Keilor v O'Donohue [1971] HCA 77; (1971) 126 CLR 353 (23 December 1971)

HIGH COURT OF AUSTRALIA

CITY OF KEILOR v. O'DONOHUE [1971] HCA 77; (1971) 126 CLR 353

Local Government (Vict.)

High Court of Australia
McTiernan(1), Windeyer(2) and Owen(3) JJ.

CATCHWORDS

Local Government (Vict.) - Street-making - Scheme of street construction at expense of frontagers - Whether private street - Whether deemed to be set out on private property - Reservation in Crown grant of power to resume - - Proclamation as road - Local Government Act 1958 (Vict.), ss. 518, 575, 576, 600B*.

HEARING

Melbourne, 1971, May 7, 10-12;
Sydney, 1971, December 23. 23:12:1971
APPEAL from the Supreme Court of Victoria.

DECISION

December 23.
The following written judgments were delivered:-
McTIERNAN J. This is an appeal from an order of the Supreme Court of nisi to review a decision of a stipendiary magistrate constituting the Magistrates' Court at Moonee Ponds. The stipendiary magistrate had quashed a scheme, proposed by the City of Keilor, for the construction of part of the street in question, Buckley Street, under Div. 10 of Pt XIX of the Local Government Act 1958-1968 (Vict.) ("the Act"), which part is headed "Construction of Private Streets". The City set out in the scheme its intention of recovering the cost of construction from the respondent and others pursuant to s. 576 of the Act. Section 576 reads as follows:

"Where any private street has not previously been
constructed
under this Division or Part XLII or any corresponding
previous enactment the council may subject to this Division
construct such street and recover the cost or any part of the
cost of such construction from the owners of the premises
fronting on such street." (at p358)

2. Having received notice of the preparation of the scheme (see s. 579 (1)) the respondent, amongst others, objected to the scheme in the words of s. 578 (2) (a) which provides that:

"Within one month after the service of such notice any
such owner may in writing delivered to the council object to
the scheme on any of the following grounds:
(a) That the street proposed to be constructed is not a private
street or is not a street which may be constructed pursuant
to this Division."

The City then referred the objections to the Magistrates' Court at Moonee Ponds pursuant to s. 579 (3). (at p359)

3. Section 575(1), which is contained in Div. 10 of the Act, provides that "private street" means:

"(a) any street road lane yard or passage -
(i) which is formed or set out on private property or on
property of the Housing Commission ; or
(ii) which is formed or set out on land which at the time
of the formation or setting out of the street road
lane yard or passage was private property ;
(b) any street road lane or passage formed or set out on land
of the Crown or of any public body in such manner as
to form means of back access to or drainage from
property
adjacent to such street road lane or passage -
or any part of the length thereof, whether it is or is not a
public highway."

The material words are therefore "any street road lane yard or passage - which is formed or set out on private property . . . or any part of the length thereof, whether it is or is not a public highway". However, it is necessary to consider also sub-s. (3) of that section, which reads as follows:

"(3) A street road lane yard or passage shall (without
affecting the generality of the meaning of the expression 'set
out') be deemed to be or to have been set out on private
property if the same is or was shown, on any plan of
subdivision
which has been or is sealed by a council under Division
9 of this Part or any corresponding previous enactment or
lodged in the Office of Titles, as made or laid out or proposed
to be made or laid on land comprised in the plan of
subdivision."

The evidence revealed that Buckley Street was shown on plans of subdivision lodged in the Office of Titles as laid on land comprised in those plans. The relevant portion of Buckley Street was thus shown on plan of subdivision no. 2314 which has been lodged in the Office of Titles and was tendered in evidence. Notwithstanding the provisions quoted above it was argued by counsel for the respondent that the portion of Buckley Street in question does not fall within the definition of "private street" for the reason that it must be considered as land belonging to the Crown. This submission was based on the history of the land in question. (at p359)

4. The land on which the relevant section of Buckley Street is set out was the subject of a land purchase grant of 640 acres, being Crown portion 12, Parish of Doutta Galla, County of Bourke, made on 30th October 1846 to one James Patrick Main. The grant was made subject to the following reservation:

"Provided Nevertheless, And We do Hereby Reserve unto
Us, Our Heirs and Successors, all such parts and so much of
the said Land as may hereafter be required for making Public
Ways, Canals, or Railroads, in, over, and through the same,
to be set out by Our Governor for the time-being of Our said
Territory, or some Person by Him authorised in that respect."

