REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

Interpretation and application of clause 52.29 - meaning of "create or alter access to a road in a Road Zone Category 1" - scope of clause 52.29

In clause 52.29, the phrase "create or alter access to a road in a Road Zone Category 1" means:

• 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.

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. Equally, the need for a permit under clause 52.29 may operate independently of the need for a permit under other provisions of the planning scheme if no permit is required for the change but the change will give rise to the type of circumstance described above.

In terms of the scope of clause 52.29, which applies to land adjacent to a road in a Road Zone Category 1, and the requirement for a permit to create or alter access to a road in a Road Zone Category 1, the relevant Road Zone Category 1 in both the scope and the permit requirement should be the same. There is no justification for interpreting the provision as applying to land adjacent to Road A in a Road Zone Category 1 but the creation or alteration of access is either to:

• A different road in a Road Zone Category 1; or
• To the same or a different road in a Road Zone Category 1 via some intermediate road.

For the first permit trigger in clause 52.29 to apply, the creation or alteration of access to a road in a Road Zone Category 1 must be to (i.e. directly to) the road in the Road Zone Category 1 to which the land is adjacent in the context of the scope of operation of clause 52.29.

Interpretation of clause 52.29 - meaning of "create or alter access to a road in a Road Zone, Category 1" - Mount Eliza Action Group Inc v Mornington Peninsula SC not followed - scope of clause 52.29 considered

Peninsula Blue Developments Pty Ltd v Frankston CC (Revised) (Red Dot) [2015] VCAT 571

1. Pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998, I make the following declarations:
   • (a) No permit is required for use of land in the Road Zone pursuant to clause 36.04-1.
   • (b) No permit is required pursuant to clause 52.29.
   • (c) Roads Corporation (VicRoads) is not a determining referral authority in respect of the permit application in this proceeding.
2. The hearing on 18 May 2015 for 4 days before two members is confirmed.

Mr Michael Freeman, team leader, Road Access Planning

1. This is a proceeding under section 80 of the Planning and Environment Act 1987 by the permit applicant to review conditions in a permit issued by the responsible authority:

To construct a seventeen (17) storey building containing sixty three (63) dwellings and offices.

1. The conditions appealed against include several requiring modifications to the plans relating to access, parking and loading off Bay Lane; a requirement to transfer a minimum of 3 metres of land along Bay Lane as a road reserve; and construction, drainage and other works to be undertaken in Bay Lane.
2. The applicant seeks to review these conditions relating to Bay Lane and access to the site, as well as other conditions.
3. Bay Lane is a laneway approximately 3 metres wide at the rear of the subject site giving access to Nepean Highway. The significance of Bay Lane in the context of this proceeding is that whilst the site has a frontage to Davey Street, which is in a Road Zone Category 1 (RZ1), all vehicular access to the site will be from Nepean Highway (to the west) via Bay Lane.
4. In its consideration of the permit application, Frankston City Council originally referred the permit application to VicRoads as a referral authority under section 55 of the Planning and Environment Act 1987 resulting in VicRoads objecting to the grant of a permit. The council then gave VicRoads notice of the application pursuant to section 52 of the Planning and Environment Act 1987. VicRoads objected to the proposal. Following receipt of VicRoads' response, council informed VicRoads that the application was exempt from third party notice and review, that the section 52 notification had been given in error and that VicRoads' response would be assessed as "comments".
5. VicRoads did not respond to the application for review by submitting a statement of grounds to the Tribunal in the belief that it did not have an entitlement to do so given the permit application was exempt from third party notification and review and VicRoads was not a referral authority.
6. VicRoads has now applied to be joined as a party pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998. It also seeks a ruling from the Tribunal as to whether it is a determining referral authority for the proposal as a result of:
   • Clause 36.04-1 of the Frankston Planning Scheme for use of land in the Road Zone; and
   • Clause 52.29 of the scheme for alteration of access to a road in a Road Zone Category 1.
7. At the practice day hearing, I joined VicRoads as a party pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 and directed it to file and serve a statement of grounds, which it has now done. I reserved my decision about the status of VicRoads as a referral authority and the need for a permit under clauses 36.04-1 and 52.29.
8. After consideration of the submissions made by the parties, I have determined that no permit is required pursuant to clauses 36.04-1 or 52.29, and that VicRoads is not a determining referral authority for the following reasons.

