Highway blues: when dedicating land as a highway cannot be very easily done

Public roads are, and have long been, the most significant form of public infrastructure, connecting cities, towns, and suburbs and provide access to private and other lands. Billions of dollars are spent each year by governments and road authorities in Australia on their creation and maintenance.

Public roads, whether further classified as streets, lanes, or main roads such as motorways or the like, are invariably dedicated on the registration of a plan in a land registry or by some other method prescribed by statute. Rarely is a public road, or rather, a highway, created by dedication under the common law. In fact, in some jurisdictions it is simply not possible. But in the past highways may have been created under the common law before any statutory intervention – and it may be in the interests of a landowner, particularly a landlocked one, to have a court declare that to be the case, as the road is in effect maintainable at public expense.

Common law dedications are, not surprisingly, of English origins and have been described as "usually quite imaginary" and "often a pure legal fiction"; many highways in England are time out of mind. In Australia, however, many public roads were created when Crown land was historically granted or laid out for settlement or development and have been, and continue to be, created through the later private subdivision of land, so theoretically they should be easier for landowners to establish. But, as David and Margaret Jarosz, and James Gray and his wife, recently, but separately, found out, establishing that a highway had been dedicated over Crown land under the common law is not something that can be very easily done.

The means of dedicating land as a public road

At common law, the owner of land dedicates his or her land as a highway by satisfying two conditions – there must be:

• an intention – which may be express or inferred – to dedicate the land as a highway; and
• an acceptance of the proffered dedication by the public.

Under a statutory dedication, public acceptance of the dedication generally is not required; the road is dedicated by the formal act of dedication (such as the registration of a plan). Immediately thereafter, the road comes under the control of a road authority such as a local government.

Nevertheless, the concept of public acceptance of a proffered dedication – which could be evidenced by public user of the road – or its general statutory equivalent of the land being open to the public, has always been important because the road is immediately maintainable at public expense. At common law, maintenance of the highway by the public was, in essence, the price of accepting the landowner's dedication. In modern terms, maintenance of a public road is a function or responsibility of the road authority.

This brings us to the heart of a recent action in the New South Wales Supreme Court for a declaration by David and Margaret Jarosz that a particular trail was a public road for the law and, therefore, maintainable at public expense.

David and Margaret and their landlocked land

The position at common law that a landowner's intention to dedicate his or her land as a highway could be presumed in certain circumstances, including by continual, or long, uninterrupted, public user of the land as a thoroughfare, applies where statute has not intervened. But, where the relevant land is Crown land, a further, but entirely separate, consideration is that the Crown has long been able to deal with its land only according to statute. This means that, although a private dedication under the common law may have generally been possible unless or until statute said otherwise, the Crown was, and still is, in a peculiar position: the Crown cannot be presumed to have had an intention to dedicate Crown land where statute expressly or impliedly regulated the way in which the Crown could create a public road at law (including, for example, by requiring the publication of a plan or map showing a road). And therein lay a problem for the plaintiffs David and Margaret Jarosz, each respectively an owner of a parcel of landlocked land, in Jarosz v State of New South Wales [2019] NSWSC 692.

The Jaroszes' parcels were located within the Burragorang State Conservation Area in the lower Blue Mountains in New South Wales. The conservation area was under the care, control, and management of the National Parks and Wildlife Service. Each parcel shared a boundary with two other parcels of land and all four parcels were completely surrounded by the conservation area. Vehicular access to the Jaroszes' parcels was by way of a series of roads or trails – including "W10" – that passed through the conversation area and across two privately owned lots within the conservation area.

The Jaroszes sought a declaration that W10 was a public road and that one or other of the defendants – the State of New South Wales and the Wollondilly Shire Council – was a road authority for W10 and, therefore, was responsible for its maintenance. The plaintiffs also said that the lack of maintenance of W10 constituted a nuisance and sought a mandatory injunction compelling the defendants to maintain the road. The defendants denied these claims.

Three statutory bumps in the road

The plaintiffs needed to show that their evidence unequivocally pointed to a dedication of the land called W10 as a highway under the common law. In particular, an inference of an intention to dedicate the land needed to be drawn from that evidence.

But, in New South Wales, because of an earlier Local Government Act a highway could only be created in accordance with the common law providing the public accepted the dedication no later than 1 January 1920. Also, under section 178 of the Conveyancing Act 1919 (NSW), no dedication of a way may be presumed or allowed to be asserted against the Crown by reason only of user. Further, as the land subject to W10 was Crown land, since the Crown Lands Alienation Act 1861 (NSW) the Crown could not deal with it, including by dedicating it as a highway, except in accordance with statute.

It was, then, not enough for the plaintiffs only to demonstrate that members of the public had used W10 as a thoroughfare. They had to show that, before 1920, and in the absence of the Crown's dedicating W10 according to statute, that W10 had been dedicated not simply by reference to public user, but, in any event, that any proffered dedication had been accepted by the public and that the dedication, as alleged, was nevertheless possible in the light of 1861 Act.

