Tanner v The Minister for Education and Training [2002] NSWLEC 40

Reported Decision : 119 LGERA 321

Land and Environment Court of New South Wales

CITATION : Tanner v The Minister for Education and Training [2002] NSWLEC 40 APPLICANT: Tanner PARTIES : RESPONDENT: The Minister for Education and Training FILE NUMBER(S) : 30011 of 2001 CORAM: Bignold J KEY ISSUES: Compensation :- compulsory acquisition-whether land acquired was a public road-Whether right of access to public road by owner of adjoining land an "interest" in land. Land Acquisition (Just Terms Compensation) Act 1991 LEGISLATION CITED: Roads Act 1993 Conveyancing Act 1919 Police Towns Act 1838 Chief Commissioner for Railways and Tramways NSW v Attorney General for NSW (1909) 9CLR 547; Commissioner of Main Roads v North Shore Gas Company (1967) 120 CLR 118; Dabbs v Seaman (1925) 36 CLR 538; Farquhar v Newbury Rural Council (1909) 1 Ch 12; Hornsby Council v Roads and Traffic Authority (1997) 41 NSWLR 151; Jackson v Rudd (1895) 2WN 15; CASES CITED: Lake Macquarie City Council v Luka 1999) 106 LGERA 94; Newington v Windeyer (1985) 3 NSWLR 555; Owen v O'Connor (1963) 9 LGRA 159 at 179; Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104; Tomark Pty Ltd v Bellevue Crescent Pty Ltd (1999) NSWCA 347; W H Chaplin and Co Ltd v Mayor of City of Westminster (1901) 2Ch 329; Walsh v Ervin (1952) VLR 361 DATES OF HEARING: 29-30 October 2001 DATE OF JUDGMENT: 03/20/2002

APPLICANT: Mr P Hallen SC SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT: Mr J Ayling SC SOLICITORS NSW Crown Solicitor

JUDGMENT:

IN THE LAND AND Matter No. 30011 of 2001 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 20 March 2002

SCOTT TANNER

Applicant

v

THE MINISTER FOR EDUCATION AND TRAINING

Respondent

JUDGMENT ON PRELIMINARY QUESTIONS OF LAW

Bignold J: A. INTRODUCTION

1. Two preliminary questions of law have been raised in pending class 3 proceedings reflecting the dispute between the parties as to whether the Applicant is entitled to be paid compensation pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act).

2. By class 3 application filed on 8 February 2001, the Applicant appeals against the deemed rejection of his claim for compensation under the Just Terms Act, ss 39 and 46 in respect of the compulsory acquisition by the Respondent by the Notice of Compulsory Acquisition published in Government Gazette No 10 of 22 January 1999 of land situate at Balmain and known as lot 12 Deposited Plan 879298, (the compulsorily acquired land) "for the purposes of the Education Reform Act 1990". A copy of Deposited Plan 879298 registered on 25 August 1998 is annexed hereto and marked "A".

3. Prior to its compulsory acquisition, the compulsorily acquired land was for more than a century, known as School Street and was constructed and used as if it were a public road. It runs in an east/west direction between Nicholson Street and Gallimore Avenue, Balmain, traversing a distance of a little more than 100 metres with a variable width ranging between 3.05 m and 4.275 m and generally separates land developed to the north as a public school (the Nicholson Street Public School which was opened in 1883) and land currently developed to the south for residential purposes.

4. The Applicant is the owner of a property known as No 28 Gallimore Avenue, Balmain, being lot 108 in Deposited Plan 875575 upon which is developed a new three storey residence being one of eight dwellings in a residential development situate in Gallimore and Brett Avenues, approved by the Leichhardt Council in 1996. He purchased the property in August 1998, when it was flanked on its northern boundary (for a distance of some 30 m) by School Street. Deposited Plan 875575 which was registered on 9 March 1998 shows the land situate on the northern boundaries of lots 101, 102, 103, 104 and 108 as "School Street" (of variable width).

5. The Applicant's residence is so designed and constructed that pedestrian access to and from the front entrance of the residence and to and from the residence's rear garden is gained from School Street. The residence at ground level has a garage opening onto Gallimore Avenue and internal pedestrian access can be gained from the garage level to the two upper storeys of the residence. However, the front entrance to the residence is accessed via School Street.

6. The Applicant only became aware of the compulsory acquisition at the end of October 1999 at the time that School Street was physically closed to all vehicular and pedestrian access by virtue of a cyclone wire fence being erected at the eastern end of the Street, adjacent to his residence and which is currently located in such a position so as to permit informal access to the front entrance to the Applicant's residence.

7. However, the Applicant apprehends that as a consequence of the compulsory acquisition, he has lost his legal access to and from his residence via School Street.

8. By letter dated 12 September 2000, the Applicant's Solicitors lodged with the Crown Solicitor's Office a claim for compensation made in the prescribed form by the Applicant pursuant to the Just Terms Act, s 39.

9. In that claim form, the Applicant states that his interest in the compulsorily acquired land is: Registered proprietor of adjoining land at 28 Gallimore Avenue, Balmain and known as lot 108 in DP 875575 whose legal right to access his property constitutes an interest in land.

10. The Just Terms Act, s 39(1) provides: A person who wishes to claim compensation under this Part must lodge a claim in accordance with this section with the authority of the State that is acquiring the land concerned.

11. The Just Terms Act, s 46 is in the following terms: 46. (1) A person who has not been given a compensation notice may nevertheless lodge with an authority of the State a claim for compensation under this Part. (2) If the authority of the State considers that the person is entitled to compensation, the authority is to give the person a compensation notice. Otherwise, the authority is to reject the claim by notice in writing given to the person. (3) A claim for compensation under this section is taken to have been rejected if the authority of the State has not dealt with the claim within 60 days after receiving the claim. However, the authority of the State is not precluded from giving the person a compensation notice after that time.

12. As noted earlier, the present proceeding was commenced on 8 February 2001 and stated that it was an appeal against "the deemed rejection of claim for compensation under ss 39 and 46 of the Land Acquisition (Just Terms) Compensation Act 1991".

13. A right of appeal in such circumstances is conferred by the Just Terms Act, s 67(1) which provides as follows: A person who has not been given a compensation notice and whose claim for compensation under this Part is rejected (or taken to be rejected) may appeal to the Land and Environment Court against the rejection of the claim.

14. It is common ground that the appeal has been duly lodged. B. THE PRELIMINARY QUESTIONS OF LAW

15. By Notice filed in Court on 23 March 2001, the parties jointly requested the Court to determine the following preliminary question of law: Was the applicant the owner of an interest in land which was divested, extinguished or diminished by the respondent's acquisition notice dated 16 January 1999 in respect of Lot 12 in Deposited Plan 879298, so as to entitle him to be paid compensation in accordance with Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991 by the respondent, being the authority of the State which acquired the land?

16. By Notice filed in Court on 18 July 2001, the Respondent requested the Court to determine the following further preliminary question of law: At the date of compulsory acquisition was the acquired land a public road within the meaning of the Roads Act 1993 , or at common law?

17. Although the second question is necessarily implicit in the first question by virtue of the nature of the interest in land that is asserted by the Applicant, it is appropriate that it be separately and explicitly raised, and that it be answered in advance of consideration of the first question, which only truly arises if it be held that the compulsorily acquired land was a public road immediately prior to the compulsory acquisition.