1. The subject land is included in a Commercial 1 Zone (C1Z). Under the C1Z applications for buildings and works are exempt from third party notice and review rights.[1]
2. A permit is required under clause 52.06 to reduce car parking. Under clause 52.06-4, this permit is also exempt from third party notice and review rights.
3. Clause 52.29 relates to Land Adjacent to a Road Zone Category 1, or a Public Acquisition Overlay for a Category 1 Road. Under clause 52.29, a permit is required to:
   • Create or alter access to:
     • A road in a Road Zone, Category 1.
     • Land in a Public Acquisition Overlay if the purpose of acquisition is for a Category 1 road.
   • Subdivide land adjacent to:
     • A road in a Road Zone, Category 1.
     • Land in a Public Acquisition Overlay if the purpose of acquisition is for a Category 1 road.
4. With respect to the referral of applications, clause 52.29 provides as follows:

An application to create or alter access to, or to subdivide land adjacent to, a road declared as a freeway or arterial road under the Road Management Act 2004, land owned by the Roads Corporation for the purpose of a road, or land in a Public Acquisition Overlay if the Roads Corporation is the acquiring authority for the land, must be referred to the Roads Corporation under Section 55 of the Act. ...

1. Clause 36.04 sets out the controls for land in a Road Zone Category 1 (RDZ1). Clause 36.04-2 provides that a permit is required to construct a building or construct or carry out works for a use in section 2 of clause 36.04-1. This includes dwellings and offices, but not a use listed in clause 62.01.

IS A PERMIT REQUIRED PURSUANT TO CLAUSE 36.04-1?

1. The council says that the application does not propose any works within the RDZ1 along Davey Street or within Bay Lane and no part of the subject land is within the RDZ1.
2. VicRoads submits that Bay Lane and the crossover from it to Nepean Highway serve no other purpose than to provide those properties that have abuttal to Bay Lane with access to Nepean Highway. It submits that the real and substantial purpose of Bay Lane and the crossover on Nepean Highway is defined by the dominant use occurring on the properties that rely on them for access. It relies on the case of Marble Swirl Holdings Pty Ltd v Kingston CC[2] in support of its proposition that Bay Lane does not have a separate character or purpose as a road. Rather, its character or purpose is integral to the existing (or proposed) uses carried out on the properties that rely on it for access.
3. In Marble Swirl, the Tribunal was required to consider the characterisation of an access-way on land in a Residential 1 Zone to service a proposed mixed use development in a Business 2 Zone. The Tribunal held that it could not consider the access-way as use of the land for a separate purpose:

[15] The purpose of the access-way is an integral part of the dominant use or uses to which the subject land is put, because it is the dominant use or uses which need that access-way to satisfy their parking requirement under the scheme. The access-way does not have a separate character or purpose. It has a subservient purpose.

[16] To the degree that the access-way serves the supermarket, that is its essential character. To the degree that the access-way serves the apartments, that is its character. It takes its character or colour from its masters, from the real and substantial purpose to which the land is put.

1. In my view, the facts in Marble Swirl need to be distinguished from the facts in this proceeding. In Marble Swirl the access-way was located on privately owned land in the Residential 1 Zone. The access-way was not located on a public road.
2. In section 3 of the Planning and Environment Act 1987, "road" is defined as follows:

Road includes highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not

1. In the present case, the council says Bay Lane has its own status as a road under the Road Management Act 2004. The council and the applicant assert that it is a public road. Although Bay Lane does not appear to be included in the council's Register of Public Roads on its website, in my view nothing turns on this. Bay Lane falls within the definition of "road" in the Planning and Environment Act 1987. Bay Lane is not private land in the same way as the land was in Marble Swirl over which the access-way was proposed.
2. I am satisfied that the works proposed to Bay Lane and its intersection with the Nepean Highway are roadworks for the purpose of use of this land for a road. Pursuant to clause 62.01, any requirement in the planning scheme relating to the use of land does not apply to the use of land for road.
3. In a Road Zone, under clause 36.04-1 any use listed in clause 62.01 is a section 1 use - permit not required. A permit is not required to construct or carry out works for a use in section 1 of clause 36.04-1. There is thus no requirement for a permit pursuant to this provision for any part of the roadworks falling within the RDZ1 at the intersection of Bay Lane and Nepean Highway.
4. With respect to the roadworks within Bay Lane, which are not within the RDZ1, clause 62.02-2 provides that buildings and works for roadworks do not require a permit unless specifically required by the planning scheme. Bay Lane is within the C1Z. There is no specific requirement in the C1Z to obtain a permit for roadworks.
5. I therefore find that no permit is required for roadworks in Bay Lane under clause 34.01 for use or development in the C1Z, or under clause 36.04 for the use or development of land in the Road Zone RDZ1.

