HIGHWAYS: LOOKS CAN BE DECEPTIVE Shaun Mcelwaine SC

HIGHWAYS: LOOKS CAN BE DECEPTIVE Shaun McElwaine SC

LAW SOCIETY OF TASMANIA CPD PROGRAM 12 March 2020

1. There has, in recent times, been a surprising amount of litigation in the Supreme Court that has focused upon the creation of highways in Tasmania.1 In what follows my focus is upon how various statutory provisions have operated to modify, or displace, the common law principles that are concerned with dedication and acceptance of land as a highway.

What is a highway?

2. Windeyer J in Permanent Trustee Co of NSW Ltd v. Campbelltown Corporation2 when concerned with the definition of public road in the Local Government Act 1919 (NSW) said:

‘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.’3

3. A more comprehensive definition is given in what was (and probably still is) the leading work on the subject matter: Pratt & Mackenzie’s: Law of Highways4 which is:

‘It is essential to the notion of a highway that it should be open to all members of the public. The definition at once excludes land over which a man may pass by virtue only of a licence personal to himself, or in the exercise of his right as the owner or occupier of that land, or as the owner or occupier of other land to which an easement over that land is appurtenant. It excludes roads, commonly called occupation roads, laid out for the accommodation of the occupiers of adjoining properties and legally open to them only… the right of the public in a highway is an easement of passage only – a right of passing and re-passing.’5

4. If a highway exists then, absent statutory provisions, it is incapable of being extinguished. It does not matter that the highway has fallen into disuse, or that other (more convenient) highways have been created. Nor does it matter that a highway may have been unlawfully fenced by a landowner, even if for a long period of time: ‘once a highway always a highway was the adage of the common law.’6 There is no concept of adverse possession of a highway, which is a common misunderstanding.7 The title of a registered proprietor is not indefeasible ‘so far as regards.. any public right of way’.8

1 By way of example, reference is made to: Clarence City Council v. Howlin [2012] TASSC 26, Evans J; Howlin v. Clarence City Council [2013] TASFC 7, Blow CJ, Tennent and Porter JJ; Clarence City Council v. Howlin [2019] TASFC1, Blow CJ, Brett J, Marshall AJ; Batt v. Burnie City Council [2018] TASSC 65, Wood J. It is unnecessary, and unproductive, to mention all of the decisions involving the Clarence City Council and Mr Howlin. 2 (1961) 105 CLR 401. 3 At 420. 4 21st ed (1967). 5 At page 3. 6 Permanent Trustee Co. of NSW v. Campbelltown Corporation at 422, Windeyer J. 7 Smith v. Land Registry Peterborough [2010] EWCA Civ 200; [2010] QB 413. 8 Land Titles Act 1980 s.40(3)(c). Further, by operation of ss. 111 and 112, where a highway is vested in a highway authority it shall not be registered as the proprietor but may have the fact of the highway recorded on the title to the registered land. What are the common law rules?

5. The principles have not altered for a very considerable period of time. Evans J in Clarence City Council v. Howlin [2012] TASSC 26 had recourse to the 1935 edition of Halsbury9 for the following summary:

‘11 It is convenient to go to the law as enunciated in Halsbury's Laws of England, 2nd ed, Vol 16, 1935 for relevant common law principles on the dedication of land as a highway. This edition of Halsbury was current in 1944. The following passages, with citations omitted, are taken from it:

"212 A 'highway' is a way over which all members of the public are entitled to pass and repass; and, conversely, every piece of land which is subject to such public right of passage is a highway or part of a highway. ... 258 Land dedicated by a person legally competent to do so to the public for the purposes of passage becomes a highway when accepted for such purposes by the public; but whether in any particular case there has been a dedication and acceptance is a question of fact and not of law. 259 Dedication necessarily presupposes an intention to dedicate – there must be animus dedicandi. The intention may be openly expressed in words or writing, but, as a rule, it is a matter of inference; and it is for a Court or jury to say whether such intention is to be inferred from the evidence as to the acts and behaviour of the landowner when viewed in the light of all the surrounding circumstances. 260 Acceptance by the public requires no formal act of adoption by any persons or authority, but is to be inferred from public user of the way in question. Even if an express intention to dedicate is proved, it is necessary to prove also that the way has been in fact thrown open to the public and used by them. The evidence from which Courts or juries are asked to infer both dedication and acceptance is, as a rule, open and unobstructed user by the public for a substantial time. 261 An intention to dedicate land as a highway can only be inferred against a person who was at the material time in a position to make an effective dedication – that is, as a rule, a person who is absolute owner in fee simple and sui juris. When, however, a primâ facie case is proved of an intention to dedicate, express or implied, it lies upon the defendant to show that the state of the title to the land is or was such as to render any such intention inoperative. 271 [T]here is no fixed minimum period [of user] which must be proved in order to justify an inference of dedication, and no fixed maximum period which compels such an inference."10

