The open road - or is it? Status of roads in land subdvisions

Since the commencement of the Local Government Act 1919 in 1920, the status of roads shown in plans of subdivision has rarely been in doubt.  That Act, and its successor, provided that, on the registration of a plan of subdivision showing a road and containing a statement of intention to dedicate it as a public road, the road was so opened, and remained so.

However before that date, the status of roads in plans of subdivision could be, and often was, in doubt.  Save for a limited number of roads governed by some early 19th century statutes, the question of whether a road in a subdivision had been opened as a public road or not was left to the common law, which required both an intention to dedicate the road as a public road, and actual use of the road by the public, or adoption by the council on the public's behalf (as, for example, by sealing it).  The position was further complicated by the possible application of an ancient legal rule which provided, in effect, that the creation or sale of a lot described or shown as adjoining a road gave that lot title to the land to the middle of the road, subject to any rights of use which the public, or other owners, might enjoy.

Because of this uncertainty, the Local Government Act 1919 contained provisions enabling a council, in cases of doubt, to publish a notice in the Gazette after notifying affected owners, whereupon the roads became public roads.  An appeal process was open to owners who received notice.  Similar provisions are now found in sections 16 and 17 of the Roads Act 1993.

The operation of these provisions, and the effect of notations made by the Registrar-General to give effect to them, came before the Supreme Court recently in Aquilina v Blacktown City Council, in which Bartier Perry represented the defendant council. 

The facts of the case

In brief, the case concerned a "paper" road at Riverstone, which had been created by a plan of subdivision in about 1883, but which had never been used as a public road and had, in fact, been used by the plaintiff and his predecessors in title as part of their adjoining land on both sides of the road.  In 1986, the council decided to clarify the status of a number of roads in its area, and gave written notice of its intention to declare a public road to the documentary owners of the subject road, being the legal representatives of those who had created the subdivision in 1883.  No notice was given to Mr Aquilina as the owner of the adjoining lands.

No response to the notice having been received, the council then published a notice in the Gazette, after which it lodged a request with the Registrar-General to have the effect of the declaration noted. The Registrar-General did so on the certificate of title out of which the subdivision had been carved, noting that "the roads in (the Gazette notice) are now public roads".  The Registrar-General, importantly, also made a notation on the same certificate of title that "residue comprises roads in (amongst others) the relevant plan of subdivision".  The old title, although marked "cancelled" had a "R" notation which meant that it was not cancelled as to the residue of land in it after the lots in the subdivision had been sold off.

Mr Aquilina sought, in effect, a declaration that the Gazette notice in 1986 was ineffective because he had not been given notice.  He said that, as the owner of land on both sides of the road, he owned the whole of the road by virtue of the legal rule  referred to above, and so should have been given notice as an owner.  Two questions arose for consideration by the court:

• Did Mr Aquilina in fact own the road by virtue of the relevant rule of law?

• If he did, was that right extinguished by the  registration of the vesting of the road in the council following the request made by the council in 1986?

The decision of the court

As to the first question, the court held that, because there was a folio of the Register which showed that the residue roads were comprised within it, that was effective to displace the application of the rule giving Mr Aquilina title to the road as adjoining owner.  Therefore there was no obligation on the council to give him notice of its intentions in 1986, and no defect in the Gazette notice which followed.

On the second question, the court held that, even if Mr Aquilina had held such a title, and the Gazette notice was ineffective because he had not been given notice as owner, that defect was cured by  the notation of the dedication of the road as public road following the request lodged by the council in 1986. (The Court apparently accepted that the notation was effective to vest the road in the council as statutory owner of such roads: see s 145 of the Roads Act). In so doing, the court applied a number of decisions on the \"indefeasibility\" provisions of the Real Property Act which have the effect that a defect in the title of a person who becomes registered as proprietor of land or an interest under the Act is removed by the fact of registration.  In the words of one of the leading decisions in the area, the Torrens system established by the Real Property Act is one of  \"title by registration, not registration of title\". 

Implications of the decision

The decision is an interesting one in terms of the application of the indefeasibility provisions of the Real Property Act to steps such as were taken by the council in this case.  The practical implications are:

• To ensure that, under the current s.17 of the Roads Act, notice of the intended Gazette notice is given to "the owner of the land".  In this case, because of entries made in the Register, the owner was held to be the documentary owner and not owners of adjoining land.  However, the position may not always be thus and either some investigation of the position needs to be undertaken, or notice given to adjoining owners as well as the documentary owner, just in case.  Of course, this needs to be balanced against the increased risk that an objection to the Court might be made under that section if additional people are given notice.

• To ensure that  the effect of the Gazette Notice is recorded in the Register by means of a request to the Registrar-General.  The decision in this case might have been quite different had such a step not been taken.