The relevant memorials of title show that from 1846 to 1868 all dealings with the land had taken place on the footing that none of the rights of the Crown under this reservation had been exercised at any time. (at p360)

5. In 1876 the Department of Lands and Survey published the first parish plan of the Parish of Doutta Galla. The plan showed no roads on portion (now section) 12. In 1877 a proclamation was issued under the hand of the then Governor, Sir George Bowen. The material part of the proclamation read thus:

"Whereas by The Land Act 1869 it was amongst other
things enacted, that the Governor might from time to time by
a notice in the Government Gazette proclaim as a street or
road, or as a town or village any portion or portions of Crown
lands, and the lands in such town or village should be sold by
auction in the manner therein provided for the sale of Crown
lands by public auction, and the lands upon which such street
or road should have been proclaimed should be and be deemed
to be thenceforward dedicated to the public : Now therefore
I, the Governor of Victoria, with the advice of the Executive
Council, do by this notice proclaim as roads the portions of
Crown lands in the several parishes mentioned in the List
hereto, annexed, such roads being delineated and shown by
pink tint on plans which are deposited at the Crown Lands
Office, at Melbourne, and bear date as having been laid before
the Governor in Council on the eighth day of October, 1877,
that is to say . . ."

The proclamation was made pursuant to s. 38 of the Land Act 1869 (Vict.). Although the proclamation would appear to be intended to encompass only unalienated Crown land a substantial part of the relevant section of what is now Buckley Street was in fact delineated and shown by pink tint on a plan deposited at the Crown Lands Office in Melbourne and bearing a date as having been laid before the Governor in Council on 8th October 1877. There is no evidence of any reconveyance of what is now Buckley Street to the Crown by James Patrick Main or his successors in title. Nor is there any evidence of the exercise of the power of reservation which would in any case have given the Crown only an easement of the way over the land and not title: see Jenkyns v. Elsdon (1864) 1 WW & a'B 145, at p 151 . Upon such an exercise of the power the road would have been effectively dedicated as a pulic highway but title to it would have remained vested in the grantee or his successor in title. (at p361)

6. It appears that sometime after the proclamation an area of land which included the strip of land in question was brought under the Transfer of Land Act. On 13th December 1888 plan of subdivision no. 2314, which has been previously referred to, was lodged at the Office of Titles. The street, as set out on this plan, is not completely coincident with the road on the plan referred to in the 1877 proclamation. However, the plan seems to me to correspond in this respect with the current Parish Plan for Doutta Galla which was prepared in 1936. (at p361)

7. Leaving aside a detailed weighing of the evidence set forth above, which evidence appears to me to support the contention that Buckley Street is a private street, s. 575 (3) compels, in my judgment, by its clear and definite language, the conclusion that the street in question should be deemed to be set out on private property. (at p361)

8. As regards s. 518 of the Act, which was raised in argument by counsel for the respondent, I respectfully agree with the learned trial judge who was of the opinion that the section did no more than reverse the common law presumption that an owner of land had vested in him the freehold of an adjoining public road usque ad medium filum viae. (at p361)

9. These conclusions, in the light of s. 575 (1) and s. 576 of the Act, lead, in my opinion, to a finding that the City's scheme was not invalid and that therefore this appeal should be allowed. I consider that the order nisi to review should be made absolute and the case remitted to the Magistrates' Court at Moonee Ponds for further hearing. (at p361)

WINDEYER J. Keilor is a municipal district on the outskirts of Melbourne incorporated by the name of the appellant in accordance with s. 8 of the Local Government Act 1958 of Victoria (which I shall refer to as "the Act"). The governing body of the municipality is a council constituted pursuant to the Act. (at p361)

2. In 1968 the Council prepared a scheme for the "construction", by concrete paving, kerbing and otherwise improving, of part of an existing street known as Buckley Street. The scheme was based on the supposition that Buckley Street, or at all events the part in question, is a "private street" within the meaning of the Act and that the cost of the work to be done, or so much thereof as the Council should determine, was recoverable by the Council from the owners of premises fronting on the street. The estimated cost of executing the scheme amounted to $151,824.45. The Council decided that $67,993.20 of this amount should be recovered from frontage owners. This was taken to be 44.78 per cent of the total cost. How that proportion was arrived at as the proper contribution by frontagers does not appear. Not surprisingly, it caused them concern. Notice of the scheme having been duly given, forty-one of them lodged objections. The main ground of objection was expressed as follows:

"That the street proposed to be constructed is not a private
street or is not a street which may be constructed pursuant to
the said Div. 10 of Pt XIX of the Local Government Act 1958."

