Chamberlain v Kiloren Pty Ltd

These proceedings relate to a parcel of land in Crookwell in the state of New South Wales. The present title reference for the parcel at the heart of the case is Lot 1 in Deposited Plan 1234442. I will refer to it as the “Railway Street Lot”. By the time final submissions in the hearing concluded on 23 April 2026, a previously broad set of issues had collapsed to two discrete questions:

For the reasons which follow, I find that the Railway Street Lot is the location of a public road. The Plaintiffs’ alternative claim to a personal equity does not therefore need to be determined but, in any event, there is no basis for that alternative claim and it is to be rejected.

As is the nature of a case like this, it is necessary to set out the facts in detail. They are almost entirely proved by documents. There is virtually no room for controversy about the primary facts, although the inferences to be drawn from the facts is another matter.

On 17 May 1852 the Crown granted just over 59 acres of land to Thomas Wade. The land is near the present-day location of the town of Crookwell in the state of New South Wales.

Mr Wade was the recipient of other lands in the general location of Crookwell pursuant to further grants over subsequent years.

In 1862 the first Torrens statute was enacted in New South Wales, namely the Real Property Act 1862.

Pursuant to a primary application dated 6 January 1872, Mr Wade bought his land under the provisions of the Torrens statute. Later in 1872, the earliest certificate of title which is relevant to the Railway Street Lot was issued. It was Certificate of Title Volume 142 Folio 48. It was not issued to Mr Wade but to Benjamin Short, Gentleman of Sydney. The circumstances in which Mr Wade departed the lands and Mr Short entered them are not revealed by the evidence and nothing turns on it.

In about 1885 DP 1561 was registered which contemplated a subdivision of one part but not all of Mr Short's land. DP 1561 depicted 73 regular-shaped lots arranged in a regular pattern about Goulburn Street and a couple of side streets, including Prospect Street. Goulburn Street was depicted in DP 1561 to be 99 feet wide. Informed by the Court’s site view of the land which occurred on 27 October 2025, the size and location of the 73 lots were such as to demonstrate Mr Short's intention that they be sold for the purpose of establishing a residential precinct on the eastern side of Crookwell.

In 1886 Mr Short registered a second plan of subdivision, namely DP 1849. It included another part, but not all of the residue, of Mr Short's land. Amongst other things, DP 1849 included the Railway Street Lot which is the focus of these proceedings. The copy of DP 1849 in evidence bears a handwritten notation which is dated 17 November 1886 and states that it was lodged by Miller & Lewis, Licensed Surveyors of Bathurst Street. DP 1849 was certified by N.A. Lewis.

DP 1849 depicted a parcel of land subdivided into 34 lots. The subdivision was bounded to the west by a street running due north and labelled “East Street”. East Street was shown to be 99 feet wide. In another contemporaneous document East Street is described as the eastern boundary of the "Crookwell Urban Area", which explains the name of that street.

The subdivision depicted in DP 1849 is bounded to the south by a continuous line of 27 lots fronting Goulburn Street further to the south, which 27 lots were part of DP 1561. There was no road, street or lane between the southernmost lots in DP 1849 and the northernmost lots in DP 1561.

To the west there is a notation on DP 1849 which reads "old log fence" which is evidently depicted by a line which runs due north (and hence parallel to East Street). About 266 feet in from the boundary is another parallel road alignment which is labelled "Prospect Street". As depicted in DP 1849, Prospect Street adjoined the Prospect Street depicted in DP 1561. Between Prospect Street and the old log fence were 12 lots, 9 of which were uniformly 50 feet wide.

The totality of the 34 lots depicted in DP 1849 were arranged in a regular, linear pattern set about East Street, Prospect Street and a third street named Railway Street to which I will return. The size of the 34 lots varied, but most of the lots were obviously intended to be suitable for a single residence. Some of them were larger.

Given the layout of the subdivision, the size of the individual lots, its location relative to the Crookwell Urban Area and the subdivision in DP 1561, the intention of Mr Short when lodging DP 1849 was evidently to create another new housing precinct at Crookwell. The header of DP 1849 refers to "Railway Estate" and there is a reference to the subdivision in DP 1561 as the "Pleasant Prospect Estate".

The other street depicted in DP 1849 ran from East Street to Prospect Street. As depicted in DP 1849, the street was labelled "Railway Street". It was 66 feet wide which was the same width as Prospect Street but not as wide as East Street.

Railway Street adjoined each of East Street and Prospect Street without any barrier depicted in DP 1849. While some fences were marked on DP 1849, there was no fence depicted at any entrance to Railway Street. Having regard to DP 1849 there is no doubt that access to Railway Street was intended to be open from East Street and Prospect Street and vice versa.

