Attachments: 1. Supporting Attachment 2. Public Notice and Plan 3. Submissions

Management report to Council Agenda item 6.3 Proposed Public Highway declaration PL5103, CL19 and Goldie Place CL20 Melbourne

Council

Presenter: Angela Meinke, Manager Planning and Building 27 June 2017

Purpose and background 1. The purpose of this report is to recommend that CL19 and Goldie Place CL20 (Roads) be declared as

public highways and the declaration of PL5103 (Private lane) be abandoned as shown labelled on the plan in Attachment 2.

2. The Roads and Private lane have the following status and ownership:

2.1. CL19 and Goldie Place CL20 are Council lanes on Council’s Road Register, which are maintained and cared for by Council; the proposed declaration will put the status beyond doubt and update the ownership.

2.2. PL5103 is shown as a Private lane on Council’s Road Register and contained in certificate of title volume 4772 folio 302 which has the registered proprietor listed as Francis Freeholds Pty Ltd. The land is known as Road R1 on LP41033

3. A company search undertaken before public consultation commenced, indicated that Francis Freeholds Pty Ltd was de-registered as a company in 1989.

Key issues 4. Public consultation in respect to the proposed declaration was undertaken (see Attachment 1). Two

submissions (see Attachment 3) were lodged, objecting to the proposal to declare PL5103 as a public highway on the basis the owner of PL5103 was not a de-registered company.

5. No submissions where received relating to the public highway declaration of CL19 or Goldie Place CL20.

6. The ASIC database has now been updated indicating that Francis Freeholds Pty Ltd has been restored as a Company.

7. If the application is successful, the Roads will be declared as public highways and the subject land will vest in Council.

8. The management recommendation reflects the recommendation from Council’s Submissions (Section 223) Committee held on 19 May 2017.

Recommendation from management 9. That Council:

9.1. declares the two roads known as CL19 and Goldie Place CL20 as shown labelled on the plan in the public notice dated 22 March 2017 (Notice), to be Public Highways; and

9.2. abandon the proposal to declare the road known as PL5103 as shown labelled on the Notice, to be a Public Highway,

for the following reasons:

9.2.1. the Roads are already treated as public highways at common law and the declaration will simply confirm this status

9.2.2. the declaration will give certainty to the status of the Roads and Council’s rights in respect to them; and

9.2.3. deletion of the Private lane resolves the objection from its registered proprietor.

9.3. Notifies in writing every person who has lodged a separate submission of the decision and reasons for the decision.

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Attachment 1 Agenda item 6.3

Council 27 June 2017

Supporting Attachment

Legal

1. Where a Council proposes to declare a road as a public highway under section 204(1) of the Local Government Act 1989 (Act), sections 207A(c) and 223 of the Act require it give public notice of the proposal and consider all submissions received prior to making its decision.

Finance

2. If the application is successful, the Road will be declared as a public highway and the subject land will vest in Council. The land surveying, plan of subdivision preparation and lodging costs at Land Victoria will be in the order of $20,000 for these Roads and those declared in the government gazette dated 5 October 2006 page 2101. Budget for this is within the existing 17-18 draft budget located in Engineering Services.

3. Council responsibility for maintaining and cleaning of the Roads will be met from within the existing 2017/2018 budget located in Engineering Services. Council may receive monies from parking infringements within the Roads.

Conflict of interest

4. No member of Council staff, or other person engaged under a contract, involved in advising on or preparing this report has declared a direct or indirect interest in relation to the matter of the report.

Stakeholder consultation

5. Public consultation in respect to the proposed declaration was undertaken in accordance with the Act. Overall the consultation involved:

5.1. advertising in The Age on 22 March 2017

5.2. a letter being sent to the owners and occupiers of abutting properties

5.3. all of the Service Authorities being notified by e-mail of the proposal.

6. Submissions were received and reported at the Submissions (Section 223) Committee meeting held on 4 May 2017.

Relation to Council policy

7. There is no Council policy for the declaration of roads as public highways, however the actions taken and the recommendations in this report are all legislatively compliant and accord with well established practice.

