as to surface drainage. Any person who opened a road in order that the same might be used for such purposes without having obtained council approval was liable to a penalty (s 99(5)). Every person who opened any such road was required, before he sold, leased or otherwise disposed of any land having frontage to the road, to make the road and provide drainage according to the approved plan and specification to the Council's satisfaction (s 100). Section 101 distinguished between the opening of the road and its dedication to the public. In Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council, Windeyer J considered that it was at least doubtful whether any use after 1906 could make a dedication effectual if it had not become effectual before 1906 (at 423), and later expressed that view more definitely (at 424). However, in Owen v O'Connor [1963] SR (NSW) 1051 at 1059-1060, Sugerman J held to the contrary. It is now settled that in respect of a pre-1906 subdivision regard can be had to acts done up to 1 January 1920, (including acts done after that date from which inferences can be drawn as to conduct before that date) to determine whether the dedication was completed (Newington v Windeyer at 563; Lake Macquarie City Council v Luka at 102). 68 I noted in my earlier judgment that s 226 of the Local Government Act 1919 required councils to classify all public roads, except main roads, as secondary roads, residential roads, pathways or lanes. The section required that councils publish such classification in the Gazette and in a newspaper. Section 230 required councils to prepare a road map and a road register of the area showing, inter alia, every public road which was either classified or aligned, and showing such classification. Ms Meader gave evidence that there is no record of the Marrickville Council having prepared such a road map or road register. No party tendered from the Gazette or any newspaper a published roads classification as envisaged by s 226. I take it that no such classification was made, or if it was made, it was not published and no record of it exists. There is no assistance to be had from this quarter. 69 The law is not very clear as to what acts were sufficient to amount to acceptance of a proffered dedication. In most cases at common law, acceptance is by the public using the road as a road. In Sutherland Shire Council v Registrar-General (1991) 72 LGRA 84, Young J (as his Honour then was) said (at 92-93): " In the great majority of cases, acceptance of a dedication is proved by user: see, eg, Cubitt v Maxse (1873) LR 8 CP 704 at 715 and Attorney-General v City Bank of Sydney (at 220). It must be realised that such user is only evidence that there has been acceptance by the public: the user itself does not constitute such acceptance: Poole v Huskison (1843) 11 M & W 827 at 830; 152 ER 1039 at 1041; Mann v Brodie (1885) 10 App Cas 378 at 386 and Stewart v Wairoa County Council (1908) 28 NZLR 178 at 188. In Attorney-General v Esher Linoleum Co Ltd [1901] 2 Ch 647 at 649, Buckley J pointed out that: ' In all these cases of right of way it is necessary to remember that the thing to be established is dedication, not user. A highway is not acquired by user. ... User is but the evidence to prove dedication ... .'" 70 The cases cited were more directed to the question of whether public use was sufficient evidence of the landowner's intention to dedicate land as a public road, but I adopt his Honour's formulation. 71 In England, acceptance of the dedication could also be by the parish (R v Mellor (1830) 1 B & Ad 32 at 37; 109 ER 699 at 701). In New South Wales municipalities had the care and management of public roads other than main roads from the commencement of the Municipalities Act 1858, (ss 73 and 82 Municipalities Act; s 117 Municipalities Act 1867; s 75 Local Government Act 1906). They stood in a like position to the parish. In Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council, Windeyer J said (at 422): " A declared intention to dedicate would be ripened into dedication by public user of the land of the road, or by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road. " 72 Windeyer J gave the expenditure of money by the public authority on the road as an example of how the authority could take over the road. Clearly, his Honour did not say that such expenditure was the only way in which that could be done. Under both the Municipalities Act 1867 and the Local Government Act 1906 a council had the control and management of a road in its municipality only if the road had become a public road, and was only potentially liable to maintain the road if the dedication of the road as a public road had been accepted. It follows that, in theory at least, acceptance of the road as a public road should precede the council's expenditure on it. Expenditure is evidence from which the inference of acceptance should be drawn. 73 In his paper "Public Roads in New South Wales" read to the Institution of Surveyors (NSW) on 24 October 1933 and printed in The Australian on 1 December 1933, Mr V Le Gay Brereton, a senior examiner of titles with the Registrar-General's department observed: " Expenditure by Public Authority - If the owner of a way, being competent to dedicate, permits a public authority, such as a Municipal or Shire Council, to expend money on the way, as by making, repairing or lighting it, and the authority would not have been entitled to incur the expense unless the way was a highway, an intention to dedicate may be inferred against the owner. Acceptance by the Public - Acceptance by the public may be inferred from user; but sometimes may be found in a document,, such as the memorandum of dedication sometimes used when the land is under the provisions of the Real Property Act, 1900. There the evidence is that of acceptance by the Council of the Municipality or Shire, which is regarded as evidence of acceptance on behalf of the public generally, that being necessary, for there cannot be a dedication to part of the public, a fact which indicates that the expression 'dedication to the Council,' which one sometimes sees, should not be used. As justification for regarding the acceptance of the Council as sufficient, one may quote the words of Mr. Justice Littledale in R. v Mellor (1830) 1 B, and Ad., 32 at p. 37 - 'A road becomes public by reason of a dedication of the right of passage to the public by the owner of the soil, and of acceptance of the right by the public or the parish.' Even if there be a doubt on that point, user by the public, as soon as it occurs, will supply evidence of acceptance. Parenthetically, I may here remark that the memorandum of dedication in use in the Land Titles Office derives no efficacy from the Real Property Act, 1900, which does not expressly deal with dedication. The memorandum is merely evidence on which the Registrar-General acts in performing what has been held to be his duty - to note the existence of highways in the register. " 74 Presumably, the reference to the Registrar-General's duty to note the existence of highways in the register is to Municipal District of Concord v Coles at 106, 113 and 116. The force of the "memorandum" would appear to be as a formal act of acceptance of the proffered dedication. The printed form in 1890 with the Council's endorsed acceptance of the proffered dedication would perform the same function. 