The interpretation of clause 52.29 and what works constitute an alteration to an access to a road in a Road Zone Category 1 has been the subject of some tension between VicRoads, developers and local councils.

In Grant & Ors v Darebin City Council [2011] VCAT 2364, the Tribunal considered a preliminary question as to whether a permit was triggered under clause 52.29. Specifically, the Tribunal considered whether either:

• the removal of the vehicle access to St Georges Road; or
• the increase in vehicle movements in the right of way which accessed St Georges Road,

constituted an alteration to the access to St Georges Road.

The decision provides some guidance as to what constitutes an alteration to an access for the purposes of clause 52.29.

Before coming to these 2 questions, the Tribunal had to identify the land subject to the clause.

On this point, the Tribunal followed an earlier decision in Mount Eliza Action Group Inc. v Mornington Peninsula SC [2010] VCAT 699 and held that clause 52.29 only applied to land 'lying near, close or contiguous' to the land within the Road Zone Category 1. In practical terms, this means that works within the Road Zone Category 1, such as a new crossover or an alteration to a crossover, do not trigger a permit under clause 52.29 'because such works are not works to (but are works on) a road'.

Accordingly, when identifying the land to which clause 52.29 applies, it is only the land that both adjoins and provides the access to the Road Zone Category 1 that needs to be examined to determine whether access is proposed to be created or altered. It is important to note that what will be adjoining will depend on the facts in each case.

On the question as to whether the proposed removal of the existing access triggered a permit, the Tribunal held that the removal of the access did not constitute an alteration under clause 52.29. The Tribunal relied on the ordinary meaning of the word 'alter' and held that:

"There is a difference between alteration and deletion and in this case the access is being deleted, being replaced by a building with a coffee shop at ground level."

On the question of the use of the right of way, the Tribunal said that was not an alteration and observed that:

"The right of way currently exists and provides access to and from St Georges Road to properties including the subject land. That such access has not been used to the extent [proposed] by the subject land does not take away its right to do so and that does not in any way alter the existing access point being the right of way."

The implications of the decisions in Grant and Mt Eliza Action Group should remain at the forefront of planners' minds when assessing applications that propose to alter existing access, or create new access, to land in a Road Zone Category 1.