Railway Street was not uniformly straight. From the east where it joined Prospect Street at a right angle, Railway Street proceeded straight in a due west direction until it had covered about half of the distance to East Street and then its continued westerly progress sagged to the south in a sort of arc before it eventually joined East Street a little further south.

Having regard to the continuous line of lots on the northern edge of the land depicted in DP 1561, Lot 21 in DP 1849 had no means of access to the nearest public road (which East Street evidently was) or to any other public road other than by way of Railway Street. Apart from a 20-foot lane which cut between Prospect Street and a point further along the sag in Railway Street, none of Lots 6, 7, 8, 9, 10, 11 and 12 in DP 1849 had a means of access to a public road other than by way of Railway Street. The same is true of Lots 3, 4 and 5 given the land to the north of the subdivision was shown as fenced off and labelled "reserve". It might physically have been possible to access Lots 3, 4 and 5 from the north, depending upon the condition of the fence (also labelled "old log fence") but there is no evidence to undermine the clear inference from DP 1849 that access to Lots 3, 4 and 5 was contemplated from Railway Street and not from anywhere else.

The layout depicted in DP 1849 further contemplated that access to and from the Crookwell Urban Area beyond East Street might conveniently be achieved via Railway Street for some of the lots on the eastern side of Prospect Street. These lots would have had an alternative route to the Crookwell Urban Area via Goulburn Street to the south but, for some of the northern lots, it would have required a longer distance to be covered. For those not looking for the extra exercise or in a hurry, Railway Street was clearly intended as a convenient option.

Between the time that DP 1849 was registered in 1886 and 31 May 1910, eleven of the lots in DP 1849 ceased to be owned by Mr Short. That conclusion follows from the fact that on 31 May 1910, a new certificate of title was issued to Mr Short, namely Certificate of Title Volume 2059 Folio 164. Apart from some other changes, the new certificate of title excluded from DP 1849 eleven lots which were marked on a plan attached to the new certificate of title and coloured yellow.

There is a broad pattern to the lots from DP 1849 which had been divested by Mr Short as at 31 May 1910 in that they are generally clustered in the southeastern corner of the Railway Estate, although those to the north (e.g. Lot 27) were closer to Railway Street than to Goulburn Street.

The land in DP 1561 was also included in the new Certificate of Title Volume 2059 Folio 164, but likewise 59 of those lots were expressly excluded by words and yellow colouring. The fourteen lots in DP 1561 which Mr Short still owned on 31 May 1910 were scattered about Pleasant Prospect Estate without any particularly discernible pattern.

There are a number of copies of Certificate of Title Volume 142 Folio 48 in evidence which are of uniformly poor quality. In the usual way, after the certificate of title was issued it was subsequently annotated each time there was a dealing which affected the land which was the subject of the certificate of title. Given the poor quality of the copies in evidence, it is not possible to identify the details of subsequent dealings. It is however possible to see the bulk of the dealings. Given the number of stamps on the first and second pages (eighteen) and the number of line items on the third and fourth pages, it is clear that numerous dealings occurred between 1885 (when DP 1561 was registered) and 1910 (when Certificate of Title Volume 142 Folio 48 was replaced by Certificate of Title Volume 2059 Folio 164). Many of the dealings appear to have related to the lots in DP 1561, but some related to the lots in DP 1849.

From the above facts I infer that from 1886 Mr Short offered for sale the lots in DP 1849.

There can be little doubt that that was his intention in 1886 when he went to the trouble of having DP 1849 drawn up and registered. It is further to be inferred that by 1910 Mr Short no longer owned the eleven lots coloured yellow and excluded from Certificate of Title Volume 2059 Folio 164 because to that extent his efforts to sell lots in the Railway Estate had been successful.

These inferences are further supported by the evidence of what happened next.

On a date which is not specifically revealed by the evidence, the Minister for Public Works resumed a sinuous strip of land which wound its way from east to west across the top of the land depicted in DP 1849. The resumption was made by Notification of Resumption Number 397996. Having regard to the location, direction, shape and width of the resumed land, the enactment of the Goulburn to Crookwell Railway Act 1899 (NSW), and what might be observed from the site view of the land in October last year, it is clear that the strip of land was resumed for the purposes of a railway track.

The resumed land affected almost all the lots in the northern half of the subdivision contemplated by DP 1849. Some lots (e.g. Lots 23 and 24) were almost entirely consumed. Other lots were halved (e.g. Lots 6 to 13), in some cases by the subtraction of a central portion leaving two smaller parts no longer contiguous with each other (e.g. Lot 10).