1. VicRoads submits that the proposal will trigger a requirement for a permit pursuant to clause 52.29 of the Frankston Planning Scheme because the proposal will alter access to a road in a Road Zone Category 1.
2. VicRoads says that the requirement in clause 52.29 for a permit to "create or alter access to a road in a Road Zone Category 1" should not be interpreted as referring only to works to either construct or modify an accessway or crossover. It says that 'access" should not be interpreted as only meaning development. "Access" is the purpose of development, not the development itself. To the extent that the Tribunal in Grant and Ors v Darebin CC[3] held otherwise, this decision is wrong. The popular interpretation of "access" meaning development is not an appropriate interpretation as it, in no way, promotes the purpose of clause 52.29, which is (relevantly):

1. VicRoads relies upon the consideration of what constitutes "appropriate access" in Longwarry (East Bound) & Ors v Cardinia SC & Ors[4] in support of this proposition.

1. In addressing VicRoads' position and the question of whether a permit is required under clause 52.29, two issues arise:
   • What is meant by the phrase "create or alter access to a road in a Road Zone, Category 1"?
   • What is the scope of application of clause 52.29?
2. The first issue as to the meaning of the phrase "create or alter access to a road in a Road Zone, Category 1" is a question of statutory interpretation.
3. The second issue as to the scope of clause 52.29 is governed by the provision in the planning scheme which sets out the scope of the clause as follows:

This clause applies to land adjacent to a Road Zone, Category 1".

This too involves a question of statutory interpretation in terms of what is meant by the word "adjacent".

What is the meaning of "create or alter access to a road in a Road Zone, Category 1"?

1. Clause 52.29 was introduced into the new format planning schemes as part of the Victoria Planning Provisions.
2. In the Report of the Advisory Committee on the Victoria Planning Provisions (VVPs) (August 1997), the Advisory Committee said at page 124:

VicRoads (47) wants the permit requirement in Clause 36.04-3 to apply not only to the creation of access to a Category 1 road but also for 'alteration to the access'. VicRoads submits that often additional access to declared roads is permitted without referral to VicRoads. It only comes to its attention when the land is subdivided, after the development has been constructed. Problems also arise when access is not altered but the use changes, e.g. a small service station site redeveloped as a fast food outlet, which could have adverse effects on the road.

A similar submission has been made to the Review of Referral Authorities Advisory Committee.

This Committee considers that the concerns of VicRoads are justified. The community has a huge investment in road infrastructure. It is State Planning Policy, set out in Clause 18.01-2, that:

New uses or development of land near an existing or proposed transport route should be planned or regulated to avoid detriment to, and where possible enhance, the service, safety and amenity desirable for that transport route in the short and long terms.

Very often the efficient functioning of a road may be detrimentally affected by the cumulative impact of numerous small developments just as much as by a single large development.

The Committee is aware that VicRoads is working with DOl to establish a set of standards which can be applied to access onto declared roads which would eliminate the need for referral of such applications. However, until this work is completed, the Committee supports the submission by VicRoads that a permit be required where access to a Category 1 road is being altered as well as created. This should also require referral. This recommendation is seen as an interim measure pending the outcome of the separate Review of Referral Authorities and the work on access standards to declared roads being undertaken by VicRoads and DOl.

In considering this submission, the Committee queried why access is dealt with in the Road Zone. If someone is in a zone abutting a Road Zone, how will they know to look to the Road Zone to see if a permit is required for access? In the Committee's opinion, a note should be included at the end of each zone and overlay drawing attention to the need to check if a permit is required where the land abuts a Road Zone.

1. This commentary was made in the context of considering a submission by VicRoads about the proposed Road Zone in clause 36.04, which is where it was initially proposed to include a permit requirement for access to declared roads. The Committee's recommendations on this issue resulted in a separate particular provision, namely clause 52.29, being established rather than including the permit requirement in the Road Zone.[5]
2. There have been various cases which have considered the meaning of the phrase "create or alter access to a road in a Road Zone, Category 1". One of the cases most often cited is Mount Eliza Action Group Inc v Mornington Peninsula SC[6]. In this proceeding, there was a proposal to use and develop land for a dwelling, including a shed. The land had a frontage to Nepean Highway, which is in a Road Zone Category 1. There were two existing vehicle access points with formed crossovers enabling entry from the Nepean Highway. A question of law arose in the proceeding as follows:

Does the proposed development create or alter access to the Nepean Highway, being a Road Zone Category 1, thereby requiring a permit pursuant to clause 52.29, and requiring that the application be referred to VicRoads pursuant to clause 66 and section 55 of the Planning and Environment Act 1987?