Environmental sustainability

8. This proposal has no significant impact on environmental sustainability.

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Attachment 2

Agenda item 6.3 Council

27 June 2017

Public Notice published in the Age on 22 March 2017

Melbourne City Council

Proposed Public Highway Declaration of PL5103, CL19 and Goldie Place (CL20), Melbourne Notice is given pursuant to sections 204(1), 207A and 223 of the Local Government Act 1989 (‘Act’) that the Melbourne City Council (‘Council’) proposes to declare PL5103, CL19 and Goldie Place (CL20), Melbourne shown shaded on the plan below as public highways (‘Proposal’). PL5103 is proposed to be declared a public highway to enable it to be added to Council's Road Register under the Road Management Act 2004 and be maintained by Council. CL19 and Goldie Place (CL20) are considered to be public highways at common law having been maintained by the Council for many decades and are on the Council’s Road Register. The Proposal is to put the public highway status beyond doubt. Any person may make a written submission on the Proposal to the Council. All submissions received by the Council on or before 20 April 2017 will be considered in accordance with section 223(1) of the Act, by the Council’s Submissions (Section 223) Committee (‘Committee’). If a person wishes to be heard in support of their submission they must include the request to be heard in the written submission and this will entitle them to appear in person, or by a person acting on their behalf, before a meeting of the Committee, scheduled to be held on 4 May 2017, commencing at 3pm, in the Melbourne Town Hall, Administration Building, Swanston Street, Melbourne. Written submissions should be marked ‘Proposed Public Highway Declaration of PL5103, CL19 and Goldie Place (CL20), Melbourne’ and addressed to the Manager Governance and Legal, Melbourne City Council, GPO Box 1603, Melbourne, 3001. Written submissions can be made via mail, email to com.meetings@melbourne.vic.gov.au or on-line at https://comdigital.wufoo.com/forms/rly4bj60tdagsg/

Written submissions cannot be delivered in person.

Submissions form part of the public record of the meeting (including any personal information you provide) and will be appended to the Council report which is published on Council’s website (accessible worldwide) for an indefinite period. A hard copy will also be made available for inspection by members of the public at Council offices, in accordance with the requirements of the Act. If you have any concerns about how Council will use and disclose your personal information, please contact the Council Business team via email at privacy@melbourne.vic.gov.au.

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Hannah Eisen

From:Sent: Thursday, 6 April 2017 9:53 AMTo: CoM MeetingsCc: Ron FuchsSubject: Objection notice [CS-MEL_DOCS.FID281427]Attachments: Letter to Melbourne City Council.pdf

Dear Sir/Madam

Please see attached correspondence.

Kind regards Vanessa

Vanessa Gandel Trainee Address Level 10, 114 William Street, Melbourne VIC 3000, Australia Phone +61 3 9608 Fax +61 3 9608 2222Email Web www.cornwalls.com.au

Cornwall Stodart is a limited partnership and a member of ALFA International, a global legal network of law firms

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Kate Brocker

From:Sent: Thursday, 20 April 2017 3:21 PMTo: CoM MeetingsSubject: PROPOSED PUBLIC HIGHWAY DECLARATION OF PL5103 - Objection on behalf of Francis Freeholds Pty LtdAttachments: Letter to CoM on behalf of Francis Freeholds Pty Ltd (PL5103) - 20170420....pdf

Dear Sir/Madam

Please find attached correspondence for the attention of the Manger – Governance and Legal.

Yours faithfully

Tyrone Rath

P: 03 8626 9010 | M: | E:

Planning & Property Partners Pty Ltd Duckboard House Level 2, 91-93 Flinders Lane Melbourne VIC 3000

NOTICE - This communication contains information which is confidential and the copyright of Planning & Property Partners Pty Ltd or a third party. If you are not the intended recipient of this communication please delete and destroy all copies and telephone the Planning & Property Partners Pty Ltd on +61 3 8626 9000 immediately. If you are the intended recipient of this communication you should not copy, disclose or distribute this communication without the prior authority of the Planning & Property Partners Pty Ltd. Any views expressed in this communication are those of the individual sender, except where the sender specifically states them to be the views of the Planning & Property Partners Pty Ltd. Except as required by law, the Planning & Property Partners Pty Ltd does not represent, warrant and/or guarantee that the integrity of this communication has been maintained nor that the communication is free of errors, virus, interception or interference.

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19 April 2017

Manager Governance and Legal Melbourne City Council GPO Box 1603 MELBOURNE VIC 3001

Also by email: com.meetings@melbourne.vic.gov.au

Dear Sir/Madam

Proposed Public Highway Declaration of PL5103 Objection on behalf of Francis Freeholds Pty Ltd Certificate of Title Volume 04772 Folio 302

We act for Francis Freeholds Pty Ltd and refer to the above matter.

We refer to previous correspondence dated 5 April 2017 sent to Council on behalf of our client.

As indicated in the 5 April 2017 correspondence, our client is the registered proprietor of the land described in Certificate of Title Volume 04772 Folio 302, being the land more particularly described as ‘Road R1’ on Plan of Subdivision PS041033 (‘Land’).