The resumed land bisected Prospect Street. It also bisected Railway Street. The Notice of Resumption Number 397996 is not in evidence. A reference to it in Certificate of Title Volume 2059 Folio 164 indicates that it was issued pursuant to the Public Works Act 1900 (NSW) which commenced on 22 September 1900: Bennett v The Minister for Public Works (1908) 7 CLR 372; [1908] HCA 50 (Griffith CJ, O’Connor and Isaacs JJ).

The evidence includes a copy of an article from the Goulburn Evening Penny Post dated Saturday 19 April 1902 which proclaimed the opening of the Goulburn to Crookwell railway on Tuesday next. I admitted the article into evidence over the objection of the Plaintiffs who submitted that it was hearsay as to the truth of the matters stated in it. In a case like this, it is nonetheless relevant that the local newspaper saw fit to publish the article in those terms. In any event, on the question of when the Goulburn to Crookwell railway opened, the article accords with the evidence of one of the Plaintiffs’ witnesses, Mr McIntyre, who without objection said that the railway opened in the early part of the century. For current purposes, no more precision is required than that.

As I have said above on 31 May 1910 the new Certificate of Title Volume 2059 Folio 164 was issued to Benjamin Short, Gentleman now of Bowral. In addition to the matters referred to above, the certificate of title also evidences that Mr Short was not the registered proprietor of the sinuous strip which had been resumed for the Goulburn to Crookwell railway, although he did own the mines and minerals deposited on the railway land (if any) pursuant to s 134 of the Public Works Act 1900, presumably subject to the terms of Mr Wade's original grant.

Certificate of Title Volume 2059 Folio 164 notified three reservations which are potentially relevant for current purposes. Those reservations were in the following terms:

In the plan on Certificate of Title Volume 2059 Folio 164 Railway Street is a street coloured brown. So too is Prospect Street and the lane which runs between them. Prospect Street is coloured brown both where it is part of DP 1849 and where it is part of DP 1561.

After Mr Short received Certificate of Title Volume 2059 Folio 164 he continued selling lots. Of relevance to the current case is that on 24 March 1911 Mr Short sold to Charles Allen Willis part of Lots 6 to 13 in DP 1849. Those lots were some of those bisected by the railway track, with the northern part of each lot depicted in DP 1849 as fronting Railway Street.

On 18 October 1911, by Transfer Number A24593, Mr Short sold to Caroline Willis, wife of William Willis, part of Lots 14, 15, 19, 20 and 21 in DP 1849. Other than in minor respects at the northern edge, these lots were not affected by the railway track. Of these lots, Lots 14 and 15 each have a frontage to Prospect Street although they are separated from each other by the 20-foot lane. Lot 19 did not have a frontage to any street, although it was contiguous with the lane. Lot 20 had no frontage to any street or lane. Lot 21 had a frontage to Railway Street and from there to East Street. It otherwise had no frontage.

As a combined parcel of five lots, the land purchased by Caroline Willis in 1911 had a frontage to the west to Railway Street and a frontage to the east to Prospect Street. Upon her purchase, Ms Willis became the registered proprietor of Lots 14, 15, 19, 20 and 21 and was issued Certificate of Title Volume 2368 Folio 31 which is dated 21 May 1913. The certificate of title incorporated a plan which broadly corresponded to the relevant parts of DP 1849 (and indeed adopted the lot numbers from DP 1849), but Lots 19, 20 and 21 each had a sliver removed from the northern boundary where the land had been resumed for the railway track.

As with DP 1849, the plan incorporated in Certificate of Title Volume 2368 Folio 31 depicted the five individual lots as a combined parcel (albeit with the boundaries of each of the five lots separately identified) with a frontage to Railway Street in the west and Prospect Street in the east.

At some point Benjamin Short, Gentleman of Bowral, died. By a transmission dated 10 May 1913 Benjamin Short, Accountant of Sydney, and William Nelson Short, Dentist of Strathfield, became the registered proprietors of the remaining land in Certificate of Title Volume 2509 Folio 164. The new registered proprietors continued to sell the land. On 16 October 1913, they sold to James John Watman two lots towards the northern end of Prospect Street adjoining the railway track.

On 18 November 1915, by Transfer Number A66411, they sold to Charles Allen Willis the parts of Lots 1, 2, 3, 4 and 5 in DP 1849 which remained after the resumption of the railway track. That included a part of Lot 2 which was to the south of the railway track but to the north of Railway Street. For the purpose of Transfer Number A66411 the Licensed Surveyor, Mr Lewis, prepared a new plan which he certified probably on 3 September 1915. The precise status of that particular plan is unclear, but there is no dispute that it was an annexure to the transfer by which Benjamin Short (Accountant) and William Short sold and Charles Allen Willis purchased the land depicted in it. It appears that that Plan was registered as DP 943840. The lot to the south of the railway track is now Lot 1 in DP 943840.

