When is a Road a Road?

Public highways, paper roads, rights of way and historical road land in Victoria

Introduction

Road-status questions arise in many ways. A landowner may discover that a fence extends into land historically described as road. A purchaser or surveyor may find a strip marked “Road” on a title plan that conflicts with long-standing occupation. A council may assert rights over a privately maintained lane, while a neighbour may dispute access thought to be private. A developer may ask whether historic road land can form part of a project.

An owner may not know that land is a “paper road” until a council or another party asserts road rights.

Whatever the facts, the core questions are the same: what rights affect the land, how did they arise and what follows from them?

Road-status disputes often blur distinct legal concepts. A private right of way, a carriageway easement, a road for the purposes of the Local Government Act 1989 (Vic), a public road under the Road Management Act 2004 (Vic) and a public highway at common law may overlap in practice, but they do not carry the same legal status.

The key is not simply whether land is a road, but which rights exist, where they come from and what options follow.

The plan label is only the starting point

A conventional road is usually managed by VicRoads or a municipal council. It will generally be governed by the Road Management Act 2004 (Vic) and should appear on the relevant road authority’s Register of Public Roads.

Other kinds of “road” are less obvious. Land may have served as a private or public thoroughfare for years without users knowing its legal status. A paper road may never have been built, yet its historic status can still affect adjoining owners, councils and others.

Most road enquiries begin with a notation on an old plan: “Road”, “Lane”, “Reserve”, “Passage”, “Right of Way” or “Carriageway”. The label is not decisive. Its legal effect depends on the instrument that created it, the law then in force, later dealings and how the land was used.

A plan notation may show an intention to create access, reserve land for public use, impose an easement or support dedication. It does not, without more, answer whether the public acquired a right to pass and repass over the land. Nor does it necessarily establish that the land is now vested in a council, incapable of adverse possession, or available for use by neighbouring owners.

The High Court in Permanent Trustee Co of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401 held that highway status turns on the public right of passage, not the land’s appearance. A road does not become public because it looks like one; nor is public status disproved because it is unmade, fenced or overgrown. Dedication requires an act and intention to dedicate, plus public acceptance.

Once dedication and acceptance are established, the road becomes a common law public highway and remains so unless discontinued.

Road advice often begins as title archaeology: reconstruct the history before drawing conclusions about current rights.

Private rights of way, statutory roads and public highways are different concepts

Start by identifying the source of the asserted right. Private proprietary rights, statutory road powers and common law highway rights arise differently. They may interact, but each must be analysed separately.

A private carriageway easement benefits identified land and burdens other identified land. It gives the benefited owners, occupiers and their authorised users the rights set out in the instrument. It does not give the public rights merely because it exists.

However, a “road” for the purposes of the Local Government Act 1989 (Vic) is different. As Mayberry v Mornington Peninsula Shire Council [2019] VSC 623; 59 VR 383 shows, the statutory expression “right of way” is not limited to a public right of way. It can include a private carriageway easement. That can enliven council powers without making the land a public highway at common law. It may still be a “road” under the Local Government Act 1989 (Vic), giving a municipal council certain powers.

A public road under the Road Management Act 2004 (Vic) requires separate analysis. Its operation depends on statutory categories, declarations, road registers, vesting and the relevant road authority. Section 3 defines “road” to include a common law public highway. Section 17 identifies public roads, and the Act provides for Registers of Public Roads.

A public highway at common law depends on dedication by a competent owner and acceptance by the public. The leading Victorian authority is Anderson v City of Stonnington [2017] VSCA 229; (2017) 227 LGERA 176. In Anderson, a South Yarra bluestone laneway not shown as a road on title was held to be a common law public highway because of its history, construction and long public use.

Public highways at common law: dedication and acceptance

Anderson confirms the two-part test: dedication by a competent owner and acceptance by the public. Both elements are required.

Dedication turns on the owner’s manifested intention. It may be express or inferred from conduct, including long, open public use with the owner’s acquiescence. The evidence must still support the inference. A track, plan notation, local usage or neighbour’s assumption is not enough by itself.

Acceptance is usually proved by public use. The evidence should show who used the land, in what capacity and for how long. Was the use by the public at large, by a limited class of neighbouring owners, or by persons exercising private rights under an easement? Was the use open and uninterrupted, or controlled by gates, fences, permission or local arrangement? Did the public use the whole corridor or only a formed track within it?

