In brief

The case of Orb Holdings Pty Ltd v WCL (Qld) Albert Street Pty Ltd [2019] QSC 265 concerned an originating application in the Supreme Court of Queensland seeking a declaration that land registered to the Respondent had been dedicated as, and is, a public road. The Respondent applied for a summary judgement on the basis that, inter alia, the Respondent's registered title is not subject to public rights allegedly created by dedication of its land as a road at common law.

Background

The dispute concerned Registered Plan 1073 (RP1073) which, at the time of its registration in 1876, comprised nine individual lots on the corner of Margaret, Albert and Alice Streets in Brisbane. Lot 11, an "L" shaped piece of land located at the rear of the other lots on RP1703, was marked as a "Right of Way" and provided access to all the other lots by foot or other means. 

Between 1876 and 1881, the original registered proprietors, the trustees of the Brisbane Grammar School (Grammar School), disposed of the lots on RP1073 except for Lot 11. Historical documents relied upon by the Applicant suggested that from the 1880s onwards, Lot 11 was in use as a public road and commonly known as "Beatrice Lane". 

In 1971, the Registrar of Titles conducted an investigation at the request of an interested party, which resulted in a notation on RP1073 stating: "Right of Way (Lot 11) investigated 1971". Nevertheless, in 1994 the certificate of title over Lot 11 registered to the Grammar School showed no encumbrances on the title beside rights and interests reserved by grant.

In 2012, Survey Plan 142332 (SP142332) became the last plan to be registered over the land. It shows "Beatrice Lane" as the reserve and there is no note of "Right of Way" on Lot 11. However, the Brisbane City Council's roads register still shows Lot 11 as "Beatrice Lane", which is recorded as a Brisbane City Council controlled road.

The Respondent became registered proprietor in fee simple of Lot 11 in 2014. The Applicant's land, Lot 12 on B118229, is south of Lot 11. The reserve runs along the northern boundary of the Applicant's land and the northern boundary of the reserve is common with the southern boundary of Lot 11. A building is located on the Applicant's land and access to the carpark of that building is gained over Lot 11 and the reserve. 

The dispute

The Respondent commenced development on the corner of Albert and Margaret Streets and purported to close off access to Lot 11. The Applicant objected to this interference with its access across Lot 11 on two bases:

  • Firstly, on the basis that Lot 11 had been dedicated at common law as a public road, thereby granting the public including the Applicant right of access over the land. 

  • Secondly, on the basis that the title in Lot 11 was vested in the State under section 369 of the Land Act 1962 (Land Act), and therefore the Respondent has no right to close access.

Was Lot 11 dedicated as a public road?

The Applicant submitted that prior to the enactment of section 83C of the Local Authorities Act 1902 establishing formal requirements for the dedication of land for public use, a private citizen could dedicate land in Queensland as a public road provided that two common law elements were satisfied: 

  • firstly, an intention to dedicate the land as a public road is manifested, and;

  • secondly, a public acceptance of the dedication of the use of the road. 

The Applicant produced historical material which supported its submission that the Grammar School had satisfied the common law requirements for dedication. Without considering the evidence in detail, the Court concluded that the evidence was sufficient to prevent the Respondent from succeeding on summary judgement on the ground that there was no triable issue as to the dedication of Lot 11.

The Court also determined that other issues raised by the Respondent as fatal to the Applicant's claim could not be resolved without a trial. These included whether the Grammar School's intention was to create public rights or private rights in favour of the owners of Lots 1 to 9 on RP1073, and whether the Grammar School could lawfully dedicate the road under section 6 of the Grammar Schools Act 1860

Nevertheless, the Court found that the Applicant's request for declaratory relief would be futile and declined on discretionary grounds if, as a matter of law, the title of a registered proprietor in fee simple is not subject to any unregistered interest or public rights that arise by dedication of land at common law.

