Re Kenneth Alan Prentice v Mercantile House Pty Limited; Roymax Industries Pty Limited; the Administration of Norfolk Island and the Commonwealth of Australia [1991] FCA 50 (27 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: KENNETH ALAN PRENTICE
And: MERCANTILE HOUSE PTY. LIMITED; ROYMAX INDUSTRIES PTY. LIMITED; THE
ADMINISTRATION OF NORFOLK ISLAND and THE COMMONWEALTH OF AUSTRALIA
No. SC 2 of 1989
FED No. 40
Trespass

COURT

IN THE SUPREME COURT OF NORFOLK ISLAND
Morling C.J.(1)

CATCHWORDS

Trespass - nuisance - subdivision of land - road widening proposal - whether land dedicated as public road - grant of rights of way - whether grants inconsistent with intention to dedicate road - car parking on road - shops built abutting road - awnings of shops encroaching on road - whether car parking and awnings constitute trespass or nuisance - possession of road - whether dedicator still in possession - whether dedicator entitled to damages.

HEARING

SYDNEY
27:2:1991

Counsel for the plaintiff: S.W. Sheaffe

Instructed by: Beston and Co.

Solicitor for first and second respondents: Mr A. Zande of Zande

and Associates

Counsel for third and fourth respondents: G.M. Gregg

Instructed by: Australian Government
Solicitors

ORDER

Verdict for the defendants in the action and judgment accordingly.

Plaintiff to pay defendants' costs of the action.

Verdict for the third and fourth parties in the third and fourth party proceedings and judgment accordingly.

Costs of third and fourth party proceedings reserved.

All parties to have liberty to make written submissions on the question of costs of the third and fourth party proceedings within 28 days of this date.

DECISION

This case raises interesting questions as to the circumstances under which land held under common law title may become dedicated as a public road and as to the nature and extent of the rights of a person who dedicates land as a road.

2. About 20 years ago the plaintiff was the owner of a parcel of land with an extensive frontage to Taylors Road, the main commercial street on Norfolk Island. At that time the land was used for rural purposes and Taylors Road was 100 links wide in the vicinity of the subject land.

3. The plaintiff decided to subdivide his land, described as Portion 38b3, into 8 lots which could be used for commercial purposes. To effect his purpose he entered into negotiations with the relevant public authority, which at that time was the Commonwealth of Australia. (The Administration of Norfolk Island did not become established until the enactment of the Norfolk Island Act, 1979.) The negotiations proved successful and on 22 December 1971 a deed was entered into between the applicant, the mortgagees of the land and the Commonwealth. Prior to the execution of the deed the plaintiff had submitted to the Commonwealth a plan of subdivision of his land. The plan provided for the subdivision of Portion 38b3 into 9 portions, described as Portions 38b8 to 38b16. Each of the Portions 38b8 to 38b15 were shown on the plan as having a width of about 15 metres and a depth of about 25 metres. It will be convenient to refer hereafter to these Portions as lots 8-15. Each lot was of a size which made it suitable for use as a shop site. However, lots 8-15 were not shown on the plan as having a frontage to Taylors Road. They were shown as having frontages to Portion 38b16 (which I shall hereafter refer to as lot 16). Lot 16 was an elongated parcel about 4.5 metres wide and about 122 metres long separating lots 8-15 from Taylors Road. It bore the designation "proposed road widening".

4. The deed made on 22 December 1971 contained a number of recitals, including the following:

"8. The Subdivider seeks pursuant to the Land (Subdivision)
Ordinance the approval of the plan by the Minister of State for
External Territories for the subdivision of Portion 38b3 on
Norfolk Island.
9. The Subdivider desires that the parcels of land described on
the plan as Portions 38b8 to 38b15 are to be used for
commercial purposes only.
10. The Subdivider desires that the parcel of land described
on the plan as Portion 38b16 is to be used for widening
Taylors Road which is adjacent to Portion 38b16.
11. Taylors Road which is adjacent to Portion 38b16 is land
owned by the Crown."

5. The reference to "the Crown" in clause 11 is a reference to the Administration - vide clause 5 of the deed.

6. The plaintiff covenanted in the deed on behalf of himself, his heirs and assigns that lots 8-15 would be used for commercial purposes only. Clause 16 of the deed provided, inter alia, that:

"the agreement by the Administration to this deed ...
(c) Signifies only that the plan will be submitted to the
Minister of State for External Territories for his
consideration for approval or otherwise pursuant to
Section 5(1) of the Land (Subdivision) Ordinance 1967."

The reference in the deed to "the plan" is a reference to the plan of subdivision identified as Drawing No. 278A which shows the subdivision of Portion 38b3 in the manner above described.

7. Thereafter, on 4 July 1972, the Minister of State for External Territories formally approved of the plan.

8. On 10 July 1972 the Registrar of Lands wrote to the plaintiff advising him of the Minister's approval and informing him that the subdivision plan had been registered.

9. Drawing No. 278A, which bears the legend "Plan of Proposed Re- Subdivision of Portion 38b3" was prepared by the plaintiff's surveyors Harrisen and Griesson and Partners. It seems that these surveyors subsequently prepared a further plan which, save in two respects, is almost identical with Drawing 278A. The two significant differences from Drawing 278A are:

(a) that the plan is described as "Re-Subdivision of Portion 38b3"
(i.e. the reference to "Proposed" re-subdivision is deleted;
and
(b) that lot 16 is endorsed with the words "Road widening" instead
of "Proposed road widening".

