Street Alignment Act 1844

• Street alignment refers to the legal determination of the exact line of a street within a town as originally surveyed, subject to authorised deviations (s 1). The Act treats alignment as a function of physical boundary marks , posts or marks on houses , rather than merely a matter of plan coordinates, though plans are later signed and kept as evidence.
• Boundary posts and marks are the physical artefacts that “indicate and define the position, direction and breadth of the several streets” (s 6). They are owned by the Town Trust, not the Crown or the landowner. They cannot be interfered with: nailing anything to them, or wilfully injuring, defacing, or disturbing them, attracts a fine not exceeding $40 (s 9). If a house or substantial erection is correctly placed at a block corner such that a post cannot be erected there, the letters may be marked on the house itself instead (s 5).
• Authorised land officer is the key official empowered to enter allotments, erect posts, dig holes, and remove fences, walls, or other erections that are in the way (s 3). The term is defined in s 17 by reference to the Land Administration Act 1997, meaning it is not a free‑standing role but borrows the definition from that modern statute. That Act likely designates officers in what is now the Department of Planning, Lands and Heritage or equivalent.
• Town Trust refers to the body in which streets were vested under the 1841 An Act to provide for the improvement of Towns in the Colony of Western Australia (now repealed). Although that parent Act is no longer in force, the Street Alignment Act continues to refer to the Town Trust as the recipient of plans, the owner of posts, and the recipient of fines (ss 6, 8, 11, 12, 15). In modern Western Australian local government, that function is likely exercised by the local government authority for the relevant town or city, though the Act has not been formally updated to use modern terminology.
• Survey and plan form the documentary foundation. The authorised land officer causes a survey to be made “as nearly as possible” in accordance with the original survey, except where a deviation has been sanctioned by the Governor in Executive Council (s 1). The resulting plan is produced in duplicate, signed by the Governor, and kept in separate places: one with the Department (now the Land Administration Act 1997 department) and one with the Town Trust chair (s 7). Either signed plan or a certified copy is admissible as evidence of the streets in any legal proceeding. New allotments follow the same process (s 12).
• Compensation for land taken is an important limitation on the alignment power. Section 1 provides that no alteration can be made so as to lessen the quantity of land contained in any allotment granted in fee‑simple by the Crown “without compensation being given for the portion so taken away.” This is a rare, explicit property‑rights protection within a statute otherwise heavily weighted toward public authority. It applies only to Crown grants in fee‑simple, not leasehold or other tenures, and only where the original survey deviation lessens the allotment. The quantum and method of compensation are not specified, leaving that to common law or other statute.
• Limitation of actions under s 13 creates a highly protective regime for anyone acting in pursuance of the Act: 30 days’ notice of any action must be given, the action must be brought within six calendar months of the “fact committed,” and the defendant can plead the general issue and give the Act in evidence. If the defendant succeeds, they recover double costs. If the plaintiff succeeds, the court may deny costs unless the judge certifies approval. This is a classic “protection for public officers” provision from the 19th‑century tradition, though the Limitation Act 1935 s 48A(2) (set out in the notes) may repeal such notice and time limits for actions to which section 47A of that Act applies , likely actions for personal injury or damage, but the note does not fully incorporate the scope.

The Act primarily affects five groups:

1. Local government authorities (formerly Town Trusts). The Chairman or acting‑chairman is required to receive signed plans (ss 7, 12), adjust street lines between posts (s 8), inspect boundary posts annually each December and report to the Governor (s 11), and arrange for renewal or repair of posts at the Trust’s cost (s 11). Fines for offences are payable to the Town Trust (s 15). Modern local governments in towns covered by the original 1844 surveys inherit these duties, though many of the original town trusts no longer exist as separate bodies. The Act imposes recurring compliance obligations (annual inspection, maintenance of posts) that may be impracticable where posts no longer exist or where the street alignment has been superseded by later subdivision approvals under the Planning and Development Act 2005 or the Land Administration Act 1997.

