Burchall v Shire of Sherbrooke [1968] HCA 69

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. Burchall v Shire of Sherbrooke [1968] HCA 69

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 31 Barwick C.J.

The appellants are the owners of an irregularly shaped piece of land having a frontage to Finmere Crescent, Upper Ferntree Gully in the Shire of Sherbrooke (the Shire) in the State of Victoria. The general area is hilly. Finmere Crescent is a private street within the meaning of Div. 10 of the Local Government Act 1958 (the Act). Its level had never been fixed nor has it been constructed within the meaning of that Division of the Act. It has a cross fall of one in four as has the land of the appellants. There is in Finmere Crescent a trafficable track some ten feet wide which is located towards the high side of the road reservation. The area was apparently the subject of an old subdivision effected some thirty years ago when local government controls, particularly as to road levels, were not as they are now. The road reservation is some fifty feet wide. At a point about the centre of the appellants' frontage, the centre line of the road reservation of Finmere Crescent is some seven feet higher than the appellants' frontage. The appellants have constructed a platform to form a level area on their land on which their home has been built. The level of this platform is some feet below the level of the frontage at the point nearest to it. To gain access by wheeled vehicle from their land to the track on Finmere Crescent, the appellants have used a driveway which emerges on to the road reservation towards the northern end of the appellants' frontage and which in effect intrudes upon that reservation for some nineteen feet before reaching the track at an acceptable gradient. Had the use of this portion of the reservation been denied them at any time for any reason, it is said in the evidence that the appellants would have had to face a considerably higher gradient to reach the trafficable track in Finmere Crescent. It is said that this gradient would have been of the order of one in seven. The male appellant is a plumbing contractor conducting his business on the subject land. Part of the use to which he puts it is to park motor vehicles used in connexion with his business as well as, during working hours, vehicles brought on to the land by his employees.