A point to be observed about that last dealing is that, like the sale to Caroline Willis on 18 October 1911, the land which was bought and sold conformed to the continued boundaries of Railway Street. In the case of the sale to Caroline Willis, Railway Street was depicted south of the railway track. In the case of the sale to Charles Allen Willis, Railway Street was depicted both to the south of the railway track and to the north of the railway track.

On 16 December 1926 Caroline Willis transferred her land to Percy Valentine Willis. On 27 February 1950 Percy Valentine Willis transferred a small part of Lot 15 to Arthur Eldon Willis. On 18 September 1950 Percy Valentine Willis was issued Certificate of Title Volume 6190 Folio 54 for the residue. The plan incorporated in that certificate of title corresponded with that in Certificate of Title Volume 2368 Folio 31 except that a small part was omitted from Lot 15, evidently that which had been sold to Arthur Eldon Willis. Railway Street and Prospect Street remained as previously depicted.

By various subsequent transfers on 26 February 1986, the Plaintiffs came to be the registered proprietors of the land previously owned by Percy Valentine Willis. They have also become the registered proprietors of Lot 1 in DP 943840.

The final part of the history relates to the land where Railway Street was originally depicted in DP 1849.

As stated above, upon the death of Benjamin Short (Gentleman) the residue of the land in DP 1849 was transmitted to Benjamin Short (Accountant) and William Nelson Short. Benjamin Short (Accountant) predeceased William Short. Two of the grandchildren of William Short appear to have been the registered proprietors of the relatively short part of Railway Street which ran from East Street up to the land resumed for the railway track.

On 18 September 2017 DP 1234442 was registered in which Lot 1 was that Railway Street remnant. By registered Transfer AM805635, Lot 1 in DP 1234442 was transferred by William Short’s grandchildren to Kiloren Pty Ltd, the First Defendant in these proceedings. The transfer includes the transferor's acknowledgement of receipt of $16,000 by way of consideration. Since then, the First Defendant has been the registered proprietor of the Railway Street Lot.

The foregoing history addresses the documentation of the title of the Railway Street Lot and the surrounding land and also the legal transactions which have occurred since 1852. As to the physical aspects and use of the Railway Street Lot, the evidence shows the following.

The town of Crookwell, of which Pleasant Prospect Estate and Railway Estate were intended to be a part, has always been to the west of the Railway Street Lot. As I have said, the earliest documents make clear that East Street has always been the eastern boundary of the urban area. Crookwell is more broadly in a rural setting, generally surrounded on all sides by rural properties. The evidence about the advent of the Goulburn to Crookwell railway suggests that Goulburn was the nearest regional centre from which connection to the wider outside world might be obtained.

Passing through the Plaintiffs’ land is Kiamma Creek. There is no doubt that Kiamma Creek has always passed through the Railway Street Lot. There is a quantity of evidence in the case about the precise location of the creek, both now and at various times in the past, which evidence seems more directed to other claims which are no longer made in the proceedings, especially the nuisance claim.

For the purposes of the road case it is sufficient to say that the creek has always bisected the Railway Street Lot. There are some maps from the late 19th century which depict the creek as looping so far to the south that there was not a clear passage from East Street along the Railway Street Lot to Lot 21 in DP 1849 which did not require the creek to be crossed. If that was correct, and there is nothing to suggest that the early maps were not correct, particularly those which were evidently prepared by a surveyor, the aerial photographical evidence in the case from 1962 onwards suggests that the main channel of the creek has at some time migrated northwards so as to leave a clear path to the south of the creek from the Railway Street Lot to Lot 21 in DP 1849 without needing to cross the creek at all. There is further evidence that in some more recent decades the creek may have moved back towards the south. Ms Churchill's evidence is that since she became familiar with the local area in 2002 there has been an arm of the creek which runs to the main channel from the south at a place where it would have to be crossed even if the main channel did not have to be crossed to pass from the Railway Street Lot to Lot 21 in DP 1849.

There are other aspects of the creek about which there cannot be any dispute. The creek is aptly named. It is a creek. In the weather conditions on 27 October 2025 there were places where one might step over it with a single stride or perhaps with a bit of a jump. There are other places where it is broader. Unsurprisingly, the photographic evidence demonstrates that the condition of the creek depends on the weather. There are photographs of the creek in flood where extensive surrounding lands can be seen to be below a surface of water although, as Ms Chamberlain explained, such flooding was not generally deep and might be waded through. On the other hand, when conditions are dry the creek is diminished. There is one aerial photograph which appears to depict the creek as no longer being a continuous flow of water but rather a sequence of standing ponds isolated from each other by strips of dry land. As I understood Ms Churchill's evidence about the arm running from the south, in dry conditions there would not be any flow in that direction so much as a sequence of standing puddles.