75 In Sutherland Shire Council v Registrar-General, a landowner, Mr Holt, had proffered a dedication of land as a public road by notice published in the Government Gazette in 1886, in return for the grant of other land. In 1887, there was a Crown grant of other land which recited the dedication by Mr Holt of his land for public roads. Young J held that this did not constitute an acceptance which consummated the dedication. His Honour said (at 95): " It seems to me that unless there has been some action taken by the public after the dedication, such as user or public expenditure, the mere issue of the 1887 Grant does not of itself amount to an acceptance by the public. " 76 I do not understand his Honour here to be saying that in all cases acceptance can only be by public use or public expenditure. The case was very different. His Honour was not dealing with acts of acceptance by a local council responsible for the control and management of public roads. (Presumably, the land in question was not within any municipality because counsel's argument was that there was no authority, other than the Crown itself, responsible for the maintenance of public roads (at 94).) His Honour's conclusion that the Crown Grant referring to the dedication was not an acceptance on behalf of the public of the proffered dedication does not bear directly on this case. Indeed, his Honour said (at 93) that "in appropriate cases acceptance by the public may be shown by some other way than user" and cited Re City of Toronto Plan M188 (1913) 11 DLR 424 with apparent approval. His Honour described that case as deciding that "where the city council was the appropriate body to accept a highway on behalf of a locality, its consent to a plan showing the road was sufficient evidence of acceptance." In that case, the question was whether a road had been "assumed by [a municipal corporation] for public use". Middleton J said (at 429): " ... the memorandum executed by the city, and attached to the instrument filed in the Land Titles Office ... amounts, within the meaning of the statute, to an assumption by the city of the road in question for public use. By this instrument the city has, in the most formal way, accepted the said avenue as a public highway. " 77 I think this case, its citation in Sutherland Shire Council v Registrar-General, and Mr Le Gay Brereton's paper, all point in the direction that an act of formal acceptance of a proffered dedication by a public body having responsibility for the maintenance of public roads was, at common law, a sufficient act of acceptance. Public expenditure on the road was a basis upon which acceptance could and should be inferred but, as is implicit in the passage from the judgment of Windeyer J in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council cited in para [71] above, it was not the only way in which such a public body could accept the dedication on behalf of the public. 78 In Sutherland Shire Council v Registrar-General, Young J also considered a submission expressed in the following terms, " ... if there is an intention to dedicate and relevant statutory procedures have been followed with the result that the body responsible for the maintenance of public roads became liable to maintain particular land which its owner had evinced an intention to dedicate, the land became a highway whether or not there had been any public user. " 79 His Honour did not accept this submission but said that if works had been done, then that might be material from which the Court would conclude that there had been acceptance of the dedication. His Honour added that "it seems to me difficult to say on the authorities that the mere assumption of a liability to maintain land is sufficient to amount to an acceptance of a dedication." (at 95). 80 It does not appear from the report what it was that was said in Sutherland Shire Council v Registrar-General to have amounted to an assumption of liability to maintain a road. As I have said above, the case, or at least counsel's submission, proceeded on the premise that it was the Crown itself and not a council of a municipality which was responsible for the maintenance of public roads. His Honour was not dealing with the question of what acts by a local council responsible for the control and management of public roads in its municipality would be sufficient to constitute an acceptance of a dedication on behalf of the public. 81 In my view, if the plan accompanying the formal dedication of Wallace Street by Mr Bushby and others to the Council in 1890 included the lane, the Council's formal acceptance of the proffered dedication on 2 June 1890 would have completed the dedication. The plan was not produced and I accept that this was because it is not now available. The question is whether the lane was within the lines marked red on the accompanying plan and formed part of the dedication. Although on the front page of the instrument of dedication the lane is not identified, that could be because the lane was unnamed. Further, the persons who drew the instrument of dedication did not include the metes and bounds description of the land to be dedicated which the form contemplated, being content to rely upon the plan. 82 The question is whether dedication of the lane in 1890 by acceptance of the instrument is a likelihood and not merely a possibility. In my view, it is. Given that in 1884, the plan of subdivision was lodged showing the lane as a road leading into Wallace Street in circumstances where, for the reasons above, Mr Bushby intended to dedicate it as a public road and the Registrar-General treated it as a public road by not issuing a certificate of