By Phillip Leaman

20 November 2017

Phillip Leaman acted for the successful party in the leading Victorian Supreme Court of Victoria authority in the area of adverse possession, Abbatangelo v Whittlesea Council. Phillip is a property and business lawyer with particular expertise in property development, adverse possession, compulsory acquisition and title issues such as easements, roads and restrictive covenants.

What are Roads?

Roads can include streets, rights of way, passages, bridges, footpaths, kerbing and public highways. Roads are created in several ways:

  • as a requirement for planning approval in a subdivision;
  • declaration by a council or VicRoads pursuant to the Road Management Act 2004 (Vic);
  • by the introduction of a planning overlay reserving the land for a public purpose and then by compulsory acquisition by a relevant authority; or
  • under common law where there is an intention by a landowner to make land a road.

Except where the land is compulsorily acquired or where a road is to vest in Council or an Authority under the Subdivision Act 1988, title to land which is a ‘road’ usually remains in the original subdivider’s name. Land which is noted as a road on title can still be transferred at any time by the landowner but usually such land has no value given the powers of councils under the Local Government Act 1989 (Vic) to discontinue the road and transfer the road into their own name without payment of any compensation to the landowner.

How do you find out if land is a ‘road’?

In order to ascertain whether land is a road, you need to review the title to see if there are any notations as a ‘row’, ‘road’, ‘carriageway easement’ or ‘any easements’. An ‘any easements’ notation will require you to search parent titles until the easements are located (which may be several titles in the past) to ascertain the nature of those easements. In addition, you need to contact the council/VicRoads and ascertain whether the land is on the public register of roads.

What can a landowner do with land which is a ‘road’?

Apart from using it as a road, land owners will usually be unable to build over the land without having the road encumbrance removed.

If the land which is a road is not owned by the occupier, the options to deal with the land are greater, as it may be possible to make an adverse possession claim. Provided that the land is not on any public register of roads and is not a public highway, an occupier (as opposed to a title owner) can attempt to acquire the land by adverse possession free of the road encumbrance if the occupier can prove the requisite elements of adverse possession and provide evidence that the subject land has not been used as a road for a period in excess of 30 years. If the application is accepted by the Registrar of Titles, title may be issued to the occupier free of the road encumbrance thereby allowing the occupier to consolidate (if required) the land into their adjoining title land and seek to use the land as part of any future development (subject to planning requirements). If the land is in the name of the Government (or some authorities, such as VicTrack and VicRoads) or has been in the name of the council (for a period in excess of 15 years), then it is likely that no claim for adverse possession can be made pursuant to the protections under the Limitation of Actions Act 1958 (Vic).

However, if the occupier of the land is the registered proprietor, then the owner must make an application for the removal of the road encumbrance through non-use for a period exceeding 30 years. If the application is made to the Registrar of Titles, consent of the local council is required. In most cases, council will not provide their consent and prefer to require the title holder to go through the formal discontinuance process and buy the land off the council.

What is the formal road discontinuance process?

Roads are usually discontinued by councils or authorities under Section 44 of the Planning and Environment Act 1987 (Vic) pursuant to a planning scheme amendment. Alternatively, councils can use their powers under the Local Government Act 1989 (Vic) and VicRoads can use their powers under the Road Management Act 2004 (Vic). Councils have differing policies when dealing with discontinuances. Generally, councils must decide that the land is not ‘reasonably required for public use’.

If the land is on the register of public roads, it must first be removed off the register. An advertisement period is required and formal council resolution is required after considering any submissions made by any party to the proposed discontinuance. Usually councils will get commitment from adjoining landowners to purchase the land (which will be at market value or a portion of market value, depending on the circumstances, together with payment of the council’s costs). Once the statutory process has been completed (which also includes obtaining consent from relevant authorities such as water and power), council transfers the land into its own name and then transfers it to the purchaser of the land. Councils will also require the owner to undertake a consolidation of titles.

In most cases, if the land is not in the name of council or the government and the occupier has the necessary evidence, it is a more cost effective and quicker process to claim adverse possession.

Timeframes

The council discontinuance process can take between 6 and 12 months and may not proceed if there is substantial opposition to the proposed discontinuance or lack of support by adjoining owners to purchase the land.

For adverse possession claims, the current time to examine a claim is between 3 and 4 months. Clients then need to allow time to obtain a survey and their evidence and a 30 day notice period after examination. Title will usually be issued within 1-2 weeks after all requisitions from the Registrar of Titles have been complied with.

A quicker but more costly alternative for an adverse possession claim is to make an application to the County Court of Victoria, rather than to the Registrar of Titles. This is a good option if a developer is on a tight timeframe. This process does not require council consent and can be completed (subject to obtaining a survey and the required evidence) in a very short timeframe (usually no longer than 1 to 2 months).

Anderson v City of Stonnington and Victorian Rail Track

The 2016 case of Anderson v City of Stonnington and VicTrack involved deciding the question of whether a road was a public highway or a road under the Local Government Act 1989 (Vic), Road Management Act 2004 (Vic) or common law. Anderson who owned the adjoining land wanted to block off a laneway to prevent people using it to access land called ‘lovers walk’. VicTrack were the title owners and it was noted as a ‘road’ on title. Further, the land was on the council’s public register of roads. The laneway had been open to the public and had been used as a passage for a significant period of time. The Court found that the laneway was a road for all purposes and Anderson was prevented from blocking off access.

Once a road always a road?

The registration of a road on a council’s public register of roads results in the road becoming a public highway and the removal of the road from the register (which in some councils can be done simply by approval of the CEO) will not affect the status of the road as a public highway or the right of the public to use the road under the Road Management Act 2004 (Vic). In order to remove the status as a public highway, the road needs to be formally discontinued under the Local Government Act 1989 (Vic), or, if the road is unused and is a government road, under the Land Act 1958 (Vic). Therefore, if an occupier is attempting to claim land by adverse possession and the land was formally on the public register of roads and has been removed (but not formally discontinued), the occupier might not be able to take the land free of the public highway status.

Lessons for surveyors and their clients

If a client wants to acquire title to land which is noted as road/carriageway on title (if enclosed), check:

  • it is not on any public register of roads;
  • it has not been used as a road (and note the various definitions of what a road can be) for a period of 30 years or more; and
  • it is not in the name of council, the Crown or a relevant authority with protections under the Limitation of Actions Act 1958 (Vic).

If a client has found out that land enclosed within their property is a road and about to be discontinued by council and the client does not want to pay the council anything, then subject to the above and being in a position to establish the requirements of adverse possession and 30 years non use, the client should:

  • obtain urgent legal advice from a specialist in the area;
  • obtain a survey;
  • consider lodging a caveat on the title;
  • lodge a formal objection to council in respect to the discontinuance; and
  • lodge an application with the Registrar of Titles as soon as possible.

 

It is important for clients to obtain legal advice early in the process, so their claim can be assessed prior to spending considerable sums of money on survey work, which may ultimately be for nothing, if a claim cannot be made.

Further Information

For more information concerning roads and their discontinuances, a copy of Phillip’s presentation at the Institution of Surveyors Victoria December 1st seminar can be read here.

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