All the land relevant to the case is generally flat. Forestation has come and gone. The aerial photograph from before 1985 appeared to depict the Railway Street Lot as generally clear of trees with those that were there generally huddled along the edge of the creek. From 1985 trees can be seen which the evidence identifies as willows. The foliage appears to be thick. Mr Churchill said the willows were of a variety which do not weep but have dense, low boughs. In any event, the willows were removed in 2014. Since then there does not appear to have been many trees although there has been a proliferation of wetland plantings.

There is no evidence of a road ever physically being built on the Railway Street Lot. Since 1985 there has been a fence between East Street and the Railway Street Lot. The evidence does not otherwise address the fence. It is not known when the fence was erected or by whom. There is a gate in the fence of the type one would expect in a fence in a rural environment. The gate is wide enough for Ms Chamberlain to drive her car through. Ms Chamberlain's evidence was that since 1985 it has been possible to drive through the gate across the Railway Street Lot and onto Lot 21 in DP 1849. Having regard to the condition of the land when I saw it on 27 October 2025, there is no reason to doubt Ms Chamberlain's evidence and I accept it as it relates to the position as at 1985. It is unclear whether Ms Chamberlain's evidence is also directed to more recent years but given the issues in the case, it is not necessary to address vehicle access more recently. Vehicle access from East Street to Lot 21 in DP 1849 via the Railway Street Lot might have been restricted during the periods when the willow trees were in place but I do not need to decide that issue.

In any event there is no suggestion that any vehicle access on any relevant land is all-weather access, but that does not mean that it is not vehicle access.

The aerial photographs from 1962 indicate that there was no dwelling-like structure on the Plaintiffs’ land prior to 1973. At about that time structures or a structure was built, although the nature and extent of the structure is not addressed in the evidence. It may or may not have been a dwelling.

After the Plaintiffs acquired the land in 1985 they built a house. Both that house and any preceding structure was located on the eastern side of the Plaintiffs’ land towards Prospect Street and away from the Railway Street Lot and East Street. There is no evidence of any structure being located on the Plaintiffs’ land near the Railway Street Lot.

Since the Plaintiffs’ purchased their land and commenced to live on it, the evidence establishes that the Plaintiffs, their children, their friends and relations have used the Railway Street Lot as a route by which they pass from the Plaintiffs’ land, including Lot 21 in DP 1849 and the lots to the east, to East Street and beyond. The Plaintiffs and their friends and family have used the Railway Street Lot for other purposes, including building cubby houses, having a vegetable patch, yabbying and golf. The point is that the use of the Railway Street Lot was not limited to those static activities but included using it as a means of passing to places beyond.

There is no evidence of the local council's involvement with the Railway Street Lot. To use the language of Windeyer J in Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council (1960) 105 CLR 401; [1960] HCA 62 at [9], it appears that the local council took no interest in the Railway Street Lot. It neither levied rates as if it were private land nor cared for it as if it were a public road.

Turning then to the applicable law, prior to 1920 a public road could be dedicated at common law by the owner of the land having an intention to dedicate it as a public road and the general public accepting the proffered dedication. In Newington v Windeyer (1985) 3 NSWLR 555 at 558-559, McHugh JA, with whom Kirby P and Hope JA agreed, summarised the principles as follows:

In Palmisano v Hawse [2003] NSWSC 566, Bryson J said at [7]:

The intention to dedicate is to be determined objectively: President of the Shire of Narracan v Leviston (1906) 3 CLR 846; [1906] HCA 34 at 858-859 (Griffith CJ).

The passage quoted above from McHugh JA's judgment in Newington v Windeyer states that an intention to dedicate need not be expressed but may be inferred from conduct. An example of such conduct may be lodging a plan of subdivision with the Registrar-General which depicts part of the land as an open street giving access to subdivided lots. This is especially so where the depicted roads connect to the existing public road system.

In the Campbelltown case, Menzies J said at [6]:

The Campbelltown case was an unusual case because the issue before the Court was not whether a road depicted in a deposited plan was a public road, but whether there was any "doubt" about that conclusion for the purposes of s 224 of the Local Government Act 1919 (NSW). On the question of doubt, Menzies J went on to say:

Another example of conduct from which an intention to dedicate may be inferred is where the attributes of a subdivision suggest that there is an expectation that building work will occur on the subdivided lots necessitating access from the public road network: Newington v Windeyer at 561. These cases make clear that the conduct from which an intention to dedicate may be inferred need not be constituted by physical action in relation to the land. It may be inferred from the creation and use of documents such as leases, plans and maps.

Turning to acceptance of the dedication, it may also be inferred from conduct. The conduct may include the public using the relevant land as a road: Weber v Ankin [2008] NSWSC 106 at [69] (White J). Use by the public includes use both by people who have purchased land in a subdivision and by people who have not: the Campbelltown case at [6] (Menzies J).

