Over the past five years, there has been considerable debate between councils, developers and VicRoads about the interpretation of clause 52.29. The controversy has largely centred on what constitutes an alteration to access to a road in a Road Zone – Category 1.
Until recently, the Victorian Civil and Administrative Tribunal (VCAT) had interpreted clause 52.29 as only applying if there was a physical alteration to access. Our e-Alert in January 2012 explained the position that had been taken, and has continued to be taken by the Tribunal.
The recent decision in Peninsula Blue Developments Pty Ltd v Frankston CC (Peninsula Blue Developments) represents a departure from the earlier decisions in Grant & Ors v Darebin City Council  VCAT 2364 (Grant) and Mount Eliza Action Group Inc. v Mornington Peninsula SC  VCAT 699 (Mount Eliza).
We expect that Peninsula Blue Developments will now be preferred.
Why Peninsula Blue Developments is important?
In Peninsula Blue Developments, VCAT considered that clause 52.29 not only applied to a physical change to access, but also to any change to the use or development that may result in changes to the opportunity for traffic to approach or enter the road differently.
Without providing an exhaustive list of the types of changes that would trigger a permit under clause 52.29, VCAT indicated that a change in the opportunity for traffic to approach or enter a road in terms of volume, frequency or type of vehicles would trigger a permit. The Tribunal added that a permit will be triggered even if traffic volumes and frequencies increased or decreased from the existing situation.
Peninsula Blue Developments broadens significantly the circumstances in which a permit will be required under clause 52.29, which will likely trigger a permit in many more cases than had previously been the practice. Further, there are likely to be other changes to access, not identified by VCAT, that will trigger a permit. One change could be a change to the time that peak vehicle movements occur. We expect that more changes requiring a permit will arise over time.
For any land adjoining a Road Zone Category 1, councils will need to:
- specifically consider whether any changes to access may occur, including the type contemplated by VCAT, before giving advice about whether a permit is required
- carefully review all applications to confirm whether a permit is required under clause 52.29. If councils have any doubt about whether any change to access may occur, further information should be sought from the permit applicant.
VCAT also indicated that:
- in the case of an application for subdivision on land adjacent to a Road Zone Category 1, a permit is required and must be referred to VicRoads even if access is via a secondary road and there is no direct access to the Road Zone Category 1
- in the case of creating or altering access, a permit is only required for direct access to the Road Zone Category 1 and no permit is required for indirect access such as via a secondary road
- contrary to the position in Grant, a permit is required under clause 52.29 to remove an existing access to a Road Zone Category 1
- without giving any detailed reasons, a change to access resulting from an intensification of an existing use right will not trigger a permit.