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

Unreported Citation:

[2023] QCA 263

EDITOR'S NOTE

This case concerned the laneway known as Beatrice Lane running from Margaret Street to Albert Street in Brisbane City. In the late 1800s, the then owners subdivided and sold the land. The plan of subdivision marked what is now Beatrice Lane “right of way”. Over time the local council took over management of laneway. A dispute arose in 2019 when the appellant sought to prevent access to the laneway. The Court of Appeal upheld the findings of the primary judge that the right of way was dedicated as a public road by 1924. The Court’s reasons include an extensive discussion of the law of dedication, particularly in relation to what evidence is required to show an intention to dedicate.

Morrison and Bond JJA and Applegarth J

19 December 2023

Background

In 1874, the Trustees of the Brisbane Grammar School purchased four lots of land running from the corner of Margaret and Albert Street to the corner of Albert and Alice Street in Brisbane City. [1], [6]. The Trustees originally intended for the land to be used as the relocated site of the Brisbane Grammar School. However, that plan changed and in 1876 the Trustees resolved that “steps be taken for sale” of the “Land in Alice Street”. [7], [52].

A plan of subdivision was created and registered as RP1073 which divided the four lots into nine. [11]. RP1073 also created an area labelled “Right of Way” which ran from Margaret Street (along the back of what was now Lots 1–5) to Albert Street. The Right of Way was not given a lot number nor was it registered as an easement. Each of the subdivided lots were sold at auction. [72]. None of the lots included the right of way, but public notices of the auction stated that each lot had a back entrance, which could only refer to the right of way. [70]–[73]. Following the sale of the lots, various industrial buildings were built as well as a Masonic Hall where public functions were held. [125].

In 2019, a dispute arose as to the ownership of the land when the appellant, WCL as owner of some of the lots, sought to block access to the laneway. Orb Holdings Pty Ltd, contended that the land had been dedicated as a public road by the Trustees. If that contention were accepted, the laneway would vest in the Crown by operation of s 369 Land Act 1962 (repealed). [29]. WCL resisted those orders, contending that there had been no dedication of the land. [32].

Dedication as a Public Road

In order for land comprising the Laneway to be dedicated as a public road, the Trustees must have manifested an intention to dedicate the land as a road, and the public must have accepted the dedication. [39]. The primary judge was satisfied of both elements, and those findings were upheld on appeal. Two particular points should be noted.

First, Morrison JA (with whom Bond JA and Applegarth J agreed) provided extensive discussion concerning the test for an intention to dedicate which gave rise to the following principles. [159]–[218]. A dedication can be made expressly or by implication from the conduct of the owner. [219]. In either case, the intention is determined by an objective assessment of the acts done or not done by the owner in relation to the land. [220]–[221]. Relevant evidence may include contemporaneous documents and plans, as well as evidence going to the use of the land by the public. For example, if the owner has long acquiesced to the public’s use of the land, a presumption of dedication may arise, even in the absence of proof that the owner has knowledge of the use. [221], [224].

On the basis of those principles, the Court of Appeal upheld the primary judge’s finding that the Trustees had manifested an intention to dedicate the laneway. That was, in particular, because the Trustees, by their resolution, plainly intended to sell their land in Alice Street, they did not create an easement, and there was no rational reason to continue to hold the land once it was burdened as a right of way. [97]–[115].

Second, the Court accepted the proposition that use of the road by only the owners, invitees and licensees of lots abutting the road would not constitute acceptance of the dedication by the public. [142]–[143]. However, the Court was satisfied that there was acceptance by the public given that the road was always open to the public, it was in a central area of Brisbane, and public funds were expended to maintain it. [126]–[132], [145]–[156], [332]–[343].

Other Issues

Two other issues arose. First, under s 6 Grammar Schools Act 1860, it was unlawful for the Trustees to “alien mortgage charge or demise any … lands” without the sanction of the Governor and the Executive Council. [244]–[246]. The Court held that s 6 Grammar Schools Act 1860 did not apply because the dedication of land as a public road was not an alienation of property. Dedication of the land did not create or transfer any interest in the land. [258]. The effect of a dedication is that the owner becomes “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”. [258]. As such, the Act did not prevent dedication of the land as a public road.

Second, at first instance, the primary judge ordered that by operation of s 369 Land Act 1962 (repealed), the Laneway was “vested in and remains vested in the Crown”. [347]. The State of Queensland and the Registrar of Titles as second and third respondents, respectively, contended that the right vested in the Crown was not the whole proprietary interest in the land. Rather, the effect of the Act was that the owner of the land retained all proprietary rights subject to those rights necessary to enable the public to use the land. As such, those parties sought orders that the laneway was a highway at common law and “the land in the highway so dedicated vested in, and remains vested in, the Crown”. [348].

The appropriate form of orders turned on the proper interpretation of s 369, which stated that “[a]ll 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”. [356]. The Court held that on the proper interpretation of the Act, the term “land” was distinct from the term “road” and that the effect of vesting “land” under s 369 was to vest the fee simple in the Crown. [375]. As such, the orders of the primary judge were upheld. [382].

L Inglis

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