Cavric v Willoughby City Council

[2015] NSWCA 182

NSW Court of Appeal

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Interrogate

Catchwords

1. Highways
2. › Public roads
3. › Whether car park constitutes a public road
4. › Car park used as thoroughfare between streets
5. › Whether user by public sufficient to establish public road
6. › Roads Act 1993 (NSW), s 249
1. Statutory Interpretation
2. › Evidentiary provisions
3. › Whether s 249(1) of the Roads Act 1993 (NSW) creates a freestanding test for public road status or is merely an evidentiary provision
4. › Distinction between criteria for establishing a public road and evidence admissible to prove existence of a public road
5. › Roads Act 1993 (NSW), s 249
1. Negligence
2. › Roads authorities
3. › Statutory immunity
4. › Whether council as owner of car park a 'roads authority' protected from liability
5. › Civil Liability Act 2002 (NSW), s 45
6. › Roads Act 1993 (NSW), ss 7, 249
1. Real Property
2. › Torrens title
3. › Indefeasibility of title
4. › Whether certificate of title qualified by existence of public road
5. › Inference from failure to tender certificate of title
6. › Real Property Act 1900 (NSW), ss 42, 46B

Quick Take

Section 249(1) of the Roads Act 1993 (NSW) is an evidentiary provision only and does not provide a freestanding test by which a place may constitute a 'public road'. Evidence that a place is used by the public as a thoroughfare in the nature of a road is admissible evidence that the place is a public road, but does not of itself establish public road status. A council seeking to rely on s 45 of the Civil Liability Act 2002 (NSW) must establish that the relevant area was opened, dedicated or declared as a public road by some other means. Where a council holds land in trust for a public purpose, s 178 of the Conveyancing Act 1919 (NSW) prevents any presumption of dedication from user alone. Stojan (No 9) Pty Ltd v Kenway should not be followed on the construction of s 249.