Australian Agricultural Co v Newcastle Municipal Council [1910] HCA 17; (1910) 10 CLR 391 (13 May 1910)

The Australian Agricultural Co. Defendants, Appellants; and The Council of the Municipality of Newcastle Plaintiffs, Respondents.

The matter for determination in this case arises upon the construction of sec. 209 of the Local Government Act, No. 56 of 1906, which is as follows:—

The respondents, having made a charge upon the appellants as for a rental charge under this section in respect of rails used by the appellants on lines of railway, their property, which cross five streets in the City of Newcastle, and the amount of the charge having been settled by the Court of Petty Sessions, brought an action against the appellants to recover the amount. Judgment was formally entered for the plaintiffs with leave to move. The Full Court was by agreement to have power to draw inferences of fact. A rule nisi to enter judgment for the defendants was granted and discharged, and this appeal is from that order.

The appellants contend that their railways are not within the terms of sec. 209. There is no doubt that the rails are laid across the streets in question, or that those streets are for most purposes public places within the meaning of the section, but the appellants say that the rails were laid and have always been maintained in the exercise of their own proprietary right as owners of the soil, and that the streets were dedicated as highways subject to this right, and they contend that sec. 209 has no application to such a case.

The streets crossed by the appellants' lines are now called Hunter Street, Darby Street, Sidney Street, Union Street, and Auckland Street respectively.

In order to appreciate the arguments it is necessary to state the relevant facts with some particularity.

By a deed of grant from the Crown, dated 20th November 1847, after reciting that by an Act of 5 Geo. IV. provision was made for the creation of a corporation by the name of the Australian Agricultural Co. for the purpose of cultivating waste lands in New South Wales and holding lands granted to them, that by letters patent or charter dated 1st November 1824 the corporation was created, that by instructions issued from time to time by King George the Fourth and King William the Fourth to the Governor of New South Wales the appellants had been authorized to take possession of the lands therein described and intended to be thereby granted, and had with the assent of the Governor entered into possession of the lands and expended large sums of money in the improvement thereof, but that no grant had yet issued, and that under an Act of 10 Vict. the Governor of New South Wales might issue grants to the company in accordance with Royal Warrants which had been issued to the effect of the grant in recital, the Queen granted to the company several parcels of land. The northern boundary of one of them, which included the soil of all the streets now in question, was described as the high-water mark of the harbour of Newcastle.

The appellants had, as recited in the grant, already been in possession of the land for some years. So far as regards the localities now in question they had been in possession from about the year 1829.

The grant did not contain any reservation of land for roads. The appellants are still, by virtue of the grant, the owners of the whole of the land except so far as such ownership has been divested or qualified by dedication of the streets, and except as to portions which they may have alienated. The municipality of Newcastle was established in 1859.

About the year 1830 the appellants erected staiths on the harbour shore for the shipment of coal, which they brought by a tramway from their mines lying to the south of the harbour; and in order to give access to the staiths from the lower surface of the land they erected a wooden structure or bridge supported on wooden piers, that crossed on a rising plane a road or track, then called the Maitland Road, which ran to the westward along or near the shore, and another part of which is spoken of in the grant in the description of another parcel of land as "a road to Maitland." There is no evidence of any particular portion of land having been defined or dedicated for this road by the appellants before 1830, and from the fact (which will afterwards appear) that in the year 1853 it was thought necessary to lay out and dedicate this part of the road formally, it may be presumed that no such dedication had been made in 1830. This part of the road is now called Hunter Street. Under these circumstences I think that the proper inference of fact to be drawn is that if any dedication of the road had been made by the appellants between 1830 and 1853, it was made subject to their right to maintain the bridge and run their coal across and over the street by their tramway. Their title to the soil of the road was not affected by the dedication. Since 1830 a new bridge, to the erection of which the Government contributed, has been substituted for the old one, and the only part of the soil of Hunter Street now occupied by the appellants is that on which one pier of the new bridge stands. In my opinion the rights of the appellants were not affected by this change.

The rights of an owner making a dedication of a highway under circumstances such as those which I have described are very clearly stated by Mellor J., delivering the judgment of the Court of Queen's Bench in the case of St. Mary, Newington v. Jacobs[1]:—"The owner, who dedicates to public use as a highway a portion of his land, parts with no other right than a right of passage to the public over the land so dedicated, and may exercise all other rights of ownership, not inconsistent therewith; and the appropriation, made to and adopted by the public, of a part of the street to one kind of passage, and another part to another, does not deprive him of any rights, as owner of the land, which are not inconsistent with the right of passage by the public." And again, at p. 54, referring to the case R. v. Pratt[2]:—"Lord Campbell, in giving his judgment, thus expressed his opinion of the law as applicable to that case. He, the appellant, was beyond all controversy on land, the soil and freehold of which was in the owner of the adjoining land, that is, Mr. Bowyer. It is true the public had a right of way there; but, subject to that right, the soil and every incident to the ownership of the soil was in Mr. Bowyer. And the other Judges, in their judgments, limit the right of the public to the use of the way for the purpose of passing and re-passing thereon."