6. It is necessary to exercise a degree of caution in the application of the common law principles as developed in England to the very different historical circumstances in Australia. Griffith CJ explained why in Miller v. McKeon11 where he observed:

‘There is certainly an identity in name between highways in England and highways in this country, but the similarity is to a great extent in name only, and when we come to the question of highways on their first dedication the similarity becomes even more shadowy. In England when a new highway is dedicated by a private owner to the public there is a change of effectual ownership. The soil ceases to belong effectually to the individual and it becomes the property of the public. Here in general a dedication is made by some action of the Government. There is now in force a provision that it must be made by proclamation, but it was formerly the practice to prove dedication of a highway by evidence of facts, such as the publication of an official map showing the road marked upon it, or the issue of a grant from the Crown describing land as being bounded by a road. In these cases there was no change of effectual ownership.’

9 Laws of England, 2nd ed, Vol. 16. 10 At [11]. For more recent authority see Kavric v. Willoughby City Council [2015] NSWCA 182 at [12-16]. 11 [1906] 3 CLR 50 at 58.

The first road in Van Diemen’s Land

7. In 1930, in the Sydney Morning Herald, there was published an article with the title: An Ancient Highway by Michael Sharland.12 In it the author explains that the road from Hobart to Launceston is one of the oldest in Australia. The account given of how it was first formed sets the context for a number of legislative provisions that I will shortly refer to. The article in part reads:

‘The first mail was carried between Launceston and Hobart in 1807, and from this date the history of the road may be said to begin. Lieutenant Thomas Laycock, an officer of the 102nd R, who went from New South Wales on that occasion blazed a trail through the unknown heart of Tasmania carrying with him the despatches for Governor Collins in Hobart Town. The journey, which at that time was regarded as the most difficult undertaking, occupied eight days, evidently a very good time, as Laycock and his four men were equipped with provisions for three weeks. Tracks and trails there were none, and there were inhospitable Aborigines to be faced; but Laycock got through without incident, and for this pioneering act the gallant lieutenant was made a grant of 500 acres of agricultural land in New South Wales. In the years that followed, messengers on horses, taking Laycock’s trail, made the journey at intervals until something in the nature of a half-formed track appeared. This was used for some years, during which successive Governments had realised the importance of making a proper road, and ultimately a survey was made, and the first section of the road laid down from Hobart to Bridgewater, a distance of twelve miles in 1819.’

Early statutory provisions

8. I begin with a quick survey of the earliest statutes. In the Hobart Town Gazette on 25 December 1840, notice was given of an Act: for the making altering improving and defining the Main and other Roads of his Island. The Main Road was defined as:

‘The Road as the same has been laid out by the authority of the Government and leaving from Hobart Town to Launceston in this Island that is to say the Road leading thereto via Bridgewater, Oatlands, Campbelltown and Perth.’13

9. Further provision was made for Cross Roads and Bye Roads. Cross Roads were deemed to be:

‘Those Roads which have heretofore advertised as Public Roads in the Gazette and which have been allowed or which are now in use as Public Roads or which shall hereafter under the provisions of this Act be sanctioned by the Commissioners and which lead from township to township or from a township into the Main Road.’14

10. Bye Roads were: ‘Those which lead from any farm or farms through any other person’s lands to the Main Cross or any Bye Road and which may have been already proclaimed as such in the Gazette or which may hereafter be sanctioned by the Commissioners appointed under this Act.15

11. The Main Road was required to be 60ft wide, Cross roads 40ft and Bye Roads 30ft.16 Control and management of the Main Road was assigned to the Director-General of Roads and

12 www.trove.nla.gov.au/newspaper/article/16725448. 13 Section 2. 14 Section 3. 15 Section 4. 16 Section 5.