18. The preliminary questions of law collectively seek to establish whether the Applicant had a compensable interest under the Just Terms Act in respect of the aforesaid Notice of Compulsory Acquisition, with the Applicant contending that he did have such an interest, and the Respondent contending that he did not have such an interest, which was divested or extinguished by the compulsory acquisition.

19. Accordingly, the preliminary questions of law fall within the jurisdiction conferred upon the Court by the Land and Environment Court Act 1979, s 25(1)— …..to determine the nature of the estate or interest of the claimant in the subject land…… C. THE RELEVANT FACTS

20. The following facts are contained in the Statement of Agreed Facts (Exhibit 1): 1. The Applicant is, and has been since on, or about, 17 August, 1998, the registered proprietor of Lot 108 in Deposited Plan 875575, being the land situated at and known as 28 Gallimore Avenue, Balmain ( Premises ). 2. Located on the Premises is a residential dwelling (Residence). 3. The Applicant remains at the date hereof the owner of the Premises and the Residence. 4. The Premises adjoins land referred to in Folio Identifier Lot 12 in Deposited Plan 879298 (Adjoining Land). 5. The Residence is oriented and designed so that persons entering and leaving the Premises may (although they need not as access is available from Gallimore Avenue through the garage) do so by way of an external front door and pathway leading to a part of the Adjoining Land. 6. Access to, and from, the external front door and pathway of the Premises and the Residence is only available by access over part of the Adjoining Land. 7. Since the Applicant has become the owner of the Premises and Residence, he has and, his servants, agents and invitees have, walked upon part of the Adjoining Land to enter, and exit from, the Premises. 8. The location of gas, electricity and water meters servicing the Premises and the Residence is on the Premises adjacent to the Adjoining Land 9. Access to the gas, electricity and water meters on the Premises by the Applicant and others can only be obtained by walking upon part of the Adjoining Land. 10. The Adjoining Land runs between Gallimore Avenue and Nicholson Street, Balmain. 11. On, or about, 16 January 1999, the Minister for Education and Training (Minister) declared that the Adjoining Land had been acquired by compulsory process (Compulsory Acquisition) under the provisions of the Land Acquisition (Just Terms Compensation) Act, 1991 (the Act) for the purposes of the Education Reform Act, 1990. 12. The Applicant, from 17 August 1998 until the date of Compulsory Acquisition, was entitled to use the Adjoining Land to enter, and exit from, the Premises. 13. On 22 January 1999, there appeared, in the New South Wales Government Gazette, Notice of Compulsory Acquisition of Land for Public School. 14. A Compensation Notice dated 28 January 1999 was served by the Respondent on the Council. 15. The Council executed an Acceptance of Offer of Compensation on 10 February 1999. 16. Under cover of letter dated 11 February 1999, the Council sent the Acceptance of Offer of Compensation to the Respondent. 17. The Respondent paid compensation to the Council under the Act. 18. The Respondent did not give any notice or compensation to the Applicant under the Act. 19. By letter dated 12 September 2000, the Applicant lodged a claim for compensation under section 39 of the Act with the Respondent's solicitors (Claim for Compensation). 20. On, or about, 13 November 2000, there was a deemed rejection by the Respondent of the Claim for Compensation under section 46(3) of the Act. 21. No agreement has been reached, between the Applicant and the Respondent, as to satisfying the Applicant's claim. 22. On 8 February 2001, the Applicant filed a Class 3 Application in the Land and Environment Court appealing against the deemed rejection of the Claim for Compensation. 23. The Court has jurisdiction to hear and determine the nature of the estate or interest of the Applicant in the Adjoining Land.

21. These facts understandably simply refer to the compulsorily acquired land as "the adjoining land" and do not ascribe to it the status of a "public road" or even refer to it as "School Street", by which it has been publicly known for more than a century.

22. The evidence concerning the status of the compulsorily acquired land as School Street and/or as a public road is principally documentary, dating back to conveyancing transactions in the 19th century and to decisions of the Balmain Council in respect of the land as a road from 1881 until immediately prior to its compulsory acquisition. The Applicant particularly relies upon more recent dealings with the compulsorily acquired land and in particular to the manner in which the land came to be compulsorily acquired. These recent actions were all undertaken on the basis that the land was relevantly regarded as a public road known as School Street. These actions included the acceptance of the claim to compensation made by the Leichhardt Council as the registered proprietor of the land, qua roads authority, pursuant to the Roads Act 1993, and the payment of compensation to the Council upon the particular basis prescribed by the Roads Act, ss 204 to 206 which operate in substitution for the compensation provisions prescribed by the Just Terms Act. The Applicant also relies upon the fact of the registration of Deposited Plan 879298 and the representation contained therein that Lot 12 comprised School Street, a public road.

23. The Applicant relies upon these recent actions as admissions by the Respondent that at the date of compulsory acquisition the land known as School Street was relevantly a "public road".

24. The Respondent's only explanation as to why in this litigation it wishes to repudiate these actions is that they were carried out in ignorance of the true position concerning the compulsorily acquired land. In these proceedings the Respondent asserts that the compulsorily acquired land was not a public road despite the assumption that it has been, at least since 1940.

25. In advancing its case that the compulsorily acquired land was not relevantly a public road, the Respondent does not challenge the mass of documentary evidence adduced by the Applicant (Exhibit 2). This evidence comes from two separate sources—firstly conveyancing transactions and land title transactions dated back to the 1870's affecting the compulsorily acquired land and adjacent lands and secondly records of the Balmain Council (later to become Leichhardt Council) concerning School Street dating back to 1881.

26. Rather, the Respondent submits that School Street was never dedicated at common law and was never created a public road by Statute. To the extent that the evidence establishes long and continuous user by the public of School Street, the Respondent argues that no dedication can be presumed from this user because of the provisions of the Act forty-fifth Victoria number fifteen, an 1881 Statute "to limit the application of the doctrine of dedication by user in certain cases" and its successor Acts, namely the Dedication of User Limitation Act 1902, and the Conveyancing Act, s 178.

27. So far as the conveyancing transactions are concerned, the Respondent submits that when the laneways (which became School Street) were created by Indenture in 1875 there was contemporaneously created a one foot wide reserve between the lanes and the southern boundary of the land out of which the lanes were created so that properties to the south would not be entitled to use the lanes. The Respondent submits that this one foot wide reserve has never been extinguished with the effect that even if the lanes (School Street) constituted a public road, the Applicant's land did not adjoin a public road, being separated therefrom by the one foot wide reserve. To sustain that submission, the Respondent has had to undermine or go behind the effects of a Primary Application under the Real Property Act 1900 that was registered by the Registrar General in 1914 in respect of land (including the Applicant's land) situate to the south of School Street.

28. But for these two arguments of the Respondent, the documentary evidence is overwhelming in justifying a finding that the compulsorily acquired land, namely School Street, was relevantly a public road at the date of compulsory acquisition and that also relevantly, it adjoined the Applicant's land, and that this had been so since about 1880.

29. Accordingly, there is no need for me to recite the voluminous documentary evidence, contained in Exhibit 2, for it all speaks with one voice, namely that the compulsorily acquired land since the 1880s has continuously been known as School Street (originally it appears to have been named Smith's Lane) and has continuously functioned as a public road up to the date of the compulsory acquisition.

30. However, by way of illustration, the documentary evidence from the distant past includes a "works as executed" plan prepared in 1905 by the Water Supply Board showing the sewerage lines in parts of Balmain including a pipeline laid in School Street: vide Tab 29 of Exhibit 2. Similarly, the documentary evidence of recent times, includes a Council notification pursuant to the Roads Act s 116 of the proposed closure of School Street, which notification elicits objection from Sydney Water because of the existence of water mains in School Street and from Energy Australia because of the existence in School Street of overhead conductors, poles and street lights: vide Tabs 60, 61 and 62 of Exhibit 2.