1. The Tribunal held that construction of works on the road itself (i.e. construction of new crossovers from the gates to the pavement of the Nepean Highway) does not trigger a permit under clause 52.29 because such works are not works to (but are works on) a road.[7]
2. Whilst I do not disagree that clause 52.29 is not a trigger for a permit for the construction or carrying out of works (i.e. development) on the road itself, this is because such development does not require a permit in the RDZ1 under clause 36.04-1 for the reasons I have set out above. Such works are roadworks and do not require a permit under clause 62.02-2.
3. In terms of what happens on the land itself adjacent to the road, there is no reference in clause 52.29 for the need for a permit for the construction or carrying out of works to create or alter access to a road in a Road Zone Category 1. The requirement for a permit is simply "to create or alter access to a road in a Road Zone Category 1". In my view, if no permit is required for works as development in clause 52.29 (i.e. for the construction or carrying out of works), I consider this is a sound reason for saying that the phrase "create or alter access to a road in a Road Zone Category 1" means something different to physical development in the form of works. In other words, it supports the VicRoads' proposition that "access" should not be interpreted as meaning development and should not be taken as referring only to works to either construct or modify an access-way or crossover.
4. What, then, does "create or alter access" mean?
5. In considering this issue, the Tribunal in Mount Eliza Action Group noted that the words "access", "create" and "alter" are not defined in the planning scheme or the Interpretation of Legislation Act 1984. Hence, in accordance with clause 71 of the Planning Scheme, they have their ordinary meaning. The Tribunal considered the dictionary definitions of these words and noted:

[17] In the Macquarie Dictionary, 'access' (n) is 'the act or privilege of coming; admittance; approach ...; way, means of opportunity of approach ...'. To 'create' means 'to bring into being; cause to exist; produce ...'. To alter means 'to make different in some particular; modify; ... ; to make different in some respect'.

1. The Tribunal found that the space occupied by each of the two existing gates abutting the highway was an "access" to a relevant road. In the Tribunal's view, as those access points would continue to be used under the proposal, it cannot be said that the proposal would "create" new access points.[8] Accordingly, the real question was whether the application proposed to "alter" access to the highway. In considering this issue, the Tribunal set out VicRoads' contentions as follows:

[20] VicRoads contended that the Tribunal should construe 'alter' widely so that it included:

• 'A change of land use which would see an increase in the frequency and size of vehicles accessing the arterial road' at existing access points.
• 'Works [on the land] that would accommodate more or different vehicles accessing the arterial road ... .'
• A change in land use that involved closure of one or more existing access points to an arterial road, so that VicRoads could 'require any crossovers made redundant ... to be returned to kerb and channel'.
• A new gate in a fence in a farming zone which is to be used only to convey stock along a road.

[21] VicRoads relied on this construction being consistent with what it claimed was the purpose of the provision being 'to ensure appropriate access to identified roads in the context of the operation of the road and public safety'.

[22] VicRoads therefore argued a permit would be required under cl 52.29 because:

• the frequency of vehicle access to the Highway would be increased from the current estimate of 2 times per month to up to 10 times per day;
• the angle at which a vehicle on the land enters the Highway from the southern access point changes to east west, and this changes what a driver could see as he or she enters the Highway; and
• removes a row of trees that currently prevents the road from being accessed at what may be an unsafe location.

1. In addressing these contentions and the meaning of "alter access", the Tribunal looked at the history of clause 52.29.[9] In considering the history of the provision, the Tribunal states that there is nothing in the explanatory material relating to the introduction of the VPPs that sheds light on the purpose of the changes in drafting embodied in clause 52.29: "For example, there is nothing in the report of the Advisory Committee on the Victoria Planning Provisions (August 1997) to the Minister for Planning and Local Government."[10]
2. This statement is not correct. As noted above, the issue of access to declared roads and a recommendation to include "access" as a permit trigger was specifically addressed in the report of the Advisory Committee on the Victoria Planning Provisions (VPPs). There is, therefore, evidence of what the "mischief" was that the provision was intended to address. In statutory interpretation, context (including the mischief which the statute was intended to remedy) is to be considered in the first instance - not only in cases of ambiguity.[11] The mischief that VicRoads was keen to address, (and which the Advisory Committee accepted as justifying an amendment to the proposed provision) included changes in use and development on land resulting in changes to the volume and type of traffic accessing declared roads, which could have adverse effects on the road.
3. In its approach to the statutory interpretation of the meaning of "alter access", the Tribunal in Mount Eliza Action Group noted that the key aides to modern statutory interpretation are context and purpose. It said:

