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

Unreported Citation: [2020] QCA 198
EDITOR'S NOTE

This matter concerned a piece of land in the Brisbane CBD alleged to have been designated as a public laneway in the late nineteenth century. Contrary to the decision of the primary judge, the Court of Appeal held that the land, which had been vested in the Crown pursuant to s 369 of the Land Act 1962, was outside the registered title scheme of the Land Title Act 1994 and unaffected by its provisions relating to indefeasibility of title, such that it retained its character as a public road.

Sofronoff P and McMurdo JA and Boddice J

11 September 2020

This case concerned Beatrice Lane, a narrow piece of land between Albert and Margaret Streets in the Brisbane CBD that, until recently, was used as a public laneway. It is a registered lot under the Land Title Act 1994. Its registered owner (the respondent, WCL) wishes to develop it, in conjunction with adjoining lots. The appellant, Orb, is the registered owner of a nearby property to which access is provided by Beatrice Lane. Orb argued that Beatrice Lane was dedicated as a public road by its owners in the late nineteenth century and that, since the enactment of s 369 of the Land Act 1962, the land has been vested in the Crown. Orb contended this was preserved by s 95 of the Land Title Act 1994, with the consequence that its ownership was not under the Land Title Act 1994 and was unaffected by its provisions relating to indefeasibility. At first instance, the primary judge allowed WCL’s summary judgment application and dismissed Orb’s case, on the basis that the indefeasibility provisions of the Land Title Act 1994 prevailed. [12]–[16].

On appeal, the Court of Appeal held that Orb’s appeal should succeed. [17].

Justice McMurdo (with whom Sofronoff P and Boddice J agreed) commenced by recounting the history of Beatrice Lane ([18]–[26]), noting that it had not been given any separate description in the register and had no certificate of title issued until 1994. Title subsequently came to be transferred to WCL. [23]–[25]. It was common ground that, if, as Orb argued, Beatrice Lane had been dedicated as a road for public use under the common law, this occurred before the 1923 enactment of a statute prohibiting such dedication by private landowners. [27]–[30].

His Honour observed that, if Beatrice Lane was a dedicated public road, s 369 of the Land Act 1962 vested it in the Crown upon that statute’s enactment. [31]–[36]. The authorities established that the vesting in the Crown pursuant to s 369 was “subject to the rights of the public to use [the land] for passing and re-passing”. [37]–[42]. If the land had been dedicated as a public road, the original owners of the fee simple – although they held a Torrens title – were subject to public rights to use the land. [43]. Contrary to the decision below, there was thus no conflict between the Crown’s ownership of the land and public rights to use it as a road – the reason the land vested in the Crown was because it had been dedicated for public use, and this is what maintained the public rights in respect of it. [44]. Based on authority, McMurdo J held that s 369 of the Land Act 1962 overrode the provisions of the Torrens statute. [46]–[50]. Section 369 and the delineation of the land as a road on the registered plan did not vest a registered title in the Crown. [51]–[56]. Furthermore, s 95 of the Land Title Act 1994 did not, properly construed, alter the land’s status as a road dedicated and opened for public use. [57]–[62].

According to his Honour, the scheme of the Land Title Act 1994 ([63]–[77]) “maintained the distinction between the ownership of freehold land under the Torrens statute and the ownership of roads according to a different and overriding statute, by which the land is effectively removed from the registration system”. [78]. Consequently, the ownership of Beatrice Lane derived from s 369 of the Land Act 1962 was not within, and was not brought within, the registered title scheme of the Land Title Act 1994. [79]. The registration of a survey plan in 2012 was incapable of divesting the Crown of its ownership of the land. [81]. It followed that the primary judge had erred in holding that Beatrice Lane ceased to be land vested in the Crown for use as a public road because of the indefeasibility provisions of the Land Title Act 1994. [82].

In a separate concurrence, the President observed that the interest “vested” in the Crown by s 369 of the Land Act 1962 was not “a right of a registrable kind held by a person” and that “the public right of passage, the protection of which is the object of the ‘vesting’, need not be, and, indeed, cannot be registered”. This was “consistent with the nature of such rights as entrenched by the Land Act [1962]” and with authority. [10].

In the result, the appeal was allowed with costs. [88].

S Walpole

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