31. The weight of the extensive documentary evidence all attesting to the probability that the compulsorily acquired land was a public road at the date of compulsory acquisition highlights the highly technical nature of the Respondent's argument in seeking to reverse the common appearances and assumptions of more than a century.

32. Essentially, the Respondent's case has been to put the Applicant to proof that (i) the requirements of the common law and/or relevant statute law were complied with in respect of the opening or dedication of School Street (or Smith's Lane, as it was originally called); and (b) his land had a common boundary with School Street and was not separated therefrom by the continued existence of the 1 foot wide reservation along the southern boundary of the lanes when they were created in 1875.

33. The evidence that is relevant to the Respondent's contentions (and the Applicant's competing contentions) can be more conveniently considered when I come to consider the question whether the compulsorily acquired land was at the relevant date a public road.

34. But before considering that question, I should note the relevant provisions of the Just Terms Act which are relevant to both questions of law. D. THE PROVISIONS OF THE JUST TERMS ACT RELEVANT TO THE APPLICANT'S COMPENSATION CLAIM

35. Section 37 confers a right to compensation if land is "compulsorily acquired". It provides as follows: An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land.

36. A number of words or expressions employed by this section are defined by s 4(1) of the Act and or are explained and amplified by other provisions of the Act. The relevant defined terms are as follows— owner of land means any person who has an interest in the land; land includes any interest in land; interest in land means:

(a) a legal or equitable estate or interest in the land; or (b) an easement, right, charge, power or privilege over, or in connection with, the land; acquisition notice means a notice under section 19 which declares that land has been acquired by compulsory process; authority of the State means:

(a) a Minister of the Crown; or (b) a statutory body representing the Crown; or (c) a local government council or county council; or (d) any other authority authorised to acquire land by compulsory process;

acquisition of land means an acquisition of land or of any interest in land;

37. The meaning of the relative clause (qualifying the expression "interest in land") "which is divested, extinguished or diminished by an acquisition notice" is explained and amplified by the combined operation of s 19(1) and 20(1) which respectively provide as follows— 19. (1) An authority of the State that is authorised to acquire land by compulsory process may, with the approval of the Governor, declare, by notice published in the Gazette, that any land described in the notice is acquired by compulsory process. 20. (1) On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act:

(a) vested in the authority of the State acquiring the land; and (b) freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land.

38. It is only when s 37 is read in the light of the foregoing relevant definitions and amplifying provisions that its full scope and ambit can be readily appreciated. It converts into a claim for compensation an interest in land that has been divested or extinguished by a compulsory acquisition notice.

39. Section 39(1) provides that "a person who wishes to claim compensation under this Act must lodge a claim in accordance with this section with the authority of the state that is acquiring the land concerned".

40. Section 46 which has already been recited and which is relied upon by the Applicant contains provisions for the lodging of a claim for compensation by a person who has not been given a compensation notice under ss 42 and 43.

41. Sections 54 and 55 prescribe the basis for the determination of "just compensation" to which a person is entitled. Section 54(1) and s 55 are in the following terms: 54. (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of land. 55. In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division):

(a) the market value of the land on the date of its acquisition; (b) any special value of the land to the person on the date of its acquisition; (c) any loss attributable to severance; (d) any loss attributable to disturbance; (e) solatium; (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired. E. QUESTION 1 – WAS THE COMPULSORILY ACQUIRED LAND RELEVANTLY A PUBLIC ROAD AT THE DATE OF COMPULSORY ACQUISITION?

42. The Roads Act 1993 defines a "public road" to mean— (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law; and (b) any road that is declared to be a public road for the purposes of this Act

43. Although it is not suggested that School Street was opened or dedicated under the Roads Act, it is instructive to note some features of that Act.

44. The Roads Act, Pt 2 is concerned with the "opening of public roads". Section 8 dealing with the "opening of public roads" provides as follows: (1) A public road may not be opened otherwise than in accordance with the provisions of this or some other Act (2) This section does not bind the Crown

45. Section 9 provides for the creation of a public road by registration of a plan of subdivision or other plan that "bears a statement of intention to dedicate specified land as a public road".

46. Section 10 provides for the creation of a public road by notice published in the Gazette by a council or the Roads and Traffic Authority holding the land.

47. Other provisions empower the Minister and the Governor to take action to create a public road by notice published in the Gazette: vide ss 11, 12 and 13.

48. Section 16 empowers a Council by notification published in the Gazette to dedicate certain land as a public road where that land had been set aside for the purposes of a road and left in a subdivision of land effected before 1 January 1907 (when the Local Government Act 1906 commenced).

49. The Roads Act, Pt 4 is concerned with the "closing of public roads". It provides a procedure whereby the Minister or in certain cases the Roads and Traffic Authority may, by notice published in the Gazette close a public road.

50. The consequences of the publication of such a notice are that the road ceases to be a public road and "the rights of passage and access that previously existed in relation to the road are extinguished": s 38(1). (Such rights of passage and of access are defined by ss 5 and 6 respectively).

51. Section 41 which comprises by itself a separate division (Div 3) of Pt 2 provides as follows: A public road that is compulsorily acquired under this or any other Act or law ceases to be a public road as a consequence of its compulsory acquisition

52. This is a particular provision with respect to land compulsorily acquired which is a public road, and its more general equivalent is expressed in the Just Terms Act, s 20(1) declaring that upon compulsory acquisition, the land is by force of the Act, vested in the relevant authority of the State "freed and discharged from all…..dedications….in, over or in connection with the land".

53. That this is the clear effect of compulsory acquisition under the Just Terms Act of land that is a public road in terms of the Roads Act cannot be doubted, with the relevant current legislation adopting the effect of earlier resumption powers conferred by the NSW Public Works Act 1900 as interpreted by the High Court in Chief Commissioner for Railways and Tramways NSW v Attorney General for NSW (1909) 9CLR 547 (a case involving the meaning of s 80 of the Act which is now enacted as the Public Works Act 1912, s 87) where the Court held that the resumption power applied to land which was a public road and had the effect of discharging the dedication of the road.

54. In the words of Isaacs J The resumption was complete—the highways absolutely gone….. (at 564) and ….resumption being completed with all its effects, including the obliteration of the highways….he (the Constructing Authority) could not obstruct a road because at the instant the road became his, the road was effaced (at 565).

55. Two further provisions of the Roads Act relevant to the present case may be noted.

56. Section 145(3) vests in fee simple in the "appropriate roads authority" all public roads within a local government area (other than freeways and Crown Roads). Section 7 of the Act which declares who are "roads authorities" includes subsection (4) which provides: The council of a local government area is the roads authority for all public roads within the area other than: (a) any freeway or Crown road; and (b) any public road for which some other public authority is declared by the regulations to be the roads authority

57. Section 204 provides as follows: (1) A council is entitled to compensation under this Division for a public road owned by the council that is acquired by the Crown by compulsory process. (2) The provisions of this Division apply in substitution for the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 with respect to compensation.

58. Section 205 prescribes the amount of compensation payable in cases "where it is necessary for the council to construct a new public road to replace an existing road that has been acquired by the Crown by compulsory process".

59. Section 206 prescribes the amount of compensation "except where it is necessary for the council to construct a new public road to replace an existing public road that has been acquired by the Crown by compulsory process".

