Kiosses v. Corporation of the City of Henley and Grange

(1971) 6 SASR 186
(1971) 33 LGRA 286

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(Judgment by: Bray CJ)

Kiosses v.
Corporation of the City of Henley and Grange

Court:

Judge:
Bray CJ

Judgment date: 25 March 1971

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Judgment by:
Bray CJ

The plaintiff is the owner of the land in three certificates of title within the area of the defendant corporation on which he conducts the business of a service station proprietor, car repairer and car seller. There are erected on the land a service station, repair shop and lubritorium and cars are on display for sale purposes in the open. The land in question is on a corner where, at the present time, Yorkshire Street, Beach Street and Grange Road intersect. Yorkshire Street runs north and south and abuts on the western side of the plaintiff's land, Grange Road runs east and west and abuts on the southern side of the plaintiff's land. Beach Street enters the intersection from the north-west. Another street, Mitton Avenue, joins Grange Road on the south. At the present time the land is wholly or partly unfenced and traffic can enter it from Grange Road on the south and Yorkshire Street on the west.

The defendant proposes to effect certain works on or about the intersection. A large area of the intersection abutting the plaintiff's land in Yorkshire Street and Grange Road is to be raised to a level of six inches above the carriage-way so as to become impassable to vehicular traffic. This area is shown in green on the plans which were put in evidence and I will refer to it hereafter as "the green area". It is irregularly shaped. As I understand the position, it includes a considerable portion of the lengths of what would otherwise be footpaths in Yorkshire Street abutting the plaintiff's land on the west and in Grange Road abutting the plaintiff's land on the south. It also includes a large area shaped something like a shark's fin projecting far out into the carriage-way of the intersection. The total square measurement of the green area is approximately 7105 square feet; the total square measurement of the shark's fin portion of it, outside what would otherwise be footpaths, is approximately 3275 square feet. As I understand the present position after various amendments to the description of the green area in the pleadings on each side, it is now to be taken that the defendant intends to cover the whole of the green area with lawn or vegetation. Where the green area abuts the carriage-way there will be a kerb approximately six inches high. A hazard board will be erected on the northern side of the shark's fin where it joins the footpath portion of the green area so as to prevent vehicular traffic travelling south along Yorkshire Street from entering the intersection and a no entry sign will be erected nearby with a similar purpose. Two signs will be erected at the intersection of Yorkshire Street and Sinclair Street, which is the first street north of Grange Road to join Yorkshire Street on the east and is approximately 135 feet north of the site of the proposed hazard board. These are to be "no through street" signs and one will face traffic travelling south along Yorkshire Street and the other traffic travelling west along Sinclair Street. The purpose of both these signs will be to indicate that vehicular traffic cannot enter Grange Road, or, I presume, Beach Street) from Yorkshire Street.

The defendant's proposals purport to have been approved by the Road Traffic Board, presumably under the provisions of s 358 of the Local Government Act 1934-1969 or s 16 of the Road Traffic Act 1961-1969 or both. In their form as approved the proposals provide for two crossovers from Grange Road into the plaintiff's land but make no provision for a similar crossover from Yorkshire Street. However, Mr. Wilkinson , for the defendant, made from the bar table an unconditional offer on the part of his client to provide such a crossover if the plaintiff wanted one. This, of course, can have no effect on the legal issues involved, but it may well have some effect on the plaintiff's attitude hereafter.

The effect of these proposals will be to make Yorkshire Street almost a cul de sac as far as vehicular traffic is concerned with, however, one qualification. Vehicles will still be able to enter it turning to the left from Beach Street. Vehicles, however, will not be able to enter Beach Street or Grange Road from Yorkshire Street. There will be no reason for any vehicle to travel south down Yorkshire Street beyond Sinclair Street, except to visit the properties abutting Yorkshire Street, including, of course, the plaintiff's property. Pedestrian traffic will still be able to pass freely from Yorkshire Street into Beach Street or Grange Road.

I have no doubt, however, that even with a crossover in Yorkshire Street the plaintiff will lose some of his present business if these proposals are carried out because those of his customers, regular or casual, who now come to him while en route from Yorkshire Street to Beach Street or Grange Road will henceforth have no reason to call at his premises unless they make a special trip for the purpose; and, of course, if there is no crossover from Yorkshire Street the position will be worse because such vehicles will have to make a detour to enter his premises from Grange Road.

