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: 

Anthony Leggiero

Managing Principal Solicitor

03 9947 1430

Margaret Marotti

Managing Principal Solicitor

03 9947 1410

Eloise Connelly

Principal Solicitor

03 9947 1493

Elizabeth Wortley

Senior Solicitor

03 9947 1433

Unlicensed to chill - why an esky was deemed a motor vehicle

A man was recently fined almost $1,500 for apparently operating an unregistered vehicle, without a licence.

So, why did that become a story, in The Age, the Herald Sun and the ABC?
Answer: the vehicle was an esky, and the man was riding it along a footpath.

But there is no need to panic - it is still possible to safely and lawfully transport cold beverages, whether by esky, 'chilly bin', or other preferred type of beverage conveyance.

Under the Road Safety Act 1986, it is an offence to use an unregistered motor vehicle on a highway (s 7) and to drive a motor vehicle on a highway (s 18) (unless there is an applicable exemption).  Conventional use of an esky will not contravene either provision, but as this recent news shows, the Road Safety Act can apply more broadly than the public might expect.

First, a footpath can be a highway under the Road Safety Act. A highway includes both 'roads' and 'road related areas'. A footpath or nature strip, which is adjacent to a road, is a road related area (as is, for example, an area that is open to the public and is designated for use by cyclists or animals).

Secondly, any vehicle with a motor may be a motor vehicle, should it be used on a road or road related area. A motor vehicle is any 'vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle'.  So even if  you attach a motor to your esky, it will still only be a motor vehicle if it is used, or intended to be used, on a highway. That needs to be considered in relation to each particular vehicle or esky (rather than motorised eskies as a class). While it is doubtful that any motorised esky is intended to be used on a highway, it will generally be sufficient if it is actually used on one.

There are also exemptions which could be useful for prospective operators of motorised eskies (and like vehicles) to know about. For example, if one walks with one's motorised esky, rather than rides it, and it has a maximum speed of less than 7 km/h, it would be exempt by an order that has been made under s 3(2) of Road Safety Act. The same order also exempts certain scooters and bicycles. Motorised wheelchairs are exempt under the Act itself.

This case is (hopefully) somewhat unusual. That said, public authorities often have other issues arising under the Road Safety Act (such as in relation to land under their control), or under the Road Management Act 2004, Transport Integration Act 2010, or about roads generally, with which we can assist.

For such road related queries, please contact:

Mark Egan
Principal Solicitor
mark.egan@vgso.vic.gov.au

Anthony Leggiero
Acting Managing Principal Solicitor
anthony.leggiero@vgso.vic.gov.au