It is now settled law that a highway may be dedicated with a limitation, or sub modo, and that in such a case the public in accepting the dedication must be taken to accept it as a limited dedication, and cannot set up a right to prevent the user of the soil for the purposes reserved by the owner for himself: Grand Junction Canal Co. v. Petty[3].

The appellants have since 1830 substituted locomotive engines for horse-power as the mode of traction upon the rails, but this alteration cannot affect their rights to the use of the soil, whatever those may be.

I pass now to the facts relating to Darby Street. Before 1851 the appellants constructed another tramway, entirely upon their own land, which ran from the westward and joined the original line at a point a little to the south of the bridge over the Maitland Road. In the year 1853 the Government of New South Wales, in the exercise of the powers conferred by the Act 4 Wm. IV. No. 11, opened a road, now called Darby Street, across this second line. That Statute authorized the Governor on compliance with prescribed formalities to "open and make" roads through private lands (sec. 2), and provided for giving compensation to persons injuriously affected by the opening of new roads. The procedure prescribed began with an advertisement in the Government Gazette notifying that a plan and book of reference, showing the intended line of road, was open to public inspection, and inviting all persons interested to transmit any objections to the Clerk of the Executive Council within a prescribed period. Such an advertisement, to which was appended a description, by lengths and bearings, of the intended road was published in the Gazette of 9th March 1852. By a notification under the hand of the Colonial Secretary, published in the Gazette of 10th June 1853, it was notified that after consideration of all objections to the proposed road the Governor-General had been pleased to confirm it, and it was therefore declared expedient to "open and make" the road accordingly, following the words of sec. 2. The legal effect of this procedure was to dedicate the soil of the road as a public highway, but not to divest the ownership of the soil from the appellants. In this respect I think the result is the same as if the soil had been dedicated by the owners. Was then the dedication absolute or was it limited and sub modo? On reference to the plan and book of reference of the intended road it appears that the proposed road began at a point to the eastward of the appellants' bridge over the Maitland Road, and comprised the portion of that road over which the bridge (which was shown on the plan), was already erected. To the westward of the bridge it turned to the south and crossed the appellants' second tramway. Both of the appellants' lines are shown on the plan, and there is nothing to suggest any intended interruption of or interference with either of them. In fact, they have not been interrupted or interfered with to this day. In my opinion, the proper inference to be drawn from these facts is that this dedication of the road by the Governor-General was a dedication subject to the appellants' rights to continue the use of their tramways over what was in law their own soil, as fully as if they had themselves dedicated it under the same circumstances. If the first dedication of Hunter Street was made at the same time, the same inference should be drawn.

The facts with regard to Sidney Street are as follows:—In 1866 the respondents desired to form through appellants' land a new street which would cross their original line. Correspondence thereupon took place between the appellants and the respondents, with the result that in the following year the appellants consented to the formation of the street (now called Sidney Street) on two conditions—(1) that a flat surface of 9 feet on one side of the rails and 6 feet on the other should always be maintained, and (2) that the appellants should have the right to alter the railway and its levels at any future time. On these facts I think that the proper inference to be drawn is that the appellants dedicated the surface of Sidney Street as a highway subject to their right to continue to run their trains across it and subject to the other express conditions mentioned.

Union Street and Auckland Street, both of which cross the appellants' second line, were dedicated by them in the years 1878 and 1908 respectively. In the case of Union Street the appellants, by a letter dated 20th September 1878, addressed to the respondents, formally dedicated to public use a portion of Union Street, which includes that in question, "except the portion of it which lies between lines parallel with the company's railway distant respectively half a chain north and half a chain south of the metals of the said railway," on certain terms. The respondents accepted the dedication so made. It will be seen that the exception extended to the whole width of the street. It follows that the soil of the excepted portion was not included in the dedication, and that any right granted to the public to pass over it was permissive only. It also follows, I think, that any dedication which may be presumed from subsequent continued user is qualified only, and is subject to the appellants' right to run their trains over their own soil across the line of the street.

In the case of Auckland Street the dedication was on substantially the same terms, except that the land expressly excluded from the dedication was a strip 4 feet 8 inches wide on either side of the centre line of the appellant's rails, that the crossing was to be blocked for wheel traffic, and that a bar was to be put down at night. The legal consequences are, I think, the same as in the case of Union Street.

In my opinion, therefore, in the case of all five streets, the soil of the streets at the crossings in question is still vested in the appellants, and their use of the soil, for supporting in the case of Hunter Street their overhead rails, and for carrying in the other cases their rails laid on the surface, was begun and has always been continued in the exercise of their own proprietary right subject to which the streets were dedicated to the public.

