Permanent Trustee Company of NSW Ltd v Campbelltown Corporation [1960] HCA 62; (1960) 105 CLR 401 (19 August 1960)

HIGH COURT OF AUSTRALIA

PERMANENT TRUSTEE CO. OF N.S.W. LTD. v. CAMPBELLTOWN CORPORATION [1960] HCA 62; (1960) 105 CLR 401

Local Government (N.S.W.)

High Court of Australia
McTiernan(1), Fullagar(2), Kitto(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Local Government (N.S.W.) - Highways - Dedication - Council - Intention to take over road - Notice - "Road" - "Road left in subdivision of private land" - "Public road" - "Owner" - Certiorari - Prohibition - Availability in respect of decision of District Court judge - Local Government Act, 1919 (N.S.W.), s. 224 (3).*

HEARING

Sydney, 1960, April 4, 5; August 19. 19:8:1960
APPEAL from the Supreme Court of New South Wales.

DECISION

August 19.
The following written judgments were delivered:-
McTIERNAN J. The reasons for judgment of Owen and Walsh JJ. in my opinion appellant. I think that those reasons, which also have the support of Herron J., are right. I cannot usefully add anything to them. The appeal should, in my opinion, be dismissed with costs. (at p406)

FULLAGAR J. This appeal should, in my opinion, be dismissed. The case has seemed to me to involve difficulties both of fact and of law, but I think it clear that neither prohibition nor certiorari is a remedy available to the appellant, and I base my decision solely on that ground. (at p407)

2. The substantive power given to the council by s. 224 (3) of the Local Government Act, 1919 (N.S.W.) is given by par. (d) of that subsection. It is a power to notify in the Gazette that any particular land is a public road. The effect of the notification is to make the land a public road, and vest it in the council. The power is given subject to three conditions. The first is that the land is a road which has been "left in subdivision of private lands" before the commencement of the Local Government Act, 1906. The second is that there exists a doubt as to whether or not it is a public road. The third is that notice shall have been served on the owner of the land of the council's "intention to take over the road". I need not pause to consider precisely what is involved in the second condition, but I think that s. 224 (3) proceeds on the assumption that a road laid out on a plan of subdivision, and "left" in it, is prima facie a public road, and goes on to enable the council, if it feels any doubt about the matter, to take steps to make the position certain. The second condition is thus perhaps not a condition in quite the same sense as the other two, but I think that it is right to treat it as a condition on which the council's power depends, because, if it is quite clear that the land is not a public road, the council is, I think, intended to be left to its power of compulsory acquisition on payment of compensation. (at p407)

3. If the council exercises, or proposes to exercise, the power given by s. 224 (3) (d) in a case where the land is not a "road left in subdivision", or if it is quite clear that the land is not a public road, or if the prescribed notice has not been given, the owner of the land has his ordinary remedies in the courts. He may bring a suit for an injunction, or, if the notification in the Gazette has actually been published, he may bring a suit for a declaration that the publication is devoid of legal effect. (at p407)

4. The statute, as I am disposed to read it, does not take away these remedies, but, for present purposes, it does not matter whether it has that effect or not. It gives to an owner of land an alternative remedy, which may be exercised at any time within thirty days of the giving by the council of notice of its intention to exercise the power. This alternative remedy is an "appeal" to a District Court judge, and, if the owner of the land pursues this alternative remedy, I would think it clear that he is bound by the decision of the judge - unless, of course, there is some vitiating element which would attract certiorari. (at p408)

5. What, then, has the judge to decide? Surely the very thing which he has to decide is whether the three conditions of the exercise of the council's power are fulfilled. It is a possible view that he has an overriding discretion, which he may exercise in the owner's favour on the ground, for example, that to take his land would involve hardship to him. But it seems to me impossible to say that the exercise of such a discretion is his only function. The three conditions are conditions of the council's power: they are not conditions of the judge's jurisdiction. Their existence is not a collateral matter which the judge cannot finally determine: it is the very matter which he is given jurisdiction finally to determine. Prohibition is thus out of the question, and, so far as I can see, no ground existed for removing the proceedings into the Supreme Court by certiorari. (at p408)

KITTO J. The order under appeal in this case is one by which the Supreme Court of New South Wales discharged an order nisi for a writ of prohibition or altenatively of certiorari. The proceeding out of which the application for the prerogative writs arose was an appeal, so-called, to a District Court judge under s. 224 (3) of the Local Government Act, 1919 (N.S.W.). It is important to observe not only the terms but the form of that provision. It prefaces its operative provisions with a description of the situation to which it applies. It applies where two conditions are fulfilled, that is to say a road has been left in subdivision of private lands before the commencement of the Local Government Act, 1906, and there exists a doubt as to whether or not the road so left is a public road. Given these conditions, four provisions are to take effect: (a) the council may serve on the owner of the land comprising the road notice of intention to take over the road; (b) if the owner has any objection he may within thirty days after such service appeal to a District Court judge having jurisdiction within the area; (c) the judge may hear and determine the appeal and make such order as he thinks fit; (d) if the owner does not appeal, or if on appeal the judge so orders, the council may notify in the Gazette that the road is a public road, and thereupon the road shall be a public road and shall vest in the council. (at p408)