In Weeks v. City of Knox (1), Gowans J., following an earlier decision of the Supreme Court, held that, without further particulars, an objection so expressed was not a notice of objection complying with the Act. However, in the present case that question does not arise. The course of proceedings has made abundantly clear what is involved in the objection, which indeed Crockett J. considered to be a valid ground of objection. (at p362)

3. The provisions of Div. 10 of Pt XIX (ss. 575-600B) of the Act, headed "Construction of Private Streets", on which the case turns are complicated. They are not always easy to apply, as this case and others have shown. An observer who was not required to elucidate their meaning might well say, as the commentator in the Australian Law Journal, vol. 44, p. 566, said: "The piecemeal attention by the legislature to this division is not satisfactory ; it requires to be re-drafted. There is still room for a greater measure of fairness." But a court cannot take refuge in such criticism and avoid the task of construing and applying the Act as it stands. I therefore at this point set out the sections on which the case mainly depends. (at p362)

4. Section 3 provides that:

"In this Act unless inconsistent with the context or
subject-matter -
'Private street' or 'private road' means a carriageway
either accessible to the public from a public street or forming
a common access to lands and premises separately occupied,
but not being a public highway.
'Street' and 'road' respectively means a street or road
being a public highway, and includes every public highway."

In Div. 10 of Pt XIX these definitions succumb to the definition of "private street" in s. 575 in which public highways are not excluded; but I quote them as they make it unnecessary to distinguish between a "road" and a "street". The phrase "public highway" is not defined. It must get its meaning from common law. In Bailey v. Jamieson (1876) 1 CPD 329, at p 332 , Lord Coleridge C.J. said that:

" . . . the common definition of a highway that is given in all
the text books of authority is, that it is a way leading from
one market-town or inhabited place to another inhabited
place, which is common to all the Queen's subjects."

But it is no longer necessary that to be a highway a road should lead from town to town, or village to village. Indeed it need not be a thoroughfare at all: it may be a cul-de-sac. It need not be a main road, a high-way as distinct from a by-way. In short, the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions. The adjective "public" in the phrase "public highway" in the Act is thus a redundancy; but this needless emphasis does not create confusion in meaning. (at p363)

5. Section 518, which is in Div. 1 of Pt XIX, is as follows:

"It is hereby declared and enacted that notwithstanding
any presumption of law to the contrary the absolute property
in the land heretofore or hereafter reserved or proclaimed
under the Land Act 1958 or any corresponding previous
enactment as a road street or highway is and shall be vested
in the Crown." (at p363)

6. The provisions of Div. 10 of Pt XIX begin with s. 575.

"575 (1) In this Division unless inconsistent with the
context or subject-matter -
. . .
'Private street' means -
(a) any street road lane yard or passage -
(i) which if (sic. the Government Printer's copy) formed
or set out on private property or on property of the
Housing Commission; or
(ii) which is formed or set out on land which at the time
of the formation or setting out of the street road lane
yard or passage was private property ;
(b) any street road lane or passage formed or set out on land
of the Crown or of any public body in such manner as to
form means of back access to or drainage from property
adjacent to such street road lane or passage -
or any part of the length thereof, whether it is or is not a
public highway.
'Scheme' means scheme under this Division for the
construction
of a private street.
(2) Where any land wholly or partly abutting on or
continuous
with or along any private street has been or is acquired
by a council for the purpose of increasing the width of such
private street such land shall be deemed to form part of such
private street.
(3) A street road lane yard or passage shall (without
affecting the generality of the meaning of the expression 'set
out') be deemed to be or to have been set out on private
property if the same is or was shown, on any plan of
sub-division
which has been or is sealed by a council under Division
9 of this Part or any corresponding previous enactment or
lodged in the Office of Titles, as made or laid out or proposed
to be made or laid out on land comprised in the plan of
sub-division.
(3A) . . .
(4) . . ."
"576. Where any private street has not previously been
constructed under this Division or Part XLII or any
corresponding
previous enactment the council may subject to this
Division construct such street and recover the cost or any
part of the cost of such construction from the owners of the
premises fronting on such street."
"600B. In any proceedings arising out of or in relation to
any scheme under this Division, including proceedings upon
the hearing of objections, the burden of establishing that the
street proposed to be constructed is a private street or is a
street which may be constructed pursuant to this Division
shall . . . be upon the council but otherwise the burden of
establishing that the scheme or any part of the scheme is
invalid or of establishing any such objection shall be upon
the party or person who so alleges." (at p364)

7. Pursuant to the Act the objections lodged were referred to a Magistrate's Court, which was constituted by a Stipendiary Magistrate, Mr. K. O'Connor. He heard evidence and argument by counsel for the Council and counsel who appeared for all the objectors. There was some evidence that from time to time, for fifty years or more, the Council had done work on Buckley Street, including regularly sealing its surface and had, apparently in 1911, made a culvert or crossing where it crossed a watercourse and received a small contribution towards the cost of this from neighbouring landowners. But his Worship held that this did not amount to a previous construction of the street pursuant to a private street construction scheme as contemplated by s. 576, and that therefore that section did not absolve the objectors from the obligations of Div. 10. However, he held that the street was not a "private street" for the purposes of Div. 10. He therefore quashed the scheme. Thereupon the Council appealed to the Supreme Court by way of a rule nisi to review his decision. matter was heard by Crockett J. [1971] HCA 77; (1970) 27 LGRA 13; (1972) VR 238 . His Honour upheld the Magistrate's decision. This appeal is now brought to this Court from his Honour's judgment. (at p365)

