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Highway robbery? Adverse possession of roads

Highway robbery? Adverse possession of roads

By Robert Bradley

Real Property 

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While there has been some light shed on the law relating to public highways, it is still unclear when a road can be adversely possessed.

Snapshot

  • The ability to make an adverse possession claim over a road is controversial.
  • The meaning of the word "road" in the Road Management Act remains unclear despite Anderson v City of Stonnington.

The Road Management Act 2004(Vic)(RMA)continues to cause difficulties in relation to the adverse possession of roads created before the commencement of the Subdivision Act 1988.1 The Supreme Court’s decision in Anderson & Anor v City of Stonnington (Anderson)2 and the Court of Appeal’s dismissal of the applicant’s appeal (Anderson 2)3 both shed light on the law relating to public highways and the interpretation of the RMA. However, they do not sufficiently unravel the provisions of the RMA to provide a clear answer to the question, “When can a ‘road’ be adversely possessed?”

The difficulties caused by the RMA are exposed in the adopted policy of one municipal council4 which provides, in effect, that if you can prove exclusive possession of a “road” for more than 15 years, Council will close it and sell it back to you at a price discounted by up to half its value. Given that after 15 years a true adverse possessor has a better title than the whole world,5 paying even half-price is expensive – some might even call it highway robbery.

The difficulties arise because of the deficiencies in the drafting of the RMA. First, the RMA fails to define adequately the pivotal word “road”. Second, clause 1(4) of Schedule 5 to the RMA6 (clause 1(4)) provides7 that “. . . a road vests in fee simple in the municipal council . . . in which it is located upon becoming a road”. Third, clause 2(1)(b) of Schedule 5 provides that clause 1 does not have effect to “allow adverse possession” over “the road”.

It might be suggested that clause 1(4):

  • contains a drafting error, namely that the word “road” should have been “public highway” – being the term used in s203(2) of the Local Government Act 1989 (LGA) which it effectively replaced, and also the term used in clause 1(5) of Schedule 5. (A similar situation is evident in Templestowe Developments Pty Ltd v City of Boroondara [1997] VR 504 at 513 [40] where Ashley J traced the legislative history of the local government acts and highlighted the evolution of a confusion between the terms “road” and “public highway” in relation to councils’ powers to discontinue roads in circumstances where “the legislature disclosed no intention of relevantly changing the situation”.)
  • applies only to land which has become a “road” since the RMA came into operation – because it speaks of vesting occurring “upon becoming a road” and implies the additional words “after the commencement of this Act”.

The RMA defines “road” to include any public highway and any land declared to be a road under s11 or forming part of a public highway or ancillary area.8

Public highways

The RMA defines “public highway” to mean “. . . any area of land that is a highway for the purposes of the common law”.9 At common law a public highway is “a way over which all members of the public are entitled to pass and repass on their lawful occasions”.10

A road can become a public highway by proclamation11 by the registration of a plan of subdivision which specifies that the road is vested in the Council12 or at common law.

“At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was acceptance by the public of the proffered dedication.”13

“In this context, ‘dedication’ means that the owner of the land intends to divest himself of any beneficial ownership of the soil, and to give the land to the public for the purposes of a highway.”14

The question is “whether the acts and conduct of the owner . . . are such as indicate an animus dedicandi, or intention to dedicate the way to the public at large, or whether they are to be explained in a different manner”.15

In Anderson McMillan J said at [39]:

“. . . the clear delineation of land as a road on a map or plan of subdivision lodged with the titles office is evidence of an intention to allow the public to use the land as a road such that, where there has been sufficient use of the land as a road by the public to demonstrate acceptance, an inference may be drawn that the land was dedicated to the public for that purpose”.

However, the Court of Appeal concluded at [91] that the description of the lane as a road on a title “is ambiguous in that it does not make clear whether it is a public or private road”.

The Court of Appeal also held at [83] that the agreed fact that the subject lane had been continuously used for pedestrian access without express leave or licence for a long period of time was sufficient, in the absence of specific evidence of knowledge, to enable a presumption that the owner had knowledge of the public’s use and had acquiesced to that use and that this in turn gave rise to a presumption of dedication as a public highway – even if the owner in question could not be identified. The presumption of dedication had the effect of shifting the evidentiary burden onto the plaintiff. Neither the existence of private easements over the lane, nor recent acts after the lane had become a public highway, rebutted that presumption (at [99]).