10. The subsequent plan does not bear a date but is endorsed "S.O.214" which appears to be a reference to a numbered plan in the Survey Office. It is a reasonable inference that it was prepared and forwarded to the Survey Office or Registrar of Lands shortly after the proposed plan of subdivision was approved. A copy of this further plan was tendered in evidence. It bears a certification under the seal of the Registrar of Lands to the effect that it is a true copy "of the original document registered in this Office." I shall refer to this further plan as the final plan of subdivision.

11. No steps appear to have been taken by the Commonwealth to take title to lot 16. The Minister's approval of the plan of subdivision did not impose a condition requiring lot 16 to be transferred to the Commonwealth.

12. On 31 October 1973 the plaintiff conveyed lot 8 to a predecessor in title of the first defendant. The land conveyed was identified in the conveyance by a metes and bounds description, which refers to "a point on a road widening designated as Portion 38b16 ...". The metes and bounds description also contains a reference to the "western side of that road".

13. As well as conveying lot 8 to the purchaser the conveyance contains a grant to the purchaser his heirs and assigns -

"as owner for the time being of Portion 38b8 (herein called `the
dominant tenement') an easement being rights of footway and
carriageway for (the purchaser) his heirs and assigns and his
tenants, servants, invitees, licensees and all other persons
authorised by him from time to time at all times hereafter at his
or their will and pleasure to pass and repass with or without
horses and other animals, carts, carriages, tractor engines, motor
cars or other vehicles, laden or unladen over and along the piece
or parcel of land designated as Portion 38b16 described hereafter
(herein called 'the servient tenement') for all purposes
whatsoever AND ALSO further rights for (the purchaser) his heirs
and assigns, and his servants, employees, workmen, contractors and
all other persons authorised by him or them to make, build, lay,
affix, erect and otherwise install and provide and thereafter to
repair, renew and maintain roads, gutters, drains, paths, animal
grids, pipes, cables, wires, poles and posts for the better
enjoyment of the said rights of carriageway and footway and for
the reticulation or supply of water, sewage, drainage,
electricity, gas and telephonic communications above, on or under
the surface of the servient tenement, provided that any fixture,
fitting, improvement or installations above, on or under the said
surface of the land of the servient tenement shall not
unreasonably disturb or interfere with the said rights of
carriageway or footway."

14. The conveyance contains a provision permitting the plaintiff, his heirs, executors, administrators and assigns to use and enjoy the servient tenement in common with the purchaser and his heirs and assigns and authorises the plaintiff to grant easements in similar terms over the servient tenement to other persons without the consent of the purchaser or his heirs and assigns.

15. In October and December 1973 the plaintiff conveyed lots 11, 12, and 13 to a predecessor in title of the second defendant. The conveyances of these lots were, for relevant purposes, in similar terms to the conveyance of lot 8 and the lands conveyed were identified by metes and bounds descriptions which made reference to the "road widening designated as Portion 38b16". Rights of way were also granted in favour of the purchaser of lots 11, 12, and 13 over lot 16, the grants being in similar terms to the right of way granted to the purchaser of lot 8.

16. Substantial shop premises were erected upon lot 8 in 1976. These premises are known as Swiss House. The first defendant acquired lot 8 in 1989. It leases Swiss House to a lessee and does not itself carry on any commercial activities on the land.

17. Swiss House has been constructed with an awning which extends out from the front of the building. The awning extends beyond the boundary of lot 8 itself and encroaches upon lot 16 by up to 870 mm. Two ornamental trees and two wooden benches are located on lot 16 immediately adjacent to lot 8. The trees and benches appear to be of considerable age.

18. A substantial building containing shops and known as Strand Arcade is erected on lots 11, 12 and 13. It was erected in 1978. It also has an awning along its front facade. The awning encroaches upon lot 16 by approximately 1 metre.

19. The remaining lots in the subdivision (other than lot 16) have all been sold by the plaintiff to persons who have erected shops upon them.

20. The evidence suggests that when the subdivision was approved there was a small ditch or depression on part of lot 16. The whole of the lot has been levelled. It appears to have been in its present condition for some years. A large part of it is covered with bitumen. Neither the plaintiff nor the defendants have spent any money or exerted any effort in maintaining or repairing lot 16 since the bitumen was placed upon it in 1978. When the Strand Arcade building was constructed in 1978 the second defendant provided free of cost to the Commonwealth a quantity of road base material to enable part of lot 16 to be levelled and made trafficable. It appears that the second defendant itself arranged for the necessary work to be done for lot 16 to be made trafficable in the vicinity of lot 16, but the Commonwealth provided the bitumen topping and it was placed in position by a machine owned by the Commonwealth.

21. The responsibility for maintenance of lot 16 in its present condition has been accepted by the Commonwealth or, since 1979, the Administration. It is trafficable by motor vehicles except for the area in the vicinity of the trees and a small grassed area adjacent to lot 15. It presents the appearance of being part of Taylors Road and is extensively used by pedestrians and motorists. Motor vehicles park at right angles to the footpath outside the defendants' premises. Indeed, motor vehicles are similarly parked on both sides of Taylors Road along its whole length. Taylors Road extends north and south of the defendant's lands, but the main commercial development is to the north where shops and other commercial premises have been built on both sides of the road for some hundreds of metres.

22. There is no evidence as to precisely when members of the public first commenced to make use of lot 16. However, it can be inferred from the evidence that since 1972 any person intending to gain access to lots 8-15 from Taylors Road must have approached those lots by traversing lot 16. I am quite satisfied that at least since Strand Arcade and Swiss House have been constructed, and almost certainly prior to that time, lot 16 has been extensively utilised by pedestrians and motorists.

