Permanent Trustee Co of NSW Ltd v Campbelltown Corporation

(1960) 105 CLR 401
(1960) 34 ALJR 255
[1961] ALR 164
(1960) 6 LGRA 340

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(Judgment by: Windeyer J)

Between: Permanent Trustee Co of NSW Ltd
And: Campbelltown Corporation

Court:

Judges: McTiernan J
Fullagar J
Kitto J
Menzies J
Windeyer J

Subject References:
Local Government (NSW)

Hearing date: 4-5 April 1960
Judgment date: 19 August 1960

Sydney

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Judgment by:
Windeyer J

This case has arisen from proceedings under s. 224 of the New South Wales Local Government Act 1919. Those proceedings were not, it seems, the result of a desire on the part of the respondent Council to develop the strip of bushland along the bank of George's River, called on the map St. George's Parade, into a formed and trafficable road. They came about because there are deposits of sand in the bed of the river and along its banks that in recent times have been found to have considerable commercial value. Certain persons interested in obtaining sand by suction dredging agreed to pay the Council a royalty for a wayleave to take sand extracted from the river across St. George's Parade. Whether or not these sand-getters have any title to the sand beds below the stream on the left side of its middle line was not established. And, assuming that St. George's Parade is or becomes a public road, the right of the Council to require payment for its use as a road or to authorize its obstruction by pumping gear in return for a tribute was not made clear. But it is apparently considered by both parties that the proceedings under the Local Government Act will determine the ownership of the soil of St. George's Parade. For if it be a public road, it, the soil thereof and all materials of which it is composed, vest in the Council in fee simple by virtue of s. 232.

That section gives the Council greater rights than some corresponding provisions in England give to authorities in whom roads are vested (The Mayor etc. of Tunbridge Wells v. Baird [1896] AC 434 ; Tithe Redemption Commission v. Runcorn Urban District Council (1954) Ch 383). And in New South Wales if a public road be closed or diverted the land does not revest in the original owner. It becomes Crown land (Public Roads Act, 1902, s. 20; Local Government Act, 1919, s. 276). The appellant based its claim to appeal as of right to this Court on an assertion that there are on St. George's Parade itself deposits of sand worth at least three thousand pounds and that their ownership depended upon the outcome of these proceedings. But, as sub-s. (3) of s. 232 provides that the vesting of a public road in the council in fee-simple shall not affect the right of any person in respect of any minerals below the surface of the road, and for other reasons that will appear, the amount directly at stake for the appellant may not be as much as it asserts. (at p417)

2. Two conditions must be fulfilled before the council can move to take over a road under s. 224. First it must be a road that was "left in subdivision of private lands before the commencement of the Local Government Act, 1906". Secondly, there must "exist a doubt as to whether or not it is a public road". If these conditions exist the council may "serve on the owner of the land comprising the road notice of intention to take over the road". The owner if he "has any objection" may appeal to a District Court judge. The section provides that the judge "may hear and determine the appeal and make such order as he thinks fit"; and that "if the judge so orders, the council may notify in the Gazette that such road is a public road, and thereupon the road shall be a public road and shall vest in the council". (at p417)

3. Unless the facts satisfy the two initial conditions abovementioned, the council cannot act under s. 224. And if on an appeal to a District Court judge he considered those conditions did not exist at the date when the council served notice on the owner, he should, I think, refuse to make an order. The nature of his jurisdiction on an "appeal" is by no means clear. But these seem to be matters which he has jurisdiction to determine, not merely collateral matters on which his jurisdiction depends. But I do not think his jurisdiction is limited to deciding whether or not the council had power to act under s. 224 (3). The structure and wording of sub-s. (3) suggest rather that, on the basis that facts exist which enable the council to give notice of its intention to take over the road, the judge is to consider whether and on what conditions it should be allowed to do so. Although there are no wide words in s. 224 about the public interest or what is reasonable in the circumstances, such as appear in other sections of the Local Government Act (e.g., ss. 289 (m), 341, 495A) providing for appeals to a judge from councils' decisions, nevertheless it seems that under this section also the judge may control the exercise by a council of its powers according to his discretion - a very different task from the judicial determination of questions of fact or of law. (at p418)