These facts often decide the case. Relevant evidence includes historical aerial images, subdivision plans, transfers, road records, photographs, fences, statutory declarations, council maintenance records and local knowledge. The law may be settled; the result often turns on the history.

Public highway rights may endure despite later disuse, forgotten history or an unclear title register. Their status should be resolved before decisions about fencing, occupation, sale, subdivision, adverse possession or redevelopment.

For a developer or landowner, public highway rights may determine whether land can be fenced, included in a site, used for private access or claimed by adverse possession. If those rights never arose, the land may instead be capable of regularisation or inclusion in a project.

A public highway vests in the municipal council at law without conveyance.

Why Mayberry matters after Anderson

Mayberry shows why one label is not enough. The case concerned carriageway easements and council powers under the Local Government Act 1989 (Vic). The Court held that a private right of way can fall within the statutory definition of “road”, even though the public has no common law highway rights. For example, a party may ask a council to use its powers to remove an obstruction from a private right of way.

A private carriageway easement does not, by itself, prove dedication as a public highway. Use under private rights is not necessarily public use. Longstanding access may reflect private rights, public rights, permission, tolerance or a combination of them.

Mayberry also shows that the extent of any public right must be proved. Use of a formed track within a wider corridor does not establish public rights over the whole corridor. That difference may affect title, access, valuation, fencing, planning and future use. The party asserting the road bears the onus, and public acceptance must be proved by use as of right.

The same land can carry different rights for different purposes.

Road status often controls the consequences

Road classification affects more than access. It can determine ownership, vesting, maintenance, council powers, valuation, planning, subdivision and adverse possession. Decades of exclusive occupation may not matter if the land cannot be claimed. Conversely, land labelled as road may be capable of regularisation if its legal status permits it.

The source of the right controls the consequence. A public highway at common law may engage statutory consequences, including vesting and road authority powers. A public road under the Road Management Act 2004 (Vic) may carry a different set of statutory consequences. A road under the Local Government Act 1989 (Vic) may permit council action even where public highway rights are not established. A private easement may preserve access rights even if ownership changes. The word “road” alone does not answer these questions.

Land set aside as a road on a registered plan vests in the council under section 24(2)(b) of the Subdivision Act 1988 (Vic), and a road so vested becomes a public highway under section 24(2)(c). Once vested, or once a common law highway is accepted, the status can require statutory intervention before it is removed. Relevant mechanisms include discontinuance under Schedule 10 clause 3 of the Local Government Act 1989 (Vic) and section 12 of the Road Management Act 2004 (Vic).

For a developer, establishing road status may be only the first step. If obsolete road land affects a site, the road authority’s willingness and power to discontinue it – and the ownership outcome – become central. Continuing access, adjoining ownership, public use and the statutory process will shape the result.

Older Victorian cases also remain relevant. Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504 and Calabro v Bayside City Council (1999) 3 VR 688 address public road status, dedication, discontinuance and statutory consequences. Templestowe and Bass Coast Shire Council v King [1997] 2 VR 5 illustrates the use of declaratory relief in road-status disputes.

Examples from practice

These anonymised matters illustrate recurring road, title and access issues.

A road enclosed since the 1930s

One matter involved a strip of land shown as “road” on a historic plan of subdivision. It had been fenced into the adjoining property and occupied since at least the 1930s. Fencing, landscaping and long use made it appear to be part of the adjoining property. Title remained in the name of a deceased owner, not a council. We were asked to consider an adverse possession claim.

The threshold issue was whether the strip had acquired a road status that displaced the usual ownership and possession analysis. If it had become a public highway, or legislation barred acquisition by possession, strong occupation evidence would not be enough.

We reviewed historical titles, early plans, surveys, aerial photographs and the history of fencing and occupation. Long enclosure was strong evidence, but it did not establish the land’s legal character. Time had created an appearance of certainty while leaving the legal issue unresolved.

The council would not accept, despite the land’s history, that it lacked historic road status. The adverse possession application could not proceed through the titles office, so the owner needed another legal strategy to acquire title. That strategy succeeded.

Historical road land incorporated into a broader landholding

Another matter involved a historic road reserve that hindered the use of adjoining land. Rather than treat it as a fixed constraint, we examined the source of its status and whether it could be altered, regularised or incorporated into the adjoining title.

This required historical road records, subdivision material, title history and the statutory mechanisms for obsolete road land. Ownership and public use had to be considered separately. The available route to discontinuance, transfer or incorporation depended on whether the land was a public highway, statutory road, council land or merely described or reserved as road.

