Jarosz v State of New South Wales

The plaintiffs, David Jarosz and Margaret Jarosz, each own a parcel of land that lies within the Burragorang State Conservation Area (“the Conservation Area”). The Conservation Area is under the care, control and management of the National Parks and Wildlife Service. The respective parcels of land owned by the plaintiffs are Lot 33 in Deposited Plan 751296 and Lot 90 in Deposited Plan 751296. Both parcels share boundaries with two other parcels (Lots 105 and 106 in Deposited Plan 751296). The four parcels together form an area that is completely surrounded by the Conservation Area.

Vehicular access to that landlocked area can be achieved by means of a series of roads or trails that pass through the Conservation Area and across two privately owned lots that are themselves located within the Conservation Area. One such road or trail is referred to as W10. It is the focus of these proceedings.

By their Amended Statement of Claim filed on 26 February 2018, the plaintiffs seek declaratory relief in respect of W10, including a declaration that it is a public road, and declarations that one or other of the State of New South Wales (the first defendant) or the Wollondilly Shire Council (the second defendant) is a road authority for W10 under the Roads Act 1993 (NSW) with responsibility for its maintenance. The underlying concern of the plaintiffs is that W10 is not maintained to a standard which they regard as adequate. The plaintiffs allege that the condition of the road is such that it constitutes a nuisance. A mandatory injunction is sought to require either the first defendant or the second defendant as the responsible authority to remedy the nuisance by removing or repairing hazards on W10. The plaintiffs do not make any claim for damages.

The defendants deny the plaintiffs’ claims and submit that in any event the relief sought is inappropriate and should be refused.

The plaintiffs submitted that W10 became a public road at common law in about the mid-19th century. In that regard, they principally rely upon:

The plaintiffs submitted that the evidence suggests that W10 forms part of an open thoroughfare in the nature of a road that has been used by the public “since the early days of the district” and runs into the public road system. They submitted that prior to the advent of the Local Government Act 1906 (NSW), a public road could be created at common law if two conditions were satisfied, namely, an intention to dedicate the land as a public road, and an acceptance by the public (it seems by no later than 1 January 1920) of the proffered dedication (see Newington v Windeyer (1985) 3 NSWLR 555 at 558-9; Casson v Leichhardt Council (2011) 186 LGERA 34; [2011] NSWLEC 243 at [61]-[67]). It was further submitted that dedication to the public can be presumed from uninterrupted user of the road by the public over a lengthy period (see Newington v Windeyer (supra) at 559).

The defendants submitted that the evidence falls well short of establishing the creation of a road at common law. They further submitted that the relevant land was Crown land and that the common law position was affected by statute, notably the Crown Lands Alienation Act 1861 (NSW) (“the 1861 Act”). Section 3 of the 1861 Act provided:

Section 5 of the 1861 Act made provision in respect of the manner of reservation or dedication of Crown Lands for any public purpose. Section 5 of the 1861 Act comprised a code such that Crown Lands could not be dedicated in any other manner (see Coastal Ecology Protection Group Inc v City of Charles Sturt (2017) 227 LGERA 1; [2017] SASC 136 at [692]; see also Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 at 77 per Windeyer J). The defendants submitted that there was no evidence of any dedication of W10 pursuant to the 1861 Act, or pursuant to any later legislation to the same effect, including the Crown Lands Act 1884 (NSW) and the Crown Lands Consolidation Act 1913 (NSW). It was put that even if there had been such a dedication, it would have been revoked upon the creation of the Conservation Area on 13 December 1991 by force of the then existing s 47B(6) of the National Parks and Wildlife Act 1974 (NSW) (now see s 47B(3) of that Act).

The defendants also pointed to s 178 of the Conveyancing Act 1919 (NSW) which provides:

I turn now to the evidence relevant to the question whether W10 became a public road at common law in about the mid-19th century.

The Crown Plan of 1868 (County of Camden, Parish of Werriberri) is a Plan “Of 60ac of land (and connection) No 33”. The Plan is not easy to read, but a number of features can be discerned including the following:

A Crown Plan of 1884 shows that by that time Nos 90, 105 and 106 (corresponding to Lots 90, 105 and 106 that exist today) had been created. This Plan notes the existence of a “Bush road” near the western boundary of No 106. Mr Groll gave evidence to the effect that the “track” depicted on the 1868 Plan is described as the “Bush road” on the 1884 Plan. Mr Groll was unable to say whether the words “from Burragorang” on the 1884 Plan suggested that the Bush road led to the town of Burragorang. He could only say that the map indicated that there was “possibly some sort of access from Burragorang there”.