8. The decision of the Magistrate that there had not in fact been a previous construction, so as to make s. 576 inapplicable, is not now in question. The question is whether Buckley Street is a "private street" for the purposes of Div. 10, either by the term of s. 575 (1) or by having been shown on a plan of subdivision according to s. 575 (3). (at p365)

9. Having set out the statute law, I turn now to the facts. Buckley Street is and has long been a public highway and an important thoroughfare. It is shown by map no. 25 of the Melbourne and Metropolitan Planning Scheme, which was in evidence, as being at 22nd May 1968 an existing road nearly two miles long. The part that is subject to the Council's scheme is about 880 yards in length. It is I suppose not surprising that persons whose premises front this part of Buckley Street should object to paying for its reconstruction. For Buckley Street does not serve them alone. It serves an extensive neighbourhood carrying traffic to and fro from far and wide. Its history as given in evidence in these proceedings begins in distant days when the lands in which is now the City of Keilor were open country of large holdings. The part of Buckley Street with which we are now concerned runs from east to west along what was the southern boundary of a 640 acres purchase grant from the Crown to James Patrick Main in 1846. I shall refer to this land, which is Portion (or Section) 12 of the Parish of Doutta Galla, as "Main's grant". The grant was made by Sir Charles Fitz-Roy, then Governor of New South Wales, the land being in the Port Phillip District. (at p365)

10. The grant was made by the Governor under the authority of the Imperial Act 5 & 6 Vict., c. 36, "An Act for regulating the sale of waste lands belonging to the Crown in the Australian colonies". This Act, amended in 1846 by 9 & 10 Vict., c. 104, provided a statutory foundation for the system, inaugurated in 1831, by which the lands of the Colony, which had not been already granted or set apart for public purposes, were to be made available to settlers by purchase grants instead of by free grants. In my judgment in Randwick Corporation v. Rutledge [1959] HCA 63; (1959) 102 CLR 54, at pp 71-74; [1959] HCA 63; 5 LGRA 127, at pp 159-161 . I referred to events leading up to this. I shall not repeat that here. The statute empowered the Crown to except from sale and reserve to the Crown lands required for roads and other public purposes. But reserves of that kind do not enter into this case. We are not concerned here with land reserved from sale and not granted, but with land which had been sold and granted subject to a provision for defeasance. (at p366)

11. The grant to Main was of the whole area of Section 12, 640 acres. No specified part was excepted for roads or any other public purpose. Possible needs of the future were met by the following words in the grant:

"Provided Nevertheless And We do hereby reserve unto
Us Our Heirs and Successors all such parts and so much of
the said Land as may hereafter be required for making Public
Ways, Canals or Railroads in, over and through the same to
be set out by Our Governor for the time being of Our said
Territory, or some Person by Him authorised in that respect."

That this looked to the then future, perhaps a distant future, is apparent from the words. It is emphasized too by the percipient reference to railroads; for in 1846 there were no railways in Australia: Governor Fitz-Roy's daughter turned the first sod of the first railway in 1850, in Sydney. The proviso in the grant which I have quoted was a common form at the time. An Act of the New South Wales Legislature, 4 Wm. IV, No. 11 (1833), commonly called the Roads Act, enabled roads to be made by the government upon land which had been granted to private proprietors "without any reservation of the power of making any road or street in or through the same" upon payment of compensation to aggrieved proprietors of land taken for the purpose. But where, as in the grant to Main, there was a reservation for public ways in general terms, no particular part being specified, the Crown could at any time take back any part of the land for the purposes of a highway. The grantee could not complain or claim compensation. The practice of inserting "reservations" for roads in this form had begun in the time of Governor Macquarie. (at p366)

