Common Land vs Carriageway Easements VCAT’s Position

Providing access to small scale multi-dwelling developments is not rocket surgery.  Clause 52.06, Car Parking, of the Victorian Planning Provisions (VPPs) provides a clear set of standards for the design of accessways, carparks, ramp gradients, manoeuvrability requirements and alike.

A large number of small-scale multi-dwelling developments rely on a ‘shared’ vehicle access arrangement. However, once the design is approved very little guidance is provided within the VPPs on the method of maintaining the legal access to all lots as part of subdivision. Traditionally, Councils have preferred the use of ‘common land’ as a means and ensuring legal access to all lots.

However, the option of utilising a carriageway easement to legally maintain access has some significant advantages. The most notable of which are:

  1. Avoiding the need to set up and maintain an ‘owners corporation’ over the common land and;
  2. The use of carriageway easements will result in the increased size of land parcels.

The second point above is particularly noteworthy in situations where residential zones include a mandatory minimum lot size.

Bayside City Council is currently seeking to implement a mandatory 400m2 minimum lot size over approximately 80% of their residentially zoned land.  The explanatory material published with that amendment includes the following two illustrations. The two illustrations depict what Council perceives to be approvable and what is not under the draft provisions.


Extract from Amendment C140 Managing Growth in the Neightbourhood Residential Zone, Bayside Council, Pg4.

The example subdivisions shown above illustrate that if ‘common land’ is used for access (as shown right) a 925m2 lot could not be subdivided and meet the mandatory 400m2 minimum lot size. However, the illustration below shows the same development proposal (as the unsupportable one above) but this time employs a carriageway easement to provide legal access to the rear lot. In doing so, both lots are now registered on title as greater than 400m2 and meet the minimum lot size requirements.Picture2

As stated previously, Councils generally favour the use of ‘common land’ over ‘carriageway easements’ to maintain access rights. However, in a recent VCAT decision, Farzaneh v Boroondara CC [P234/2015], the Tribunal has upheld the applicant’s right to utilise a carriageway easement arrangement and in doing so has provided developers with some useful tools to fight against any suggestion by Council that legal access must be provided via common land.

In Farzaneh Clause 1 was representing a client that was seeking to convert an existing ‘common land’ driveway into a ‘carriageway easement’ arrangement.  The Council ardently opposed the change maintaining that the use of common land was the preferred mechanism for maintaining legal rights of access.

 In dismissing Council’s concerns the Tribunal noted:

  1. It is, of course, important that lots have satisfactory and lawful access. However, easements of way, including carriageway, are a common, lawful and satisfactory means of achieving such access.
  1. The Council suggested that its solution is in the better accordance with “orderly planning”. I do not agree with that proposition….
  1. The invention of forms of subdivisions involving common property administered by bodies corporate are a relatively recent invention in the history of real property law. They are a useful and commendable invention that serves well in relation to various, usually complex, subdivisions. However, they are rather cumbersome, inconvenient and troublesome in relation to the simple two lot subdivisions. Bodies corporate have to be maintained and administered indefinitely into the future. I would not favour the use of common property and a body corporate where a simple subdivision, with or without easements of way, would suffice.
  2. Where applicants seek to use easements I would not force a body corporate upon them in the absence of a particular reason for doing so.

This decision provides strong support for applicants to argue against any Council that demands the use of ‘common land’ over ‘carriageway easements’ and ensures that an 800m2 parcel of land can actually be divided into two 400m2 lots.

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