4. At the hearing before Judge Berne the Council began, and in the transcript of those proceedings it is called "the applicant". But the proceedings were instituted by the present appellant, and in the plaint it is described as the appellant and the Council as the respondent. His Honour delivered a judgment in which he stated the appeal was dismissed. He did not expressly order pursuant to s. 224 (3) (d) that the Council might notify in the Gazette that the road is a public road. But that he intended this may be implicit in his dismissal of the appeal. The present respondent's application to the Supreme Court for a writ of prohibition was to prevent anything further being done in the matter by the learned judge or by the Council. The hearing before this Court proceeded by agreement on the basis that his Honour still has control of the matter and would carry out his judgment by an express order in accordance with s. 224 (3) (d). If the case were otherwise one for prohibition the application would therefore not be too late (Estate and Trust Agencies Ltd. v. Singapore Improvement Trust [1937] AC 898 , at p 918) The appellant's contention is that the learned judge came to an erroneous decision on collateral facts on which his jurisdiction depended. But, as I have said above, it is at least doubtful whether, even if his Honour was in error in thinking that the preliminary requirements of s. 224 had been met, that would be a ground for either prohibition or certiorari to quash. It may be that at an earlier stage proceedings could have been brought in equity for an injunction to prevent the Council proceeding with its intention to take over the road under s. 224 if the conditions enabling it to do so did not exist (cf. Campbell v. Municipal Council of Sydney [1925] AC 338 ; (1923) 24 SR (NSW) 179; 40 WN 154; Municipal Council of Rockdale v. Municipal Council of Kogarah (1926) 26 SR (NSW) 552; 43 WN 161). However, the matters argued before us were in substance whether the conditions for the operation of s. 224 in fact existed. And on that basis I shall consider the matter, only observing here that the proceedings by "appeal" under s. 224 seem an unsatisfactory means for resolving a complicated question of title to land, especially as it is apparently thought that a determination of the status of St. George's Parade will, or indirectly may, determine also the right to the bed of George's River and the sand there ad medium filum aquae. (at p419)

5. The first question is: was St. George's Parade in 1957, when the Council served the notice under s. 224, a road that had been "left in subdivision of private lands before the commencement of Local Government Act, 1906"? (at p419)

6. In 1883 Thomas Saywell was the registered proprietor under the Real Property Act, 1862 for an estate in fee simple of sixteen hundred acres in the Parish of Minto. The land was private land within the meaning of the Local Government Act, 1919, which defines private land as "land the fee-simple of which is not vested in his Majesty the King...". It is incorrect to speak of land that belongs to the Queen jure coronae as land the fee simple of which is vested in the Queen. But what is meant is plain enough and Thomas Saywell's land was private land. Saywell subdivided it into allotments for sale as a township. In conformity with s. 100 of the Real Property Act, 1862 he deposited a map of his subdivision with the Registrar-General. That section - which became s. 113 of the Real Property Act, 1900, later repealed and superseded by s. 196 of the Conveyancing Act, 1919 - required that the map should "exhibit distinctly delineated all roads, streets, passages, thoroughfares, squares, or reserves, appropriated or set apart for public use and also all allotments into which the land was divided marked with distinct numbers or symbols". Saywell's map, which was recorded as deposited plan 960 dated 20th July 1883, did all of this. It showed an extensive road system with named roads serving the various allotments. One of these roads was named St. George's Parade. It was delineated as running alongside the left bank of George's River, and as connecting the western end of Saywell Road, one of the roads of the subdivision, with the western end of what is now Belmont Road, described in Saywell's Certificate of Title as a "Government road one chain wide". The allotments in the subdivision were all sold within a few years; but none of those that abut on St. George's Parade have been built on. They are still vacant bushland. And St. George's Parade is very different from the riverside promenade that its name and situation on the map might suggest to the imagination. It is in most parts just rocks and scrub. In one place it has been used for a short distance by trucks carting sand but along some parts of it even a pedestrian could only make his way with some difficulty. The appellant contended that it was not a road left in subdivision, because, he said, it was not a road at all. Certainly few people would call it a road. But the word "road" is given a wide meaning by definition in the Local Government Act. And, "'public road' means road which the public are entitled to use and includes any road dedicated as a public road by any person or notified proclaimed or dedicated under the authority of any Act...". What exactly this means is not clear. It seems suggested that it means that any road that any member of the public may use without being a trespasser is, for the purposes of the Act, a public road. That would include roads not dedicated for public use but which the public are permitted to use by a temporary licence or by a revocable but subsisting licence from the landowner. But as such they would come under the care of the council (s. 249), would vest in the council in fee simple (s. 232) and could not be closed to the public except by the council and in accordance with the Act. None of this would be consistent with a revocable licence. In my view, therefore, when the Act speaks of a public road as a road the public are entitled to use, it means land over which a public right of way exists - that is to say, a highway in the common law sense. The latter part of the definition I think merely indicates that the dedication that creates a highway may have been effected by any of the several methods there mentioned. (at p420)