2. The respondent Council took steps which are accepted as amounting to service of a notice under par. (a) on the appellant. The land referred to in the notice was described therein as St. George's Parade from Belmont Road, Glenfield, to Saywell Road, Macquarie Fields, on the western side of George's River. This description, it is agreed, identifies a strip of land of varying widths along the western bank of George's River, reaching (except for an interruption by a watercourse called Bunburry Curran Creek where it enters George's River) from Belmont Road to Saywell Road. It is a strip of land shown on a deposited plan dated 20th July 1883, that is to say a plan of subdivision deposited with the Registrar-General, in the Lands Titles Office (or the Registry Office as it was called), under s. 101 of the Real Property Act, 1863 (26 Vict. No. 9). On that plan it is marked "St. George's Parade". Other strips of land also are shown on the plan as roads. The plan was deposited by one Thomas Saywell who was then the registered proprietor of an estate in fee simple in a large tract of land of which the land comprised in the plan forms a part. It is an agreed fact that by 1895 all the lots shown on the deposited plan as fronting St. George's Parade, twenty in number, had been sold and transferred by Thomas Saywell. The appellant is the sole executor of Thomas Saywell's will, but it may be remarked in passing that so far as appears from the evidence no transmission has been entered on the register in respect of the unsold lands in the subdivision, that is to say those portions of the land comprised in the deposited plan which are shown thereon as roads. (at p409)

3. The appellant appealed to a District Court judge, Judge Berne. By so doing, it must be taken, in my opinion, to have treated the case as one to which s. 224 (3) applied; that is to say, it must be taken to have accepted as facts: (1) that St. George's Parade between Belmont Road and Saywell Road was, within the meaning of the provision, a road which had been left in subdivision of private lands before the commencement of the Local Government Act, 1906; and (2) that there existed a doubt as to whether or not that road was a public road. The learned judge dismissed the appeal, but he made no other order. The appellant then obtained the order nisi, of the discharge of which it complains in this appeal, seeking prohibition against any further proceeding upon Judge Berne's order, and certiorari to quash that order. Both writs were sought on the ground of want of jurisdiction in the judge. Certiorari is out of the question. The judge obviously had jurisdiction to dismiss the appeal, and that is all that he did. As to prohibition, the same applies so far as the dismissal of the appeal is concerned; but as regards a possible future order under par. (d) of s. 224 (3) authorizing a notification in the Gazette that a road is a public road, it may be that even a party who has appealed may, upon his appeal failing, withdraw his implied admission that the preliminary conditions of s. 224 (3) are satisfied, notwithstanding that that admission provided the jurisdictional foundation for the appeal, and in order to obtain prohibition against the making of the order under par. (d) may rely on the ground that upon the evidence before the judge, or on his findings, or in fact, the conditions are not satisfied. For the purposes of this case I shall assume, without deciding, that it is not necessarily a reason for refusing the appellant a writ of prohibition that it was itself the appellant before the District Court judge; for in order to deal with the argument presented for the appellant I find it sufficient to consider the construction of s. 224 (3) and the evidence in the case. Three contentions were advanced: that there was no evidence that St. George's Parade was a road; that there was no evidence that, if a road, it had been left in subdivision of private lands; and that on the evidence it was, beyond doubt, not a public road. (at p410)

4. The first point to be noticed on the construction of s. 224 (3) concerns the word "road" where it first occurs. I think it is a mistake to construe the provision as applying only in respect of a road in the sense of a formed way, or even of a tract of land in a physical condition admitting of use for purposes of traffic. It is true that "road" is defined in s. 4 to mean road, street, lane, highway, pathway, or thoroughfare, and that each of these terms suggests a place adapted, or at least suitable, for passage. But s. 224 (3) does not use the word by itself. The case to which it applies is that in which there exists a state of affairs described by the words "a road has been left in subdivision of private lands". "Subdivision" is defined by s. 4 (as amended in 1927) to mean and refer to dividing land into parts, whether the dividing is (a) by sale, conveyance, transfer or partition; or (b) by any agreement, dealing or instrument inter vivos (other than a lease for a period not exceeding five years without option of renewal) rendering different parts thereof immediately available for separate occupation or disposition; or (c) by procuring the issue of a certificate of title under the Real Property Act, 1900, in respect of a part of the land. This definition is subject to some exclusions which need not be noticed here. The point to observe is that since a subdivision in the sense of the Act is not the result of physical actions, but is the result of transactions dividing up land in point of title, it is necessary to give the word "road" in s. 224 (3) a meaning such that a division of private land into parts by dealings affecting title may, without more, leave a "road". In my opinion there is a road left in sub-division, within the meaning of the provision, at least where transactions of the kinds included by the definition in the modes by which subdivision may be effected have been carried out by way of giving effect to a plan of subdivision, and have left either undisposed of or disposed of for the purposes of a road a strip of land shown as a road on the plan. (at p411)

5. It is necessary only to look at the plan of subdivision in the present case to see at once that the dividing of Thomas Saywell's land into parts by the selling and transferring of the twenty lots must have been carried out by subdivider and purchasers alike on the footing that the strip marked as St. George's Parade was being retained in the name of the subdivider (I say nothing as to whether the ad medium filum rule had any application) as a site for a road, and that it would not be dealt with otherwise than for the purposes of a road. True, it was left as a paper road only, and a paper road for the most part it has remained ever since; but in my opinion what happened is enough to satisfy the first of the two conditions of the application of s. 224 (3). (at p411)