60. Finally, reference should be made to the Roads Act, s 249 which provides as follows: (1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road. (2) This section is subject to section 178 of the Conveyancing Act 1919 (No way by user against Crown etc).

61. The evidence contained in the Applicant's affidavit sworn in the proceedings and in the affidavit of registered surveyor John Reid, sworn 24 April 2001, together with a number of the agreed facts recited in par 20 clearly is admissible evidence, for the purposes of that section, that the compulsorily acquired land was a public road at the date of compulsory acquisition.

62. This evidence is corroborated by what I have earlier referred to as the documentary evidence of recent dealings with School Street leading up to its compulsory acquisition and the subsequent action of the Respondent in paying compensation to the Leichhardt Council, as the registered proprietor under the Roads Act, of the compulsorily acquired land.

63. In my judgment, this evidence is sufficient of itself to justify a finding that the compulsorily acquired land, known as School Street, was a public road at the date of compulsory acquisition with the consequence that the tracing back to the 1870s to ascertain the origins of the creation of the lanes and thereafter tracing their history has not been strictly necessary to establish the fact that the compulsorily acquired land was relevantly a public road at the date of compulsory acquisition.

64. Notwithstanding my views of the sufficiency of the evidence of recent events concerning School Street, I shall consider the competing arguments based upon what this historical excursus back to the origins in 1875 of the creation of the lanes has revealed in terms of their acquiring the legal status of a public road.

65. If this consideration leads to the conclusion that School Street was continuously from the beginning of its existence or early in its history, relevantly a public road, it remains to consider the Respondent's argument that the Applicant's land did not abut School Street because of its assertion of the continuing existence of the one foot wide reservation running the length of the lanes on their southern boundary, created in 1875 when the lanes were themselves created.

66. In considering the competing arguments on the question whether School Street from its inception was a public road, it is first necessary to note the undisputed conveyancing details concerning the land that became School Street, and thereafter to consider what were the requirements of the then prevailing law for the opening or dedication of a public road and whether they were satisfied in the case of School Street.

67. The conveyancing details are not in dispute and can be briefly summarised as follows (reflecting the assistance that I have derived from the evidence of registered surveyor Mr Reid and also of Mr Ronald Smith, a land title searcher):

(i) The land was included in the Crown Grant dated 26 April 1800 granting 550 acres to William Balmain.

(ii) The land was included in part of Gilchrist's Subdivision of 1836. (iii) By the will of Elizabeth Burnside, land was devised to Annie Hendren, William Hendren and John Jenkins who, being desirous of selling the land, caused it to be subdivided into 15 lots by which they closed off an existing lane bisecting proposed lots 3 to 13 inclusive, such lane being a prolongation of a lane commencing at the intersection of the land with Nicholson Street, and instead created two separate lanes connected to the existing lane at the Nicholson Street frontage with a dog leg formation and adjoining the southern boundaries of the lots. A copy of the subdivision plan is annexed hereto and marked "B". (iv) These two separate lanes were conveyed to Thomas Kendal Bowden by Indenture dated 15 March 1875 No 122 Book 150 "upon trust to permit the two parcels to be used as lanes for the benefit of the parties hereto and of the owners and occupiers for the time being of the said lots 1 to 15 both inclusive on the said land".

The Indenture noted that there was a one foot wide reserve running along part of the south-east boundary of the land devised by the Burnside will " having been reserved from sale by the clauses under that will so as to prevent adjoining owners from having a right to come upon the lanes intended to be opened by these presents ".

The Indenture declared that all of the parties thereto and the owners and occupiers of the said lots 1 to 15 and also of the said reserve are "with and without carts, horses etc" to have and enjoy a free and unrestricted right of way over the said lanes. (v) By conveyance dated 7 June 1875, No 769 Book 160, the land contained in the aforesaid lots 1 to 15 was conveyed to John Bennett, together with free and uninterrupted right of way or passage "in common with other persons having similar rights through and over a certain lane, fifteen feet wide on the boundary of the land hereto conveyed…."; (vi) By conveyance dated 7 July 1876, No 812 Book 160, the said land that had been conveyed to John Bennett was conveyed to the Council of Education incorporated by Act 30 Victoria XXII, together with all rights of way parcels passages….easements and appurtenances; (vii) Except for Real Property Act Primary Application 19038 involving land (including that which has become the Applicant's land) situate to south of School Street, there is no known dealing with the land comprising either the lanes or the one foot wide reserve created in 1875. Primary Application 19038 concerned a parcel of land having an area of one rood 37 1/2 parches situate in School Street and Little's Avenue (now known as Brett Avenue). The Supervising Surveyor's Report on the Primary Application included the following relevant paragraphs— School Street Applicant's deeds prior to deed registered Book 986, No. 629 not entitle her to a frontage to School Street . The site of such street comprises part of the 1 acre o rd. 2 perches W. Burnicle's land on the North comprised in deed registered Book R. No. 192. It was formerly known as Smith's Lane and is shown on the Reference Map of Balmain, D.S.20 (Balmain) and Application Plans in the vicinity. 1 foot Reserve By the Subdivision of the 1 acre 0 rd 2 perches Burnicle's land on the North West of subject land a new lane 15 feet wide and a 1 foot reserve along the South Eastern boundary of such lane is provided. Such new lane is apparently now School Street shewn on plan herein, but it is not clear that the site of the reserve referred to is absorbed in School Street or by subject land. The Surveyor is, however, being asked to state if the fence along the North Western boundary of subject land is in his opinion identical with the fence along the South Eastern boundary of Burnicle's land referred to in deed registered Book R. No. 192. In order to settle this question, it is suggested to the Examiners that it appears necessary that evidence as to whether this fence has been removed should be supplied.

68. Against the Supervising Surveyor's Report concerning "1 foot Reserve", there is an endorsement apparently made later by an Examiner of Title as follows: Surveyor states (vide Sh 6 of correspondence) that the fencing is very long standing and can be the fence along the S E boundary of subdivision of Bunicles' land .

69. The Primary Application was thereafter approved and registered, with the land, the subject of that application, being shown in FP 69038 which depicts School Street abutting the northern boundary of the land.

70. Registered Surveyor John Reid expresses the following conclusion on this matter in his Report (Exhibit 7) which I accept: The indenture No. 122 Book 150 indexed 5 particularly states that the parcels edged blue and pink are sold to Thomas Kendal Bowden to be possessed of the parcels upon trust to be used as lanes for the benefit of the parties to the indenture and of the owners and occupiers for the time being of the 15 subdivided allotments of Burnicle's land. A one foot reserve is particularly identified to prevent other adjoining owners from having a right to come upon the said lanes. The Supervising Surveyor's Report for application 19038 however particularly addressed the right of frontage to land known School Street. This document indicates that the 1 foot reserve is absorbed in School Street and finds no reason that School Street cannot be shown as an abuttal to the land the subject of the application. This is evidenced by the registration of DP 69038 without any amendment to the depiction of School Street as an abuttal to the said land.