Evidence of acceptance “is typically demonstrated by repeated and continued use of the relevant land as a way by the public . . . without force, without secrecy and without permission”.16

Significantly, at common law the public’s entitlement to use a public highway defeated the individual’s claim of exclusive possession and prevented adverse possession.17

Declared roads

The definition of “road” in s3 of the RMA includes land declared to be a road under s11 of that Act by notice published in the Government Gazette.18 Importantly, s11 only applies to land owned by the road authority or land managed by the road authority and owned by a third party who consents in writing to it being declared a road.19

Other potential ‘roads’

In relation to s3 of the RMA, McMillan J observed in Anderson at [18]: “It is an inclusive definition and so may extend beyond the three examples identified in the section. It is unclear however, what else the definition may be construed to include . . .”

Although the definition leaves open what might also qualify as a road for the purposes of the RMA, there are several reasons why the word “road” in the RMA must be construed more narrowly than in the LGA (under which virtually every trafficable space is a road).

Inconsistency within the RMA and with common law

Section 19 of the RMA requires each road authority to keep a register of public roads and s17 defines “public roads” to include roads which the relevant road authority has decided are reasonably required for general public use.20 Section 17(4) expressly recognises that some roads are not required for public use.

Section 8 of the RMA affords all members of the public a right of passage over “roads” and it would be nonsensical for s8 to apply to all roads (including roads which are not required for public use). It would also be contrary to the presumed intention of the grantor and contrary to the effect at common law if the grant of a private right of carriageway gave everyone that right.

It follows that the word “road” in s8 does not mean every road.

Inconsistency with other statutes

In Butler v Attorney General (Vic)21 Fullagar J said:

“. . . there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate”.

Applying that principle, clause 1(4) cannot vest all roads in councils merely because they are shown on a registered plan of subdivision. This is because the Subdivision Act 1988 provides that on registration of a plan “land set aside as a road vests in the Council or any other person or body identified for that purpose in the plan”22 and s24(2)(c) provides that “any road vested in the Council becomes a public highway” – which implies that some roads are not vested in council and some roads are not public highways.

Further, clause 2(1)(b) must be read down to exclude a “private street, road or right of way” if it is to avoid inconsistency with s73A of the Transfer of Land Act 1958.

Inconsistency with proprietary rights

If clause 1(4) applies to all roads, many owners of potentially valuable land, over which private carriageway easements exist in favour of their neighbours, would be divested of their property without compensation. It is settled law that courts will not interpret legislation so as to deprive persons of valuable property rights without compensation unless the legislation is “expressed in unequivocal terms incapable of any other meaning”.23

A suggested interpretation of clause 1(4)

Clause 1(4) contains the words “upon becoming a road”. Because s24 of the Subdivision Act 1988, which provides for land to become a road upon registration of a plan of subdivision, expressly allows roads to vest in persons other than the municipality, it cannot be the source of “becoming a road” for the purposes of clause 1(4).

On the other hand, s11(3) of the RMA allows a Council to declare land to be a road, whereupon the land “becomes a road”. The synergy between this section and the words “upon becoming a road” in clause 1(4) is clear enough, suggesting the outcome that clause 1(4) only applies to roads that have been declared under s11. Moreover, when a road is declared it automatically becomes dedicated to the public as a public highway under s11(4), making sense of the expression “The public highway . . . ” in item 1(5) of Schedule 5.

This interpretation is supported by the Road Management Bill 2004 Explanatory Memorandum which states: “Public highways will continue to be the property of the State or local government and will not be subject to adverse possession . . . ”24

When is a road not a road?

The conclusion to be drawn from this analysis is that a private street or road, a right of way and a carriageway easement are not “roads” to which the RMA applies – unless they have become public highways.

Can you adversely possess a road?