7. 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. 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. The only notations on Saywell's certificate of title were that his estate was subject to dower, if any, in the wife of a predecessor in title as to part of the land, and a Registrar-General's caveat dated 20th December 1882, the nature of which was not proved. It may be assumed therefore that he was competent at common law to dedicate roads over his Minto land to the public. And in 1883 the common law power of a landowner to dedicate roads was not restricted by provisions requiring the local authority to approve, such as appeared later in the Local Government Act, 1906, ss. 99-101, the effect of which in relation to s. 224 of the Local Government Act, 1919 is explained by Walsh J. in his judgment in this case. The statute dealing with local governing bodies was then the Municipalities Act of 1867. Section 117 provided that municipal councils should have the care, construction and management of public roads other than the main roads of the Colony and roads exempted from such control by s. 118; but that no municipality should be compelled to take the charge or management of any new road laid down by any proprietor upon or through his own land which should be less than forty feet in width or if more than forty feet and less than sixty-six feet until it had been fully made and completed. This, however, merely made it unnecessary for the municipalities to keep up such new roads. It did not prevent the dedication of new roads.

Moreover there is nothing before us to show whether in 1883 this land was within a municipality. Campbelltown was incorporated as a municipal district on 21st January 1882 and Liverpool on 27th June 1872, according to the appendix in Browning on The Municipalities Act of 1867. But what their boundaries then were does not appear from the evidence. The Width of Streets and Lanes Act of 1881, commonly known as Reid's Act, was in force. It provided that every street laid out or defined after 20th December 1881 must be at least sixty-six feet wide and every lane since 20th October 1881 at least twenty feet wide. But it was not suggested in argument that this would have prevented the effectual dedication of St. George's Parade as a public road. So that its effect need not be considered, except to say that it does not lessen any doubts there may be about the status of St. George's Parade (see Carpet Importing Co. Ltd. v. Beath & Co. Ltd. (1926) NZ GLR 424; Rich v. Miles (1909) 10 SR (NSW) 84; 26 WN 187). (at p421)

8. There was in 1883 no statutory provision like s. 336 of the Local Government Act, 1919 as now affected by s. 196 (7) of the Conveyancing Act, 1919-1930. But Saywell's lodging of his plan of subdivision with the Registrar-General had two results. Firstly, it gave those who purchased and took transfers of lots by reference to the plan, and their successors in title, a right to use as a way of access any road shown on the plan on which their lots abutted. St. George's Parade thus became available for use as a private or occupation road for the benefit of at least the owners of the allotments abutting on it and perhaps the owners of other allotments in the subdivision also. Whether it was formed or unformed as a road, they got a lawful right of way over it (Dabbs v. Seaman (1925) 36 CLR 538 ; Cowlishaw v. Ponsford (1928) 28 SR (NSW) 331; 45 WN 94). In my view therefore St. George's Parade was a road left in subdivision. (at p422)