3 responsibility for the control and management of Cross and Bye Roads was assigned to District Commissioners.17

12. Several Acts were made in 1846. One for the construction of a bridge at Bridgewater18, one for the better regulation of the Main Road from Hobart Town to Launceston19, and one by way of specific provision for Cross and Bye Roads20 which transferred the control and management of Cross Roads to the Court of Quarter Sessions in each district. Provision was made that:

‘The several roads now used and known as Cross Roads in this Island shall be deemed and taken to be and continue to be Cross Roads within the meaning of this Act until the same or any of them shall be altered, changed, diverted or stopped by the order of the said Courts under the authority of this Act.’21

13. In 1838, the Surveyor-General was authorised pursuant to an act ‘to regulate the Police in certain Towns and Ports within the Island of Van Diemen’s Land’ to:

‘set out as far as may be practicable within three months after the passing of this Act or in the case of unavoidable delay as soon thereafter as can be done the breadth of the carriage and footways in the streets and public places within the said towns and shall cause the said footways to be marked by posts at the corners and intersections of the streets or wherever the same may be necessary for defining the footways and the carriage and footways when so set out shall be deemed to be the carriage and footways within the meaning of this Act.’22

14. For the purposes of that statute the ‘towns’ were Hobart, Launceston, New Norfolk, Oatlands, Richmond, Campbell Town and Longford. Further provision was made for the ‘Town Surveyor’ to make and level the carriageways and footways as so identified by the Surveyor-General.23

15. What these statutes make clear is that the Government of the colony assumed responsibility for making and opening highways in the earliest years of development. The historical development was further traced by Neasey J in City of Hobart v. Chen (1966) TAS.R. 271, upon an appeal from a magistrate. Evidence was given before the Magistrate by a respected historian, Dr Wettenhall, from the University of Tasmania. Neasey J summarised the effect of his evidence as follows:

‘In Tasmania parishes never existed for any other purposes than for description and registration of land… Repair of roads was first undertaken in this State as part of convict administration, then by a Crown official called the Town Surveyor, in Hobart, and then from 1840 by Road District Trusts in various settled areas. In Hobart in 1846 a system of commission administration was established, and control of the streets passed to the Hobart Town Commissioner. In 1852 they were replaced by the first municipal council and in 1857 the first Hobart Corporation Act was passed.’24

17 Sections 28-30. 18 An Act for building and maintaining a bridge over the River Derwent at Bridgewater (10 Vic, no. 11). 19 An Act for the better regulation and maintenance of the Main Road from the city of Hobart Town to Launceston (10 Vic no. 12). 20 An Act for regulating Cross and Bye Roads (10 Vic no. 18). 21 Section 14. 22 Section 5. 23 Section 6. 24 At 276-277.

4 The Cross and Bye Roads Act 1860

16. This Act empowered the Governor to divide the colony into road districts, for the proclamation of any road as a Cross Road, for the election and appointment of trustees, for the empowering of trustees to lay out and construct Bye Roads and for the vesting of road property in the trustees. Tolls could be imposed, as well as road rates. Section 6 prescriptively dealt with Cross Roads:

‘The following Roads within each Road District shall be Cross Roads, and shall be the Roads to be constructed maintained and regulated by the Trustees under the authority of this Act:

(1) any Road leading from one Town to another; (2) any Road leading from a Town or public Bridge to the Main Road; (3) any Road leading from a Town to a navigable river or the sea-shore; (4) any Road or intended Line of Road proclaimed by the Governor as a Cross-Road or intended Cross Road before the commencement of this Act by virtue of any Act hereby repealed; (5) any road or intended Line of Road proclaimed by the Governor as a Cross Road in the manner hereinafter provided; (6) all Streets within a Town.’

17. Section 7 further provided that the Governor may declare ‘any Road or intended Line of Road previously surveyed and marked out shall be a Cross Road, consequent upon a meeting of landowners called for that purpose’.25

Rural Municipalities Act 1865

18. This provided for the incorporation of rural municipalities. It divided Tasmania into municipal districts, and assigned names to each. It allowed the Governor to proclaim other districts as municipalities. It incorporated the municipal electors and provided for boundary marking. It allowed each council to make and publish by-laws in respect of numerous subject matters, but it omitted any reference to highways.

The Police Act 1865

19. This is an important Act, in its relationship with the continued operation of the common law principles. Why it was thought necessary to deal with the making of highways in a statute concerned with the police force is not something that I am able to explain. This Act commenced on 2 October 1865 and continued until 20 November 1905. It relevantly provided as follows:

‘197. Every person who intends to make or lay out any new street in a Town shall give notice thereof to the Municipal Council, in order that the level of such street may be fixed by the Council.

198. The level of every new street shall be fixed under the direction of the Municipal Council, and the level so fixed shall be kept thereafter by every person erecting any house or other building in such street.

199. If the Municipal Council does not fix the level within six weeks from the time of delivery of such notice as aforesaid, the person giving such notice may proceed to lay out the street at any level as if such level had been fixed by the Council, and in such case if a change of the level

25 Sections 7-8.

5 which the Council afterwards deem requisite (sic), and the works consequent thereon, shall be made by the Council, and the expense thereof, and any damage which any person sustains in consequence of such alteration, shall be defrayed by the Council.