The question then is whether sec. 209 of the Local Government Act is applicable to such a case. I have already read the section.

The appellants contend that it only applies to cases in which a person has laid rails, &c. upon or over land which was at the time of laying them a public place, upon or over which he could not lay them without the permission of the authority having control of the place. The respondents contend that the words of the section do not relate to the time of laying, but to any time at which the place in question is de facto under the control of the council. If this view is accepted the section must be construed as meaning, when applied to a case like the present: "when land has been or may be dedicated by the owner of the soil as a public place subject to a reservation of his rights to lay or maintain rails, &c. on over or through the same, the council may make a fair rental charge, &c." In other words, the section is to be construed as authorizing the council, to whom as representing the public a privilege has been granted, to charge the grantor a rental for exercising the rights expressly reserved, and subject to which the privilege was granted. Such a construction would be a clear interference with existing vested rights of property. It is a settled rule that an enactment will not be construed as taking away vested rights, if any other construction is fairly open. Is, then, the appellants' construction fairly open upon the words of sec. 209?

In my opinion each of the phrases "a fair rental charge," "with the council's permission," and "under the control of the council," suggests primâ facie that the charge is to be made in respect of, and as consideration for, a concession made either by the council itself or by some other agency of the Government to whose rights it has succeeded with regard to the control of public places, and not in respect of the occupation of a public place by persons who have laid and who use the rails &c., in the exercise of a proprietary right, to which the council's right of control is itself subject. The words "with the council's permission" seem to imply that the subject matter of the enactment is something of such a nature that where there is a council it cannot originate or be continued without their permission, or, in other words, that the act spoken of is one done with reference to a public place which is at the time of doing the act under some control other than that of the person doing it. This primâ facie view is strongly supported by a consideration of the history of the law relating to municipalities. By the Act of 1867, which was in force until the Act of 1906, rates were imposed in respect of the occupation of land. Persons, therefore, who occupied part of the soil of a street by rails or pipes were rateable in respect of that occupation. But by the Act of 1906 rates were imposed in respect of ownership and not of occupation. It followed that persons so occupying the soil of streets were no longer rateable in respect of their occupation, and were not rateable at all in respect of the land so occupied, unless they were also the owners of the soil, which in most cases would not be the case. And, even if they were, the ownership in the case of an unconditional dedication of a highway is not beneficial, and the rateable value of the land would be nil. Sec. 209 was, therefore, as was indeed contended by counsel on both sides, enacted to deal with the case. If, however, as in the present case, the land on which the rails are laid is the subject of beneficial ownership in the persons using the rails, they are rateable in respect of it as owners, and there is no apparent reason why they should pay a double charge.

If at the time when the rails were laid the road had already been dedicated to the public without limitations, the laying of the rails could not lawfully have taken place without the permission of the authority having control of the road—at first the Government, afterwards the municipal council—or under the authority of an Act of Parliament. In that case the persons laying the rails would have been under the necessity of obtaining a permission or concession in the nature of a franchise. But, if the land is dedicated with limitations, or sub modo, the case is quite different. At best, then, the language is ambiguous, and the rule of construction which favours the preservation of vested rights should be applied.

In my opinion a rental charge is payable under sec. 209 only in respect of concessions granted either by the council or its predecessors as delegated agencies of Government, and is not payable in respect of occupation of the soil begun and continued in exercise of a proprietary right of occupation not dependent on any concession, and paramount to the right of the public to use the surface for traffic. In the one case the rails are there by permission of the highway authority, in the other the highway authority is there by permission of the owner of the rails.

It is said, however, that the streets in question are public places, and that the case is within the letter of the law. I do not find anything in the Statute to suggest that it was intended to alter the common law as to dedication of land as a highway, or to prevent an owner of land from dedicating it conditionally, or sub modo, or that the consequences of such a dedication should be different from what they were before the passing of the Act. In such a case the street is, no doubt, a street and public place, but a street and public place sub modo only, and the council, no doubt, have control of it, but sub modo only, and not so as to exclude or diminish the rights reserved by the owners of the soil at the time of dedication. It is not a forced, but a natural, construction of the section to read it in this sense.

Reliance was placed in argument and by the Supreme Court on an Act called the Newcastle Paving Act, passed in 1876 and re-enacted in 1902, which mentioned by name the streets now in question as streets then existing, and on the case of Holcombe v. Municipality of Newcastle[4], in which that Act was referred to. In my opinion that Act throws no light upon the question whether any particular portion of soil formed part of a street named in the Act, or upon the question whether the dedication of the soil of such a street, or any part of it, was conditional or unconditional. In Holcombe's Case[5] no such question arose, and the expression of opinion by Martin C.J. as to the effect of the Act was obiter only, even as to the point on which he referred to it.