2. Landowners and occupiers of allotments within towns laid out by the colonial government. They must tolerate entry by an authorised land officer and assistants onto their allotments for the purposes of the Act, including the erection of posts, digging holes, and removal of fences, walls, or other erections that are in the way (s 3). They must not obstruct or hinder the officer or assistants, on penalty of up to $20. They also must not allow any erection to project into the aligned street lines when the Chairman removes it (s 8). If a landowner holds a fee‑simple grant from the Crown and an alteration under s 1 lessens the allotment, they are entitled to compensation , but the burden is on them to claim it, and the Act does not specify how. Additionally, they must not nail, fasten, or affix anything to boundary posts, nor wilfully injure, deface, or disturb them (s 9). The penalty is up to $40 , a small sum today but it still creates a legal obligation.

3. Authorised land officers as defined by the Land Administration Act 1997. They are the individuals empowered to survey towns, enter allotments, erect posts, and prepare plans. They must cause surveys to be made (s 1) and lay duplicate maps before the Governor for new allotments (s 12). They enjoy statutory protection: any person obstructing them is liable to a fine (s 3). They are also protected from civil liability by the limitation period in s 13, provided they act in pursuance of the Act.

4. The Governor in Executive Council must approve any deviation from the original survey (s 1), sign the duplicate plans (ss 7, 12), and may direct the renewal or repair of posts at the Trust’s expense (s 11). In practice, this function is exercised by the Minister and the Executive Council as a formal step, but the real decision‑making likely rests with the department administering the Land Administration Act 1997.

5. Prosecutors and courts have a role in enforcing the relatively minor penal provisions (ss 3, 8, 9). Offences are dealt with summarily in a magistrates court (s 15). The short limitation period of one month (s 14) creates a tight window for bringing prosecutions, which may deter enforcement for all but the most current breaches. Persons contemplating civil action against anyone acting under the Act must comply with the 30‑day notice rule and six‑month limitation, although they may need to check whether the Limitation Act 1935 has overridden those requirements for some types of claims.

Duties:

• Duty of the Chairman of the Town Trust (now likely the local government CEO or mayor) to examine and inspect all boundary posts and marks every December, and make a written report of their state and condition to the Governor (s 11). If posts need renewal or repair, the Governor directs it, and the Trust must pay for it (s 11). The same Chairman must, after receiving the signed plan, “proceed forthwith to adjust and regulate the lines of streets between the posts or marks according to such plan, and for that purpose to remove any material or erection whatsoever which may project into the lines of streets so defined” (s 8). This duty attaches immediately upon delivery of the plan and is mandatory (“he is hereby authorised and required”). There is no express exception for inconvenience or hardship to adjacent landowners.

• Duty of the authorised land officer to cause a survey of every town “as nearly as possible in accordance with the survey originally made of such town” (s 1), with power to deviate only if a prior deviation was sanctioned or if found necessary during the survey for rectification of a street “so as not to interfere with any substantial brick or stone building already erected.” The officer must also, for any new block of allotments creating a new line of communication, lay duplicate maps before the Governor in Executive Council (s 12). The officer must report the completion of surveying and marking of streets to the chief executive officer of the Department (s 7).

• Duty of persons not to obstruct an authorised land officer or assistants in the execution of their duties (s 3, penalty $20); not to obstruct the Chairman or his employees when adjusting streets and removing projections (s 8, penalty $20); not to mortice, nail, or fasten any rail, post, paling or other material to boundary posts, nor wilfully injure, deface, or disturb any boundary post or mark (s 9, penalty $40).

Rights:

• Right of entry and removal: The authorised land officer or any assisting person may enter upon any allotment for the purposes of the Act, erect posts, dig holes, and remove parts of fences, walls, or other erections that are in the way (s 3). The Chairman has the right to remove any material or erection projecting into the aligned street lines and place it on immediately adjacent land (s 8). These rights are not conditional on notice or consent, though the Act provides no express power of forcible entry, so common law constraints (such as entry at a reasonable time) likely apply in the absence of a warrant.

• Right to compensation: An allotment holder whose fee‑simple Crown grant is lessened by an approved deviation under s 1 is entitled to compensation. The Act does not specify the amount, the assessment method, or the liable party (the Crown or the Town Trust). This right is limited to fee‑simple grants and to alterations that “lessen the quantity of land contained in any allotment.” It does not extend to other tenures or to damage to improvements. The right is a restraint on state power but is vague enough to invite litigation over its scope.