[31] The specified purpose of cl 52.29 is '[t]o ensure appropriate access to identified roads'. It is not, as VicRoads contended, '[t]o ensure appropriate access to identified roads in the context of the operation of the road and public safety'. The latter part of this formulation extracts part of the decision guidelines in cl 52.29.

1. These comments were made before the Tribunal's decision in Longwarry where the Tribunal considered in some detail the meaning of "appropriate" access to identified roads. In Longwarry, the Tribunal found that in considering whether access was "appropriate", traffic and road safety were relevant, as were various aspects of the State Planning Policy Framework and the Local Planning Policy Framework. In the circumstances of the case in Longwarry, the Tribunal considered the current and proposed use of the land and the intensification of that use which would occur as a consequence of the works proposed to alter access to the Princes Freeway.
2. Whilst the facts in Longwarry were quite different to the present case, as a matter of principle I consider that interpretation of the phrase "construct or alter access to a road in a Road Zone Category 1" must have regard to its context within clause 52.29 and this includes having regard to the purpose of clause 52.29. In having regard to that purpose - namely, "To ensure appropriate access to identified roads" - and the meaning of this purpose, it is relevant to have regard to the types of matters set out in the decision guidelines, as the Tribunal in Longwarry did. This leads me to the conclusion that the meaning of "alter access" should not be given the narrow meaning it was given in Mount Eliza Action Group and subsequent cases that rely upon this decision.[12]
3. The interpretation given in Mount Eliza Action Group is that an intensification of the use of land adjoining land in a RDZ1 is not an alteration of access. In reaching this conclusion, the Tribunal in Mount Eliza Action Group said:

[35] I see nothing in the context of the scheme that enables me to give 'alter' the broad construction contended by VicRoads. There are approximately 40 clauses or sub-clauses in the VPP that refer to 'alter' or 'alteration'. In all these provisions, the context is alterations to:

• a building (externally or internally, including adding floor area);
• a structure (such a fence), plant or equipment on land;
• works (such a kerb or a footpath); or
• natural features or the topography of land.

In each case, these references connote alterations in the nature of 'buildings and works'. They do not connote alterations to a land use, including a change of use or an intensification of an existing use.

[36] There is nothing in the history of cl 52.29 that suggests the mischief it was designed to address included the breadth of matters now contended by VicRoads.

1. As previously noted, I find that, in fact, the mischief that clause 52.29 was intended to address included a change of use or an intensification of use.
2. I also consider that the context in which the words "alter" or "alteration" are used in other parts of the VPPs, is not necessarily the same as the way in which the word "alter" is used in the context of clause 52.29 or determinative of its meaning. In clause 52.29, the word "alter" refers to "access". The word "access" is a noun. "Access" means "way, means or opportunity of approach or entry"[13] or "approaching or being approached in various senses"[14].
3. "Access" is used as a noun on numerous occasions in the State Planning Policy Framework in contexts where it does not mean physical development. For example:
   • Improve access by walking, cycling and public transport to services and facilities for local and regional populations.
   • Maintain access to productive natural resources and an adequate supply of well-located land for energy generation, infrastructure and industry.
   • Improve access to job-rich areas across Melbourne and strengthen transport networks in existing suburbs.
   • Planning should ensure an integrated and sustainable transport system that provides access to social and economic opportunities, facilitates economic prosperity, contributes to environmental sustainability, coordinate reliable movements of people and goods, and is safe.
4. In each of these contexts "access" is used to imply an opportunity to approach something by various means.
5. As it transpired in Mount Eliza Action Group, the Tribunal found that a permit was required under clause 52.29 because there would be a physical alteration to the access, albeit relatively minor, in the necessary legal sense.[15] The physical alterations entailed carrying out works to install a new electric gate at each access point; and straightening the accesses between approximately 1 metre and 2 metres so that the gates were located on the property line and were no longer at a small angle to it. However, the Tribunal held that a permit was not required under clause 52.29 to:
   • change the use of land from vacant to a dwelling, thus increasing the likely frequency of vehicle access to the Highway from the two existing accesses;
   • change the type of vehicles accessing the land to cars and cars towing boats; or
   • construct new driveways or new vehicle storage facilities (ie a double garage and a car/boat shed) on the land from which vehicle may traverse the land to and from the existing access points;

because none of these changes constituted an alteration to an access.[16]