71. Upon the basis of the foregoing conveyancing details, combined with the documentary materials concerning the dealings with the lands by the Council of Balmain, the following findings may be made on the balance of probabilities— (i) The land known as School Street comprises the lands coloured yellow and red (pink) and part of the land coloured blue in the Indenture No 122 Book 150 dated 15 March 1875, being in each case the new lanes created in substitution for the closed lane and the one foot wide Reserve. (ii) The interest of the Council of Education in the lanes was that of the owner of lots 1 to 15 being entitled to use the lanes as a right-of-way appurtenant to its ownership of lots 1 to 15. (iii) That interest of the Council of Education (and its lawful successor, the Minister, after the enactment of the Public Instruction Act 1880) was effectively eclipsed or translated when the lanes began to be used as a road for which the Balmain Council had assumed responsibility, presumably under the Municipality Act 1857 as early as 1881 (and possibly earlier). According to the extracts of the Leichhardt Historical Journal No 12 annexed to Mr Reid's Report (Exhibit 7), the following statement is made at p 15 in the context of discussion of the development of the Nicholson Street Public School (which was opened in 1883): Fortunately the 1876 idea of siting the building to face School Street (Smith's Lane) had been abandoned by the time that Kemp was directed to design the school.

which reinforces the idea that the right-of-way which had been created to provide access to the 15 lots created by the 1875 subdivision was not relevant to the development of the school which involved an amalgamation of the 15 lots into the single school site (also involving lands fronting Nicholson Street).

72. Do the foregoing findings support an ultimate finding that School Street was relevantly opened or dedicated as a public road?

73. In his judgment in Newington v Windeyer (1985) 3 NSWLR 555, McHugh JA who gave the leading judgment in the Court of Appeal was concerned with the question whether land ("The Grove") over which a private dispute had arisen was a public road.

74. His Honour's judgment in particular considered the question of whether the Grove had become a public road before the commencement of the Local Government Act 1906 (which had required for the first time the approval of the local council for the opening of a public road). The appellant's case was that the Grove was a public road by virtue of either the relevant common law doctrine or alternatively the Police Offences Act 1901, s 49.

75. As to the position at common law, McHugh JA at 558/559 stated the following principles: At common law the making of a public road required the fulfilment of two conditions an intention to dedicate the land as a public road and an acceptance by the public of the proffered dedication: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council 1960) 105 CLR 401 at 401 at 420; Pratt and McKenzie, Law of Highways, 21st ed (1967) at 16. The dedication could be made expressly or be inferred from the conduct of the owner. The lodging of a plan of subdivision in a Land Titles Office, showing a road as an open street and giving access to subdivided lots, is evidence from which an inference of dedication as a public road can be drawn: Attorney-General v City Bank of Sydney 1920) 20 SR (NSW) 216 at 221; 37 WN 51 at 53; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 412, 415, 422). When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that it was dedicated as a public road unless access to the road is prevented by fencing or other action: Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (at 415) per Menzies J. In an appropriate case, the contents of leases, plans of subdivision, and maps, although not public documents, may, nevertheless, allow an inference of dedication to be drawn. Dedication to the public may also be presumed from uninterrupted user of the road by the public: Turner v Walsh (1881) 6 App Cas 636 at 639, 641; Folkestone Corporation v Brockman [1914] AC 338 at 352, 362. But care must be taken to distinguish evidence of user, from which dedication can properly be inferred, from mere evidence of continual use even for a very long period. At common law, continual trespassing could not create a public road. The evidence must raise the inference that, at some point of time, the owner dedicated the road to the public.

76. As to the position under the Police Offences Act 1901, McHugh JA stated the following principles at 561/562: Moreover, the general rule that a lessor is not usually bound by his lessee's intention to dedicate has little, if any, relevance in New South Wales. In 1838 the Police Towns Act , 2 Vic No 2, was passed. The relevant part of s 47 provided:

….provided also that all land which shall have been at the time of the publication of the general objects of this Act in the New South Wales Government Gazette or shall hereafter be left open and used as a carriage or footway within any of the towns aforesaid as well as all land which has been or shall hereafter be formed into a street within any of the said towns at the public expense shall be deemed and taken to be dedicated to the public and shall not be fenced in or reserved on any pretence whatsoever but shall be subject to all such and the like regulations orders powers authorities and provisions to which land used as a public thoroughfare now is or hereafter shall be subject by law….

The provisions of this section were substantially re-enacted by the Police Offences Act 1901, s 49. After the passing of the Act of 1838, an intention to dedicate was no longer necessary since the road was deemed and taken to be dedicated to the public if it was left open and used as a carriage or footway. If a road was allowed to be used by the public, it became a public road whether or not there was an actual intention to dedicate the road to the public. If a lessee left open a road, the lessor would be bound by the operation of the section. I do not think that it is correct to treat the expression left open as equivalent to was open as a road. The expression left open in this context seems to connote the occupier allowing other persons, without discrimination, to use the land as a road. The words used as a carriage or footway within any of the towns support this interpretation. They seem to be a reflection of two of Coke's threefold classification of the highways over which the public have rights: see Co lit (at 56). Further support for interpreting left open as allowed to be used by the public is given by that part of the section which applies the laws relating to land used as a public thoroughfare to any land left open and used as a carriage or footway within any of the towns. Accordingly, in my opinion the owners of The Grove would be bound by an act of their lessee (sublessor) dedicating the land to the public as a road or allowing it to be used by the public as a carriage or footway. Any relevant intention to dedicate, however, had to be in existence before 1906 since, after that date, a public road could only be opened with the approval of the local council.

77. In my judgment, the findings that I have so far made support an ultimate finding that School Street was opened or dedicated as a public road in fulfilment of the two common law requirements for the creation of a public road, namely (i) intention to dedicate the land as a public road; and (ii) acceptance by the public of the proffered dedication. Satisfaction of the first mentioned requirement in my judgment, is secured by application of the presumption of dedication from uninterrupted use of the road by the public.

78. Moreover, the operation of the Police Towns Act 1838, s 47 deems land to be dedicated to the public provided that it fulfils either of the stipulated statutory conditions of (i) "being left open and used as a carriageway or footway within any of the towns…."or (ii) "being land which is formed into a street…..at public expense".

79. Accordingly, I find that School Street was created a public road by satisfying the two conditions required by the common law or alternatively, by virtue of satisfying both the conditions stipulated in the Police Towns Act 1838.

80. The Respondent's arguments against these conclusions are twofold. Its first argument is founded upon the provisions of the Conveyancing Act 1919, s 178 (and its legislative antecedents dating back to the Statute of 1881) which is in the following terms: 178. No dedication or grant of a way shall be presumed or allowed to be asserted or established as against—

(a) the Crown; or (b)persons holding lands in trust for any public purposes, by reason only of user, and this whether in proceedings instituted by or on behalf of the Crown or not, and whether such user commenced before or after the eighteenth day of October, one thousand eight hundred and sixty-one (being the day of the commencement of the Crown Lands Alienation Act of 1861).

81. This argument was extended to deny any application to the present case of the Police Towns Act 1838 (or its successor the Police Offences Act 1901) upon the ground that the Conveyancing Act, s 178 (and its legislative antecedents) were later statutes than the other statutes and prevailed over them in the event of any inconsistency between their respective operations.

