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Laneway Disputes Not Always Clear Cut

Rob Bradley

Sometimes you don’t own all the land inside your fences.

Sometimes you don’t own all the land in the Certificate of Title to your property.

Sometimes you do own all the land but others have a right to use it.

An article on today’s Herald Sun (Port Phillip Council threatens to pull down roller-door over Albert Park property dispute) raises a few interesting issues around the ownership of laneways and subsequent disputes

The situation of Justine Cubbin’s property in Albert Park recently reported in the press is a great example. Her Title shows that a small area beside her house is part of her property.

Unfortunately on page 4711 of the Victoria Gazette of 23 September 1908 that land was declared to be a public highway.  She could not be expected to know about that document and even if she could find the document it would have been very difficult for her to realise that the entry in the Gazette listing a lane “off Government Lane between Reed street and Parade to NE and then turning E and N at 99 feet 7 inches E of Pickle street” included her side yard.

The Transfer of Land Act 1958 provides that every Certificate of Title is subject to a number of things which in most cases are not shown on the Title.  One of these is “any public rights of way”.

Whilst there can be many disputes about what constitutes a public right of way (Aitken Partners is litigating one in the Supreme Court at the moment) where a lane is Gazetted as a public highway, unless there is a dispute about the dimensions, there is little doubt.