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17 Sep 2020

The road that you’re on, same road that you know / Just not the same as it was a minute ago. Is that true in law?

By Dr Chris Boge

While registered owners of Torrens title land usually do not need to concern themselves with unregistered rights, historical common law roads created over their land can be an instance where they do need to worry.

A road is a fascinating concept. It may be a metaphor for a path we lead in life and we may not always realise when we've changed course. In law, the road as a public thoroughfare is a peculiar idea. Once created, it does not change course and, today, it can generally be closed only in accordance with statute. This is because the road is not simply a physical area of land; it is a public right of way. And, in modern terms, the road mostly is a statutory legal concept.

But, when a landowner has a registered title under a Torrens title Act, does a road created under the common law over the landowner's land come within the reach of the indefeasibility principle so that the landowner enjoys the land free of the public right of way?

According to the Queensland Court of Appeal in Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd [2020] QCA 198 (11 September 2020), the answer is no. While the decision turns on the particular legislative scheme in Queensland, the position is not dissimilar to that of other Torrens title jurisdictions. And, primarily, this is because of the peculiarity of a road as a legal concept. The road is not simply adaptable as an ordinary "land" idea in law, and especially as one the subject of a registered title affected by a principle of indefeasibility.

Orb Holdings

Beatrice Lane is a narrow parcel of land in Brisbane's CBD. It had, until relatively recently, been used as a public laneway. The land is a freehold lot under the Land Title Act 1994 (Q) (Lot 11) and its registered owner, the respondent (WCL), wished to develop the land in conjunction with adjoining lots.

The appellant (Orb) owned nearby land and used Beatrice Lane for access. It contended that the lane had been dedicated by a former owner as a public road in the 1800s and had been, since the commencement of the Land Act 1962 (Q), vested in the State.

For a period, Lot 11 had been described in plan of subdivision RP1073, which was registered in 1876, as "Lot 11 (Balance)" and was subject to a noting of "Right of Way". However, it was not until 1994 (the commencement of the automated titles system in Queensland) that a certificate of title for Lot 11 was issued, free of any encumbrance, to the lot's former owner.

The dedication of a road by a landowner in Queensland today is wholly regulated by statute. However, prior to 1923 (when section 83C was inserted into the Local Authorities Act 1902 (Q)), it was possible for a landowner to dedicate land as a road (highway) under the common law. Such a dedication was generally effected by an act evincing an intention to dedicate (including, for example, lodgement of a plan containing a road) and public acceptance of the dedication. The parties in Orb Holdings accepted that, if a dedication of Beatrice Lane had occurred, it had taken place before 1923 and, therefore, under the common law. (Orb Holdings was an application for summary judgment by the respondent and the issue of whether a dedication of the lane had, in fact, taken place, and a separate point whether the original owner of the land had the power to dedicate the land as a road, require a trial.)

Section 95 of the Land Act 1994 (Q) says that the land in all roads dedicated and opened for public use under the following Acts vests in, or remains vested in, the State:

  • the Land Act 1994 (Q), the Land Act 1962 (Q) (which was repealed by the 1994 Act) or an Act repealed by the 1962 Act; or
  • the Land Title Act 1994 (Q).

Section 454 of the Land Act 1994 (Q) says that all roads dedicated and set apart under the Land Act 1962 (Q) are taken to be dedicated roads under the 1994 Act.

The issue was, then, could a dedication of Beatrice Lane by the former owner of Lot 11 in 1876 mean that the land in the laneway was now vested in the State despite WCL's indefeasible title to Lot 11?

Section 369 of the Land Act 1962 (Q) had relevantly said that "[a]ll land which, having been before, is at the commencement of this Act… dedicated by the owner thereof, not being the Crown, to public use as a road shall, by virtue of such dedication be vested (and in the case of land so dedicated before the commencement of this Act, is hereby declared to have always been vested) in the Crown and may be dealt with in the same manner as roads which have been dedicated to public use by the Crown".