82. In my judgment, the Respondent's reliance upon the Conveyancing Act, s 178 (and its legislative antecedents) to avoid a finding that School Street had become a public road either by virtue of the common law or by virtue of the Police Towns Act 1838 is unavailing. My reasons for so concluding are as follows:

(i) The Conveyancing Act , s 178 operates to protect the interest of the Crown in its lands. In the present case, the lands comprising School Street were not owned by the Crown, the only interest in the lanes being that of the owner of the dominant tenement (lots 1 to 15) to which was appurtenant the right of way over the lanes. It is user of the lands owned by the Crown, and not the interference with an interest in the lands by virtue of a right-of-way existing over that land that may enliven the relevant presumption. Accordingly, the section simply does not apply to the present case. (ii) If, contrary to what I have held, s 178 is capable of applying to the facts of the present case, and assuming the Respondent is correct in saying that it prevails, because it is the later statute, over any inconsistent operation of the Police Towns Act, it does not exclude the entire operation of that Act which deems land to be dedicated to the public, not only when "it is left open and used as a carriageway or footway" but additionally "when land is formed into a street within any of the said towns at the public expense". In particular, s 178 does not override the operation of the earlier Act in respect of the second mentioned circumstance. Accordingly, even assuming (in favour of the Respondent's argument) that the Conveyancing Act, s 178 operates in the present case to preclude the application of the presumption of dedication by virtue of the user of the road by the public, it does not operate to exclude the deemed dedication prescribed by s 47 of the Police Towns Act 1838 by virtue of School Street "being formed into a street at the public expense". The documentary evidence adduced by the Applicant satisfies me on the balance of probabilities that the assumption of responsibility for School Street by the Balmain Council involved the Council in the formation of the road at public expense: see the Municipalities Act 1867, s 117 and the Municipalities Act 1897, s 175 vesting in local councils the care, construction and management of public roads in their areas.

83. In so concluding, I would also reject the Respondent's second argument that the Police Towns Act 1838, s 47 did not relevantly apply to the municipality of Balmain (being a submission that does not question that there were publications in 1861 and 1865 of proclamations extending the provisions of the Act to Balmain) but rather, one that proffers an interpretation of the Act that suggests that the extending proclamations did not apply to the additional towns, the provisions of ss 43 to 47 incl. of the Act. In proffering that interpretation, the Respondent has been forced to submit that the "ratio of Newington is based upon an inaccurate understanding of the effect of the 1838 statute".

84. With respect to the Respondent's submission, I do not feel free to place such a bold gloss on the Court of Appeal's decision in Newington, (which was followed in the later Court of Appeal decision in Tomark Pty Ltd v Bellevue Crescent Pty Ltd (1999) NSWCA 347) but in any event, I do not accept the Respondent's argument, which it freely concedes cannot in any event be applied to the Police Offences Act 1901, s 49 which the Respondent concedes clearly applies to the list of scheduled towns (including Balmain).

85. The Respondent's reliance upon the decision of the Full Court of the Supreme Court in Jackson v Rudd (1895) 2WN 15 does not, in my opinion, support the Respondent's contention that the Conveyancing Act, s 178 (and its legislative antecedents) applies in respect of land, not owned by the Crown, and hence not Crown land, but in respect of which the Crown enjoys only a right of way. In Rudd's case, the land was relevantly Crown land held under a Crown lease. Here, there is no suggestion that School Street was at the relevant time, Crown land or otherwise owned by the Crown.

86. The other case relied upon by the Respondent is the decision of the English Court of Appeal in Farquhar v Newbury Rural Council (1909) 1 Ch 12 where it was held that land the subject of a life tenancy with the fee simple held in remainder, might be relevantly dedicated as a public highway provided that it was the intention of both life tenant and remainderman to dedicate.

87. This case was relied upon in support of the Respondent's submission that in order for there to be a dedication of School Street it was necessary for both the owner of the land comprising the lanes and the Crown as entitled to a right of way over the lanes to agree or acquiesce in the dedication. Even if the Respondent's submission were correct (and the circumstances of the present case are very different from the life tenant and remainderman situation that applied in Farquhar's case), it is still open to conclude that the relevant intention to dedicate was formed.

88. As is illustrated by the Court's finding in Farquhar, it is possible in the present case to infer from all the circumstances, a relevant acquiescence on the part of both the owner of the fee simple and the Respondent's predecessor in respect of its interest in the right of way in the creation of School Street as a public road. This is more particularly likely to be the case where at the very time that School Street came into existence (about 1881), the Respondent's predecessor in title was developing the Nicholson Street Public School (which was opened in 1883). The coincidence of the timing of these two developments makes it more probable than not the Respondent's predecessor in title of the school site acquiesced in the creation of School Street as a public road, for if it had been opposed to the creation of School Street as a public road, it surely would have asserted its rights.

89. But it is at this very point that there is an air of unreality in the Respondent's submission, inasmuch as is it seriously to be supposed that the Respondent's predecessor in title responsible for developing the Nicholson Street Public School, at the very same time that School Street came into existence would be heard to complain that instead of only enjoying a private right of way over the lanes it now would have the benefit of a public road if that was relevant to the use of the School. It is extremely difficult to conceive of any detriment being suffered by the Respondent's predecessor by the translation of a private right of way into the creation of a public road, for which the Balmain Council had assumed responsibility.

90. Thus, if the public road status of School Street were dependent upon the existence of an intention on the part of the owner of the lanes to dedicate them as a public road, the known facts of this case would support a finding that there was a relevant intention (including that of the Respondent's predecessor in title, insofar as it enjoyed the benefit of a right of way over the lanes). However, as I have earlier held, the requisite intention to dedicate may be inferred from the long continuous user by the public of School Street, and independently a deemed dedication is provided for by s 47 of the Police Towns Act 1838 (re-enacted as s 49 of the Police Offences Act 1901). Whatever analysis of relevant laws is applied to the known facts concerning School Street, the conclusion that it had become a public road, very early in its existence, is very surely secured and justified.

91. For all the foregoing reasons, the Respondent's reliance upon the decisions in Rudd and Farquhar do not assist the Respondent's argument that School Street was not created as a public road.

92. Accordingly and for all of the foregoing reasons, I find that School Street had become a public road before the end of the 19th century (and probably as early as 1881) and that status continued until the compulsory acquisition of the land in 1999.

93. This leaves as the remaining question whether School Street relevantly abutted the Applicant's land so that the Applicant, upon purchase of his land in August 1998 became the owner of land adjoining a public road.

94. In my judgment, the Respondent's argument must be firmly rejected. In seeking to subvert and go behind the Registrar General's approval of the 1912 Primary Application No 19038 which was registered under the Real Property Act 1900 in 1914, in its attempt to resurrect the "one foot reserve" separating the laneways as created by the 1875 Indenture from the lands situate to the south, the Respondent is seeking to re-write history which has been well and truly settled for at least the past 85 years.

95. Although Mr Smith (the land titles searcher) states the following opinion (par 14 of his affidavit sworn 6 September 2001): Although not noted on the present title, the 1 foot Reserve that appears on Sketch 14404 does not appear to have ever been surrendered or extinguished prior to the compulsory acquisition of lot 12 DP 879298 by the Minister of Education and Training.

I prefer the competing opinion of Mr Reid, Registered Surveyor, that I have earlier recited and accepted.

96. Since at least the approval in 1914 for the 1912 Primary Application made in respect of lands having a common boundary with School Street, School Street has abutted lands (including the Applicant's land) and has been consistently so shown in several subsequent plans deposited, and registered by the Registrar General.

97. Except for the Respondent's argument in the present case, there is no suggestion or evidence of any person asserting ownership in, or title to, the one foot wide Reserve since it was created in 1875. As I have earlier found, as a matter of probability, School Street, as a public road had long ago (and probably well before the 1912 Primary Application was made and approved in 1914) included within its extent, the one foot Reserve.

98. For all the foregoing reasons, I conclude that at the date of compulsory acquisition, the compulsorily acquired land was a public road which abutted the northern boundary (some 30 metres in length) to the Applicant's land. F. QUESTION 2 – DOES THE APPLICANT HAVE A COMPENSABLE INTEREST?

99. Having determined, in answer to the first question, that the compulsorily acquired land was relevantly a public road immediately prior to its compulsory acquisition, the present question is premised upon that answer.