I think, therefore, that the plaintiff has shown that he will be especially affected to his detriment over and above any detriment that may be suffered by the public at large if these proposals are carried into effect and, hence, that he is entitled, if the defendant is not legally empowered to do what it seeks to do, to the appropriate declarations and injunctions. Those claimed are, firstly, a declaration that the defendant is not entitled to alter or add to Yorkshire Street or part thereof, or to close it or part thereof or the whole or any portion of its length or width or part thereof at or in the vicinity of its southern extremity and an injunction in corresponding terms; next, in the alternative a declaration that the defendant is not entitled to alter or close the whole or any portion of Yorkshire Street at or in the vicinity of its southern extremity and an injunction in corresponding terms. So far this might seem to beg the real question, which is whether what is proposed is an alteration or closing of Yorkshire Street or any part thereof within the meaning of the relevant statute. However, finally the plaintiff asks for an injunction restraining the defendant from carrying out any works in connection with the construction of "the structure represented by the area in green in the plan shown in the schedule hereto" and that does, in my view, fairly raise the vital issue, for, of course, if such an injunction were granted, the defendant would be unable to proceed with its proposal.

The plaintiff contends that the provisions of the Roads (Opening and Closing) Act 1932-1946 apply to these proposals and that they can only be carried into effect in accordance with those provisions. It is common ground that they have not been complied with. The defendant denies that its proposals would constitute any addition to or alteration of or closing of any road or part thereof within the meaning of the statute or in any way necessitate the use of the procedure laid down therein. Alternatively, it claims that even if the proposals would otherwise come within the scope of the Roads (Opening and Closing) Act , they are authorised by the provisions of certain sections of the Local Government Act and (according to the argument though this was not specifically pleaded) certain sections of the Road Traffic Act .

The first question to be decided, therefore, is the application of the Roads (Opening and Closing) Act . If that does not apply the plaintiff's claim will fail since it is based entirely on the provisions of that Act. If I am of opinion that, looked at in isolation, it does govern the present situation, then the next question will be whether the various sections of the Local Government Act and the Road Traffic Act on which the defendant relies constitute special exemptions for the present purpose from the provisions of the Roads (Opening and Closing) Act . During the argument I adverted to a third possibility, that even if the proposals were not caught by the provisions of the Roads (Opening and Closing) Act yet nevertheless they might not be authorized by the Local Government Act or the Road Traffic Act either. It was agreed that if I came to this conclusion I would merely publish my reasons without making any formal order and leave the parties to consider the matter further.

The Roads (Opening and Closing) Act (s 3) defines "road" as meaning, within a municipality, any public street or road as defined by s 301 of the Local Government Act . There is no doubt that Yorkshire Street, Beach Street and Grange Road are such roads. The definition also includes roads in district council districts and outside any local government area, but there is no necessity to refer to this or to references to such roads in the legislation for the purposes of this case.

Section 9 provides that any council (which includes the defendant corporation) within its district may -

"

(a)

open any new road:

(b)

alter or add to any road or part thereof:

(c)

close any road or part thereof or close the whole or any portion of the length or width of any road or part thereof."

In addition, s 9 gives the council a series of ancillary powers, including a power to exchange a closed road or part thereof for lands required for a new road, or alteration to a road, or for any other council purpose, and including in sub-section (e) power to retain any closed road as its property for any of its purposes or to dedicate it for any public purpose.

