Posted on December 11, 2025 by Sinead Macauley, Dominic Smith and Liam Mulligan
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Dedication of public roads- a recent illustration of the principles
Under the Roads Act 1993, the procedures for dedicating land as a public, or identifying land historically created as a public road, are clear and relatively simple. However, it was not always so. In particular, before the creation of the first statutory scheme for the creation of roads, such dedication was governed by the common law and the resolution of disputes about whether or not a public road had been created over particular land can raise complicated questions of fact and law. In a recent decision of the Supreme Court in Laing v Port Macquarie-Hastings Council [2025] NSWSC 1331, the Supreme Court considered the key legal principles concerning whether land is subject to a public road.
The dispute concerned a dirt and gravel track, running from Telegraph Point Road down to a river reserve on the Hastings River. A former owner of the land had historically registered a plan subdividing the land and identifying that land as a public road. The plan had also been notified and identified, in a later map prepared by the Council, as a public road.
The adjoining owner of the title to the relevant land asserted that the track was held in freehold and was a private right of way, as the subdivision was never effected and nothing recorded on the title to the land identified it as a public road.
The Court applied the well established legal principles from Newington v Windeyer (1985) 3 NSWLR 555, that land becomes a public road at common law when there is:
- An intention, objectively determined, to dedicate the land as a public road; and
- An acceptance of that dedication by the public.
The Court in this case found that, once the plan was registered, there was a clear inference that the former owner intended to dedicate the track as a public road, together with the other roads depicted on the plan. The fact that the plan of subdivision was not subsequently achieved is irrelevant for the purposes of determining the intent of the former owner, when the plan was registered. If, as it intended, the former owner had sold the land, then there would be no basis for the former owner to retain ownership of the road alignments.
In terms of acceptance, the Court found that there was sufficient evidence of public acceptance of the dedication of the public road. Historical evidence of acceptance of the dedication was established by the registration of a mortgage with the bank for the subdivision, the identification of the road on historical lithographic maps prepared by the Council, the maintenance action of the relevant Council body prior to 1920 and the consistent public use of the land by families and primary producers.
The Court held that the track became and continued to be a public road, as the registration of the plan and later public acceptance demonstrated the objective intention to dedicate the land as a public road. While a public road was not recorded on title, that land was subject to public rights and therefore, it was a public road vested in fee simple in the Council.
The decision emphasises the longstanding authorities that, once a public road is created and later accepted by the Council and public, public rights over that road will continue irrespective of whether or not it is recorded on the Register of Titles.
The full text of the Supreme Court’s judgment can be found here: Laing v Port Macquarie-Hastings Council [2025] NSWSC 1331.
If you have any questions regarding this article, please leave a comment below or contact Dominic Smith or Liam Mulligan ((02) 8235 9715).
Full Torrens title was issued by ORG for the whole of the land surveyed in July 2023. The Court has decided that part of the title established by the 2023 registered plan is road and other parts are not. Parts of the current title not deemed road by this judgement were though depicted on the 1892 registered plan in the same way the part deemed to be road was shown, ie as “road”. The existence of the track and evidence in relation to it sets it apart. Presumably final orders will establish a means to rectify “the current state of the register”.
Despite the application of long held precedent by Newington in addition to those established by Palmisino v Hawes and Weber v Ankin, on the basis of the 2023 granting of Torrens title, does this decision in any way challenge the notion of indefeasibility of title/”title by registration” and establish a dangerous precedent in that regard?
Thank you Darren for your question. The case does not establish a new precedent which impugns indefeasibility of title; rather it applies the established legal principles that an existing public road is not affected by the fact of whether it is registered on title.