12. From the beginning of the Colony of New South Wales the Governors had had authority to make grants of land. Governor Phillip's instructions from the Sovereign, dated 25th April 1787, empowered him to do so "reserving only to us such timber as may be growing or to grow thereafter upon the said land which may be fit for naval purposes". Phillip exercised this authority from time to time: see Historical Records of Australia, series I, vol. 1, pp. 14, 124, 307, 310. Later grants were made with a right reserved by the Crown to take from the land granted timber, sand, clay, gravel and other natural produce required for public purposes: see Campbell v. Dent (1864) 3 SCR (NSW)58 . A provision of that kind was considered by Smith J. in Bayview Properties Pty. Ltd. v. Attorney-General (Vict.) (1960) VR 214 to be in the nature of a profit a prendre. That case was referred to in the argument before us: but it has no direct bearing on the present problem. A right to sever and take from land things that until severed are part of the freehold is different from a condition of a grant, expressed as a reservation, enabling the resumption of part of the land itself for a specified purpose such as a road. As I have said, reservations for roads began in the time of Governor Macquarie. To advance his policy of providing roads for the Colony he had a new clause inserted in all grants of land. It ran: "and saving and reserving to Government the Right of making a Public Road through such part of the said land as may at any time be required": see Historical Records of Australia, series I, vol.7, p.626. This example was followed after Macquarie's time. The form was progressively elaborated, but without any change in the essential character of the right it reserved to the Crown as against the grantee of the land. What was the nature of that right? At one time there was much discussion of it in terms of the distinction between an exception and a reservation. Insisting that each of those terms should keep its proper place has some appeal for those who like to find their law in Coke on Littleton or Shepherd's Touchstone. But since the judgments in Lord v. Commissioners for the City of Sydney [1859] EngR 307; (1859) 12 Moo PC 473(14 ER 991) , on appeal from the Supreme Court of New South Wales (1856) 2 Legge 912 ; and in Cooper v. Stuart in the Privy Council, (1889) 14 App Cas 286; 10 LR (NSW) Eq 172 and in the Supreme Court (1886) 7 LR (NSW) Eq 1 , it has little weight in cases such as this. Those authorities establish that the reservation of so much of the land granted to Main as might thereafter be required for making public ways was not an exception repugnant to the grant. It was a valid provision. Lord Watson said in the last-mentioned case (1889) 14 App Cas, at p 290; 10 LR (NSW) Eq, at p 174 that "it looks to the future, and possibly to a remote future. It might never come into operation, and when put in force it takes effect in defeasance of the estate previously granted, but not as an exception". It was "retaining the right to resume such parts as may be found necessary for the uses of an increased population" (1889) 14 App Cas, at p 293; 10 LR (NSW) Eq, at p 178 . A reservation of that kind differs from a so-called reservation of a specified area of land. Such a reserve, if it be sufficiently described and defined, is in truth an exception. It does not pass by the grant. In Neild v. Davidson (1890) 11 LR (NSW) Eq 209 , a case of that kind, Darley C.J. said (1890) 11 LR (NSW) Eq, at p 216 : "It is called a reservation, but that does not make it less an exception. This exception operates immediately, and the subject matter of it never did pass to the grantee." Attorney-General (N.S.W.) v. Dickson (1904) AC 273 is another illustration. The two kinds of reservations were contrasted by A.H. Simpson C.J. in Eq. in McGrath v. Williams (1912) 12 SR (NSW) 477 . The reservation in the grant to Main was of the former kind. He got a good title to the whole square mile the subject of the grant, but defeasible as to such parts and so much as the Crown might thereafter require and resume for a road. The way in which the Crown's right of resumption for a road was exerciseable was as stated in the deed. The road was to be "set out by Our Governor for the time being of Our said Territory, or some Person by Him authorised in that respect." The phrase "set out" in relation to roads and highways was well known in 1846. For example, it had been so used in England in the Inclosure (Consolidation) Act, 1801, ss. 8 and 9 and in the Inclosure Act, 1845, s. 62. A road is ordinarily set out by something done on the land to indicate its course and dimensions. To show it on a map may not suffice: Metropolitan Bank Ltd. v. Camberwell Corporation (1909) VLR 82 ; Brunswick Corporation v. Baker [1916] HCA 84; (1916) 21 CLR 407 ; and see Snushall v. Kaikoura County Council (1923) AC 459 and Wellington City Corporation v. McRea (1936) NZLR 921 . But whether a road was set out by the Crown is a question of fact and an official notification and record such as a statement in the Gazette or the publication of a duly authorized map is conclusive of that fact: see generally as to maps as evidence of the existence and due dedication of highways, Pratt and Mackenzie, Law of Highways, 20th ed., p. 46. (at p368)