1. With respect, I disagree with this conclusion. The words of clause 52.29 do not require alteration to "an access". Rather, they require the creation or alteration of "access". The Tribunal in Mount Eliza Action Group confines its interpretation of "access" to physical works which create or alter the access from land to a road in a Road Zone Category 1, not changes to the use or development of land that will result in changes to the volume, frequency or type of traffic accessing the land or conversely the road.
2. I agree that clause 52.29 does not itself require a permit for a change of use or development of the land. Rather, if there is a change of use or development, this circumstance may trigger the need for a permit to create or alter access, which is something different.
3. In my view, having regard to the purpose of clause 52.29 to ensure appropriate access to identified roads, and the broad meaning given to that purpose in Longwarry, 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.
4. I understand the types of uncertainty associated with this interpretation, which were identified by the Tribunal in Mount Eliza Action Group.[17] However, many of those examples relate to an intensification of existing use or changes to an existing pattern of use. They are not changes generated by the need for some other permit required under the planning scheme.
5. In my view, "access" used in the context of clause 52.29 means not only the physical way or means of approach or entry from land to a road in a Road Zone Category 1, but the opportunity of approach or entry to the road. That opportunity is the opportunity provided to traffic to approach or enter the road. Opportunity in this context means chance.[18]
6. In construing the meaning of clause 52.29 and when a permit may be required, it is important to have regard to the context of the provision.
7. Section 35 of the Interpretation of Legislation Act 1984 specifically provides:
   1. Principles of and aids to interpretation

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; ...

1. The purpose or object underlying the planning scheme (which is a subordinate instrument) includes the objectives of planning in Victoria as set out in section 4(1) of the Planning and Environment Act 1987. These objectives include:

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; ...

1. The purpose of the planning scheme also includes to provide for the implementation of State, regional and local policies affecting land use and development.
2. Strategies in the State Planning Policy Framework about the transport system include at clause 18.01-2:
   • Plan or regulate new uses or development of land near an existing or proposed transport route to avoid detriment to, and where possible enhance the service, safety and amenity desirable for that transport route in the short and long terms.
3. There are various aspects of the Local Planning Policy Framework that touch upon the road network, including clause 21.11-2 which provides:
   • Ensure that development along arterial roads maintains the major transport role of those roads having regard to any access management policies of the road authority.
4. The purpose of clause 52.29 itself is:

To ensure appropriate subdivision of land adjacent to identified roads.

1. The decision guidelines of clause 52.29 provide:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider:

• The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
• The views of the relevant road authority.
• The effect of the proposal on the operation of the road and on public safety.
• Any policy made by the relevant road authority pursuant to Schedule 2, Clause 3 of the Road Management Act 2004 regarding access between a controlled access road and adjacent land.