I agree with the view which my learned brother the Chief Justice has taken of the facts and correspondence in this case. With regard, therefore, to the extent and effect of the various dedications of streets by the appellants, I think it unnecessary to do more than state my conclusions. In respect of each piece of land which is at present a railway crossing over a street, the rails were laid before the dedication of the street and at a time when no one but the company had rights of any kind over the land. In laying the rails the company were merely building and working railway lines on their own property. Afterwards as they opened the land to settlement they dedicated streets through it, some of which crossed their railway lines. All the streets with which we are concerned on this appeal, except one, were so dedicated, the exception is Darby Street, which was proclaimed by the Government under the Public Roads Act (4 Will. IV. No. 11). But it would appear from the proclamation and the plan and book of reference that the Government recognized the existence of the company's railway then crossing the road, and opened the road to the public subject to the company's existing rights. In my opinion, therefore, Darby Street stands in the same position as the streets expressly dedicated by the company. In each case the dedication was subject to the condition that the company reserved the right to use its railway as theretofore, not only to cross the street by the rails as then laid, but to alter levels, relay or repair as it thought fit. The dedications may be classified as follows: In the case of Hunter Street, Darby Street, and Sidney Street the reservation was of such use of the land on which the rails stood as might be necessary to give effect to the rights above mentioned. In the case of Union Street and Auckland Street the whole of the land covered by the rails together with a space on each side of them extending the whole width of the street was exempted from the dedication. All user by the public, therefore, of the portion of the last-named streets crossed by the railway was on sufferance only. In my opinion it is immaterial in considering the question before the Court whether the dedication excepted the land on which the rails of the crossing stand, or whether it merely reserved to the company the right to run trains on the rails and to alter rail levels and repair and relay the railroad whenever they deemed it necessary. In either case the company retained complete possession and control of the land which constituted the crossing in so far as it was necessary for the purposes of the railway. Subject to that possession and control they dedicated the streets to the public. Partial or conditional dedications of this kind have been long recognized by the law and their effect has been explained in many cases. I shall quote Lord Blackburn's statement in Mercer v. Woodgate[6]. In that case the Court held that the proper inference from the facts proved was that the owner of a field had dedicated to the public a right of way across it subject to his right of periodically ploughing up the whole field in due course of husbandry. Lord Blackburn in his judgment says, in explaining the nature of such a dedication: "But I can see no objection, in law, to such a partial dedication. The principle applicable to such cases is enunciated in the judgment of the Court in Fisher v. Prowse22 B. & S., 770, at p. 780.. ... It is, of course, not obligatory on the owner of land to dedicate the use of it as a highway to the public. It is equally clear that it is not compulsory on the public to accept the use of a way when offered to them. If the use of the soil as a way is offered by the owner to the public under given conditions and subject to certain reservations, and the public accept the use under such circumstances, there can be no injustice in holding them to the terms on which the benefit was conferred. On the other hand, great injustice and hardship would often arise if, when a public right of way has been acquired under a given state of circumstances, the owner of the soil should be held bound to alter the state of circumstances to his own disadvantage and loss, and to make further concessions to the public altogether beyond the scope of his original intention." Applying the principle so laid down to the present case, it is I think clear that all the streets mentioned became on dedication public roads subject to the terms of the dedication, and were open to the public for all the ordinary uses of public roads subject at the railway crossing to the right reserved by the company. Subject to those rights the streets, in so far as they were in the municipality of Newcastle, were public roads under control of the municipality within the meaning of sec. 116 of the Municipalities Act 1867.

When the Local Government Act 1906 came into force the streets passed subject to the same rights on the company's part to the control of the shire council. So passing they then became by virtue of the definition section public places under the control of the council within the meaning of sec. 209 as to the whole of each street except the crossing. Except as to that portion of each street which the company's railway crosses the control of the council became complete and unconditional for all purposes. But on the crossings the council's control could extend only so far as was not inconsistent with the rights which the company reserved to themselves at the time of dedication. I may interpose here that it is in that sense and to that extent only that the streets mentioned in Schedule C. of the Newcastle Paving and Public Vehicles Act 1876 may be taken to have been recognized by that Act, and for the purposes of the Act, as public streets. I can see nothing in its provisions which can give it any further operation. The legislature has certainly used therein no word or expression which could be interpreted as depriving the company of any right in respect to the railway crossings reserved by them at the time of dedication. Allowing to the decision in Holcombe v. Municipality of Newcastle[8] its full effect, it cannot carry the case of the respondent municipality beyond that.