Nature of indefeasible title and the public rights in question

Prior to the introduction of the Torrens Title System in Queensland, ownership of land was established through a chain of title from the original grantee to the present owner of the land. The system was designed to overcome the deficiencies associated with the derivative and retrospective nature of title at common law. It did so by implementing a scheme of "title by registration" rather than "registration of title", which effectively places each new owner in the position of a direct grantee from the Crown.

Since the Respondent's title is derived from the act of its registration under the Land Title Act 1994 (Land Title Act), the Court went on to consider whether the Respondent's interest, as defined by the Land Title Act, was subject to the public rights created at common law. This necessitated a brief historical enquiry into what those public rights are or were. 

The Court proceeded on the assumption that the Applicant had an arguable case that the Grammar School dedicated Lot 11 for public use, and considered historical Torrens Title legislation to ascertain whether such public rights were vested in the State by subsequent legislation. The Court concluded that section 369 of the Land Act had the effect of converting a public right of way into a proprietary interest in land in favour of the State, which thereby permitted the State to regulate roads and their use. 

Notwithstanding these findings being accepted, the Court reiterated that the key problem in the Applicant's case was that the registered proprietor of Lot 11 was the Respondent, not the State.

Significance of the state of the register

Having regard to the object of the Torrens Title System, the Court explained (at [116]): "the Torrens Title System presently in force in Queensland through the 1994 Act, requires reference to the register, not history, to determine the rights of the respective parties here". 

Accordingly, the Court turned its mind to the current state of the register which did not show the existence of any road, street passage or thoroughfare over Lot 11 on SP142332. There was no "Right of Way", dedication notice, or notification of Lot 11 as public use land on the register. Nor did the Applicant suggest that any exceptions to indefeasibility under section 184 of the Land Title Act applied.

It therefore followed that, in the absence of any statutory provisions outside of the Land Title Act which preserved the State's interest in Lot 11 against the registered proprietor in fee simple, the Respondent's registered title was free from any claim that a proprietary interest in the land had been vested in the State. 

Other exceptions to indefeasibility?

Notwithstanding the provisions of the Land Title Act and a strong line of authority before and after Breskvar v Wall (1971) 126 CLR 376 which emphasised the significance of the principle of "title by registration", the Applicant submitted that there were two other exceptions to indefeasibility that were applicable in this case.

The first was that, according to Vickery v Municipality of Strathfield (1991) 11 SR (NSW) 354 (Vickery), the dedication of land as a public road at common law lies "wholly outside" the Torrens Title System. However, the Court distinguished Vickery on the basis that the indefeasibility provisions of the Real Property Act 1900 (NSW) which applied in that case were capable of being construed as relating to private rights only. Ultimately, Vickery turned on the point that public rights were not interests in land and therefore not registerable.

In the Applicant's case, once Lot 11 had been vested in the State by force of section 369 of the Land Act, the public rights which may have existed over Lot 11 converted to an interest in land in favour of the relevant authority. The State's interest in Lot 11 therefore does not exist "wholly outside" the scope of the Torrens Title System.

The second exception to indefeasibility the Applicant raised was the proposition that a statutory provision outside of the Land Title Act may create an exception to indefeasibility and elevate an unregistered interest to priority over registered interests. 

Whilst a number of authorities relating to statutory exceptions were considered, these cases were deemed unhelpful by the Court as they each turned on the construction of statutes distinct from those relevant to the Applicant's case. 

After considering the statues that may be applicable to the present facts, the Court concluded that there was nothing in the Land Act, City of Brisbane Act 2010, or the Transport Infrastructure Act 1994 to suggest that public rights in land dedicated as a road at common law and subsequently vested in the State could defeat the rights of a registered proprietor in fee simple.

Conclusion

The Respondent's interest as the registered proprietor of Lot 11 was not subject to any unregistered interest in the State arising from the potential common law dedication of Lot 11 as a public road prior to 1923. The Court therefore held that there was no need for a trial and dismissed the originating application with costs. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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