6. Then as to the condition that there exists a doubt as to whether or not a road left in subdivision of private lands is a public road. "Public road" is defined by s. 4 to mean "road which the public are entitled to use", and to include "any road dedicated as a public road . . .". Clearly enough, a complete and unrestricted dedication is not required. A case which, in my opinion, the definition covers is that in which land has been opened to the public for use as a highway but has not yet been so used that the implied offer of dedication has been accepted. The expression "entitled to use" is not one of so fixed a legal import that in the context its reference is necessarily to a public right of way existing by reason of dedication. It is apt enough for the case where public use of the land as a way is permitted by the person having the legal right to possession; for in such a case a member of the public as such, may pass and repass without being guilty of trespass. With this in mind, I think that s. 224 (3) applies wherever a dividing of land by any of the included methods mentioned in the definition has left land for a road, and there is some ground for thinking that the land either may have become actually dedicated as a highway or, short of that, may have been so opened to the public that at the time the notice is given there is a standing invitation to the public to use it as a way, but the question is not free from doubt whether either of these situations exists. (at p411)

7. The main theme of the appellant's argument is that when the evidence is considered no reason appears for thinking that St. George's Parade, even if it was left for a road in subdivision of private lands, may have become dedicated to the public. If the only question were whether the evidence would justify a finding of an accepted dedication, I should be inclined to go with the appellant to the extent of saying that the evidence of such a dedication is extremely tenuous, but I should not be prepared to go further. In any case, that is not the only question. If it be asked whether the evidence would support findings that Thomas Saywell opened St. George's Parade to the public with the intention that the public might make use of it as a road and so, in the course of time, bring about an accepted dedication and whether the Parade has ever since lain open accordingly, the answer, I think, would have to be in the affirmative. I respectfully agree in the view expressed by Harvey J. in Attorney-General v. The City Bank of Sydney (1920) 20 SR (NSW) 216, at p 221; 37 WN 51, at p 53 , 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 Thomas Saywell 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 frontagers and persons desiring access to their allotments. Nothing but differences of physical condition has ever distinguished it from the other roads shown on the plan; yet by the deposit of the plan the other roads were undoubtedly offered for public use as roads, and the appellant does not dispute that the use which has since been made of them has resulted in their becoming dedicated highways. It is true that St. George's Parade has remained largely in a state of nature, and that not only is it even now impassable over substantial portions of its length but the terrain is so difficult that the cost of constructing a roadway would seem likely to be prohibitive. But there is nothing in these circumstances to justify a conclusion that the depositing of the plan offered the use of the Parade to a restricted class of persons only, while offering the use of the other roads to the public generally. (at p412)

8. It was for generally similar reasons that the Supreme Court discharged the order nisi. In my opinion the decision was correct and the appeal to this Court should be dismissed. (at p412)

MENZIES J. The Local Government Act, 1919 (N.S.W.) by s. 224 provides that where any road has been left in subdivision of private lands before a particular date and there exists any doubt as to whether or not it is a public road, the council may give notice of intention to take over the road and thereupon an owner having any objection may appeal to a District Court judge; if the owner does not appeal, the road becomes a public road and vests in the council; if the owner does appeal, the judge may hear and determine the appeal and make such order as he thinks fit; if he so orders the council may notify in the Gazette that such road is a public road and thereupon the road becomes a public road and vests in the council. (at p413)

2. The Council of Campbelltown served notice upon the Permanent Trustee Company in respect of St. George's Parade on the footing that it was a road left in subdivision of private lands and it was doubtful whether it was a public road or not. The appellant objected and its appeal was heard by Judge Berne, who dismissed the appeal but omitted to make an order authorizing the Council to notify in the Gazette that the road was a public road; as yet there has been no such notification. Upon the dismissal of its appeal the appellant sought prohibition to restrain further proceedings upon Judge Berne's judgment and certiorari to quash the proceedings before him, and a rule nisi was granted. The ground was that his Honour had no jurisdiction to make an order dismissing the appeal. The rule was discharged by the Full Court on the ground that it was open to the learned District Court judge to find as he did that St. George's Parade was a road left in subdivision of private lands and it was doubtful whether or not it is a public road. This appeal is from that order of the Full Court. (at p413)

3. I agree with the Full Court that Judge Berne had jurisdiction to dismiss the appeal and, if he should see fit to do so, to authorize the publication of a notification, but before setting out my reasons for so doing I should say that I fail to understand how a party who institutes proceedings can, when the case goes against him, successfully proceed either by way of prohibition or certiorari to have his own proceedings prohibited or quashed on the ground that his proceedings were beyond the jurisdiction of the tribunal whose decision he invoked. If it was within the jurisdiction of the District Court judge to allow its appeal, as the company unquestionably asserted, then there was also jurisdiction to dismiss the appeal. I consider, for this reason alone, the company's proceedings for prohibition or certiorari were doomed to fail: see S. A. de Smith's Judicial Review of Administrative Action (1959) pp. 314-316. (at p413)

4. The grounds upon which it was contended that the District Court judge had no jurisdiction were in short that St. George's Parade was not a road; that it was not a road left in the sub-division of private lands; and in any event that it was so clear that it is not a public road that no doubt existed as to whether it is so or not. The argument was that correct findings as to these matters by the District Court judge were essential to his jurisdiction so that in the event of error he was subject to control by the Supreme Court by means of one or other of the prerogative writs. I am not prepared to accept the basis of this argument because it seems to me that the jurisdiction of a District Court judge cannot be made to depend upon his correctly deciding the matters which the section commits to his decision; but even upon the basis upon which the case was argued for the prosecutor I am satisfied that no case for prohibition or certiorari was made out. (at p414)