23. Poles carrying electricity wires have been erected along Taylors Road. The poles themselves appear to have been placed almost on the boundary of the 100 link road reservation, but some of the wires overhang part of lot 16. There are no physical features to indicate to a member of the public that lot 16 exists as a parcel of land separate from Taylors Road.

24. In these circumstances the plaintiff sues the defendants in trespass and nuisance seeking injunctions restraining them and persons described as their "servants and agents" from making excessive user of the rights of footway and carriageway granted in the conveyances. He also seeks mandatory injunctions requiring them to remove the awnings in front of their buildings insofar as they encroach upon lot 16 which he claims he still owns. Declaratory orders are also sought. In recognition of the difficulty of obtaining injunctive relief, the plaintiff makes additional and alternative claims for damages.

25. The defendants claim that lot 16 is owned by the Commonwealth or the Administration. They claim that it has become part of Taylors Road. They deny that the plaintiff has any interest in lot 16 and deny the trespasses and nuisances alleged against them. They also submit that the plaintiff's claims are barred, at least in part, by reason of the lapse of time since they arose, if they ever did. They also dispute that the plaintiff has suffered any damage. The defendants have joined the Administration of Norfolk Island and the Commonwealth of Australia as third and fourth parties seeking to be indemnified by them should they be found liable to the plaintiff.

26. The first question to be addressed is whether lot 16 has become a public road and part of Taylors Road. The fact that the plaintiff has not conveyed the fee simple of lot 16 to the Commonwealth or the Administration by no means determines this issue in his favour. Land owned by a person may become a public road if he sufficiently evidences an intention to dedicate it to the public as a road and the public accepts the offer of dedication: see Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown [1960] HCA 62; (1960) 105 CLR 401, particularly at p 420 per Windeyer J. See also Commissioner for Railways v Dangar (1943) 15 LGR 101 at 103-104 and Owen v O'Connor (1963) SR (N.S.W.) 1051. A landowner whose land is mortgaged requires the consent of his mortgagee before his intention to dedicate is effective (Permanent Trustee supra at p 420), but in the present case the mortgagees of Portion 38b3 were made parties to the deed of 22 December 1971 in which the intention that lot 16 should be utilised for the widening of Taylors Road was made explicit.

27. In my opinion, the submission by the plaintiff's surveyors of the plan of proposed re-subdivision showing lot 16 as being proposed for road widening is very strong evidence of the plaintiff's intention to dedicate that lot as a public road. The submission by the surveyors of the final plan of subdivision which deleted the word "proposed" from the former description of lot 16 as "proposed road widening" is even stronger evidence of that intention. In Permanent Trustee, Kitto J. said, at p 412:

"I respectfully agree in the view expressed by Harvey J. in
Attorney-General v The City Bank of Sydney ((1920) 20 SR
(N.S.W.) 216, at p 221), that the lodging of a deposited plan in
the Lands Titles Office, showing roads as open streets giving
access to subdivided lots, is an invitation to the public to use
the streets as such. In the present case the invitation was
clearly made, and it has never been withdrawn. To a limited
extent it has been availed of by members of the public, and they
have never been prevented or impeded, by (the subdivider) or by
the appellant as his executor or by anyone else, in the uses which
they have chosen to make from time to time of various portions of
the Parade. It is impossible to conclude that the intention to
be inferred from the plan was to make the Parade available for
private use only, that is to say for the use of frontages and
persons desiring access to their allotments."

28. Kitto J.'s words are particularly applicable to the facts of the present case.

29. As Windeyer J. pointed out in Permanent Trustee the lodging of a plan of subdivision is only an offer to dedicate roads shown on it. It is open to the landowner to withdraw the offer before it ripens into a complete dedication. If, for instance, a landowner decides not to go on with his subdivision and withdraws the plan of subdivision he has submitted to the relevant authority, there will be no dedication. However, as Windeyer J. said (at 422):

"(O)nce the intended dedication had been accepted by the public
a public right of way, a public road, a highway came into
existence (Attorney-General v The City Bank of Sydney ((1920) 20
SR (N.S.W.) 216). The landowner could no longer deny to the
public what he had dedicated - 'Once a highway always a highway'
was the adage of the common law. A declared intention to
dedicate would be ripened into dedication by public user of the
land as a road, or by a public body having authority to take it
over on behalf of the public doing so, by for example, expending
money in forming or maintaining it as a road (cf. Vickery v
Municipality of Strathfield ((1911) 11 SR (N.S.W.) 354)."

30. The facts in Permanent Trustee were that in 1883 Thomas Saywell subdivided land into allotments for sale as a township. He deposited a plan of his subdivision with the Registrar-General. The plan showed an extensive road system with named roads serving the various lots, one such road being named St. George's Parade. This road ran alongside George's River and was trafficable only by pedestrians, and that with difficulty. Windeyer J observed, at p 423, that the animus dedicandi was expressed on the face of the plan and that, therefore, no great amount of public use was necessary to make the dedication complete. His Honour's observation is apposite in the present case.

31. Counsel for the plaintiff conceded that the submission of the plan showing lot 16 as being proposed for road widening was evidence that his client intended to dedicate that lot as a public road and offered it to the Commonwealth for that purpose. As I understood counsel's submission, he conceded that the plaintiff offered to convey the fee simple of lot 16 to the Commonwealth, but he argued that the plaintiff's offer was conditional on the Minister either imposing a formal condition on the approval of the subdivision plan that lot 16 be transferred to the Commonwealth, or on the Commonwealth calling for a transfer of lot 16. Since, so it was argued, neither of these events had occurred, the offer to dedicate had lapsed.