• Defence rights: Anyone sued for an act done in pursuance of the Act may plead the general issue or plead specially, give the Act and the special matter in evidence, and if the court or jury finds that the matter was done under the Act, or that the action was brought without 30 days’ notice, or after satisfaction tendered, or after six months, the defendant shall have judgment and double costs (s 13). However, as noted, the Limitation Act 1935 s 48A(2) may repeal the notice and time provisions for certain actions (those to which s 47A of that Act applies). So the defence may not be available for, say, personal injury claims. Section 14 also defends potential defendants by requiring prosecution to be commenced within one month of the offence.

Rights of the Town Trust: The boundary posts and marks are the property of the Town Trust (s 6). The Trust receives the duplicate signed plan (ss 7, 12). Fines are paid to the Trust (s 15). The Trust bears the cost of post renewal and repair (s 11), but that cost is presumably funded from rates or other revenue.

The Act creates three specific penal provisions and one general limitation enforcement rule. All penalties are low in modern dollar terms , reflecting their 1844 origins , but the fines were increased to dollars when the Decimal Currency Act 1965 amended the Act (No. 113 of 1965). The maximum amounts are:

• Obstruction of an authorised land officer or assistants - forfeit and pay a sum not exceeding $20 (s 3). This covers wilfully obstructing or hindering the officer when entering allotments, erecting posts, digging holes, or removing fences, walls, or erections needed to place posts.

• Obstruction of the Chairman (or delegate) when adjusting street lines - forfeit and pay a sum not exceeding $20 (s 8). This applies to wilfully obstructing or hindering the Chairman or anyone employed by him when removing material or erections that project into the defined street lines.

• Interference with boundary posts or marks - fine not exceeding $40 (s 9). This covers two separate acts: (a) morticing into, nailing, or otherwise fastening any rail, post, paling, or other material to a boundary post or mark; and (b) wilfully injuring, defacing, or disturbing any boundary post or mark. The word “wilfully” in the second limb imports a mental element , the act must be intentional rather than merely negligent. The penalty for such an offence is the highest under the Act.

Enforcement procedure: All offences are to be dealt with summarily in a court of summary jurisdiction , that is, a Magistrates Court (s 15). No minimum fine is specified; the court has discretion up to the cap. Any penalty or forfeiture imposed must be paid to the Town Trust of the town in which the offence was committed (s 15). This creates an incentive for local government to bring prosecutions, as the fines flow directly to them, not consolidated revenue.

Limitation on prosecutions: Section 14 requires that all prosecutions for recovery of forfeitures and penalties under the Act be commenced “within one calendar month after the offence committed.” This is an unusually short limitation period. It operates as a complete bar: if the prosecution is not commenced within the month, the court has no jurisdiction to hear it. This is a significant practical barrier to enforcement. A local government that discovers a damaged post in December, for instance, may need to bring proceedings by January , a tight window that may be impossible if the offender is unknown or the offence occurred earlier. The month runs from the date of the offence, not the date of discovery. For continuing offences (e.g., a structure kept projecting into a street line), each day may be a fresh offence, and the limitation period may begin afresh each day , but that is a matter of judicial interpretation.

Civil enforcement: The Act does not provide for civil penalties, only criminal fines. However, a person acting under the Act may also use self‑help to remove projections (s 8) without needing a court order. The landowner’s remedy for wrongful removal is a civil action, but s 13’s limitations apply: 30 days’ notice, six‑month limitation, and double costs for a successful defendant. Those procedural hurdles make it difficult for a landowner to challenge an overreach.

Effectiveness: The low fines (maximum $40) and one‑month limitation make the penal provisions largely symbolic in the 21st century. No enforcement action is known in recent decades. The real compliance driver is the power of the Chairman to remove projections and the fact that boundary posts, once placed, are physical evidence that discourage encroachment because the risk of removal without compensation (subject to s 1) deters speculative building across the line. But that depends on posts actually existing and being maintained, which s 11 requires , yet the annual inspection duty is itself probably widely ignored.

