Blog

September 13, 2016 Written by: Glossop Town Planning

The latest interpretation of the words ‘creating or altering’ access to a Road Zone Category 1 at VCAT

The latest interpretation of the words ‘creating or altering’ access to a Road Zone Category 1 at VCAT

President Gibson’s decision in Peninsula Blue Developments Pty Ltd v Frankston CC, resulted in significant ramifications for planning permit applications involving abutting land in a Road Zone Category 1.

The hearing was particularly significant in relation to the interpretation of ‘Clause 52.29 Land Adjacent to a Road Zone Category 1 or a Public Acquisition Overlay for a Category 1 Road’. 

The Deputy President interpreted the phrase to ‘create or alter access’ as:  

  • 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.

In effect, Peninsula Blue Developments resulted in more proposals triggering a planning permit under Clause 52.29 and as a consequence, more matters were referred to VicRoads. It also resulted in a change to the way in which proponents typically treated traffic generated by a new development (even where the access itself was not physically altered).

In D'Agostino v Greater Shepparton CC [2016] VCAT 1355, another division of the Tribunal seemed to take a different view to Peninsula Blue Developments.

In D’Agostino, Senior Member Wright QC held:   

  • The first point to note is that in the Peninsula Blue Developments case the land in question was not directly accessed from a Road Zone Category 1, and so clause 52.29 did not apply. This means that what the Tribunal said was dicta, which lessens the authority of the decision as establishing a point of principle.
  • Secondly, it is well established that like other instruments of a legislative character a planning scheme must be construed in accordance with the ordinary and everyday meaning of the words used. In the case of clause 52.29 the phrase “create or alter” clearly contemplates a physical change to the access. The gloss suggested by the second limb of the Tribunal’s conclusion in Peninsula Blue Developments extends this to a change or alteration to the use of the land served by the access. It reads into the provision words that are simply not there. The circumstances do not justify this imposition.
  • For these reasons the Tribunal is not satisfied that the allegation of a breach of clause 52.29 can be made out.

It will be interesting to see how other divisions of the Tribunal respond to the findings in D’Agostino.

To find out the implications of these decisions on your proposal, call or email us today! mail@glossopco.com.au