32. I do not think this last-mentioned argument is sound. The registration of the final plan of subdivision showing lot 16 as "road widening", not "proposed road widening" was a clear indication that the Commonwealth accepted the plaintiff's offer. Indeed, even if the word "proposed" had not been deleted from the description of lot 16, it is impossible to believe that the Commonwealth and the plaintiff did not share the belief that lot 16 was no longer owned by the plaintiff and had become part of Taylors Road. If it had not become part of Taylors Road when the final plan was registered, the consequence would have been that lots 8-15 would have been land-locked parcels without frontage to a public street and with no means of access to a public street. At the time no rights of way had been created. In my opinion, it is manifest that the plaintiff must have appreciated that his offer to make lot 16 part of Taylors road had been accepted.

33. I should add that I do not think the oral evidence given by the plaintiff makes his case any stronger. He said, in effect, that the various plans of subdivision were prepared on his behalf by his surveyors, and that he did not personally have any discussions with officers of the Administration with respect to lot 16. As he said (T.55): "I did not give specific instructions to the easement (sic) at the front to anybody but this was what the surveyor told me that I had to do to conform with the requirements of the Administration and the law as they understood it at that particular time. I was guided by the surveyor's knowledge of subdivisions. I had no knowledge of subdivisions myself."

34. The plaintiff cannot have thought that the absence of a formal condition on the approval of his subdivision application put an end to his road-widening proposal, since he himself continued to refer to and adopt the proposal in his subsequent conveyances of the lots: vide the references to the road widening in the metes and bounds descriptions of the lots conveyed.

35. It is inconceivable that the Minister would have approved the subdivision except on the basis that lot 16 would become part of Taylors Road. It must have been the common intention of the plaintiff and the Minister that the plaintiff would transfer lot 16 to the Commonwealth whenever called upon to do so. Having obtained approval of his subdivision on this basis, I do not think it is competent for the plaintiff to, in effect, change the basis upon which his plan of subdivision was submitted and approved. That basis was that lots 1-15 should have frontage to lot 16 which was to become part of Taylors Road.

36. In the circumstances of the present case it would be unconscionable to allow the plaintiff to assert that lot 16 is not owned by the Commonwealth, he having obtained approval of the subdivision on the basis that it was: cf Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.

37. The Commonwealth's failure to call for a transfer of lot 16 should not be seen as a failure on its part to accept the offer of dedication. I think it is reasonable to infer that the failure was occasioned by administrative lethargy or inefficiency.

38. It is apparent from the evidence that neither the plaintiff nor the Commonwealth nor members of the public using Taylors Road treated the offer of dedication as not having been accepted. As late as December 1973 the plaintiff himself in his conveyance to the original purchaser of lot 13 described that lot by reference to the boundaries of the proposed road. There is no evidence that at any time thereafter he purported to withdraw his offer of dedication. Once members of the public used lot 16 as a road for general pedestrian and vehicular access, the lot became part of Taylors Road and the dedication of it was then beyond recall: President of the Shire of Narracan v Leviston ((1986) [1906] HCA 34; 3 CLR 846 at 867, per Barton J.); Webb v Were ((1876) VLR 28 at 38).

39. Counsel for the plaintiff pointed to the grants of the rights of way as being inconsistent with an intention that lot 16 should become a public road, since there would have been no need to have granted the rights of way if lot 16 had become part of Taylors Road. I see the force of this submission but I do not think it should prevail. I do not think the grants should be regarded as evidence that lot 16 had not become part of Taylors Road. At the time the conveyances were executed it was a sensible precaution for the purchasers to require the plaintiff to give them rights of way over lot 16 since that lot had not been formally conveyed to the Commonwealth. But a formal transfer of lot 16 was not necessary to ensure it became part of Taylors Road or that it ceased to be beneficially owned by the plaintiff.

40. In Burgess v Randall (an unreported decision of Eggleston J. given in this Court on 27 September 1967), the express reservation of a right of way to a particular person over a strip of land was held not to prevent that land becoming a public road. The decision, although given on quite different facts, affords some support for the approach I take to the facts of the present case.

41. There are many reported cases, some of them quite old, in which courts have considered whether, on particular facts, land has become a highway by dedication or user. One such case, Kirby v Paignton Urban District Council ((1913) 1 Ch 337) was particularly relied upon by counsel for the plaintiff. But the facts in Kirby differed in important respects from the facts in the present case. Neville J. was of the opinion that the evidence made it impossible to draw any inference of dedication on the part of the owners of the land. It appears that the plan submitted to the council showed a proposed new road, but it was not shown as a proposed public road. The evidence did not show that the public had been permitted to use the road in such a way as to give rise to an inference that the owner intended to dedicate the road to the public. Nor had the local authority taken over the street or expended any public money upon it. In effect, Neville J. found that it was proposed as a new private road. In the present case, the notation on the plan of subdivision was to the effect that lot 16 was to be used for widening Taylors Road. Since that road was (and is) a public road, the inference is irresistible that the plaintiff intended lot 16 should become part of a public road. Moreover, the public have been allowed to make unrestricted use of it as a road. Further the evidence, though sketchy, indicates that the Administration was partly responsible for its formation as part of Taylors Road.

42. Counsel for the plaintiff submitted that the evidence showed only that the public had accepted lot 16 as a car park only and not as a public road. I disagree. It has been used by the public as part of Taylors Road for all the purposes for which public roads are normally used.

