Clause 52.29 Land adjacent to the Principal Road Network sets out the following planning permit triggers:
A permit is required to:
- Create or alter access to:
- A road in a Transport Zone 2.
- Land in a Public Acquisition Overlay if a transport manager (other than a municipal council) is the acquiring authority and the acquisition is for the purpose of a road.
- Subdivide land adjacent to:
- A road in a Transport Zone 2.
- Land in a Public Acquisition Overlay if a transport manager (other than a municipal council) is the acquiring authority and the acquisition is for the purpose of a road.
The questions around what constitutes “alteration” to access have been the subject of numerous Victorian Civil and Administrative Tribunal (VCAT) decisions, including recently in Curie v Mornington Peninsula SC [2022] VCAT 1052.
In the Curie case, decided on 8 September 2022, the Tribunal agreed with statements made in an earlier decision (Greater Shepparton City Council v D’Agostino [2016] VCAT 1355) in which the Tribunal found that:
… the phrase “create or alter” clearly contemplates a physical change to the access. The Decision in Curie found that a change in terms of volume, frequency or type of traffic attending land is not of itself a change in the use of land, and there is no warrant to read into clause 52.29-02 that the permit required under that provision is only required where another provision of the planning scheme requires a permit.
This decision is in contrast to the earlier decision in Peninsula Blue Developments Pty Ltd v Frankston CC [2015] VCAT 571 (28 April 2015), also a red dot decision, which found that 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.
This is an issue that different Councils have dealt with differently overtime. The more recent decisions in Curie and Greater Shepparton City Council (above) provides greater certainty around the interpretation of this provision and when a permit is (or is not) triggered under Clause 52.29 for the creation or alteration of access in a Transport Zone.
Practitioners can rely on Curie, to confirm that unless there is a physical change to the access arrangements onsite – no permit is required under Clause 52.29.
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