The Act then lays down an elaborate procedure for opening new roads or altering, adding to, closing or exchanging existing roads. A survey plan must be deposited in the office of the Surveyor-General showing the exact "position, boundaries, bearings, and admeasurements of the proposed new roads, alterations, additions, and the roads or parts proposed to be closed" (s 11(1)(I). The plan must state the names of "owners and occupiers of lands affected by the proposed alterations", together with their last known or usual places of abode (s 11(1)(II). Other particulars must be supplied contemporaneously. If the plan involves the closing of any road and there is no agreement for the sale or exchange of the closed road the council must lodge a statement of its intentions as to the disposition of the closed road (s 11(1a)(b), added by amendment in 1946). The Surveyor-General on receipt of these documents must cause a certain notice to be twice published in the Government Gazette (s 12(1)). Amongst other things the notice must specify the date and place of the statutory meeting hereinafter referred to, the date being not less than one month after the first publication of the notice. Copies of the notice must be sent to the owners or occupiers specified on the plan. Any person may within one month after the first publication of the notice in the Gazette give notice of objection. The council must on the specified date and at the specified place hold a meeting to consider the opening of the new road or the addition or alteration to or the closing of a road or part thereof and the objector is entitled to attend the meeting and to be heard either in person or by counsel (s 13). If the proposal is approved at the meeting the council shall make an order to that effect and the minutes of the meeting must be forwarded to the Surveyor-General who is to draw up the order and send it to the council for execution and upon execution by the council the order must be sent to the Surveyor-General for transmission to the Minister for confirmation by the Governor. Unless he confirms the order within six months from the date of the meeting it becomes void to all intents and purposes whatever (s 14). After confirmation the notice is to be published in the Government Gazette and the publication shall be "sufficient evidence of the due confirmation of any such order and thereupon any land or area to be taken for a new road or part of a road shall become dedicated to the public and be under the care, control, and management of the council" (s 15(2)). There is provision for the offering of any closed road, if the council decides to sell it, first to the adjoining owners or occupiers though with some exceptions (s 16, as amended in 1946). There are consequential provisions about the issue of the appropriate certificates of title and the duties of the Registrar-General. It might be worth while quoting s 29(2) which clearly contemplates the possible application of other legislation:

"Nothing in this Act shall be deemed to affect the operation of any other Act or law whereby any road or highway may be opened or closed or whereby any land may become a road or highway."

The Second Schedule to the Act contains certain forms. I quote from form No. 2, the order to close old roads:

""Whereas at a meeting held" &c. "it appears to the Corporation of that the piece of land hereinafter mentioned and heretofore used as a road is no longer required for such purpose Now, therefore, we, the Corporation of do hereby, by virtue of the powers given by the said Act, order that all [ here describe the road to be discontinued ] shall henceforth be discontinued and cease to be a road and do further order that the said piece of land shall be set apart and dedicated to the use of the Municipal Corporation of the Town of ""

There are, it seems to me, several possible ways of construing the provisions of this statute so as to delimit the area of its application. They vary between two extremes. At one extreme it might be said that the Act only applies to cases where the legal ownership of some parcel of land is to be altered. The fee simple of all public streets and roads within any local government area is vested in the council of that area ( Local Government Act, s 306). When a new road is opened or the boundaries of an existing road are altered by extension, the fee simple of some additional land will become vested in the council; when a road is closed completely or partially or altered by diminution, the council may dispose of the land and the fee simple of the relevant land will then pass from the council to someone else. The purpose of all the provisions of the Act about notice to owners or occupiers of any land affected by the proposed alterations (e.g. s 11(1)(II), s 12(2)), it may be said, is to give them the opportunity to protest against the loss of their land or to acquire the land to be disposed of. Stress could be laid on all the provisions dealing with alterations to certificates of title.

At the other extreme it could be said that every time the surface of the road is disturbed, e.g. by filling up potholes or by bitumenising an earth road, or some portion of it is removed from public use, e.g. by covering it with a traffic sign, then there has been an alteration of the road and that every time access by some sort of traffic is cut off from portion of the road, e.g. by widening a footpath, thereby denying the use of some portion of the carriageway involved in the widening to vehicles, there has been a partial closing of the road.

Neither of these extreme contentions is tenable and the former was repudiated by counsel for the defendant and the latter by counsel for the plaintiff. The latter, indeed, would be absurd and such provisions of the Act as s 9(e), which empowers the council after closing a road to retain it as the property of the council, show that it was envisaged that the Act could apply to circumstances where there is no alteration to the legal title to any particle of land. This seems to me to indicate that the notice to the affected owners and occupiers and the right given to them to express their views were intended for wider purposes than those connected with the deprivation or acquisition of legal title to land, and one of such wider purposes is, in my view, the right to be heard on such questions as the deprivation of, or interference with, access to their properties from the road in question.