1. It is important to note that the requirement for a permit in clause 52.29 only relates to roads in a Road Zone Category 1. These are the State's most important roads, which include freeways, highways and arterial roads. VicRoads is the relevant road authority concerned with the operation of the road and public safety. Any changes to the opportunity for traffic to access such a road may affect the operation of the road and public safety.
2. This is therefore the context in which the phrase "create or alter access to a road in a Road Zone Category 1" must be interpreted and where the need for a permit enables referral of the application to the Roads Corporation (VicRoads). Having regard to this context and the purpose of clause 52.29, I do not consider that the phrase should be read down to limit the ability of the Roads Corporation to consider the proposal having regard to the State and Local Planning Policy Framework, the effect of the proposal on the operation of the road and on public safety, and any other relevant matters.
3. For these reasons, I conclude that the phrase "create or alter access to a road in a Road Zone Category 1" means:
   • 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.
4. Based on recognised principles of law applying to existing use rights, I do not consider that a permit is 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[19] access to a road in a Road Zone Category 1, then in my view, 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. Equally, the need for a permit under clause 52.29 may operate independently of the need for a permit under other provisions of the planning scheme if no permit is required for the change but the change will give rise to the type of circumstance described above.
5. Whilst this interpretation may increase the number of applications required to be referred to VicRoads, and in many instances may result in only minor or negligible changes to the opportunity for traffic to approach or enter a road in a Road Zone Category 1, this is not a reason to read down the ambit of the provision. They are matters that VicRoads will need to address in its consideration of any referral.
6. There are two further points that are relevant to this conclusion about the interpretation of the phrase "create or alter access to a road in a Road Zone, Category 1".
7. First, in support of my view that the requirement for a permit to create or alter access to a road in a Road Zone Category 1 means more than just works to construct or modify a point of access to a road in a Road Zone Category 1, but also relates to a change in use, or new development or works on the land itself, it is relevant to note that the other reason when a permit is required under clause 52.29 is to subdivide land adjacent to a road in a Road Zone Category 1.[20] There is nothing in this permit trigger that requires the subdivision to create or alter access to a road in a Road Zone Category 1 in terms of creating a new intersection between a subdivision road and a road in a Road Zone Category 1. The lots on the subdivision may access a road or roads which do not directly intersect with a road in a Road Zone Category 1. Nevertheless, VicRoads will have an interest in any subdivision that may directly or indirectly affect the operation of such a road by any increase in the volume, frequency or type of traffic accessing the road from the subdivision. The provisions of clause 52.29 require referral of such subdivision proposals to VicRoads.
8. Second, it is also necessary to interpret what is meant by "alter" in the phrase "create or alter access to a road in a Road Zone, Category 1". There does not appear to be any dispute that "create" means to bring into being and that "alter" means to retain but change access. However, there is some dispute about whether "alter" includes to delete access.
9. In Grant and Ors v Darebin CC[21] the Tribunal said:

[9] The closure of an access or the redirection of traffic away from an existing access is not an alteration to the access. The access referred to in clause 52.29 is access within the relevant subject property over which vehicles must pass to move out on to the road. In this case the existing access at the front of the property is removed. There will therefore be no access to St Georges Road from the front of the property.

[10] The definition of 'alter' in the Macquarie Dictionary including "to make different in some particular; modify or to become different in some respect" was relied upon. 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 the ground level.

1. With respect, I do not agree with this interpretation. Having regard to the definition of "alter", I consider that to make the opportunity for traffic to approach or enter the road different in any respect would include the removal of a physical access point and redirection of the traffic that might have used it to an alternative route. I conclude therefore that "alter" includes "delete".

1. Clause 52.29 applies to land adjacent to a Road Zone Category 1.
2. The subject land is adjacent to a Road Zone Category 1, namely Davey Street. However, the proposal does not involve any vehicular access to this road. All access will be to Bay Lane, which is not a road in a Road Zone Category 1.
3. The question arises as to whether the creation or alteration of access to a road in a Road Zone Category 1 must be direct access or may be indirect access via another street, road or lane, which in turn insects with a road in a Road Zone Category 1.
4. The Tribunal in Grant held that access from adjacent land to land in a relevant road via a lane or right of way was not relevant access and did not require a permit under clause 52.29.
5. On this point, I agree with Grant. I consider that in order for a permit to be required under clause 52.29, the proposal must create or alter access from the subject land to a road in a Road Zone Category 1. The opportunity to approach or enter the road in a Road Zone Category 1 must be directly from the subject land. What is proposed on the subject land does create or alter access within the meaning of the phrase in clause 52.29, but it does so to Bay Lane, not to the Nepean Highway or to Davey Street.
6. I agree with the applicant that considerable uncertainty would arise if clause 52.29 was to be interpreted as applying to indirect access to a road in a Road Zone Category 1 via an intermediate road. How far away would the Category 1 road need to be from the subject land in order to trigger the need for a permit under clause 52.29?
7. In the present case, the distance is only approximately 12 metres. Bay Lane is a dead end road, which means that all traffic exiting the subject land will need to access Nepean Highway at its intersection with Bay Lane. However, what if the distance was much greater or the access was via two roads or there was alternative access to a second road in a Road Zone Category 1?
8. In my view, whilst the context in which words are used, including the mischief which the statute was intended to remedy, are relevant to consider when interpreting the meaning of words, one must still have regard to the words themselves.
9. Having regard to the scope of clause 52.29, which applies to land adjacent to a road in a Road Zone Category 1, and the requirement for a permit to create or alter access to a road in a Road Zone Category 1, I consider that the relevant Road Zone Category 1 in both the scope and the permit requirement should be the same. I do not consider there is any justification for interpreting the provision as applying to land adjacent to Road A in a Road Zone Category 1 but the creation or alteration of access is either to:
   • A different road in a Road Zone Category 1; or
   • To the same or a different road in a Road Zone Category 1 via some intermediate road.
10. There is no need to read into the permit requirement the words "direct or indirect" (i.e. "create or alter direct or indirect access to a road in a Road Zone Category 1") to make sense of the provision or to give it meaning. An interpretation that confines the permit requirement to creating or altering access to the road in a Road Zone Category 1 to which the land is adjacent, does not lead to an absurd outcome. It may reveal a gap in the ambit of the provision, but that is a separate matter which would need to be remedied by an amendment to clause 52.29.
11. As I noted earlier, the second permit trigger in clause 52.29 relating to subdivision of land adjacent to a road in a Road Zone Category 1 does not include any requirement for a need to create or alter access to a road in a Road Zone Category 1. In the case of subdivision, traffic access from the subdivision to the road in a Road Zone Category 1 to which the land is adjacent may be indirect. The relevance of that possibility in each particular case will be a matter for consideration by the road authority. Nevertheless, this difference between the two permit triggers lends weight to my finding that for the first permit trigger to apply, the creation or alteration of access to a road in a Road Zone Category 1 must be to (i.e. directly to) the road in the Road Zone Category 1 to which the land is adjacent in the context of the scope of operation of clause 52.29.