Reverting, however, to the Local Government Act 1906, such, in my opinion, were the positions respectively of the appellant company and the respondent municipality when the Act came into operation. The question for determination is whether under these circumstances the rental charge claimed by the respondent municipality can be justified under sec. 209. As I have pointed out, the crossings, when the rental charge was made, were for certain purposes public places under the control of the council. The Supreme Court seem to have taken it for granted that when once a street became for any purpose a public place the power of the municipality to make the rental charge was complete. In my opinion that cannot be so on the face of the Act. It must appear that the circumstances are such as to constitute these railway crossings "public places under control of the council," not for some purposes only, but for the purposes of sec. 209. What is a public place for the purposes of the section? In answering that question it becomes necessary to examine several sections of the Act.

Sec. 3 sets out the meaning to be attached to certain words and expressions used in the Act "unless inconsistent with the context or subject matter." Amongst these is the expression "public place," which is declared to mean, amongst other things, "public road." "Public road" is defined as a "road which the public are entitled to use." Road is, of course, synonymous with street, and, speaking generally, it may be fairly conceded that each of these streets is, except as to the portion crossed by the company's railway, a public road in the fullest sense of the term. Except as to that portion, the public may use each of them without let or hindrance for any purpose for which a public road may ordinarily be used. With that exception the municipality may form, level, pave, light and otherwise deal with them as they would with any other streets. Nor can there be any doubt that, if anyone wished to lay rails across any of them at any part other than the appellants' crossings, he would be obliged to obtain the council's permission, and they would be entitled to charge him in respect thereof a rental under sec. 209. But as to those portions of the streets which constitute the company's railway crossings both the public and the municipality are in an entirely different position. The public are entitled to use that portion of the street, not at all times, but only when the company are not using it for railway purposes. Similarly the rights of the municipality are restricted. The whole surface being occupied and used for the purposes of the railway it is difficult to conceive of any of the ordinary powers of the municipality being exercised consistently with the terms of the dedication. Take for instance the powers under sec. 75. That section gives the council the control and management of public roads, authorizes them to use the roads and the soil thereof to any required depth for the purposes of the road, and prohibits any use by other persons of the surface or soil of the road in derogation of the council's powers. It is obvious that the council could not exercise any of these powers so long as the rights reserved by the company continue to exist. From which it follows that the crossings may be public roads for some purposes, yet not public roads for all the purposes of the Act. That being so, the question arises are they public roads in such a sense as will bring them within the meaning of the expression "public place" in sec. 209. The use of the expression in the context in which it stands in that section is no doubt ambiguous, and it may throw light on the ambiguity to ascertain the object of the section and the condition of things to which it was directed. It is common knowledge that in Newcastle and other mining districts there are, and have been for a long time, many colliery railways that cross public roads. The authority to make such crossings has been in general conferred by separate special Acts of Parliament. In such cases the rights of the railway owner and of the public respectively to the use of the crossing are co-ordinate—just as are the rights of foot-passengers and drivers of vehicles on a public highway. There is no subordination of one set of rights to the other; members of the public using the road and the railway owner crossing it with his train must exercise their respective rights reasonably each having regard to the rights of the other. Under the Municipalities Act 1867 municipalities were invested with the care, control and management of public roads within their boundaries, but they were not empowered to permit the crossing of public roads by railways. Under their rating powers they might in some circumstances include the railway in their assessment, but they had no authority to make a charge directly in respect of the use of the road by the railway. Under the Local Government Act 1906 new and extensive powers are conferred on the council in respect of the soil as well as the surface of public roads—powers entirely inconsistent with any use of the road not subordinate to municipal control except by the council's permission. The new power contained in sec. 209 to permit the laying of rails and other obstructions on public roads and to charge a rental in respect thereof follows not unnaturally from the nature of the control over public roads vested in the council by the other sections of the Act. As to railway crossings made after the passing of the Act the words of the section are express. The council is empowered to make a rental charge in respect of the rails laid on public roads with their permission. Obviously the charge can be made only where the council's permission is necessary and has been given. If in the present case the company had after, instead of before, the passing of the Local Government Act laid and worked these railways on their own lands and had subsequently dedicated streets to the public with reservations of rights similar to those reserved by the dedications now under consideration, it is abundantly clear that the permission of the council for running trains across the streets and the repairing or relaying of the permanent way would not have been necessary and the rental charge could not have been made, the reason being that with respect to each street the terms of the dedication itself expressly exclude such control by the council as would entitle them to object to the rails being kept and used or the trains being run over the crossing. In other words, the road at the crossing would not under those circumstances be a public road, and therefore would not be a public place in the sense in which that expression is used in sec. 209. There can be no difference in the meaning of the expression as applied to rails laid before and to rails laid after the Act came into force. The circumstances to which the expression is to be applied differ, of course, in this, that with respect to rails laid before the Local Government Act 1906 came into force the question of permission to lay them cannot arise. In that case it is only to the keeping of the rails on the crossings and the continuation of their use that the council's permission could be applicable. But the Act makes no provision for any such permission. In that state of facts it simply confers authority to make the rental charge. In my opinion, therefore, the section cannot be read as authorizing the rental charge to be made under circumstances in which, if the rails were laid after the Act came into force, the council's permission would not be necessary, and the charge could not be made. To so read it would be to impute to the legislature an intention to deprive persons laying rails on their own property before the passing of the Act of rights reserved by them in the dedication of streets, while preserving every right reserved on a similar dedication to those who laid rails on their own property after the passing of the Act. Such a reading would not only effect the destruction of existing rights retrospectively, without any clear expression of intention on the part of the legislature, but it would assume the existence in the section of a distinction in this respect between dedications of streets made before and those made after the passing of the Act which the words of the section do not justify, and which has no foundation in reason. The only construction which will give full effect to every word the legislature has used, and will at the same time preserve rights existing when the Act came into force, is to interpret the expression "public places" with reference to rails laid before the Act as including only public roads of which the public at the time when the rails were laid had all the ordinary rights of user, and across which, if the Local Government Act had then been in force, no person could have laid rails without the council's permission. Upon that reading the section includes that class of cases to which I have already referred, in which before the passing of the Act persons had acquired a right to lay rails and run trains over the roads which were at the time public roads in the fullest sense of the term, but does not include cases in which rails had been laid by land owners over their own land before dedication, if in making the dedications they reserved rights such as were reserved in the dedications now under consideration. Such being in my opinion the right interpretation of the section, it follows that the streets at the crossings in question are not public places within the meaning of the section, and that the making of the rental charge cannot be supported. I am of opinion therefore that the judgment of the Supreme Court was erroneous, and that the appeal must be allowed.