It is far easier to reject extreme contentions on either side than to decide just where the line is to be drawn. Nevertheless it is my duty to attempt to draw that line, at least in so far as it is necessary to decide on which side of it the present case falls.

Mr. Wilson , for the plaintiff, cited various cases in which the word "alter" and its cognates were discussed, but none of them appears to me to afford any real help here. No authorities were cited about the word "closed" in this context, but it is obvious from the language of s 9(1)(c) that it is not restricted to complete closure.

Finally, Mr. Wilkinson , for the defendant, argued that alteration and closing within the meaning of the statute meant altering or closing the road so as to affect its boundaries as a road and Mr. Wilson argued that the words meant altering or closing a road or part of it as a road. Rightly understood, I think both these contentions are sound, though imprecise, and it is necessary to attempt a more detailed formulation.

I think a clue is to be found in the development of the law relating to highways. At common law a highway was created by dedication of the land in question by the owner of the soil to the public for the purposes of passage and the acceptance of the dedication by the public (Halsbury's Laws of England, 3rd ed., vol. 19, pp. 43-44, par. 60). Dedication could be express or it could be implied from long-continued and uninterrupted user (Halsbury, vol. 19, pp. 49-56). The fee simple ownership remained in the owner subject to the dedication (Halsbury, vol. 19, p. 65, par. 95), and in the absence of any evidence to the contrary the adjoining owner was also the owner of one half of the highway usque ad medium filum viae (Halsbury, vol. 19, p. 65, par. 96).

In South Australia this has long been altered by statute; the fee simple of a public road in a local government area, as I have said, is vested in the council, and some of the common law relating to highways is inapplicable: Barker v. The Corporation of the City of Adelaide ^[1] , per Way C.J. at pp. 33-34. But though the fee simple is in the council the dedication to the use of the public for the purposes of passage remains with many of its normal consequences. In Attorney-General, Ex relatione Australian Mutual Provident Society v. The Corporation of the City of Adelaide ^[2] , Murray C.J. said, at p. 229:

"Now, although the fee simple of all public streets within a municipality is vested in the Corporation of that Municipality, I think it is clear that the Corporation has not an unencumbered estate in the land, and an unrestricted right to use it in any manner it pleases. The surface is a street dedicated to the public, and it is as a street that the Corporation acquires its title to the land It holds, therefore, subject to the rights of the public to use the street for passing and repassing, except in so far as those rights may be taken away or limited by statute."

That case went to the High Court^[3], but there is nothing in the judgment of the learned Judges to suggest any disagreement with that dictum, with which I respectfully agree.

I think this concept provides the test. The Roads (Opening and Closing) Act , is, I think, confined, as Mr. Wilkinson argues, to questions relating to boundaries, but not to the boundaries of fee simple titles but to the boundaries of the area dedicated to the public for the purposes of passage. That area may be enlarged by opening a new road or extending an old one, or diminished by closing an existing road or part thereof. It is only when land previously undedicated to those purposes becomes so dedicated or land previously so dedicated becomes undedicated to those purposes that the Act applies. In this sense, too, Mr. Wilson's proposition is sound. The Act applies to the altering or closing in whole or in part of a road as a road, i.e. an area dedicated to the purposes of public passage. Support is lent to this contention by the use of language relating to dedication in various parts of the Act, e.g. s 12(2), Form 2 in the Second Schedule.

Of course, dedication can occur in many ways in South Australia. Section 301 of the Local Government Act sets out some of them. I do not think the provisions of that section affect my conclusion.

In my view the concept of dedication for the purposes of public passage does not dictate any particular mode of passage and the area subject to the dedication is not altered or changed simply because of changes which make one particular mode of passage impossible in fact or in law. At common law "a highway may be dedicated only for one or more of the recognised kinds of traffic" (Halsbury, vol. 19, p. 57, par. 84, and see p. 12, par. 9). So, in my view, the dedicated area is not changed, and therefore the provisions of the Roads (Opening and Closing) Act are not called into operation, simply because part of the road is made impassable to vehicles, so long as the right of pedestrian passage over that part is unaffected. If that is so the plaintiff's case must fail in so far as it is based on the Roads (Opening and Closing) Act . The green area will not cease to be available for use by pedestrians. It will, then, remain part of the dedicated highway area, even though vehicles will no longer be able to use it. And the narrowed portion of Yorkshire Street still usable by vehicles will remain usable by them even though passage over it in one direction is prohibited. In my opinion the proposed changes will not constitute any alteration or closing of a road within the meaning of the Roads (Opening and Closing) Act because they will not result in any change in the area dedicated for the purposes of public passage, though the mode of user by the public will be changed.