201. It shall not be lawful to make or lay out any new street in any Town unless the same, being a Carriage-Road, is at least fifty feet wide, or not being a Carriage-Road is at lease Twenty feet wide.’

20. Section 4 defined Town as meaning the City of Hobart Town, the Town of Launceston, and every Town proclaimed by the Governor in exercise of the power pursuant to s.6 by notice published in the Gazette. Hobart was incorporated in 185726 and Launceston in 1858.27

21. Did these provisions of the Police Act displace the common law ability of a landowner to dedicate land as a highway, and for the public to accept it, within a town? Section 201 made it unlawful to ‘make or lay out’ any new street. There is an argument, which I do not favour, that distinction is to be drawn between the making or laying out of a new street and its dedication to the public as a highway.28 In my view ss. 197-201 at least had the effect of severely limiting the ability of a landowner to dedicate land as a highway, with effect from 186 and within any town. The reason is that they should be construed as covering the field to the extent that new highways were to be formed within the boundaries of towns. What is clear from the drafting is that responsibility for the supervision and control of the formation of new highways was given to municipal councils. Support for that view is to be found in the decision of Evans J and Clarence City Council v. Howlin where his Honour concluded that various statutory provisions that operated outside of the boundary of a town, for Marsh Street at Opossum Bay, ‘impacted very significantly on the common law entitlement of a landowner to dedicate land as a highway.’29

22. There is a contrary view that Windeyer J mentioned in Permanent Trustee NSW v. Campbelltown Corporation but which turns upon the particular statutory provisions that fell for consideration in that case. The Local Government Act 1906 (NSW) contained provisions to the effect that municipal councils have the care, construction and management of highways but that, by s.118: ‘no municipality should be compelled to take the charge or management of any new road laid down by any proprietor upon or through his own land which should be less than Forty feet in width or if more than Forty feet and less than Sixty Six feet until it had been fully made and completed.’ As Windeyer J observed these provisions:

‘Merely made it unnecessary for the municipalities to keep up such new roads. It did not prevent the dedication of new roads.’30

23. The provisions of the Police Act 1865 clearly operated with different effect. A landowner was required to give notice of the intention to create a new highway in order for its level to be fixed by the municipal council. And in any event it was simply not lawful to make or lay out any new street unless it met the minimum dimension requirements.

The Police Act 1905

24. This statute commenced on 20 November 1905 and was repealed with effect from 20 October 1935 by the Police Act 1935. Sections 167-169 were concerned with making highways, the

26 An Act to incorporate the Citizens of the city of Hobart Town. 27 The Launceston Incorporation Act. 28 Permanent Trustee Co. of NSW v. Campbelltown Corporation at 423. This distinction however turns upon particular statutory provisions that operated pursuant to the Local Government Act 1906 (NSW). 29 [2012] TASSC26 at [33]. 30 At 421.

6 responsibility for which was vested in each municipal council in terms similar to the provisions of the Police t Act 1865. Section 168 was in the same terms as s.201 of the 1865 legislation. This Act operated within any town proclaimed as such pursuant to the Town Boards Act 1884, or any repealed legislation to the same effect.

The Town Boards Act 1884

25. Sections 2 and 3 operated to confine the reach of this Act to a town proclaimed as such under the Police Act 1865, but not one within a rural municipality. The Governor was empowered to proclaim and define towns and their boundaries. Provision was made for town boards which, by s.7, were empowered to exercise all of the powers and authorities contained in the Police Act 1865.

The Town Boards Act 1891

26. This commenced on 1 January 1892, repealed the Town Boards Act 1884, and by s. 107 provided that the board of every Town was empowered to exercise within the Town boundaries all of the powers and authorities contained in the Police Government Act 1865 as conferred upon and vested in or exercisable by a municipal council.

The Town Boards Act 1896

27. This commenced on 1 January 1897 and contained provisions that were much the same as those in the previous Acts of 1884 and 1891, but for present purposes went a little further. By s.129, each town board was able to exercise all of the powers pursuant to the Police Act 1865, but in addition, section 184 provided:

‘The Board of any Town may, after first passing a Special Resolution, cause any Private Street within such Town, or any portion thereof, to be constructed in such manner as the Board may from time to time determine; and the whole of the expense incurred by the Board in the construction of such Private Street shall be repaid in the manner hereinafter mentioned by the owner or owners of the land or lands fronting or abutting any such Private Street or any portion thereof so constructed as aforesaid; and any such Private Street shall be thereafter be maintained and kept in good repair by the Board out of any moneys at their disposal.’

28. The Town Boards Act 1896 defined the phrase ‘Private Street’ as meaning any highway laid out on private property but intended for the use of the public generally.