title for it, it would be strange for the red boundary marking out the limits of the road to have crossed the lane so as to show the lane, in effect, as a closed road. Moreover, as I have said, there is no apparent reason for Mr Bushby and others in 1890 to have dedicated Wallace Street as a public road given that it had been opened as such before 1877. It may have been necessary to define the boundary of the road. But whatever the reason for a formal dedication of Wallace Street, it is likely, having regard to the plan of subdivision lodged but six years previously, that the delineation of Wallace Street as a public road included the unnamed lane leading into it. 83 This would explain why in 1914 and 1915 Mr Wymer (being the husband of the owner of Lot 12 in the subdivision) and the Council, were both of the view that the Council had responsibility for the making of the lane as a road. If the lane was not a public road, or the Council did not intend to accept it as such so as to complete the dedication, it had no business in even considering Mr Wymer's request for a financial contribution towards the making of a track to take vehicles. By s 75 of the Local Government Act 1906, the Council had the control and management of all public roads in its area. It was empowered to make or open ditches, gutters, tunnels, drains and watercourses on private land adjoining any public road (s 76), but that was not the work proposed. None of its functions under the Local Government Act 1906 extended to making a footpath or track suitable for vehicles on private land, or contributing to the cost of such work, which would only benefit private persons if the lane were not a public road. 84 The matter came before the Council on three occasions in 1914 and 1915. On the first occasion, the request for £40 contribution was refused. The reasons for the refusal are not expressed in the minute. However, it can be inferred that the reasons did not include that the land was not a public road and not the Council's responsibility. If that reason were given to the first request in 1914, it is unlikely there would have been any further requests. The second request for ₤18 contribution to the construction of a cart track was referred to the overseer for report. It can be inferred that the overseer did not report that the request should be rejected because the lane was private land. If that view had then been taken, either by the overseer or by the Council on receiving the overseer's report, Mr Wymer's proposal would not subsequently have been referred to the Works Committee. The subsequent referral of the proposal to the Works Committee indicates that the Council was then of the view that the lane was a public road of which it had the control and management. If that were not so, the proposal was not a proper matter for referral to the committee. 85 The way in which the Council dealt with Mr Wymer's second proposal corroborates the inference I would otherwise draw that the lane had been included in the dedication of Wallace Street in 1890. The referral of Mr Wymer's proposal to the Works Committee, after having previously received an overseer's report, shows that the Council was then exercising a function under s 75 of the Local Government Act 1906 in relation to the control and management of the lane as a public road. That is so even if the Council's ultimate decision was not to pay any money towards the making of the lane as a track suitable for vehicles. 86 It may be arguable that even if there had been no completed dedication prior to 1914 or 1915, by referring Mr Wymer's request to the Works Committee for its report, having already received a report from the overseer, the Council assumed the control and management of the lane by deciding whether available funds should be spent on works to the lane. That is, even if the dedication of the lane had not been completed in 1890, in the absence of any indication in the minutes that the Council was considering whether to accept the lane as a public road, it might be inferred that the Council was deciding whether or not to spend money on the upgrading of the lane in the exercise of the functions conferred on it under the Local Government Act 1906. Its only relevant function under that Act was the control and management of public roads. In the absence of a minute to the effect that the proposal was beyond its function, it might be inferred that it exercised its functions under s 75 of the Local Government Act 1906 in the management of public roads in its area. A decision under s 75 as to the management of the lane as a public road might arguably be an acceptance of the proffered dedication of the lane as a public road. There was no argument on the question whether there could be such an acceptance after the landowner who proffered the dedication of the land as a public road ceased to own the adjoining lands, and arguably ceased to own the lane. It is unnecessary to decide these questions. I conclude that the dedication of the lane as a public road was accepted by the Council in 1890 and the minutes of 1914 and 1915 are corroborative of that fact. 87 It was common ground that so far as the records show, rates had not been levied. By itself that would not indicate that the lane was a public road, but the non-levying of rates on the owner, or owners, of the lane is consistent with its being a public road. 88 I do not consider that the map prepared by a surveyor from the Metropolitan Water and Sewerage and Drainage Board in 1915 describing the lane as a private lane carries any weight. Unless that person was familiar with the business of the Council he would only be able to form an impression of whether the lane was a public or private road by its physical formation. It can be inferred that the lane was substantially unformed, at least it was not sufficiently formed to give vehicle access. It is likely to be that, coupled with the fact that the lane was a cul-de-sac, that would inform such a surveyor's opinion. In my view, it is the evidence from the Council's records which is determinative of the question. 89 For these reasons, I conclude that before 1920, the lane was dedicated as a public road. Under the Local Government Act 1919, it vested in the Marrickville Council. There should be a declaration to that effect. It was not suggested by any party that the Court lacked jurisdiction to make such a declaration. The First and Second Defendants' Claim to Title by Adverse Possession 90 Counsel for Ms Ankin and Ms Myers submitted that even if the lane were a public road, they had acquired title to it by adverse possession. The claim was based on s 45D of the Real Property Act 1900. That section provides: " 45D Application for title by possession

