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Norman Waterhouse

Sometimes there is a silver bullet!

The research skills and tenacity of our practitioners were recently brought to light in a matter involving private roads in a regional council area.

The local hospital, in receipt of Commonwealth Government funding for a much-needed extension that would benefit the local community, needed to “encroach” over what was thought to be a public road within the town. Council was supportive of this and resolved to commence a partial road closure under the Roads (Opening and Closing) Act 1991 with a view to transferring the portion of closed road to the hospital on completion of the process.

However, when the surveyor came to lodge the initial package of documents with the Roads Group of the Lands Titles Office, they advised that they considered that the roads remained private roads, rather than public roads in the ownership of Council.

Normans was briefed to provide advice and assistance to try and solve the problem, which is a relatively common one in both metro and regional council areas.

It was looking like Council would need to initially go through the process set out in section 210 of the Local Government Act 1999 to declare the private road to be a public road. The road process could then be commenced as was previously proposed. However, this additional process would result in a delay of many months for the hospital, affecting timing commitments made under its funding arrangements.

There were a few clues in the property searches that lead your curious practitioner (aka me) to query whether this classification by the Roads Group was in fact correct.

You may not be aware that Normans has an extensive law library as well as the benefit of a very experienced law librarian with supreme skills in the scientific art of research. Most of your councils have benefited from Michelle Smith’s work over the years without knowing it. Such was the case here.

Michelle unearthed a Gazette notice from 1884 that purported to declare the private roads to be public roads pursuant to the powers of the then Municipal Act of 1880.

Aha! The silver bullet! The Gazette notice was forwarded to the Roads Group with an intimation that a public road title could now be issued.

Alas! The immediate response from the Roads Group was “no”. In effect, they considered that the declaration was not in fact a public road declaration, but rather a declaration that in the future a public road declaration might be made….

Not to be deterred, further furious research was undertaken by your plucky practitioner. The Municipal Act of 1880 was found and considered, and a persuasive argument put back to the Roads Group.

Finally, a response from the Roads Group (after its own legal advice) that yes, it was accepted that the roads were public, and a public road title would be issued to Council.

This was a great outcome for our council client, the hospital and the local community. There was no need to undertake the private to public road conversion process and up to six months of delay was avoided. It was also thoroughly satisfying!

For more specific information on any of the material contained in this article please contact Yari McCall on +61 8 8217 1307 or


3 April 2023



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