29. Section 194 provided;

‘It shall not be lawful after the passing of this Act for any person to layout or dispose of, or cause to be laid out or disposed of, any land for building purposes on which it is proposed to open any Private Street without first submitting a plan showing the proposed disposition of such land, and setting forth the width and direction of such Private Street, and a sketch showing the proposed drainage of such land, to the Board, and obtaining their approval thereto: ‘provided, that if no disapproval be expressed by the Board within six weeks after such plan and sketch as aforesaid shall have been submitted to the Board, then intended disposition may be proceeded with.’

30. Finally, section 196 of the Town Boards Act 1896 provided:

‘Every person who shall lay out a Private Street which shall be intended for use otherwise than as a carriage-road, and shall not exceed in length 100 feet, shall so lay out such street that the width thereof shall be 30 feet at least.’

Hobart and Launceston

31. Specific statutory provisions relevant to highways operated from time to time, not always consistently and with some overlap with the more general provisions in other statutes. The Hobart Town Corporation Act commenced on 22 December 1857. It incorporated the city, defined its boundaries, provided for elections, the imposition of rates and contained numerous other prescriptive powers for the good government of the town. It did not mention highways. Section 138 provided power for the making of bye-laws on diverse subject matters, including billiards and gaming but there was no express provision for the construction or laying out of streets. Between 1893 and 1947 a series of statutes contained regulatory provisions that were specific to the creation of highways within Hobart. The first was the Hobart Corporation Act 1893. Sections 242-259 dealt with the topic of Private Streets, defined as:

‘Shall mean any thoroughfare, lane, or passage not less than Twenty feet in width on any private property which was not opened, acknowledged, and used as a public thoroughfare before the year one thousand eight hundred and sixty-five, and any street hereafter laid out in accordance with the provisions of this Act relating to Private streets.’

32. The council was empowered to cause any Private street to be constructed to its satisfaction and if so, it became a highway maintainable by it.31 Section 252 made in unlawful for any person to ‘lay out or dispose of, or cause to be laid out or disposed of, any land for building purposes on which it is proposed to open any Private Street’, without first submitting a plan of the proposal for the approval of the council. By s.253-257, various width and construction standards were applied.

33. Similar provisions were contained in the Hobart Corporation Act 192732, the Hobart Corporation Act 193033 and the Hobart Corporation Act 1947.34

34. For Launceston, the ‘burgesses of the Town of Launceston’ were incorporated by the Launceston Corporation Act 1858. As for Hobart, it did not contain a specific highway provision, and the bye-law power made no reference to regulating the construction of streets.35 The Launceston Corporation Act 1894 contained provisions that were virtually identical to the Hobart Corporation Act 1893.36 From the commencement of this Act it was not lawful for any person to layout land for building purposes on which it was proposed to open any new Private Street, without submitting a plan for approval by the council.37

35. When considering the specific Acts that apply to Hobart and Launceston it is important to understand that the boundaries of each town were relatively confined. For example, Trevallyn in Launceston was under the jurisdiction of the Town Board of Trevallyn38 until commencement of the Greater Launceston Act 1907, on 14 November 1907. Section 15 of the 1907 Act provided that:

‘Only those streets which have been recognised by the Town Board of Invermay or the Town Board of Trevallyn as Public Streets shall be considered to be taken to be Public Streets.’

31 Section 242. 32 Sections 5-27. 33 Sections 37-71. 34 Sections 163-171. 35 Section 138. 36 Section 3, Definition of Private Street and ss.241-258 Regulated the construction and laying out of new highways. 37 Section 251. 38 Town Boards Act 1896.

36. The Launceston Corporation Act 1941, which commenced on 19 February in that year, similarly contained prescriptive conditions relating the construction of new private streets and their taking over as highways by the corporation of the municipality.39 Section 173 was explicit in its prohibition:

‘No new private street shall be opened or used until the foregoing requirements of this Part have been complied with.’

Local Government Act 1906

37. Every rural municipality, town board, main road district, road district, local health district, fruit district, rabbit district, school district and public recreation ground district were abolished. 40 Section 10 enabled the Governor to define new municipal districts for Tasmania, to proclaim them and to incorporate those districts. This Act did not apply to the cities of Hobart or Launceston.41 As might be expected, the Act contained detailed prescriptive provisions concerned with the functions, responsibilities and powers of Councils but it did not contain any specific provision relating to highways save for s.205(1) which was concerned with the power to may by-laws including those for the ‘control and management of roads’. By the Local Government Act 1935 the power was amended to include by-laws ‘regulating the construction of roads and streets for the purposes of the subdivision of land into allotments, and prohibiting the sale of any such allotment which is dependent for access thereto upon any proposed road or street until such road or street is constructed as prescribed.’

