Car park not a road
In Cavric v Willoughby City Council [2015] NSWCA 182, theCourt of Appeal (CoA) overturned the Supreme Court’s findings that a car park, owned by the Council, was a public road.
Council’s argument was that the car park was a public road by virtue of the Roads Act 1993 and as a roads authority it could invoke s45 of the Civil Liability Act 2002 to avoid liability.
That is of course if the car park was in fact a public road.
The land was acquired by Council in 1962 it being subject to a covenant, that it not be used, “for any purposes other than Public Car Parking….”. The CoA said that this language was not consistent with any part of the land having been opened, dedicated or declared as a public road before 1962.
The Council however argued that by dint of the use of the land since its acquisition, the carpark was dedicated at common law or became a public road on the commencement of the Roads Act (see [11] – 19]). The CoA did not accept either proposition.
The CoA accepted Cavric’s argument that the Council public carpark was held in trust for public purposes and, as such, s178(b) of the Conveyancing Act 1919 provided that the land could not be presumed to be dedicated as a public road by reason only of user (see [28] – [29]).
Council alternatively argued that the car park was a public road by virtue of s249 of the Roads Act 1993 – because there was evidence to suggest that car park was used as a thoroughfare in the nature of a road.
The CoA however said that s249 did operate to fix a criteria by which an area becomes a public road. Rather it merely provides an evidential basis for an inference to be made about the area in question for the purposes of enforcing the Roads Act. (see [20] – [25]).
In the result the Council was held to be liable for Ms Cavric’s injuries and she was awarded $285,915.00 plus costs of the appeal.
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It appears that an area of land used in the nature of a road will not be public a road merely by reason of the fact that it is used by the public as such. Therefore this case serves as a reminder that s45 of the Civil Liability Act cannot always be relied upon as a defence in circumstances where the characterisation of a road is in question.