Posted on July 17, 2015 by Megan Hawley
Is a public car park a public road?
The Court of Appeal has recently rejected an argument by a local council that a public car park that had not specifically been dedicated as a public road, was a public road. In rejecting the argument, the Court of Appeal helpfully summarised the ways in which a public road can come into existence.
The case of Cavric v Willoughby City Council  NSWCA 182 was a personal injury case in which the defendant council argued that the car park in which the injury was incurred was a public road, in order to claim the benefit of the statutory defence for roads authorities in the Civil Liability Act 2002.
There was no express dedication of the car park as a public road.
The car park was open to the public, was owned by Council and had been transferred to the Council in 1962 for a nominal sum only and subject to a covenant that the land not be used for any purpose other than public car parking and a public baby health centre.
The Council argued that a provision of the Roads Act 1993, s249, had the effect that the car park could be considered to be a public road.
Section 249 provides that ‘evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road.’
The section is, however, subject to s178 of the Conveyancing Act 1919 which provides that ‘no dedication or grant of a way shall be presumed or allowed to be asserted or established as against the Crown, or persons holding lands in trust for any public purpose, by reason only of user…‘
The Court held that the circumstances of the transfer of the car park land to the Council gave rise to a trust for a public purpose, and therefore s249 of the Roads Act could not be relied on.
Furthermore, the Court said that the existence of a trust over the land for the public purpose of car parking was inconsistent with the land being a public road.
However, the Court held that in any event, s249 did not result in any land meeting the tests in s249 becoming a public road – it is merely a provision saying that if land meets that description, that is evidence, to be balanced against other evidence, that it may be a public road.
The Court summarised how public roads come into existence.
Under the Roads Act, land must be opened or dedicated as a public road to be a public road. That can occur in a number of ways including:
- registration of a plan of subdivision noting the land as a road;
- publication of a notice in the Gazette dedicating the land as a public road; and
- proclamation by the governor.
The Roads Act also provides that any road that was a public road immediately before the Roads Act came into force in 1993 is also a public road under the Act.
Since 1906, a road has only been able to be opened with the approval of the relevant local council.
However land could be found to be a public road without a formal dedication or local government approval if there was evidence, dating from before 1906 of an intention of the former owner of the land to dedicate the land as a public road (such as by noting the land as an open way on a subdivision plan) and acceptance by the public of the dedication (evidenced by continual use which is not a trespass). This would not be possible in respect of Crown land, or land subject to a public trust due to s178 of the Conveyancing Act.
Public car parks owned by councils are quite often subject to trusts for a public purpose due to covenants, such as the one in this case, requiring the land to be used for car parking, or because the car park land has been acquired under s94 of the Environmental Planning & Assessment Act 1979, or using s94 funds collected for parking purposes.
It would therefore seem to me to be unlikely that a public car park would be found to constitute a public road in the absence of a specific dedication as a public road.
The Court’s decision can be read on the NSW Caselaw website here.