The Towns Act 1934

38. This Act commenced on 13 December 1934. Sections 9-14, conferred various powers on Councils, within any town, to maintain streets. Term ‘street’ was not defined. The text and context of these provisions strongly indicates that highways were intended. The provisions applied to existing streets but did not regulate the construction or dedication of new streets. Division xii, commencing at s.44, concerned itself with ‘private streets’. A misnomer and a statutory oxymoron, on any view. Section 44 provided:

‘In this Division private street means a highway laid out on private property but intended for the use of the public generally’.

39. The Act did not apply to all municipal areas. Various sections limited it to towns, either proclaimed pursuant to its provisions or by reason of the operation of any other Act.42 Sections 45-48 were expressly confined to private streets ‘within any town or portion thereof’.43 The Act was amended with effect from 13 November 1941 to insert s.48F the effect of which was to enable a council at any time by special resolution to define any area beyond the boundaries of any town, within which it may declare that the provisions of the Act shall apply.

40. A notable example of the exercise of that power is that on 11 September 1947, the Clarence Municipal Council, resolved to apply the Act to the entirety of its municipal area. That is one of the primary reasons why Marsh Street Opossum Bay is not a highway.44

39 Sections 170-182. 40 Section 8. 41 Section 7. 42 Section 6. 43 Section 45. 44 Clarence City Council v. Howlin [2012] TASSC 26.

9 41. Returning to the Towns Act, s.45 enabled a Council to cause any private street laid out and used as a public thoroughfare before 1 January 1940 to be constructed in such manner as it may determine.

42. Section 47 applied to all new private streets, exceeding 100 feet in length. It imposed an obligation upon the landowner to seek and obtain the approval of the relevant council before the street ‘is taken over and adopted as a public highway’.45 It required the proposed highway to be constructed in accordance with the requirements of relevant bye-laws and imposed a minimum width of 30 feet. Section 48 made it unlawful for a person to lay out or dispose of land for building purposes ‘on which it is proposed to open any private street’ to do so without first submitting a plan to and obtaining consent form the council. Various provisions imposed notification requirements upon the landowner.

43. However, as the litigation involving Marsh Street, Opossum Bay demonstrates, these provisions could be easily circumvented by the division of land and the creation of rights of carriageway.

Roads and Jetties Act 1935

44. This commenced on 16 January 1936 and remains in force. As first enacted it provided for state highways and country roads. It vested state highways in the Crown and obliged the relevant Minister to maintain them.46 State highways were only capable of being created on proclamation made by the Governor.47

45. Country roads were dealt with from s.18. Each council was charged with the care, control and management of all country roads and a maintenance obligation was imposed.48 A country road meant a road:

‘(i). the care, control or management which was, at the commencement of this Act, vest in a council; (ii). not being, or forming portion of, a State, and which was constructed, or shall be hereafter constructed, out of or partly out of moneys provided by the parliament for that purpose; and (iii). and any public highway not being a State highway, but does not include a street in any town.’

46. The Highways Act 1951 by s.3 makes it clear that a highway may only be created by the Crown land by proclamation made by the Governor pursuant to s.7 of the Roads & Jetties Act and further by s.3(6):

‘No use by the public, whether before or after the commencement of this Act, of land of the Crown for passing and repassing shall be deemed to create any highway over that land, except where the land is reserved for the purpose or has been so used instead of land nearby so reserved, in which case dedication shall be deemed whenever it would be deemed in the same circumstances over private land.’

Local Government Act 1940

47. This Act made various amendments to the Local Government Act 1906. Commencing at s.244 and ending at s.249, the 1906 Act was amended to insert provisions similar to ss.44-51 of the Towns Act 1934. Ultimately these provisions had a relatively short life. With affect from 13

45 Section 47(1). 46 Section 9. 47 Section 7. 48 Section 18.

10 November 1941, the Local Government Act 1906 was amended by the Local Government Act (No.2) 1941. The 1941 Act repealed the subdivision and streets provisions of the Local Government Act 1940. On the same day the Towns Act 1941 amended the Towns Act 1934 by inserting the provisions that were contained in the Local Government Act 1940.

Town and Country Planning Act 1944

48. This commenced on 19 July 1944. Section 2 limited its application to areas declared by proclamation. Part II provided for the appointment of a Commissioner for Town and Country Planning. Part III facilitated the preparation and approval of planning schemes. By s.19, a planning scheme once made, was required to be enforced by the municipal council. Section 20 provided:

‘After the date on which a scheme under this Act comes into effect, no person shall execute or carryout any work or do any act or thing which is forbidden by such scheme or which will obstruct or impede the carrying out of such scheme.’