Any wider construction of the Act would, it seems to me, lead to absurd consequences. Mr. Wilson conceded that alterations to the surface of the road such as filling up holes or substituting one kind of road construction for another would not be alterations within the meaning of the statute. But if any withdrawal of any part of the surface of the carriage-way for the use of vehicles amounts to closing or altering that part of the road within the meaning of the Act, unless specially exempted by other legislation, some of which was not in force in 1932 when the Roads (Opening and Closing) Act was passed, then traffic signs could not be placed on the road and a reconstruction of a road, as a result of which vehicular traffic is diverted to go round a garden area available for pedestrian passage, instead of through the middle of it, would be legally impossible without observance of the elaborate procedures of the statute. Mr. Wilson argued that any alteration which substantially changed the character of the road as a means of passage either for vehicles or pedestrians would attract the provisions of the Roads (Opening and Closing) Act , but I find nothing in the language to make its application dependent on questions of degree like this.

I hold then that the plaintiff's case fails because it is based entirely on the failure to observe the procedure laid down in the Roads (Opening and Closing) Act and, in my view, the language of that Act is not apt to cover the present proposals. If I thought that it was, it would be necessary to consider the argument for the defence that the provisions of the Local Government Act and the Road Traffic Act relied on constitute exceptions to the generality of that language and cover the present situation. It is not strictly necessary to decide that, but the matter was argued and it may be desirable that I should say that I do not think the defendant's proposals have been shown to be authorised by the sections in question.

Section 314 of the Local Government Act gives the council power to improve, repair and alter the levels of any streets or roads and the footways thereof and to do all such things as pertain to the proper management of streets and roads. I do not think this language authorises the closing of Yorkshire Street to vehicular traffic in one direction or cutting down the width of the carriageway to the enormous extent envisaged by the defendant's plans.

Section 315(1) gives the council power to widen streets or roads, but this is not widening the road in the sense of the total area dedicated for the purpose of public passage.

Section 315(1)(b) provides as follows:-

"The council from time to time may -

(b)

increase the width of any footway or roadway in any street or road: Provided that the width of any such footway shall not exceed the width of the roadway of the street or road:"

It may be said, perhaps, that these proposals include increasing the width of the footway and decreasing the width of the roadway, if the green area is a footway. Certainly people will be able to walk over it, as I understand the situation. But it seems to me that probably the proposals could not be carried out without violation of the proviso, though in the present state of the evidence it is impossible to be certain about this.

Section 315(1)(c) provides that the council may

"plant trees, shrubs, lawns, or gardens in any street or road within the area, and may erect treeguards, stakes, and other supports therefor, and may wholly or partly enclose with any fence any such trees, shrubs, lawns, or gardens, but in no case provided for by this paragraph so as to obstruct unduly the public traffic."

As it is intended to cover the green area with lawn or vegetation, the case may be brought within the principal words here, but once again I do not know whether the proposal is caught by the restriction. Certainly one of its results would be to obstruct the public traffic. I am not in a position to decide whether or not such obstruction would be undue.

Section 358(1) provides as follows:

"The council may, in any public street, road, or place within the municipality or any township within the district erect and maintain any traffic indicators, safety islands, safety zones, traffic islands, roundabouts, median strips, or stalls for the sale of fruit, newspapers, magazines and other periodicals, or structures of a similar nature."

Sub-section (1a) provides that, before commencing to construct or erect a safety island, safety zone, traffic island, roundabout or median strip, the council must give the Road Traffic Board notice of its intention and that the council shall not construct or erect any such object without the approval of the Board and subject to any conditions which it imposes.