Mr Groll also gave evidence (by reference to a cartographic manual) that the “track” depicted on the 1868 Plan appeared to be depicted as a track on the parish map of 1900. That would also seem to be the case for the parish maps of 1880, 1914, 1925 and 1931.

I note in passing that the parish map of 1880 also shows:

Mr Groll expressed the opinion, based upon the cumulative effect of the various records he examined in the course of his searches, that the land upon which W10 runs has been Crown Land since at least 1868, and that there is no record of the land ever being alienated prior to the creation of the Conservation Area in 1991.

Each of the plaintiffs gave some evidence of reputation concerning the existence or nature of W10 as a public road. Margaret Jarosz deposed:

David Jarosz, who is the son of Margaret Jarosz, deposed:

The applicable principles were stated by McHugh JA (with whom Kirby P and Hope JA agreed) in Newington v Windeyer (supra) at 558-9:

McHugh JA continued at 562:

The first question is whether there was an intention to dedicate W10 as a public road. The relevant intention is that of the owner of the land.

I am satisfied on the evidence, including that of Mr Groll, that the land upon which W10 runs has at all material times been owned by the Crown. Counsel for the plaintiffs suggested at one point that the land, being part of the “connection” referred to on the Crown Plan of 1868, may have been conveyed to William Clemson. I do not accept that submission which, in my view, is not supported by the documentary evidence. Indeed, the suggestion that the “connection” was conveyed to William Clemson appears contrary to the position revealed by the parish map of 1880. That map shows William Clemson as the owner of No 33 only, and further shows Nos 99 and 102, located across the route of the “connection”, in the ownership of others (see also the Crown Plan of 1884).

Accordingly, it is necessary to consider whether the Crown manifested an intention to dedicate W10 as a public road. There is no evidence of any express dedication. However, the plaintiffs contend that dedication should be inferred from the Crown Plan of 1868 and the subsequent plans and maps that were lodged. It was submitted that the 1868 Plan identified the road, and the road could be considered to be a road left in a subdivision that runs into the public road system.

I accept that the creation and sale of No 33 can be seen as a form of subdivision of the Crown land in the area. However, the position seems to me to be somewhat removed from that of private subdivisions that include roads connecting to the public system, as for instance considered in the cases cited by McHugh JA (viz Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216; Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401). The context, in particular the statutory background, is very different. From the commencement of the 1861 Act the Crown could only dedicate its lands for the purpose of a public road in the manner prescribed by the Act. The Crown can of course be taken to be aware of those provisions. The Crown Plan of 1868 itself contains a reference to the 1861 Act – it was noted that the sale of No 33 was to be a conditional sale pursuant to an application made under s 13 of the 1861 Act.

In these circumstances, the inclusion on the Plan of the “connection” or “Traverse” does not in my opinion give rise to an inference that the Crown intended to dedicate as a public road that land (which, I am prepared to assume, roughly corresponds with the land upon which W10 runs). The inclusion on the Plan of the “connection” should be regarded in my view as no more than an identification of an existing way of access to and from No 33. The circumstances of the sale may well have given rise to private rights to use the access way. However, the exercise of such rights would not constitute use as a public road (see Newington v Windeyer (supra) at 562).

Similarly, the later plans and maps do not support an inference that the Crown intended to dedicate W10 as a public road. Indeed, insofar as they show the creation and sale of lots that lie across the access way they tend against the drawing of such an inference.

The plaintiffs also relied upon the evidence of longstanding use by the public to support the conclusion that there had been a dedication of W10 as a public road. The legislature has made it clear by s 178 of the Conveyancing Act (and its predecessors) that user alone cannot support a presumption against the Crown of dedication of a public road (see Williams v State Transit Authority of New South Wales (supra) at [65]). However, as it may be the case that the plaintiffs rely upon this evidence in combination with other evidence, I will proceed on the basis that they are not precluded by s 178 (see Cavric v Willoughby City Council (supra) at [30]).

I would not in any event regard the evidence adduced in this case as sufficient to give rise to a presumption, or an inference, that there had been a dedication of W10 as a public road. Even making due allowance for the fact that there are obvious evidentiary difficulties involved in attempting to prove use prior to 1 January 1920 (see Casson v Leichhardt Council (supra) at [67]) little weight can be given to the reputation evidence. It is expressed in very general and conclusionary terms. There is a lack of clarity about when the reputed public use commenced, and the nature of the use then and thereafter. Apart from the reference by David Jarosz to some members of the local community having lived in the area “much longer than my family” the underlying basis of the asserted reputation is not specified.