5. The private land in question that had been subdivided was an area of some sixteen thousand acres near to what is now the Glenfield Station. At the time of the subdivision in 1883 the land was comprised in Certificate of Title, vol. 618, fol. 6. The subdivision was in accordance with deposited plan 960, and it appears from the judgments of the members of the Full Court that all the lots had been sold by 1885. The land was bounded on the north by the Great Southern Railway and on the south by George's River. St. George's Parade was one of the many roads shown upon the subdivisional plan and is a strip of land running approximately east and west along George's River from a government road on the east to another subdivisional road, Saywell Road, on the west, a distance of some one hundred and sixty chains. In the course of the hearing before Judge Berne, sketchy evidence was given about the state of St. George's Parade and the use made of it since 1912, but there was no evidence about the use made of it between 1883 and 1912. Present-day photographs were exhibited and its present condition was described. It may be concluded from that evidence that St. George's Parade is a rough strip of land following the course of the river to which picnickers go and along which tracks have in places been trodden; that at the eastern end between Bunburry Curran Creek and the government road - a distance of about twelve chains - a track was at one time cleared to allow the passage of trucks carrying sand; that the only way to cross Bunburry Curran Creek would be to scramble down steep, scrubby banks and pass through the water; that even foot-passage along much of the so-called road is difficult because in places it is low-lying and much of it is obstructed with rocks and scrub and although on some occasions the road has been traversed from end to end, such a journey is an unusual occurrence. (at p415)

6. The plan of subdivision showed St. George's Parade as one of many subdivisional roads; there was evidence of fencing along part of its northern barrier; there was evidence of the public going to and fro along St. George's Parade and this without permission, force or stealth. The contention that St. George's Parade is not a road at all is met, I think, by the evidence that it is shown as a road upon a surveyed plan of subdivision, and notwithstanding that the evidence of its use from end to end as a means of going to and fro is negligible, it is clear that parts of it were so used with sufficient frequency to form pathways and one section had been used for the passage of vehicles. So far as the contention that St. George's Parade had not been left "in subdivision" is concerned, it seems to me that when there is a subdivision of private land according to a plan which shows roads to serve lots and link up with the road system of the State, then there are roads left in subdivision. Coming now to whether it was doubtful whether St. George's Parade is a public road, I would say first that I regard it as an artificial and unreal conception that when roads are left in subdivision they are left as private roads merely for the use of those who want to get to land in the subdivision. It seems more realistic to treat such roads as shown as part of the general roadway system and as open to all so that unless access is prevented by fencing or otherwise, roads shown upon a plan of subdivision are properly to be regarded as open to the public, with the consequence that if there is use of such a road as a means of passage by any members of the public, whether owners of land in the subdivision or not, then it is a public road: Attorney-General v. The City Bank of Sydney (1920) 20 SR (NSW) 216: 37 WN 51 . Assuming that to constitute St. George's Parade a public road dedication by the owner and acceptance by the public are both required, it seems to me that in this case there is overwhelming evidence of the intention of the owner to dedicate the road as a public road and some evidence of acceptance by the public, so that the road fell clearly into the category of one about which there is a doubt whether it is or is not a public road. It is to be observed that what can be regarded as use by the public as a means of passage will inevitably depend upon the state of what is open as a road to the public. If the strip of land is rough, timbered and full of obstructions, then for members of the public to push a way through scrub and clamber over or around the obstructions is sufficient use, and it seems to me that upon land of that sort, the wearing of footpaths is ample demonstration of such use. This was the case upon St. George's Parade. Furthermore, the lack of complete information about the use of St. George's Parade by the public, including the lack of any information prior to 1912, is, in the absence of evidence establishing use by the public, itself ground for doubt whether it has been used so as to make it a public road. There is no ground whatever for concluding that the Council was not in doubt whether St. George's Parade was a public road. (at p416)

7. My conception of the scheme of the section is that unless the statutory conditions have been fulfilled, a council giving a notice could be restrained from acting upon it; where, however, the notice is not challenged in this way but there is objection and appeal, it is open to the District Court judge to allow the appeal and refuse an order if he thinks either that the statutory conditions for the giving of the notice have not been fulfilled or that there exist other grounds for refusing to exercise his discretion, e.g. that the council does not require the land for use as a road, or hardship on the part of the owner in being dispossessed of his land, although I think the latter ground could but rarely exist if the road had been opened to the public in the sense previously mentioned. Here, not only because I regard proceedings by way of an application for prerogative writs as misconceived but also because the evidence shows that s. 224 was applicable to St. Geroge's Parade, I think the appeal should be dismissed. (at p416)

8. The question whether proceedings under s. 224 before a District Court judge are protected from prohibition or certiorari (cf. District Courts Act, s. 51, and Boulus v. Broken Hill Theatres Pty. Ltd. [1949] HCA 8; (1949) 78 CLR 177 ) was not raised and in the view I have taken it is not necessary to pursue this matter. (at p416)