The Street Alignment Act 1844 does not operate in a vacuum; it interacts with several more modern Western Australian statutes, and some of its provisions have been impliedly repealed or modified. The key interactions are:

• Land Administration Act 1997 (No. 31 of 1997). This is the most significant modern statute because it now supplies the definition of “authorised land officer” (s 17 of the 1844 Act). The Land Administration Act 1997 also vests all Crown land management in the Minister and the Department, and provides for the survey and recording of land boundaries. Section 141 of that Act amended ss 7 and 12 of the 1844 Act to replace references to the “Colonial Secretary” and “Surveyor General” with references to the “chief executive officer of the Department within the meaning of the Land Administration Act 1997” and the “Department.” This integration means that the survey and plan functions under the 1844 Act are now administered by the same department that handles Crown land dealings and the Register of Deeds and Titles. The Land Administration Act 1997 also contains its own powers of entry for survey and investigation (Part 9), which are broader and more modern. Where there is inconsistency, the later Act likely prevails, but the 1844 Act’s specific requirement for boundary posts and annual inspection by the Chairman (a local government function) is not replicated in the 1997 Act, so it may survive as a local government duty.

• Local Government Act 1995 (No. 38 of 1995). The Town Trusts referenced in the 1844 Act were the predecessors of modern local governments. Under the Local Government Act 1995, a local government has the function of managing streets and public places (s 3.1). The Local Government Act 1995 also gives councils the power to regulate street alignment through local laws, and to require building setbacks. The 1844 Act’s mechanism of physical boundary posts is a historical artefact that may sit alongside or be superseded by modern planning approvals that set street lines by deposited plans and coordinates rather than by posts. However, the 1844 Act is still in force, so a local government could theoretically still rely on it to remove unauthorised projections from aligned streets. The annual inspection duty in s 11 may be discharged through routine street maintenance regimes under the Local Government Act 1995.

• Planning and Development Act 2005 (No. 38 of 2005). This Act governs land use planning and subdivision. Street alignment under the 1844 Act is relevant to the definition of a “road” or “street” for subdivision purposes. The Planning and Development Act 2005 requires that subdivision applications include plans that show existing and proposed roads, and those plans must generally conform to the street lines as defined in any deposited plan or, theoretically, as defined by the 1844 Act’s boundary posts. In practice, modern subdivision approvals under the 2005 Act will supersede any older alignment, because the Western Australian Planning Commission and local government have power to approve new street lines and reserves. The 1844 Act applies to “streets vested in the respective trustees of each such town” (preamble). If a new subdivision creates a new street under the 2005 Act, the 1844 Act does not automatically apply , s 12 does provide for new blocks of allotments creating new lines of communication, but only where an authorised land officer lays maps before the Governor. That mechanism has likely been replaced by the subdivision approval process.

• Evidence Act 1906 and common law admissibility: Section 7 provides that a plan signed by the Governor in Executive Council, or a certified copy, “shall and may be given in evidence of such streets or lines of communication in any cause or suit regarding the same.” This is a special admissibility rule that overrides any common law hearsay or authenticity objection. Section 12 extends the same rule to new allotment plans. This remains useful: if a dispute arises over whether a particular area is a public street, the signed plan is prima facie evidence.

• Criminal Code Act Compilation Act 1913 and Sentencing Act 1995: Section 15 of the 1844 Act requires offences to be dealt with summarily. The Criminal Code sets the general law of crimes, but the 1844 Act creates its own specific offences (obstruction and post damage), which are not codified in the Criminal Code. The Sentencing Act 1995 applies to the imposition of fines. The Criminal Law Amendment (Simple Offences) Act 2004 (No. 70 of 2004) s 82 deleted s 10 of the 1844 Act (which had created an offence of obscuring marks with building materials). That deletion simplified the Act but removed what was arguably a useful provision.

• Limitation Act 1935: Section 13 of the 1844 Act imposes a 30‑day notice period and a six‑calendar‑month limitation for actions against persons acting under the Act. However, the note to s 13 in the compiled Act sets out s 48A(2) of the Limitation Act 1935, which repeals any provision in any Act that enacts that “in an action to which section forty‑seven A of this Act applies,” the action must be commenced within a particular time or notice must be given. Section 47A likely relates to actions for personal injury or death (the note does not reproduce s 47A). Therefore, if a person is injured by the removal of a projection (e.g., the Chairman’s workers negligently drop a wall on someone), that action may be exempt from the 1844 Act’s special limitations. Practitioners must check the current Limitation Act 2005 (the 1935 Act has been largely replaced by the Limitation Act 2005), but the note retains the 1935 reference. The Limitation Act 2005 (No. 13 of 2005) has its own scheme for personal injury and other actions, and it generally displaces inconsistent earlier limitation provisions. So s 13 may be substantially obsolete for many types of claims.

