Answer: when it turns into a laneway.
In an earlier post here, I discussed adverse possession of an unused laneway where the paper title remains with the old developer who subdivided the land.
Last week's decision of McMillan J in Anderson v City of Stonnington  VSC 374 highlights another issue that needs to be considered before making such a claim.
In Anderson v Stonnington, her Honour considered whether an old laneway in South Yarra subject to two easements was also a public highway at common law. Her Honour reviewed and summarised longstanding authorities on the creation of public highways at common law, particularly where the disputed land is not recorded in title documents as a road. The court concluded that the laneway was a public highway because it had been open to the public and used ‘without force, without secrecy and without permission’ for a very long period of time.
This has implications for an attempt to acquire title to a disused laneway by adverse possession. The general position at common law is ‘once a road, always a road’. It is generally not possible to extinguish a public highway by adverse possession (see Halsbury’s Law of Australia [225 – 1250]). This has now been largely codified in statute (e.g. cl 2(1)(d) of schedule 5 to the Road Management Act 2004 (Vic)). Consequently, anyone considering bringing a claim for adverse possession of an unused laneway will need to consider whether the laneway attained a status of ‘public highway’ at common law. If it has, the claim may be unable to proceed.
Also, McMillan J’s decision may have implications for landowners acquiring freehold rights to disused laneways from councils.
Generally, easement rights, however created and whether or not currently registered, are enforceable (see s 42(2)(d) Transfer of Land Act 1958 (Vic)). This means that old long forgotten easements can re-appear and be asserted by the owner of the dominant land, much to the inconvenience (and often cost) of the owner of the servient land.
Many landowners, particularly in older established suburbs of Melbourne, have purchased disused laneways from their local council. However, those laneways may be subject to easements in favour of their neighbours. This could be particularly inconvenient if the purchaser of the laneway wants to build on that land.
In Anderson v Stonnington, McMillan J considered the following words of clause 14 schedule 5 Road Management Act 2004 (Vic):
A private right of way or easement cannot—
(a) develop or co-exist with a public right of way over the same land…
The plaintiffs argued that this clause meant that their easement rights over the laneway in South Yarra precluded the creation or development of a public right of way over the same land.
However, in rejecting that argument, her Honour held that:
 Nevertheless, in support of their argument the plaintiffs also relied on cl 14 of Sch 5 to the RM Act.93 Schedule 5 to the RM Act deals with the ownership of roads and highways, and the powers and duties of the relevant authorities. The plaintiffs’ argument is that cl 14 of Sch 5 to the RM Act precludes the dedication and use of land as a public highway in circumstances where the land is already subject to a private right of way. For their part, the defendants submitted that the true effect of the provision is precisely the opposite of what was pressed by the plaintiffs; that is, the existence of a public right of way over land automatically prohibits the exercise of a private right of way or easement over that land, regardless of which was first in time.
 The defendants’ construction of the provision must be preferred. The language of cl 14 to Sch 5 of the RM Act clearly subordinates a ‘private right of way or easement’ to a ‘public right of way over the same land’, such that the former is eclipsed by the latter regardless of which was first in time. The RM Act does not define ‘public right of way’, but on any view that term must include a ‘road’ within the meaning of that Act or a ‘public highway’ within the meaning of the common law (which are equivalent for the purposes of the RM Act). It follows that, since 1 July 2004, all public rights of way have existed to the exclusion of private rights of way to the extent that the two overlap.
 For the purposes of this case, it is enough to say that this result defeats the plaintiffs’ contention that cl 14 of Sch 5 to the RM Act operates to preclude the creation of a public right of way over the laneway because of the pre-existing easement. It may be that, if I find that the laneway is a road within the meaning of the RM Act, the effect of the provision is to extinguish whatever private rights the plaintiffs may enjoy over the laneway. However, the defendants did not press the point, and correctly so. In any case, it is not necessary to decide for the purposes of dealing with the declaratory relief sought by the plaintiffs.
If, as McMillan J suggests, the creation of a public highway extinguishes easement rights, then purchasers of laneways from councils will take those rights free from any old (possibly forgotten) easements over land.
Sam Hopper and Cassandra Siarabalos