I think it would be unsafe for the Court to use that evidence as a basis for a conclusion that at some particular time prior to 1 January 1920 members of the public commenced to use W10 as a public road and continued to do so thereafter. Certainly, I would not be prepared to conclude, based on that evidence, that the “connection” or “Traverse” depicted on the Crown Plan of 1868 was freely used by members of the public as a public road by 1868.

Moreover, if any use by the public of W10 as a public road commenced after the 1861 Act came into force, the use would not raise the inference that the Crown had dedicated W10 as a public road. Viewed against the statutory background, in particular the exclusive manner in which land could be dedicated for public purposes, it would not be evidence of user from which dedication can be properly inferred (see Newington v Windeyer (supra) at 559; compare Turner v Walsh (1881) 6 App Cas 636 where there was evidence of continuous user commencing 21 years before the 1861 Act came into force).

Finally, I should add that insofar as the plaintiffs adduced evidence of the use of W10 in more recent times (since about 1980), I do not think that the evidence enables any inferences to be drawn as to user of W10 prior to 1 January 1920.

For the above reasons, I am unable to accept that W10 became a public road at common law as alleged by the plaintiffs.

It follows that the land upon which W10 runs did not become vested in a council pursuant to s 232 of the Local Government Act 1919 (NSW). It remained Crown land, and is now part of the Conservation Area. It is included in the Conservation Area because it is within “the area shown by shading” on the diagram that forms part of the relevant notification published pursuant to s 47B of the National Parks and Wildlife Act. It appears clear to me, looking at the diagram, that the land is within the shaded area. I do not accept the submission to the contrary made by counsel for the plaintiffs, who suggested that certain lines on the diagram, even though within the shaded area, might not be intended to be included.

In view of the conclusions I have reached, it is not necessary to consider whether, in any event, any dedication of a public road in respect of W10 would have been revoked upon the creation of the Conservation Area by the operation of s 47B(6) of the National Parks and Wildlife Act.

The claim in nuisance was pressed by the plaintiffs only in the event that the Court did not conclude that W10 was a public road. In those circumstances the claim can be regarded as one of private nuisance against the occupier of W10.

The relevant occupier is the first defendant, the State of New South Wales. The State accepts that the Chief Executive of the Office of Environment and Heritage has the care, control and management of the Conservation Area, which includes W10 (see s 47B(2)(c)(i) of the National Parks and Wildlife Act).

The plaintiffs allege that there has been “a continuous or recurrent disrepair” of W10, and that its occupier has failed to take reasonable steps to bring that state of affairs to an end by maintaining it to a proper and reasonable standard, despite having had ample time to do so. It is alleged that W10 is a neglected and hazardous section of roadway which presents a high risk of accidents and injury to users, including the plaintiffs, who must use W10 in order to access their land. It is further alleged that the current state of W10 greatly inhibits or prevents safe and proper access to the plaintiffs’ properties.

Evidence was adduced from both plaintiffs concerning the condition of W10. David Jarosz deposed that the section of W10 closest to Lot 33 is uneven, unmade and hazardous. He said that it “now takes about 5 minutes to drive the 1,600m road”. Mr Jarosz deposed that there are sandstone rocks sticking up out of the road, and further that the road has not been graded since about 2009.

Mr Jarosz deposed that he has spent a large amount of money over the years, not less than $60,000, to purchase equipment (including a tractor and an excavator) for the purpose of carrying out his own repair works on the road. He says that on average he spends about 10 hours per month on clearing and maintaining the road.

Mr Jarosz deposed that the state of the road is such that it seriously affects the use of and access to Lots 33 and 90. He says that even with the repairs done by himself, the surface of the road is very rough and uneven and “almost impassable at times”. He further says that in times of rainfall the surface is dangerously slippery, and there are protracted periods where access to Lot 33 is impossible. Mr Jarosz also says that fallen trees prevent the safe use of the road.

A number of photographs of the road, taken by Mr Jarosz, were admitted into evidence. These include some photographs taken in about November 2018 that showed ponding on and to the side of the road following a period of torrential rain. Mr Jarosz deposed that those rains caused flooding and large rocks to become exposed on the road surface, and further that some sections of the road “were un-crossable by normal cars” and the road “became unusable to domestic vehicles for some days following this flooding”.

Margaret Jarosz deposed that the road was now uneven and in a hazardous state. She gave evidence of sandstone rocks that are visible through the top of the road surface. Margaret Jarosz deposed that had her son and her late husband not undertaken repairs and maintenance over many years “we would not be able to access our properties safely”. She deposed that in times of rainfall the road becomes slippery and very dangerous.