13. Counsel for the appellant sought to extract from the judgment of the Supreme Court of Victoria in Jenkyns v. Elsdon (1864) 1 WW & a'B (L) 145 a proposition that the reservation in the Crown grant of land required for making public ways was a reservation of an incorporeal right of way, not a power to resume land for a way - that it merely enabled the Crown to establish for the public a right of way over the land of the grantee, the freehold title to which would remain in him and his successors. There are some sentences in the judgment in that case which, read in one way, might seem to support that. But the decision did not depend upon them; and the proposition cannot, I consider, stand in the face of three overpowering objections to it. First, it is contrary to the terms of the grant, which reserved "all such parts and so much of the said land" as might be required "for making public ways". That does not describe an incorporeal right over land, but land itself. Next, to say otherwise would be in conflict with the Privy Council's decision, which I have mentioned and which was succinctly summarized by Owen J. in Burns v. Allen (1889) 10 LR (NSW) Eq 218, at p 221 as follows:

"Again, in Cooper v. Stuart (1889) 14 App Cas 286; 10 LR (NSW) Eq
172 . the Privy Council held that a reservation of this kind did
not prevent the land comprised in the grant from vesting in the
grantee, but merely preserved a right to the Crown to resume the
land so reserved; the land, therefore, went to the grantee subject
to a deasance whenever the Crown should think fit to resume."

Thirdly, a public right of way is not, properly called, an easement. For a true easement to exist there must be a dominant as well as a servient tenement. Lord Cairns emphasized this in Rangeley v. Midland Railway Co. (1868) 3 Ch App 306, at p 310 . However, as Scrutton L.J. observed, "it is undoubted that Parliament and parlimentary draftsmen have used the term 'easement' in relation to various rights which no lawyer would ordinarily describe as easements": Taff Vale Railway Co. v. Cardiff Railway Co. (1917) 1 Ch 299, at p 317 . We need not be pedantically fastidious about the word, for the right of the public to pass and repass along a highway is certainly in the nature of an easement. But the suggestion that the effect of the common reservation in a Crown grant was simply to enable the Crown to create such a right over private land cannot be sustained. A highway is created by dedication by the proprietor of land of a right of way over a particular stretch of his land and its acceptance by the public. At common law the land then remains in private ownership but subject to the public right of passage. Similarly the Crown can dedicate Crown land as a highway: Rapley v. Martin (1865) 4 SCR (NSW) 173 ; Turner v. Walsh (1881) 6 App Cas 636 . Dedication may be evidenced in various ways, as Griffith C.J. mentioned in Miller v. McKeon [1905] HCA 33; (1905) 3 CLR 50, at p 59 ; and see Permanent Trustee Co. of N.S.W. Ltd. v. Campbelltown Corporation [1960] HCA 62; (1960) 105 CLR 401; 6 LGRA 340 . But to treat the reservation in the grant to Main as empowering the Crown to require the landowner, the grantee or his successor, to dedicate a highway over his land, is to distort the language of the deed. What it actually does is to empower the Crown to resume land to make a highway of it by dedication. (at p369)

14. Reference was made to Allen v. Foskett (1876) 14 SCR (NSW) 456 . There it was proposed to open a road through private land. The procedure prescribed by the Roads Act, 4 Wm. IV, No. 11, was followed, although there was a right reserved to the Crown by the grant to make a highway. In the course of his judgment W. Manning J. said (1876) 14 SCR (NSW), at p 463 :

"The grant was of 1,400 acres and was issued in 1823. The
grant contained a reservation of a highway through the land,
Under that reservation the Government might with a high
hand have taken the road they have now taken after going
through all the formalities prescribed by the Act."

That sentence has sometimes been misunderstood. What his Honour was saying was that the Crown need not have gone through the statutory formalities, of notices and so forth, as it did for opening the road. By virtue of the reservation in the grant it could have taken land for the road "with a high hand". But, having chosen not to act under the reservation but pursuant to the statute, it was bound by its terms. (at p370)

15. After that lengthy excursus to view the law relating to the reservation in the grant of 1846, I go now to a narration of later events. After 1846 there were some dealings with parts of Main's grant. Memorials of these were registered and produced in evidence in the Supreme Court. Nothing, I think, turns on them except that, if it be of any consequence, there is no reference in any of the conveyances to a road where Buckley Street now runs. The southern parts of what had been Main's land, portion 12, were always described as bounded on the south, not by a road, but by portion 8 granted to J. Aitken. (at p370)

16. In 1869 the Parliament of the Colony of Victoria enacted the Land Act 1869. This Act amended and consolidated earlier enactments regulating the sale and occupation of Crown lands in Victoria, including the Sale of Crown Lands Act 1860 and the Land Act 1862. "Crown land" was the name which had come generally into use for what had earlier been called "waste lands belonging to the Crown". But, notwithstanding some statements made in the course of the argument, the Act of 1869 as I read it related also to any lands that had become revested in the Crown in Victoria by any form of resumption, transfer or surrender. Section 4 speaks of "lands for the time being belonging to the Crown". Section 38, which is important in this case, is as follows:

"The Governor may from time to time by a notice in the
Government Gazette proclaim as a street or road or as a town or
village any portion or portions of Crown lands, and the lands
in such town or village shall be sold by auction in the manner
herein provided for the sale of Crown lands by public auction,
and the lands upon which such street or road shall have been
proclaimed shall be and be deemed to be thenceforward
dedicated to the public."

In 1877, the Governor of Victoria issued a proclamation which, after reciting the power created by the above-mentioned provision of the Land Act 1869, ran:

"Now therefore I, the Governor of Victoria, with the advice
of the Executive Council, do by this notice proclaim as roads
the portions of Crown lands in the several parishes mentioned
in the List hereto, annexed, such roads being delineated and
shown by pink tint on plans which are deposited at the Crown
Lands Office, at Melbourne, and bear date as having been laid
before the Governor in Council on the eighth day of October,
1877."

The plan for the Parish of Doutta Galla showed a proclaimed road running due west from Essendon. It crossed Main's grant along its southern boundary, that is on the general line of the part of Buckley Street now in question. It is not identical, however, with the present street in the Council's scheme, because as depicted it did not run due west as Buckley Street now runs. It at one point bore north-west for a short distance to a place where it crossed a watercourse, called on the map tendered Steel Creek, and then turned south-west to resume its westerly direction. Buckley Street does not turn in this way. It runs straight, crossing the creek at a point about a hundred yards south of the crossing-place of the road shown in the 1877 proclamation. The part of Buckley Street that is subject to the scheme is, by reason of this straightening, some fifty yards shorter than the corresponding part of the proclaimed road. Apart from this variation in its direction, Buckley Street does not correspond exactly in width or in location with the proclaimed road as depicted on the map in 1877. The proclaimed road is shown as wholly on the southern edge of Main's grant, portion 12, whereas only half the width of Buckley Street is there, the other half being on the northern edge of Aitken's grant, portion 8. Despite these minor variations, which topography and survey reveal, I think that Buckley Street, where it runs across Main's grant so far as Hampton Road, must be taken to be in fact the same road as that which the Governor proclaimed in 1877. (at p371)

17. But the appellant argues that the 1877 proclamation was wholly void. It is urged that it never had any effective operation because the power given by the Act of 1869 was to proclaim as a street or road any portion of Crown lands; that the proclamation showed the road as on Main's grant; and that this was not Crown land, for the reservation in the grant of a power to resume land for a public way had not been exercised before the proclamation was issued. This is a surprising proposition as it means that the statutory power to proclaim Crown land as a road would have no force in relation to Main's grant unless the Crown had antecedently by some other act or instrument set out the same road there. We were told that this question may be of far-reaching consequence, as other roads proclaimed in other parts of Victoria may be similarly affected. (at p372)

18. Crockett J. resolved the difficulty by relying on a presumption that the proclamation by the Governor was regularly and lawfully made, and assuming there must have been a prior setting out of the road by a duly authorized person. That is a possible explanation. It is supported by remarks of Smith J. in Coy v. City of Sandringham (1952) VLR 459, at p 467 . I certainly would adopt it rather than conclude that the proclamation was ultra vires the Governor. It is too a probable inference of fact, because a road which takes the course of this one as depicted on the plan referred to in the proclamation, bearing off to cross a stream and returning gradually to resume a straight course, must it would seem have been in some sense set out and surveyed before the plan was published. However, I do not find it necessary to rest the validity of the proclamation on a presumption of regularity. It seems to me that of itself it was an exercise of the powers of the Crown to resume land under the reservation in the grant and under the Act to proclaim it as a road. I am unable to accept the proposition that the proclamation was invalid. It then operated according to s. 370 of the Local Government Act 1874 (Vict.). This, the ancestor of s. 518 of the present Act, was as follows:

"s. 370. It is hereby declared and enacted that
notwithstanding
any presumptions of law to the contrary the absolute
property in the land heretofore and hereafter reserved or
proclaimed under any Land Act as a road street or highway
is and shall be vested in the Crown."

This provision abrogated the ad medium filum rule and divested from private ownership the soil of any roads to which it applied. It incidentally is the quietus of the supposition based on the judgment in Jenkyns v. Elsdon (1864) 1 WW & a'B (L) 145 . (at p372)

19. With the foregoing matters out of the way I turn to what was said to be the gravamen of the appellant's case, s. 575 (3) of the Act. This sub-section resembles s. 213 (1) (b) (i) of the English Highways Act 1959. The appellant's contention is that by virtue of it Buckley Street is to be deemed to have been "set out on private property" and thus to be a "private street". Whether or not that is so depends on events that occurred after 1877. (at p373)

20. Lands fronting Buckley Street were, at some dates not established, brought under the Torrens system which had been introduced into Victoria in 1862. None of the certificates of title was tendered. However, we do know that in 1888 a plan of subdivision of the southern part of what had been Main's grant was lodged in the Office of Titles. It shows Buckley Street by that name - perhaps the first recorded use of the name. But it does not show it as part of the subdivided land. Separate allotments, having frontages of sixty or sixty-six feet, are shown as fronting the street. The plan shows one side of Buckley Street, half its width on portion 12, Main's grant. This half of the street is coloured on the map. The other side, shown as on portion 8, Aitken's grant, is delineated, but not coloured. Then the appellant called in aid another plan of subdivision, of land on the opposite, the south, side of Buckley Street. This plan, made in 1920, was sealed by the Council of the Shire of Keilor, as the municipal district was then styled. The plan shows Buckley Street by that name. The south side of it is coloured on this plan. The appellant, ignoring the thirty years between the two plans, ignoring that they are of subdivisions of different land for different landowners, says that they can be read together as a plan of subdivision, with Buckley Street shown on it within the meaning of s. 575 (3) and thus to be deemed to be, and to have been for years past, "set out on private property". That is, to say the least of it, an unusual way of reading the plural as if it were the singular. However, quite apart from that I consider that it is fallacious. (at p373)

21. The working of s. 575 (3) is not beyond criticism and debate, as this case has shown: but its purpose and effect are clear enough. It is an evidentiary subdivision making a plan of subdivision of private property on which roads and streets are shown evidence that these were "set out" there and thus fall within the definition of "private street" in sub-s. (1). A plan of the kind described suffices for that and obviates any need to prove a setting out upon the ground. But this is only so if the street be shown as "made or laid out on land comprised in the plan". That imports that it was shown as being part of land which was the property of the proprietor who had caused the plan of subdivision to be made to show land of his divided into separate parts, allotments, with roads and streets made or laid out on that land. If a road or street was already a highway vested in the Crown it was not land which could be comprised in a plan of subdivision of a private landowner's land. It might have to be shown on his plan if the land comprised in the plan abutted on it. Section 569A (1) (b) makes that clear. But showing a road in that way does not make it private property. A plan of subdivision is not a document of title; and it does not become so by being sealed by a council or lodged with the Office of Titles. No legend or lines or colouring on it can require land which is not private property to be deemed to be private property. The colouring on the plans tendered indicates what was called the "title boundary", being the original common boundary of portions 12 and 8. It may be that the draftsmen and colourists of the plans were not aware of the status of Buckley Street and supposed it to belong to the neighbouring proprietors ad medium filum. If so they were mistaken; for as to approximately half its width, the north side of it, as delineated in the scheme, it belonged to the Crown as a proclaimed road. It was not land which could have been lawfully comprised in a plan of subdivision. I therefore reject the appellant's proposition based on s. 575 (3). I appreciate that the part of Buckley Street which the scheme covers does not conform throughout with the route of the proclaimed road. But the question is not whether the scheme could have been good as to part of the length and half the width of the proposed work. That would have been a different scheme. The question is, was this scheme rightly quashed? I think that it was and that the Magistrate and Crockett J. came to the right decision. (at p374)

22. As Buckley Street is not throughout its course in exact conformity with the proclaimed road, questions might have arisen as to the metes and bounds and areas of some of the allotments which would have been intersected by the proclaimed road as depicted on the parish map. That is not a consideration that can affect the question in this case. Moreover, it seems a farfetched dilemma. Buckley Street must be assumed to have become a highway throughout its length. Where it diverges from the course of the proclaimed road as depicted in 1877 it can be assumed that this deviation by straightening was lawfully made. The old adage "once a highway always a highway" does not preclude lawful divergences and deviations. What has obviously happened is that the course of the road has been straightened. This meant that by some process, which it must be assumed was regular, a short stretch of Crown land became again private land and a short stretch of private land was taken in substitution for the highway. Those who now hold allotments fronting Buckley Street can rely upon their certificates of title. By these the ghost of the proclaimed road has been exorcized from their lands. In any event this ghost cannot be summoned to make Buckley Street as shown in the scheme a private street. It does just the opposite of that. Using Hamlet's words, "it is an honest ghost, that let me tell you". (at p375)

23. For these reasons I conclude that the Council has failed to establish - the burden of doing so being upon it - that Buckley Street is a private street within the meaning of s. 575. Therefore the cost of the work that the Council proposes to do in Buckley Street cannot be thrown upon those who live there. It must be borne by the municipality as a whole. I would dismiss the appeal. (at p375)

OWEN J. I am of opinion that the appeal should be dismissed for the reasons given by my brother Windeyer. (at p375)

ORDER

Appeal dismissed with costs.