9. 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 (4)). 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). The landowner could no longer deny to the public what he had dedicated - "Once a highway always a highway" was the adage of the common law. A declared intention to dedicate would be ripened into dedication by public user of the land as a road, or by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road (cf. Vickery v. Municipality of Strathfield (1911) 11 SR (NSW) 354; 28 WN 107). This apparently occurred in respect of the other roads in Saywell's subdivision. 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. It is, however, at least doubtful whether any use after 1906 could make a dedication effectual if it had not become effectual before 1906. That is because the Local Government Act, 1906, which came into operation on 1st January 1907, provided that new roads could not be opened except in accordance with the new statutory provisions. That Act made a distinction, marked in s. 101, between the opening of a road and its dedication. A road might be opened without being dedicated. This distinction seems to have disappeared in the 1919 Act (In re A Caveat by the Council of the Municipality of Botany; Ex parte Homelands Development Co. Ltd. (1936) 36 SR (NSW) 615; 53 WN 251). But although user by the public after 1906 probably could not make a road that was not already in law a public road into a public road, it might be so connected with prior user as to be evidence of a dedication before that date (Folkestone Corporation v. Brockman [1914] AC 338 , at p 349; (1914) 83 LJ KB 745, at p 748 per Lord Kinnear). It therefore becomes necessary to consider what evidence there was here of public use of St. George's Parade. (at p423)

10. It was not disputed that parts of St. George's Parade have for a long time been places of public resort, especially in summer. Many people go there to picnic and to swim in the river, and in parts tracks have been worn along the bank. But Mr. Bowen argued that that was not using the land as a road. Indeed, he said, the use of the river bank as a place for rest, recreation and loitering showed only that it was not being used as a road. That is so. And as was said in Batt v. Beaverton (1923) 3 DLR 424 - where the facts were not unlike those of this case - "The use necessary to evidence an acceptance of a dedication must be a use by the public of the land as a road" (1923) 3 DLR, at p 431. But, if there be evidence from which effectual dedication as a road can be inferred, its effect is not diminished because some people by loitering and dalliance on occasions obstruct the road. The evidence here of use of the land as a passageway is not strong, and there is no direct evidence of any use of it before 1906, because the witness who had known it longest was only born in 1906. Nevertheless, I think that if we had to determine one way or the other whether St. George's Parade had become in law a public road before 1906, it might be possible to hold, as Judge Berne apparently did, that it had. But we do not have to decide this, for the Council's right to invoke s. 224 depends upon there being a doubt about the matter. Before the learned District Court judge the Council tendered only scanty evidence of user of St. George's Parade as a road. But all it had to do was to prove that a doubt existed, not to dispel it. There was some discussion before us as to who must have the doubt, whether the Council or somebody else, and whether what is meant is a doubt that exists because the relevant facts are not known or a doubt that still lingers in the mind after the facts are ascertained. If a council reasonably considers that there is a doubt whether or not a road left in subdivision is or is not a public road then I agree with Owen J. that a doubt exists within the meaning of s. 224. But in my view the phrase "there exists any doubt" does not refer to a doubt held by any particular person or persons. The expression seems to have an impersonal significance and to mean (as the conveyancing question whether a title is doubtful has been said to mean) might the matter be fairly and reasonably questioned by competent people (see Webster on Conditions of Sale 3rd ed. (1907) p. 188; Williams on Vendor and Purchaser 4th ed. (1936) p. 1058). It is not inconsistent with the existence of a doubt that it might be resolved by a court on an examination of the evidence, provided it had not been finally resolved when the council gave notice of its intention to take over the road. (at p424)

11. The situation that exists here seems to me therefore to be exactly that which the section is intended to meet. Marking out and leaving a road when land was subdivided and sold before 1906 amounted to an offer to dedicate it to the public. If it was uncertain whether there had been use by the public sufficient to constitute an acceptance and thus make it already a public road, then the council could step in and accept it on behalf of the public, because further use by the public after 1906 could not have that effect. (at p424)