Acceptance may also be inferred by members of the public undertaking transactions on the basis that a dedicated road is a public road: Laing v Port Macquarie-Hastings Council & Ors [2025] NSWSC 1331 at [61]-[62]. As Windeyer J said in the Campbelltown case, it is a public right to use the land as a way rather than its physical nature that makes land a highway. Inferences as to the acceptance of the public right may be derived from such transactions. In addition to acceptance being inferred from the conduct of the general public it may also be inferred from the conduct of the local council, including spending money on the road.

Where a dedication occurs by reason of the lodgement of a deposited plan, "no great amount of public use [is] necessary to make the dedication complete": the Campbelltown case at [9] (Windeyer J).

Prior to 1920 the dedication of a new public road did not, without more, change the title of the land across which the road ran.

In New South Wales the creation of public roads became the subject of statutory regulation when the Local Government Act 1906 (NSW) and then the Local Government Act 1919 were enacted. Where a dedication of a public road had been proffered before the commencement of the former statute, common law acceptance of the dedication was still possible up to the commencement of the latter statute on 1 January 1920: Weber v Ankin at [67]. In such a case the conduct of the general public up until 1 January 1920 may be considered in determining whether the dedication was accepted.

While conduct after 1 January 1920 is not directly relevant to whether the dedication was accepted, it may support an inference about conduct which occurred before that date: Weber v Ankin at [67]. The further removed in time that conduct occurs, the less it will support the inference.

On 1 January 1920 the Local Government Act 1919 commenced. The term “public road” was defined in s 4 as follows:

Part IX of the Local Government Act 1919 made provisions for public road. Section 222 provided:

Section 232 relevantly provided:

Upon vesting, the council became entitled, but not obliged, to be registered as the proprietor of a public road.

In 1993 the Roads Act 1993 (NSW) commenced. Transitional provisions are contained in Sch 2. Relevantly, cl 15 provides:

Section 7 relevantly provides that the council is the roads authority for a public road. Section 145 provides that all public roads within a local government area (other than freeways and Crown roads) "are vested in fee simple" in the council.

Turning then to the application of these principles to the facts in this case, there is no doubt that Mr Short intended to dedicate all the roads which were depicted in DP 1849 as public roads when he lodged the deposited plan for registration in 1886. Having regard to the layout of the depicted roads, the arrangement and size of the lots and the proximity and orientation of Railway Estate to Crookwell the inference is clear.

In that respect, sight must not be lost of s 100 of the Real Property Act 1862 (NSW) which provided as follows:

The First Defendant contends there was no intention to dedicate. Whilst it accepts that the lodgement of the deposited plan is prima facie evidence of an intention to dedicate it submits that there are two reasons why that conclusion should not be drawn in this case.

First, some of the early plans depict Kiamma Creek as bisecting Railway Street. There is nothing in that argument. The mere fact that a road is depicted as traversing a place where a river runs does not mean that there is not an intention that it be a road. Public roads and water courses must necessarily coincide from place to place which circumstance is usually accommodated by a bridge or maybe a ford. The same applies to public roads and railway lines. Although not relevant, DP 1849 also depicts Kiamma Creek as bisecting Prospect Street and there is no suggestion that Prospect Street was not dedicated as a public road. In fact, the First Defendant relies on Prospect Street being a public road for the purpose of other arguments it makes in this case.

The second argument is that Mr Short's dedication of the public roads in the Railway Estate was contingent. The contingency is said to have been that the Goulburn to Crookwell railway would eventuate and that it would be located in a position which is further north so as to make its route coincide more conveniently with the east-west portion of Railway Street. The inference is said to arise from use of the word "Railway" in the name of the estate and in the name of Railway Street. I do not accept that argument. Upon the registration of DP 1849 the clear inference is that Mr Short embarked upon the sale of lots in the new subdivision. Whilst the sales occurred after DP 1849 was lodged they shed light on Mr Short's intention when he lodged. Further, after the arrival of the railway in the early part of the 20th century, Mr Short in the first instance and his executors later continued to sell lots referrable to the subdivision in DP 1849 and, in at least two cases, referrable to the specific boundaries of Railway Street as depicted in DP 1849.

It follows that there is clear evidence that in 1886 Railway Street as depicted in DP 1849 was dedicated as a public road.