• Charter of the United Nations Act 1945 (Cth) and Human Rights: No specific interaction, but the property right in s 1 (compensation for fee‑simple grants) is a form of implied property protection. In the absence of a bill of rights in Western Australia, this provision is a rare statutory constraint on executive action that lessens private land. It is narrow but meaningful for affected owners.

The Street Alignment Act 1844 has been amended twelve times since its enactment, and several sections have been deleted. The original Act was passed as “Untitled” (8 Vict. No. 8) on 22 August 1844. The short title “Street Alignment Act 1844” was inserted by the Statute Law Revision Act 1970 s 3. The key amendments are:

• Standard Survey Marks Act 1924 (No. 8 of 1924) s 8: Deleted sections 2 and 4 of the 1844 Act. Section 2 originally addressed reference marks and s 4 dealt with something else now lost; their deletion simplified the Act but removed detail. This amendment was made because the 1924 Act provided a comprehensive regime for standard survey marks, overlapping with the 1844 Act’s post system.

• Decimal Currency Act 1965 (No. 113 of 1965) s 8(1): Substituted references to pounds, shillings, and pence with dollar amounts: the fine for obstruction in ss 3 and 8 was set at $20, and the fine for interfering with posts in s 9 at $40. These amounts have never been increased, despite inflation.

• Limitation Act 1935 (No. 35 of 1935) s 48A(2): Repealed certain limitation and notice provisions in other Acts for actions to which s 47A of the Limitation Act applies. The note in the compilation says this amendment took effect on 1 March 1955, because the 1935 Act as originally passed was later amended (by No. 73 of 1954) to insert s 48A. This has the effect of potentially nullifying parts of s 13 of the 1844 Act for actions covered by s 47A (likely personal injury), but the note explicitly reproduces s 48A(2) without specifying which actions are affected. The exact interaction is ambiguous and may require judicial resolution.

• Acts Amendment (Land Administration) Act 1987 (No. 126 of 1987) Part III: This was a major modernising amendment. It substituted “authorised land officer” where previously specific titles (Surveyor General, etc.) were used, and inserted the definition in s 17. It also amended ss 1 and 3 to replace obsolete penalties and references. The definition now points to the Land Administration Act 1997 (which replaced the 1987 Act’s references via later amendments).

• Criminal Law Amendment Act (No. 2) 1992 (No. 51 of 1992) s 16(1): This amendment made changes to the Criminal Code but also affected the 1844 Act , however, the compilation table shows it only as an amending law without specifying what was changed. Reviewing the note in the compilation (the Act text provided) does not show any explicit amendment to sections, so its effect may have been to repeal related provisions elsewhere.

• Sentencing (Consequential Provisions) Act 1995 (No. 78 of 1995) Pt 75: This Act inserted the current s 15 (summary jurisdiction and payment of penalties to Town Trust) and deleted the former s 16. It was part of a package to align penalty enforcement with the new Sentencing Act 1995.

• Acts Amendment (Land Administration) Act 1997 (No. 31 of 1997) s 141: Updated references to “chief executive officer” and “Department” in ss 7 and 12 to reflect the Land Administration Act 1997 regime.

• Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004) s 141: This deleted the former s 16 (which had become redundant after the 1995 amendments) and made minor textual changes.

• Criminal Law Amendment (Simple Offences) Act 2004 (No. 70 of 2004) s 82: Deleted s 10, which had made it an offence to affix any substance that would obscure a boundary mark.

• Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (No. 84 of 2004) s 78: Made conforming amendments to procedural language.

• Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006) s 452(2): Amended references to chief executive officer in s 7 to reflect administrative changes.

The Act has not been amended since 2006. It remains in force as a relatively obscure, 180‑year‑old statute, largely superseded in practice by modern planning and survey law but not yet repealed.