WINDEYER J. This case has arisen from proceedings under s. 224 of the New South Wales Local Government Act 1919. Those proceedings were not, it seems, the result of a desire on the part of the respondent Council to develop the strip of bushland along the bank of George's River, called on the map St. George's Parade, into a formed and trafficable road. They came about because there are deposits of sand in the bed of the river and along its banks that in recent times have been found to have considerable commercial value. Certain persons interested in obtaining sand by suction dredging agreed to pay the Council a royalty for a wayleave to take sand extracted from the river across St. George's Parade. Whether or not these sand-getters have any title to the sand beds below the stream on the left side of its middle line was not established. And, assuming that St. George's Parade is or becomes a public road, the right of the Council to require payment for its use as a road or to authorize its obstruction by pumping gear in return for a tribute was not made clear. But it is apparently considered by both parties that the proceedings under the Local Government Act will determine the ownership of the soil of St. George's Parade. For if it be a public road, it, the soil thereof and all materials of which it is composed, vest in the Council in fee simple by virtue of s. 232. That section gives the Council greater rights than some corresponding provisions in England give to authorities in whom roads are vested (The Mayor etc. of Tunbridge Wells v. Baird (1896) AC 434 ; Tithe Redemption Commission v. Runcorn Urban District Council (1954) Ch 383 ). And in New South Wales if a public road be closed or diverted the land does not revest in the original owner. It becomes Crown land (Public Roads Act, 1902, s. 20; Local Government Act, 1919, s. 276). The appellant based its claim to appeal as of right to this Court on an assertion that there are on St. George's Parade itself deposits of sand worth at least three thousand pounds and that their ownership depended upon the outcome of these proceedings. But, as sub-s. (3) of s. 232 provides that the vesting of a public road in the council in fee-simple shall not affect the right of any person in respect of any minerals below the surface of the road, and for other reasons that will appear, the amount directly at stake for the appellant may not be as much as it asserts. (at p417)

2. Two conditions must be fulfilled before the council can move to take over a road under s. 224. First it must be a road that was "left in subdivision of private lands before the commencement of the Local Government Act, 1906". Secondly, there must "exist a doubt as to whether or not it is a public road". If these conditions exist the council may "serve on the owner of the land comprising the road notice of intention to take over the road". The owner if he "has any objection" may appeal to a District Court judge. The section provides that the judge "may hear and determine the appeal and make such order as he thinks fit"; and that "if the judge so orders, the council may notify in the Gazette that such road is a public road, and thereupon the road shall be a public road and shall vest in the council". (at p417)

3. Unless the facts satisfy the two initial conditions abovementioned, the council cannot act under s. 224. And if on an appeal to a District Court judge he considered those conditions did not exist at the date when the council served notice on the owner, he should, I think, refuse to make an order. The nature of his jurisdiction on an "appeal" is by no means clear. But these seem to be matters which he has jurisdiction to determine, not merely collateral matters on which his jurisdiction depends. But I do not think his jurisdiction is limited to deciding whether or not the council had power to act under s. 224 (3). The structure and wording of sub-s. (3) suggest rather that, on the basis that facts exist which enable the council to give notice of its intention to take over the road, the judge is to consider whether and on what conditions it should be allowed to do so. Although there are no wide words in s. 224 about the public interest or what is reasonable in the circumstances, such as appear in other sections of the Local Government Act (e.g., ss. 289 (m), 341, 495A) providing for appeals to a judge from councils' decisions, nevertheless it seems that under this section also the judge may control the exercise by a council of its powers according to his discretion - a very different task from the judicial determination of questions of fact or of law. (at p418)

4. At the hearing before Judge Berne the Council began, and in the transcript of those proceedings it is called "the applicant". But the proceedings were instituted by the present appellant, and in the plaint it is described as the appellant and the Council as the respondent. His Honour delivered a judgment in which he stated the appeal was dismissed. He did not expressly order pursuant to s. 224 (3) (d) that the Council might notify in the Gazette that the road is a public road. But that he intended this may be implicit in his dismissal of the appeal. The present respondent's application to the Supreme Court for a writ of prohibition was to prevent anything further being done in the matter by the learned judge or by the Council. The hearing before this Court proceeded by agreement on the basis that his Honour still has control of the matter and would carry out his judgment by an express order in accordance with s. 224 (3) (d). If the case were otherwise one for prohibition the application would therefore not be too late (Estate and Trust Agencies Ltd. v. Singapore Improvement Trust (1937) AC 898, at p 918) The appellant's contention is that the learned judge came to an erroneous decision on collateral facts on which his jurisdiction depended. But, as I have said above, it is at least doubtful whether, even if his Honour was in error in thinking that the preliminary requirements of s. 224 had been met, that would be a ground for either prohibition or certiorari to quash. It may be that at an earlier stage proceedings could have been brought in equity for an injunction to prevent the Council proceeding with its intention to take over the road under s. 224 if the conditions enabling it to do so did not exist (cf. Campbell v. Municipal Council of Sydney (1925) AC 338; (1923) 24 SR (NSW) 179; 40 WN 154 ; Municipal Council of Rockdale v. Municipal Council of Kogarah (1926) 26 SR (NSW) 552; 43 WN 161 ). However, the matters argued before us were in substance whether the conditions for the operation of s. 224 in fact existed. And on that basis I shall consider the matter, only observing here that the proceedings by "appeal" under s. 224 seem an unsatisfactory means for resolving a complicated question of title to land, especially as it is apparently thought that a determination of the status of St. George's Parade will, or indirectly may, determine also the right to the bed of George's River and the sand there ad medium filum aquae. (at p419)

5. The first question is: was St. George's Parade in 1957, when the Council served the notice under s. 224, a road that had been "left in subdivision of private lands before the commencement of Local Government Act, 1906"? (at p419)