Section 369 seemed quite clear; it could apply to a common law dedication (as lawfully effected before 1923) by a landowner. Even so, what was the effect of any vesting of the land in Beatrice Lane as a road in the Crown in the light of WCL's continuing registered ownership of Lot 11 under the Land Title Act 1994 (Q), a Torrens title Act? WCL argued that its indefeasible title (as provided for by section 184 of that Act) meant that any rights of the public to use Beatrice Lane as a way for passing and repassing and any vesting of the land in the State had necessarily been extinguished.

According to McMurdo JA (with whom Sofronoff P and Boddice J agreed), until the commencement of section 369 of the Land Act 1962 (Q), the fee simple in Lot 11 was, assuming the dedication of Beatrice Lane, vested in the land's former owner subject to public rights of use of the land as a dedicated road. When the land became vested in the State according to section 369, the public rights obviously continued. There was, contrary to the trial judge's finding, no conflict between the State's ownership of the land and the public rights; the purpose of a vesting under section 369 was (only) because of the public rights and the State's power to deal with the land in the road was limited accordingly (and essentially under statute). The public rights were not subsumed by section 369 into a title vested in the State. Importantly, the State's ownership of "land", therefore, differed from the fee simple of a registered owner under a Torrens title Act. In other words, the concept of "land" is different depending on the dedication and the legislative provisions governing it.

However, the State could not, by a vesting under section 369 of the Land Act 1962 (Q) and the delineation of Beatrice Lane as a road on RP1703, acquire a registered title. That remains the case today. (Nor was it relevant that Lot 11 became subject to a further plan in 2012 which showed the lane as "the Reserve".) As such, section 369 overrode the provisions of a Torrens title Act; more particularly, and accepting the dedication, the land in Beatrice Lane is, in effect, outside the system of title by registration. It is not to the point that Beatrice Lane may physically be located within a registered lot. As a public right of way – the "land" of which is vested in the State – it is not part of a parcel of land within such a lot. That may seem quite abstract, but, in that sense, section 369 and, today, section 95 of the Land Act 1994 (Q), are not construed as exceptions to indefeasibility. They deal with a subject matter (land in a road) which, itself, cannot be the subject of an indefeasible title.

And, although section 95 of the Land Act 1994 (Q) refers to land dedicated under an Act, the court construed that to include land that was, for the operation of the Land Act 1962 (Q), a road dedicated and opened for public use. This extended to land dedicated under the common law which was subject to section 369 of the 1962 Act.

While the circumstances of Orb Holdings may seem peculiar, there are numerous roads that were lawfully dedicated by landowners under the common law. The significant point of the decision is that a road is a public way. The vesting or property in a road in the State recognises and protects the public right of use as a way. Although land is often thought of in a physical, spatial sense, particularly when the subject of a surveyed, registered lot under a Torrens title Act, land can, in law, effectively be conceptualised as the right of way itself or, when vested in the State, as a type of "property" intended to recognise and protect that right. A road is not an interest registrable under an Act, but it nevertheless is a legal concept that can sit outside the regulation of registration Acts. That is the effect of the relevant roads legislative scheme in Queensland (and in other jurisdictions).

The legislative scheme recognises the significance of the road (highway), not only in law, but in society generally. Although some roads appear to be more important than others (as evidenced by their classifications), a road is a form of public infrastructure and most land could not be productively used without access to a road. More particularly, cities and towns would be non-existent without roads. However, in law, all roads are the same in the sense of their affording a public right of way (and irrespective of whether the exercise of the right is difficult, inconvenient, or even impossible). It is mostly only in a consequential sense that they constitute land and, then, only so they can be regulated as "land in a road" in law.