The compilation of the Act provides no reference to any reported cases interpreting or applying the Street Alignment Act 1844. A search of Western Australian case law databases (including the Supreme Court of Western Australia, the State Administrative Tribunal, and the Magistrates Court) does not yield any significant decisions citing this Act in the past century. This is not surprising given the Act’s narrow scope, its low penalties, and the fact that most street alignment matters are now handled through planning approvals, subdivision conditions, and common law nuisance or trespass actions. The Act may have been cited in historical property boundary disputes, but no authoritative precedent exists in the published records.

There are several reasons for the absence of litigation:

• The Act’s procedures are largely administrative and self‑executing: the Chairman removes obstructions without a court order, so there is no need to sue to enforce alignment. The only litigation risk is from landowners aggrieved by the removal, but s 13’s procedural hurdles (short limitation, double costs) deter such suits.

• The one‑month limitation on prosecutions (s 14) makes it difficult for local governments to bring enforcement actions, and the maximum fine of $40 is too low to justify legal costs. Hence, few if any prosecutions are brought.

• The Act’s definition of streets by physical posts has been eclipsed by plan‑based survey systems under the Transfer of Land Act 1893 (now Land Administration Act 1997 and Planning and Development Act 2005). Modern title boundaries are defined by deposited plans and coordinates, not by posts that are subject to decay and interference.

• The compensation provision in s 1 could have generated litigation if a landowner claimed compensation for an alignment deviation that lessened their fee‑simple allotment. No such case appears in the reports. This may be because the Governor in Executive Council rarely exercises the deviation power, or because any deviation is absorbed into the Crown’s power to create and vary town plans subject to the Planning and Development Act 2005, which has its own compensation provisions (s 195 of that Act provides for compensation for injurious affection from planning decisions, which may subsume the s 1 right).

The practical effect is that the Act is a “sleeping” statute: it provides a legal foundation for the existence of street alignments in historic towns, but its operative provisions are almost never enforced or litigated. Any modern dispute about a street boundary is far more likely to be resolved under the Land Administration Act 1997 (which governs survey marks and road boundaries) or the Local Government Act 1995 (which gives councils the power to manage roads). The 1844 Act remains relevant only as a source of evidence , the signed plans under ss 7 and 12 are admissible as evidence of streets, and that admissibility could be crucial in a title dispute where older plans are missing from Lands Titles Office records.

The Act contains several traps for the unwary , whether local government officers, landowners, or legal practitioners , that arise from its archaic language, its incomplete modernisation, and its interaction with later law.

• The annual inspection duty still exists. Section 11 requires the Chairman of the Town Trust (read: the local government CEO or mayor) to examine and inspect all boundary posts every December and report in writing to the Governor. Failure to comply is not itself an offence under the Act, but it creates a legal duty that could be enforced by mandamus or used as evidence of neglect in a boundary dispute. Most local governments likely do not inspect 180‑year‑old posts or maintain written reports to the Governor. This creates a compliance gap. If a property owner suffers loss because a missing boundary post led to an encroachment and the local government had not inspected, the owner might argue that the local government’s failure to comply with s 11 contributed to the loss. Similarly, the Governor’s office probably does not expect to receive such reports, but the Act requires it.

• Penalties are ridiculously low, but the offence remains. The maximum fines of $20 and $40 have not been updated since 1965 (when they were converted from pounds). Even then, they were modest. In 1965, $20 was roughly two weeks’ wages; today it is less than an hour’s work for many trades. However, the existence of the offence creates a strict liability risk for anyone who attaches a sign, fence, or cable to a boundary post that is still standing and identified as a boundary post under the Act (s 9). The Act does not require the local government to prove that the person knew it was a boundary post , the offence is “not to ... nail or fasten ... any rail, post, paling or other material whatsoever ... or ... wilfully injur[e], defac[e] or disturb[].” The first part appears to be absolute liability; the second requires wilfulness. A telco or internet installer who drills a bracket into a concrete post that was originally a boundary post (now decades old and unlabelled) could theoretically be prosecuted. The risk is low but not zero.

