HIGHWAYS: LOOKS CAN BE DECEPTIVE Shaun Mcelwaine SC
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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. 2 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.