Clause 52.29 of the Planning Scheme, Land Adjacent to a Road Zone, Category 1, or a Public Acquisition Overlay for a Category 1 Road, provides (inter alia) that a planning permit is required to “create or alter access to…a road in a Road Zone Category 1”.
This permit trigger has often resulted in applicants being unsure if a permit is required (under Clause 52.09) in scenarios where a new development seeks to retain the existing crossover and access arrangements are unchanged. For example, does the demolition of a single dwelling and its replacement with a new dual-occupancy trigger a permit under Clause 52.29 if the proposal retains the existing 3m wide crossover and driveway to service both dwellings?
Previous VCAT decisions have not provided a clear and consistent answer to such a question. However, a recent VCAT decision provides the clarification applicants have been waiting for.
In Peninsula Blue Developments Pty Ltd v Frankston CC  VCAT 571, the Tribunal has clarified the interpretation of the Clause 52.29 permit trigger as summarised below:
In clause 52.29, the phrase “create or alter access to a road in a Road Zone Category 1” means:
Any physical change to the opportunity for traffic to approach or enter a road in a Road Zone Category 1. This includes creation of a new access, alteration to an existing access or removal of an existing access. It may involve new buildings and works or alteration to existing works or development, such as creating a new opening or gate in a fence or closing an existing gate or opening.
Any change to the use or development of land that may result in changes to the opportunity for traffic to approach or enter a road in a Road Zone Category 1 in terms of the volume, frequency or type of traffic whether this is more or less than the existing situation.
Based on recognised principles of law applying to existing use rights, a permit is not required under clause 52.29 simply as the consequence of an intensification of an existing use or a change in the activities of an existing use when no other permit is required for use or development. However, if a permit (or amendment of a permit) is required for use or development under any provision of the planning scheme, which will change traffic access to a road in a Road Zone Category 1, then a permit is required under clause 52.29 even though there may be no change to the physical means of current access arrangements in terms of new buildings or works. Equally, the need for a permit under clause 52.29 may operate independently of the need for a permit under other provisions of the planning scheme if no permit is required for the change but the change will give rise to the type of circumstance described above.
In clause 52.29 “alter” includes “delete”.
For the first permit trigger in clause 52.29 to apply, the creation or alteration of access to a road in a Road Zone Category 1 must be to (i.e. directly to) the road in the Road Zone Category 1 to which the land is adjacent in the context of the scope of operation of clause 52.29.
The implication for permit applicants is that a permit will be triggered under Clause 52.29 more often than you might otherwise have thought. It is also noteworthy that VicRoads is a determining referral authority for permit applications triggered by Clause 52.29 and their opinion could potentially stifle your proposal.
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