We understand Council refers to the Land as ‘PL5103’, and that pursuant to notice dated 20 March 2017 (‘Notice’) Council intends on declaring the Land as a public highway to enable it to be added to Council’s Road Register under the Road Management Act 2004, to allow it to be maintained by Council.

Our client objects to the proposed declaration of its Land as a public highway for the reasons that follow in this submission.

The Land

The Land is rectangular in shape and is approximately 15.98 metres long and 3.7 metres wide.

Access is gained from Niagara Lane to the east, while the Land is abutted by No. 383 Lonsdale Street to the north and No. 31 Niagara Lane to the south. The western boundary of the Land is occupied by a solid masonry wall that has been present for at least 50 years, noting that the wall is marked on LP41033 which is dated 6 June 1957 (Plan of Subdivision). The Land is affected by easements of way and drainage as shown on the Plan of Subdivision, however it is noted that the easement of way is of limited use due to the presence of the masonry wall, where the Land meets a dead end. It appears from the Plan of Subdivision that the easement of way would have previously provided access to the other lots on the plan, and also through to Hardware Lane to the west.

A bright yellow bollard was erected at the entrance of the Land immediately adjoining Niagara Lane a number of years ago. The purpose of the bollard is to prevent access and illegal parking

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of vehicles on the Land, and the bollard is opened and closed intermittently to prevent public access as necessary.

We are instructed that our client or its agents have intermittently cleaned and maintained the Land for at least 50 years, and that the Land is currently used occasionally by the occupants of the adjoining No. 383 Lonsdale Street for the placement of bins and other services.

The presence of the bollard at the entrance to the lane and solid masonry wall at the end of the lane means that the Land is not used by members of the public. The Land does not have any markings suggesting that it is open to the public, or available for use by the public.

To the contrary, the Land is occupied by a bright yellow bollard and is adorned with several private security cameras which further reinforce the Land’s status as private land. Simply, there is no reason for the public to access or use the Land, and indeed the Land is not used by the general public.

Creation of a public highway

A public highway may arise either at common law or through the process outlined in section 204 of the Local Government Act 1989 (’LGA’).

The language used in Council’s Notice clearly indicates that Council does not believe that the Land is a public highway at common law, insofar as the language used in the Notice distinguishes between the Land and CL19 and Goldie Place (CL20) by stating that:

CL19 and Goldie Place (CL20) are considered to be public highways at common law having been maintained by the Council for many decades…

It is apparent from this contrast in language that Council has not maintained the Land in the past as it has done so with CL19 and Goldie Place, and shows instead that the Land has not been either dedicated or maintain by Council for a public purpose, and is therefore not a public highway under the common law.

Section 204(2) of the LGA states that a Council may declare a road reasonably required for public use to be open to public traffic. The question of whether a road is ‘reasonably required for public use’ depends on the particular facts of each case. At the root of this concept lies the concept of a specific and defined ‘public purpose’.

Review of the relevant authorities including the recent decision of the Supreme Court of Victoria in Anderson & Anor v City of Stonnington & Anor [2016] VSC 374 indicates that a road must be reasonably required for general public use prior to declaration as a public highway when relying on the provisions of the LGA.

Therefore, before a council can acquire a road for public use under the LGA by declaration of the road as a public highway in circumstances where the road is not already a public highway under the common law, it must identify the public purpose for which that road is required.

Submission

Having regard to the above and the particular characteristics of the Land, it is obvious that the Land has never been dedicated as a public highway by the registered proprietor. To the contrary, a bollard has been erected to demonstrate that the Land is in private ownership and is not open to the public.

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Moreover even if one could find evidence of an intention to dedicate the Land, it would be impossible for anyone to claim that the general public ever accepted any such dedication, given the sporadic and limited use of the Land as a dead-end laneway.

It is also apparent from Council’s language in the Notice that Council has not maintained the Land in the past, and that Council does not consider the Land to be a public highway under common law.

Council has not provided sufficient justification in the form of a reasonably identifiable ‘public purpose’ to warrant the dispossession of private land as a public highway.

It is our view that any suggested or proposed maintenance of the Land by Council is not sufficient public purpose to warrant dispossession of the Land in circumstances where there has been no intention on behalf of any of the owners to dedicate the Land, nor any public acceptance of any purported dedication.

Conclusion

Accordingly we submit that Council should abandon the proposed declaration of the Land.

Our client requests the opportunity to be heard at the forthcoming Committee meeting to consider submissions in respect of this matter.

Please contact Tyrone Rath on 8626 9010 should you have any queries.

Yours sincerely,

MARK NAUGHTON Planning & Property Partners Pty Ltd

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