Thursday 13 December 2018

Let’s get this show on the road!

Often, our clients' projects require the temporary or permanent use and occupation of land to construct improvements, or to support nearby construction.

If some or all of that land is a road at law, it can only be used for the project if it is temporarily closed, which is not always possible, or discontinued.  The danger of not properly discontinuing the land's status as a road is that the use or occupation of the land may amount to public nuisance, with legal consequences. 

What is a road?

In Victoria, a road includes any area of land that is a highway at common law.  More specifically, a highway is an area of land, at soil level or in stratum, over which the public may pass on or over at all times.

It is not necessary that land is physically a road for it to be a highway at common law.  The land may be suitable only for pedestrian access or for use by bicycles or horse-riders, rather than cars or other vehicles.  Even where land is only capable of passage by ferry, the ferry route itself may be a highway.  As long as the land meets the legal requirements, it will be a highway, and therefore a road.

Roads also include areas of land (at soil level or in strata) regulated under statutes, such as the Road Management Act 2004 (RM Act).  Under the RM Act, roads are generally categorised as freeways, arterial roads, non-arterial State roads and municipal roads.

Who owns roads?

If you wish to temporarily or permanently access or occupy land which has the status of a road, you will probably need to negotiate with the land owner on the scope of the required rights and changes to the road's status.
As a general principle, the Crown owns land over which there is a freeway or arterial road, regardless of whether the road is at surface level or in stratum, as well as certain land declared as road under general legislation governing Crown land.  Otherwise, roads are generally owned by the municipal council of the municipal district in which the road is located.

Acquiring and dealing with land which is a road

If land is a road, it is generally not possible to exclusively access or occupy the land unless its status as a road is temporarily paused (where this option is available under legislation) or permanently discontinued.  First, it is necessary to identify the relevant legislative power to temporarily close or discontinue the road, and then to do so in accordance with the power.  

These powers exist in a wide range of statutes, such as the RM Act in relation to roads generally, and  the Project Development and Construction Management Act 1994 and the Major Transport Projects Facilitation Act 2009 in relation to roads over land which is required for a particular project.

A number of formalities may be required before a road can be discontinued, for example:
bringing the land within a declared project area;
public notification and/or consultation;
obtaining the consent of other parts of Government; and 
amending a planning scheme.

Depending on the applicable legislative power and exemptions, discontinuation of a road can be achieved in as little as 28 days or take as long as 18 months.  
Once the road has been formally discontinued in accordance with the relevant power, the owner of the land can deal with that land as it pleases.  As a general rule, where roads on Crown land are discontinued, the underlying land normally returns to unreserved Crown land status.

Need some help?

Victoria's roads are governed by a complex legal framework.  Our Property Team has expertise in advising Government clients on a broad range of issues that arise when accessing and acquiring rights to land comprising a road.

For further advice, please contact: 

Managing Principal Solicitor
03 9947 1430

Managing Principal Solicitor
03 9947 1410

Principal Solicitor
03 9947 1493

Senior Solicitor
03 9947 1433

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