49. This Act did not define development, although by s.11(1)(a) a local authority could prepare a planning scheme ‘for the development of a specified area’. The Act contemplated that a planning scheme could regulate the subdivision of land as development.49 Part IV, commencing at s.36, dealt with the subdivision of land. In substance it provided for the submission of subdivision plans to each council for approval.

50. Importantly, this Act did not displace provisions that operated in parallel pursuant to the Rural Property Act 1862, whereby a registered proprietor might divide land by transfer rather than an approved plan of subdivision. The point is that unless a planning scheme was made under this Act and that it contained provisions regulating the subdivision of land (by way of prohibition), a landowner could still divide land by transfer under the Real Property Act 1862.

Local Government Act 1962

51. This Act commenced on 1 December 1964, and in the context of highways, is probably the most important statute. Part XV dealt with highways. It did not apply to Hobart or Launceston. Separate provision was made for highways in the Hobart and Launceston Corporation Acts of 1963.50 Section 332 relevantly provided:

‘(1). The duty at common law of the inhabitants at large to repair the highways shall be deemed to have passed from the inhabitants of the parishes to the corporations of municipalities. (2). The corporation’s duty referred to in subsection (1) does not include the repair of: (a). any State highway, except as provided for in s.11 of the Roads and Jetties Act 1935; or (b). except as expressly provided in this Part, any highway in a city or town open before the commencement of this Act which has not – (i). been declared public under an Act; (ii). at any time being formed, made, repaired or improved by a highway authority at its own cost; or (iii). been made under Division IIA or Part II of the Towns Act 1934.’

52. Subsection 1 was drafted in complete ignorance of all of the statutory provisions that preceded it.51

49 Section 13 and clause 1 of the schedule made specific reference to roads, streets, private streets, private roads and footways. 50 Hobart Corporation Act 1963, Launceston Corporation Act 1963. 51 Neasey J reached the same conclusion, but used less critical language in City of Hobart v. Chen (1966) TAS.R.271.

53. Various powers were conferred upon councils to make open new highways, and to close existing ones.52 Section 363 expressly provided that, save for the operation of the town planning provisions ‘it is not possible in a city or town to dedicate land for a highway without the consent of the corporation under its corporate seal.’

54. Approval of that character was the consequence of the operation of the subdivision provisions at ss.462-486, an important provision of which was s.468(1)(a):

‘The land comprised in a sealed plan (a) is shown as a road, street, alley, lane, court, terrace, footpath or other kind of way it shall be deemed dedicated to and accepted by the public unless called ‘private’ on the plan.’

55. The Act, at s.694, imposed an obligation upon every council to keep an up to date map depicting, inter alia, ‘all highways’ repairable by it, ‘all other highways’ and ‘all roads known to it that a landowner is liable to repair.’ Few, if any, councils complied with this obligation, or did so with diligence. Record-keeping by councils in the 1960’s was somewhat ad hoc. In any event, an entry on the municipal map was only prima facie evidence of the status of land as a highway.53 Section 2008 of the Local Government Act 1993 now operates to the same effect and is only of evidentiary effect.54

Local Government (Highways) Act 1982 and the Local Government (Building and Miscellaneous Provisions) Act 1993

56. These statutes contain the presently operating provisions. The Highways Act exclusively vests in each council the power to open highways in each municipal area.55 The dedication of land as a highway in a city or town by an individual ‘is of no effect unless the approval of the corporation under its seal is or has been given to the dedication.’56 Outside of a boundary of a city or town, s.8 operates. The effect of which is that a landowner may give notice to a council that he or she intends to open a highway and that the landowner requires it to be maintained by the council.57 A council may decline to accept that obligation. If the highway is opened by a landowner despite approval by a council it is ‘not maintainable by the corporation’.58

57. It does not follow from these provisions that it is open to a landowner to dedicate land as a highway outside of the boundary of a city or town. The construction and laying out of a highway is a development within the meaning of the Land Use Planning and Approvals Act 1993. Universally, planning schemes now contain provisions that require a landowner to obtain a planning permit to construct a highway. Moreover, the Local Government (Building and Miscellaneous Provisions) Act exclusively regulates the subdivision of land and the construction of highways for that purpose, and the only sections that have not been repealed: 80-123. Those provisions ought to be relatively familiar to all lawyers. In substance it is not lawful to subdivide land except in accordance with a plan of subdivision that has been approved of by the grant of a planning permit. The dedication of land as a highway is dealt with at 95(1):

52 Sections 360, 357, 361 and 362. 53 Section 694(5). 54 Section 208(3)(c). 55 Section 6. 56 Section 7(1). 57 Section 8. 58 Section 8(3).