The evidence given by the plaintiffs concerning the condition of W10 was not subjected to any substantial challenge.

The High Court held in Elston v Dore (1982) 149 CLR 480 at 488 that the proper test to apply in most cases of private nuisance is that stated by Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903:

Earlier, in Hargrave v Goldman (1963) 110 CLR 40, Windeyer J (at 59) cited with approval the definition of nuisance found in the Sixth Edition of Winfield on Tort, namely, an “unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connexion with it”. Windeyer J continued (at 62):

It is rarely the case that use of land by a defendant which does not cause something to emanate from it will amount to a private nuisance (see Hunter v Canary Wharf Ltd [1997] AC 655 at 685-6 and 709; Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [86]; Onus v Telstra Corporation Ltd [2011] NSWSC 33 at [148]).

There was a degree of imprecision in the formulation of the plaintiffs’ claims in nuisance. First, it was not clearly explained how the condition of W10 caused a substantial interference with the plaintiffs’ use and enjoyment of their lands or some right in connection with their lands. Secondly, the conduct of the State said to be unreasonable was not defined with any clarity.

As I understood the plaintiffs’ case, their complaints do not concern the enjoyment of their respective lots as such, but rather the enjoyment of their means of access to their lots insofar as access is afforded by W10. Accordingly, there is considerable force in the submissions made by the defendants to the effect that the plaintiffs’ complaints concern neither the enjoyment of their land, nor any right that attaches to their land. It is true that the plaintiffs did not identify any such right, and it seems to be common ground that neither plaintiff has entered into a licence agreement under s 153C of the National Parks and Wildlife Act that would confer a right to use W10. It appears that the plaintiffs are allowed to use W10 to access their lots. This seems to be a matter of policy, not right. Nevertheless, given that in at least some circumstances interference with access to a person’s land can constitute a nuisance (see, for example, Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767) I will make the assumption, favourable to the plaintiffs, that the conduct of the State in relation to its management of W10 might conceivably give rise to a private nuisance actionable by the plaintiffs.

It is clear, however, that in order to make out the claim in nuisance the plaintiffs must at least establish that the conduct of the State in relation its management of W10 was unreasonable.

The State called evidence from Glenn Meade, the officer of the National Parks and Wildlife Service with responsibility for management of the area that includes the Conservation Area. He explained that the Conservation Area (which he referred to as the BSCA) was part of the wider Nattai Reserves system that comprises an area of approximately 86,000 hectares. Mr Meade deposed that in the area under his operational control there are approximately 950km of unsealed roads and trails used for fire, recreational and/or management purposes, including W10, which he refers to as the W10 Fire Trail.

Mr Meade further deposed:

In cross-examination, Mr Meade essentially agreed with the proposition that if landholders (who needed to use a fire trail to gain access to their properties) wanted a better standard of road for their access, that was “their problem”. Mr Meade agreed that it was a term of an access licence granted under s 153C of the National Parks and Wildlife Act that the licence holder was responsible for maintenance, or at least the cost of maintenance, of the trail. He also agreed that if such a landowner did not have a licence the landowner had no right to undertake maintenance on the trail.

It was put to Mr Meade that he should be maintaining W10 “to a better standard than simply for large fire trucks to traverse”. Mr Meade’s response referred to the needs of the 950km road network under his management, and to various “priorities”. In that regard, he referred to matters such as fire, visitors, conservation and water quality. Mr Meade said that in relative terms W10 was not in an alarming condition “for my needs and the needs of the RFS and the needs of the energy providers”.

It was not put to Mr Meade that it was unreasonable to not maintain W10 to a better standard. It was not put to Mr Meade that his assessment of priorities resulted in a level of resources allocated towards the maintenance of W10 that was unreasonable in the circumstances.

The State also called evidence from Martin Surrey, a Superintendent with the Rural Fire Service, whose area of responsibility includes the Conservation Area. Mr Surrey deposed:

Mr Surrey also referred to new Fire Trail Standards introduced pursuant to the Rural Fires Amendment (Fire Trails) Act 2016 (NSW). He gave evidence that W10 would be classified in accordance with the new standards later in 2019.

In cross-examination, Mr Surrey agreed, in effect, that under the Bush Fire Risk Management Plan the required “trafficable capacity” relates only to large fire fighting vehicles. He also agreed that to the extent that a fire trail may have other uses, the new fire trail standards do not cover what is “an appropriate level of maintenance”.