1. My conclusion is that the proposal will not trigger a requirement for a permit pursuant to clause 52.29 because the proposal will not create or alter access to a road in a Road Zone Category 1 within the meaning of clause 52.29. It will not create or alter access to Davey Street, which is the relevant road in a Road Zone Category 1 to which the land is adjacent. The land is not adjacent to the Nepean Highway and indirect access via Bay Lane to the Nepean Highway does not trigger the need for a permit.
2. Accordingly, I find that VicRoads is not a determining referral authority.

1. The fact that there are no third party notice and review rights under the C1Z (which operates to exclude VicRoads from any right of review of the permit or from automatic party status in this proceeding) and the fact that VicRoads is not a determining referral authority because no permit is required under clause 52.29, does not mean that the views of VicRoads as the road authority for the Nepean Highway are not relevant.
2. In my view, the Tribunal would benefit from hearing from VicRoads. By joining VicRoads as a party pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, which I have done in my order dated 14 April 2015, its views are able to be considered.

[1] Clause 34.01-7. The responsible authority advises that no permit is required for use, which is not exempt.

[2] [2008] VCAT 973

[3] [2011] VCAT 2364

[4] [2011] VCAT 1851

[5] The specific recommendation of the Committee about access to declared roads was as follows:

Amend the first dot point in Clause 36.04-3 by adding the words in italics to read as follows:

[6] [2010] VCAT 699

[7] [2010] VCAT 699 at [15]

[10] [201] VCAT 699 at [24] and footnote

[11] Roads Corporation v McCarthy [2004] VSC 369 at paragraphs [26] - [27] per Osborn J in referring to: Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; and Mason J in K & S Lake City Freighters Ply Ltd v Gordon and Gotch Ltd [1985] RCA 48.

[12] Such as Grant v Darebin CC [2011] VCAT 2364 and Williams v Mornington Peninsula SC [2013] VCAT 1875

[14] Shorter Oxford English Dictionary Third Edition

[15] [2010] VCAT 699 at [39]

[16] [2010] VCAT 699 at [41]

[17] [2010] VCAT 699 at [37]

[18] The definition of "opportunity" in the Macquarie Dictionary (4th Edition) means "an appropriate or favourable time or occasion". A more fulsome definition is provided in the Shorter Oxford English Dictionary (Third Edition) meaning "a time, juncture or condition of things favourable to an end or purpose; occasion, chance".

[19] In Mount Eliza Action Group Inc v Mornington Peninsula SC [2010] VCAT 699 at [25] the Tribunal suggested that clause 52.29 may include access other than just vehicular access, such as pedestrians or farm stock. If the concept of "alter access" is to be given a broad interpretation, there may be no reason to confine it to vehicular access only. However, I am not required to make a decision on this particular point in this proceeding and express no concluded view.

[20] For the purpose of completeness, I note that the permit triggers in clause 52.29 also relate to land in a Public Acquisition Overlay if the purpose of acquisition is for a Category 1 Road. The same principles apply to such land as to a road in a Road Zone Category 1.

[21] [2011] VCAT 2364