Mere continual or long, uninterrupted public user does not prove a highway: if it did, trespassing by the public would create a highway. From public user an inference that the landowner had the necessary intention to dedicate his or her land as a highway may be able to be drawn and, obviously, such user may be evidence of acceptance of any proffered dedication.

The Jaroszes asserted that W10 had become a highway at common law in the mid-1800s by pointing to evidence that W10 was an open dirt road that had been generally used by the public "since the early days of the district" and also because it ran into a public road system (with the inference that it cannot be anything but a road). In particular, they relied on a Crown plan of July 1868 which showed David's parcel as well as a "connection" or "traverse" which was said to correspond to W10, and also on some evidence of W10's reputation as a public road.

These assertions did not sit comfortably with Justice Darke, who rejected the argument that a dedication of W10 as a highway could be inferred from the plan of 1868 merely because that plan identified a "connection" or "traverse" which may have been a road left in a subdivision that ran into a public road system. It was unlikely the Crown, aware of the 1861 Act, could be said to have simply left a public road in a subdivision. In any event, the connection may have been no more than a private access to David's their parcel.

And, even if there was evidence of public user after the commencement of the 1861 Act (but before 1 January 1920) that user could not be evidence of user from which a dedication could be properly inferred. This is because, in the light of that Act, the presumption could not possibly have any legal effect as one of an intention to dedicate by the Crown. As such, the evidence of public user had no relevance, including for section 178 of the Conveyancing Act. Importantly, Justice Darke thought it would have been unsafe for the court to use what was no more than very general evidence to conclude that W10 was a pubic road by reputation.

He concluded, having regard to the evidence in its totality, that W10 remained Crown land and was now part of the conservation area. In particular, the evidence did not get over the statutory bumps.

James Gray, his wife, and her landlocked land

James Gray was a solicitor whose wife owned a parcel of landlocked land at Myers Creek, north of Healesville, Victoria. The surrounding land was unreserved Crown land. He had made three unsuccessful applications to the Victorian Civil and Administrative Tribunal for planning permits to develop the parcel as a dwelling. He then sought leave to appeal to the Victorian Court of Appeal against the third decision of the Tribunal, but was refused by Justice Osborn in Gray v Minister for Energy, Environment and Climate Change [2019] VSC 382.

Most of Mr Gray’s proposed grounds of appeal went to the Tribunal’s rejection of proposed access arrangements for the land. Mr Gray sought to use a dirt track in a water frontage allotment that was unreserved Crown land for the purpose of access. He argued that members of the public had a general right of access to unreserved Crown land and, therefore, he was entitled to use and maintain the access track. While apparently accepting that the public had such a general right, Justice Osborn said it did not follow that Mr Gray had an ongoing right to maintain and use the track across it.

Mr Gray also argued that the evidence showed that the track constituted a highway at law and, therefore, he had an ongoing right to use it. Mr Gray specifically relied on the principle that long, uninterrupted public user may give rise to an inference of dedication of a highway. Justice Osborn agreed with the Tribunal in rejecting Mr Gray's argument on the grounds that:

• the Crown had previously granted licences over the track governing its rights of use;
• the apparent purpose of the creation of the water frontage allotment was the provision of access to Myers Creek for recreational use and not the creation of a right to pass over Crown land as such; and
• evidence of use of the track by members of the public was consistent with recreational use and did not support an inference of dedication arising from such use.

But he added another reason for rejecting Mr Gray's dedication argument. That was that the land, being Crown land, was neither proclaimed nor reserved as a road in the ways contemplated by the Land Act 1958 (Vic), a practice the Crown had undertaken for well over 100 years.

Landowners' wishes won't easily translate into public maintenance of a road.

Sometimes you have to know what things don't mean.

Dedication of land as a public road is a serious act even if the process is straightforward under an Act. Where dedication under the common law is still relevant, the dedication cannot be lightly inferred. Therefore, evidence that a landowner had, in the past, intended to dedicate his or her land and of the public's acceptance of the landowner's offer will need to be compelling. Mere convenience of finding there is a public road, including for the benefit of a current landowner who will otherwise be landlocked, will be insufficient (the landowner may need to look at acquiring a private right of way, which may also be difficult, especially if it's Crown land that is concerned).

Whether dedication at common law of a highway which can also today be characterised as a public road under an Act is or was possible needs to be understood in the context of roads legislation generally, which has heavily intervened in this area, and for good reason. If there is found to be a dedication, the road is in effect maintainable at public expense.

And, in Australia generally, the position of the Crown in respect of Crown land is to be contrasted with that of other landowners in respect of the creation of public roads, including historical common law dedications of highways. Legislation will (particularly today) usually go further than general regulation by providing a specific method for the Crown to dedicate its land as a public road.

To a landowner landlocked or isolated by Crown land, the requirements of that method, or the more general proposition that the Crown could have only dealt with its land according to statute at the relevant time, will be fatal to an argument that a common law dedication had occurred by other means, even if there is evidence of long, uninterrupted public user. And, that is without even considering whether a common law dedication of a highway is still even possible generally.