The State also called evidence from Mary-Therese Knowles, a Catchment Assets Manager with WaterNSW with responsibility for operational management of WaterNSW land and “Special Areas” in the catchment area around Warragamba Dam (see Water NSW Regulation 2013 (NSW), Schedules 1 and 2). Those Special Areas include the Conservation Area. Ms Knowles deposed that prior to the declaration of the Conservation Area in 1991 the then Water Board had responsibility for the construction and maintenance of fire trails in the Special Areas. Ms Knowles was not cross-examined.

W10 is an unsealed dirt road located within a State Conservation Area. It functions as a fire trail and also provides a means of access through the Conservation Area, including to a small number of privately owned lots within it. I accept, based on the photographic evidence and the evidence given by the plaintiffs, that W10 as an unsealed dirt road presents hazards to those driving vehicles upon it. I further accept that in some circumstances, including after episodes of heavy rainfall, those hazards become more acute, and some vehicles, particular 2WD vehicles, may not be able to be driven along the length of W10.

However, I am not persuaded that the road has been and remains in a state of disrepair, or may fairly be described as a neglected and hazardous section of roadway which presents a high risk of accidents and injury. There was no evidence adduced by the plaintiffs of any accidents or injuries occurring on W10. I appreciate, of course, that the second plaintiff himself has carried out works that might ameliorate such risks. Neither am I persuaded on the evidence that the condition of W10 greatly inhibits or prevents safe and proper access to the plaintiffs’ properties. W10 appears to provide reasonably safe and proper access to those properties, even if particular care is called for in some conditions, and even if some vehicles may not be able to be driven along its length in some conditions.

The Conservation Area, of which W10 forms part, is required to be managed in accordance with the National Parks and Wildlife Act, in particular in accordance with the management principles set forth in s 30G(2) and the objects set forth in s 2A. These include the conservation of habitat, ecosystems and biological diversity. Bush fire control is clearly a matter of central importance in that regard.

The evidence adduced by the State shows that it regards W10 as primarily a fire trail, and maintains it accordingly. It was not suggested that, as a fire trail, it would be more appropriate to maintain W10 to a standard or condition higher than that which currently exists. Rather, the suggestion was that W10 ought be maintained to a higher standard or condition so that it would better serve its purpose of providing access to the privately owned lots, including those owned by the plaintiffs.

It would of course be open to the State to decide to take steps to improve the standard or condition of W10. That would involve a cost. In circumstances where the funds available to government agencies are limited, decisions concerning the expenditure of money reflect an ordering of priorities as between numerous competing calls for public funds. In the present case, this was reflected in the evidence given by Mr Meade who said that National Parks and Wildlife Service resources for road maintenance within his area of responsibility “are prioritised to those parts of the national park system that are most heavily used by visitors or which are the most strategic fire trails for bush fire management purposes”. Viewed more broadly, if funds for better road maintenance were to come from another arm of the government, different questions of priority would arise.

The plaintiffs’ case failed to grapple with these matters. No particular standard of road condition was identified as the appropriate standard for W10. There were only references made in pleadings and submissions to vague notions such as a proper and reasonable standard of road, a road that affords safe and proper access, or a road that is fit for purpose. In essence, the plaintiffs failed to identify what the State failed to do such that its conduct should be regarded as unreasonable. Moreover, no attempt was made to establish what works would be required in, and the likely cost of, bringing W10 up to the appropriate standard. There was thus no real foundation for an argument that the failure to maintain W10 to that standard was unreasonable. In those circumstances, it is not surprising that it was not put to Mr Meade that it was unreasonable to not maintain W10 to a better standard, and not put to him that his assessment of priorities resulted in an unreasonable allocation of resources.

For the above reasons, it is my opinion that the plaintiffs have failed to establish that the State has acted unreasonably (or in any sense negligently) in relation to its management of W10. Accordingly, the claim in nuisance cannot be made out.

I should add that the relief sought by the plaintiffs in relation to the claim in nuisance was in any event problematic. The declaration to the effect that the condition of W10 “constitutes a nuisance” to the plaintiffs seems to me to lack utility. The mandatory injunction, which would require the nuisance to be remedied “by removing and/or repairing hazards”, was so lacking in content and clarity that it would not have been appropriate for the Court to issue it.

The plaintiffs have failed to establish that W10 became a public road as alleged, and have failed to make out their claim in nuisance against the first defendant. It follows that the Amended Statement of Claim must be dismissed. The Court will so order. The parties have indicated that they may wish to make submissions as to costs. The Court will make directions for the filing of brief written submissions on costs, with a view to dealing with that matter on the papers if appropriate.