(1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and: (a) the land is a whole parcel of land, (b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and (c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register, that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land. (2) Where, at any time after the commencement of this Part: (a) a person is in possession of part only of a whole parcel of land, and (b) any boundary that limits or defines the land in the person's possession is, to the extent that it is not a boundary of the whole parcel of land, an occupational boundary that represents or replaces a boundary of the whole parcel, the person may, unless the part of the whole parcel of which the person is in possession lies between such an occupational boundary and the boundary of the whole parcel that it represents or replaces, apply to the Registrar-General to be recorded in the Register as the proprietor of the same estate or interest in that whole parcel of land as could have been the subject of an application by the person under subsection (1) if the land in the person's possession had been that whole parcel of land and subsection (1) (b) and (c) had been complied with in relation thereto. (2A) A person who: (a) is in possession of part of a residue lot that could, if it had been a whole parcel of land, have been the subject of an application by the person under subsection (1), and (b) is (or is entitled to be) the registered proprietor of an estate in fee simple in land that adjoins that lot, may apply to the Registrar-General to be recorded in the Register as the proprietor of an estate in fee simple in land consisting of a consolidated lot comprising the part of the residue lot in the person's possession and the adjoining land. (2B) In subsection (2A), residue lot means an allotment consisting of a strip of land that the Registrar-General is satisfied: (a) was intended for use as a service lane, or (b) was created to prevent access to a road, or (c) was created in a manner, or for a purpose, prescribed by the regulations. (3) A possessory application may not be made in respect of an estate or interest in any land, or in any part of any land, of which: (a) Her Majesty or a Minister of the Crown, (b) a statutory body representing the Crown, (c) a corporation which is constituted by an Act and of which, in the case of a corporation aggregate, at least one of the members is appointed by the Governor or a Minister of the Crown, or (d) a council or county council within the meaning of the Local Government Act 1993, is the registered proprietor. ... (5) A possessory application shall be in the approved form and shall be accompanied by such evidence and documents of title, and (in the case of an application under subsection (2A)) such evidence of concurrence on the part of the local council, as the Registrar-General may require. Note. With an application made under subsection (2A), it is not necessary to include a consolidated plan at first instance. ... " 91 It was submitted for Ms Ankin and Ms Myers that the lane was a "residue lot" within the meaning of s 45D(2A) and (2B), being an allotment consisting of a strip of land that was intended for use as a service lane. A "service lane" is not defined. Counsel submitted that the lane which serviced 11A Wallace Street was a service lane within the meaning of the section. 92 I do not accept this submission. First, I do not accept that Ms Ankin and Ms Myers were in possession of "land under the provisions of this Act" within the meaning of s 45D(1). Their contention is that the land was under the provisions of the Act because it was included within the certificate of title volume 254 folio 45 which currently states that the certificate has been cancelled except as to a residue portion. That endorsement is the result of an amendment to the certificate of title made in 2003. Prior to then the certificate of title had been wholly cancelled, as it should have been at least from 1920. When, in 1920, the lane vested in the Council pursuant to the Local Government Act 1919, it was not under the provisions of the Real Property Act 1900. The subsequent incorrect alteration to certificate of title volume 254 folio 45 did not bring the lane under the provisions of the Real Property Act 1900. The lane remains vested in the Council by force of statute. It cannot be divested from the Council pursuant to s 45D of the Real Property Act 1900. 93 Even if the lane were land under the provisions of the Real Property Act 1900 possessory title can only be claimed if the title of the registered proprietor of the estate or interest in the land would have been extinguished as against the person in possession pursuant to the statutes of limitation (s 45D(1)(b)). The title in question is not the title of the registered proprietor of the estate or interest in the land, but the title of the Marrickville Council which was vested in it in 1920 by virtue of s 232 of the Local Government Act 1919 and is now vested in the Council by s 145 of the Roads Act. Moreover, at common law, the dedication of a road to the public could not be extinguished by adverse possession. In Dawes v Hawkins (1860) 8 CB NS 848; 141 ER 1399, Byles J said (at 858, 1403-1404): " It is also an established maxim, - 'once a highway always a highway': for, the public cannot release their rights, and there is no extinctive presumption or prescription. The only methods of legally stopping a highway are, either by the old writ of ad quod damnum, or by proceedings before magistrates under the statute. " 94 Mr Bradford referred to the Minister's Second Reading Speech for the Land Titles Legislation Amendment Bill of 19 September 2001, which, he submitted, showed that it was Parliament's intention that the amendments to s 45D to permit claims for adverse possession to parts of service lanes should apply to a lane such as Wallace Lane. However, it was there made clear that the amendments did not affect public lanes. 