Roads, Rights, Use and Recognition: Judgment Summary of Chamberlain v Kiloren Pty Ltd.

WMD Law recently acted for the plaintiffs in a successful dispute concerning the legal characterisation of land as a “road”. The case was heard in the Supreme Court of NSW, and considered how long-established access ways are treated when they were created before the current legislation, and governed under common law principles.

The defendant was the registered proprietor of the land in question, whilst the plaintiffs had long used the area as a means of access to their adjoining property. The dispute centred around whether the land was a public road at common law, notwithstanding that the land was registered on title in the name of the defendant.

What is a road?

In determining the core issue of whether the land known as “Railway Street” was a public road, the Court upheld the common law principle of dedication and acceptance. In short, the Court affirmed the position that a public road requires:

1. an intention by the registered proprietor to dedicate the land as a road to the public; and
2. acceptance by the public that the land is to be used for public use.

The Court examined the historic subdivision plan of the land as a whole and determined that at the time of registering the subdivision, Railway Street was included on the plan with a view that it be available for right of access.

In relation to public acceptance, the Court found that where dedication is supported by the registration of a deposited plan, the law does not require extensive public use to confirm it. Acceptance may also be inferred by members of the public undertaking transactions on the basis that a dedicated road is a public road.

The Court found in this case that the original owner who undertook the subdivision intended to dedicate all of the roads which were depicted on the original deposited plan in 1886, and having regard to the layout of the lots, the intention was clear.

The question of acceptance was not so clear but having regard to the evidence as a whole, the Court found on the balance of probabilities that there was sufficient acts of acceptance by the public before 1 January 1920 so as to complete the dedication.

Relevance of private ownership

The Court examined the limits of reliance on private ownership, and observed that if the land was already a public road, registering the land on title privately could not undo that.

The Court established that the public character of the road, and the public’s right of use could not be defeated by later registration. This meant that the land was at all times vested in fee simple in the council of the Upper Lachlan Shire.

Key takeaways

The decision in Chamberlain v Kiloren considers an area of law that has received limited attention in recent case law, and often remains misunderstood. It establishes that a public road may exist even in circumstances where it is unbuilt, blocked by structures such as railways, or crossed with natural waterways including creeks and rivers. A road does not need to be physically constructed to have legal status, and natural landscapes do not prevent the existence of a road, where access can be provided by bridges or fords.

Chamberlain v Kiloren is a significant decision that will determine how Courts approach and resolve road-status disputes going forward. It not only establishes the significance of historical documentary evidence, but it confirms that once land is found to be a public road, it remains vested in the local council, despite private ownership.

N.B., At the time of publication, this decision remains subject to any rights of appeal.

Grace Brophy, Senior Associate

Cassandra Graves, Special Counsel