Road opening by prescription
A public road can be created by the enjoyment of the public of a right of passage from time immemorial. The evidence required to establish a prescriptive right is equivalent to that required for dedication under common law.
Pre 1920 road dedication under common law
Under common law, land became public road when there was an intention by the owner to dedicate and an acceptance by the public. The intention to dedicate could be established by written evidence expressing that intention or by a course of action from which the intention could be inferred.
Acceptance by the public can be established by written evidence of acceptance (by an exchange of letters between the roads authority (i.e. Transport for NSW (Formerly RMS)) and the relevant council), use of the road by the public, or by expenditure of local council money on the upkeep of the road.
The fee of roads provided in pre-1920 private subdivisions are usually comprised as residue in the subdivided title and therefore remain in the name of the original subdivider (or his/her heirs and assigns). The council, after serving notice on the current proprietor(s), can dedicate these roads as public roads by publishing an appropriate notice in the Government Gazette see section 16 Roads Act 1993.
However, if an exchange of letters took place indicating that a road has been dedicated to the public as a public road then NSW LRS can rely on the advice of Transport for NSW, that the road has become a public road by this means and no further gazettal action is required. An example of a road opened by dedication to the public in a letter rather than by gazettal can be found in DP1064277. NSW LRS retains the plan minute papers and other documentation. Also see Act 4 William IV No. 11 roads page.
Roads shown in the original plans (DP90000 series) within The Australian Agricultural Company's land grant have not been dedicated to the public as public road. These roads can only be opened by prescription if:
- a letter from the Company is available indicating their express intention to dedicate the road to the public and
- the road has since been constructed and its care and maintenance are undertaken by the council.
NOTE: Some Australian Agricultural Company plans within the MidCoast Council local government area bear a notation to the effect that a letter of intention to dedicate has been forwarded to the council. In these cases, this will constitute the requisite evidence for road opening by prescription provided the road has in fact been constructed and is in use.
1920 to 1993 - Road dedication under Part 9 Local Government Act 1919
Sections 220-229 Local Government Act 1919 gave local councils full authority for the maintenance and management of public roads. Throughout this period, new public roads were created in private subdivision by the registration in NSW LRS of deposited plans bearing council's approval together with statement of intention to dedicate the roads to the public. The fee of the roads remains in the subdivided Certificate of Title and stands in the name of the council.
Dedication by memorandum
Until the enactment of the Local Government and Conveyancing (Amendment) Act 1964 the Council was permitted to record the opening of a public road by lodgment in NSW LRS of a memorandum of dedication.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: October 2024