6. In 1883 Thomas Saywell was the registered proprietor under the Real Property Act, 1862 for an estate in fee simple of sixteen hundred acres in the Parish of Minto. The land was private land within the meaning of the Local Government Act, 1919, which defines private land as "land the fee-simple of which is not vested in his Majesty the King . . .". It is incorrect to speak of land that belongs to the Queen jure coronae as land the fee simple of which is vested in the Queen. But what is meant is plain enough and Thomas Saywell's land was private land. Saywell subdivided it into allotments for sale as a township. In conformity with s. 100 of the Real Property Act, 1862 he deposited a map of his subdivision with the Registrar-General. That section - which became s. 113 of the Real Property Act, 1900, later repealed and superseded by s. 196 of the Conveyancing Act, 1919 - required that the map should "exhibit distinctly delineated all roads, streets, passages, thoroughfares, squares, or reserves, appropriated or set apart for public use and also all allotments into which the land was divided marked with distinct numbers or symbols". Saywell's map, which was recorded as deposited plan 960 dated 20th July 1883, did all of this. It showed an extensive road system with named roads serving the various allotments. One of these roads was named St. George's Parade. It was delineated as running alongside the left bank of George's River, and as connecting the western end of Saywell Road, one of the roads of the subdivision, with the western end of what is now Belmont Road, described in Saywell's Certificate of Title as a "Government road one chain wide". The allotments in the subdivision were all sold within a few years; but none of those that abut on St. George's Parade have been built on. They are still vacant bushland. And St. George's Parade is very different from the riverside promenade that its name and situation on the map might suggest to the imagination. It is in most parts just rocks and scrub. In one place it has been used for a short distance by trucks carting sand but along some parts of it even a pedestrian could only make his way with some difficulty. The appellant contended that it was not a road left in subdivision, because, he said, it was not a road at all. Certainly few people would call it a road. But the word "road" is given a wide meaning by definition in the Local Government Act. And, "'public road' means road which the public are entitled to use and includes any road dedicated as a public road by any person or notified proclaimed or dedicated under the authority of any Act . . .". What exactly this means is not clear. It seems suggested that it means that any road that any member of the public may use without being a trespasser is, for the purposes of the Act, a public road. That would include roads not dedicated for public use but which the public are permitted to use by a temporary licence or by a revocable but subsisting licence from the landowner. But as such they would come under the care of the council (s. 249), would vest in the council in fee simple (s. 232) and could not be closed to the public except by the council and in accordance with the Act. None of this would be consistent with a revocable licence. In my view, therefore, when the Act speaks of a public road as a road the public are entitled to use, it means land over which a public right of way exists - that is to say, a highway in the common law sense. The latter part of the definition I think merely indicates that the dedication that creates a highway may have been effected by any of the several methods there mentioned. (at p420)

7. It is the public right to use the land as a way, rather than its physical nature, that makes land a highway (Harrison v. Duke of Rutland (1893) 1 QB 142 ). At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proferred dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road. The main exceptions are mortgagors, who require the consent of their mortgagees, and trustees and bodies corporate if they are not empowered to do so. The only notations on Saywell's certificate of title were that his estate was subject to dower, if any, in the wife of a predecessor in title as to part of the land, and a Registrar-General's caveat dated 20th December 1882, the nature of which was not proved. It may be assumed therefore that he was competent at common law to dedicate roads over his Minto land to the public. And in 1883 the common law power of a landowner to dedicate roads was not restricted by provisions requiring the local authority to approve, such as appeared later in the Local Government Act, 1906, ss. 99-101, the effect of which in relation to s. 224 of the Local Government Act, 1919 is explained by Walsh J. in his judgment in this case. The statute dealing with local governing bodies was then the Municipalities Act of 1867. Section 117 provided that municipal councils should have the care, construction and management of public roads other than the main roads of the Colony and roads exempted from such control by s. 118; but that no municipality should be compelled to take the charge or management of any new road laid down by any proprietor upon or through his own land which should be less than forty feet in width or if more than forty feet and less than sixty-six feet until it had been fully made and completed. This, however, merely made it unnecessary for the municipalities to keep up such new roads. It did not prevent the dedication of new roads. Moreover there is nothing before us to show whether in 1883 this land was within a municipality. Campbelltown was incorporated as a municipal district on 21st January 1882 and Liverpool on 27th June 1872, according to the appendix in Browning on The Municipalities Act of 1867. But what their boundaries then were does not appear from the evidence. The Width of Streets and Lanes Act of 1881, commonly known as Reid's Act, was in force. It provided that every street laid out or defined after 20th December 1881 must be at least sixty-six feet wide and every lane since 20th October 1881 at least twenty feet wide. But it was not suggested in argument that this would have prevented the effectual dedication of St. George's Parade as a public road. So that its effect need not be considered, except to say that it does not lessen any doubts there may be about the status of St. George's Parade (see Carpet Importing Co. Ltd. v. Beath & Co. Ltd. (1926) NZ GLR 424 ; Rich v. Miles (1909) 10 SR (NSW) 84; 26 WN 187 ). (at p421)

8. There was in 1883 no statutory provision like s. 336 of the Local Government Act, 1919 as now affected by s. 196 (7) of the Conveyancing Act, 1919-1930. But Saywell's lodging of his plan of subdivision with the Registrar-General had two results. Firstly, it gave those who purchased and took transfers of lots by reference to the plan, and their successors in title, a right to use as a way of access any road shown on the plan on which their lots abutted. St. George's Parade thus became available for use as a private or occupation road for the benefit of at least the owners of the allotments abutting on it and perhaps the owners of other allotments in the subdivision also. Whether it was formed or unformed as a road, they got a lawful right of way over it (Dabbs v. Seaman [1925] HCA 26; (1925) 36 CLR 538 ; Cowlishaw v. Ponsford (1928) 28 SR (NSW) 331; 45 WN 94 ). In my view therefore St. George's Parade was a road left in subdivision. (at p422)

