Costly long and winding road

TYNONG couple Tas and Lyn Williams have lost what they consider is a major part of their property, but are faced with a massive legal action to try to prove their ownership.
They are devastated because Cardinia Shire Council has moved to transfer land that they consider has been theirs since 1979.
When they bought the land at 38 Railway Avenue their title clearly stated that they were proprietors of land coloured red, their block, and land coloured blue, which is also designated as Goodwin Street.
This wording has opened a can of worms for the couple and the council.
Mr and Mrs Williams believe they own the part coloured blue, along with No. 38 and the council says it owns the land.
Goodwin Street is shown on subdivision plans as running from Railway Avenue to Howitt Street, which in turn links Goodwin and View Streets, but the streets have been unused for 100 years.
The council claimed Goodwin Street and deemed it as not reasonably required for use as a public road and decided to sell it for use as a post office.
I am unable to find out why Goodwin Street was attached to the title of No. 38.
This attachment effectively made Goodwin Street two lots now known as ‘one’ and ‘two’ with ‘one’ being the section the Williams claim.
A transfer in May 1904 listed the property as the land coloured red together with right of carriageway over Goodwin, Howitt, and View Streets shown on the subdivision, but no attachment.
Yet, a transfer in 1913 shows Goodwin Street and No. 38 as under the same proprietorship, and in 1920 a transfer shows no proprietorship over the road.
A transfer document dated June 1910 asks for Goodwin Street to be consolidated with No. 38, but still lists the street as an encumbrance on the title.
I am unable to find any document that clearly attaches the ‘blue’ section of Goodwin Street to No. 38 and I am told the council has tenure of the road because it has been marked on subdivision plans as a street.
Notwithstanding that, another subdivision plan clearly allows for section one of Goodwin Street to be attached to No. 38, probably because of the title reference.
The family has already paid for a barrister to present a case to the council that cost them $3000, but there appears to be little evidence to support a claim over what has been listed as a road ad infinitum for more than a century.
One legal adviser said the title clearly stated that the part marked blue belonged to the title and therefore owned by the same proprietor.
Another told me that the title indicated ownership of only No.38 with an underlying right to section ‘one’, but of no value.
I can’t see a way through it for the family unless they can find someone who has a document proving consolidation of the street to No. 38.
An adverse possession claim is unlikely to succeed under new laws if the land is public under local government tenure.
I am told that the council has offered the couple $7000 as compensation, with a possibility of also covering legal expenses.
This can be done on the grounds that Mr Williams has kept the land and the other section of Goodwin Street in immaculate condition for many years.
If the Williams contest the council action in court and lose they could be faced with enormous legal costs.
I am a journalist and not a legal expert and can work only under my rule that the ‘importance of journalism is the threat of fairness’.
The threat of fairness does not apply to legal proceedings because the law relies on litigants having the ability to pay high legal fees.
Because Mr and Mrs Williams had only their title to go by they could be expected to take the wording as giving them ownership of the section coloured blue even though they were aware the area was once delineated as a road.
Their legal counsel believes that the road was consolidated on to their land and that the Titles Office says it is part of their property because it was consolidated.
The big question is how and why did it become part of the title and be marked on the title in this unusual way.
Why was it divided in half to leave half a street?
The transfer is an indication that it was not intended by the council of the day to be used as a road.
Mr and Mrs Williams’ solicitor said owners were entitled to rely on what was on their title.
With this I agree, but I also see the land as continually delineated as Goodwin Street, even named that on the title.
I am also at a loss to understand why the council did not take what has been the normal process when a road easement becomes redundant to offer the area to abutting owners, which was not done.
Both parts of Goodwin Street appear to have been transferred into council ownership on Tuesday 10 October this year, without agreement from the Williams.
They are now faced with spending tens of thousands of dollars to test their rights in court, but cannot risk such an action.
My view is that based on their title it would be ‘fair’ to at least swap the section of land required for a post office for the section of Goodwin Street that still abuts their property, but faces Howitt Street at the north end of No. 38.