The Supreme Court treated the appellants as beyond all question persons who within the meaning of sec. 209 of the Local Government Act 1906 had laid rails over the streets in question, and the Court concentrated its attention on whether the streets come within the description of "public and other places under the control of the council." The learned Judges held they did, on two grounds—first upon the facts, and in any case by force of law. Their Honors considered that they were made public streets by virtue of the Newcastle Paving and Public Vehicles Act 1876, and referred to the decision in Holcombe's Case[9], in 1884 to the same effect. I am not prepared to disagree with the views taken by Sir James Martin and his learned colleagues. For reasons not necessary to state, beyond those contained in the judgments of those learned Judges, the Act appears to me to have been properly construed.

Mr. Piddington stated that the Act of 1876 had in the process of consolidation been repealed and re-enacted in 1902, and urged, as I think accurately, that the legislature, by repeating the language already interpreted by the Supreme Court, must be taken to have acquiesced in and adopted that construction: see per James L.J. in Greaves v. Tofield[10].

But I observe by Schedule 1 of the Local Government Act 1906 the Act of 1902 is itself repealed. So that there is now no legislative declaration extant which could compel a Court to regard the streets in question in any other than their true character.

Apart from that compulsive character I am clear, with the exception of Union Street and Auckland Street, the streets were wholly dedicated as public streets subject only to the right of the appellants to maintain and use rails for the purpose of their mine. As to Union Street and Auckland Street, I am in some doubt, but on the whole I agree with the appellants' view. The onus of establishing dedication is on the respondents, and that onus is not satisfied without satisfactorily proving the appellants' intention to dedicate. The mere acting so as to lead persons into the supposition that a way was dedicated to the public does not of itself amount to dedication. Per Lord Macnaghten in Simpson v. Attorney-General[11]. Of course conduct may be of such a nature, and so long continued, as practically to preclude any asseveration of intention to the contrary. See per Cozens-Hardy M.R. in Farquhar v. Newbury Rural Council[12]. But the length of user of Union and Auckland Streets deposed to prior to the correspondence is not, I think, such as can lead to that result, particularly when it is recollected that the respondents as the guardians of the public rights in this respect must be supposed to have known the facts. As to Union Street those facts were closer, and more easily verifiable in 1866 than now. In Union Street I think there was an exception of one portion of the street from dedication. By exception I mean it in the true sense (see Cooper v. Stuart[13]; Dickson v. Attorney-General for N.S.W.[14]). As to that portion there was no dedication, and no right of public user.

With respect to Auckland Street I think there was also an exception of the same kind.

This would be sufficient to entitle the appellants to succeed in this appeal, because the sum of £50 is a bulk sum and not apportionable. But it is proper to determine the other questions raised and argued. The other streets are, in my opinion, within the statutory description of the places required to establish the liability imposed by sec. 209. They were and are from end to end public streets, dedicated to the public and which the public are entitled to use from end to end, but subject to the paramount right of the appellant company to maintain and use rails for the purpose of their coal mine: Elwood v. Bullock[15]; Mercer v. Woodgate[16], and cases there cited. Each of those streets is therefore—not being a public reserve—exactly within the definition of "public place" given by sec. 3 of the Act of 1906.