95 It follows that if, as I have concluded, the lane was a public road, the title of the Council to the road could not be divested pursuant to s 45D, even if the possession of Ms Ankin and Ms Myers was such as would have extinguished the title of the documentary owner had the lane remained as private land owned by Mr Bushby and his heirs, or by the owners of the adjoining lots. No Title by Adverse Possession if the Lane were a Private Lane 96 If, contrary to my view, the lane is not a public road, Ms Ankin and Ms Myers are still not entitled to it by reason of adverse possession. As indicated in paras [28] and [30] above, the evidence of transfers of 11A Wallace Street show that the land transferred was the whole of the land in the designated certificate of title. The various certificates of title for the land depicted the land as abutting the lane, and they show the lane leading to Wallace Street. In Dabbs v Seaman, Isaacs and Starke JJ held that the certificate of title was the governing instrument in determining what rights were transferred by the transfer of land described in the certificate of title (at 543, 546-547, 574-575). Dabbs v Seaman establishes that if the lane had not been dedicated as a public road when Lot 12 was transferred by Mr Bushby to Mrs Wymer, the transfer created a right of way over the lane to Wallace Street. (See also Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council per Windeyer J at 421-422; Lake Macquarie City Council v Luka at 93.) If the lane was not subsequently dedicated as a public road, the successive transfers of the subdivided part of Lot 12 which became 11A Wallace Street in turn conveyed those rights of way. 97 In Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 43 NSWLR 364, Young J (as his Honour then was) said (at 372): " Anyone who relies on Dabbs v Seaman in the light of its subsequent history is a bold person. From Jobson v Nankervis (1943) 44 SR (NSW) 277; 61 WN (NSW) 76 onwards it has been considered that Dabbs v Seaman is a very special case and must be closely confined because it is outside all general principles. The current edition of Baalman, Commentary on the Torrens System, namely Woodman and Nettle, The Torrens System in NSW by Butt & Ticehurst (1996) Law Book Co at [42.300] points out the problems. "

However, in Lake Macquarie City Council v Luka , the Court of Appeal described Dabbs v Seaman as settled law (at 98). 98 The acts of Ms Ankin and Ms Myers upon which their counsel relied as giving rise to title to the lane by adverse possession was the continuous use of the lane to provide access to 11A Wallace Street both on foot and by car and parking in the lane. To this might be added work done in keeping down the grass and weeds on the lane. However, if the lane was not a public road, Ms Ankin and Ms Myers were still entitled to a right of way over it both on foot and by car. Their use of the right of way could not give them title by adverse possession. The parking of their car from time to time on the lane which did not obstruct any other person's use of the lane and the controlling of weeds and cutting of grass were not acts which could give rise to a title by adverse possession. None of those steps were taken with a view to excluding others from the lane. (That is true also of the use of the lane as a footway and a carriageway.) 99 Even if Ms Ankin and Ms Myers are not entitled to a right of way over the lane, the evidence would fall far short of justifying a claim to a possessory title (assuming that the lane remains private land). To establish a title by adverse possession so as to extinguish the documentary owner's title to the land after the expiry of the limitation period in which the documentary owner could claim recovery of the land, it would be necessary for Ms Ankin and Ms Myers to show they were in possession of the lane with the intention of possessing it. As Professor Butt says: " ... The squatter must have an intention to possess - an 'animus possidendi'. There can be no 'possession' in law without an intention to possess. By this is meant an intention to exclude the whole world, including the documentary owner, from the land 'so far as is reasonably practicable and so far as the processes of the law will allow'. This is not the same as an intention to own the land (although that may be present); all that is required is an intention to possess the land to the exclusion of all others. But merely to use the land for personal convenience, with no intent to exclude all others, is not enough. " (Peter Butt, Land Law , Lawbook Co, 5th ed, at [2214]). 100 Ms Ankin and Ms Myers had no such intention. They did not seek to exclude other persons from parking on the lane, provided that their use of the lane was not obstructed. They saw it as the Council's responsibility to maintain the lane. The basis upon which they claim possessory title was that the lane was necessary for their enjoyment of the property. It provided their only means of access. Their electricity, telephone and water services are provided via the lane. Their mailbox is situated at the end of the lane on Wallace Street. They contended that the adjoining neighbours at 11 and 13 Wallace Street and 372 Livingstone Road (all of which abutted the lane) were not able to access their properties via the lane and that only Mr and Mrs Weber used the lane to store an occasional unused car but not for access. 101 I do not accept the description of the alleged lack of use of the lane by Mr and Mrs Weber contained in Ms Ankin's and Ms Myers' statutory declaration in support of their application for possessory title. Mr and Mrs Weber also used the lane as the means of access to the mound at the rear of their property on which they stored a trailer or parked a car, and placed various unsightly materials which have variously been described as either junk or second-hand building materials. 102 Counsel for Ms Myers and Ms Ankin relied on Rose v Curtis (1995) 7 BPR 14,430 which concerned an application for possessory title of a strip of land where, it was submitted, the only acts of possession were the use of the strip as a driveway which was held to be sufficient to sustain the claim for possessory title. Young J emphasised that the parties to the dispute did not include the documentary owner and that as against a person invading the claimant's possession without any title himself, the slightest amount of possession would be sufficient to recover as against a mere trespasser (at 14,433). In that case, it appears that as well as using the land as a driveway, the plaintiff had constructed a driveway. More significantly, there was no evidence from the adjoining landowner who contested the claim for possessory title of having made any use of the strip, and there was no evidence, as there is in this case, that the claimant to a possessory title did not use or occupy the land with the intention of excluding all others. 