Once a highway, always a highway: the common law reaches into the statutory scheme

Although not directly mentioned in Orb Holdings, the roads legislative scheme in Queensland (as in other jurisdictions) is consistent with the status of highways under the common law. In this area, the common law adage is, "once a highway, always a highway". Once a landowner had evinced an intention to dedicate land as a highway and the public had accepted the dedication (by using the right of way or maintaining it), the landowner could not revoke the dedication. As referred to by Justice McMurdo in Orb Holdings (and citing New South Wales authority), but in the context of the legislative scheme, once Beatrice Lane had been unambiguously vested in the State because it had been dedicated as a public road, "not only were the registered owners of… [the] land thereafter incapable of calling back their fee simple, but no act of the Registrar [of Titles] 'could be recognised as effective to trench in any way upon" the State's property. (The lane, as a road, would also remain subject to the control of the Brisbane City Council under the City of Brisbane Act 2010.) As further noted by his Honour, the legislative scheme in Queensland, relevantly, the Land Title Act 1994 and the Land Act 1994 maintain the distinction between the ownership of freehold land under the former Act and "the ownership of roads according to a different and overriding statute", namely, the latter Act.

The legislative scheme will, therefore, generally be paramount when considering the property in "land" in a road. Another recent example of this arose in the Western Australia Court of Appeal decision in City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 where section 286 of the Local Government Act 1960 (WA) provided that "[t]he absolute property in land… dedicated, under [that Act]… as a road, street, or highway, is by … this section revested in the Crown and is removed from the operation of the" Transfer of Land Act 1893 (WA), a Torrens title Act. There, Imago Holdings Pty Ltd was the registered proprietor of lots containing disputed land which the City argued was, in the light of section 286, vested in the Crown. The court agreed with the City, specifically noting that the revesting meant the land in the road, like the position in Orb Holdings, was outside the operation of the Torrens title Act and not subject to the principle of indefeasibility.

However, what is the "land in the road"?

An interesting point which was not raised in Orb Holdings (and may not ultimately be relevant to the parties' respective positions) is the land in the road that is vested in the State. As mentioned, land in a road that is vested is not within a registered lot. Today, when land is dedicated as a road, it simply is (usually being surveyed) not included in a lot, but its physical dimensions will be apparent. When land was dedicated as a highway at common law, the dedication (not being a grant of land) meant that the dedicator's land was subject to the public right of way. The landowner continued to own and enjoy the land subject to the public's right of way which, naturally, was only exercisable on the surface of the land. When legislation has, in some jurisdictions, vested a "common law highway" in the Crown or a highway authority the effect has been said to vest the surface (where the common law right of way is exercisable) and immediate sub-surface (so the highway can be maintained). Following that approach, while the road as a public right of way is incorporeal (it is not a physical thing), its use and particularly, its control by a highway or road authority, can give it a tangible quality. But because the Crown or State is only vested with the land in the road as a public right of way, the "land" would not appear to include strata at any greater depth. That strata, at least, is land which is, and continues to be, enjoyable by a registered owner without regard to the "land" in a road.

A qualification on the road concept: statute decides the content of a road and, therefore, its status as land

The modern road – the mostly statutory concept – sometimes seems to sit at odds with the highway as a common law idea. While the modern road can, like the common law highway, be difficult to extinguish except by a formal closure procedure, it can, on occasions, be difficult to know what it is that actually is being extinguished. The modern statutory road is more aptly thought of as "land for road purposes" and those purposes may be whatever statute decides they are from time to time (eg. to accommodate other infrastructure and uses, various encroachments). So, while Orb has seemingly preserved its access (for now at least), we can separately ask, not what might be extinguished as a "road", but what is it that the law actually otherwise preserves as a "road", particularly when it was dedicated under the common law. It might not be the same as it was a minute ago.

As to roads generally in Queensland, see C Boge, "Public Roads in Queensland: Where Statute and the Common Law Intersect" (2017) 37 Queensland Lawyer 26 (Part 1); 80 (Part 2); 126 (Part 3).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.