It is also within the purview of sec. 73, which gives to the council the control of all public places, with certain exceptions within which these streets do not come. That is the situation to-day. I draw no distinction whatever as to the mode in which the appellants' paramount right originated. Whether it was co-eval with the public right of user, which came into existence subject to the reservation, or whether it was afterwards created by statutory enactment as, for instance, an Act of Parliament, expressly permitting the laying down or user of rails, makes no difference whatever. In each case, the public right is qualified, but at the same time the council has control of the whole street, subject only to the existing paramount right of user by the person entitled. The public have the right of user, and the council cannot control the street so as to preclude that, yet no one would say that therefore the council had no control of the street. Neither can it be properly said, because there is a specific exception to their otherwise general right of control, that therefore the council have not control of the whole street. For the purposes of the Act I think they have, over every inch of it, and that so far as the place where the rails are situated is concerned it is within the section.

Then comes the other branch of the question, which the learned Judges of the Supreme Court thought beyond doubt. It is this branch which has given me most cause for consideration.

Mr. Knox contended that the appellants were not persons who had laid the rails on a public place at all, because the place was not public when the rails were laid. But the public place referred to is "a public place under the control of the council." And when the definition of council is looked at (sec. 3) and traced through its composite expressions to "municipality," we find that "municipality" is defined to mean "an area constituted a municipality in pursuance of this Act." See the contrast of "shire," which means "shire constituted under this Act or any Act hereby repealed." Consequently in sec. 209 a public place under control of the council necessarily means by virtue of the Act of 1906.

Unless, therefore, all pre-existing instances, including cases where no right to retain the rails on the land was reserved, are to be excluded from the section, the suggested construction cannot be adopted; and of course no such exclusion is possible on the plain reading of the section.

The necessary conclusion is that the circumstance of the rails having been placed in position before the locus was partially dedicated to the public is immaterial. Some other criterion of non-liability must be found if the appellants are to be exonerated.

Now, the proper construction of a section of an Act of Parliament is to be ascertained by considering the whole document. The present instance is a notable example of the necessity of reading the instrument as a whole. First, let us look at the particular section itself, and after gaining what information we can from its own words, we are bound to resolve any remaining difficulties by reference to the rest of the enactment. The section empowers the council to make a fair rental charge. That is the first point of inquiry. The Act in the main is a governmental Act, and not an Act bestowing proprietary rights, or anything analogous thereto, except so far as is necessary to the exercise of public governmental action. The council is empowered to make rates, which is an act of delegated sovereignty. But when sec. 209 is reached the expression "fair rental charge" indicates a change of view, and is suggestive rather of ownership on the one side, and occupation in the absence of independent right on the other. The streets are not by the Act vested in the council, but they have exclusive powers such as an owner would have, and they have in addition a duty to exercise them. And when the legislature has designedly used an expression which naturally conveys a certain idea, some importance must be attached to it, more particularly if it is a departure from other clear expressions elsewhere employed. The rental charge may be made, levied, and recovered as rates, but it is nevertheless a fair rental charge. That is the first step. Then we have to remember that in all cases arising after the passing of the Act the charge is leviable only where the rails are laid with the council's permission. So that if a week subsequently to the commencement of the Statute a person obtained parliamentary authority to lay rails in the street, no rental charge could be made. In such a case the council's permission would not be necessary, and therefore the case contemplated by the section would not have arisen. So too if, after the passing of the Act, a person dedicated a street to the public, but subject to the right to maintain and use rails, an instance put by Mr. Knox in his reply, the same immunity from charge would exist.

It would be extraordinary indeed if a person getting an Act of Parliament after the Act was free, and one getting it before the Act was not. Any possible differentiation ought to be rather in favour of the existing right. The term "permission" is not used with reference to pre-existing acts of laying rails, because, the council, being the council under the Act of 1906, could not have given permission antecedently. But in the case of the subsequent laying of rails, the section carries on its face a discrimen, namely, where the permission of the council is necessary, and where it is not. Why not the same discrimen in the earlier case? Though the council could not in that case have given permission to lay the rails, it could, where no other authority existed, give permission to keep them there, and this permission would be involved in the making of the rental charge. The words are not inconsistent with that view, but in themselves they are not inconsistent with the opposite view. Other considerations then have to be called in aid to resolve the doubt.

One feature of sub-sec. 1 is the provision that that sub-section "shall not apply to the Crown." Primarily it would not: the legislature must have had some good reason for inserting it. Reference to the other parts of the Act shows the reason and its importance in this connection.

Sec. 75 is the keynote of the problem. It provides:—"(1) A council shall have the control and management of all public roads in its area, and may use such roads and the soil thereof to any required depth in the exercise of any powers conferred on the council. (2) No person shall use such road, or the soil of or under such road, or permit the same to be used in derogation or so as to affect the exercise of the rights or powers of the council. This provision shall bind the Crown."