12. Notice of the council's intention to take over the road must be given to "the owner of the land comprising the road". Is the Permanent Trustee Company such owner? It was not suggested that it is not. But the question is of some importance for it is the owner who must be given notice and who can appeal to the District Court judge. I think the section must mean the person who, if the land be not a public road, is the owner - "owner" being defined in s. 4 as inter alia a person entitled to an estate of freehold in possession. If it be a public road, the Council has since 1920 been the owner. The assumption that for the purposes of s. 224 the Permanent Trustee Company as trustee of Saywell's estate is the owner, and the only owner, seems to me to overlook the doctrine that the owner of land adjoining a highway owns the highway too ad medium filum. This rule rests upon a presumption of the common law, and it is "too deeply embedded in the law to be disturbed or doubted" (per Lord Shaw of Dunfermline in The City of London Land Tax Commissioners v. Central London Railway [1913] AC 364 , at p 380). It follows that if a landowner who thus owns half the soil of a road (subject, of course, to the public right of way) conveys land bounded by the road, the conveyance will be construed as passing that land usque ad medium filum viae. Both the presumption of law and the rule of construction are rebuttable (see Norton on Deeds 2nd ed. (1928) pp. 252-259). But, except when rebutted by circumstances or modified by statute, the doctrine of extent ad medium filum applies in New South Wales. It does not apply in the case of lands that in a Crown grant are described as abutting on a road created by the Crown (Tierney v. Loxton (1891) 12 LR (NSW) 308; 8 WN 79). And since 1920 it has lost much of its importance in relation to other roads by reason of the provisions of s. 232 of the Local Government Act. But it was held to apply in 1916 when privately owned land under the Real Property Act was subdivided and allotments shown on the deposited plan as abutting on a road were sold and transferred by reference to the plan (In re Priddle (1916) 16 SR (NSW) 54; 34 WN 52). That decision has been criticized. But in 1930, after the decisions in Attorney-General v. White (1925) 26 SR (NSW) 216; 43 WN 10 and In re White (1927) 27 SR (NSW) 129; 44 WN 38, relating to lands bounded by a river, the Real Property Act was amended by the addition of s. 45A. The doctrine of extent ad medium filum was at common law applicable to private roads as well as public roads (Holmes v. Bellingham (1859) 7 CBNS 329 (141 ER 843)). It is only in relation to public roads that it has been displaced by statute, and only since 1st January 1920. Therefore when Saywell transferred allotments abutting on St. George's Road he apparently conveyed also the soil of the adjacent parts of the road up to the middle line thereof - that is unless, notwithstanding In re Priddle (1916) 16 SR (NSW) 54; 34 WN 52 the presumption be rebutted in favour of Saywell and his estate by the circumstances, which in some respects resemble those in Leigh v. Jack (1879) 5 Ex D 264 and Plumstead Board of Works v. British Land Co. (1874) LR 10 QB 16. If then any doubt exists whether St. George's Parade has ever become a public road, it seems that many doubts must also exist as to who owns it - or at least that half of it that lies on the western side of its middle line. The part on the eastern side of the middle line may still belong to Saywell's estate if it still owns the land adjoining the road on the east: see the statement of Romer J. in In re White's Charities (1898) 1 Ch 659, at p 666.

The circumstances here are unusual, because it is uncertain who is the owner of the land east of the road. In fact it is the bed of the river. Whether Saywell ever had a title ad medium filum aquae, and whether, if so, it still remains in his estate need not be considered here, and it will not be determined, even indirectly, by the outcome of these proceedings. We know only that Saywell's certificate of title showed his land as bounded by the river. We do not know what was the form of the grants by the Crown of the various parcels of land consolidated in his certificate. Moreover the doctrine of extension ad medium filum aquae does not apply to tidal waters. In 1883 George's River was, it seems, not tidal above Liverpool. But that was because of the weir there. John Dunmore Lang in his History of New South Wales, 4th ed. (1870) vol. ii, p. 268, says that "the tide flowed to a considerable distance" above Liverpool before the weir was built there. But no evidence was given as to whether the river was ever tidal as far as Saywell's lands when they were first granted. None of these questions need be answered. Neither am I to be taken as indicating any view whether the vesting in the Council pursuant to s. 232 of the fee simple of a road along a river bank would give the Council a right to the bed of the stream ad medium filum. But doubts about the ownership of St. George's Parade, if it be not a public road, do not, I think, help the appellant. It claims that it is the owner of the road. It had no interest to allege and did not allege that the Council should have given notice to anyone else of its intention to take it over. As the person to whom the Council did give notice it invoked the jurisdiction of the District Court judge. He held that St. George's Parade had become a public road at some time in the past. I think there was some evidence on which he could do so, and that he had jurisdiction to come to that conclusion, at all events as against the appellant. (at p427)

13. No grounds for prohibition or certiorari to quash were made out. (at p427)

14. The Supreme Court was right in discharging the rule nisi and this appeal should be dismissed with costs. (at p427)