The question of acceptance is not so clear but having regard to the evidence as a whole I am satisfied on the balance of probabilities that there were sufficient acts of acceptance by the public before 1 January 1920 so as to complete Mr Short's dedication. The facts from which that inference is to be drawn are as follows:

First prior to 31 May 1910, eleven lots were purchased in DP 1849. It is true that those lots were clustered in south-east corner about Prospect Street and proximate to the intersection with Goulburn Street. Nonetheless, DP 1849 depicted the Railway Estate as an integrated whole and it is to be inferred that the further north the purchased lots were to be found, the greater the likelihood that access to the Crookwell Urban Area was intended by the purchasers to be achieved by using Railway Street. This is especially so having regard to the fact that DP 1849 contemplated that there would be a shortcut from Prospect Street to Railway Street by virtue of the lane. For example, if the purchaser of Lot 27 had the intention of accessing Crookwell only by going south and along Goulburn Street, it would have been the long way round.

It is further to be observed that it is not correct to draw inferences from the conduct of the purchasers of these lots based on the facts on the ground today. The submissions made about this focussed on the location of Crookwell and Goulburn but did not address the broader framework in which the estate and its roads in DP 1849 would have been viewed prior to 1920. In particular anyone wishing to go north, including to access the hoped-for railway, might have regarded access to Railway Street as an important part of their decision to buy land. That is especially so in circumstances where the lots were evidently intended for the construction of houses. This would require the transportation of materials which might be done more conveniently and economically by rail.

Secondly Lots 1, 2 and 3 in DP 1561 which were sold prior to 31 May 1910 were evidently sold in circumstances where they had a frontage to Goulburn Street and also access to Railway Street at the rear. Although it is possible that those lots were sold after DP 1531 was registered on 22 September 1885 and before DP 1849 was registered on 17 November 1886, the probabilities are that one or more of them would have been sold subsequent to the registration of DP 1849. These were transactions which were conducted on the basis that Railway Street was dedicated as a public road.

Thirdly, on 31 May 1910, the Registrar General issued Certificate of Title Volume 2059 Folio 164 with the notifications that are set out above. There are a number of indications in the terms of those notifications which are relevant to the question whether the issue of the certificate of title by the Registrar-General is evidence of an intention to accept the dedication of Railway Street as a public road. The second notification described public roads by reference to pink colourisation and therefore does not include Railway Street. To that extent, registration of the certificate of title would indicate that as at 31 May 1910 Railway Street had not been accepted as a public road. On the other hand, the third notification expressly recognised that there were “streets” and “lanes” over which there may be rights of way and other rights, including Railway Street. On the whole, I consider those two notifications to be in combination a neutral factor having regard to the fact that it is not the Registrar-General's role to inquire into the underlying facts which would have been necessary to know if the dedication of Railway Street had been accepted. It should also be noted that there are a number of events which occurred after the registration of Certificate of Title Volume 2059 Folio 164 which support the inference that Mr Short's dedication of Railway Street as a public road was accepted by the public.

Fourthly, in March 1911 there was another transaction involving lots in DP 1849 when Mr Short sold land that fronted Railway Street to Charles Alan Willis.

Fifthly the sale of land Caroline Willis in 1911 has been described in more detail above. I consider this to be strong evidence of acceptance of the dedication. Whilst the transaction involves the sale of five lots, they were sold as individual lots and, if Railway Street was not a public road, then Lot 21 was landlocked. When the purpose of the inquiry is to ascertain what is to be inferred as to the intention of individual members of the public such as Caroline Willis, the clear inference is that the transaction occurred on the basis that Railway Street was a public road. The same inference arises from the issuance by the Registrar-General of the certificate of title to Ms Willis on 21 May 1913 which I have described above and which depicts the Railway Street Lot and Ms Willis's recently acquired land in that way.

Sixthly the sale on 16 October 1913 of two lots to Mr Watman which occurred after the death of Benjamin Short (Gentleman). Whilst the executors of his estate might be viewed as Mr Short's privies, they were different people acting in relation to the transaction, not Mr Short who had made the original dedication in 1886. Mr Watman was another person who purchased land within the subdivision in DP 1849.

Seventhly, the same applies in relation to the transaction on 18 November 1912 with the sale of two lots to Mr Willis, again by the executors of Mr Short's estate. As I have indicated above, the description and depiction of the lots the subject of that transaction continued to recognise Railway Street in accordance with the boundaries before the advent of the railway. I consider this transaction to be another fact which strongly supports the inference that the dedication by Mr Short of Railway Street as a public road was accepted.

The inferences arising from these transactions is supported by the layout of the land. The land has been left open. Heading towards the Crookwell Urban Area, the evidence shows that the natural outlet from the land sold to Caroline Willis in 1911 was via the Railway Street Lot to East Street. Whilst there is no direct evidence of actual user, unless the lots recently purchased by Ms Willis were all sterile, in the ordinary course the Railway Street Lot would have been used as access to the Crookwell Urban Area. While such user might be supposed to have increased upon the Plaintiffs’ acquisition of the land and the construction of a dwelling, non-residential use of the land prior to that event would also have required access to the land.