Again I do not think that the green area when brought into existence in accordance with the defendant's proposals will fall within any of the phrases in s 358(1). It is certainly not a traffic indicator. I do not think that it is a safety island or a traffic island. If an island in the ordinary sense is a piece of land entirely surrounded by water, then I suppose a safety island is a piece of land providing a sanctuary of some kind entirely surrounded by dangers, in this case traffic dangers. And a traffic island is a piece of land around which traffic, which I should think in this context must include, if it is not restricted to, vehicular traffic, can flow in all directions. The green area will abut directly on to the plaintiff's land. It is more like a peninsula or a rim with a large protuberance in the middle than an island. And, looked at with special attention to its dimensions in comparison with the dimensions of the roads, it seems more like a continent than an island anyhow. I do not think that it is a safety zone. No doubt one of the reasons for the proposal is that Yorkshire Street in its present form is thought to be a traffic hazard, but after the proposal is carried out it will present no traffic hazard at all. The flow of traffic will be so diminished as to amount to a mere trickle and a trickle in one direction only. People will not go on to the green area for safety. Its construction will prevent the existence of any danger. The expression "safety zone" would be an extraordinarily inept description of this large expanse of vegetation like the letter L with a shark's fin sticking out along the lower part of the vertical limb. It is not a median strip. It is not in the middle of anything. It is not a roundabout for neither traffic nor anything else can go round it without trespassing on the plaintiff's land.

Mr. Wilkinson argued that at least it is a structure of a similar nature within the meaning of s 358(1). But I ask, "Of a similar nature to what?" Do those words "structures of a similar nature" apply to all the objects or erections enumerated in s 358(1) or only to the last collection of them? It seems to me that the sub-section contemplates two categories of objects, one consisting of traffic indicators, safety islands, safety zones, traffic islands, roundabouts and median strips, and the other "stalls for the sale of fruit, newspapers, magazines and other periodicals", but that the words "or structures of a similar nature" apply only to stalls of the kind mentioned. I do not think one genus can be made out of the two categories. They are too dissimilar. Support is lent to this contention by sub-s (1a) which is careful to require the approval of the Board for the construction or erection of safety islands, safety zones, traffic islands, roundabouts and median strips but not stalls. There is no reference in that sub-section to structures of a similar nature. That is understandable if the words mean structures similar to stalls for the sale of fruit, newspapers, magazines and other periodicals, with which presumably the Board is not concerned, but not if they mean structures similar to safety islands, safety zones &c.

Then Mr. Wilkinson referred to the definition of traffic control device in s 5 of the Road Traffic Act and to the provisions of s 16 of that Act which empowers certain authorities, including councils (s 21(c)), subject to the approval of the Board to erect, place or mark traffic control devices on or near roads. Traffic control device is defined as follows:

"

(a)

any traffic lights, signal, stop sign, give way sign, sign indicating a speed limit, barrier line, line or mark to regulate or guide traffic, pedestrian crossing, safety island, safety bar, safety zone, traffic island, roundabout or dividing strip; and

(b)

any other sign, signal, device, mark or structure the purpose of which is to regulate traffic and which is of a class declared by proclamation to be traffic control devices within the meaning of this Act:but does not include a device by which visible or audible warning is given of the approach of railway rolling-stock to a level railway crossing:"

(c)

There is no evidence of any proclamation within the meaning of paragraph (b) of that definition. Paragraph (a) in my opinion does not apply. The green area is not a signal, sign, line or mark. It is not a pedestrian crossing. It does not cross the road. It is not a dividing strip. It does not divide the road. It is not a safety bar. It is not a bar at all. It is not, in my view, a safety island, safety zone, traffic island or roundabout for reasons already given. In fact there is a definition of roundabout in s 3 of the amending Act of 1969. The green area is certainly not an intersection or junction laid out for the movement of traffic in one direction around a central island within the meaning of that definition.

The conclusion to which I have come, then, is that the plaintiff has failed to establish his case, which, as I have said several times already, is based entirely on non-compliance with the provisions of the Roads (Opening and Closing) Act . On the other hand, the defendant in my view has failed to establish any positive statutory authorization for what it proposes to do, though it may be able with appropriate evidence to establish that the proposal is authorised under s 315(1)(c), though I doubt it, and possibly under s 315(1)(b), though I doubt this even more strongly. Under these circumstances strictly speaking the action should be dismissed, but, in accordance with the arrangements previously referred to, I will delay the formal entry of judgment to enable the parties to consider my reasons.