Kate Taylor – Solicitor, Local Government, Planning and Litigation
In the matter of Anderson v City of Stonnington [2017] VSCA 229 the Court of Appeal (“VSCA”) considered multiple pertinent issues in relation to dealings between Local Councils and private landowners over old laneways. The principles deriving from this case are, however, applicable to dealings over roads generally, with particular focus on the creation of public highways at common law and where the land in dispute is not recorded as a road on title. Additionally, the VSCA steps us through the myriad statutory definitions of ‘road’ across both the Local Government Act 1989, and the Road Management Act 2004 – a long-awaited consideration for the interested public and Local Councils alike.
In this case, the VSCA heard a dispute between private property owners and the City of Stonnington (“Council”) regarding the laneway adjacent to the property at 21 William Street in South Yarra, with the famous Lovers’ Walk to its west and William Street to its east.
The Plaintiffs sought declaratory relief as to the proper characterisation of this laneway, and pecuniary (or monetary) relief for the loss and damage they claim to have suffered due to nuisance allegations.
You see, if the laneway is not considered a ‘road’ or a public right of way, then firstly the right of way may be considered to be a private access road by the Plaintiffs, and in addition, Council may have been considered to have contributed to the alleged nuisance by continuing to remove barriers erected upon the laneway by the Plaintiffs to stop the public from accessing what they considered to be their private right of way.
Council, by continuing to remove the barriers, considered the laneway to be a public right of way and acted in accordance with this position by ensuring continued access for its community.
In its consideration, the VSCA explained that the relevant provisions of the Local Government Act 1989 refer to the relevant provisions in the Road Management Act 2004, which in turn refer to the common law, and therefore the common law is the base upon which “this legal pyramid is founded”, and further that “the legislative provisions cannot be applied without a proper assessment of the common law position.”
The VSCA found that the laneway is a public highway at common law, and therefore a road under the relevant statutory provisions. This finding was on the basis that both dedication of the land to the public by the registered owner of the road, and acceptance by the public for that purpose, were evident.
This intention to dedicate can be express, for example by way of identification as a ‘road’ on a plan of subdivision, or inferred from the conduct of the landowner such as uninterrupted use of the land by the public and where no barriers were erected to enclose the land and prevent public access. The landowner’s intention to dedicate the land to the public is likely perfected into full dedication by the public’s acceptance of the land for that purpose.
Acceptance, then, is typically demonstrated by “repeated and continued use of the relevant land as a way by the public; that is, evidence of user.”
Evidence of the public’s use of the land as a way ‘without force, without secrecy and without permission’ tends towards a conclusion that the dedication of certain land as a highway has been accepted.
What is required to perfect this dedication to the public will turn on the facts and circumstances of each matter, however where dedication must be inferred, a longer period of public use may be required to demonstrate acceptance.
The Plaintiffs in this case submitted that the best evidence that the landowner had not dedicated the land as a public highway is demonstrated in the relevant title documents. They submitted there was no evidence that the laneway had been dedicated to public because the laneway was not described or recorded as a road on the relevant title or any plan of subdivision. The VSCA did not accept this, providing that, at best, it simply means that that particular plan provides no evidence of dedication and does not preclude the Council raising that evidence elsewhere. And to this point, Council did in fact provide a number of title documents that showed the laneway as road/right of way including the original certificate of title to the land as registered back in 1920.
Further, it was not in dispute that the public had used the laneway continuously for a long period of time. This case reminds us of the long line of authority that:
the common law has considered evidence of use land by the public ‘as of right’ as being consistent with the dedication of that land to the public, in circumstances where the words ‘as of right’ have taken on the meaning of the old common law expression ‘nec vi, nec clam, nec precario’; that is, use without force, without secrecy and without permission. Put another way, use is ‘as of right’ if it cannot be explained by any other reasonable inference, for example, by an inference that the use was permitted by the landowner or an inference that the landowner did not know of that use.
The VSCA also acknowledged that this dedication to the public is also supported by Council’s care and maintenance of the laneway.
Ultimately, the VSCA determined that the laneway is a road under statute and a highway open to the public at common law.