43. In my opinion it has been established that lot 16 is no longer beneficially owned by the plaintiff and has been dedicated to the public.

44. In some circumstances a dedication may amount to no more than a grant of a right of passage over the surface of land, the dedicator retaining his ownership over the surface of superincumbent air space. However, in the present case, the plaintiff's intention was to dedicate the fee simple in lot 16, not merely a public right of passage over it. I think this intention is manifest from the terms of the recitals in the deed which he executed on 22 December 1971. In the ninth recital reference is made to the "parcels of land" which the plaintiff wishes to be used for commercial purposes. That is plainly a reference to the fee simple interests in those parcels. In the tenth recital lot 16 is referred to as a "parcel of land" which the plaintiff desires to be used "for widening Taylors Road" which, in the eleventh recital is referred to as "land owned by the Crown." It is clear enough, in my opinion, that it was the plaintiff's intention that the Crown should become the owner of lot 16, just as it was his intention that purchasers of the other lots would become the owners of them. I do not think it could have crossed the minds of the plaintiff or the Minister that, after the subdivision was implemented and Taylors Road was widened, the Crown would not have complete ownership of the road.

45. I turn now to consider the question whether the acts complained of by the plaintiff are trespasses and nuisances for which the defendants are responsible. The trespasses and nuisances of which the plaintiff complains are, first, the parking of vehicles by members of the public on lot 16 and, secondly, the encroachments by the shop awnings into the air space superincumbent upon lot 16.

46. If I am correct in my opinion that the plaintiff dedicated lot 16 usque ad coelum et ad inferos, it would necessarily follow that all his claims must fail since he would have no title to maintain an action for trespass and nuisance. However, in case I should be incorrect in that opinion, I shall consider his claims upon the basis that all that was dedicated to the public was a right of passage over lot 16.

47. Since the plaintiff sues in trespass and nuisance it is not a sufficient basis for his causes of action to show that he is the owner of lot 16. As Professor Fleming points out in The Law of Torts, 7th ed (1987), p 40, the action of trespass vindicates only violations of active possession, and is not concerned with protecting the interests of persons out of possession at the time of the intrusion and at p 394. Fleming points out that the right to complain of nuisance belongs exclusively to the actual possessor of the land affected. In other words, legal ownership of land does not support an action for trespass or nuisance unless the owner also has possession of it.

48. It has been held that the slightest amount of possession is sufficient to ground an action in trespass: Wuta-Ofei v Mabel Danquah (1961) 1 WLR 1238 at 1243. Proof of ownership is prima facie proof of possession unless there is evidence that another person is in possession: Halsbury, Laws of England, 4th ed, vol 45, para 139-1396.

49. There are many cases in the reports (see, for example, Wandsworth Board of Works v United Telephone Co. (1884) 13 QBC 904; Baker v City of Adelaide (1900) SALR 29; Kelsen v Imperial Tobacco Co (1957) 2 QB 334 and Woollerton v R. Costain (1970) 1 WLR 411) in which it has been held that intrusions by electric cables, advertising signs and swinging cranes into air space have constituted actionable trespasses. But if the facts of those cases are examined, they all appear to have been cases in which the air space was, in a real sense, under the dominion of the plaintiff. For instance, in Kelson the encroaching advertising sign was above the plaintiff's shop premises in air space that could have been used by the plaintiff himself for advertising purposes. I do not think such cases are of much, if any, assistance in deciding whether the plaintiff can be said to be in possession of either the surface of lot 16 or the air space into which the awnings encroach.

50. In my opinion, it is very difficult to say in any meaningful sense that the surface of lot 16 is in the possession of the plaintiff. It is in constant use as part of Taylors Road by members of the public. Similarly, it is difficult to say that the plaintiff is in possession of the air space into which the awnings encroach. The Strand Arcade awning has been constructed at a height of about 2.5 metres above the surface of the subjacent land. The Swiss House awning is about the same height above ground level at its lowest point, but higher at other points because the building has an A-frame. It seems to me that even if the plaintiff is still the owner of the fee simple of lot 16, the dedication of it as a public road necessarily carried with it a grant of a public right to use the air space to a reasonable height above the surface of the road. No complaint could be made by the plaintiff if a motor lorry with a load exceeding 3 metres in height used lot 16, or if a mobile crane with an elevated jib used the road in the course of building operations on the adjoining land.

51. However, there is old authority that the owner of land who dedicates it as a public highway parts with no other right than a right of passage to the public, and retains all other rights of ownership not inconsistent with the dedication: see Halsbury, supra, vol. 21 para 101-102; see also Vestry of St Mary Newingten v Jacobs (1871) 7 LRQB 47. This case is clear authority for the proposition that the dedicator of the highway may sue for trespass to the highway: see also R. v Pratt (1855) 4 El and Bl and Harrison v Duke of Rutland (1893) 1 QB 142. In the latter case a person who was using a highway not for the purpose of passage but solely for the purpose of interfering with a grouse hunt on an adjoining moor was found to be a trespasser. Lopes, L.J. said (at p 154):

"The conclusion which I draw from the authorities is that, if a
person uses the soil of the highway for any purpose other than
that in respect of which the dedication was made and the easement
acquired, he is a trespasser. The easement acquired by the
public is a right to pass and repass at their pleasure for the
purpose of legitimate travel, and the use of the soil for any
other purpose, whether lawful or unlawful, is an infringement of
the rights of the owner of the soil, who has, subject to this
easement, precisely the same estate in the soil as he had
previously to any easement being acquired by the public."