Under that section the council is supreme regarding the use of the road as a public road. No person is allowed to use the road in derogation of the rights and powers of the council. Sec. 73 shows how extensive their powers are. Sec. 75 adds, "This provision shall bind the Crown." When we turn to the interpretation clause we find that "public road" means "road which the public are entitled to use." But the public are not entitled to use a road contrary to any right which is paramount, whether that paramountcy is secured by common law or by Statute. If the Crown has by Statute a right to cross a road with a railway the public user is only what is left after the railway user is deducted from the total user. So with any other person having statutory powers. And that being deducted the council is supreme, and even the Crown is bound. This is essential to remember. Of course the section is not overriding Crown or other statutory rights.

And similarly if an owner of land, subject to any rights reserved, dedicated his land to the public as a highway, the public right of user is what is left after the owner's rights are satisfied. A strong illustration of the principle is St. Mary, Newington v. Jacobs[17]. In that case two important points were decided. The first was that on the dedication of land as a highway by the owner all rights of ownership not inconsistent with the right of public passage are retained (as to which, see also Harrison v. Duke of Rutland[18], and Hickman v. Maisey)[19].

The second point was that the provisions of the Highway Acts and the Metropolis Local Management Act, so far as they applied to roads or streets and though couched in general terms, were interpreted as subordinate to the paramount rights reserved by the owner.

The council's powers and duties in respect of the public places do not extend further than is consistent with maintenance of the rights of the public. This makes it perfectly clear that where there is a right in any person independent of the council, sec. 75 does not extend to cut away that right. Short of that the council's control is complete, even to the exclusion of the Crown.

Turning again to sec. 209 we see at once why the Crown is exempted. In case the Crown may possibly in the past have laid or erected, or may in the future lay or erect rails, pipes, cables or wires, and without such authority as establishes a legal right as against the council, and therefore in derogation of the powers of the council as expressed in the very words of sec. 75, unless the council permits it, it was thought necessary to exempt the Crown from the operation of sec. 209, so as to avoid any inference arising from express inclusion in the earlier section. But that only strengthens the view that sec. 209 does not include any case where the rails &c. are maintained by right paramount. It avoids inconsistencies and harmonizes with the whole frame of the section, and with the expressions "rental value" and subsequent "permission," because it does not expose the words of the legislature to the absurdity of enabling the council to make a rental charge in respect of an occupation, which is independent of the council, paramount to its rights and powers, and which therefore is wholly inappropriate as the subject of such a charge.

There is another part of the Act which goes far to show that the legislature were deliberate in their selection of their term rental charge. It might on consideration of sec. 209 alone be thought that the expression "rental value" was a mere arbitrary term to cover any loss the council sustained by reason of the exercise of the person's rights to put down, maintain, or renew the rails, pipes, &c. But when the whole Act is looked at that is clearly not so. By sec. 109 (xl.) it is expressly provided that the council may acquire the right to exercise powers in respect of "The regulation and supervision of the opening up of streets or roads for the laying of pipes, construction of tunnels, or other purposes; the regulation of the laying of wires or cables under or over or through the roads or streets of the area for the transmission of electricity; and the making of a charge for damage resulting therefrom."

The Governor may also by sec. 187 (lxii.) make ordinances respecting the same matters.

The damage occasioned by the exercise of the rights of laying pipes. &c., however acquired, that is whether by common law or Statute, is thus provided for, and if that class of recoupment is excluded, and rates are also excluded, it leaves really nothing but what is substantially the true meaning of rental charge to be accounted for.

Solicitors, for appellants, H. J. Brown & Mitchell, Newcastle, by Andrews, Moseley & Manning.

Solicitors, for the defendants, W. H. Baker, Newcastle, by Mackenzie & Mackenzie.

[1] L.R. 7 Q.B., 47, at p. 53.

[2] [1855] EngR 371; 4 El. & Bl., 860.

[3] 21 Q.B.D., 273.

[4] 5 N.S.W. L.R., Eq., 87.

[5] 5 N.S.W. L.R., Eq., 87.

[6] L.R. 5 Q.B., 26, at p. 31.

[7] 2 B. & S., 770, at p. 780.

[8] 5 N.S.W.L.R., Eq., 87.

[9] 5 N.S.W. L.R., Eq., 87.

[10] 14 Ch. D., 563, at p. 571.

[11] (1904) A.C., 473, at pp. 493, 494.

[12] (1909) 1 Ch., 12, at p. 16.

[13] 14 App. Cas., 286.

[14] (1904) A.C., 273.

[15] 6 Q.B., 383.

[16] L.R. 5 Q.B., 26.

[17] L.R. 7 Q.B., 47.

[18] (1893) 1 Q.B., 142.

[19] (1900) 1 Q.B., 752.

High Court of Australia

Australian Agricultural Co v Newcastle Municipal Council [1910] HCA 17; (1910) 10 CLR 391 (13 May 1910)

HIGH COURT OF AUSTRALIA