• The one‑month prosecution limitation is a trap for local governments. Section 14 says prosecutions “must be commenced within one calendar month after the offence committed.” This is far shorter than the standard six‑month limitation for summary offences in the Criminal Code (s 68(2)) or the Sentencing Act 1995. If a local government discovers a damaged boundary post in March but cannot identify the offender until April, the month has passed. The limitation runs from the date of the offence, not discovery. For continuing offences (e.g., a structure projecting past the aligned line), each day is a fresh offence, but s 14 may still bar prosecution for days older than one month. The local government must act very quickly.

• Section 13’s limitation of civil actions is ambiguous and potentially partially repealed. The note says the Limitation Act 1935 s 48A(2) repeals certain time and notice provisions. That means for actions to which s 47A of the 1935 Act applies (likely personal injury), the 30‑day notice and 6‑month limitation do not apply , the standard Limitation Act periods apply (3 years for personal injury). For property damage or pure economic loss, s 48A(2) may not apply, so s 13 might still be in force. The ambiguity is problematic: a practitioner cannot be certain whether s 13’s protections apply until they analyse the scope of s 47A, which is not reproduced in the compilation. The wise course is to assume s 13 is inapplicable for personal injury claims but potentially applicable for other claims. This uncertainty increases litigation risk for anyone acting under the Act.

• No compensation for improvements, only for land taken. The compensation proviso in s 1 applies only when an alteration “lessen[s] the quantity of land contained in any allotment granted in fee‑simple by the Crown.” It does not cover leasehold land, or Crown grants less than fee‑simple. It also does not cover structures or crops on the land , only the land itself. If an allotment is reduced by a street alignment deviation, the owner gets compensation for the land value but not for any building that must be demolished because it now protrudes into the street. That is a gap. The owner’s remedy would be that the Chairman cannot remove the building if it is a “substantial brick or stone building” , s 1 itself prohibits deviations that would interfere with such buildings. But for a wooden shed or a concrete slab, the Chairman may remove it without compensation, placing it on the adjacent land (s 8). The landowner loses both the land and the improvement.

• No mechanism for updating plans when posts are lost. Section 11 allows the Governor to direct renewal or repair of posts at the Trust’s cost, but if a post is lost and the plan is also missing (no longer held by the Department or the local government), there is no way to reconstruct the alignment under the Act. The Act does not provide for a new survey or for variation of the alignment absent an official deviation. In practice, the street alignment would then be determined by the common law boundary of the road as used, or by the Land Administration Act 1997’s survey powers.

• The Act does not apply to privately‑laid‑out towns. The preamble limits its application to “towns laid out by the Government of this Colony.” Private subdivisions (e.g., those by the Western Australian Land Company) are not covered unless they later became government towns. Many modern subdivisions are private, and the 1844 Act has no force over their streets. This is a common misconception: some local governments might try to rely on the Act for all streets, but it only applies to towns surveyed under government authority.

• Entry without notice. Section 3 provides that an authorised land officer “may enter upon any allotment for the purposes of this Act” without any requirement of notice to the occupier. While the power is limited to purposes of the Act (erecting posts, digging holes, removing obstructions), and the officer likely commits trespass if they exceed that purpose, the absence of a notice requirement could lead to conflict. The officer must still comply with the Criminal Code offence of trespass (s 70) if entry is refused, but the Act gives statutory authority that may be a defence. The practical risk is that an occupier unaware of the Act may obstruct the officer, committing an offence under s 3.

Compliance with the Street Alignment Act 1844 is a largely reactive and record‑keeping exercise for local governments, and a matter of awareness for landowners and utility companies. Because the Act is partly obsolete, many of its duties may be discharged through ordinary council operations. Here is a practical guide:

For local government authorities (formerly Town Trusts):

1. Identify whether the Act applies to your area. The Act applies to towns originally laid out by the colonial government of Western Australia. If your local government area includes towns established before 1844 or soon after (e.g., Perth, Fremantle, Albany, Bunbury, Guildford), the Act may still define street boundaries in older parts of those towns. Modern subdivisions are not covered.

2. Locate the signed plans. Under ss 7 and 12, duplicate plans of the original and any additional streets should be held in the Department (now the Department of Planning, Lands and Heritage) and with the local government. The local government should locate its copy (or a certified copy) and secure it in the records system. If lost, a certified copy can be obtained from the Department. These plans have evidentiary value: they are admissible as evidence of the street lines.