52. The only case in this area of the law referred to by Pollock and Wright in their work on Possession in the Common Law is Leigh v Jack (1879) 5 Ex Div 264, but that case is of no real assistance in determining whether the plaintiff in the present case has retained such a right to possession of either the surface of Taylors Road or the superincumbent air space into which the defendants' awnings encroach as entitles him to maintain an action in negligence and nuisance.

53. In Rangeley v Midland Rail Co. (1867) LR 3 Ch 306 Lord Cairns L.J. drew a distinction between the rights of the owner of land who dedicates it to the public as a highway and the rights of an owner of land who grants an easement over it to the owner of other land. Lord Cairns said (at p 311):

"In truth, a public road or highway is not an easement; it is
a dedication to the public of the occupation of the surface of the
land for the purpose of passing and repassing, the public
generally taking upon themselves (through the parochial
authorities or otherwise) the obligation of repairing it. It is
quite clear that that is a very different thing from an ordinary
easement where the occupation remains in the owner of the servient
tenement subject to the easement."

54. Hawkins v Rutter was not referred to in Harrison v Duke of Rutland which appears to be accepted by the text book writers (e.g. Pratt and McKenzie, Law of Highways) as authority for the proposition that the owner of land who dedicates it for use as a highway can sue in trespass if the land is used for non-highway purposes.

55. Whilst I think it is quite unrealistic to treat the plaintiff as having retained possession of the surface of lot 16 and of the superincumbent air space occupied by the awnings, I think that, having regard to the state of the authorities, I should treat him as having sufficient possession to maintain the present proceedings, if I be wrong in thinking that the Commonwealth became the owner of lot 16 ad coelum in 1972. I have reached this conclusion with considerable hesitation. It seems to me that in modern society it is accepted that it is the highway authority which has complete control over the uses to which highways may be put. It is almost invariably the case that the highway authority is clothed with statutory authority which is inconsistent with possession of the highway being retained by the original dedicator. Lord Cairns' views are more in line with the realities of current highway control and management than are the views which found acceptance in cases such as Harrison v Duke of Rutland.

56. As to the parking of motor vehicles, the plaintiff concedes that motorists are entitled to drive along and across lot 16 and to park for short periods whilst setting down or picking up passengers and delivering and picking up goods. But he claims that motorists trespass upon lot 16 when they park their vehicles upon it, and that the defendants are liable for such trespasses.

57. There are several answers to this part of the plaintiff's claim. In the first place, since the surface of lot 16 is now part of Taylors Road, motorists standing their vehicles upon it are not trespassing. Such use of Taylors Road is consistent with its status as a public road. Secondly, even if they are trespassing, the defendants are not responsible for trespasses by members of the public. Thirdly, there is no evidence that the defendants or their servants and agents park on lot 16. Indeed, the evidence is to the contrary. Fourthly, even if it had been shown that the tenants of the defendants' shops parked their vehicles on lot 16 (and it was not), I do not think the defendants could have been found liable for their tenants' actions. The leases of the shops are not in evidence and it was not suggested in argument that an inference should be drawn that the defendants have authorised acts of trespass by their lessees. The allegations of nuisance are likewise unsustainable against the defendants.

58. The real thrust of the plaintiff's argument on this part of the case was that lot 16 was not part of Taylors road and that the defendants had improperly authorised, licensed or invited shoppers to use it for car parking, this being a use not authorised by the rights of way granted to their predecessors in title. Even if I had been of the opinion that lot 16 does not form part of Taylors Road, I would have found against the plaintiff on this argument. There is no evidence that the defendants have purported to exercise any control or authority over lot 16. Nor is there any evidence that either defendant has purported to invite or permit members of the public to park their vehicles upon lot 16. Counsel for the plaintiff argued that since the grants of the rights of way in the conveyances authorise the invitees and licensees of the owners of the dominant tenements to use lot 16 for access purposes, the defendants are liable for the actions of members of the public who park their vehicles upon lot 16. I do not agree with this submission. There is no evidence that the defendants have given any express or implied authority to anyone to use lot 16, whether as a right of way or as a public road.

59. It was also submitted that because there were shops erected on the defendants' lands it should be presumed that shoppers were invited by the defendants to trespass on lot 16 by parking on it. I do not think this argument has substance. No doubt the defendants anticipate that members of the public will be attracted to the shops erected on their land. But they are not liable to the plaintiff if such members of the public infringe the plaintiff's rights. There is no effective action the defendants can take to prevent such infringement, since they have no right to exclude others from using lot 16. It is the tenants, not the defendants who trade in the shops. But I do not think the plaintiff's argument would have been any stronger had he sued the tenants. They are not responsible for the actions of members of the public outside their premises.

60. There is yet another ground upon which this part of the plaintiff's claim must fail. There is simply no evidence that the parking of vehicles on lot 16 is associated in any particular way with the use made of the defendants' lands. I have no doubt that persons wishing to shop in Strand Arcade or at Swiss House would park their vehicles on lot 16 if parking space were available there. But I do not think it is sufficient to make out a case of trespass or nuisance against the defendants to show that it is possible, or even likely, that some people shopping at Strand Arcade and Swiss House sometimes park their cars outside those premises. Some positive evidence of trespass or nuisance must be given.

61. I should add that, notwithstanding the terms in which the rights of way over lot 16 were granted in the conveyances, the use to which lot 16 is presently being put is the use which must have been intended by the plaintiff. It is true that the rights granted are of passage for motor vehicles and pedestrians. But the fact that lot 16 is a narrow strip of land over 120 metres in length running along the western boundary of Taylors Road makes it plain that the most appropriate use of it is for the parking of motor vehicles. The actual carriageway along which vehicles move is towards the centre of Taylors Road some considerable distance from the western boundary of lot 16.