9. The next question is can it be said that "there exists any doubt as to whether or not it is a public road"? Here the second result of the deposited plan becomes relevant. It was lodged pursuant to a statutory requirement that it exhibit distinctly delineated all roads set apart for public use. It thus manifested an intention and offer to dedicate as public roads the roads shown on it (Baird v. Jackson (1884) 2 NZLR CA 271 ; Attorney-General v. The City Bank of Sydney (4)). It has been said that any act which unequivocally indicates an intention on the part of the owner of land to abandon to the public right of passage over it will be effectual as a dedication (Pratt & Mackenzie on Highways 19th ed. (1952) p. 25). But in 1883 lodging a plan of subdivision was, in itself, only an offer to dedicate the roads shown on it. That offer to the public would be ripened into a complete dedication only by its acceptance by the public. If, before such acceptance, the landowner had decided not to go on with the subdivision and had done nothing beyond lodging his plan, he could retain possession of all the land and exclude the public from it and deny them the right to use as roads those parts of the land shown on the plan as roads. But once 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 (NSW) 216; 37 WN 51 ). 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 (NSW) 354; 28 WN 107 ). This apparently occurred in respect of the other roads in Saywell's subdivision. But until recently, when the sand became important, the Council took no interest in St. George's Parade. It neither levied rates in respect of it as if it were private land nor cared for it as if it were a public road. And the trustees of Saywell's estate seemed to have forgotten about it. Was there then any user by the public sufficient to complete its dedication as a highway according to the offer made by the deposited plan? (Cf. Attorney-General v. Biphosphated Guano Co. (1879) 11 Ch D 327, at pp 339, 340 ). This is not a case in which it is suggested that dedication is to be inferred from user alone. The animus dedicandi is not to be inferred from the landowner suffering a use of his land as a way. The animus dedicandi is expressed on the face of the plan. Therefore no great amount of public use was necessary to make the dedication complete. It is, however, at least doubtful whether any use after 1906 could make a dedication effectual if it had not become effectual before 1906. That is because the Local Government Act, 1906, which came into operation on 1st January 1907, provided that new roads could not be opened except in accordance with the new statutory provisions. That Act made a distinction, marked in s. 101, between the opening of a road and its dedication. A road might be opened without being dedicated. This distinction seems to have disappeared in the 1919 Act (In re A Caveat by the Council of the Municipality of Botany; Ex parte Homelands Development Co. Ltd. (1936) 36 SR (NSW) 615; 53 WN 251 ). But although user by the public after 1906 probably could not make a road that was not already in law a public road into a public road, it might be so connected with prior user as to be evidence of a dedication before that date (Folkestone Corporation v. Brockman (1914) AC 338, at p 349; (1914) 83 LJ KB 745, at p 748 per Lord Kinnear). It therefore becomes necessary to consider what evidence there was here of public use of St. George's Parade. (at p423)

10. It was not disputed that parts of St. George's Parade have for a long time been places of public resort, especially in summer. Many people go there to picnic and to swim in the river, and in parts tracks have been worn along the bank. But Mr. Bowen argued that that was not using the land as a road. Indeed, he said, the use of the river bank as a place for rest, recreation and loitering showed only that it was not being used as a road. That is so. And as was said in Batt v. Beaverton (1923) 3 DLR 424 - where the facts were not unlike those of this case - "The use necessary to evidence an acceptance of a dedication must be a use by the public of the land as a road" (1923) 3 DLR, at p 431 . But, if there be evidence from which effectual dedication as a road can be inferred, its effect is not diminished because some people by loitering and dalliance on occasions obstruct the road. The evidence here of use of the land as a passageway is not strong, and there is no direct evidence of any use of it before 1906, because the witness who had known it longest was only born in 1906. Nevertheless, I think that if we had to determine one way or the other whether St. George's Parade had become in law a public road before 1906, it might be possible to hold, as Judge Berne apparently did, that it had. But we do not have to decide this, for the Council's right to invoke s. 224 depends upon there being a doubt about the matter. Before the learned District Court judge the Council tendered only scanty evidence of user of St. George's Parade as a road. But all it had to do was to prove that a doubt existed, not to dispel it. There was some discussion before us as to who must have the doubt, whether the Council or somebody else, and whether what is meant is a doubt that exists because the relevant facts are not known or a doubt that still lingers in the mind after the facts are ascertained. If a council reasonably considers that there is a doubt whether or not a road left in subdivision is or is not a public road then I agree with Owen J. that a doubt exists within the meaning of s. 224. But in my view the phrase "there exists any doubt" does not refer to a doubt held by any particular person or persons. The expression seems to have an impersonal significance and to mean (as the conveyancing question whether a title is doubtful has been said to mean) might the matter be fairly and reasonably questioned by competent people (see Webster on Conditions of Sale 3rd ed. (1907) p. 188; Williams on Vendor and Purchaser 4th ed. (1936) p. 1058). It is not inconsistent with the existence of a doubt that it might be resolved by a court on an examination of the evidence, provided it had not been finally resolved when the council gave notice of its intention to take over the road. (at p424)