100. In this respect, it is not in dispute that immediately prior to the compulsory acquisition the Applicant, as the owner of land adjoining that public road, had a private right of access between his land and the adjoining road. This right of access has long been recognised at common law. Additionally, it is now recognised by statute, the Roads Act 1993, s 6 providing as follows: (1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. (2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.

101. By virtue of s 6(2), this statutory entitlement is additional to the common law right but both the statutory and common law right or entitlement are declared to be "subject to such restrictions as are imposed by or under this or any other Act or law". Although I shall presently return to consider other relevant provisions of the Roads Act, I should at once note that it has not been suggested in the present case that there is any relevant derogation from the statutory and common law rights of access vested in the owner of land adjoining a public road.

102. The relevant common law right is defined and discussed in the following passage from the judgment of Clarke JA (with which Samuels & Meagher JJA agreed) in Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 at 108/109: It is an established principle of the common law that the owner of land adjoining a highway has a right of access to the highway from any part of his premises. The statement by Lord Atkin in his speech in Marshall v Blackpool Corporation [1935] AC 16 at 22, is generally accepted as expressing this common law principle. His Lordship said:

…The owner of land adjoining a highway has a right of access to the highway from any part of his premises….The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.

It is important to emphasise that the right is one of access to the highway. It is a private right enjoyed by the owner of the land which adjoins the highway. It is, however, to be distinguished from the public right which every member of the public enjoys to pass, subject to any special statutory provisions, along the highway. This distinction, which may be difficult to grasp, was expressed in terms which are now regarded as authoritative by Page Wood V-C in Attorney-General v Thames Conservators (1862) 1 H & M 1 at 32-33; 71 ER at 15:

Independently of the authorities, it appears to me quite clear, that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties when an attempt is made to define the right as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right.

At a later point in the judgment the Vice-Chancellor, who was dealing with a case involving access to a wharf, proceeded (at 33; 15):

….But, in truth, the access is not blocked up. The wharf will not be as readily and easily approached, and perhaps not at all by the same route; but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access.

As Buckley J commented in W H Chaplin & Co Ltd v Westminster Corporation [1901] 2 Ch 329 at 334-335:

….There you have the two things contrasted — the right of stepping from the private property onto the highway, or from the highway on to the private property, and the right of use of the highway in proximity to the private property.

The general principle and this distinction between the two rights are discussed in detail in Fuller v MacLeod [1981] 1 NZLR 390 at 399; Walsh v Ervin [1952] VLR 361; Toronto Transportation Commission v Swansea Village Corporation [1935] SCR 455 at 457; [1935] 3 DLR 619 at 620; Halsbury's Laws of England, vol 21, 4th ed, par 120 at 83, and Pratt and Mackenzie's Law of Highways, 21st ed , (1967) at 58-59.

103. Where the parties' competing contentions diverge is on the question whether this statutory and common law right of access was relevantly an "interest in land" within the meaning of the Just Terms Act at the date of compulsory acquisition.

104. On this question the Applicant relies upon the obvious breadth of the Act's definition of "interest in land" and especially the words of par (b) "….right….over, or in connection with, the land".

105. Particular reliance is placed upon the analysis and description of the right of access contained in the judgment of Sholl J of the Victorian Supreme Court in Walsh v Ervin (1952) VLR 361 where his Honour said at 362 and 363 respectively: The plaintiff as the owner of freehold land adjoining the road, which was and is a public highway, had and has a right (subject to any statutory interference therewith) to free and uninterrupted access to the highway from any point on his land contiguous with the highway, and from the highway to any point on his land contiguous therewith. This is a private right, which the plaintiff enjoys as an adjoining landowner. …….. These authorities in my opinion make it clear that the right of access is a private right of property.

106. That decision was cited with approval by Sugerman J in Owen v O'Connor (1963) 9 LGRA 159 at 179 et seq.

107. The Respondent's competing argument is to the effect that the statutory and common law right of access vested in the owner of land adjoining a public road was not a right of a "proprietary or quasi-proprietary" kind and that the decision of the Court of Appeal in Hornsby Council v Roads and Traffic Authority (1997) 41 NSWLR 151 compelled a decision that the Applicant's claim did not establish a relevant "interest in land". In further support of this submission, the Respondent relied upon the terms of s 6(2) of the Roads Act which recognised the possibility of the frontager's right of access to the public road being cut down or curtailed.

108. Next, it was submitted by the Respondent that the statutory and common law right of a frontager to access a public road was akin to the right of the public to "pass and repass" along the public road in respect of the loss of which, by virtue of compulsory acquisition, the Just Terms Act provided no basis for compensation to be paid. Here, reliance was placed upon the judgment of Windeyer J in Commissioner of Main Roads v North Shore Gas Company (1967) 120 CLR 118 at 131 where his Honour (speaking of the relevant provisions of the Public Works Act 1912 for the resumption of land) said: If a road be resumed, members of the public who were wont to travel to and fro along it are no longer at liberty to do so, but they cannot claim compensation on the basis of having lost an interest in land.

109. Somewhat curiously, the Respondent, in its supplementary written submissions urged that "a distinction must be drawn between the right to step onto the highway and the right thereafter to pass along it". Here, reliance was placed upon the decision of Buckley J in W H Chaplin and Co Ltd v Mayor of City of Westminster (1901) 2Ch 329.

110. However, if this submission indicated an abandonment of the earlier heterodox submission that the relevant statutory or common law right of access was "akin to the public right of passage along a public road", the two submissions appeared to merge in the Respondent's final submission "that once the step is taken over the boundary, the right the owner of adjoining land enjoys is no different from, or more exclusive than the right of any member of the public". But this submission does not 'alter the character of the right of access" vested in the adjoining land owner as is emphasised in the passage from the judgment of the Vice Chancellor in the Thames Conservators case which is quoted in Rovili.

111. Finally, it was submitted by the Respondent that "the authorities, at best, support the proposition that the right of an adjoining owner to access a public road is a private right attaching to and effective in respect to the adjoining land, not the road itself. If this means that it amounts to an interest in land (which is far from being conceded) the interest attaches to land which was not the subject of acquisition and hence no right to compensation arises under s 37 of the Just Terms Act".

112. In my judgement (i) the statutory right of access conferred by the Roads Act, s 6(1) upon the owner of land adjoining a public road; and (ii) the allied or equivalent common law right (which rights have not been shown to be subject to restrictions imposed by or under that or any other Act or law) that was vested in the Applicant in respect of the compulsorily acquired land immediately prior to its compulsory acquisition, relevantly constitutes an "interest in land" within the meaning of the Just Terms Act. That interest relevantly was "divested,, extinguished or diminished" by the compulsory acquisition notice published in the Government Gazette on 22 January 1999 (vide s 19(1) and 20(1) of the Just Terms Act) with the consequence that the Applicant, as owner of that interest, is entitled to be paid compensation pursuant to the Just Terms Act, s 37.

