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

In this significant judgment, Crow J considered whether a lot in the Brisbane CBD known as Beatrice Lane was a public road or laneway. In so doing, his Honour considered whether the trustees of the Brisbane Grammar School intended to dedicate Beatrice Lane as a public road, whether such dedication was accepted, and whether the trustees acted within power in making the dedication. In considering the form of orders, Crow J also considered whether s 369 Land Act 1962 altered the common law position regarding how much land was reserved as a public road. Ultimately, his Honour made the orders sought by the applicant.

Crow J

8 September 2022

There is an L shaped area of land known as Beatrice Lane running between Albert Street and Margaret Street in the Brisbane CBD. [1]. Beatrice Lane is the subject of a certificate of title issued in 1994, although it has been shown on cadastral maps of Brisbane dating as far back as 1889. [1]. The first respondent, WCL, acquired Beatrice Lane for property development in 2014 and sought to close it. [2]. In 2019, the applicant, Orb, which used Beatrice Lane to access its premises, applied to the Supreme Court for a declaration that Beatrice Lane was a public laneway. [2]–[3].

The original lots which would become Beatrice Lane were advertised for sale in 1851. [12]. In 1874, they came to be purchased by the trustees of the Brisbane Grammar School who, in 1876, resolved to subdivide and sell the lots. [16]–[19]. By this subdivision, the trustees relevantly created Beatrice Lane, which was at the time described as a “right of way”, rather than a “lot”. [16]–[23]. Notably, no lot was created for Beatrice Lane until 1994. [21], [25]–[29].

Justice Crow noted that, prior to 1 January 1924 (when the Local Authorities Act Amendment Act 1923 came into force), it was open for parcels of land to become public roads at common law. [42]–[43]. At common law, the question of whether land was dedicated as a public road did not usually turn on formal acts, but instead was usually inferred from the landowners’ actions, and the subsequent acceptance by the public of that dedication. [44]. For example, building a double row of houses opening onto a recognised street at one end and then selling the houses was seen as an unequivocal act of dedication as a public road. [49]. Courts were particularly willing to find a road had been dedicated where a document referred to the land being a road. [45].

Importantly, his Honour observed that the common law distinguished between a public road and an easement. [56]. While an easement by right of way can have the effect of granting access rights to landowners, it is confined to the owner of the dominant tenement, whereas a public road is open to all. [57]–[65]. Ultimately, the question was whether the person who undertook the subdivision intended to create a public road. [124]. This is generally established by reference to what was known by the person who created the subdivision at the time it was created. [59]–[62]. While the public’s use of the road is often valuable evidence of an intention to dedicate (and it is evidence of acceptance of the dedication), public use does not necessarily result in a road being a public road. [44], [124]. Similarly, expenditure of public funds on maintaining the road often leads to the conclusion that it was a public road. [124].

Although WCL sought to argue that the trustees’ description of Beatrice Lane as a “right of way” was strong evidence that it was not a public road, Crow J disagreed, considering that “right of way” could either refer to a private right of way (i.e. an easement), or a public right of way (i.e. a public road). [66]–[67]. The State, meanwhile, sought to argue a third way: that Beatrice Lane constituted not an easement by a “private right of way” which guaranteed access of the owners of the subdivided estates to the rears of their properties. [70]–[72]. Crow J disagreed, noting that the private rights of way considered by the authorities referred to by the State related only to rights which terminated at a particular place (e.g. a particular house), which was not applicable here. [73]–[74].

Justice Crow considered that the absence of a certificate of title being issued for Beatrice Lane was an indication that the Registrar-General treated it as a public road. [126]. His Honour further noted that the trustees at the time of subdivision included then-Chief Justice of the Supreme Court, Sir James Cockle, then-Justice Sir Charles Lilley, Sir Samuel Griffith, and several other notable politicians and public servants. [137]–[144]. Their knowledge of the law as it then stood, their ability to create interests in the land through various means and of the commercial reasons for providing access to the rear of the subdivided land (which they advertised) were all relevant considerations in determining whether they intended to dedicate Beatrice Lane as a public road. [124]–[176].

Crow J considered that the trustees, acting in “an orthodox, lawful, commercial and honourable way” would have registered any easements which they created, and would have insisted on paying rates in respect of Beatrice Lane if they had not intended it to be a public road. [156]–[157]. Further, his Honour found there to be good commercial imperatives for creating a public road. [159]–[165]. Based upon the “calibre and position” of the trustees at the time of the subdivision, his Honour further doubted that the trustees would have been ignorant, indifferent or careless in relation to the rights relating to Beatrice Lane. [172]–[175].

Crow J concluded that it was the intention of the trustees to dedicate Beatrice Lane as a public road. [176].

His Honour next turned to the second condition for the creation of a public road: acceptance by the public. On the evidence, his Honour found that Beatrice Lane was considered by the Council to be a laneway for general traffic, was open to the public until recently, has been used frequently and was considered, by at least 1896, to be a general laneway for public use. [177]–[183]. Accordingly, Crow J concluded that the public had accepted the public dedication by the trustees of the land as a public road. [183].

Next, Crow J turned to whether the trustees had the authority to dedicate Beatrice Lane as a public road. Under s 6 Grammar Schools Act 1860, the trustees were prohibited from alienating property without the sanction of the Governor and the Executive Council. [184]. In considering this point, his Honour noted that the presumption of regularity favoured the trustees’ having lawfully subdivided the land. [185]. Further, while there was no evidence that the alienation was properly sanctioned, there was also no evidence that it was not. [187]. In the circumstances, and given the status of the trustees, Crow J concluded that the presumption of regularity was sufficient to dispose of this point in Orb’s favour. [188].

Turning finally to the form of orders, both Orb and the State sought orders under s 369 Land Act 1962, which related to the dedication of roads to the public by private persons, that part of the land vested in the Crown. [189]–[190]. However, the Crown submitted that s 369 should follow the common law position: that only such land which is necessary to preserve the public’s incorporeal right to pass over the right of way should be vested. [191]. Justice Crow held that the focus of s 369 was on the area delineated upon the relevant plan. [193]–[196]. As such, it changed the common law position. [197].

In the event, Crow J made the orders sought by Orb. [200].

M Paterson