103 Mr Bradford submitted that it was not necessary to establish such an intention. However, to establish that the possession of the claimant to possessory title is adverse to that of the documentary owner so that the statute of limitation commences to run (s 38 Limitation Act 1969 (NSW)), there must be both an appropriate degree of exclusive physical control of the land in question and an intention to possess that land to the exclusion of all others including the true owner (Woodward v Hazell (1994) 2 Tas R (NC) N4; [1994] ANZ ConvR 623 cited in Shaw v Garbutt (1996) 7 BPR 14,816; BC9603589 at 25-26 and 41; Re Riley & the Real Property Act (1964) 82 WN (Pt 1) (NSW) 373 at 380; Buckinghamshire County Council v Moran [1990] Ch 623 at 643; Permanent Trustee Co Ltd v Pangas (1992) 75 LGRA 412 at 418-421). 104 Whilst it is not fatal to their application that, until 2002, Ms Ankin and Ms Myers believed that the lane was owned by the Council, it is fatal that they did not intend to exclude others including the Council from possession of the lane. Their demands between 1991 and 2001 that the Council repair the surface of the lane to protect the underground telephone cable is inconsistent with an intention to exclude all others, as was their acceptance of the right of the Webers to use the lane, including by parking vehicles on it. The facts bear some comparison in Permanent Trustee Co v Pangas where it was held that although parking cars may be some indication of a claim of adverse possession, the significance of such conduct will depend on the facts and the nature of the land. As in that case, the claimants to adverse title by possession did nothing to repel others from using the lane but were neighbourly to such persons. Ms Ankin and Ms Myers did not intend to possess the lane to the exclusion of others. Their claim to title by adverse possession would therefore fail even if the lane were not a public road. Mr and Mrs Weber's Claim to Title by Adverse Possession to Land Enclosed by the Retaining Wall 105 There is no dispute that if the lane is private land, Mr and Mrs Weber would have title by adverse possession (if they do not have title by the ad medium filam rule) to the pathway adjacent to the western boundary of their house which is situated on the lane as it is shown on the deposited plan but which has been enclosed by a retaining wall. The land lies several feet below the surface of the lane. It physically forms part of 13 Wallace Street. Only the owners and occupiers of 13 Wallace Street have used it. 106 However, for the reasons I have given, Mr and Mrs Weber could not acquire title by adverse possession to the part of the lane enclosed by the retaining wall where the lane is a public road. 107 In case my conclusion that the lane is a public road is wrong, I will deal with the only other issue which would then arise concerning Mr and Mrs Weber's claim to title by adverse possession. If Mrs Wymer, on becoming registered as the owner of lots 10 and 12, also became the owner of the lane up to its mid point, she might impliedly have conveyed to Mrs O'Connor title to a portion of the lane which included the land enclosed within the physical boundary of 13 Wallace Street on the transfer of Lot 10. Section 45A of the Real Property Act 1900 describes the ad medium filum rule as a rebuttable rule of construction. Section 45A provides: " 45A Construction of dealings relating to land abutting on streams or roads

(1) Except as in this section mentioned, the rebuttable rule of construction applicable to a conveyance of land therein indicated as abutting on a non-tidal stream or a road, that the land extends to the middle line of the stream or road, shall apply, and be deemed always to have applied to dealings registered under the provisions of this Act relating to land indicated in the dealings as so abutting. (2) The fact that an applicant to bring land abutting on a non-tidal stream or a road under the provisions of this Act has not expressly declared that the applicant was entitled to the bed or part of the bed of the stream or to the road or part thereof shall not, but the fact that the applicant had not a title to any part of the bed of the stream or to any part of the road shall prevent the application of the rule mentioned in subsection (1) to a folio of the Register evidencing title to the land or part of the land which was the subject of the application. (3) (Repealed) " 108 In Permanent Trustee Co Ltd v Campbelltown Municipal Council, Windeyer J said (at 425) that the rule applied to conveyances of land abutting private roads as well as public roads. His Honour cited Holmes v Bellingham (1859) 7 CBNS 329; 141 ER 843. In that case, Cockburn CJ said (at 336-337): " That presumption is allowed to prevail upon grounds of public convenience ... and it is based upon the supposition - which may be more or less founded in fact, but which at all events has been adopted, that, when the road was originally formed, the proprietors on either side each contributed a portion of his land for the purpose. I think that is an equally convenient and reasonable principle whether applied to a public or to a private road: but in the latter case it must of course be taken with this qualification that the user of it has been qua road and not in the exercise of a claim of ownership. ... " 109 I do not consider that the presumption applies in the present case. The first reason is that neither the certificates of title to Lot 10 nor the transfers of that lot are in evidence. Secondly, Mrs Wymer did not obtain title to lots 10 and 12 by transfer from the registered proprietor. She bought those lots from the mortgagee. The mortgage was not in evidence, and I see no reason to presume that the mortgage, on its proper construction, included a mortgage of part of the lane, bearing in mind that the mortgage operated as a statutory charge and not as a conveyance of the mortgaged land. 110 It follows that had I concluded the lane was not a public road, Mr and Mrs Weber would have established title by adverse possession to the strip of land physically enclosed by the retaining wall. Imposition of Easements Under s 88K to Provide Rights of Way 111 Given my conclusion that the lane is a public road, there can be no occasion for the imposition of easements under s 88K. All parties, being the owners of land adjoining the lane, which is a public road, are entitled to pedestrian and vehicular access to the lane (s 6(1) Roads Act). 