113. In so concluding, I would hold that statutory and common law right of access to the public road to be relevantly "a right….over, or in connection with" the compulsorily acquired land within par (b) of the statutory definition of "interest in land", being a "proprietary or quasi proprietary right" in the nature of an "easement" which satisfies the test or approach adopted by Meagher JA in the following passage at 155 from the leading judgment in Court of Appeal's decision in Hornsby Council v Roads and Traffic Authority: (1997) 41 NSWLR 151: The sole, rather glancing, connection between the appellant and the land was that the Council had the care, management and control of the land under s 344 of the Local Government Act 1919, and after the repeal of that Act, had control of the land under s 48 of the Local Government Act 1993. Can such a right be the sort of right which is referred to in limb (b) of the definition of interest ? His Honour held it could not, and I think he was right. Mr Tobias QC, learned senior counsel for the appellant, submitted that the words of par (b) were extraordinarily wide and should be interpreted literally. However, this could not possibly be correct. In a sense every member of the public has a right over the land in question: he can go on it and have a picnic. But it was hardly intended that he could claim compensation on a resumption. If it were, the machinery of notifying holder of interests would extend to infinity. Some limitation must be placed on the words. Whilst the rights which fall within par (b) must be wider than the rights which fall within par (a), I feel that they must be limited to jura in re aliena, proprietary or quasi-proprietary rights less than a fully-fledged estate, that is, easements, charges, profits a predre, profits a rendre, licences coupled with interests, etc.

114. The analogy of the relevant statutory and common law right of access to the public road that I have suggested with an "easement" is, I think, apt and fully answers the Respondent's submission that the statutory and common law right of access to a public road only attaches to the adjoining land, but not to the road (being the compulsorily acquired land).

115. In my judgment, that submission is misconceived inasmuch as it artificially concentrates attention exclusively upon the land to which the "easement" (or in this case, the statutory and common law right of access) is appurtenant ie the dominant tenement (or the adjoining land) without also fairly recognising that there is obviously to be brought into account the land burdened by the easement (or in this case, the statutory and common law right of access) namely, the servient tenement in the case of an easement and the public road in the case of the statutory and common law right of access in favour of the owner of adjoining land.

116. In a case where land, which is compulsorily acquired under the Just Terms Act, was at that time relevantly burdened by an easement appurtenant to other land, any suggestion that the owner of the easement, which is extinguished by the compulsory acquisition, would not be entitled to claim compensation under the Act for the loss of that easement, would be patently unsustainable. The suggestion would not gain any further strength by the submission that was advanced by the Respondent in the present case that no land of the claimant had been compulsorily acquired. The complete answer to such a submission would be that the claimant had an "interest over or in connection with the compulsorily acquired land", namely the right conferred by the easement. By parity of reasoning, here the Applicant can likewise properly say of the compulsorily acquired land: The compulsory acquisition has deprived me of my right of access over or in connection with the public road as the owner of the adjoining land.

117. The Applicant relied upon the decision in Lake Macquarie City Council v Luka (1999) 106 LGERA 94 where the Court of Appeal held at 103 that a compulsory acquisition of land (comprising a network of private subdivisional roads) under the Just Terms Act had extinguished private rights of way over those roads which had been created in accordance with the decision of the High Court in Dabbs v Seaman (1925) 36 CLR 538 and that in consequence of the resumption those rights of way were converted into claims for compensation.

118. Earlier, at 98 the Court of Appeal had described those rights of way as follows: Little v Dardier (1891) 12 LR (NSW) (Eq) 319 established that a transfer of land under the Real Property Act 1900 (NSW) described by words or a plan as bounded by a street which was owned by the transferor created an easement or private right-of-way over that street in favour of the transferee. This was confirmed in Dabbs v Seaman (1925) 36 CLR 538, where the transfer showed the land bounded by a lane, and is settled law: see Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council (1960) 105 CLR 401 at 422; 6 LGRA 340 at 354 per Windeyer J (the Campbelltown case). The private rights-of-way must extend to other private roads or lanes in the subdivision owned by the transferor which gave access to public roads. Windeyer J suggested, in the passage referred to, that the right-of-way may extend to all roads and lanes in the subdivision, and this seems to be correct. The description of the lots transferred by the Caledonian Coal Co Ltd in the memorials of transfer endorsed on the original certificate of title volume 1548 folio 88 issued in 1904, and on the subsequent certificate of title volume 1829 folio 106 issued in 1907, by reference to lot numbers in DP 4339, included not only the common boundaries of the lots with the adjoining roads and lanes but the place of those roads and lanes in the grid shown in the plan. The transfers therefore created private rights-of-way in favour of each transferee over all the roads and lanes in the deposited plan.

119. The reasoning of the decision in Luka is applicable analogically to the circumstances of the present case and justify the conclusion that the Applicant's statutory and common law right of access to and from the public road was divested or extinguished by the compulsory acquisition of that road, which converted the Applicant's interest, so divested or extinguished ,into a claim for compensation pursuant to the Just Terms Act, s 37.

120. In leaving this question, I should note that I have considered the Respondent's submission based upon the discussion at pars 73.2 and 73.3 in Marcus Jacobs' "The Law of Resumption and Compensation in Australia" (1998) where the learned author discusses the doctrine of "injurious affection" and the concept of "inverse condemnation" particularly in the light of the discussion of this topic in the Australian Law Reform Commission's Report on Lands Acquisition and Compensation (Report No 14 of 1980), noting that subsequent Commonwealth and State legislation on the topic of compulsory land acquisition had not adopted the particular recommendations made in par 326 of the Report to expand the scope of actionable nuisance to include a list of "injurious factors" which list included: restriction or prevention of access between the relevant land and a public road, waterway or seashore.

121. Basing itself on the Law Reform Commission's Report recommendation and the commentary thereon found in Jacobs text the Respondent submitted that "the non-adoption of the recommendation is a clear indication of a legislative intention not to permit claims of the present kind".

122. In my judgment, this submission misconceives the true and only basis asserted for the Applicant's claim to compensation in the present case. It is not a claim for compensation based upon the doctrine of "injurious affection" but it is a claim based upon the extinguishment of a statutory and common law right of access to a public road enjoyed by the owner of adjoining land, which right constitutes an "interest in land" within the meaning of the Just Terms Act.

123. Finally, I would add the observation that it has not been doubted in the present proceedings that the compulsory acquisition had the effect of vesting in the Respondent the compulsorily acquired land "freed and discharged from all estates, interests,….dedications….rights….in, over or in connection with the land": vide the Just Terms Act, s 20(1). That statutory vesting meant that School Street thereupon "ceased to be a public road": vide the Roads Act, s 41. The discharging of the dedication of School Street as a public road and its ceasing to be a public road, also necessarily had the concurrent effect of "divesting, extinguishing or diminishing" the Applicant's statutory and common law right as owner of the adjoining land of access to the public road, such right being relevantly an "interest in land" which is compensable pursuant to the Just Terms Act, s 37.

124. Accordingly, I conclude that the Applicant, at the date of compulsory acquisition had an interest in the compulsorily acquired land that was divested and extinguished by the compulsory acquisition and for which he is entitled to compensation in accordance with the Just Terms Act, s 37. G. CONCLUSIONS AND ORDERS

125. For all of the foregoing reasons, I would answer each of the preliminary questions of law in the affirmative by holding that at the date of compulsory acquisition—

(i) the compulsorily acquired land was relevantly a public road in terms of the Roads Act 1993 ; (ii) the Applicant as the adjoining owner enjoyed a statutory and common law right of access from his land to that public road; and (iii) that right was relevantly an "interest in land" within the meaning of the Land Acquisition (Just Terms Compensation) Act 1991 which was divested and extinguished by the compulsory acquisition of School Street, in respect of which divesting or extinguishment the Applicant is entitled to compensation pursuant to the Just Terms Act, s 37.

126. Accordingly, I make the following orders:

1. Each of the preliminary questions of law is answered in the affirmative. 2. The question of costs is reserved. 3. The exhibits may be returned.

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