The 8 September 2022 decision of the Victorian Civil and Administrative Tribunal (Tribunal) in Curie v Mornington Peninsula Shire Council  VCAT 1052 (8 September 2022), seen here, (Curie) has enlivened some uncertainty as to the interpretation of Clause 52.29 of the Victorian Planning Provisions (VPPs) Planning Schemes.
The interpretation of Clause 52.29-2 has been historically contentious, with different views being preferred by various members of the Tribunal. Up until recently, it appeared that the Tribunal’s position had been settled, being largely as set out in Peninsula Blue Developments Pty Ltd v Frankston CC (Red Dot)  VCAT 571 (Peninsula Blue) seen here. However, the recent Tribunal decision in Curie appears to have re-enlivened the debate, with the Tribunal in Curie preferring a different view to that which Peninsula Blue had purportedly settled. Ultimately, the decision in Curie may have resulting consequences how proposals which have or seek to provide access to a road in a Transport Zone.
The purpose of Clause 52.29 is to ensure that there is sufficient and appropriate access onto the Principal Road Network. Clause 52.29 of the Planning Scheme details that:
a permit is required to:
- create or alter access to:
- a road in Transport Zone 2; and
- land in a Public Acquisition Overlay if a transport manage (other than a municipal council) is the acquiring authority and the acquisition is for the purpose of the road.
- Subdivide land adjacent to:
- a road in Transport Zone 2; and
- land in 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 contentious phrase of Clause 52.29-2 is “create or alter access to.” This subject phrase has been historically interpreted by the Tribunal in two different ways:
- A narrow interpretation, that only physical alteration of road access, falls within the scope of Clause 52.29-2 and requires a permit. For example, widening of a driveway, movement in location of the driveway, or addition of gates; or
- A broader interpretation, that where an application to use/develop the land from / to which road access is available to a road in a Transport Zone 2, alters the circumstances of the road access by intensifying the use, changing the type of vehicle that will traverse the road access, or increases the number of vehicles that will traverse the road access, this will constitute an ‘alteration of access’ and will accordingly be caught by the Clause 52.29-2 permit trigger.
In recent times, the accepted interpretation of Clause 52.29-2 has been the broader interpretation. This position was espoused by former Deputy President of VCAT Helen Gibson in Peninsula Blue. In Peninsula Blue, Deputy President Gibson relied on a broader interpretation of the word “access” to arrive at this conclusion. She reasoned that though, the word “access” can be construed as a physical access, such as the driveway itself, “access” also means the “opportunity for access.” “Opportunity for access” may be impacted by the amount of vehicles traversing a driveway, or the type of vehicle traversing a driveway. In this regard it was found in Peninsula Blue that if an “opportunity for access” is altered, say by a change in use or development on which the driveway is located, this will constitute an alteration of access for the purposes of Clause 52.29.
The Deputy President concluded that the phrase “create or alter access to a Road Zone” could be one of two things:
- “Any physical change to the opportunity for traffic to approach or enter a Road Zone. 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 gate or gate in a fence or closing an existing gate or opening; and
- 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 in terms of volume, frequency, or type of traffic whether this is more or less than the existing situation.”
In Peninsula Blue Deputy President Gibson noted in relation to the purpose of Clause 52.29 that:
“In my view, having regard to the purpose of Clause 52.29 to ensure appropriate access to identifies roads, and the broad meaning given to that purpose in [other cases], which includes having regard to the effect of the proposal on the operation of the road and on public safety and other matters set out in the decision guidelines, I consider that changes in circumstance generated by a change in use or development of the land that would alter the nature of traffic access to the road, either in terms of volume, frequency or type of traffic, as well as physical changes to works on the land that facilitate access to the road are all matters that will give rise to the need for a permit under Clause 52.29.”
Applying the broad reading of Clause 52.29-2 as detailed in Peninsula Blue has led to the view that any proposal to use or develop land, that would ultimately change the volume, intensity or type of vehicle that would use access to a Transport Zone 2, would require a permit for the alteration of the access. This reasoning has ultimately been called into question in the recent decision in Curie.
Curie involved an application for review of a decision of Mornington Peninsula Shire Council to grant a permit to use a land for an equine veterinary centre, alteration of the access to a road, display of signs and associated works.
The proposed development in Curie did not involve any physical alteration to the driveway which provided access from the land to the road in a Transport Zone 2, being that it did not involve driveway widening, or a change in the driveway location or construction. However, the proposal was considered to potentially result in an intensification, as a result of increasing the number of cars that would likely travel along the driveway each day, as well as altering the types of vehicles that would use the driveway; by increasing the number of horse carrying trailers.
In Curie Member S P Djohan disagreed with the position in Peninsula Blue, being that an intensification of an existing use fell within the scope of Clause 52.29-2 being an “alteration of access” and triggered the need for a permit, even where no works were proposed. Instead, S P Djohan found that where there is no physical alteration to the road access (e.g. driveway), there is no need for a permit. The primary reasons provided by Member Djohan are summarised as follows:
- The Planning and Environment Act 1987 (Vic) allows applications for permits to be made for the use and development of land. A planning scheme cannot require a permit for “changes in circumstances generated by a change in the use or development of land, unless those changes themselves amount to the use or development of land.” and
- “The intensification of an existing use is not a separate category of use under the Act that is regulated under the Act or under the scheme. There is nothing in the Act that allows for an application for a permit to be made for a “change in circumstance generated by a change in development.”
Ultimately in Curie, Member Djohan suggested that Peninsula Blue was wrongly decided, and that the meaning of ‘alteration of access’ for the purpose of Clause 52.29 should be only construed as a physical manifestation of the works on the land, and not a change in the opportunity to access a road zone.
As a consequence of the decision in Curie, it appears that the current position of the Tribunal is that if a landowner applies for a permit to use/develop their land which result in changes to traffic movements or intensities, a permit would not be required under Clause 52.29 to ‘alter the road access’ if no physical works were proposed. Whilst this may be a positive development for permit applicants, for neighbouring landowners and road managers this may present a number of challenges.
If you have any questions or wish to discuss this E-Bulletin, please reach out to David Vorchheimer or the Melbourne Planning and Environment team.
This article was written by David Vorchheimer, Partner and Shae Kirby, Law Graduate.