I consider it artificial, as submitted by the First Defendant, that the entirety of the land would have regarded Prospect Street as the access point, specifically when the location of the land relative to the Crookwell Urban Area is in the opposite direction. The point was brought forcefully home by an answer given by Ms Chamberlain in cross-examination when it was put to her that she regarded the western part of her land as her backyard, to which she responded, "my front yard".

The authorities make clear that where the dedication is evidenced by the lodgement of a deposited plan, particularly in the context of the terms of s 100 of the Real Property Act 1862, no great amount of public use is required for the dedication to be found to be accepted. In the circumstances, I am satisfied that the inference to be drawn from the evidence as a whole is that Mr Short's dedication of Railway Street as a public road was accepted before 1 January 1920.

There are a couple of other matters. First, both parties made submissions about more recent conduct in the latter part of the 20th century and subsequently, in each case submitting that that more recent conduct supported their position in relation to (non) acceptance of the dedication. The facts which I consider are relevant are described above. I consider that events after 1985 are generally too far removed in time to support an inference about the position prior to 1920 and I have not therefore addressed them in detail, although the Plaintiffs’ use of the land supports the inference about the natural outlet from the land to Crookwell.

I have outlined above the statutory consequences where a public road has been dedicated and accepted before 1920. I will not go through those again, but the ultimate position is that the Railway Street Lot vested in fee simple in the local council under s 232 of the Local Council Act 1919 and then by s 145 of the Roads Act 1993. That is so irrespective of the fact that the First Defendant is the registered proprietor of the land.

As explained by Rich AJ in Vickery v Strathfield Municipal Council (1911) 11 SR (NSW) 354, public roads sit outside the scope of the Real Property Act 1900 (NSW). At 362-363, Rich AJ said:

This principle was affirmed by the Court of Appeal in Canada Bay Council v Bonaccorso Pty Ltd (2007) 71 NSWLR 424; [2007] NSWCA 351 at [46] (Mason P, Tobias JA and Young CJ in Eq). Citing Vickery v Strathfield Municipal Council, the Court of Appeal said:

I should emphasise that the only relief sought by the Plaintiffs in these proceedings relates to a portion of Railway Street as originally depicted in DP 1849 and not to the whole of Railway Street. The relevant portion is that which is now found in Lot 1 of DP 1234442. The reasons I have given above are all directed to that portion of Railway Street and to no other part of it.

The Plaintiffs seek a declaration. The Court will only make a declaration where there is utility in doing so. Having regard to the consequences of land being a public road, the rights of access under ss 5 and 6 of the Roads Act 1993, the restrictions on obstructing access which is also set out in the Roads Act 1993 and the statutory regime for the closure of public roads, I consider that in this case there is utility in making a declaration.

The Plaintiffs do not seek any consequential relief. Sometimes there is a hesitation about making a declaration and not making any consequential orders but that hesitation does not arise in this case given the public interest that relates to land being a public road.

The First Defendant has submitted that the Plaintiffs have delayed in bringing the proceedings and there is evidence that, since the First Defendant became the registered proprietor in 2017, the First Defendant has undertaken work on the Railway Street Lot described as restoring a wetland environment which is said to constitute prejudice to the First Defendant if the Railway Street Lot is now declared to be a public road. The problem with that submission is that, whether I make the declaration or not, the Railway Street Lot is a public road and the entitlements of the Plaintiffs, the council and all the world in relation to the Railway Street Lot do not depend upon me declaring it, nor do the obligations of the council.

In those circumstances, I do not consider that any delay on the part of the Plaintiffs in bringing these proceedings ought preclude the making of the declaration which they seek. In saying that, I make no finding about the circumstances in which either the First Defendant obtained the new deposited plan and became the registered proprietor or the subsequent events which have climaxed in these proceedings. Specifically, I make no finding that there has been any relevant delay on the part of the Plaintiffs nor do I find that there would be any relevant prejudice to the First Defendant were the declaration now to be made.

As I said at the outset, by reason of the conclusion that the Railway Street Lot is a public road it is not necessary for me to consider the Plaintiffs’ alternative argument that they have a personal equity. The difficulty with that argument is that all the cases which were relied upon for the personal equity are cases where there was an underlying transaction which would have affected the register and the registered proprietor was estopped from denying the efficacy of the transaction by virtue of their conduct. The estoppel manifested itself in orders that the registered proprietor give effect to the transaction which ultimately affected the register.

In this case there is no underlying transaction. An estoppel does not run at large and something specific would have to be pointed to before an order could be made to vindicate the asserted equity. There is no transaction to which the First Defendant is party which is amenable to enforcement in that way, and for those reasons I reject the Plaintiffs’ alternative claim.

For the above reasons, I make the following orders: