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WCL (Qld) Albert St Pty Ltd v Orb Holdings Pty Ltd[2023] QCA 263

WCL (Qld) Albert St Pty Ltd v Orb Holdings Pty Ltd[2023] QCA 263

SUPREME COURT OF QUEENSLAND

CITATION:

WCL (QLD) Albert St Pty Ltd v Orb Holdings Pty Ltd & Ors [2023] QCA 263

PARTIES:

WCL (QLD) ALBERT ST PTY LTD

ACN 600 302 976

(appellant/not a party to the cross appeal)

v

ORB HOLDINGS PTY LTD

ACN 010 227 371

(first respondent/cross respondent)

STATE OF QUEENSLAND

(second respondent/cross appellant)

REGISTRAR OF TITLES

(third respondent/cross appellant)

FILE NO/S:

Appeal No 12103 of 2022

SC No 6514 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – (2022) 11 QR 750 (Crow J)

DELIVERED ON:

19 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2023;

21 March 2023

JUDGES:

Morrison and Bond JJA and Applegarth J

ORDERS:

  1. 1.Appeal dismissed.
  2. 2.The Appellant pay the Respondents’ costs of the appeal.
  3. 3.Cross-appeal dismissed.
  4. 4.The Second and Third Respondents pay the First Respondent’s costs of the cross-appeal.

CATCHWORDS:

HIGHWAYS – CREATION AND EXTINCTION OF HIGHWAYS – DEDICATION – WHAT CONSTITUTES DEDICATION – GENERALLY – where, in the late 19th century, the owners of land in Brisbane subdivided and sold their land – where the whole of the subdivided land was subdivided into nine individual lots, with each abutting a laneway which would later be termed a ‘right of way’ on title documents – where the sellers of that land evinced no intention to retain any part of that laneway – where the council assumed responsibility for that laneway – where the laneway remained open to, and used by, the public up until the appellant erected barriers in 2019 – where the trial judge determined that there was a dedication by the original owners, and there was an acceptance by the public of that dedication – where the effect of the primary judge’s finding was that the laneway was dedicated as a public road, and thus vested in the second respondent – where the primary judge inferred that sanctions necessary in relation to the dedication of the laneway as a public road had been given – whether the trial judge erred in these findings

HIGHWAYS – MISCELLANEOUS MATTERS – OTHER MATTERS – where the second and third respondents cross appealed as to the form of declaration made by the primary judge – whether the primary judge erred in the form of declaration at first instance

Grammar Schools Act 1860 (Qld), s 1, s 2, s 6

Land Act of 1962 (Qld), s 5, s 369

Real Property Act 1861 (Qld), s 44, s 119

Anderson v City of Stonnington (2017) LGERA 176; [2017] VSCA 229, cited

Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536; [1989] FCA 159, cited

Attorney-General (Quebec) v Attorney-General (Canada) [1921] 1 AC 401; [1920] UKPC 96, cited

Barraclough v Johnson (1838) 8 A & E 99; [1838] EngR 552, cited

Battersea Vestry v County of London and Brush Provincial Electric Lighting Co [1899] 1 Ch 474; [1899] UKLawRpCh 15, cited

Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 43 NSWLR 364, cited

Born v Huntley (1886) 20 SALR 33; [1886] SALawRp 8, cited

Boulter v Jochheim [1921] St R Qd 105, cited

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, cited

Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29, cited

Buckle v Bayswater Road Board (1936) 57 CLR 259; [1936] HCA 65, cited

Burgess v Northwich Local Board (1880) 6 QBD 264; [1880] UKLawRpKQB 116, cited

Chambers v Lane Cove Municipal Council (1966) 14 LGRA 1, cited

City of Keilor v O'Donohue (1971) 126 CLR 353; [1971] HCA 77, cited

Cowlishaw v Ponsford (1928) 28 SR (NSW) 331; [1928] NSWStRp 30, cited

Dabbs v Seaman (1925) 36 CLR 538; [1925] HCA 26, doubted

Little v Dardier (1891) 12 NSWLR (Eq) 319; [1891] NSWLawRp 41, cited

Dixon v LeKich (2010) 56 MVR 70; [2010] QCA 213, cited

Ex Parte Le Gould (1864) 1 QSCR 130, cited

Folkestone Corporation v Brockman [1914] AC 338; [1914] UKLawRpAC 6, cited

H Jones & Co Pty Ltd v Kingsborough Corporation (1950) 82 CLR 282; [1950] HCA 11, cited

Highmist Pty Ltd v Tricare Ltd [2005] QCA 357, cited

Hutchinson v Lemon [1983] 1 Qd R 369, cited

Lawson v Weston (1850) 1 Legge 666, cited

Little v Dardier (1891) 12 NSWLR (Eq) 319, cited

Lynch v Eaves (Max) Pty Ltd and Brighton Council (1996) 91 LGERA 166; [1996] TASSC 2, cited

Mayberry v Mornington Peninsula Shire Council (2019) 59 VR 383; [2019] VSC 623, cited

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, cited

Municipal District of Concord v Coles (1906) 3 CLR 96; [1905] HCA 35, cited

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, cited

Newington v Windeyer (1985) 3 NSWLR 555, cited

Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521; [2020] QCA 198, related

Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2022) 11 QR 750; [2022] QSC 190, related

Owen v O'Connor [1964] NSWR 1312; (1963) 53 SR (NSW) 1051, cited

Palmisano v Hawse (2003) 127 LGERA 268; [2003] NSWSC 566, cited

Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council (1960) 105 CLR 401; [1960] HCA 62, cited

Poole v Huskinson (1843) 11 M & W 827; [1843] EngR 39, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 49, cited

R (Smith) v Land Registry (Peterborough) [2011] QB 413; [2010] EWCA Civ 200, cited

Rangeley v Midland Railway Co (1868) 3 Ch App 306; [1868] UKLawRpCh 21, cited

Re the Real Property Act, 1861, and the Application of the Right Reverend Dr O'Quinn (1879) 1 QLJ (Supp) 7, cited

Rock v Todeschino [1983] 1 Qd R 356, cited

Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104, cited

Shire of Narracan v Leviston (1906) 3 CLR 846; [1906] HCA 34, cited

Sydney City Council v Griffin Corporation Pty Ltd [2003] NSWSC 26, cited

Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504, cited

Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors [1999] NSWCA 347, cited

Weber v Ankin (2008) 13 BPR 25, 231; [2008] NSWSC 106, cited

COUNSEL:

S L Doyle KC, with S J Webster, for the appellant/not a party to the cross appeal

J D McKenna KC, with J P Hastie, for the first respondent/cross respondent

D D Keane KC, with S C Russell, for the second and third respondents/cross appellants

SOLICITORS:

Clayton Utz for the appellant/not a party to the cross appeal

HWL Ebsworth for the first respondent/cross respondent

Crown Law for the second and third respondents/cross appellants

  1. [1]
    MORRISON JA:  In late 1851, in the early days of Brisbane and while it was still part of the colony of New South Wales, a large piece of land bordering Margaret, Albert, and Alice Streets was subdivided, and then sold off at auction in early 1852.  The map below shows that part of that subdivision which is relevant to this case, Lots 8–11 on section 37.[1]

WCL (Qld) Albert St Pty Ltd v Orb Holdings Pty Ltd [2023] QCA 263

  1. [2]
    As can be seen, Lot 7 fronted Alice Street and Lot 12 fronted Margaret Street.  Lots 8 and 11 were corner blocks, Lot 8 on the corner of Alice and Albert Streets, and Lot 11 on the corner of Albert and Margaret Streets.  Lots 9 and 10 fronted Albert Street.
  2. [3]
    Lots 7–11 were purchased at the auction by several buyers:
    1. Lots 8 and 9 by Mr Forbes;
    2. Lots 10 and 11 by Mr Roberts, who also owned Lot 12; and
    3. Lot 7 by Mr Weekes.
  3. [4]
    The purchase of the five Lots pre-dated the Real Property Act 1861 (Qld), but that Act provided for parcels of land to be brought under its provisions.  In time, certificates of title issued in respect of the five Lots.
  4. [5]
    In 1872, Mr Hart purchased Lot 7 and constructed his home on it.[2]
  5. [6]
    In 1874 the Trustees of the Brisbane Grammar School purchased and became registered proprietor of Lots 8, 9, 10, and 11.[3]
  6. [7]
    The Trustees originally intended that the land be used as the relocated site for the Brisbane Grammar School, but that plan changed, and, in 1876, the Trustees resolved to sell those four Lots by subdividing them.
  7. [8]
    Original Lots 8–11 were to be split longitudinally into nine new Lots:
    1. new Lot 1 fronted Albert Street, with its long side to Margaret Street;
    2. new Lots 2–5 fronted Albert Street;
    3. new Lot 6 fronted Alice Street, with its long side to Albert Street; and
    4. new Lots 7–9 fronted Alice Street.
  8. [9]
    At the heart of this case is what was done at the rear of the new Lots.
  9. [10]
    The approved plan of sub-division, RP1073, created a laneway which ran from Margaret Street along the back of Lots 1–5, then turned left to exit into Albert Street, along the back of Lots 6–9 and down the long side of Lot 5.
  10. [11]
    The plan of subdivision, RP1073, is central to many issues in the case. It appears below in the form in which it was filed in the Titles Office.[4] Approval of the subdivision by the City Council was not a requirement at that time.

WCL (Qld) Albert St Pty Ltd v Orb Holdings Pty Ltd [2023] QCA 263

  1. [12]
    Several features of the plan can be noted:
    1. it was certified on 12 September 1876;
    2. it created Lots 1 to 9 on RP1073;
    3. it showed a laneway to the rear of each of the lots, entitled “RIGHT OF WAY”, but the laneway was not described as a “lot”;
    4. the laneway or Right of Way was not called an easement;
    5. it created a strip of land called a “Reserve”, also not described as a lot; it had a width of 1.5 links (about 30 cm) and was situated on the southern boundary of the Right of Way, running from Margaret Street, adjoining all of original Lot 12 (Mr Foley’s land) and part of original Lot 7 (Mr Hart’s land), ending at the corner of new Lot 9; and
    6. the Trustees signed the plan:

“‘Being seized of the land herein delineated the trustees of the Brisbane Grammar School consent and approve of this plan of Subdivision (signed)’.”

  1. [13]
    Upon the filing of RP1073, Lots 1 to 9 were created, and certificates of title issued for Lots 1 to 9 only.  There was neither a lot number nor a certificate of title issued for the Reserve or for the Right of Way.  The Reserve was subsequently created as Lot 10 on 26 March 1886.  The Right of Way was subsequently created as Lot 11 in 1994.[5]
  2. [14]
    It is the “RIGHT OF WAY” on the subdivision plan RP1073 which is at the heart of the issues on the appeal.
  3. [15]
    Subsequently, the Trustees sold the subdivided lots on RP1073:
    1. Lots 4 and 5 to Mr Prentice Jnr on 2 October 1876;
    2. Lots 6 and 7 to Mr Lord on 2 October 1876;
    3. Lots 1 to 3 to Mr Hunter on 2 October 1876; and
    4. Lots 8 and 9 to Mr Pratton in 1881.
  4. [16]
    Subsequently:
    1. Lots 8 and 9 were on-sold in 1881 and by 1886 a Masonic Hall was built on them;
    2. Lots 4 to 7 were on-sold in 1881 and 1882 and, by 1889, a flour mill and an engineering and machinery warehouse were built on these lots; and
    3. Lots 1 to 3 were on-sold in 1879 and were subsequently used as a yard associated with the engineering warehouse.
  5. [17]
    On 16 March 1886, a further plan of subdivision, RP1074, was lodged by the Trustees, and a certificate of title for the Reserve was created.  The Reserve was designated as Lot 10.  Sir Charles Lilley signed RP1074 on behalf of the Trustees.  Both RP1074 and the certificate of title identify the Reserve as adjoining the Right of Way.
  6. [18]
    On 10 March 1886, Mr Hart (the owner of original Lot 7 on section 37) purchased Lot 10 (the Reserve).  The effect of this sale was that Mr Hart could thereafter access the Right of Way directly from his property.
  7. [19]
    The Trustees did not sell the area of land labelled “Right of Way” on RP1073.
  8. [20]
    None of the certificates of title for the Lots created as part of RP1073 contained a reference to the subdivision plan RP1073, nor a reference to any easement rights, but each certificate of title referred to the Right of Way as a “right of way” defining the boundary of the Lots.  The Reserve was not noted on any certificate of title.
  9. [21]
    The area shown as “Right of Way” on the subdivision plan was not only used as a means of access to Lots 1–9 by the owners of those Lots, but also by the public as a road.
  10. [22]
    By 1890, the Brisbane Municipal Council formed.  From time to time, it did maintenance and drainage work on the Right of Way, or Beatrice Lane as it eventually became known.  The Council also issued permits for various structures to be built in Beatrice Lane.
  11. [23]
    The ability to dedicate land as a road at common law ended in Queensland on l January 1924 when the Local Authorities Acts Amendment Act 1923 (Qld) came into forceThat Act imposed a new requirement, namely to obtain the consent of a local authority to open a new public road.
  12. [24]
    In 1927, the Reserve (Lot 10) was resumed by the Brisbane City Council and dedicated as a road in 1928.
  13. [25]
    In about 1989, the Brisbane City Council assigned the name “Beatrice Lane” to Lot 11.
  14. [26]
    In 1994, the land encompassed in the “Right of Way”, Beatrice Lane, was registered as Lot 11 within title reference 18713125.  The certificate of title showed that “The Trustees of the Brisbane Grammar School” was the registered proprietor of an estate in fee simple.  Prior to that time, Beatrice Lane:
    1. was not separately described in the freehold land register; and
    2. did not have any certificate of title.
  15. [27]
    Until 2008, the Brisbane Grammar School was recorded as the owner of Beatrice Lane.  In late 2008, they transferred that ownership interest to Devine Ltd.
  16. [28]
    In 2014, the appellant (WCL) became the registered owner of land at the corner of Margaret and Albert Streets, including what was Lot 11 on the original plan of subdivision: see the map in paragraph [1] above.
  17. [29]
    The first respondent, Orb Holdings Pty Ltd (Orb), is the registered owner of Lot 12.  Orb commenced proceedings seeking declarations that:
    1. Beatrice Lane has been dedicated as, and is, a public highway or public road; and
    2. by operation of s 369 of the Land Act 1962 (Q1d),[6] Beatrice Lane vested, and remains vested, in in the Crown.
  18. [30]
    As part of that case, Orb contended that the Crown’s ownership of Beatrice Lane:
    1. was and is effectual without it being recorded on the freehold land register;
    2. operated and existed outside the operation of the (now repealed) Real Property Act 1861; and
    3. operates and exists outside of the operation of the Land Title Act 1994 (Qld).
  19. [31]
    Orb’s case was that it should be inferred that (i) the Brisbane Grammar School intended to dedicate Lot 11 as a public road or highway, and (ii) the public accepted that dedication, those inferences being drawn from:
    1. the lodgement of the plan RP1073 in September 1876;
    2. that RP1073 showed Lot 11 as a Right of Way connected to Margaret and Albert Streets;
    3. the sale of Lots 1–9 on RP1073 between 1876 and 1881, but no sale of Lot 11;
    4. Lots 1–9 were sold on the basis that they had access to Lot 11;
    5. between 1890–1905, the Brisbane Municipal Council carried out various road works on Lot 11;
    6. between 1896 and 1900, the Brisbane Municipal Council issued permits for structures to be erected in Lot 11, including a weighbridge and a gangway;
    7. since 1876, Lot 11 had been used by the public for access by foot, carriage, or vehicles, both to adjoining properties, and between Margaret and Albert Streets; and
    8. the Brisbane Grammar School took no steps to prevent the public using Lot 11.
  1. [32]
    WCL resisted that claim, contending that the Brisbane Grammar School never intended to dedicate Lot 11 as a public road or highway, but rather only as a means of access for the owners, occupiers, and licensees of Lots 1–9.  Further, it said that it was likely that in 1876, and thereafter, the Brisbane Grammar School intended to sell off all the land it owned between Margaret, Albert, and Alice Streets, including Lot 11.
  2. [33]
    The second respondent (the State of Queensland) and the third respondent (the Registrar of Titles) were joined so as to be bound by the declarations, one of which was that Lot 11 vested in the State of Queensland, and in case orders were needed against them to give effect to the declarations sought by Orb.
  3. [34]
    The primary judge held that, prior to 1924, the former owners of Lot 11, the Trustees, had dedicated Lot 11 as a public road.  His Honour made a declaration to this effect, and also declared that, by s 369 of the Land Act 1962 (Qld), Lot 11 had vested (and remained vested) in the State.[7]
  4. [35]
    The effect of those declarations is that, according to an earlier the decision of this Court in the same litigation,[8] notwithstanding the indefeasibility provisions of the Land Title Act 1994 (Qld), the State, rather than WCL, is the owner of Lot 11.
  5. [36]
    WCL challenges the findings of the primary judge on grounds the overall thrust of which were summarised in its outline on the appeal:
  1. “5.Having regard to the contemporaneous documentary evidence, the identity of the Grammar Trustees, and the statutory framework governing the exercise of their powers, the Court should not have found that the Grammar Trustees intended to dedicate Lot 11 as a public road.
  2. 6.The Court also should not have found that the public had accepted such a dedication at the relevant times. Nor should the Court have been satisfied that the Grammar Trustees obtained a sanction for the dedication as required by the trustees' governing statute.
  3. 7.On the evidence, the better inferences were that:
  1. (a)
    Lot 11 was originally created to be a private right of way for the benefit of adjoining lot owners;
  2. (b)
    there was no subsequent manifestation of an intention by the Grammar Trustees to dedicate Lot 11 as a public road prior to 1924;
  3. (c)
    the public at large did not accept or use Lot 11 as a public road prior to 1924;
  4. (d)
    the Grammar Trustees had not sought or obtained any sanction for dedicating Lot 11 as a public road.
  1. 8.Alternatively, there were at least conflicting inferences of equal degrees of probability about the Grammar Trustees’ intentions for Lot 11 and public acceptance, such that the choice between those alternative inferences was a matter of conjecture.
  2. 9.In those circumstances, the First Respondent’s [Orb’s] case below ought to have been dismissed.”
  1. [37]
    As will become apparent, I consider that approaching the appeal by examination of the many individual complaints as to whether the trial judge erred on this or that particular finding is apt to distract from the central task of deciding whether the evidence supported the outcome.  In my view, it is appropriate that the appeal be resolved by examining the available evidence as to the three central findings, namely: (i) there was an intention to dedicate the Right of Way for public use; (ii) there was an acceptance of the dedication by the public; and (iii) the sanction was obtained.
  2. [38]
    As will become apparent, in my view, the appeal should be dismissed.

General principles – dedication as a road

  1. [39]
    At the trial, Orb had to establish that the land shown on RP1073 as a “Right of Way” was dedicated as a road.  In order to do that, Orb had to show that:
    1. the then owner of the land comprising the Laneway, the Trustees, manifested an intention to dedicate the land as a road;
    2. there had been acceptance of the public of the dedication; and
    3. the dedication of the land was lawful.
  2. [40]
    The nature of the rights created when a road is dedicated at common law were not in contest at the trial, or on appeal:
    1. in dedicating land as a road at common law, the owner of the land does not part with any proprietary interest and retains ownership of the land itself;[9] and
    2. an owner of land which abuts a public road has, at common law, the right to access the public road from its land,[10] and such rights are in addition to the rights that an owner shares with the general public to use the road.[11]

Did the Trustees of the Brisbane Grammar School intend to dedicate the land as a road?

  1. [41]
    Given that the relevant events occurred nearly 150 years ago, all of the primary evidence on this aspect of the case was, of course, documentary.  It is only from that evidence that inferences can be drawn.
  2. [42]
    The relevant intention is that of the Trustees.  Thus, it is of assistance to note the composition of the board of Trustees at the relevant times.  The facts below were uncontroversial at the trial.
  3. [43]
    Between 1874 and 1877, the Chairman was Sir James Cockle.  He was Chief Justice of Queensland between 1863 and 1879.
  4. [44]
    Lewis Bernays was a Trustee between 1868 and 1904.  He was the Clerk of the Legislative Assembly.
  5. [45]
    John Douglas was a Trustee between 1874 and 1877.  He occupied the following positions at relevant times:
    1. Member of the Legislative Assembly: 1863–66; 1867–68; 1868; 1875–80;
    2. Member of the Legislative Council: 1866; 1868–69;
    3. Postmaster-General: 1866; 1868–69;
    4. Treasurer: 1866–67;
    5. Secretary of Public Works: 1867;
    6. Secretary of Public Lands: 1876–77;
    7. Premier: 1877–79;
    8. Colonial Secretary: 1877–79; and
    9. Member of the Executive Council: 1866; 1866–67; 1868–69; 1876–79.
  6. [46]
    Sir Samuel Griffith was a Trustee between 1871 and 1904.  He was Chairman between 1887–1892 and 1895–1904.  Apart from being a barrister, positions held by Sir Samuel during relevant times included:
    1. Member of the Legislative Assembly: 1872–93;
    2. Attorney-General of Queensland: 1874–78;
    3. Secretary for Public Instruction: 1876–79;
    4. Secretary for Public Works: 1878–79;
    5. Premier and Colonial Secretary: 1883–86;
    6. Premier and Chief Secretary: 1886–88;
    7. Colonial Treasurer: 1887–88;
    8. Postmaster-General: 1885;
    9. Premier, Chief Secretary and Attorney-General: 1890–93;
    10. Member of the Executive Council: 1874–79; 1883–88; 1890–93;
    11. Chief Justice of Queensland: 1893–1903;
    12. Chief Justice of the High Court of Australia: 1903–19; and (m) Lieutenant-Governor of Queensland: 1901–02.
  7. [47]
    Sir Charles Lilley QC was a founding Trustee, holding that position between 1868– 87.  Positions held by him during relevant times included:
    1. Attorney-General: 1865–66; 1866–67;
    2. Premier and Attorney-General: 1868–69;
    3. Premier and Colonial Secretary: 1869–70;
    4. Member of the Legislative Assembly: 1860–74;
    5. Member of the Executive Council: 1865–66; 1866–67; 1868–70;
    6. Judge of the Supreme Court of Queensland: 1874–79; and
    7. Chief Justice of Queensland: 1879–93.
  8. [48]
    Randall MacDonnell was a Trustee between 1874 and 1889.  He was the General Inspector of Queensland Primary Schools between 1860 and 1876.
  9. [49]
    Charles Mein, a solicitor, was a Trustee between 1874 and 1889.  He also held the positions of:
    1. Member of the Legislative Council: 1876–85;
    2. Postmaster-General and Representative of Government in Legislative Council: 1876–79; 1884–85;
    3. Secretary of Public Instruction: 1885;
    4. Member of the Executive Council: 1876–79; 1884–85; and
    5. Judge of the Supreme Court of Queensland: 1885–90.
  10. [50]
    John Scott was a Trustee between 1874 and 1888.  He was also a Member of the Legislative Assembly in 1868 and 1870–88, and of the Legislative Council between 1888–90.
  11. [51]
    Thus, between 1874 and 1877 the Trustees included:
    1. the Clerk of the Legislative Assembly;
    2. at least four Members of the Legislative Assembly;
    3. three Members of the Executive Council;
    4. the Secretary of Public Lands;
    5. the Attorney-General;
    6. Chief Justice of the Supreme Court; and
    7. a Judge of the Supreme Court.
  12. [52]
    The first document to be considered is the minutes of the Trustees on 4 September 1876.[12] It records that the Trustees considered the “Sale of Land in Alice Street”.  It was resolved that “steps be taken for sale of same.  Messrs Scott & Bernays to arrange”.
  13. [53]
    The minutes show that the Trustees at that meeting comprised Charles Lilley as Chairman, and Mr Bernays, Samuel Griffith, Mr Mein and Mr Scott as members.
  14. [54]
    I will return to the significance of the composition of the Trustees later.  For present purposes it is sufficient to note that the Trustees at that meeting were: a Judge of the Supreme Court, the Attorney-General, the Clerk of the Legislative Assembly, two Members of the Legislative Assembly, two Members of the Executive Council, and one Member of the Legislative Council.
  15. [55]
    The land had been acquired by the Trustees in November 1874, and comprised four lots, Lots 8–11 on Section 37.  These are Lots 8–11 shown in the plan in paragraph [1] above.
  16. [56]
    In context, the resolution refers to all the land owned by the Trustees at Alice, Margaret, and Albert Streets.  WCL accepted that it should be inferred that Lots 8-11 had been purchased as a potential site for a school.[13] Even though only Lot 8 could literally be said to be “in Alice Street”, the better view is that the Trustees used a compendious term for all four lots.
  17. [57]
    The resolution was, therefore, to sell all of Lots 8–11 as they then existed, ie. Lots 8– 11 on Section 37.  That included the piece of land that later became the Right of Way and the Reserve, shown on RP1073: see the plan at paragraph [11] above.
  18. [58]
    Nothing in the resolution suggests that the Trustees intended to hold back any portion of Lots 8–11 on Section 37 from the sale or reserve any portion to the Trustees.  In fact, the evidence shows that the purpose for which the lots were purchased was not viable, thus indicating that the Trustees no longer had a use for any of the land.
  19. [59]
    The Trustees committed the task of selling Lots 8–11 on Section 37 to Scott and Bernays, “to arrange”.  Evidently, Scott and Bernays caused the plan of subdivision to be created.
  20. [60]
    The subdivision plan was approved by the Trustees.[14]
  21. [61]
    The note was signed by Sir James Cockle as “Chairman of Trustees of the Brisbane Grammar School”.  He was then the Chief Justice of Queensland.
  22. [62]
    The subdivision plan was then lodged with Registrar of Titles.  So far as the evidence reveals, that was the first public statement of the Trustees’ intentions in respect of what was to be done with the land in Lots 8–11 on Section 37.
  23. [63]
    There are several features of RP1073, recorded on it at the time it was lodged in 1876, that can be noted:
    1. the plan was labelled as a plan “of Subdivisions 1 to 9 of Allotments 8, 9, 10 & 11 of Section 37”;
    2. the original Lots 8–11 were subdivided into three separate areas of land: (i) Lots 1-9; (ii) the “Right of Way”; and (iii) the Reserve;
    3. the description given to the area of land that became Beatrice Lane, was “Right of Way”;
    4. the Right of Way was not labelled as an easement;
    5. the Right of Way extended from Margaret Street to Albert Street;
    6. neither the Right of Way nor the Reserve formed part of any of Lots 1–9;
    7. neither the Right of Way nor the Reserve was given a lot number;[15]
    8. the Right of Way was of irregular dimensions; the portion from Margaret Street was 18 feet wide, whereas the portion from Albert Street was 25 feet wide;
    9. the Reserve was described as 1.5 links wide;[16]
    10. the Reserve was not labelled as an easement;
    11. the Reserve ran from Margaret Street to the southernmost corner of the Right of Way; and
    12. the Reserve ran the full length of the Right of Way in so far as the Right of Way adjoined original Lots 7 and 12.
  24. [64]
    When the original plan B.1182.29[17] and RP1073 are compared, it becomes apparent that the Right of Way was carved out of the original Lot 9 on Section 37 (in the case of the portion from Albert Street), and each of original Lots 10 and 11 on Section 37 (in the case of the portion from Margaret Street). The Albert Street frontage of original Lots 8 and 9 was 225 feet, as was the Albert Street frontage of original Lots 10 and 11. Lots 1–5 on RP1073 still had a combined Albert Street frontage of 225 feet, whereas Lot 6 on RP1073 was 200 feet in length. The remaining 25 feet was the Right of Way at the Albert Street leg.
  25. [65]
    The same comparison shows that the Margaret Street leg of the Right of Way and the Reserve was carved out of original Lots 10 and 11.  Lots 10 and 11 were 200 feet in length, but Lots 1–5 on RP1073 were only 180.5 feet long, the Right of Way was 18 feet wide, and the Reserve was the balance.
  26. [66]
    In so far as the Trustees’ intention in respect of the Right of Way was declared by the resolutions and RP1073, in my view, several things are clear:
    1. it was not intended to be part of Lots 1–9;
    2. it was not intended to be an easement, a concept recognised in the Real Property Act at the time; if an easement had been intended it would have been simple to say so;
    3. it was therefore not intended to be an easement for the benefit of Lots 1–9, either separately or collectively;
    4. it was to allow persons to pass along it; so much is signified by the words “Right of Way”;
    5. since it was carved out of the original Lots, and it was not a separately registered Lot with surveyed metes and bounds, there was no boundary at either of the Margaret Street or Albert Street ends;[18]
    6. it was not intended to allow access from original Lots 7 and 12, as the Reserve completely covered any common boundary between those two Lots and the Right of Way;
    7. it was not intended to be retained by the Trustees; the resolution was to sell all the land in the original Lots 8–11; RP1073 was the means by which that was to be done; nothing in the resolutions or RP1073 suggests that the Trustees intended to remain as proprietor over the land in the Right of Way; and
    8. in the same way, the Trustees did not intend to retain ownership of the Reserve; it was evidently designed to protect the integrity of the Right of Way, by preventing any access from original Lots 7 and 12; it was not designated as an easement for the benefit of any Lot.
  27. [67]
    The next step in chronological sequence was the actual sale of Lots 1–9.
  28. [68]
    On 21 September 1876, the Trustees met.  The proposed auctioneer, Mr Cameron, had provided the terms of sale and proposed reserve prices for the lots.  The Trustees resolved that:[19]

“Mr Cameron’s Reserves and proposed terms in connection with the Alice St Property were approved.”

  1. [69]
    At that meeting of the Trustees the members comprised: a Judge of the Supreme Court, the Attorney-General, the Clerk of the Legislative Assembly, three Members of the Legislative Assembly, three Members of the Executive Council, one Member of the Legislative Council, and the Secretary of Public Lands.
  2. [70]
    On 18, 19, 21, 22, and 27 September 1876, Mr Cameron published notices of the auction, including the terms of the sale.[20] Relevant aspects of what the public were told were:
    1. the sale was “By Order of the Trustees Brisbane Grammar School”, and on “instructions from the Trustees”;
    2. the sale was of nine allotments;
    3. the sale was of “All those Pieces of Land described upon the Government Map as Allotments 8, 9, 10, and 11 of Section 37”;
    4. it then said that said the “foregoing property” had been “subdivided into” nine lots; the “foregoing property” was a reference to “All those Pieces of Land described upon the Government Map as Allotments 8, 9, 10, and 11 of Section 37”;
    5. that property had been “subdivided into NINE … SITES … each lot having a back entrance”;
    6. purchasers were told they could “see the plan and obtain what information they require by calling on the Auctioneer”; and
    7. the notice finished: “Title– Real Property Act”; in context that signified that the title to be obtained by a purchaser was title under the Real Property Act 1861 (Qld).
  3. [71]
    I add that, as shown in paragraphs [64]–[65] above, if one looked at the Government maps it would be evident that “Allotments 8, 9, 10, and 11 of Section 37” included the land that was labelled “Right of Way” and “Reserve”.
  4. [72]
    The notice was modified and repeated on 4 October 1876 in respect of the three lots that had not sold on the first day.[21] The land was described as the “Unsold Balance of the Alice-Street Estate”, and “Three … Allotments”.  That exercise was repeated again for the auction of the two remaining lots on 9 October 1876.[22]
  5. [73]
    The auction included a plan of the lots.[23]

WCL (Qld) Albert St Pty Ltd v Orb Holdings Pty Ltd [2023] QCA 263

  1. [74]
    As can be seen from the plan:
    1. no part of the nine lots to be sold included the Right of Way or the Reserve;
    2. the Right of Way was open to Margaret and Albert Streets; and
    3. neither the Right of Way nor the Reserve was described as an easement.
  2. [75]
    Given that the Trustees sanctioned the terms of sale in the auction notices, they can be accepted to be a public expression of the Trustees’ intention with respect to the auctioned lots.  The features to note are:
    1. the nine lots to be sold did not include the Right of Way or the Reserve;
    2. buyers were told that each of the lots had a “back access”;
    3. self evidently, that was the Right of Way shown on the plan;
    4. the Right of Way was not described as an easement; and
    5. the form of title to be conveyed was title under the Real Property Act 1861 (Qld).
  3. [76]
    The only title under the Real Property Act 1861 (Qld) that a purchaser could get in relation to the Right of Way (the “back entrance”) was an easement.  But that was not what was offered.
  4. [77]
    The next chronological step to consider is what followed upon the sale of the nine lots.  Transfers under the Real Property Act 1861 (Qld) were executed to give effect to the sale of each lot.
  5. [78]
    The sale of the lots resulted in the Trustees resolving on 27 October 1876:[24]

“That the Chairman Sir James Cockle be requested to cause the seal of the Corporation to be affixed to the memorandum of transfer on conveyance of the land in Alice & Albert Streets and to sign the certificate required by the 114 sec. of the Real Property Act.”

  1. [79]
    That the seal had been affixed was also reported to the Trustees, for example:[25]

“The Secretary reported the affix of seal and Chairmans certificate to conveyances of land in Alice Street to James Hunter the purchase money having been paid.”

  1. [80]
    In each case, the certificate of title which issued in respect of Lots 1–9 recorded that the buyer was “seized of an Estate in Fee Simple, subject nevertheless to such encumbrances, liens, and interests, as are by memorandum notified hereon …”.[26]
  2. [81]
    In no case did the certificate of title record an easement reflected by the Right of Way or the Reserve.  The Right of Way was referred to but only as part of the metes and bounds description of the lot.  Given that certificates of title were issued for Lots 1-9, and none for the Right of Way, it must, in my view, be inferred that a deliberate decision was made to deal differently with the Right of Way, at least differently from the way the Lots were dealt with.  The Trustees approved the subdivision plan that became RP1073 when it was filed.  No lot number was given to the Right of Way on RP1073. That was not by accident or inadvertence as numbers were given to Lots 1-9.  It was not advertised as being for sale.  That was not by accident or inadvertence either, as the terms of sale were approved, and the Right of Way was not for sale.  In the end, the Right of Way was left in the subdivision.  None of those deliberate steps are consistent with the Trustees intending to exercise or retain rights of ownership over the Right of Way.
  3. [82]
    In 1886, the Trustees publicly signified their approval to the creation of the Reserve as Lot 10, as part of the subdivision of original Lots 9–11 of Section 37. The Trustees’ consent to subdivision plan No 1074, which showed the Reserve as Lot 10, was added on the face of the plan:[27]

“As proprietor of this land, I agree to this plan of subdivision. For Trustees of Brisbane Grammar School Charles Lilley Chairman.”

  1. [83]
    The registered proprietor was Mr Hart.  The certificate of title stated that Lot 10 was “Part of the allotments marked 9, 10 and 11 of section 37”.[28] The Right of Way was identified on the subdivision plan and on the certificate of title, by use of the words “Right of Way” immediately above Lot 10.
  2. [84]
    WCL accepted that the result of Mr Hart’s purchase of Lot 10 was that he was then able, as he never was before, to access the Right of Way directly from his land, original Lot 7 on section 37. The trial judge made findings, with which I respectfully agree, as to the import of Mr Hart’s purchase:[29]
  1. “[31]
    This is of some importance in the present case as commercially it would be a nonsense for Mr Hart to seek to traverse the 30cm reserve area onto an area to which he had no right to be, if the right of way were a private right of way or easement.
  2. [32]
    It only made commercial sense for Mr Hart to acquire the reserve to enable him to access the right of way and then utilise the right of way as a means of access to his property, Lot 7, if the right of way were considered a public thoroughfare.”
  1. [85]
    The Reserve was resumed by the Brisbane City Council on 24 September 1927, and dedicated for road purposes in December 1927.[30]

What is necessary for a dedication?

  1. [86]
    The parties were agreed that the applicable test was that expressed in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council:[31]

“At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication.  With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road.  The main exceptions are mortgagors, who require the consent of their mortgagees, and trustees and bodies corporate if they are not empowered to do so.”

  1. [87]
    That statement was adopted by this Court in a previous edition of this case.[32]
  2. [88]
    As was accepted at the trial, a common law dedication of a road did not involve the creation of a proprietary interest in the land. It was also accepted that for the Trustees to have dedicated the Right of Way as a public road, they must have formed the requisite intention by 1923.  This is because, on 1 January 1924, the law changed so that the dedication of land as a public road became a statutory rather than common law process.
  3. [89]
    In 1876, there was no formal step that was required to constitute a dedication, at common law, of land as a road.  The position was explained in Palmisano v Hawse:[33]

“ ...  At common law a public road was created by dedication of land for that purpose by the owner of the land, whether the Crown or a private owner, and by acceptance by the public of the dedication.  Dedication was not usually a formal act, but was to be understood from events such as leaving ways open to the public when constructing buildings or laying out subdivisions, referring to land as a road in a plan published in some way such as exhibiting it when lands are offered for sale, or even more usually simply by leaving the land open for unobstructed public use for a lengthy period ....”.

  1. [90]
    While on the NSW Court of Appeal, McHugh JA made the following observations in Newington v Windeyer:[34]

The dedication could be made expressly or be inferred from the conduct of the owner.  The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn: Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; 37 WN 51 at 53; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 412, 415, 422).  When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action:

Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 415) per Menzies J.  In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn.  Dedication to the public may also be presumed from uninterrupted user of the road by the public ...  But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period.  At common law, continual trespassing could not create a public road.  The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.”

  1. [91]
    An early acceptance of those general principles can be seen in Ex Parte Le Gould,[35] where Cockle CJ and Lutwyche J said:

“The Court agreed with Mr. Justice Chambre (the dissentient Judge in Woodyer v. Hadden) that an unequivocal act of dedication, such as building a double row of houses opening into an ancient street at each end, and selling or letting the houses, would instantly make the passage between the houses a highway...”.

  1. [92]
    It must be recalled that Sir James Cockle was the Chief Justice and Chairman of the Trustees at the time RP1073 was signed by him in 1876, creating by subdivision the nine Lots and the Right of Way. It is, in my view, undoubted that he was well aware of the common law’s approach to a dedication of land for public road use.  The same can be said of Samuel Griffith and Charles Lilley.
  2. [93]
    Further, in my view, given the professions and positions of the Trustees,[36] the Trustees could not be taken to have been ignorant of the facts that: 
    1. the nine lots to be sold would attract title under the Real Property Act 1861 (Qld);
    2. the only way under that Act that the Right of Way might be made exclusively for the private use of the nine lots was by grant of an easement; and (c) no easement was being created.
  3. [94]
    The term “Right of Way” was self-evidently deliberately used to signify that the land comprised in that description, and identified on RP1073, was intended to create rights of way, i.e. rights of passage over that land from Margaret Street and from Albert Street.  That was why the public notices of auction told intending buyers that they would have “back access” from any of the nine lots.  Access from the back of each of the nine Lots necessarily required that the owner be able to walk or drive to and from Margaret Street and Albert Street.  No right of way could have been given if that land was not open to both streets.
  4. [95]
    In my view, it is plain that the Trustees unequivocally intended that the “Right of Way” be used as a road giving access to both Margaret and Albert Streets.
  5. [96]
    However, WCL contends that it was not unequivocally intended for public use.  For the following reasons, I disagree.
  6. [97]
    First, the term used to describe the land was a Right of Way.  That phrase was used in:
    1. the subdivision plan RP1073;
    2. the plan advertising the sale of the Lots: see paragraph [73] above; and
    3. in the survey plan lodged to create the Reserve as Lot 10: see paragraphs [82]– [83] above.
  7. [98]
    The trial judge found that term to be a “neutral feature”, because it could refer equally to a private or a public right of way.[37] That is true,[38] but when seen with the other factors below, its use was plainly as a public right of way.
  8. [99]
    WCL submitted that neutrality was inconsistent with a dispositive intention.  If all one had was a neutral act or neutral acts, that submission might have some force, but that is not the case here.  Even a neutral act an take its colour from other acts.
  9. [100]
    Secondly, the Trustees plainly intended to sell off all the “Land in Alice Street”, meaning Lots 8–11 on section 37. That they did not intend keeping any back under the Trustees’ control is demonstrated by the subdivision plan RP1073, which dealt with all of the land that had been Lots 8–11 on section 37.
  10. [101]
    Thirdly, the obvious way in which to restrict the right of access over the land would be by an easement. No part of what was planned by the subdivision contemplated that an easement would be granted to any of the nine Lots. The Trustees were well aware that easements could be granted, but chose not to do so.
  11. [102]
    Surveying evidence at the trial was given as to what was required to create an easement in the 1870’s.[39] That was:
    1. the creation of a lot over which the easement could run;
    2. marking the boundary of the easement on the plan with black lines;
    3. noting the easement on the plan with the word “easement”, or some abbreviation of the word;
    4. creation of an easement document setting out its terms; and
    5. notation of the easement on the title of the benefiting lots.
  1. [103]
    In my view, it cannot be the case that the failure to create the Right of Way by way of easements was because of any difficulty with the formalities involved, such as the creation of deeds describing the Right of Way as the servient tenement and the adjoining Lots 1–9 as the dominant tenements, or the creation of a lot over the Right of Way, or that s 51 of the Real Property Act 1861 (Qld) would have required any such easement to be registered.  The Trustees had committed the arrangement of the sale to Mr Scott and Mr Bernays, and they went to a surveyor, Mr Gailey, to have the subdivision plan drawn.[40] Nine Lots were being created, and each would get title under the Real Property Act 1861 (Qld).  It would have been easy to have easements drawn, had they been required.
  2. [104]
    Further, there are reasons why the Trustees would not have wanted to create an easement over the Right of Way.  Doing so would have meant that the Trustees were obliged to maintain and manage it, even though they plainly intended to quit Lots 8-11 on section 37 entirely.
  3. [105]
    Fourthly, the subdivision plan RP1073, and the plan of the lots publicised for the purposes of the auction, showed the “Right of Way” as open to, and connected with, each of Margaret and Albert Streets.  They visually represented a laneway or road opening to each street.
  4. [106]
    Fifthly, the Right of Way was the means of “back access” for each of the nine Lots.  As the Trustees would have known, the Lots were obviously more attractive to potential buyers if they had access from the back as well as the street frontages.  Those Lots were sold on the basis that their intended use could be commercial, as well as, or instead of, residential.  The Trustees plainly intended the Right of Way to cater for the outcome that buyers could, and likely would, establish businesses on the Lots.  Back access to such businesses necessarily envisaged that members of the public would use the Right of Way to reach the businesses, whether they be customers or delivery persons.
  5. [107]
    Sixthly, the desirability of “back access” to Lots 1–9 by way of a Right of Way open to Margaret and Albert Streets was not something told only to the actual buyers of those Lots; the public notices of the auction told the world that fact.  That meant that people wanting to do business with any commercial uses of the Lots were told the way they would gain back access to those businesses.
  6. [108]
    Seventhly, the Trustees took only one step which was designed to regulate use of the Right of Way.  That was to include the Reserve as part of the subdivision plan.  Its purpose was to prevent direct access to the Right of Way from Lots 7 and 12.  Had the Reserve not been created, the owners of Lots 7 and 12, being land that adjoined the Right of Way, would have had a right to access it and enjoy it.[41]
  7. [109]
    That did not mean that the owners of Lots 7 and 12 could not use the Right of Way if they approached it from Margaret or Albert Streets.[42] It simply meant that they did not have “back access” like Lots 1–9 did.  WCL accepted that the impact of the Reserve upon original Lots 7 and 12 would not defeat there being an intention to dedicate to the public, if that intention were found.[43]
  8. [110]
    The trial judge found that the Right of Way “was not large enough to carry high volumes of traffic, which was likely to occur if Lot 12 were subdivided in a manner similar to the original Lots 8, 9, 10 and 11”.[44] That finding is not challenged. It adds support to the conclusion that the Reserve was directed at Lots 7 and 12, but the only step taken to restrict public access.
  9. [111]
    There is no evidence that any other step was taken by the Trustees to prevent public access via the Right of Way.  No fences were ever erected, and no signs were put up restricting the type of user.  Until 1994, when title over the Right of Way was issued in the name of “The Trustees of the Brisbane Grammar School”, there is no evidence that the Trustees took any step whatever to deal with or control the Right of Way.
  10. [112]
    After the sale of Lots 1–9, there were no minutes of the Trustees that referred to the Right of Way.
  11. [113]
    It was accepted at the trial that, at all times up to 2019, the laneway, or Right of Way, had been open to the public at either end. It was also accepted that no step had been taken prior to 2019 to exclude anyone from using the Right of Way. That supports the conclusion reached above as to the Trustees’ intention.  It fits within what McHugh JA said in Newington:[45]

“...  When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action ...”.

  1. [114]
    Eighthly, the factors mentioned above plainly show, in my view, that the Trustees had no intention of retaining ownership of the Right of Way but, as a matter of grace and favour, making it available to Lots 1–9 as a right of way.  It cannot be rationally concluded that the Trustees would have acted in a way that defeated that which they had promised to purchasers of Lots 1–9. After all, the thing created was called a “Right of Way”, something inconsistent with the Trustees continuing to own the land without granting rights of access, public or private.  Whilst the owners of Lots 1-9 had their access to the back of their lots by the Right of Way, so did the public who might wish to patronise businesses on Lots 1–9. Having advertised that Lots 1–9 would have back access by the Right of Way, it is objectively unlikely that the Trustees failed to create those rights.
  2. [115]
    It is, in my view, risible to suggest that the Trustees intended to retain ownership of the Right of Way whilst at the same time creating even private rights over it. There is no rational basis upon which that could be their intent. WCL suggested that there was nothing inherently uncommercial about the Trustees retaining ownership and selling it later for valuable consideration. I do not accept that proposition. No rational buyer would purchase a piece of land which was burdened, as to the whole of its usable surface, by rights of way.
  3. [116]
    WCL contended that the absence from the Trustees’ minutes, or any notation on the plan, of any express reference to the dedication being for public use, was a telling factor against a finding that the Trustees intended the Right of Way for public use.  As it was put, that the Trustees decided not to put the word “dedicated” on the plan or refer to it in the minutes, but rather leave it to a matter of inference, was so unlikely that it could be rejected.[46]
  4. [117]
    I do not accept that contention. The considerations referred to above make it plain that the Trustees comprehended that the public would access the Right of Way. That was inevitably so if businesses were established on Lots 1–9, utilising the back access that the Right of Way was expressed to give. There was no need for express words to be used in the resolutions when the subdivision plan RP1073 and the plan of lots for advertising to the public, made the position clear.
  5. [118]
    In any event, as Orb submitted, the absence of express words could cut both ways.  It was not expressly said to be public, but equally not expressly said to be private. The considerations above compel the conclusion that the intention was a dedication for public use.
  6. [119]
    WCL also submitted that, in 1876, the words “right of way”, particularly when used by lawyers, were directly associated with private rights rather than public roads.  It was said that it was inherently unlikely that the Trustees would have used the phrase to describe something which they intended to be a public road.  I do not accept that submission.  The Trustees would have been well aware of the way in which land might be dedicated at common law: see paragraphs [91] to [93] above.  It is true that, at that time, s 44 of the Real Property Act 1861 (Qld) referred to indefeasibility being conferred upon “any right of way or other easement created in or existing upon the same land”, but that was only if the rights were created under that Act.  That did not affect dedication at common law.  The Trustees would have been well aware of the ways in which title could be established for an easement, and the formal steps to achieve that result.  None of them were taken.
  7. [120]
    Nor does s 119 of the Real Property Act 1861 (Qld) take the matter further.  It provided:

“Any proprietor sub-dividing any land … shall deposit with the Registrar-General a map … such map shall exhibit distinctly delineated all roads streets passages thoroughfares squares or reserves appropriated or set apart for public use …”.

  1. [121]
    In my view, the term “delineated” governs what follows, namely those various things appropriated or set apart for public use.  In other words, such things must be distinctly marked on the map.  The Right of Way was distinctly marked on the plan.  There was no requirement for it to be labelled as a “road”, “street”, or any of the other variants.  Nor was there any requirement for it to be made plain, on the face of the plan, that the road was being dedicated for public use.  That would go beyond the meaning of the word “delineated” which, in context, means marked or drawn, as in lines, edges or boundaries.
  2. [122]
    The same conclusion was reached in respect of the same argument by WCL in this Court’s decision in Orb Holdings:[47]
  1. “[33]
    It is convenient at this point to discuss an argument, by WCL, that any dedication of this land, by the registration of RP1073, was not a dedication of a ‘road’, as distinct from a ‘street’, ‘passage’ or ‘thoroughfare’.  The argument is based upon the terms of s 119 of the Real Property Act 1861 (Qld), as they were when RP1073 was registered.  Section 119 required a plan of subdivision to ‘exhibit distinctly delineated all roads, streets, passages, thoroughfares, squares or reserves appropriated or set apart for public use …’.  The argument is that although RP1073 distinctly delineated this land, it did not distinctly describe it as a road, as distinct from a street, passage or thoroughfare.  Therefore, it is suggested, it was not a road for the purposes of s 369 of the Land Act 1962.
  2. [34]
    That argument cannot be accepted.  Section 119 Real Property Act 1861 did not require RP1073 to distinguish this land as, for example, a road rather than as a street.  But in any case, the registration of RP1073 was not the only basis for the judge’s assumption that this land had been dedicated at common law.  And the land was clearly within the defined meaning of a ‘road’ under the Land Act 1962.”
  1. [123]
    WCL submitted that a fair reading of the advertising for the sale of the Lots leads to the conclusion that the lots were primarily marketed by the Trustees as prestige residential allotments.[48] I do not accept that submission.  The notices for the auctions stated that there were nine lots opposite the Botanic Gardens, having frontages to Alice, Albert, and Margaret Streets, and adjoining the residence of Mr Hart.  Then, in that part of the notice in which purchasers would have greatest interest, the terms of sale rather than the advertising blurb, the notices referred to the lots as “NINE CHARMING RESIDENCE SITES” and “each lot having a back entrance”, but went on to state:[49]

“OUTSIDE QUEEN-STREET, and perhaps Edward and Eagle streets, there is no spot in the city that can vie with these properties so far as present or prospective value is concerned.  The position is, from its peculiar surroundings, equally well adapted for private residence or business purposes, and, from the very favourable formation of the land, the former can be erected at the rear on a good elevation, while the frontage to Albert-street can be built upon with shops without necessitating a shilling outlay for excavation.”

  1. [124]
    The Trustees approved those words.  The Lots were therefore sold by the Trustees on the express basis that they were equally well adapted for business use.  WCL’s submission ignores those parts of the notices which, for the reasons set out in paragraphs [94] and [106]–[107] above, are important.  That is shown by the fact that within a relatively short time, business had been established using the Right of Way: see paragraphs [127]–[129] below.

Was the dedication accepted by the public?

  1. [125]
    The trial judge found that the evidence pointed fairly plainly to the fact that the public had accepted the dedication.  His Honour observed that:
    1. at all times, the entrances to the Right of Way (which his Honour called the Laneway) were open to the public;
    2. the Laneway was situated in a busy part of the growing township of Brisbane, and was utilised by a number of industrial concerns including a flour mill and a large engineering concern;
    3. there was a large Masonic Hall, utilised for large public meetings and events, which had stables and buggy houses which could only be accessed from the Laneway; and
    4. the then Brisbane Municipal Council had expended public funds maintaining and improving the Laneway and, otherwise, had exercised control over the Laneway.
  2. [126]
    There was evidence at the trial of public use.
  3. [127]
    The trial judge found, and it is not challenged, that:[50]

“… it may be accepted that the industrial phase from the 1880s to 1910 was the busiest period of probable public use of the land due to presence of the Masonic Hall and the businesses of A Overend & Co and the Queensland Milling Company.”

  1. [128]
    A Masonic Hall was built on one of the lots in 1886.  The trial judge accepted the evidence of Dr Beanland that it was used for large public functions attended by “some hundreds of persons”.  Those events included art shows by the Queensland Art Society, and other major functions.[51]
  2. [129]
    Dr Beanland’s evidence was that the Masonic Hall had stables and buggy houses at the rear which could only be accessed by the Right of Way.  The size of those stables and buggy houses indicated to Dr Beanland that they were intended for use by visitors to the Masonic Hall.  The primary judge accepted that evidence and reasoned that:[52]

“Historical documents that are available in respect of the subject land do lead me to conclude that Dr Beanland’s opinion ought to be accepted, that the laneway the subject of Lot 11, which was open to the public, was in fact regularly used by public.”

  1. [130]
    No substantive basis has been shown to disturb these findings.
  2. [131]
    The trial judge also accepted evidence that during the “industrial phase” of the use of Lots 1–9, it was a busy, industrial area which was likely to attract many people.[53] There was evidence from historian witnesses to that effect.[54] His Honour rejected the contrary view advanced by Dr Cook:[55]
  1. “[108]
    … That some persons would utilise the laneway cannot be discounted as a general proposition, nor the likelihood that members of the public might simply wish to satisfy their curiosity by walking the laneway to see what was there.  This would apply generally but also in times of the construction of the very substantial buildings which occurred in and about the subject land.
  2. [109]
    The second reasoning deployed by Dr Cook, that persons of the public would not wish to traverse upon an area which is a busy working site, suffers from the irony, as it was put by senior counsel for the applicant, that it is to argue that the area was so busy and so frequently attended upon by so many different types of persons that others would be unlikely ... [to] use Lot 11 as a thoroughfare.”
  1. [132]
    There is no basis to reject those findings.
  2. [133]
    There was ample evidence to support the trial judge’s finding that the Right of Way was used by members of the public, other than just occupiers and invitees of Lots 1-9.  In any event, as was said by Windeyer J in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council, where the intention to dedicate the land is apparent on the face of the subdivision plan, not much public use is necessary:[56]

“This is not a case in which it is suggested that dedication is to be inferred from user alone.  The animus dedicandi is not to be inferred from the landowner suffering a use of his land as a way. The animus dedicandi is expressed on the face of the plan. Therefore no great amount of public use was necessary to make the dedication complete.”

  1. [134]
    Apart from the evidentiary basis for the trial judge’s conclusion, the same conclusion might be drawn as a natural inference from the uncontroversial fact that the Right of Way was always open at either end, and not fenced.  In Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors,[57] the New South Wales Court of Appeal said:
  1. “48
    The absence of any evidence of gates at the George Street entry to the lane also tends to support the likely use by members of the public.  That is, that the road was left open for use by the public.  The absence of fencing off of a road has been seen as important to the issue of dedication.  See Harvey J in Attorney General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; Sugerman J in Owen v O'Connor (1963) 63 SR (NSW) 1051 at 1053 and Newington v Windeyer at 559.  Young J believed that there was a presumption in relation to roads connecting to a public street being open to all, so that if they were not fenced off, they were to be properly regarded as open to the public.  He cited Menzies J in Permanent Trustee Co of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401 at 415.
  2. 49.
    I am unsure whether what Menzies J said about roads left in subdivision rises to a legal presumption.  However, his approach is a realistic one.  I agree that it is an artificial and unreal approach to treat such roads as private unless access to the public is prevented.
  3. 50.
    The Permanent Trustee case also assists the Council in so far as it may indicate that not much evidence of use of the lane by members of the public is required to satisfy the deemed dedication in the statutory provision.  See in particular Windeyer J at 423.  Moreover, it must clearly be kept in mind in this case that use as a footway by members of the public is sufficient.  Consistent with Newington v Windeyer, use by mere invitees or licensees will not suffice.
  4. 51.
    I think that Young J was well entitled to conclude that the subject lane was used by the public between 1860 and 1879.  He found that it had been so used as a carriageway although, as I have mentioned, use as a footway only would have been sufficient.  The plans before the court, particularly Dove’s plans, leave ample room for inferences of public use, taking account of the obviously extensive commercial activity, including many nearby hotels.
  5. 52.
    The lack of any cogent evidence of gating-off the lane also assists in drawing the inference of public use.  The conclusion is aided by Menzies J reference in Permanent Trustee to use by the adjoining landowners being regarded as use by the public (see 415).”

Use by occupants and invitees enough?

  1. [135]
    WCL submitted that acceptance by the public had to be use by the public as though it were “as of right”.  It was said that use of that kind is not established by proving that a way has been used by occupants of adjacent lots and their invitees, as that is equally attributable to an implied permission.[58]
  2. [136]
    WCL relied upon Newington v Windeyer,[59] where it was said:

“Use of a road by the adjoining occupiers, their friends, visitors and tradesmen is not enough to convert a road into a public road. In that class of case, the use of the road by invitees and licensees is by the permission, express or implied, of the occupiers. This is the antithesis of the right to enter which is the hallmark of the public highway ... the appellant’s case is not strengthened by evidence that the occupiers and their invitees or licensees use, or have used, The Grove.  It does not prove public user and provides no foundation for inferring an intention to dedicate the land as a public road.”

  1. [137]
    Reliance was also placed upon Weber v Ankin,[60] where the Court referred to entitlements to use under a dedication of a road:

“[a dedication] would entitle all members of the public, not particular individuals or classes of individuals, to use the road.”

  1. [138]
    The ultimate resolution of this question depends upon what the evidence reveals about use of the Right of Way, or Beatrice Lane.  Was it use by the public, or just invitees?  And if they were invitees, were they invitees of the businesses or owners of Lots 1-9, or someone else?  For that issue, one needs to ask of any user: by what right are they using the Right of Way?
  2. [139]
    However, in order to properly assess that question, one needs to understand the legal framework.
  3. [140]
    On the assumption that there was a dedication to the public, it was by the Trustees.  The Trustees were the owners of the land before the subdivision in RP1073, and since the area of land comprehended in the Right of Way was neither a Lot nor sold at auction, they remained owners thereafter until Lot 11 was sold in 2008.  It is the Trustees who dedicated the land to public use, not the individual Lot owners who purchased from the Trustees.
  4. [141]
    As to the use of the Right of Way, there are several categories to consider:
    1. the owners of Lots 1–9;
    2. invitees and licensees of those Lot owners and their businesses;
    3. invitees and licensees of the Trustees; and (d) the public.
  5. [142]
    The owners of Lots 1–9 fall into the category of adjoining owners, as that phrase was used in Newington.  So too, the invitees and licensees of the adjoining owners, Lots 1-9, fall into the category whose use is insufficient to establish public use and thereby acceptance of the dedication: see the passage from Newington in paragraph [136] above.
  6. [143]
    In Newington, the identification of those invitees and licensees whose use was disqualified did not depend on them being invitees and licensees of the owner of the land called The Grove.  To the contrary, they were invitees and licensees of the adjoining owners, none of whom were or had ever been the owner.  On that basis, I would reject the contention advanced by Orb that the relevant disqualification only applied to invitees and licensees of the Trustees, because the Trustees were the owners of the Right of Way.
  7. [144]
    Therefore, evidence of use by the invitees and licensees of the business established along the Right of Way will not suffice to prove the requisite use by the public.

Evidence of use by the public

  1. [145]
    The trial judge accepted the evidence of a number of witnesses who deposed to aspects of use by the public.
  2. [146]
    Use from 1963 was established by Mr Matthews.[61] He said that members of the public used Beatrice Lane (as the Right of Way was then known) to access buildings on original Lot 12,[62] which was a carpark.  The carpark was used by the public.  In the face of only gentle challenge to his evidence, he said that Beatrice Lane had experienced a lot of public use since 1963.
  3. [147]
    That evidence was, it is true, disconnected in time from the 1924 cut-off and earlier.  However, it was open to find that it was a continuation of a use which had long prevailed, and thereby supporting the conclusion that similar use occurred prior to 1924.  That view was shared by Dr Cook, who agreed that the “pattern of usage that had been established in the 1910s and 20s just continued” into the 1960s.[63]
  1. [148]
    Historians, Dr Beanland and Dr Cook, gave evidence of the results of their researches. The trial judge accepted their evidence, preferring Dr Beanland on the question of public use.[64] Part of the evidence was as to:
  1. the Masonic Hall built on Lots 8 and 9, its visual beauty and functions held there;[65] and
  2. the industrial phase involving A Overend & Co, an engineering business on the corner of Alice and Albert Street, and the Queensland Milling Company flour mill on Lots 4 and 5; the mill was described as an imposing five level building and Brisbane’s first flour mill.[66]
  1. [149]
    The trial judge found that:
  1. “[107]
    The heavy use to which the area was put in the industrial period from the 1880s to 1910, in my view, supports the conclusions of Dr Beanland that the laneway area of Lot 11 has always been open to the public [and] was commonly used by the public.”
  1. [150]
    His Honour also noted that it was common ground that Lot 11 was open to the public until 1994.[67]
  2. [151]
    The trial judge rejected the two reasons proffered by Dr Cook for concluding that Lot 11 was not used by the public.  The first was that the laneway did not actually provide a shortcut.  As to that, his Honour noted that Lot 11 was always open and found:[68]

“That some persons would utilise the laneway cannot be discounted as a general proposition, nor the likelihood that members of the public might simply wish to satisfy their curiosity by walking the laneway to see what was there.  This would apply generally but also in times of the construction of the very substantial buildings which occurred in and about the subject land.”

  1. [152]
    The second was that the public would not wish to traverse upon an area which was a busy working site.  As to that his Honour found that the point:[69]

“ … suffers from the irony, as it was put by senior counsel for the applicant, that it is to argue that the area was so busy and so frequently attended upon by so many different types of persons that others would be unlikely ... [to] use Lot 11 as a thoroughfare.”

  1. [153]
    More generally, his Honour found:[70]
  1. “[111]
    … with such large businesses, or the use of the Masonic Hall by many persons, the nature of the use of the laneway to all intents and purposes would take the appearance of being a public laneway.  It would, in my view, be extremely difficult to accept that a member of public, seeing dozens of persons access an open laneway area which appears as an ordinary road, would think that area was not a public roadway and use it as such.”
  1. [154]
    Some of the evidence of public use was referred to by the trial judge when dealing with Dr Beanland’s research:[71] 
  1. “[182]
    As to the other evidence, Dr Beanland points out that in the April 1889 Brisbane Municipal Council minutes correspondence from A Overend & Co was responded [to] by the council pointing out the right of way was private property.  That correspondence does suggest that Lot 11 was not considered a public road in 1889.  However, by 1896 (page 362) Brisbane Municipal Council enquired of the Queensland Milling Company (an owner in the area), in respect of a weighbridge that the Queensland Milling Company sought permission to fix in Beatrice Lane behind their premises, ‘if the machine was likely to obstruct the lane for general traffic’ and stating that a small fee would have to be paid annually.  The Queensland Milling Company replied ‘that the weighbridge would not cause the least obstruction and they were willing to pay any reasonable fee’.
  2. [183]
    This correspondence from Brisbane Municipal Council shows that by August 1896 the council considered that the subject lot was a laneway for general traffic.  As until recent times the laneway was in fact open to the public, has been used frequently, at least since 1974, by the public and was considered, at least by 1896, to be a general laneway for public use.  I find that the public did accept the proffered dedication by the trustees of Brisbane Grammar School of the subject land as a public road.”
  1. [155]
    Ultimately, the trial judge concluded:[72]
  1. “[114]
    … Historical documents that are available in respect of the subject land do lead me to conclude that Dr Beanland's opinion ought to be accepted, that the laneway the subject of Lot 11, which was open to the public, was in fact regularly used by public.”
  1. [156]
    In summary, the trial judge accepted evidence that showed the dedication had been accepted by the public because:
    1. at all times, the entrances to the Right of Way from both streets were open to the public;
    2. the Right of Way was situated in a busy part of Brisbane, and was utilised by a number of industrial businesses, including a flour mill and a large engineering firm;
    3. there was a large Masonic Hall, utilised for large public meetings and events, which had stables and buggy houses which could only be accessed from the Right of Way; and
    4. the then Brisbane Municipal Council had expended public funds maintaining and improving the Right of Way and, otherwise, had exercised control over the Right of Way.

Evidence from Dr Beanland

  1. [157]
    Dr Beanland’s research produced documents, the admissibility of which was not challenged, which revealed:
    1. the Masonic Hall constructed on one of the lots by about 1886 was used for large public functions attended by “some hundreds of persons”;
    2. those events included the annual art shows of the Queensland Art Society and other major events;
    3. it was noted by Dr Beanland that the Masonic Hall had stables and buggy houses at the rear which could only be accessed by the Right of Way;
    4. the size of those stables and buggy houses indicated to that they were intended for use by visitors to the Masonic Hall; and
    5. it was a busy, industrial area which was likely to attract many people; that was a view with which both historians agreed.
  2. [158]
    As noted above, it is the case that, in the circumstances, “no great amount” of public use was necessary.  As Windeyer J said in Permanent Trustee:[73]

“This is not a case in which it is suggested that dedication is to be inferred from user alone.  The animus dedicandi is not to be inferred from the landowner suffering a use of his land as a way.  The animus dedicandi is expressed on the face of the plan.  Therefore no great amount of public use was necessary to make the dedication complete.”

Is an actual intention on the part of the Trustees required?

  1. [159]
    The genesis of this point of contention was the trial judge’s reasoning as to the significance of commercial benefit and detriment to the Trustees in respect of the Right of Way, and the weight of such matters on the drawing inferences as to intention:[74]
  1. “[165]
    The only commercial benefit for the trustees to remain owners of the fee simple could arise in circumstances where the owners wish to sell the fee simple in the right of way, but in good conscience they could only do that to a buyer who purchased each lot of the subdivision, that is, to re-amalgamate the entire parcels of land.  Having just embarked upon a commercial exercise they judged best for the return of their investment in the subject lands, it did not make commercial sense of the trustees to envisage that at any time in the near future a person would wish to effectively undo the subdivision which the trustees had embarked upon.  If the trustees were to act as they ought to, in an orthodox, lawful, commercial and honourable way, the only proper inference is that the trustees intended to dedicate the right of way as a public road.

  1. [173]
    The alternative proposition urged by the respondents is that the trustees of the Grammar School did not intend to dedicate the right of way as public land but wished to continue as the owners of the fee simple faces numerous hurdles.  First is that the trustees deliberately overlooked paying the rates, in effect tricking the Brisbane Municipal Council into believing the right of way was a public road, when it was not.
  2. [174]
    The second is that the trustees deliberately avoided their obligations to the purchasers of Lots 1 to 9 of the subdivision by failing to create the right of way as a reserve and failing to create and properly document upon the certificates of title the easements that would have secured the rights of each of the owners of the dominant tenements.  Such a position does not sit well with trustees acting honestly.
  3. [175]
    The first respondent is then forced into a position to argue that it was not dishonesty, but rather, inattention, a lack of interest, inertia or ignorance that lead to an oversight, or simply indifference with respect to the rights of the land.  It is further argued that the trustees were ignorant, indifferent or careless in relation to the rights in respect of Lot 11.  The acceptance of those submissions is most unattractive and I cannot accept them, in view of the calibre and position of the trustees of the Brisbane Grammar School at the relevant time involved in the creation of Lots 1 to 9 on RP1073.”
  1. [160]
    WCL attacked that reasoning as wrong because it did not focus on the positive evidence of an actual intention to dedicate:[75]
  1. “46.
    His Honour reasoned that if the Grammar Trustees intended the Right of Way to be a private easement, they had acted in a manner that was dishonest, ignorant, indifferent, careless, unorthodox, unlawful, uncommercial or dishonourable.  He then reasoned that, because it was unlikely that the Grammar Trustees would have behaved in such a manner, they must have intended to dedicate the Right of Way to the public.
  2. 47.
    That reasoning was bad because it did not focus on positive evidence of an actual intention to dedicate the Right of Way to the public, but instead on what the primary judge perceived (wrongly, in any event) to be an unlikelihood that the Grammar Trustees would have acted in the way which the primary judge thought (at a remove of almost 150 years) would be dishonourable or improper.  This was a wrong approach as a matter of principle.  The effect of the primary judge's approach was really to impose on WCL and the State a de facto onus to positively show that a private use was intended and that retaining the land for private use was honourable.”
  1. [161]
    WCL submitted that Orb could only succeed if it established that the Trustees’ actual intention was to dedicate the Right of Way as a public road.  As it was put:[76]
  1. 48.
    But it was Orb that had to establish the existence of an actual and positive intention to dedicate on the balance of probabilities.  The owner of land does not lose its ownership rights because of the lack of evidence of an intention to continue to own it – but only because of the existence of sufficient positive evidence that it actually intended to part with some or all of its rights.”
  1. [162]
    WCL contended that, for a dedication to occur, there must be an actual intention to do so. That intention was to be inferred as there was, in this case, no evidence amounting to an actual statement of subjective intention.  The actual intention is to be contrasted with merely behaviour consistent with having that intention.
  2. [163]
    Orb submitted that the question of intention to dedicate is one to be decided on the application of an objective test.  As it was put orally:[77]

“ … this is an objective test, in our submission, that needs to be applied.

The cases, as you’ve seen, speak of a manifestation of an intention to dedicate, and that language is used consistently, and in our respectful submission, it makes sense.  How can it be that a landowner could manifest clearly an intention to dedicate land but secretly hold back some intention not to do it and actual intention would trump manifested intention? It can’t possibly be right.  Manifested intention is the key test, which is an objective test.

… the problem that we’re dealing here about public rights of way arises in a context where things … can have happened over a very long period of time, where those who could speak to it are long gone, and the law has to deal with it.  The law has to deal with the reality of what’s happened by applying these principles of objective intention, and it would be surprising if the law took an approach to objective intention which means that things that have happened more than during someone’s lifetime means that … one throws up one’s hands and says, well, one can’t come to any conclusion … it’ll be speculation about … what they were intending.”

  1. [164]
    The trial judge’s reasoning in those paragraphs set out in paragraph [159] above were invited by two specific submissions made at the trial by WCL:
    1. first, that the fee simple in the right of way was a valuable asset which could be retained by the trustees and sold, thus justifying the conclusion that the Trustees did not intend that it be dedicated as a public road; and
    2. secondly, that the Trustees’ inattention, lack of interest, inertia, ignorance, or simply indifference lead to an oversight with respect to the rights in respect of Lot 11; and/or the Trustees were ignorant, indifferent, or careless in relation to the rights in respect of Lot 11.[78]
  2. [165]
    The attack on them is therefore misplaced.  However, that may be left to one side for the moment.
  3. [166]
    For reasons which I will discuss, the competing contentions on this issue are not materially at odds.  WCL’s contentions focus on the proposition that the intention to dedicate must be the actual intention of the landowner, but concede that it must be ascertained objectively, if necessary by drawing inferences from acts done and not done.  Orb’s contention is that the intention must be ascertained objectively, if necessary by drawing inferences from acts done and not done, but it cannot be a subjective intention secretly withheld.
  4. [167]
    In Permanent Trustee,[79] Kitto J discussed the case of a road “left in subdivision of private lands” and said:[80]

“Then as to the condition that there exists a doubt as to whether or not a road left in subdivision of private lands is a public road.  ‘Public road’ is defined by s. 4 to mean ‘road which the public are entitled to use’, and to include ‘any road dedicated as a public road ...’.  Clearly enough, a complete and unrestricted dedication is not required.  A case which, in my opinion, the definition covers is that in which land has been opened to the public for use as a highway but has not yet been so used that the implied offer of dedication has been accepted.  The expression ‘entitled to use’ is not one of so fixed a legal import that in the context its reference is necessarily to a public right of way existing by reason of dedication.  It is apt enough for the case where public use of the land as a way is permitted by the person having the legal right to possession; for in such a case a member of the public as such, may pass and repass without being guilty of trespass.”

  1. [168]
    The concept of there being an implied offer of dedication that might be accepted is one that supports the adoption of an objective test.
  2. [169]
    In Palmisano v Hawse,[81] Bryson J observed that:

“...  At common law a public road was created by dedication of land for that purpose by the owner of the land, whether the Crown or a private owner, and by acceptance by the public of the dedication.  Dedication was not usually a formal act, but was to be understood from events such as leaving ways open to the public when constructing buildings or laying out subdivisions, referring to land as a road in a plan published in some way such as exhibiting it when lands are offered for sale, or even more usually simply by leaving the land open for unobstructed public use for a lengthy period...”

  1. [170]
    In Newington v Windeyer,[82] McHugh JA (as his Honour then was) said:[83]

“At common law the making of a public road required the fulfilment of two conditions: an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication … The dedication could be made expressly or be inferred from the conduct of the owner.  The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn: Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 at 221; 37 WN 51 at 53; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 412, 415, 422).  When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 415) per Menzies J.  In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn.  Dedication to the public may also be presumed from uninterrupted user of the road by the public ...  But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period.  At common law, continual trespassing could not create a public road.  The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.”

  1. [171]
    To the same effect, McHugh JA said:[84]

“In determining whether there was an intention to dedicate The Grove as a public road, it is necessary to take into account the evidence of user and the contemporary maps and plans as well as considering what inferences should be drawn from the subleases and the layout of the lanes and streets.  There is no direct evidence as to what use, if any, was made by the public of The Grove between 1875 and 1910.  But the evidence of what occurred after 1910 provides no ground for thinking that the public had a right to enter The Grove before that year. By 1910, and I would infer much earlier, The Grove was fenced off. People did not go there. Moreover, the survey map of 1903 shows that it was regarded as private. The change of name from Walker Street to The Grove in 1887 suggests that, by that date, it had already taken on its garden like appearance.  This evidence points to the conclusion that The Grove was neither dedicated nor used as a public road.”

  1. [172]
    Plainly, his Honour was applying an orthodox objective test to the question of assessing the evidence as to intention to dedicate land.  That an animus dedicandi can be inferred or presumed from acts without a statement of subjective intention suggests strongly that what is required is an objective assessment of the evidence from which a finding as to presumed actual intention might be made.
  2. [173]
    To the same effect again is the decision in Anderson v City of Stonnington,[85] where the court said:
  1. “40
    A public highway is created at common law when two requirements are satisfied.  First, a competent landowner must have manifested an intention to dedicate the land as a public highway, and secondly, there must be an acceptance by the public of that dedication.  In this context, ‘dedication’ means ‘that the owner of the land intends to divest himself of any beneficial ownership of the soil, and to give the land to the public for the purposes of a highway’.

  1. 42.
    The intention to dedicate land as a public highway may be express or may be inferred from the conduct of the landowner.
  2. 43.
    An inference of an intention to dedicate may arise from the manner in which the public uses the land, such as from open, unconcealed and uninterrupted user of the land as a right of way by the public with the acquiescence of the landowner.  A finding that the landowner has acquiesced in the use of the land by the public requires a finding that he or she had knowledge of the user.  However, proof of actual knowledge is not required.  Long and interrupted user of the land by the public gives rise to a presumption of dedication such that, in the absence of evidence to rebut it, the inference will be drawn that the user was with the knowledge and acquiescence of the owner.”
  1. [174]
    In my view, the last two sentences of that passage make it plain that an absence of evidence of actual subjective intention does not prevent a finding, in an appropriate case, that there was an intention to dedicate the land. Just as the presumption of dedication can arise objectively, so too can the presumption of knowledge and therefore acquiescence on the part of the landowner.
  2. [175]
    In Permanent Trustee, Windeyer J used similar language to that used by Kitto J when referring to the offer to dedicate the land:[86]

“It is the public right to use the land as a way, rather than its physical nature, that makes land a highway (Harrison v. Duke of Rutland [1893] 1 QB 142).  At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication.”

  1. [176]
    The concept of a proffered dedication being accepted connotes an objective test being applied to the question of intention to dedicate.
  2. [177]
    Windeyer J went on:[87]

“Was there then any user by the public sufficient to complete its dedication as a highway according to the offer made by the deposited plan?  (Cf. Attorney-General v. Biphosphated Guano Co. (1879) 11 Ch D 327, at pp 339, 340).  This is not a case in which it is suggested that dedication is to be inferred from user alone.  The animus dedicandi is not to be inferred from the landowner suffering a use of his land as a way.  The animus dedicandi is expressed on the face of the plan. Therefore no great amount of public use was necessary to make the dedication complete.”

  1. [178]
    The question posed at the start of that passage and the reference to inferring intention to dedicate suggest an objective test. Where, as in this case, a legislative framework provides two options when a plan of subdivision is lodged (that is, either number the lots or do not number them), then applying numbers signifies that they are allotments, but not applying numbers can manifest an intention to dedicate them as reserves or roads.
  2. [179]
    In Ex Parte Le Gould,[88] Cockle CJ and Lutwyche J said:

“The Court agreed with Mr. Justice Chambre (the dissentient Judge in Woodyer v. Hadden) that an unequivocal act of dedication, such as building a double row of houses opening into an ancient street at each end, and selling or letting the houses, would instantly make the passage between the houses a highway...”

  1. [180]
    In Re the Real Property Act, 1861, and the Application of the Right Reverend Dr O'Quinn,[89] the court considered a case not far removed from the present one in terms of the facts.  The owner of certain land subdivided it by lodging a map showing it was subdivided into 20 lots, and showing a street named Gotha Street, intersecting the centre of the subdivision and running in a straight line from Ann Street to Wickham Street.  The owner then asked for the land to be assessed as a subdivision.  It was assessed in each of the next four or five years, with the area of the street omitted from assessment.  Subsequently, the whole land was sold to Dr O'Quinn who sought to have a transfer registered. The Registrar refused because a road or highway had been dedicated to the public.
  2. [181]
    Lutwyche ACJ said:[90]

“It appears to us that, in the absence of any evidence to the contrary, such for instance as a proclamation directing the street to be closed, it was the duty of the Registrar-General to preserve for the public the right of way through Gotha-street, of which the map afforded strong prima facie evidence of dedication.  We are further of opinion, that, independently of the map deposited in the Real Property Office, there is sufficient evidence disclosed in the affidavits to show that Mr. Gibbon intended as far back as 1873 to dedicate Gotha-street to the public as a public road or highway.  When the property was assessed as a whole he successfully exerted his influence to get it assessed in subdivisions, to the majority of which there would have been no access but through Gotha-street.  He paid no assessment on Gotha-street during the time that the property remained in his hands, and before the sale to Dr. Quinn he offered the whole of the land for public auction, describing the land in the advertisement which preceded the sale ‘as having been subdivided into twenty allotments, Gotha-street intersecting them, so that the property is divided in two,’ and recommending the site to the attention of purchasers as being ‘equally adapted for business or private residence purposes.’ We consider this conduct on the part of Mr. Gibbon amounted to unequivocal acts of dedication.”

  1. [182]
    As can be seen, the court assessed the evidence objectively with a view to determining whether the owner had manifested the requisite intention. The first piece of evidence was the subdivision map, which afforded strong prima facie evidence. But, independently of the map, there were several acts on the owner’s part, some private and some public, which were considered to be “conduct [that] amounted to unequivocal acts of dedication”.
  2. [183]
    Of note is the acceptance by the Court in O'Quinn that the manner of advertising the land for sale could be an act that manifested intention.  As in the present case, the advertising referred to the subdivision, that the road intersected them (similar to the Lots having back access via the Right of Way), and the attraction of that for business use.
  3. [184]
    Further, the Court in O'Quinn also had regard to another feature, namely a map deposited in the Real Property Office which:[91]

“ … showed also two small roads or lanes, made at the rear of allotments 11, 12, 13, and 14, which have a frontage to Ann-street, which street would have been the only means of excess to these allotments, but for the lanes opening at the rear into Gotha-street; another lane opening into Gotha-street was also shown at the rear of allotments 19 and 20, which have frontages to Wickham-street, and which could only have been approached in that direction if some foresight had not been evinced by giving access to them through Gotha-street in the rear.  With all this evidence of the dedication of a public highway before us …”.

  1. [185]
    As can be seen the Court regarded laneways that were not labelled as a road or street, but which gave rear access to a road for lots that already had front access, as evidence of the intention to dedicate.
  2. [186]
    In Born v Huntley,[92] the Court considered a case where the owner (Born) had deposited a plan of subdivision that had a street running through it from east to west, upon which all the allotments abutted. It also showed an unnamed right of way running north to south, giving access to the back of some lots.  Huntley bought a lot abutting the right of way. Born put a bar across it to prevent the purchaser using the right of way.  Huntley removed the bar, and Born sued for trespass.
  3. [187]
    Way CJ said:[93]

“According to the law of England a dedication of a right-of-way to the use of the public is always a matter of evidence.  It may be done by deed, but it may be done by some act in pais; it may be proved by verbal declaration or by acts.

Now the plaintiff deposited in the Registry Office, after the date of the sale, a plan showing the subdivisions of the allotments by numbers, marking the street which was to run the whole length of the allotments as Margaret-street, and showing also two cross roads, including the one which was the subject of dispute. Both of these cross-roads had marked on them ‘road’ very distinctly, the words extending right along the space occupied by them.  Having done this the Plaintiff transferred to the Defendant the allotment which he had purchased without any grant of right-of-way whatever.  As I have already pointed out the certificate of title and memorandum of transfer showed that no private right-of-way was granted to the Defendant, and he relied on this dedication to the public.  And it appears to me the evidence of this public dedication was complete.

There was no limitation in that plan, as might have been expected if it had been the intention of the Plaintiff to restrict the dedication to the public of any part of the roads.  There was no expression of the intention that one of the two small roads should simply be used by the owners of the co-terminus allotments.”

  1. [188]
    Boucat J said:[94]

“The question here really amounts to this: Is there sufficient evidence of dedication under s. 61 of the Real Property Act of 1878? … Is it required, in fact, that the plan should state in the face of s. 61 that this and that allotment is to be sold, and that this and that road is to be dedicated to the public, or is the inspection of the plan with the roads and numbers of the allotments marked on it sufficient?  I think it is more convenient and more consonant with the evident meaning of the Legislature that the plan should speak for itself, and that everything marked on it should not require to be indexed.  It should be taken prima facie to mean that the allotments and roads marked on it were the allotments and roads to be found on the land itself, and that the allotments were to be sold and the roads dedicated to the public.  It is more in accordance with the meaning of the Legislature to say that if the Appellant in the position of seller intended to except any road from the operation of a dedication to the public, she should have said so on the plan.”

  1. [189]
    Four matters of note arise from those passages. First, the Court held that the intention to dedicate could be established by verbal declarations or acts.  Secondly, the plan was prima facie evidence of that intent. Thirdly, the issue of whether the intention was manifested should be assessed by what was not done, as much as by what was done.  Fourthly, those matters suggest that an objective test was being applied.
  2. [190]
    It is to be noted that in the passages from Newington set out in paragraphs [170] and [171] above, McHugh JA held that intention could be inferred from acts and documents, without there being any direct evidence of the actual intention from the person dedicating the land. Further, intention could be found based on inferences from what was done, and what was not done.
  3. [191]
    Paragraph [48] of the decision in Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors,[95] set out in paragraph [134] above, shows that the assessment of intention can involve inferences based, at least in part, upon what did not occur, as opposed to what was done.  That suggests an objective approach to the issue of intention to dedicate.
  4. [192]
    The cases I have referred to above have said no more than that the intention to dedicate must be the manifested intention of the landowner, with that intention to be assessed objectively. The assessment may require that inferences be drawn, taking into account any relevant evidence, including that which was done, but also that which was not done. The dedication could be express or could be inferred from conduct, such as by indicating the site of the roads in a plan of subdivision lodged with the Registrar of Titles.[96]
  5. [193]
    In reply, Mr Doyle KC posed the question in this way:[97]

“The common law about dedication is not based upon any principles of representation or estoppel, it’s dependent upon the intention of the owner.  That intention is almost always to be inferred from conduct, I mean, certainly in the case that we looked it’s largely to be inferred that way.  And in that forensic analysis, of course the court is looking at that evidence sort of objectively, it’s an objective assessment of that evidence.  But it’s doing so in order to identify what the actual real intention of the owner was rather than to identify what a reasonable person might have done.”

  1. [194]
    I do not consider that Orb was advancing a test based upon an assessment of what a reasonable person might have done, as opposed to what might be inferred or presumed as to what the landowner did.
  2. [195]
    Mr Doyle relied upon several decisions to make his point: Shire of Narracan v Leviston;[98] Folkestone Corporation v Brockman;[99] and Lynch v Eaves (Max) Pty Ltd and Brighton Council.[100]
  3. [196]
    In Shire of Narracan v Leviston,[101] the High Court considered a case where, in 1877, an owner held land under a licence from the Crown with a condition that the Crown might resume some part of the land for roads, and that subsequent leases should be issued on a similar condition.  During that owner’s tenure, a road was put on the land (paid for by neighbouring settlers), the local council surveyed the road, the road appeared on maps thereafter, and the public used it continuously.  No formal proclamation was made in respect of the road. In 1884, a Crown lease was issued in respect of the land through which the road ran without a condition as to the resumption of any part of the land for roads. Subsequent transfers occurred, resulting in a Crown lease being issued to a party, again without the condition, who erected a gate, and blocked off the road.  The council broke the gate, and was sued for trespass. The issue was whether there was a highway over the land.
  1. [197]
    No issue was agitated in Narracan such as is suggested here, namely that the intention to dedicate may be found by applying a test of what a reasonable person would have done.
  2. [198]
    Griffith CJ referred to the requirement to find an animus dedicandi and, adopting what was said in Poole v Huskinson[102] said:[103]

“In Poole v. Huskinson, Parke B. said:— ‘In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate—there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight upon a question of intention, than many acts of enjoyment.’

“But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.”

  1. [199]
    The second paragraph of that passage sits well with the various statements referred to above, to the effect that the intention to dedicate may be inferred in the absence of evidence of the actual subjective intention of the landowner.
  2. [200]
    Griffith CJ then said:[104]

“Now, there is no doubt that though continuous user of land without interruption may be sufficient evidence of dedication, as Parke B. said, it is only evidence.  It may be so strong that a finding against it cannot be supported.”

  1. [201]
    By that statement, Griffith CJ recognised that the animus dedicandi may be proved without evidence of the subjective intention of the landowner. His Honour then referred to “another element to be taken into consideration”, derived from Barraclough v Johnson.[105] That was a case where a road had been used for nineteen years but under conditions imposed by the owner as to payment by the local inhabitants and payment for its maintenance. Griffith CJ considered whether one could have a conditional dedication, and adopted what was said in Barraclough by Lord Denman CJ:[106]

“As to the other point, the agreement between the land-owner and the township, if it could be considered a conditional dedication, was as public as it can be expected that such a dedication should be: and it was for the convenience of both parties.  Then, can there be a conditional dedication of the kind here supposed?  Perhaps not.  A dedication must be made with intention to dedicate.  The mere acting so as to lead persons into the supposition that the way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction: and, referring to the agreement here, it is plain that there was only a licence to use.  There was a permissive enjoyment from 1814; but it was put an end to in 1832.”

  1. [202]
    Lord Denman plainly recognised that, if unexplained, “mere acting so as to lead persons into the supposition that the way is dedicated” might be sufficient to find an animus dedicandi.
  2. [203]
    Griffith CJ also adopted what was said by Littledale J in Barraclough:[107]

“The supposed dedication was, I think, a mere permission.  When the circumstances under which it arose are stated, the idea of a dedication is rebutted.  It is said that an intention to dedicate must be inferred from the acts of a proprietor; and it is true that the question is not decided by what he says.  A man may say that he does not mean to dedicate a way to the public, and yet, if he had allowed them to pass every day for a length of time, his declaration alone would not be regarded, but it would be for a jury to say whether he had intended to dedicate it or not.”

  1. [204]
    Plainly, Griffith CJ accepted that proof of the animus dedicandi did not turn on what was said by the owner as to his or her intention, and a statement of subjective intention could be rejected if the evidence warranted that.
  2. [205]
    Griffith CJ also adopted what was said by Coleridge J in Barraclough:[108]

A party is presumed cognizant of the consequences following his own acts; and, if he permits user of a way over his land, a jury may presume that he intended to dedicate such way to the public.  But you cannot exclude evidence of the circumstances under which the user commenced.” 

  1. [206]
    Drawing on those passages from Barraclough, Griffith CJ explained:[109]

“The doctrine, therefore, that dedication may be presumed from continuous user must be qualified by adding the words ‘if unexplained,’ and it is always permissible, as pointed out by Patteson J., to inquire under what circumstances the piece of land came to be used as a road.  Was it under such circumstances as showed an intention to dedicate?  Or was it under such circumstances as to negative such an intention?  Or was it under such circumstances as not to point in one direction rather than the other?”

  1. [207]
    In my view, it is plain that Griffith CJ accepted the proposition that the animus dedicandi from continuous user could be established on an objective assessment of what had occurred, without evidence going to the subjective intention of the landowner.
  2. [208]
    A similar conclusion was reached by Barton J in Narracan, where his Honour summarised the state of the law by reference to the passage from Poole v Huskinson, at paragraph [198] above, and Lawson v Weston,[110] saying:[111]

“In the case of Lawson v. Weston, Sir Alfred Stephen C.J. of N.S.W., stated the law to the jury as follows:—'1st.  To constitute the dedication of a roadway to the public, there must have existed, in the mind of the owner of the soil, an intention to dedicate it.  Mere sufferance of an user, therefore, by negligence, or as a matter of temporary favour, will not amount to dedication.  2nd.  But, frequent and long continued user of the roadway, by the public, is ordinarily evidence of a dedication; for negligence on the part of the owner, or ignorance of his rights, or indifference to them, will not be presumed.  This evidence will be more or less conclusive, according to circumstances; but particularly, according to the length of the time, and the number of instances of user.  3rd.  Nevertheless, however long that time or numerous those instances, any open or distinct circumstances, done or caused by the owner, indicating and notifying an intention not to dedicate, will be strong evidence against the dedication.  But it is essential to observe, that if, at any time, by any owner, a dedication (that is, a designed and intentional dedication) took place, that dedication could not afterwards be recalled, either by him or any subsequent owner.’”

  1. [209]
    A similar conclusion was reached by O'Connor J in Narracan:[112]

“There cannot, therefore, be such a thing as turning this land into a highway without some intention on Turner’s part. How is that intention to be gathered? It may be from the uninterrupted user by the public without objection, if that user is not otherwise explained.”

  1. [210]
    The second authority relied upon by Mr Doyle was Folkestone Corporation v Brockman.[113] Once again, the case did not involve an issue as to whether the test for proving animus dedicandi was objective or subjective in the way postulated here.
  2. [211]
    In Folkestone, a road had been made in 1827 by the Earl of Radnor, on waste land.  On completion, residential houses were built along its course. The road served only those occupiers.  A toll gate and a bar were placed across the road, but with a space left for foot traffic.  Signs saying “private road” were erected. Tolls were charged for horse and wheeled traffic, but there had been free user for foot traffic for about 80 years.  The justices of the borough found that the Earl of Radnor did not intend to dedicate the road as a public highway. That conclusion was upheld in the King’s Bench Division, and on appeal to the House of Lords, where their Lordships considered that there was evidence to support the finding.
  1. [212]
    Lord Kinnear adopted the passage from Poole v Huskinson, at paragraph [198] above, and went on:[114]

“The points to be noted are, first, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee.”

  1. [213]
    Given that Folkestone was a case where the dedication, if it occurred, was historical, and the landowner had since died,[115] that statement was made on the basis that direct evidence of subjective intention was not available. As with the present case, intention had to be assessed from the objectively established facts. As Lord Kinnear said:[116]

“There are such presumptions of law, which, in effect, are merely fictitious, so that, as it is said by a high authority, the law may presume a grant when nobody supposes that a grant ever existed.  But the presumption of dedication from user is of an entirely different kind.  It is a probable inference from facts proved to the fact in issue, and it follows that in a particular case it is for the judges of fact to determine whether, on the evidence adduced, it can reasonably be drawn.  … But in the simplest case, rules for fixing the onus of proof do not determine the value of conflicting evidence when the proof has been completed; and in the present case the presumption rests upon the interpretation, in a particular way, of conflicting and ambiguous facts; and the right interpretation cannot be reached until the whole body of evidence has been considered.  It then becomes a question for the judges of fact whether the user which may have been proved is to be accounted for by presuming dedication, or whether some other conjecture may not be the more probable.”

  1. [214]
    I pause to note that Lord Kinnear considered that relevant considerations as to Lord Radnor’s intention would include: (i) whether, if he had obstructed foot passengers, that conduct would have been “churlish in the highest degree”; (ii) whether such interference would have been troublesome to him; (iii) whether he had an interest in doing so; and (iv) whether such obstruction would have been conduct in which no reasonable proprietor would have engaged.[117] Lord Atkinson also took into account whether such interference would have been “a churlish and unkindly act, hurtful, probably, moreover to the development of Folkestone as a seaside resort”.[118] Acceptance of such matters as relevant considerations would have severely diminished the effect of WCL’s challenge to that part of the primary judge’s consideration of whether certain acts by the Trustees would have been those of reasonable trustees, or honest.  It is not necessary to address those challenges, as my analysis of the evidence does not depend upon or involve such considerations.
  2. [215]
    Lord Atkinson also adopted the passages referred to above from Poole v Huskinson and Barraclough.[119] His Lordship said:[120]

“The crucial matter being the existence in the mind of the owner of an intention to dedicate, the inference of that fact, if drawn at all, must be dawn by the judges of fact.

The intention with which Jacob, Earl of Radnor, and his successors permitted the user relied upon being the crucial matter, it is essential to consider the time at which and the circumstances under which the user commenced and subsequently continued. If an owner of enclosed land permits the public for years to traverse on foot a well-marked footway across it, leading from one public thoroughfare to another, without making any effort to prevent them, or indicating in any way that he objects to the practice, the user would be very strong evidence indeed of his intention to confer on the public the right to use that footway…”

  1. [216]
    The last paragraph in that passage has obvious relevance to the present case.
  2. [217]
    The third authority referred to by Mr Doyle was a single judge decision, Lynch v Eaves (Max) Pty Ltd and Brighton Council.[121] From a factual point of view, the case is remote from the present case. From a point of legal principle, the case goes no further than to adopt Poole v Huskinson and Permanent Trustee.

What might be drawn from the authorities?

  1. [218]
    In my view, there are a number of conclusions one can draw from the authorities in respect of the test to be applied in determining whether an animus dedicandi has been shown.
  2. [219]
    First, the dedication can be express or inferred from the conduct of the owner, and the intention to dedicate can be an implied offer of dedication constituted by opening the land to the public.[122] That being so, subjective intention is not necessary.  Permitting the public to use the land is enough.[123] The intention is determined by an objective assessment of the acts done, evidence of user, contemporary documents and plans, and inferences drawn from other relevant circumstances.[124]
  3. [220]
    Secondly, dedication does not need to be constituted by a formal act but can be inferred from acts done or not done.[125] Leaving the land open to the public for unobstructed use can be sufficient.[126] The intention is determined by an objective assessment of the acts done or not done.
  4. [221]
    Thirdly, a finding of a landowner’s acquiescence to public use of the land requires a finding that the owner had knowledge of the user.  But that does not require proof of actual knowledge. Long and interrupted use by the public can give rise to a presumption of dedication such that the inference can be drawn that the user was with the acquiescence of the owner.[127] On that basis, a subjective intention is not required, but rather a presumption or inference from an objective assessment of the established facts.
  5. [222]
    Fourthly, because the evidence of dedication may well include historical documents such as maps, plans, leases, or transfers, those documents should speak for themselves, in the sense that one assesses them to see what inferences flow from them.[128] That involves an objective test.
  6. [223]
    Fifthly, a statement by the owner of his or her subjective intention is merely evidence to be weighed in the assessment of whether there is the relevant intention.  The question of intention is not decided by what the owner says.[129] That plainly leads to the conclusion that the test to be applied is an objective test.
  7. [224]
    Sixthly, frequent and long continued user of a roadway by the public is ordinarily evidence of a dedication.  That is so because negligence on the part of the owner, or ignorance of his rights, or indifference to them, will not be presumed.[130]
  8. [225]
    Seventhly, in so far as the authorities refer to the owner manifesting an intention, that means simply that the evidence must point to the existence of such an intention and it being signified by acts or words.  It cannot be a secret or withheld intention.  It cannot be a mere acting so as to lead persons into the supposition that the land is dedicated if there is an explanation contrary to that.[131] The circumstances of how the land came to be used as a road must point positively to an intention to dedicate.  It is insufficient for the circumstances to merely negative that finding, or for them to point no further in one direction rather than the other.[132]
  9. [226]
    The intention must be manifested by the owner. However, that can be inferred or presumed without actual knowledge on the owner’s part. That being so, the requirement for the owner to manifest the intention does not mean that it must be shown to be a subjectively held intention. The test to be applied is plainly an objective test.
  10. [227]
    However, during the course of submissions before this Court, some discussion centred on whether the test to be applied in determining intention to contract might be applicable here.  That is, the acts or words should be analysed by assessing what would a reasonable business man have intended by those acts or words.  In my view, there are reasons why that should not be the approach taken. That test is useful in a contractual situation because the participating sides are speaking to each other, exchanging words with a view to seeking to reach a bargain. That is inapt where one is examining acts done or not done in another context entirely. In the majority of cases concerning questions of dedication and acceptance by user, especially based on historical events where the actual participants are long dead, there is no exchange of views or words, or even acts. It is highly likely that the relevant parties will have had no contact with one another. Dedication can be presumed or inferred from acts done or not done.  Acquiescence to user can occur without actual knowledge of it. Those are concepts foreign to the matrix of contractual negotiations.
  11. [228]
    There was an allied question agitated during the hearing before this Court.  In essence, that was whether the acts of dedication had to be unequivocal acts.
  12. [229]
    In Attorney-General (NT) v Minister for Aboriginal Affairs,[133] Lockhart J said:

“A dedication of land as a road confers rights upon members of the public in derogation of the previous rights of the landowner.  It is only unequivocal acts of dedication from which an intention to dedicate may be inferred.  Dedication will sometimes be inferred from user but to constitute an effective act of dedication the user must be by a member of the public as a member of the public, there cannot be a dedication to a limited part of the public: see Poole v Huskinson (1843) 11 M & W 827; 152 ER 1039 at 1041 and Stewart v Wairoa County Council (1908) 28 NZLR 178 at 191–192.”

  1. [230]
    Based on that passage, WCL submitted:[134]
  1. “17.An inference of an intention to dedicate the land as a public road is a factual issue, to be assessed in the circumstances of each case.  The correct general principle was identified by Lockhart J in Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 546:

A dedication of land as a road confers rights upon members of the public in derogation of the previous rights of the landowner.  It is only unequivocal acts of dedication from which an intention to dedicate may be inferred.”

  1. [231]
    When taxed about that submission, Mr Doyle was asked whether he was embracing the proposition that only unequivocal acts of dedication could establish a basis for inferring dedication.[135] The response made it plain that it was not contended that only unequivocal acts could found an inference of dedication:[136]

“MR DOYLE: In order … to persuade you to the existence of the intention the [a]cts cannot be equivocal.  They have to be in that sense unequivocal.  That observation by his Honour has been referred to with evident approval in two other decisions, which I’ll hand up to your Honours, of Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at … paragraph 2131 through to 2138, and a decision of Templestowe Developments Proprietary Limited v City of Boroondara, which is a Victorian Supreme Court case, and the relevant passages are on page 519 at line 20 … and also at page 522 at point 9 of the page, but they really don’t contain any greater sort of analysis than that.  … those passages do no more than adopt the same language as Justice LockhartThe onus is … on the first respondent, and … they will fail to discharge that unless they can point to an act of the trustee which demonstrates, if I can put it that way, the requisite intention.”

  1. [232]
    That concession was, in my respectful view, correct.  Lockhart J’s use of the word “unequivocal” was not confined in the way suggested by paragraph [17] of the Outline in Reply.  Earlier in Attorney-General (NT) v Minister for Aboriginal Affairs,[137] Lockhart J said:

“Whether the owner of land has dedicated it as a public road is a question to be determined on the facts of each case.  The declaration of an intention to dedicate, delineation on maps or plans of roads set apart for public use, user by the public, the expenditure of money by public bodies in forming or maintaining the land as a road are some of the matters which may, when considered with all the relevant evidence, amount to an unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road.

The evidence establishes that certain of the roads have been graded by the relevant Department of the Commonwealth Government or of the Northern Territory Government at different times.  I am satisfied that the road grading work carried out by Mr Lewis was in the course of his duties and I draw the inference that it was carried out at public expense.  Road 3 was graded between 1966 and 1967, road 4 once in 1966 and once 1968, road 5 in 1966 and once in 1967 and roads 11, 13 and 14 in 1966 and 1967. This limited amount of public expenditure some 20 years ago is, of its own force, insufficient to establish an unequivocal intention to dedicate.  Even in conjunction with the other evidence in the case it does not seem to me to be of significant probative value.”

  1. [233]
    In that case, his Honour was dealing with various acts,[138] all of which were equivocal as to intention. It is in that context that his Honour’s comment, set in paragraph [229] above, was made.  In my view, it is plain that Lockhart J did not intend to say that, in every case, every circumstantial fact that might be relied upon when considering if there was a dedication of public use had to be, themselves, an unequivocal act.  His Honour was really saying that, when concluding that there had been a dedication, the facts or acts should unequivocally point that way.  In other words, they should “amount to an unequivocal indication of the intention of the owner of the land to dedicate”. So understood, the proposition would be in line with previous authority and not flying in the face of it.
  2. [234]
    In reply, Mr Doyle for WCL accepted that what was said by Lockhart J in Attorney-General (NT) v Minister for Aboriginal Affairs should be understood that way.  Referring to the choices that might confront the person dedicating the land, it was said:[139]

“… the test is not to decide which we think is the most sensible of those choices, but whether the evidence shows that’s the choice that was made, and that’s what’s meant by those … four cases that you’ve been taken to which talk about unequivocal acts, that is, it has to be an act which points not to doing something, but to doing the thing which is the dedication to the public.

Now, interestingly, in the old Queensland cases, which was Re Le Gould … and Re O'Quinn, their Honours didn’t articulate it as the test, but … their Honours … used the language of the conduct being an unequivocal act of their intention to dedicate to the public or not being, as the case may be.  Justice Lockhart uses the same language in two different ways, but nonetheless directed to the outcome being unequivocal and - - -

APPLEGARTH J: The intention being unequivocal.

MR DOYLE: Yes.

APPLEGARTH J: Yes.

MR DOYLE: The … evidence establishing … unequivocally, that’s the intention, either an unequivocal act or … evidence of an unequivocal … intention, but … the point is, it’s not enough to show there’s a range of things amongst which a choice is to be made, but that this one was the one that was chosen … An owner of land ought not be deprived of his rights except by the unequivocal articulation of his intention to do so, accepting it could be done without expression, that is, by conduct or by things which add up to the unequivocal expression of intention, but it has to be done.”

  1. [235]
    As was conceded, Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5)[140] and Templestowe Developments Pty Ltd v City of Boroondara[141] merely adopted what was said by Lockhart J.
  2. [236]
    Further, earlier authority does not support the adoption of a test that only unequivocal acts can constitute a dedication.  It is a question of fact in each case as to whether that which has been done unequivocally indicates an intention to dedicate.  In other words, collecting all the relevant acts together, one must ask whether they unequivocally indicate an intention to dedicate.  If at the end of the analysis those acts are equivocal, that is not enough to support the inference of the relevant intention.
  3. [237]
    The seminal authority is the High Court decision in Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council,[142] in which Windeyer J said:[143]

“It is the public right to use the land as a way, rather than its physical nature, that makes land a highway (Harrison v. Duke of Rutland [1893] 1 QB 142).  At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication.”

  1. [238]
    That passage has been cited many times as expressing the applicable test, namely an objective test, i.e. to establish whether an intention to dedicate has been manifested.  Nothing in that test requires that the acts relevant to dedication be unequivocal.
  2. [239]
    Windeyer J went on:[144]

“The next question is can it be said that ‘there exists any doubt as to whether or not it is a public road’? Here the second result of the deposited plan becomes relevant. It was lodged pursuant to a statutory requirement that it exhibit distinctly delineated all roads set apart for public use.  It thus manifested an intention and offer to dedicate as public roads the roads shown on it (Baird v. Jackson [1884] 2 NZLR CA 271; Attorney-General v. The City Bank of Sydney (1920) 20 SR (NSW) 216; 37 WN 51).  It has been said that any act which unequivocally indicates an intention on the part of the owner of land to abandon to the public right of passage over it will be effectual as a dedication (Pratt & Mackenzie on Highways 19th ed.  (1952) p. 25).  But in 1883 lodging a plan of subdivision was, in itself, only an offer to dedicate the roads shown on it.  That offer to the public would be ripened into a complete dedication only by its acceptance by the public. If, before such acceptance, the landowner had decided not to go on with the subdivision and had done nothing beyond lodging his plan, he could retain possession of all the land and exclude the public from it and deny them the right to use as roads those parts of the land shown on the plan as roads.  But once the intended dedication had been accepted by the public a public right of way, a public road, a highway came into existence (Attorney-General v. The City Bank of Sydney (1920) 20 SR (NSW) 216; 37 WN 51).”

  1. [240]
    The test was whether an act manifested an intention.  What Windeyer J said in the sentence highlighted above was not by way of expressing the relevant test.  So much is evident from what followed in that passage.
  2. [241]
    Then, Windeyer J continued:[145]

“But until recently, when the sand became important, the Council took no interest in St. George's Parade.  It neither levied rates in respect of it as if it were private land nor cared for it as if it were a public road.  And the trustees of Saywell's estate seemed to have forgotten about it.  Was there then any user by the public sufficient to complete its dedication as a highway according to the offer made by the deposited plan?  (Cf. Attorney-General v.  Biphosphated Guano Co. (1879) 11 Ch D 327, at pp 339–340).  This is not a case in which it is suggested that dedication is to be inferred from user alone.  The animus dedicandi is not to be inferred from the landowner suffering a use of his land as a way.  The animus dedicandi is expressed on the face of the plan.  Therefore no great amount of public use was necessary to make the dedication complete.”

What degree of satisfaction was required regarding the intention?

  1. [242]
    For Orb to succeed, the trial judge had to be satisfied that the Trustees’ intention to dedicate the Right of Way should be found as a matter of inference.  That required that the inference to dedicate was, on the balance of probabilities, more likely than any other available inference.  In Bradshaw v McEwans Pty Ltd, the High Court said:[146]

“The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged.  In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice is a mere matter of conjecture ...  But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusions may fall short of certainty it is not to be regarded as a mere conjecture or surmise …”.

Was the sanction under the Grammar Schools Act required?

  1. [243]
    The Grammar Schools Act 1860 (Qld) enabled various public grammar schools to be set up, each under the control of seven trustees, four of whom had to be nominated by the Governor with the advice of Executive Council, and their appointment notified in the Government Gazette: s 1 and s 2.
  2. [244]
    Section 2 provided that the trustees would then become an incorporated body politic and have the following powers:

Incorporation of trustees.  Whereupon they shall forthwith be and become a body politic and corporate with perpetual succession by the name or style of ‘The Trustees of the [name of district] Grammar School’ … and at all times hereafter be capable to receive purchase acquire take and hold to them and their successors in trust for and to and for the purposes of such school any messuages lands tenements and hereditaments of what nature or kind soever … and shall and may by the same name be capable to grant demise alien or otherwise deal with all or any of the property real or personal belonging to the said school ….”.

  1. [245]
    Section 6 of the Act relevantly provided:

6.  Power to trustees to lease.  Provided always that it shall not be lawful for the said trustees to alien mortgage charge or demise any … lands … to which they may become entitled by grant purchase or otherwise howsoever unless with the sanction of the Governor and the Executive Council except by way of lease for any term not exceeding twenty-one years in possession …”.

  1. [246]
    Thus, while s 2 gave power to alien land, s 6 made that unlawful unless the sanction of the Governor and Executive Council was obtained.
  2. [247]
    The contention was raised that the dedication of the Right of Way as a public road required a sanction under the Grammar Schools Act 1860 (Qld).
  3. [248]
    Because of the extreme lapse of time, there was no evidence whether such a sanction was given for that part of the subdivision which created the Right of Way.  The trial judge applied the presumption of regularity and found that any sanction had been obtained.  The presumption of regularity operates to this effect: it should be presumed that the Trustees acted with the requisite authority, until the contrary is shown.[147]
  4. [249]
    Orb contended that no sanction was required.  It was submitted that s 6 of the Grammar Schools Act was concerned with, inter alia, the “alien” of land.  The dedication of the Right of Way at common law, by which the Trustees did not part with any proprietary interest in the land, could not sensibly be described as involving the “alien” of land.  That a dedication of land as a road at common law does not mean that the owner parts with any proprietary interest in it, but rather retains ownership of the land itself, was established in City of Keilor v O'Donoghue.[148]
  5. [250]
    The trial judge made findings as to this issue:[149]
  1. “[115]
    In respect of the third issue, namely the compliance by the trustees with s 6 of the Grammar Schools Act 1860 (Qld), I accept Dr Cook’s evidence that she has undertaken considerable research of the Government Gazette, the Titles office records, the Lands office records, newspapers and the trustee’s minutes to attempt to locate evidence that the sanction required by s 6 had been undertaken and was unable to find any such document.
  2. [116]
    I also accept Dr Cook’s evidence that the best inference in respect of such a sanction document is that it would have been obtained by the solicitors retained by the trustees for the conveyance and most likely would have been placed upon the solicitor’s conveyance file, which has been subsequently destroyed.  This, together with the likely public scandal which would have erupted had the board not complied with its obligations under s 6, as Dr Cook accepts, leads to the best inference, that such a sanction had been obtained.”
  1. [251]
    WCL accepted that “alien” in the Grammar Schools Act meant alienation:[150]

“… when you do make a public dedication, what you’re giving up is the right to the surface of the road, that is, …  you’re giving up something, which is the alienation of your interest in that part of the road.  So – and that’s also a sensible and purpose of construction of the requirement in the Grammar Schools Act to obtain the sanction.”

  1. [252]
    On the issue of the presumption of regularity, WCL submitted that the facts did not establish a conscious articulation of intention to dedicate, and in the circumstances there would be no such presumption:[151]

“… it is inconceivable that there can therefore be a presumption in favour of saying without having formed a conscious intention to dedicate, you somehow or other knew you had to go and get a sanction for what you were dedicating.”

  1. [253]
    WCL’s challenge therefore proceeded on the basis that a dedication of a public right of way was an alienation of land within s 6, but there was no evidence of the requisite intention to dedicate, nor of any sanction being sought or obtained.
  2. [254]
    Section 6 of the Grammar Schools Act operated to make an act of the Trustees unlawful if such act is to “alien mortgage charge or demise any … lands”.  The words “mortgage”, “charge”, and demise” are all words referring to the creation by person A of an interest in land in person B.  “Alien” is a like concept.  The terms of s 6 mean that “alien” is not the same as “mortgage”, “charge”, or “demise”, yet is still a form of creation of an interest in land, in a person other than the Trustees.
  3. [255]
    It may be accepted that, when used as a verb in s 6, “alien” means to transfer the property or ownership of anything to another, or to make over to another.[152] Used in s 6, which strikes at the creation of interests in land in another, “alien” means to create an interest in land owned by the Trustees in favour of another person.
  4. [256]
    In my view, that is the construction to be preferred to the stricter view that “alien” means to actually transfer ownership. That construction would mean s 6 did not apply to the signing of a contract for the sale of land, which creates an equitable interest in the land from the moment the contract is formed, but would apply to the conveyance of title at settlement. That is an unlikely intention on the part of legislature.  Section 6 provides that a step contrary to that section is unlawful. It applies if the Trustees mortgage land or charge it. In each of those cases, the act creates an interest in the land without a conveyance, comprehending an equitable mortgage and an equitable charge. It cannot be supposed that the legislature intended “alien” to operate differently.
  5. [257]
    On the proper construction of s 6, Orb’s contention that no sanction was required, because a dedication as a public right of way does not come with the word “alien” in s 6, should be accepted.
  6. [258]
    Under the common law, a dedication is an act that gives the public a right of way in respect of the owner’s land.  But, a dedication does not give the public an interest if the land.  Rather, the owner is estopped from asserting that their right to possession of the fee simple allows the public to be excluded from exercising the public rights conferred by the dedication.
  7. [259]
    A dedication is not an easement (or a prescriptive right) and cannot lie in a presumed grant. Nor at common law could it be adversely possessed.  The public cannot be the grantee of a grant, which is a conveyance or alienation or disposal of an interest in land, whether express or presumed.[153] The public’s right of use is incorporeal, i.e. land in the road is available for the exercise of that right by all members of the public.[154]
  8. [260]
    As I have noted earlier, the word “alien” in s 6 means to create an interest in land owned by the Trustees in favour of another person. Whilst proprietary rights of the owner of land are not displaced by a dedication of the land as a public road, the surface rights are lost. True it is that no property rights are transferred, but how could they be when the dedication benefits the public at large?  What the proprietor of the land loses is the exclusive right to use the surface of that land.  After the dedication and acceptance as a public right of way, the proprietor can do no more than share the land at all times thereafter with the general public. The public’s rights include the ability to restrain the actual proprietor from denying the right of use of the surface area.
  9. [261]
    The evident purpose of the restraint in s 6 was to prevent trustees who held land for the purposes of a grammar school from putting that land beyond their control by creating rights to the land. In other words, s 6 was to prevent trustees from constraining their control of land and eroding its value to the trust for which it was held.  Categories of rights embargoed were those created by a mortgage, others by a charge, yet others by a lease. However, one category was if the trustees took steps to “alien” the land.  Dedicating the land to the public use as a road or right of way does not mean that the Trustees took a step to “alien” the land.  The sanction under s 6 of the Grammar Schools Act was, therefore, not required for the Right of Way.
  10. [262]
    The analysis that follows is applicable, even if, contrary to my conclusion above, the proper construction of s 6 was that “alien” means the conveyance of title at settlement.
  11. [263]
    In my view, resolution of this issue requires that three different concepts be kept at the forefront of the analysis.  All stem from the sale process that the Trustees engaged in when they resolved to sell the Alice Street land in 1876.  The sale included three relevant things: (i) the subdivision of four lots into nine, then to be sold; (ii) the creation of the Right of Way; and (iii) the creation of the Reserve.
  12. [264]
    WCL’s submissions before this Court almost exclusively focussed on the Right of Way.  In my view, that is an error which ignores the realities of the situation in which the Trustees found themselves.
  13. [265]
    It is beyond doubt the Trustees formed the intention to sell Lots 1–9, and they carried that intention into reality.  Even though the Lots did not sell all at the same time, some sold in 1876 at the first auction.  Under s 6 of the Grammar Schools Act, the sanction of the Governor and Executive Council was required for the sale of Lots 1–9 regardless of any question of the Right of Way or the Reserve.  That sale unquestionably is caught by the phrase “alien … lands … to which they may become entitled by grant purchase or otherwise howsoever”.
  14. [266]
    Several things follow, in my view.
  15. [267]
    The sale was to be by public auction, not private treaty.  There was every chance that a purchaser or purchaser’s lawyer would know of the requirement under s 6 of the Grammar Schools Act.
  16. [268]
    The Trustees could not have known that not all the Lots would sell at the first auction.  In any event, not all sold and so there was a second auction, at which further Lots sold.
  17. [269]
    The Trustees obviously knew that, if they sold any of the Lots, title would be transferred away from the Trustees to the purchaser, who would acquire title under the Real Property Act.  That is what happened.
  18. [270]
    Whatever may be said about the characterisation of the Right of Way and the Reserve, they were nonetheless an integral part of the subdivision that the Trustees approved.  As for the Right of Way, whatever its characterisation as private or public, there can be little doubt that the Trustees intended to create rights in someone other than themselves.
  19. [271]
    In that situation, where there was but one subdivision encompassing all three components (Lots, Right of Way, and Reserve), and where the sanction under s 6 was required to the sale of Lots 1–9, it is, in my view, inconceivable that the Trustees did not seek and obtain the sanction.  The Trustees, whose members then included the Attorney-General, the Chief Justice, a Supreme Court Judge and, importantly, two members of the Executive Council, the very body from which the sanction was to be given, could not be thought to have been unaware of the need for the sanction, nor the way in which to obtain it.
  20. [272]
    As to those matters, the answer is, in my view, clear.
  21. [273]
    Section 6 provided that “it shall not be lawful for the said trustees to alien … or demise any … lands … unless with the sanction of the Governor and the Executive Council”.
  22. [274]
    On 4 September 1876, the Trustees passed a resolution about the “Sale of Land in Alice Street”.  It was that “steps be taken for sale of same.  Messrs Scott & Bernays to arrange”.
  23. [275]
    That resolution, of itself, cannot amount to alienation of the lands.  The sanction was only required when the Trustees “alien” the lands.  For the Trustees to “alien” the land, it must refer to the creation of rights in the land in someone other than the Trustees.
  24. [276]
    When the land was sold at auction, the resulting contract would oblige the Trustees to convey away the land purchased (on conditions, of course).  From the moment the contract was signed, the purchaser acquired an equitable interest in the land, and a right to specific performance to compel its conveyance to the purchaser.  The sanction was therefore required from the time of the contracts.
  25. [277]
    However, one must ask how the Trustees would determine what “lands” would require sanction.  The answer is any land aliened by the Trustees.  How would the Trustees have identified that land to the Governor and Executive Council for the purpose of seeking the sanction required by s 6?  The answer to that must be that the Trustees identified the land by reference to the subdivision plan RP1073.  It is that plan that created the individual Lots 1–9.  Those lots were to be sold, and thus “aliened”.
  26. [278]
    Moreover, the Trustees resolved to sell the land at Alice Street and committed the management of that process to two of the Trustees, Mr Scott and Mr Bernays.  Arranging the sale plainly included producing the subdivision plan RP1073, and lodging it, thereby creating the individual Lots 1–9 from the original Lots 8–11 on section 37.  Not only were Lots 1–9 created, RP1073 also created the Right of Way and the Reserve.
  27. [279]
    Given that all of Lots 1–9 were to be put up at the first auction, with the possibility that all would sell at that auction, it is obvious that the Trustees had to obtain the sanction prior to the contracts being signed as a consequence of the first auction.  That inevitably meant that RP1073 had to be used to identify each Lot that the Trustees intended to “alien”.
  28. [280]
    In my view, it is obvious that the sanction would have been sought to the subdivision as a whole.
  29. [281]
    Obtaining the sanction was within the remit of Mr Scott and Mr Bernays, who had been empowered to “arrange” the sale.  There is no reason to think that the Trustees would have taken any step as a body to ask for the sanction.  Arranging a sale that would be unlawful without the sanction would of necessity require that Mr Scott and Mr Bernays arrange the grant of the sanction.  That almost certainly occurred, and prior to the sale at auction.

The certificates of title to Lots 1–9

  1. [282]
    The Right of Way was mentioned in each of the certificates of title to Lots 1–9.  The text was similar in each case.  Taking the certificates of title to Lot 1, it identified the land as:[155]

“subdivision one of allotment eleven of section thirty seven containing by admeasurement thirteen perches more or less commencing at the North corner of the section and bounded thence on the Northeast by Albert street bearing 1290 21’ 30” forty five links on the Southeast by the Northwest boundary of subdivision two bearing southwesterly at right angles one chain eighty links and half a link on the Southwest by a right of way bearing northwesterly at right angles forty five links and on the Northwest by Margaret street bearing northeasterly one chain eighty links and half a link to the point of commencement.”

  1. [283]
    The certificate of title issued for Lot 1 on 17 September 1904[156] was the first time it showed the words “Right of Way” on the plan of the lot at the bottom of the certificate.
  2. [284]
    The certificates of title to Lot 2 contained similar wording in so far as the right of way was concerned,[157] and that version issued on 17 September 1904[158] was the first for Lot 1 to show the words “Right of Way” on the plan of the lot at the bottom of the first page.
  3. [285]
    The same pattern applied to the certificates of title for Lots 3 and 4.[159]
  4. [286]
    Lot 5 was in the same pattern, but referred to the “right of way twice” as two of its boundaries were formed by the Right of Way:[160]

“subdivision five of allotment ten of section thirty seven containing by admeasurement thirteen perches more or less, commencing at the Northeast boundary of the allotment sixty seven links and half a link from its north corner and bounded thence on the Northeast by Albert street bearing 129o 21’ 30” forty five links on the Southeast by a right of way bearing southwesterly at right angles one chain eighty links and half a link on the Southwest by a right of way bearing northwesterly at right angles forty five links and on the Northwest by the southeast boundary of subdivision four bearing northeasterly one chain eighty links and half a link to the point of commencement.”

  1. [287]
    Lots 6–9 followed the same pattern:[161]

“subdivision six of allotments eight and nine of section thirty seven containing by admeasurement sixteen perches more or less commencing at the East corner of the section and bounded thence on the Southeast by Alice street bearing 219o 21’ 30” fifty links on the Southwest by the northeast boundary of subdivision seven bearing northwesterly at right angles two chains on the Northwest by a right of way bearing northeasterly at right angles fifty links and on the Northeast by Albert street bearing southeasterly two chains to the point of commencement.”

  1. [288]
    Once again, the certificates of title only used the words “Right of Way” on the plan from 17 September 1904.  The form of wording for the description of the lot changed by 1956, then referring to “Plan Cat. No 1073 deposited in the Office of the Registrar of Titles”.[162]
  2. [289]
    When the Reserve became Lot 10 in 1886, its description included reference to the “right of way” as part of the bounds, but the plan also included the words “Right of Way”.[163]

The Dabbs v Seaman contention

  1. [290]
    WCL contended that marking the Right of Way on the subdivision plan RP1073 was sufficient to create an easement.[164] For this proposition WCL relied upon cases such as Rock v Todeschino,[165] Hutchinson v Lemon,[166] and Cowlishaw v Ponsford,[167] all of which derived support from what was said in Dabbs v Seaman.[168] In Dabbs, the High Court (by a majority of 2-1) considered that an easement could be created over Torrens land in circumstances where the certificates of title referred to the land as being bounded by a right of way and showed the land, on a map, as abutting a right of way over a defined area.
  2. [291]
    As I will discuss, there is reason to doubt that Dabbs was correctly decided, or at least that it should not be seen as authoritative on that point.
  3. [292]
    One initial problem confronting this contention is that the Trustees made their decision in 1876, nearly 50 years before Dabbs, and 15 years before the only other case, Little v Dardier,[169] that was suggested in Dabbs (wrongly as it turns out) to have reached a similar conclusion.
  4. [293]
    Assuming Dabbs to have been correctly decided, that might be applicable where all that the evidence revealed was that such a description was put on a registered plan.  In this case, however, one is still confronted by the other evidence that points away from that conclusion. Significant in that consideration of the evidence is the composition of the Trustees at the relevant time.[170]
  5. [294]
    It is, in my view, not objectively likely that the Trustees would have sought to create an easement in such a shorthand way given: (i) they would have been all too well aware of the provisions of the Real Property Act governing how an easement could be created; (ii) the fact that title for Lots 1–9 was to be title under the Real Property Act, not by some derivation of common law; (iii) creation of easement rights under the Real Property Act required a deed granting the easement and setting out its terms, adherence to the Act’s provision, and registration; and (iv) the terms of the Real Property Act did not suggest that easements could be created by a mere mention of the phrase “right of way” when describing the physical boundaries of a lot; in fact, the opposite was the commonly understood position: see paragraph [302] below.
  6. [295]
    Further, the proposition becomes harder to accept when one considers that the Reserve was shown on RP1073 in addition to the Right of Way.  WCL accepted that the Reserve was designed to prevent the owners of Lots 7 and 12 on section 37 from accessing the Right of Way.  Assuming that the Trustees intended to create an easement over the Right of Way by merely drawing it on RP1073, it could only have been an easement in favour of Lots 1–9.  It could not have been in favour of Lots 7 and 12 on section 37.  Yet, in March 1886, Mr Hart (the owner of Lot 7 on section 37) purchased Lot 10 (the Reserve).  As WCL contended, the effect of this sale was that Mr Hart could thereafter access the Right of Way directly from his property.  That act plainly derogated from the rights of Lots 1–9 if they had the benefit of easements over the Right of Way.
  7. [296]
    One might ask, rhetorically, is it at all likely that the same Trustees would use the Real Property Act to create rights that derogated from the rights they had (at least on this contention) intended to create at common law.
  8. [297]
    There is reason to doubts that Dabbs continues to represent (if it ever did) binding authority on this point.
  9. [298]
    First, prior to Dabbs, it had not been held that an easement could be created over Torrens land in circumstances where the requirements of the Real Property Act had not been fulfilled, and the reference to an easement existed nowhere on the register.  In Dabbs,[171] Starke J seemed to suggest that a similar conclusion had been reached in 1891 in Little v Dardier.[172] If so, it involved a misunderstanding of the facts in Dardier, where the easement was created by a transfer of land before the land was brought under the Torrens system.  The correct position was noted by Higgins J in Dabbs.[173] Starke J’s reliance on Dardier was therefore misplaced.
  10. [299]
    Secondly, subsequent authority has cast considerable doubt upon the utility of Dabbs.  In Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd,[174] Young J said that:

“Anyone who relies on Dabbs v Seaman in the light of its subsequent history is a bold person.  From Jobson v Nankervis (1943) 44 SR (NSW) 277; 61 WN (NSW) 76 onwards it has been considered that Dabbs v Seaman is a very special case and must be closely confined because it is outside all general principles.”

  1. [300]
    Those comments were referred to with apparent approval by this Court in Highmist Pty Ltd v Tricare Pty Ltd.[175]
  1. [301]
    Thirdly, decisions in Queensland have referred to Boulter v Jocheim,[176] a case where circumstances close to the present case were held to be incapable of giving rise to an easement.  That conclusion by the Full Court was unsuccessfully appealed to the High Court.  Boulter was explained in Hutchinson v Lemon[177] by Connolly J in a way revealing that Boulter is closer to the present case than Dabbs:

“...  in Boulter v.  Jochheim [1921] St.R.Qd. 105 it was contended that a right of way 15 links wide existed from the back of five subdivisions and leading out to a public road. However, the certificates of title relied upon to demonstrate this fact, contained no express grant of an easement, nor, except for a map delineated on the margin was there anything to indicate the existence of a right of way except for the words “right of way 15 links” enclosed between parallel dotted lines but not having a terminal at the public road and not shown to extend to a spot where, the plaintiffs complained, an obstruction of the alleged right of way had been erected.  See at p. 117 per Shand J.  where his Honour reached a similar conclusion on an examination of the transfers.  This decision was affirmed by the High Court (29 C.L.R. 602).  On the other hand, in Dahbs [sic] v. Seaman (1925) 36 C.L.R. 538 the appellant and the respondent were adjoining registered proprietors.  The respondent’s certificate of title showed that part of his land consisted of a strip 518 feet by 20 feet marked “20 Feet Lane”.  The appellant's certificate of title showed the respondent’s 20 foot strip abutting her land on the eastern boundary thereof described again as “20 Feet Lane”.”

  1. [302]
    Fourthly, Dabbs was stripped of any authoritative effect in Queensland by a retrospective amendment to the Real Property Act, made by the Real Property Act Amendment Act 1985 (Qld).  The purpose of the amendment was to restore the previously understood position, that is prior to Dabbs. In the second reading speech for the Amendment Act, the Attorney-General said:[178]

“Another purpose of the Bill is to overcome the effects of two Supreme Court decisions which determined that the registration in the Titles Office of a plan of subdivision, which has designated thereon an area denoted ‘easement'’, had the effect of creating a valid easement over that area.  These decisions have had a dramatic effect on Titles Office practice in that it had always been assumed that a valid easement could be created only by the registration of an easement document in the Titles Office.

Such a document clearly identifies the respective rights and obligations of the parties thereto and its existence is readily identified by a routine search of Titles Office records.

The Bill restores the legal position to that which was previously accepted by providing that a plan on which the site of an easement is designated is not an instrument creating an easement.  The plan will be required to denote that the easement is a ‘proposed’ easement.  This applies to all plans, irrespective of when they were lodged or registered, but the Bill provides that easements resulting from the judgments of the court are not affected.”

Invitee vs public

  1. [303]
    If there had been a dedication of the Right of Way to public use, then questions of acceptance arise.
  2. [304]
    The principal evidence of this issue can be summarised as:
    1. the Right of Way was always open to the public; there were no barriers at any relevant time;
    2. the Right of Way was depicted on all road maps at the time as being part of the ordinary road network;
    3. the locality was very busy in the period after the late 1880’s, as it had become part of the main industrial precinct of Brisbane;
    4. direct evidence of its use from 1963 was given by Mr Matthews; there is no intervening event, between 1923 and 1963, to suggest that its use was materially different before that; and
    5. the Brisbane Municipal Council accepted (and exercised) responsibility for the control, maintenance, and upkeep of the Right of Way by, for example, expending public funds improving and maintaining it, and controlling its use.
  3. [305]
    Prior to 1886, not much was done with the land comprised in Lots 1–9. The certificates of title show that some Lots changed hands, in some cases more than once. As nothing was happening building-wise, and there were no barriers preventing access to the Right of Way, it may be inferred that members of the public, including purchasers or would-be purchasers of the Lots, used the Right of Way in the manner that the Trustees intended.
  4. [306]
    By 1886, the character of the area had changed very significantly.  It became part of the industrial core of Brisbane.

Masonic Hall – Lots 8 and 9

  1. [307]
    As to Lots 8 and 9, the position revealed by the evidence was:
    1. by 1881, they were jointly owned by Mr Lord and Mr Tully and, by March 1887, they were jointly owned by Mr Gregory, Mr Douglas, and Mr Unmack (as trustees);[179]
    2. by December 1886, a Masonic Hall had been constructed on Lots 8 and 9; it was a large, two-storey masonry building facing Alice Street;[180] it had a caretaker's cottage and, from 1890, stables at the rear;[181] access to the cottage and the stables was via the Right of Way;[182] and
    3. a variety of functions and events began to be held at the Masonic Hall, including banquets, meetings, balls, and art shows.[183]

Lots 1, 3, 6, and 7

  1. [308]
    By July 1888, Lots 1 to 7 were jointly owned by Mr Overend, Mr Stack, and Mr Hayes.[184]
  2. [309]
    Lots 1–3 and 6 and 7 were occupied by A Overend & Co, engineers and machinery merchants.[185] Lots 6 and 7 were developed with a “large iron and timber warehouse” with frontages to both Albert and Alice Streets.[186] The ground floor was, inter alia, developed by offices and showrooms.[187] Lots 1–3 were used as an iron yard for the storage of oils and cotton waste.[188] After A Overend & Co left, Lots 6 and 7 were occupied by merchants selling machinery.[189]
  3. [310]
    Lots 4 and 5 were, by 1890, occupied by Queensland Milling Co and improved with a flour mill.[190] The building, which was constructed of red and white brick and was about five levels high, was described as “... one of the most imposing buildings in Brisbane outside of the banks”.[191]
  4. [311]
    The mill had no specific goods entrance from the front of the building in Albert Street.[192] Access to the building, for the transport of grain and wheat flour, was from the Right of Way.[193] An 1890 sketch of the building showed the Right of Way,[194] depicts a horse-drawn cart in the Right of Way. Dr Cook agreed that the Right of Way would have been used to make deliveries to the mill.[195] She added “... there would have been a substantial number of carts and wagons” using the site.[196]
  5. [312]
    After the closure of the mill, the site was used for a variety of businesses conducting engineering works and sale of machinery and other items.[197]

Use by the public

  1. [313]
    At all relevant times, the Right of Way was physically open to the public.  Both Dr Beanland and Dr Cook agreed that there was no evidence of there ever having been any fencing or gates to the Right of Way.[198]
  2. [314]
    Both Dr Beanland and Dr Cook said that that the Right of Way was used by those persons performing public functions (e.g.  night soil and rubbish collection).[199] That being so, there is no rational basis for concluding that the position would have been any different for those performing other public functions such as members of the police force, those responsible for maintaining and controlling public roads, and those responsible for public works (e.g. sewering, drainage, and lighting).
  3. [315]
    Dr Beanland gave uncontradicted evidence that:
    1. the businesses on the Lots operated showrooms selling machinery and other items to the public; and
    2. large, public events were held at the Masonic Centre.

Public use from 1963

  1. [316]
    There was direct evidence from Mr Matthews as to the position from 1963.  His family had owned land which directly adjoins the Right of Way since 1963.[200] That land was improved and had been used as a public carpark since 1963.[201] That carpark was only accessible from the Right of Way.[202]
  2. [317]
    Mr Matthews said that he had personally managed Orb’s land since 1975.[203] He had his office on the Orb Land from 1974 to 1988, and again from 1990 to 1995.[204]
  3. [318]
    His own observations were of:[205]
    1. persons having, since 1963, “consistently and constantly” used the Right of Way as a means of vehicular access between Albert and Margaret Streets;
    2. since at least 1973, the Right of Way had been sealed and formed with a bitumen surface similar to that which existed on other urban roads; and
    3. having personally used the Right of Way to obtain vehicular access between Albert and Margaret Streets since 1963.
  4. [319]
    The first time any person had, since 1963, sought to restrict access to Beatrice Lane (the Right of Way) was when signage bearing WCL’s name was erected in April 2019.[206]
  5. [320]
    Mr Matthew’s evidence showed that the usage of the Right of Way remained stable across a period of about 56 years, from 1963–2019.  The most compelling inference to follow is that the usage remained similarly stable over the previous 50 years or more.

Brisbane Municipal Council and Brisbane City Council

  1. [321]
    Both Dr Beanland and Dr Cook advanced historical evidence, accepted by each of them, of the maintenance and control of the Right of Way by the local authority since 1889.  Prior to 1924, this authority was the Brisbane Municipal Council (BMC), and thereafter it was the Brisbane City Council (BCC).  The Council activity from 1889 coincides with the period of intense industrial development and activity in the area.
  2. [322]
    None of the following facts were disputed by Dr Cook.
  1. [323]
    In April 1889, A Overend & Co complained to the BMC of drainage issues on the Laneway.[207] The BMC responded to this first complaint by the noting that the Right of Way was private property.[208] Subsequently, however, the BMC did not repeat that response, but joined in treating the Right of Way as a public road.
  2. [324]
    In January 1890, A Overend & Co wrote to the BMC requesting that the Right of Way be formed and metalled.[209] The BMC considered the request and agreed to do so on the basis that the £130 cost be split evenly between the BMC and A Overend & Co.  That decision was recorded in the BMC’s minute book.  At around the same time, the BMC was requested to make some other repairs to the Right of Way.  It may be inferred that all these works were duly carried out.
  3. [325]
    On 11 March 1895, Queensland Milling Company wrote to the BMC drawing attention to the bad condition of the Right of Way and requesting that stone blocks be laid down on it.[210] Whilst there does not appear to be any evidence of the BMC’s response to that request, it is clear that the works were carried out as stone blocks (porphyry) were placed in the Right of Way.
  4. [326]
    On 10 August 1896, Queensland Milling Company sought the BMC’s permission to install a weighbridge in the Laneway.[211] In response, the BMC sought clarification about whether the weighbridge was “... likely to obstruct general traffic ...”, and noted that a “small permit fee” would need to be paid annually.
  5. [327]
    Ultimately, the request was approved and the weighbridge was installed.  It can be inferred that the permit fee was paid by Queensland Milling Company and accepted by the BMC.
  6. [328]
    In December 1897, Queensland Milling Company sought the BMC’s permission to install a gangway between the upper storey of the mill and a building on the other side of the Right of Way (now owned by Orb).[212] That request was approved subject to conditions which, inter alia, required the payment of a fee. It may be inferred that the works were then carried out and the fees paid.  Later, in 1900, the BMC and Queensland Milling Company fell into a dispute over the payment of the fee.[213] The company contended that the gangway was, by that stage, no longer in use such that no fee should be paid. The BMC disagreed and insisted that, as long as the gangway remained in existence, the fee was payable.
  7. [329]
    Between April 1898 and February 1899, Queensland Milling Company made a series of complaints to the BMC about drainage issues in respect of the Right of Way.[214] Those complaints included Queensland Milling Company demanding that BMC pay it damages of £50 for loss that it had suffered. In response to those complaints, the BMC demanded that Queensland Milling Company remove the weighbridge. BMC contended that the weighbridge was responsible for the drainage issues.
  8. [330]
    In July 1905, the works committee of the BMC approved works for the metalling of the Right of Way at a cost of £10.[215] The minutes of the BMC’s work committee referred to it as “roadway”.
  9. [331]
    There is no evidence of the BMC having levied rates on the Right of Way in any period prior to about the year 2000.[216]

Inferences from that evidence

  1. [332]
    Significantly, the first complaint was directed to BMC and not to the Trustees of the Brisbane Grammar School.  The inference is that all owners and occupiers of Lots 1-9 regarded the Right of Way as under the BMC’s control as a public road.
  2. [333]
    There is no evidence to suggest that any person or entity other than the BMC was responsible for making decisions about the installation of the weighbridge or gangway or about works to maintain or improve the Right of Way. There is no suggestion that the Trustees were consulted or involved in making any of those decisions, or that other landowners surrounding the Right of Way (e.g. the Masonic Hall) were consulted.
  3. [334]
    That evidence demonstrates that:
    1. at least by 1890, the BMC accepted and assumed responsibility for controlling the use of the Right of Way by, inter alia, issuing permits for the installation of the weighbridge and gangway;
    2. at least by 1890, the BMC accepted and assumed responsibility for determining the improvements and maintenance which should be undertaken on the Right of Way, such as formation and metalling;
    3. those decisions were made by the BMC without reference to the Trustees or other concerned landowners;
    4. it was the BMC, and no-one else, that surrounding landowners looked to when those parties:
      1. wished to obtain permission to install infrastructure in the Right of Way;
      2. had complaints about the state of repair or the Right of Way or drainage issues; and
      3. sought to have improvements made to the Right of Way.
  4. [335]
    That the BMC, and then the BCC, should be taken to have assumed the responsibilities of a road authority in respect of the Right of Way receives support from the events after 1924:
    1. the resumption and dedication of the Reserve by the BCC in 1928;
    2. the approval by the BCC of a plan of subdivision for this area which expanded the area of the Right of Way to include “new roads” in August 1980;[217] and
    3. the ongoing maintenance and control of the Right of Way through to current times.[218]
  5. [336]
    In Permanent Trustee,[219] Windeyer J said that a declared intention to dedicate is:

“... ripened into dedication ... by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming it or maintaining it as a road.”

  1. [337]
    More recently, it was said in Anderson v Stonnington[220] that:

“The expenditure of public funds to maintain and repair land is evidence that the land has been dedicated as a public highway, as well as evidence of acceptance by the public of such dedication.”

  1. [338]
    Further, the assumption of responsibilities and exercise of powers by a local authority are matters that support the inference of an acceptance of dedication. In Weber v Ankin,[221] White J said:

“Windeyer J gave the expenditure of money by the public authority on the road as an example of how the authority could take over the road.  Clearly, his Honour did not say that such expenditure was the only way in which that could be done.  Under both the Municipalities Act 1867 and the Local Government Act 1906 a council had the control and management of a road in its municipality only if the road had become a public road, and was only potentially liable to maintain the road if the dedication of the road as a public road had been accepted. It follows that, in theory at least, acceptance of the road as a public road should precede the council’s expenditure on it.  Expenditure is evidence from which the inference of acceptance should be drawn.”

  1. [339]
    The evidence from Dr Beanland as to the businesses selling to the public and public events being held at the Masonic Hall show that members of the public attended and used the Right of Way, as distinct from those who might strictly be termed invitees or licensees.  There is no rational basis to exclude those members of the public attending businesses or public events at the Masonic Hall from the class of public use for the purposes of testing whether there has been public acceptance of a dedication to public use.
  2. [340]
    In any event, there is authority that use by such persons is not precluded from being sufficient to presume dedication.  As Menzies J observed in Permanent Trustee:[222]

“... unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road: Attorney-General v. The City Bank of Sydney (1920) 20 SR (NSW) 216: 37 WN 51.”

  1. [341]
    That proposition was accepted as correct by the NSW Court of Appeal in Tomark Pty Ltd & Ors v Bellevue Crescent Pty Ltd & Ors.[223]
  2. [342]
    Inferences as to use by the public can also be drawn from the fact that the Right of Way was:
    1. open to the road network and not fenced off; and
    2. consistently shown on road maps as being part of the road network.
  3. [343]
    As was made clear in Newington v Windeyer,[224] road maps can be used to draw an inference about public use.  Common human experience would suggest that where a laneway in the centre of Brisbane is open to the public it is likely to be used, even if only because of curiosity by passers-by or a desire to avoid a more heavily trafficked area.  Mr Matthews’ evidence showed that just that had been the observed position since 1963. That provides a basis to infer that it was no different throughout the period in which this area had been developed.

Conclusion on the appeal

  1. [344]
    Consistently with the foregoing reasons, I consider that the evidence establishes that the Trustees intended, when they subdivided and sold the land bordered by Margaret, Albert, and Alice Streets, to dedicate the Right of Way as a road for public use.  Moreover, there was consistent public use thereafter, and the Trustees acquiesced in that use.
  2. [345]
    The appeal must be dismissed, with costs.

The Cross-Appeal

  1. [346]
    The Second and Third Respondents (the State of Queensland and the Registrar of Titles) bring the cross-appeal against the form of the declaratory relief granted by the primary judge. Orb made submissions in answer to the cross-appeal but only to provide a contradictor.
  2. [347]
    The orders made were:
    1. the land described as Lot 11 RP1073, also known as Beatrice Lane, has been dedicated as, and is a public road;
    2. by operation of s 369 of the Land Act 1962 (Qld) (repealed), the land described as Lot 11 on RP1073 known as Beatrice Lane, vested in and remains vested in the Crown.
  3. [348]
    The thrust of the cross-appeal is that sub-paragraph (b) operates to vest the entirety of Lot 11 in the Crown, whereas at common law the effect a dedication of land as a public road meant that the owner retained all proprietary rights subject only to those rights necessary to enable public use of the road and its maintenance.  Hence, it was said, the proper form of declaratory relief should vest no more in the Crown than the limited rights, not the entire lot.  It was submitted that an appropriate form of the declaratory relief was:
    1. the land described as Lot 11 on RP1073 has been dedicated as, and is, a highway at common law;
    2. by operation of s 369 of the Land Act 1962 (Qld) (repealed), the land in the highway so dedicated vested in, and remains vested in, the Crown.
  1. [349]
    The Right of Way was dedicated prior to 1923.  In 1924, an amendment was made to the Local Authorities Act 1902 (Qld) which ended any further dedication, at common law, by private landowners of new roads.
  2. [350]
    The land which had been dedicated by the Trustees, and which I have called the Right of Way in these reasons, became vested in the Crown upon the enactment of the Land Act of 1962 (Qld).  Section 369 of that Act provided:

Roads dedicated to the public by private persons (1910, s. 196)

369.  All land which, having been before, is at the commencement of this Act, or which may on or after the commencement of this Act be, dedicated by the owner thereof, not being the Crown, to public use as a road shall, by virtue of such dedication be vested (and in the case of land so dedicated before the commencement of this Act, is hereby declared to have always been vested) in the Crown and may be dealt with in the same manner as roads which have been dedicated to public use by the Crown.”

  1. [351]
    It is submitted by the cross-appellants that this Court, in a decision in an earlier episode of this case,[225] held that the public right of use of a highway is independent of the ownership of the soil.  Further, it was held that the Crown’s ownership upon vesting was different from ownership of a fee simple under the Real Property Act.
  2. [352]
    In that decision, McMurdo JA,[226] referring to Brodie v Singleton Shire Council,[227] Attorney-General (Quebec) v Attorney-General (Canada),[228] and Buckle v Bayswater Road Board,[229] said:[230]
  1. “[42]
    The reasoning in these authorities cannot be distinguished in this case.  Until the enactment of s 369, the fee simple in Beatrice Lane was vested in the trustees of the Grammar School.  However, on the assumed facts, there were co-existing public rights to use the land, which were independent of the trustees’ ownership.  In 1962, the land became vested in the Crown, but ‘subject to the rights of the public to use [it] for passing and repassing’, to adopt the words in that passage in Brodie.
  2. [43]
    If this land was dedicated as a public road, by definition there were public rights to use the land.  The trustees, as the owners of the fee simple, were subject to these rights, although they held a Torrens title.  That accords with the opinion of Sir George Rich, sitting as a judge of the Supreme Court of New South Wales in 1911, in Vickery v Municipality of Strathfield, a case which has been followed consistently in that State and in Victoria, and which, as already noted, was approved in Brodie.
  3. [44]
    With respect to the primary judge, it cannot be accepted that there was a conflict, actual or potential, between the Crown’s ownership of the land and the rights of the public to use it as a road.  It was for the very reason that this land had been dedicated for public use that, by s 369, it became vested in the Crown.  The land could be dealt with by the Crown in the same manner as roads which the Crown had dedicated to public use.  Under s 362, Crown land could be dedicated ‘as a road for public use’.  Where that occurred, the land remained vested in the Crown, and what changed was that the public was entitled to use it.  In cases of roads vested under s 369, the public rights were maintained, by the particular nature of the Crown’s ownership of the land.
  4. [45]
    The Crown’s ownership thereby differed from the fee simple of a proprietor under the Real Property Act 1861.  The public rights could be removed only by the provisions of the Land Act which allowed for the closure of roads.  The Crown was not free to deal with the land as it wished.”
  1. [353]
    I shall return to the implications of Orb Holdings later.
  2. [354]
    The cross-appellants also submit that the language of s 369 of the Land Act of 1962 (Qld), properly construed, only vests the bundle of rights necessary to preserve the public’s right to use Lot 11 as a road.  In support of this contention, they relied on the decision in H Jones & Co Pty Ltd v Kingsborough Corporation,[231] where Dixon J said:[232]

“Statutes which vest in a public authority highways, sewers and other artificial works ... serving a definite public purpose, open to public use or access as of common right, have received a construction according to which the authority takes less than the full property in the site, less than property unlimited in point of altitude or depth.  The operation of the statutory vesting is considered as confined to the purpose to be fulfilled. The subsoil beneath a street so vested becomes the property of the authority only to so far down as is reasonably incidental to the construction and maintenance of the highway and to its proper control. There is a corresponding limitation upwards on the rights which would arise from ordinary ownership of land. …”

  1. [355]
    That led to the cross-appellants’ ultimate submission:[233]

“As such what vests in the Crown is not the entire fee simple in Lot 11 but the bundle of rights necessary to preserve the public’s right to use Lot 11 as a road.  It is then for the Crown to deal with those rights in accordance with the statute. The declaration proposed by the Second and Third Respondents gives best effect to that principle.”

Consideration

  1. [356]
    Ultimately, the resolution of this issue turns upon the proper construction of s 369 of the Land Act of 1962 (Qld).  It will be recalled that it relevantly provided: 

“All land which, having been before, is at the commencement of this Act … dedicated by the owner thereof … to public use as a road … is hereby declared to have always been vested … in the Crown …”.

  1. [357]
    The provision was enacted in 1962, at a time when the Torrens system had long been established, and the Real Property Act 1861 had been in force for nearly a century.  It was plainly enacted in full knowledge of that Act and how the system of title by registration operated.
  2. [358]
    The proper construction of s 369 requires analysis commence with a consideration of the text itself, seen in its context.[234] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.
  3. [359]
    There are several matters to note about s 369.
  4. [360]
    First, the focus of the provision is on “land”.  But it only applies to certain land, namely “land” which has been “dedicated by the owner thereof … to public use as a road”.  Thus, it proceeds upon the basis that the thing which has been dedicated is “land”, not the “road” which is the product of the dedication.
  5. [361]
    Secondly, s 5 of the Land Act contained a definition of the term “road”:

“‘Road’––Any road, whether surveyed or unsurveyed, dedicated, or notified or declared in any manner howsoever to be a road for public use, and any road comprised of land taken, pursuant to any enactment, for the purpose of a road for public use.

The term includes–

  1. any road, street, esplanade, reserve for esplanade, parade, promenade, avenue, crescent, drive, lane, highway, pathway, footway, thoroughfare, track or stock route; and 
  2. any part of any road or any bridge, causeway, culvert or other works in, on, over or under any road or any part of any road within the meaning of this definition;”
  1. [362]
    The Act did not contain a definition of “land”, though it did define “Crown land”:

“‘Crown land’—All land in Queensland, except land which is, for the time being—

  1. lawfully granted or contracted to be granted in fee-simple by the Crown; or
  2. reserved for or dedicated to public purposes; or
  3. subject to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land;”
  1. [363]
    Self-evidently, the term “road” is given a meaning quite distinct from the concept of “land”.
  2. [364]
    Thirdly, it follows that s 369 draws a distinction between the “land” and the “road” which is the product of the dedication.  It is “land” which is dedicated, not the “road”.
  3. [365]
    Fourthly, the distinction between the “land” and the “road” is maintained when the subject matter of the vesting is considered.  It is the “land” which vests, not the “road”.
  4. [366]
    Fifthly, that distinction (that is, between the “land” which is dedicated and the “road” which is not) is one that has its foundation in the common law.  It was the owner’s land that was dedicated, not the road itself.[235] And, both intended dedication and acquiescence sufficient to turn long public user into actual dedication had to come from “the owner of the fee” or “proprietor”.[236]
  5. [367]
    Sixthly, construction of the word “land” in s 369 as referring to the incorporeal hereditaments comprised in the rights to use the road does not find support in the context in which s 369 exists.
  6. [368]
    Section 363 permitted the owner of any land, held in fee simple, and adjoining a road not required for public use, to apply to have the road closed.  If the road was permanently closed, then s 365 enabled the Governor-in-Council to sell to the adjoining owner, or issue a fresh deed of grant for, “the land … comprised in the closed road”: s 365(a)(i) and (ii).  That approach necessarily meant the creation of titles under the Real Property Act.  If “land” meant only the rights held by the public at common law, there was nothing to sell or register.  Those rights ceased at closure.  And, the “land” referred to is the “land comprised” in the road.  That is an odd description if it refers only to the common law rights to the surface and rights of maintenance.
  7. [369]
    Further, s 368 permitted the Governor-in-Council to notify that a road was permanently closed.  When that occurred, the “land comprised in such road may be dealt with and disposed of as Crown land under this Act”.  In my view, that is inconsistent with the limited construction of “land” advanced by the cross-appellants.
  8. [370]
    At the time s 369 was enacted, the law was clear as to the distinction between ownership of land and the rights enjoyed by the public in respect of the use of a road.  For example, in Rangeley v Midland Railway Co,[237] Lord Cairns said:

“… a public road or highway is not an easement, it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing …”.

  1. [371]
    Thus the rights enjoyed by the public were and are incorporeal rights, not proprietary rights.[238]
  2. [372]
    The legislature can be taken to have enacted s 369 well aware of the law at the time.  As Sofronoff P said in Orb Holdings:[239]

“Section 369 Land Act 1962 was enacted long after the Torrens system was established in this State and so that provision was enacted as part of a system of land title management that contemplated the indefeasibility of a registered interest.”

  1. [373]
    It can therefore be seen that s 369, by maintaining the distinction between the “land” that is “dedicated” and vested, and the “road” which is not, directed the operation of the provision at the “land”, and not at the incorporeal rights comprehended by public use of a “road”.
  2. [374]
    Further, as this Court recognised in Orb Holdings,[240] s 369 had the evident purpose of seeking to overcome the practical and legal difficulties associated with the Crown not having ownership of lands dedicated as public roads.
  3. [375]
    These considerations compel the conclusion, in my view, that the proper construction of s 369 is that the reference to “land” is not to the bundle of rights comprehended by the road, but rather to the fee simple of the land on which the road exists.  Here, because Lot 11 was entirely consumed by the Right of Way, there is no consideration of the road being only over part of the land otherwise.
  4. [376]
    That conclusion was one reached by this Court in Orb Holdings:[241]
  1. “[42]
    The reasoning in these authorities cannot be distinguished in this case.  Until the enactment of s 369, the fee simple in Beatrice Lane was vested in the trustees of the Grammar School.  However, on the assumed facts, there were coexisting public rights to use the land, which were independent of the trustees’ ownership.  In 1962, the land became vested in the Crown, but ‘subject to the rights of the public to use [it] for passing and re-passing’, to adopt the words in that passage in Brodie.”
  1. [377]
    The “assumed facts” referred to in that passage are that there was an effectual dedication of the land as a road.  That is what has been found to be the case in these reasons.
  2. [378]
    There are reasons to reject the alternative construction advanced by the State and the Registrar.  It is easy to see that practical and conceptual difficulties would follow.  How does one determine the rights with certainty when there is doubt about the precise “altitude or depth”[242] of the land that is required to preserve or protect the public’s right of passage?  Such a consideration is likely to vary on a case by case basis.
  3. [379]
    Further, in my view, the cross-appellants’ reliance on English authorities, such as Burgess v Northwhich Local Board,[243] and Battersea Vestry v County of London and Brush Provincial Electric Lighting Co,[244] and texts based on them, is misplaced.  Little is gained from decisions involving different statutory provisions from those in place here.  Similarly, authorities turning on distinctly different statutory provisions, such as Buckle v Bayswater Road Board,[245] offer no reliable guidance.
  1. [380]
    The decision in H Jones & Co Pty Ltd v Kingsborough Corporation[246] also provides little guidance in the circumstances.  What Dixon J said in that case were general comments about “Statutes which vest in a public authority highways…”.  Here, s 369 vests “land”, not the “road” or highway.  Whilst the object of the vesting under s 369 might have been to protect the public rights of passage over the road, it did not do so in the way referred to by Dixon J in H Jones.

Conclusion on the cross-appeal

  1. [381]
    For the reasons I have expressed above the cross-appeal must be dismissed, with costs.

Orders

  1. [382]
    I propose the following orders:
    1. Appeal dismissed.
    2. The Appellant pay the Respondents’ costs of the appeal.
    3. Cross-appeal dismissed.
    4. The Second and Third Respondents pay the First Respondent’s costs of the cross-appeal.
  2. [383]
    BOND JA:  I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour.
  3. [384]
    APPLEGARTH J:  I agree with Morrison JA.

Footnotes

[1] Taken from survey plan B.1182.29, AB 467.

[2] Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2022) 11 QR 750, [15] (Primary Judgment).

[3] I will refer to these Lots, by their number, as the original Lots. Hereafter, I will refer to the Trustees of the Brisbane Grammar School as “the Trustees”.

[4] AB 468.

[5] For convenience, at different times throughout this judgment, I will refer to the “Right of Way” by that name, or as either “Lot 11”, or “Beatrice Lane”.

[6] Since repealed.

[7] Primary Judgment at [200].

[8] Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521 at [10]–[11], [46], and [82].

[9] City of Keilor v O'Donohue (1971) 126 CLR 353, 369.

[10] Owen v O'Connor [1964] NSWR 1312; (1963) 53 SR (NSW) 1051, 1061.

[11] Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104, 108–109.

[12] AB 285, 345.

[13] Appellant’s outline paragraph [19], footnote 18.

[14] See the handwritten note at the bottom left of the plan quoted at paragraph [12](f) above.

[15] The words “Lot 11 (Balance)” were inserted some time later. RP1074 created Lot 10 some time later: see paragraph [17] above.

[16] About 30 centimetres or one foot.

[17] AB 467.

[18] The lines appearing on RP1073 are plainly the vestiges of the boundaries of original Lots 9 and 11.

[19] AB 346.

[20] AB 273–275, 278–281.

[21] AB 276.

[22] AB 277.

[23] AB 283.

[24] AB 287, 347.

[25] AB 288, 348.

[26] AB 470 (Lot 1), 480 (Lot 2), 490 (Lot 3), 500 (Lot 4), 504 (Lot 5), 508 (Lot 6), 526 (Lot 7), 546 (Lot 8), and 544 (Lot 9).

[27] AB 548.

[28] AB 549, 551.

[29] Primary Judgment at [31]–[32].

[30] AB 552.

[31] (1960) 105 CLR 401 at 420.

[32] Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521; [2020] QCA 198 at [28] (Orb Holdings).

[33] [2003] NSWSC 566 at [7].

[34] (1985) 3 NSWLR 555 at 559. Emphasis added.

[35] (1864) 1 QSCR 130 at 132–133.

[36] Cockle, Lilley, Griffith and Mein all lawyers; Bernays, Clerk of the Legislative Assembly, and Douglas, Secretary for Public Lands.

[37] Primary Judgment at [67] and [171].

[38] Mayberry v Mornington Peninsula Shire Council (2019) 59 VR 383; [2019] VSC 623 at [76].

[39] Evidence of Mr Swane, AB 771 lines 1–32.

[40] His name is on RP1073 as the surveyor.

[41] Owen v O'Connor [1964] NSWR 1312; (1963) 53 SR (NSW) 1051 at 1061.

[42] As accepted by WCL: Appeal transcript 1-19 lines 23–26.

[43] Appeal transcript 1-21 line 46 to 1-22 line 3.

[44] Primary Judgment at [172].

[45] Newington at 559.

[46] Appeal transcript 1-8.

[47] (2020) 5 QR 521; [2020] QCA 198 at [33]–[34].

[48] Outline paragraphs [64]–[67].

[49] AB 273. Emphasis added

[50] Primary Judgment at [112].

[51] Primary Judgment at [113]–[114].

[52] Primary Judgment at [114].

[53] Primary Judgment at [107].

[54] Primary Judgment at [104]–[108]. Though some general criticism was made before this Court of the use of historians’ opinions drawn from historical records, there is authority to support the admissibility and use of such evidence: Sydney City Council v Griffin Corporation [2003] NSWSC 26.

[55] Primary Judgment at [108]–[109].

[56] (1960) 105 CLR 401 at 423; [1960] HCA 62. Emphasis added.

[57] [1999] NSWCA 347 at [48]–[52] (Stein JA, Priestley and Beazley JJA agreeing).

[58] Outline paragraph [13].

[59] (1985) 3 NSWLR 555 at 562.

[60] (2008) 13 BPR 25,231; [2008] NSWSC 106 at [65].

[61] Primary Judgment at [80]–[85], [177]–[178].

[62] Lot 12 was never an adjoining owner of the Right of Way in the sense used in Newington.

[63] AB 754; Trial Transcript 2-66 lines 12–17.

[64] Primary Judgment at [88]–[90].

[65] Primary Judgment at [101]–[104], [179].

[66] Primary Judgment at [105]–[106].

[67] Primary Judgment at [178].

[68] Primary Judgment at [108].

[69] Primary Judgment at [109]. Citations omitted

[70] Primary Judgment at [111].

[71] Primary Judgment at [182]–[183]. Citations omitted.

[72] Primary Judgment at [114].

[73] (1960) 105 CLR 401 at 423.

[74] Primary Judgment at [165] and [173]–[175]. Footnotes omitted.

[75] Outline paragraphs [46]–[47]. Footnotes omitted.

[76] Outline paragraph [48].

[77] Appeal Transcript 1-72 lines 8–15; 1-77 lines 18–27.

[78] WCL’s submissions at trial, AB 219–222; paragraphs [138], [143], [146], and [149](b).

[79] (1960) 105 CLR 401; [1960] HCA 62.

[80] Permanent Trustee at 411. Emphasis added.

[81] [2003] NSWSC 566 at [7]. Emphasis added.

[82] (1985) 3 NSWLR 555.

[83] Newington at 558–559. Emphasis added.

[84] Newington at 562. Emphasis added.

[85] (2017) LGERA 176; [2017] VSCA 229 at [40], [42]–[43]. Citations omitted. Emphasis added.

[86] Permanent Trustee at 420. Emphasis added.

[87] Permanent Trustee at 423. Emphasis added.

[88] (1864) 1 QSCR 130 at 132–133.

[89] (1879) 1 QLJ (Supp) 7.

[90] O'Quinn at 8. Emphasis added.

[91] O'Quinn at 9.

[92] (1886) 20 SALR 33.

[93] Born v Huntley at 38–39, Bundey J agreeing. Emphasis added.

[94] Born v Huntley at 40–41, Bundey J agreeing. Emphasis added.

[95] [1999] NSWCA 347 at [48], per Stein JA, Priestly and Beazley JJA agreeing.

[96] Newington v Windeyer (1985) 3 NSWLR 555 at 558–559; Chambers v Lane Cove Municipal Council (1966) 14 LGRA 1; Permanent Trustee (1960) 105 CLR 401.

[97] Appeal Transcript 2-66 lines 1–8.

[98] (1906) 3 CLR 846; [1906] HCA 34.

[99] [1914] AC 338.

[100] (1996) 91 LGERA 166.

[101] (1906) 3 CLR 846.

[102] 11 M. & W, 827 at 830.

[103] Narracan at 856. Citations omitted.

[104] Narracan at 857.

[105] (1838) 8 A & E 99.

[106] Narracan at 858. Emphasis added.

[107] Narracan at 858–859. Emphasis added.

[108] Narracan at 859. Emphasis added.

[109] Narracan at 859.

[110] (1851) 1 Legge, 666 at p. 668.

[111] Narracan at 867. Citations omitted. Emphasis added.

[112] Narracan at 872.

[113] [1914] AC 338.

[114] Folkestone at 352.

[115] The relevant Earl died in 1889.

[116] Folkestone at 354–355.

[117] Folkestone at 356.

[118] Folkestone at 370.

[119] Folkestone at 362–363.

[120] Folkestone at 367, 368–369. Lord Dunedin expressed a similar view: 375.

[121] (1996) 91 LGERA 166.

[122] Permanent Trustee at 411; Newington at 558–559; Palmisano at [7]; Anderson v City of Stonnington at [42]–[43]; Folkestone at 352, 354–355, 368–369.

[123] Permanent Trustee at 423; Narracan at 856–857; Poole v Huskinson at 830.

[124] Newington at 562

[125] Palmisano at [7]; Born v Huntley at 38–39

[126] Folkestone at 354–355, 368–369.

[127] Anderson v City of Stonnington at [43].

[128] Newington at 558–559, 562; O'Quinn at pages 8–9; Born v Huntley at 40–41.

[129] Narracan at 858–859.

[130] Barton J in Narracan at 867.

[131] Barraclough at 103; Narracan at 858.

[132] Griffith CJ in Narracan at 859.

[133] (1989) 23 FCR 536 at 546; [1989] FCA 159 at [44]. Emphasis added.

[134] Outline in Reply, paragraph [17].

[135] Appeal transcript 1-66 lines 35–38.

[136] Appeal transcript 1-66 line 39 to 1-67 line 16. Emphasis added.

[137] (1989) 23 FCR 536 at 542, 545.

[138] Maps that were not very detailed or like subdivision maps, and which had inconsistencies in them; variable and infrequent use; and unclear evidence as to the identity of the users and whether it was use by the public.

[139] Appeal transcript 2-67 line 22 to 2-68 line 12.

[140] [2016] FCA 752 at [2131]–[2138].

[141] [1997] 1 VR 504 at 519, 522.

[142] (1960) 105 CLR 401.

[143] Permanent Trustee at 420. Emphasis added.

[144] Permanent Trustee at 422.

[145] Permanent Trustee at 423. Emphasis added.

[146] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5. Emphasis added.

[147] Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164–165; Dixon v LeKich (2010) 56 MVR 70; [2010] QCA 213 at [20] (Fraser JA with whom McMurdo P and White JA agreed).

[148] (1971) 126 CLR 353 at 369.

[149] Primary Judgment at [115]–[116].

[150] Appeal transcript 1-70 lines 27–32.

[151] Appeal transcript 1-70 lines 39–42.

[152] Oxford English Dictionary; Black’s Law Dictionary, 6th Ed

[153] Property Law and Practice in Queensland, L93.20A; R (Smith) v Land Registry (Peterborough) [2011] QB 413; [2010] EWCA Civ 200.

[154] Rangeley v Midland Railway Co (1868) 3 Ch App 306 at 311; Municipal District of Concord v Coles (1906) 3 CLR 96 at 105.

[155] AB 470 (emphasis added), 472, 474, 476, and 478.

[156] AB 478.

[157] AB 480, 482, 484, 486, and 488.

[158] AB 488.

[159] Lot 3: AB 490, 492, 494, 496, and 498. Lot 4: AB 500 and 502.

[160] AB 504 and 506. Emphasis added.

[161] Lot 6: AB 508 (emphasis added), 510, 512, 514, 516, 518, 520, and 522. Lot 7: AB 526, 528, 530, 532, 534, 536, 538, and 540. Lot 8: AB 546. Lot 9: AB 544.

[162] For example, Lot 6, AB 524 and Lot 7, AB 542.

[163] AB 549, 551, 553.

[164] Appellant’s outline paragraph [51].

[165] [1983] 1 Qd R 356 at 362.

[166] [1983] 1 Qd R 369 at 374.

[167] (1928) 28 SR (NSW) 331 at 334–335.

[168] (1925) 36 CLR 538.

[169] (1891) 12 NSWLR (Eq) 319.

[170] Trustees who were in that position in 1876 and 1886 include: Mr Bernays; Sir Samuel Griffith (A-G in 1876 and Premier in 1886); Sir Charles Lilley (Supreme Court Judge in 1876 and Chief Justice in 1886); Mr McDonnell; Mr Mein (Supreme Court Judge in 1886); and Mr Scott.

[171] At 573.

[172] (1891) 12 NSWLR (Eq) 319.

[173] At 568.

[174] (1998) 43 NSWLR 364 at 372.

[175] [2005] QCA 357 at [4].

[176] [1921] St R Qd 105. On appeal to the High Court: (1921) 29 CLR 602.

[177] [1983] 1 Qd R 369 at 373.

[178] Emphasis added.

[179] Affidavit of Walker, Ex LIW-40.

[180] Beanland Report, page 148.

[181] Beanland Report, paragraphs [39]–[45].

[182] Beanland Report, paragraphs [39]–[45].

[183] Beanland Report, paragraphs [51]–[54]; Cook Report, paragraph [43].

[184] Affidavit of Walker, Ex LIW-30 to LIW-35, LIW-37, and LIW-38.

[185] Beanland Report, paragraph [22].

[186] Beanland Report, paragraph [22].

[187] Beanland Report, paragraph [22].

[188] Beanland Report, paragraph [23]. Cook Report, paragraph [21].

[189] Beanland Report, paragraph [24].

[190] Beanland Report, paragraphs [25]–[31].

[191] Beanland Report, paragraphs [25]–[31].

[192] Beanland Report, paragraph [35].

[193] Beanland Report, paragraph [35].

[194] Beanland Report, Annexure E, page 137.

[195] Cook Report, paragraph [42].

[196] Cook Report, paragraph [40].

[197] Beanland Report, paragraph [34].

[198] Cook Report, paragraphs [16](d) and [40](h); Affidavit of Dr Beanland filed 11 April 2022, Ex DEB-4 (Beanland Reply Report), paragraph [13].

[199] Cook Report, paragraph [16](e).

[200] Affidavit of Matthews, paragraphs [3]–[5].

[201] Affidavit of Matthews, paragraph [12].

[202] Affidavit of Matthews, paragraph [13].

[203] Affidavit of Matthews, paragraph [11].

[204] Affidavit of Matthews, paragraph [5].

[205] Affidavit of Matthews, paragraph [14].

[206] Affidavit of Matthews, paragraph [22].

[207] Beanland Report, paragraphs [58]–[62].

[208] Beanland Report, paragraphs [58]–[62].

[209] Beanland Report, paragraphs [65]–[73].

[210] Beanland Report, paragraphs [74]–[75].

[211] Beanland Report, paragraphs [77]–[79].

[212] Beanland Report, paragraphs [80]–[82].

[213] Beanland Report, paragraphs [90]–[95].

[214] Beanland Report, paragraphs [83]–[89].

[215] Beanland Report, paragraphs [96]–[97].

[216] Beanland Reply Report, paragraphs [19]–[22]; Joint Report.

[217] Pozzi Report, pages 50–51.

[218] Affidavit of Walker, Ex LIW-41.

[219] At 422.

[220] (2017) 227 LGERA 176; [2017] VSCA 229 at [92].

[221] [2008] NSWSC 106 at [72].

[222] At 415. Emphasis added.

[223] [1999] NSWCA 347 at [52].

[224] Newington at 562.

[225] Orb Holdings (2020) 5 QR 521; [2020] QCA 198.

[226] With whom Boddice J agreed.

[227] (2001) 206 CLR 512 at 565–566 [119].

[228] [1921] 1 AC 401 at 409.

[229] (1936) 57 CLR 259 at 281.

[230] Orb Holdings (2020) 5 QR 521; [2020] QCA 198 at [42]–[45]. Citations omitted.

[231] (1950) 82 CLR 282.

[232] H Jones at 320.

[233] Second and Third Respondents’ Outline on the cross-appeal, paragraph [17].

[234] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381–382 [69]–[70].

[235] Permanent Trustee (1960) 105 CLR 401 at 420; Newington v Windeyer (1985) 3 NSWLR 555 at 558.

[236] Folkestone Corporation v Brockman [1914] AC 338 at 352; Poole v Huskinson 11 M & W, 827 at 830; Barraclough v Johnson (1838) 8 A & E 99 at 104–105.

[237] (1868) 3 Ch App 306 at 311.

[238] R (Smith) v Land Registry (Peterborough) [2011] QB 413 at [38]; Municipal District of Concord v Coles (1906) 3 CLR 96 at 110.

[239] At [3].

[240] At [41]–[42] and [44].

[241] At [42] per McMurdo JA, Sofronoff P and Boddice J agreeing. Emphasis added.

[242] To adopt the phrase from H Jones.

[243] (1880) 6 QBD 264.

[244] [1899] 1 Ch 474.

[245] (1936) 57 CLR 259.

[246] (1950) 82 CLR 282.

Close

Editorial Notes

  • Published Case Name:

    WCL (QLD) Albert St Pty Ltd v Orb Holdings Pty Ltd & Ors

  • Shortened Case Name:

    WCL (Qld) Albert St Pty Ltd v Orb Holdings Pty Ltd

  • MNC:

    [2023] QCA 263

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Bond JA, Applegarth J

  • Date:

    19 Dec 2023

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QSC 190 (2022) 11 QR 75008 Sep 2022Declaration that land dedicated as a public road and vested in the Crown: Crow J. For an earlier, related decision of the Court of Appeal in this litigation, see Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521; [2020] QCA 198.
Appeal Determined (QCA)[2023] QCA 26319 Dec 2023Appeal and cross-appeal dismissed: Morrison JA (Bond JA and Applegarth J agreeing).

Appeal Status

Appeal Determined (QCA)

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