62. I turn now to consider the claim that the defendants are trespassing upon lot 16 by permitting the awnings of their shops to protrude into the air space above its surface. The consideration of this claim raises the question as to what interest the plaintiff retains in lot 16, assuming it is not beneficially owned by the Commonwealth. At common law, since the public right in a highway is a right of passage only, an owner of land over which the highway passes retains his property in the soil usque ad inferos and in the air space above the surface of the land usque ad coelum: Halsbury, supra, paras 94, 100, 101 and 102. The principles of the common law are in force as laws of Norfolk Island, subject to any contrary legislation: Judicial Ordinance 1960, s.3. In the absence of statutory provision to the contrary, the owner of the soil of a highway "has right to all above and underground, except only the right of passage for the King and his people": Goodtitle d. Chester v Alker and Elmes [1757] EngR 48; (1757) 1 Burr 133 at 146. The owner may exercise all rights of ownership not inconsistent with the public right of passage: St Mary, Newington, Vestry v Jacobs (1871) LR 7 QB 47; cf River Lee Navigation Conservators v Button (1881) 6 App Cas 685.

63. The common law principles were developed in England at a time when conditions were far different from those which have existed for many years in Norfolk Island and, for that matter, in the various states and territories of Australia. In New South Wales, the unsatisfactory situation of private landowners owning the fee simple of lands over which public roads pass has been largely overcome by the enactment of provisions such as s.232 of the Local Government Act 1919 but there appears not to be any similar provision in force on Norfolk Island.

64. In my opinion, the time may well have arrived in Australia when the common law should be developed so as to bring about the result that where land is dedicated to the public as a public highway, the dedication will be presumed to extend to the fee simple usque ad coelum et ad inferos unless the dedicator manifests an intention that the dedication should be limited to a right of passage. However, in the current state of the law, I propose to decide this case upon the basis that (on the assumption that the Commonwealth did not acquire the beneficial interest in lot 16) the dedication of lot 16 as a public road did not deprive the plaintiff of his ownership of the soil below the road or the air space above it.

65. But to decide the case on this basis does not mean that the right of the public to use lot 16 is limited to the right to use the surface of it in the condition in which it existed at the time of dedication. It seems to me that the dedication of a road to the public must carry with it an implied grant to the body charged with maintaining and controlling the road authority to carry out such works as are necessary for, or incidental to, its use as a highway, and also authority to permit others to carry out such works. For instance, a highway authority must have implied authority to raise the level of a public road or to build a bridge along part of its length for the purpose of improving the trafficability of the road in time of flood. And it is to be remembered that a public road serves the needs of pedestrians as well as motorists. Where vehicular traffic along a dedicated highway is such that the movement of pedestrians across it is difficult or dangerous, I think a body controlling the highway must have implied authority to build a pedestrian overpass into the air space above the surface of the highway itself.

66. In my opinion, the dedication in modern times of a road for use by the public carries with it the grant of implied authority to the body controlling and maintaining the road authority to carry out, inter alia, such works as are necessary for, or incidental to, its use by pedestrians. I think such implied authority extends to authorising such works to be carried out by others.

67. In my opinion the implied authority to which I have referred extended in the present case to authorise the Commonwealth to permit the construction of those parts of the defendants' awnings as encroach upon lot 16. The awnings serve two purposes. First, they provide protection from the elements to the facades and windows of the shops and the goods displayed in them. Secondly, they provide shelter for pedestrians passing along Taylors Road. The ground beneath the awnings is used by pedestrians perambulating along the footpath, which is partly on the defendants' lands and partly on lot 16. The awnings are a real convenience to pedestrians and enhance the quality of the access they enjoy when walking along Taylors Road. In these circumstances I think the Commonwealth had authority to permit the awnings to be built because they are incidental to the use of Taylors Road by pedestrians. I should add that there is no suggestion that the awnings were not approved when the plans of the buildings were approved under the Building Ordinance 1967.

68. Had I been of the opinion that the plaintiff had made out his causes of action against the defendants it would have been necessary for me to decide what damages he was entitled to recover. In my opinion, he has suffered no damage by reason of the events of which he complains. So far as the awnings are concerned, he virtually admitted in evidence that he did not claim to have suffered any loss by their erection. His claim really was for an order that they be demolished.

69. It may be conceded that in many circumstances the owner of airspace will suffer damage if a trespasser builds an encroachment into it. But in the present case the air space occupied by the awnings is unusable because of the surface of the land below is a public road. Even if it were not a road, the rights of way granted over the surface of lot 16 would render the airspace occupied by the awnings unusable by the plaintiff.

70. It was suggested in argument that, theoretically, the plaintiff could erect a building in the airspace above lot 16. This is a fanciful suggestion, but even if it were not, such a building would have to be erected at a considerable height above the encroachments so as not to prevent the movement of vehicles along the surface of the ground below.