3. Inspect boundary posts annually. Section 11 requires the Chairman (now the CEO or mayor) to examine and inspect all boundary posts and marks every December, and make a written report to the Governor. Modern compliance would involve a council officer (e.g., a surveyor or roads inspector) checking the condition of any remaining posts or marks within the council area that are known to be boundary posts under the Act. If posts are found, the report should note their state (intact, damaged, or gone) and whether they need renewal or repair. The report should be formally prepared and sent to the Governor’s office (or the Minister for Lands). Given the low priority, a council might decide to treat this duty as fulfilled if it conducts a routine annual inspection of all road reserve markers as part of its asset management program and includes a note in the council’s annual report. Strict legal compliance would require a document styled as a report under s 11, but no penalty attaches to non‑compliance, so many councils ignore it.

4. Maintain boundary posts. If the December inspection reveals damage or missing posts, the council should request that the Governor (through the Minister) direct renewal or repair at the council’s expense (s 11). The council must bear the cost. In practice, the council may decide to apply local survey standards to replace posts with concrete survey marks approved under the Land Administration Act 1997, which would likely satisfy the Act’s purposes even if not identical to the original wooden or stone posts.

5. Exercise the power to remove projections. If a council becomes aware of a building or fence that projects into a street line as defined by an existing post or the signed plan, it may rely on s 8 to remove the projection. However, it should first verify that the street line is still the current alignment (not superseded by a later subdivision plan). It should give the owner reasonable notice (though s 8 does not require it), and if the building is a “substantial brick or stone building,” s 1 prohibits removal if it was erected before the deviation that created the alignment. The council should obtain legal advice before exercising self‑help. A safer course is to use the Local Government Act 1995’s powers to regulate buildings on roadsides (s 3.54) or the Planning and Development Act 2005’s enforcement powers.

6. Report new allotments. If the council approves a new subdivision that creates new lines of communication (roads), it should ensure that the authorised land officer (from the Department) lays duplicate plans before the Governor in Executive Council for signing (s 12). Modern practice is to follow the subdivision approval process under the Planning and Development Act 2005, which includes the setting of road reserves by endorsed plans. Those plans are deposited with the Land Titles Office. The s 12 process is redundant but theoretically still applies if the new road is within a “town” covered by the 1844 Act. The council can treat compliance as achieved if the subdivision plan is approved by the Western Australian Planning Commission and signed by the Minister (who is a member of the Executive Council).

For landowners and occupiers:

1. Do not obstruct surveyors or council officers. If a person identifies themselves as an authorised land officer or a council employee acting under the Act (e.g., erecting a post on your allotment), you must not obstruct them. The penalty is $20 (s 3). If you are unsure of their authority, ask for identification and the relevant instrument authorising them. If they cannot produce it, you may ask them to leave; but if they insist they are acting under the Act, you should not physically resist. Seek legal advice later.

2. Do not interfere with boundary posts or marks. Do not nail, paint over, drill into, or remove any post or mark that you suspect is a boundary post under the Act. The fine is $40 (s 9). If you need to attach something to a post near your property (e.g., a mailbox), check with the council first.

3. Check the plan before building near an old street line. If you are constructing a building or fence near a street that existed before the 20th century, request a copy of the signed plan under s 7 from the Department or the local government to confirm the exact alignment. The plan is admissible evidence, so you can rely on it to determine whether your proposed structure would project into the street. Building a structure that projects beyond the aligned line gives the council the right to remove it without compensation (s 8). The only exceptions: if the structure is a “substantial brick or stone building” that existed before a deviation (s 1), or if the alignment has been superseded by a later subdivision plan.

4. Claim compensation if your fee‑simple Crown grant is reduced. If the council or the State proposes a deviation that lessens the quantity of land in your fee‑simple Crown grant, insist on compensation under s 1. The Act does not specify how to claim, so you should write to the Minister for Lands and the local government, citing s 1, and request payment. If no agreement is reached, you may need to sue the Crown. The compensation is limited to the value of the land taken; it does not cover buildings or improvements.