12 ‘(1) Any land which is shown on a sealed plan as a road, street, alley, lane, court, terrace, footpath or other kind of way is taken to be dedicated to, and accepted by, the public unless called "private" on the plan.

The Rural Property Act 1862 and related statutes

58. Despite all of these statutory provisions there was an alternative mechanism available to a landowner to divide land by transfer and to create private rights of carriageway. The ability to proceed in this way operated between 1862 and 1 December 1964.59 These provisions were considered in detail by Evans J in Clarence City Council v. Howlin60. His Honour said:

‘46 At the relevant time the combined effect of the Real Property Act 1862 ss42, 44, 45 and 104 as modified by the Real Property Act 1886, ss13 and 14, was that a registered proprietor of land who desired to transfer any portion of it, that is, subdivide it, could achieve that result by the following means:

• Depositing with the Recorder of Titles an appropriate plan of the land certified by a Government surveyor; s104. • Lodging a transfer of the portion of the land, or right of way or easement to be created, together with the certificate of title to the land; ss442 and 44(1). • After registering the transfer, the Recorder was required to partly cancel the certificate of title, consistent with the effect of the transfer, and return it to the transferor; ss44(2) and 13. • Having partially cancelled the certificate of title, the Recorder was required to provide the transferee with a new certificate of title to the land that had been the subject of the transfer; ss45 and 14.

47 The Real Property Act 1862 required that a plan lodged pursuant to s104 be certified by a "Government surveyor". That Act pre-dated the Land Surveyors Act 1909, which provided for the registration of land surveyors and regulated the practice of surveyors It detailed the qualifications required of those who sought registration as a surveyor, and defined an authorised survey as including a survey of land authorised or required under any Act. It created the Surveyors' Board and empowered that Board to make by-laws. By-laws made pursuant to that Act and dated 1 May 1913, were gazetted on 13 May 1913. The effect of by-laws 36 to 41 was that from the date of the by-laws a surveyor who was registered under the Land Surveyors Act was entitled to make surveys under the Real Property Act and that plans made under that Act should be certified in the manner there prescribed. Diagram 167/34 is so certified by Mr Terry.’

59. If a landowner chose to proceed in that way and proposed the creation of rights of carriageway to access the titles so created, then it was necessary to comply with s.27 of the Real Property Act 1886 and the form that it prescribed. Section 27 provided:

‘Whenever any transfer or any such certificate of title as aforesaid shall contain the words 'together with (or subject to, as the case may be) a right of carriage way over ', (specifying or describing the road or roads over which the easement is created, and referring to a diagram indorsed where on such road or roads is or are distinguished by a green line), such words shall have the same effect and shall be construed as if there had been inserted in such transfer or certificate the words contained in form II in the schedule.’

59 The date of commencement of the Local Government Act 1962. 60 [2012] TASSC 26 at [46-48].

13 60. The prescribed form read:

‘CREATION OF RIGHT OF CARRIAGE WAY IN A TRANSFER OF FREEHOLD LAND TOGETHER with (or subject to, as the case may be) full and free right and liberty to and for the transferee hereunder, and to and for the registered proprietor or proprietors for the time being of the land hereby transferred, or any part thereof, and his, her, and their tenants, servants, agents, workmen, and visitors to go, pass, and repass at all times hereafter and for all purposes, and either with or without horses or other animals, carts, or other carriages, into and out of and from the said land, or any part thereof, through, over, and along the road or way, or several roads or ways, delineated and distinguished by a green line on the said diagram."’

61. In combination these provisions explain why the word ‘roadway’ or ‘road’ appears on many survey diagrams but are not evidence that the landowner intended to create a highway. In the Marsh Street litigation, the surveyor on numerous plans adopted the nomenclature ‘Proposed Roadway’ which were lodged with and registered by the Recorder of Titles. But no inference of an intent on the part of the landowner to dedicate that land as a highway was drawn for the reason that on every occasion that Mr Brown divided his land by transfer he conferred rights of carriageway upon the transferee. This expression of intent intersected inconsistently with the drawing of any general inference that he must have intended to dedicate the roadway to the public.61 Nor did he comply with the construction requirements of the Towns Act 1934, as then applied throughout the Clarence municipal area.

61 Due to ‘some shambolic conveyancing work’ between 1945 and 1952, the rights of carriageway were recorded on the dominant but not the servient lands. This led to more litigation, that ultimately turned on whether equitable rights of carriageway were created as an exception to indefeasibility: Clarence City Council v. Howlin [2019] TASFC 1 at [1].