11. The situation that exists here seems to me therefore to be exactly that which the section is intended to meet. Marking out and leaving a road when land was subdivided and sold before 1906 amounted to an offer to dedicate it to the public. If it was uncertain whether there had been use by the public sufficient to constitute an acceptance and thus make it already a public road, then the council could step in and accept it on behalf of the public, because further use by the public after 1906 could not have that effect. (at p424)

12. Notice of the council's intention to take over the road must be given to "the owner of the land comprising the road". Is the Permanent Trustee Company such owner? It was not suggested that it is not. But the question is of some importance for it is the owner who must be given notice and who can appeal to the District Court judge. I think the section must mean the person who, if the land be not a public road, is the owner - "owner" being defined in s. 4 as inter alia a person entitled to an estate of freehold in possession. If it be a public road, the Council has since 1920 been the owner. The assumption that for the purposes of s. 224 the Permanent Trustee Company as trustee of Saywell's estate is the owner, and the only owner, seems to me to overlook the doctrine that the owner of land adjoining a highway owns the highway too ad medium filum. This rule rests upon a presumption of the common law, and it is "too deeply embedded in the law to be disturbed or doubted" (per Lord Shaw of Dunfermline in The City of London Land Tax Commissioners v. Central London Railway (1913) AC 364, at p 380 ). It follows that if a landowner who thus owns half the soil of a road (subject, of course, to the public right of way) conveys land bounded by the road, the conveyance will be construed as passing that land usque ad medium filum viae. Both the presumption of law and the rule of construction are rebuttable (see Norton on Deeds 2nd ed. (1928) pp. 252-259). But, except when rebutted by circumstances or modified by statute, the doctrine of extent ad medium filum applies in New South Wales. It does not apply in the case of lands that in a Crown grant are described as abutting on a road created by the Crown (Tierney v. Loxton (1891) 12 LR (NSW) 308; 8 WN 79 ). And since 1920 it has lost much of its importance in relation to other roads by reason of the provisions of s. 232 of the Local Government Act. But it was held to apply in 1916 when privately owned land under the Real Property Act was subdivided and allotments shown on the deposited plan as abutting on a road were sold and transferred by reference to the plan (In re Priddle (1916) 16 SR (NSW) 54; 34 WN 52 ). That decision has been criticized. But in 1930, after the decisions in Attorney-General v. White (1925) 26 SR (NSW) 216; 43 WN 10 and In re White (1927) 27 SR (NSW) 129; 44 WN 38 , relating to lands bounded by a river, the Real Property Act was amended by the addition of s. 45A. The doctrine of extent ad medium filum was at common law applicable to private roads as well as public roads (Holmes v. Bellingham [1859] EngR 769; (1859) 7 CBNS 329 (141 ER 843) ). It is only in relation to public roads that it has been displaced by statute, and only since 1st January 1920. Therefore when Saywell transferred allotments abutting on St. George's Road he apparently conveyed also the soil of the adjacent parts of the road up to the middle line thereof - that is unless, notwithstanding In re Priddle (1916) 16 SR (NSW) 54; 34 WN 52 the presumption be rebutted in favour of Saywell and his estate by the circumstances, which in some respects resemble those in Leigh v. Jack (1879) 5 Ex D 264 and Plumstead Board of Works v. British Land Co. (1874) LR 10 QB 16 . If then any doubt exists whether St. George's Parade has ever become a public road, it seems that many doubts must also exist as to who owns it - or at least that half of it that lies on the western side of its middle line. The part on the eastern side of the middle line may still belong to Saywell's estate if it still owns the land adjoining the road on the east: see the statement of Romer J. in In re White's Charities (1898) 1 Ch 659, at p 666 . The circumstances here are unusual, because it is uncertain who is the owner of the land east of the road. In fact it is the bed of the river. Whether Saywell ever had a title ad medium filum aquae, and whether, if so, it still remains in his estate need not be considered here, and it will not be determined, even indirectly, by the outcome of these proceedings. We know only that Saywell's certificate of title showed his land as bounded by the river. We do not know what was the form of the grants by the Crown of the various parcels of land consolidated in his certificate. Moreover the doctrine of extension ad medium filum aquae does not apply to tidal waters. In 1883 George's River was, it seems, not tidal above Liverpool. But that was because of the weir there. John Dunmore Lang in his History of New South Wales, 4th ed. (1870) vol. ii, p. 268, says that "the tide flowed to a considerable distance" above Liverpool before the weir was built there. But no evidence was given as to whether the river was ever tidal as far as Saywell's lands when they were first granted. None of these questions need be answered. Neither am I to be taken as indicating any view whether the vesting in the Council pursuant to s. 232 of the fee simple of a road along a river bank would give the Council a right to the bed of the stream ad medium filum. But doubts about the ownership of St. George's Parade, if it be not a public road, do not, I think, help the appellant. It claims that it is the owner of the road. It had no interest to allege and did not allege that the Council should have given notice to anyone else of its intention to take it over. As the person to whom the Council did give notice it invoked the jurisdiction of the District Court judge. He held that St. George's Parade had become a public road at some time in the past. I think there was some evidence on which he could do so, and that he had jurisdiction to come to that conclusion, at all events as against the appellant. (at p427)

13. No grounds for prohibition or certiorari to quash were made out. (at p427)

14. The Supreme Court was right in discharging the rule nisi and this appeal should be dismissed with costs. (at p427)

ORDER

Appeal dismissed with costs.