Jarosz v State of New South Wales [2019] NSWSC 692

Supreme Court New South Wales

Medium Neutral Citation: Jarosz v State of New South Wales [2019] NSWSC 692 Hearing dates: 22 – 23 May 2019 Date of orders: 11 June 2019 Decision date: 11 June 2019 Jurisdiction: Equity Before: Darke J Decision: Amended Statement of Claim is dismissed. Catchwords: HIGHWAYS – creation of – public roads – dedication at common law prior to 1920 – unsealed dirt road connecting several residential properties in the Burragorang State Conservation Area – where the land on which the dirt road runs is Crown land – whether evidence including Crown Plans showed an intention to dedicate land as a public road – whether evidence of use showed that land had been dedicated by the Crown as a public road – effect of the Crown Lands Alienation Act 1861 (NSW) – evidence not sufficient to establish that land became a public road at common law prior to 1920

TORTS – private nuisance – claim by the plaintiffs against the State as occupier of a dirt road on land situated in the Burragorang State Conservation Area – where the dirt road maintained as a fire trail – whether the State's management of the dirt road amounts to an unreasonable interference with the plaintiffs' ability to access their land – State's management of road not shown to be unreasonable Legislation Cited: Conveyancing Act 1919 (NSW), s 178 Crown Lands Act 1884 (NSW) Crown Lands Alienation Act 1861 (NSW), ss 1, 3, 5, 13 Crown Lands Consolidation Act 1913 (NSW) Dedication by User Limitation Act 1881 (NSW) Dedication by User Limitation Act 1902 (NSW) Evidence Act 1995 (NSW), s 74 Local Government Act 1906 (NSW) Local Government Act 1919 (NSW), s 232 National Parks and Wildlife Act 1974 (NSW), ss 2A, 30G, 47B, 153C Roads Act 1993 (NSW) Rural Fires Amendment (Fire Trails) Act 2016 (NSW) Water NSW Regulation 2013 (NSW), Sch 1 and 2 Cases Cited: Attorney-General v City Bank of Sydney (1920) 20 SR (NSW) 216 Bankstown City Council v Almado Holdings Pty Ltd (2005) 223 CLR 660; [2005] HCA 46 Casson v Leichhardt Council (2011) 186 LGERA 34; [2011] NSWLEC 243 Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182 Coastal Ecology Protection Group Inc v City of Charles Sturt (2017) 227 LGERA 1; [2017] SASC 136 Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 Elston v Dore (1982) 149 CLR 480 Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 Hargrave v Goldman (1963) 110 CLR 40 Hunter v Canary Wharf Ltd [1997] AC 655 Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319; [2006] NSWCA 31 Newington v Windeyer (1985) 3 NSWLR 555 Onus v Telstra Corporation Ltd [2011] NSWSC 33 Permanent Trustee Co of New South Wales Ltd v Campbelltown Municipal Council (1960) 105 CLR 401 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 Turner v Walsh (1881) 6 App Cas 636 Williams v State Transit Authority of New South Wales (2004) 60 NSWLR 286; [2004] NSWCA 179 Category: Principal judgment Parties: David Jarosz (First Plaintiff) Margaret Jarosz (Second Plaintiff) State of New South Wales (First Defendant) Wollondilly Shire Council (Second Defendant) Representation: Counsel: Mr R J de Meyrick (Plaintiffs) Mr I L Harvey (First Defendant) Mr S Fitzpatrick (Second Defendant)