It is beyond dispute that a road cannot be adversely possessed if it is:

  • located on Crown land or on land in which Victorian Rail Track or any water authority has any rights, title or interest25
  • located on land of which a council is the registered proprietor under the Transfer of Land Act 195826
  • located on land owned by VicRoads27
  • a public highway
  • “declared” under s11(4) of the RMA – because upon declaration it becomes a public highway
  • shown on a plan of subdivision registered after 30 October 198928 which specifies that the road is vested in the Council – because upon registration it becomes a public highway.29

Although s3 of the LGA defines “public highway” to include any “public road” under the RMA, that section does not provide that upon classification as a public road, the road becomes a public highway.30 It appears, therefore, that some public roads can be adversely possessed because the RMA, with one possible exception, does not contain any provision which states that public roads or indeed, any types of roads, are immune from adverse possession.31 The exception is the curiously worded clause 2(1)(b) of Schedule 5 which provides that clause 1 “does not have effect to . . . allow adverse possession . . . over the road”. This phrase admits of two possible and quite contradictory interpretations:

  • nothing in clause 1 creates a greater ability to adversely possess a road than otherwise exists
  • clause 1 prevents adverse possession of a road altogether.32

Ascertaining the correct interpretation is not assisted greatly by the note to s10 of the RMA which simply cross references clauses 1 and 2 of Schedule 5 as to the “prevention of adverse possession . . . in roads”.33

The Explanatory Memorandum34 supports the former interpretation. It states that clause 2 of Schedule 5 gives ownership of roads to the road authority to facilitate management, not to impose duties analogous to those of a landowner and does not “expose the land to adverse possession claims”.

Unless or until the RMA is amended or further clarified by the courts, the correct interpretation of clause 2(1)(b) might be a matter of debate (especially if the road in question is a public road) but, in either event, it is clear enough that the clause relates only to a “road” to which the RMA applies.

 

Robert Bradley is a principal lawyer at Aitken Partners and a member of the LIV’s Property and Environmental Law section. He wishes to thank barrister David Lloyd for his invaluable comments on a draft of this article and Susheila Vijendran of Land Use Victoria Legal for her insight and assistance.

 

1. Section 24(1)(b) of the Subdivision Act 1988 applies to roads created by plans registered after 30 October 1989.

2. [2016] VSC 374.

3. Anderson v City of Stonnington [2017] VSCA 229.

4. Bayside City Council Policy 14/77373, p3.

5. Asher v Whitlock (1865) LR 1 QB 1; Limitation of Actions Act 1958, ss8 and 18.

6. Schedule 5 has effect pursuant to RMA s45(2).

7. Subject to some exceptions.

8. Section 3.

9. Section 3.

10. Permanent Trustee Co of NSW Ltd v Campbelltown (1960) 105 CLR 401, 420 per Windeyer J.

11. That is, by a notice published in the Government Gazette under LGA s204.

12. Subdivision Act 1988, s24(2)(c).

13. Note 10 above.

14. Note 3 above, at [40].

15. Pratt & McKenzie’s Law of Highways (21st edn), 1967, p30.

16. Note 2 above, at [40] and [41]; or by a public authority making or maintaining a road, at [54].

17. Halsbury’s Laws of Australia, Vol 14 at 225-1250; note 15 above, p155.

18. Significantly, s3 does not expressly include any other classes of “roads” mentioned in the RMA – such as public roads, non-arterial state roads or municipal roads.

19. Section 11(2) especially (d).

20. It is the act of making the decision, not the inclusion of the road on the register which makes a road a public road – see Note 3 above, at [180]; RMA s124(c) & (g).

21. (1961) 106 CLR 268, 276 (in relation to other legislation but the principle will apply by analogy).

22. Section 24(2)(b).

23. Commonwealth v Hazeldell Ltd (1918) 25 CLR 552, 563; Pearce & Geddes Statutory Interpretation in Australia (8th edn), p230 ff.

24. Explanatory memorandum, p10.

25. Sections 7, 7A & 7AB Limitations of Actions Act 1958; see also RMA Schedule 5 clause 1(1).

26. Section 7B Limitations of Actions Act 1958; note that this does not prevent adverse possession of roads on general law land or land not owned by the Council.

27. Roads Corporation v Pearse [2012] VSC 527.

28. The date of commencement of the Subdivision Act 1988.

29. Subdivision Act 1988, s24(2)(c).

30. Compare RMA s11(4) in relation to “declared” roads.

31. Section 10 specifies the limited means by which a public highway can be extinguished, thereby providing continuing protection from adverse possession by virtue of the common law.

32. The author’s view is that, if the latter was intended, words such as prevents or prohibits would have been used instead of “does not allow”.

33. Section 36(3A) of the Interpretation of Legislation Act 1984 makes the note a part of the RMA itself.

34. Note 24 above, p 71; see also p10; The primary objective of the legislation, as set out in s4(1), is the management of roads, rather than their ownership.

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