For development land, the commercial effect may be direct. Resolving obsolete road status can unlock part of a site, rationalise a boundary, improve access or bring unusable land into the holding. The investigation may therefore create opportunities as well as manage risk.

Incorporation of laneway into development

Landowners and developers sometimes find a public laneway running through a site. We then consider whether an agreement with the council or other road authority could incorporate it into the development.

One option is to discontinue the road and transfer the land into private ownership. If the thoroughfare must remain open, a public plaza under private or shared control may be possible. That can preserve public access and allow use of airspace or substratum to support the development.

The carriageway easement treated as public road

Carriageway easements are sometimes described as roads after years of use. The label can obscure the source of the right. Use by several owners, service vehicles, invitees and occupiers may still be private rather than public.

In one matter, regular use led stakeholders to assume that public road rights existed. The easement documents, title history and surrounding facts instead required us to separate private access rights from any claim of common law highway status or council powers.

That distinction follows Mayberry: a private right of way may be a road for some Local Government Act purposes without creating a public right of passage or dedicating the whole corridor to public use.

The laneway everyone used

Rear laneways may serve homes, businesses or mixed-use properties for decades. Adjoining occupiers, trades, visitors, delivery vehicles and members of the public may all use them. A lane that functions publicly is often assumed to be public, but that does not settle its status.

That assumption must be tested against the history of use. Long use may support dedication and acceptance. Was the use by the public generally, or by a limited class connected with neighbouring properties? Was the lane maintained by council or privately by adjoining owners? Were gates, obstructions or signs used at any point? Did historical records describe the lane as public, private, reserved, discontinued or subject to easements?

Under Anderson, heavy use is not enough; the evidence must establish dedication by the owner and acceptance by the public. A lane may function publicly without becoming a public highway, while a long-overlooked public highway may still exist.

The adverse possession enquiry that was really a road status enquiry

Adverse possession enquiries often begin with years of occupation, maintenance and fencing. But the strength of that evidence may not be the first issue.

If the land may be historic road land, ask first whether it can be claimed at all. A public highway, statutory public road or other statutory exclusion may prevent the ordinary possession analysis from arising.

This issue recurs with paper roads, night cart lanes, rear accessways and strips labelled as road on old plans. Strong possession evidence cannot overcome a statutory bar. Relevant exclusions include the Limitation of Actions Act 1958 (Vic) and, for public roads, Schedule 5 clause 2(1)(b) of the Road Management Act 2004 (Vic). The exact position depends on the land’s character and ownership.

A practical sequence for road status investigations

Road-status enquiries are evidence-intensive, so sequence matters. A practical order is:

• Identify the land precisely: obtain a current title, plan, survey and any historical plans that created or affected the strip.
• Identify the words used historically: road, lane, right of way, passage, carriageway, reserve and similar descriptions may point to different legal possibilities.
• Trace ownership and dealings: determine whether the land was separately titled, vested, transferred, reserved, dedicated, burdened by easement or left as balance land.
• Review statutory records: check road registers, council records, gazettal material, declarations, discontinuance records and relevant Road Management Act 2004 (Vic) or Local Government Act 1989 (Vic) material, including the Register of Public Roads and any vesting under section 24(2)(b) of the Subdivision Act 1988 (Vic).
• Separate private rights from public rights: analyse easements and private access instruments before concluding that use is public.
• Test dedication and acceptance: identify the owner whose conduct is relied upon, the evidence of intention to dedicate, and the evidence of public acceptance.
• Determine the physical extent of any right: do not assume that use of a track proves public rights over a wider corridor.
• Only then assess consequences: ownership, vesting, council powers, access, fencing, discontinuance, title correction, valuation, development, subdivision or adverse possession.

Conclusion

The central question is not whether land is labelled a road, but what rights affect it, how they arose and what follows. Answering it often requires both legal analysis and historical investigation.

The cases keep three concepts separate. Permanent Trustee focuses on public passage; Anderson sets the test for dedication and acceptance; Mayberry shows that private rights, statutory road powers and common law highway rights can differ. The result often turns on historical evidence as much as doctrine.

Paper roads, night cart lanes, carriageway easements, highway claims, discontinuances and long occupations all depend on careful historical work. A plan, reserve, easement, fence line or long pattern of use can change the legal character of land.

For developers and landowners, road status can affect access, title, subdivision, development yield, adverse possession and site consolidation. A road notation may also overstate the constraint and deserve closer examination. In any boundary, sale, planning or development matter, start with the source and history of the rights, not the label on the plan.