112 If I am wrong in my conclusion that the lane is a public road, there would be no reason to impose a right of way over the lane in favour of the owners of 11A Wallace Street because they already enjoy such rights on the basis of Dabbs v Seaman. On 6 August 2004, the Council, whilst disclaiming any interest in the lane, advised that it considered that easements for drainage and utility services should be granted access to adjoining properties where necessary. No application was made to amend the summons or cross-claim to extend the easement sought and no submissions were developed in relation to the question of whether any further easements should be imposed under s 88K. In view of my conclusion that the lane is a public road, it is unnecessary to take that matter further. 113 Mr and Mrs Weber sought an order for the imposition of an easement under s 88K to afford them a right of way along the lane to the rear of their property. In particular, they contended that a right of carriageway ought to be imposed so as to allow them access to the rear of their property for parking. The mound has not regularly been used for parking. Mr and Mrs Weber sought development approval to allow the construction of a carport at the rear of their property. They obtained development consent over the opposition of Ms Ankin and Ms Myers. The consent has subsequently lapsed. It was subject to various conditions including a condition that Mr and Mrs Weber obtain an easement along the lane to provide access to the carport. Ms Ankin and Ms Myers object to the construction of the carport and the continued use of the lane by Mr and Mrs Weber. They oppose the application for the imposition of an easement under s 88K. They point out that, for the most part, Mr and Mrs Weber have parked their car in the street, or on the concrete driveway in front of their property which was constructed by the Council in the 1970s. They submit that where the Webers already have a parking space in front of their property, it is not reasonably necessary for the effective use of 13 Wallace Street that they have a right of way over the lane. 114 Section 88K of the Conveyancing Act relevantly provides as follows: " 88K Power of Court to create easements

(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. ... " 115 On 11 May 2005, the Council wrote to Mr and Mrs Weber in relation to the concrete driveway on the front of their property. The Council advised that the area in question formed part of the public way (that is, part of the footpath on Wallace Street) and should not be used for parking vehicles. Any allocated off-street parking was to be within the boundaries of the allotment. The area of the concrete driveway was also less than the Australian standards provide as the size for a car parking space. I accept that for the Webers to use that part of the driveway to Wallace Lane which is formed in the front of 13 Wallace Street as a parking space would amount to an obstruction of the footpath and would be contrary to r 197 and r 198 of the Australian Road Rules. 116 There is no restriction on Mr and Mrs Weber parking cars in Wallace Street. It is generally a quiet street, although parking can be difficult on the weekend when sport is played on playing fields off Illawarra Road. That mostly affects the availability of parking spaces at the bottom of Wallace Street. More significantly, Wallace Street is an extremely steep street. Mr Weber gave evidence, which I accept, that some cars parked in Wallace Street have rolled down the hill because of its steepness. The events about which Mr Weber spoke appear to have taken place before about 1973, when Wallace Street itself was a cul-de-sac. Mr Weber said that he "lost" a truck in that way and that cars of visitors to the nursing home (being Lot 11) parked in the street were also "lost" in this way. Ms Houston was the Director of the nursing home at 11 Wallace Street. She said: " It is an extremely steep street. I know my nurses would have difficulty parking there. I think it is one of the steepest hills in Sydney, so yes, it is difficult to park. " 117 The problem of parking on the steep slope is ameliorated for Mr and Mrs Weber by parking on the concrete driveway in front of their house or in the lane. If the lane is not a public road, and if Mr and Mrs Weber did not otherwise have the right to park on it, or to access the mound at the rear of their premises from it, and if, as is the case, they are not lawfully entitled to use the concrete driveway in front of their house for parking, then I would be satisfied that it is reasonably necessary for the effective use of their land that an easement be imposed which would allow parking access off Wallace Street. They also have a large number of motor vehicles, some of which are used by their sons. As at 2004, Mr Weber owned six registered vehicles. 118 A new block of units has been constructed on 11 Wallace Street to replace the nursing home. There was no satisfactory evidence as to the number of car parking spaces available in the block of units or the likely demand for car parking spaces from occupiers of the units or their visitors. 119 Mr and Mrs Weber also seek the imposition of the easement in order to obtain development consent for the construction of a carport on the rear of their land. That is, they submit that the imposition of the easement is reasonably necessary for the effective development of the land. Ms Ankin and Ms Myers submitted that the proposed development for erecting a carport would substantially interfere with their access to their own property. The proposed mode of ingress and egress to the carport would create a risk of accidents on the lane. It would increase the likelihood of disputation in the future. It would prevent Ms Ankin's and Ms Myers' second car from being parked on the western side of the lane adjacent to the carport as that space would be needed to manoeuvre a car from the proposed carport into the lane. Their second car would have to be parked further down the lane. 120 In 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504, Hodgson CJ in Eq (as his Honour then was) said (at 508-509): " It is clear that 'reasonably necessary' in s 88K(1) does not mean 'absolutely necessary', and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement: Tregoyd Gardens v Jervis (Hamilton J, 25 September 1997, unreported); Goodwin v Yee Holdings Pty Ltd (Windeyer J, 6 November 1997, unreported); Re Seaforth Land Sales Pty Ltd's Land [No 2] [1977] Qd R 317.