71. In all the circumstances, I would have awarded the plaintiff nominal damages against each defendant had I been of the opinion that the plaintiff had established his causes of action against them in respect of the awnings. It is true that where a defendant has by trespass made use of the plaintiff's land, the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for its use: Whitwham v Westminster Brymlo Coal and Coke Co. (1896) 2 Ch 538 and Halsbury, supra, para 1170 and cases there cited. But on the very special facts of this case I do not think the application of this principle entitles the plaintiff to more than nominal damages in respect of any trespass occasioned by the encroaching awnings. In Whitwham the defendant derived considerable benefit from its trespass on the plaintiff's land, and damages were assessed having regard to the value of the land for the purpose for which it was actually used by the defendant. The facts of the present case are more akin to those considered in Elliott v Renner (1923) St RQd 172. In that case Shand J (whose decision was upheld on appeal) found that gates which, when opened, encroached upon the plaintiff's property were a trespass of which the plaintiff was entitled to complain. He described the encroachment as being "of a very trifling description from which no real damage has as yet arisen, or seems to be at all likely to arise". In these circumstances he awarded the plaintiff one shilling damages and ordered him to pay the costs of the action.

72. In Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd (1957) 2 QB 334, the facts were that an advertising sign erected by the defendants projected into the air space above the plaintiff's single-storey shop. The projection was held to be a trespass and on the facts of the case, McNair J. thought that the plaintiff was entitled to a mandatory injunction that the sign be removed. However, when considering what damage the plaintiff had suffered he observed that the injury to the plaintiff's legal rights was small and that the sign did not diminish the plaintiff's enjoyment of his premises. In those circumstances he said that the damages, if estimated, "would have to be stated to be nominal" (p 346). And in Armstrong v Sheppard and Short Ltd (1959) 2 QB 384 the Court of Appeal upheld an award of nominal damages of 20 shillings in a case where a sewer had been constructed, without authority, under the plaintiff's land, the damage being described as trivial as the plaintiff had suffered no inconvenience.

73. In the present case, the claim for damages caused by the encroachments might have had some substance if it had been shown that they had caused, or were likely to cause, some inconvenience to the plaintiff. But this has not been established. This is not a case of encroachments into air space superincumbent upon land which can be put to some use by the plaintiff. This is a case of encroachments into a stratum of air space which is unusable by the plaintiff and which is above the surface of land which is also unusable by the plaintiff. It would have been a stronger case for the award of nominal damages (had trespass been established) than Kelsen or Armstrong.

74. I am also of the opinion that the plaintiff has suffered no damage from the parking of vehicles on the surface of lot 16. The plaintiff called a valuer, Mr Farren, who quantified the plaintiff's damages at one-half of the value of those portions of lot 16 which lie between its eastern boundary and the front or western alignments of the defendants' premises if that land was not subject to the rights of way. In the case of the Strand Arcade, the area of the relevant portion of lot 16 was 187m2, and in the case of Swiss House the area was 87m2. He assessed the values of these areas at $8,275 and $3,850 respectively. In effect, the amounts of $8,275 and $3,850 were Mr Farren's estimate of the fee simple value of the land as affected by the rights of way.

75. Even if it were appropriate to adopt Mr Farren's approach to estimating the plaintiff's damages, it would have been necessary to reduce his estimates by 50%. His estimates are based on the value of comparable land suitable for the erection of shops. He agreed that land which is suitable only for car parking has only one half the value of land suitable for shops. On any basis, the only conceivable use of lot 16 (if unaffected by the rights of way) would be for car parking.

76. I do not think that Mr Farren's values are appropriate to measure any damage sustained by the plaintiff. After the plaintiff granted rights of way over lot 16 to the purchasers of lots 8-15, lot 16 became virtually valueless in his or anyone else's hands. This was so, whether the surface of lot 16 became dedicated to the public as a road or was merely the site of the numerous rights of way granted to the purchaser of lots in the subdivision.

77. In any event, there would be no warrant for assessing the plaintiff's damages (assuming he had established causes of action against the defendants) on the assumption that the defendants would continue after judgment to authorise trespasses upon lot 16. If I am wrong in my opinion that they are not liable for trespasses committed by persons who park on lot 16, they could avoid liability for future trespasses by exhibiting notices on their premises that they have no authority to authorise parking in the areas adjacent to their shops. If these notices were ignored by motorists, the defendants could not be made liable in trespass for the actions of persons over whom they have no control and to whom they have given no authority to enter upon the plaintiff's land. Hence, there would be no need for the defendants to purchase any part of lot 16 to avoid future liability.

78. Accordingly, had I been of the opinion that the defendants were liable in trespass by reason of the parking of motor vehicles outside their premises I would have awarded the plaintiff nominal damages against each defendant.

79. There is no evidence connecting the defendants with the planting of the trees or the erection of the wooden benches near lot 8 and accordingly the plaintiff is not entitled to any relief in respect of them.

80. The claim for injunctive relief was not pursued at the hearing. In any event, I would have refused to grant injunctive relief in respect of the encroachments on discretionary grounds. The encroachments were not erected as deliberate invasions of the plaintiff's land: cf Kelsen v Imperial Tobacco Co, supra, and Goodsen v Richardson (1874) LR 9 CH 221, both cases in which mandatory injunctive relief was granted. The encroachments in this case were erected in the belief, shared by the Commonwealth, that it was proper for them to be built. I think there are some grounds for thinking the plaintiff shared that belief.

81. For the above reasons, I am of the opinion that the plaintiff's claims against the defendants fail and his action should be dismissed with costs. The defendants' claims against the third and fourth parties should also be dismissed.

82. I do not find it necessary to deal with an argument put by the defendant that the plaintiff's claims are statute barred, at least in respect of the period more than 6 years prior to the commencement of the proceedings.

83. The question arises as to what order should be made as to the costs of the third and fourth party proceedings. At the request of counsel, I reserved consideration of this question until they have had the benefit of reading my reasons. Accordingly, all parties have liberty to make written submissions on the question of costs within twenty-eight (28) days of this date.