In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement. " 121 The impact of the imposition of the easement on the owner of the servient tenement and third parties is relevant to the assessment of reasonable necessity. The greater the burden, the stronger the case needed to justify a finding of reasonable necessity (Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045; (2000) 9 BPR 17,303 at 17,308 [42]; Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120 at 129; Khattar v Wiese [2005] NSWSC 1014 at [27]; (2005) 12 BPR 23,235; D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419 at [14]). 122 I consider that the proposed construction of a carport is a reasonable development. It is consistent with the Marrickville Development Control Plan No. 35 which requires the provision of one car parking space per dwelling house, and encourages the parking of vehicles at the rear of properties off laneways instead of along the street. It will not affect the streetscape. Such a carport would be visible from adjoining properties and also from a distance. However, the existing mound and items stored on it are also visible from adjoining properties and are unsightly. The construction of a carport in accordance with plans which would need to be approved by the Council, in replacement of the mound, could not have an adverse aesthetic effect. No doubt the users of the carport at 11A Wallace Street, and the users of a carport to be constructed at 13 Wallace Street would need to take care when entering and leaving the carport to avoid collision. However, that is not a serious burden. 123 Accordingly, if the lane were not a public road, and if 13 Wallace Street was not already entitled to a right of way along the lane, I would consider that an easement for carriageway was reasonably necessary for the effective use and development of 13 Wallace Street. There would be no occasion for paying compensation to the heirs of Mr Bushby pursuant to s 88K(4) who, on the assumption that the lane is not a public road, would be entitled to the fee simple; it not having been shown that the transferees of the adjoining lots took title to the middle of the lane. 124 Nonetheless, even if I had concluded that the lane was not a public road, on the evidence adduced, I would not have made an order for the imposition of such an easement. Before making an order imposing such an easement, I would need to be satisfied that Mr and Mrs Weber were not already entitled to a right of footway and carriageway over the lane on the principle in Dabbs v Seaman. If, as is likely, their certificate of title has at all times described their lot by reference to a plan which shows the lot as abutting the lane, I would infer that they are already entitled to a right of footway and carriageway. Were it necessary to do so, and if application were made to that effect, I would allow the plaintiffs to reopen to adduce such evidence and to amend to claim a declaration as to the existence of such a right of way, or alternatively to reopen to show they were not already entitled to such a right of way so that an easement should be imposed under s 88K. 125 It is unnecessary to take these matters further having regard to my conclusion that the lane is a public road. Conclusion 126 For these reasons I declare that Wallace Lane, Marrickville is vested in fee simple in the Marrickville Council. The claims of both the plaintiffs and the first and second defendants to possessory title over the lane should be dismissed. The claims for the imposition of easements under s 88K should be dismissed. As the lane is a public road, Mr and Mrs Weber did not have a proprietary interest justifying the lodgment of a caveat under s 74F of the Real Property Act 1900. Their caveat should be removed. There should be a declaration that the first and second defendants do not have possessory title to all or part of the lane. On the making of such a declaration, there is no need to grant an injunction restraining the Registrar-General from proceeding with the first and defendants' application for possessory title. 127 I make the following declarations and orders:

1. Declare that Wallace Lane, Marrickville ("the lane") is vested in fee simple in the Marrickville Council.
2. Declare that the first and second defendants do not have a title by adverse possession to all or part of the lane.
3. Order that the further amended summons be otherwise dismissed.
4. Order that caveat no. 9915569 be removed forthwith.
5. Order that the amended cross-claim be otherwise dismissed.
6. Exhibits may be returned after 28 days. 128 I will hear the parties on costs.

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