Roads and Jetties Act 1935

The Act defines several core terms in section 3. Construction, in relation to a road, includes not only reconstruction or realignment but also bringing a road to a higher standard, investigation and engineering studies, acquisition of land, and any other thing done in relation to those matters, but expressly excludes maintenance. Maintenance of a road means all works required for its preservation and upkeep but excludes reconstruction. Road is defined broadly to mean a public highway and includes a road sign, traffic control equipment, street lighting, a vehicular ferry, a bridge or tunnel (including for pedestrians), a bicycle path, a boat-launching ramp, vehicular access to such a ramp, traffic fences, culverts, kilometre posts, and milestones associated with the highway. State highway means a road in respect of which a proclamation under Part II is in force declaring it a State highway. Subsidiary road means a road similarly proclaimed and classified as a main, secondary, developmental, or tourist road under section 7(3). Country road means a road that is not a State highway or subsidiary road and is not a street in a town. Road authority is defined by reference to the type of road: for State highways and subsidiary roads it is the Minister; for any other road it is the council having control of that road. Service authority means a person having charge and control of a system for supplying water, gas, electricity, drainage, or sewerage. Plant includes vehicles, animals, land, workshops, buildings, fixtures, machines, tools, spare parts, and other equipment used for constructing or maintaining roads, bridges, jetties, and aerodromes. The Fund is the State Highways Trust Fund established by section 4(1) as an account in the Public Account. Motor taxes means the taxation imposed in respect of motor vehicles under the Vehicle and Traffic Act 1999. Part IVA adds further specialist concepts: limited access road is a road declared by proclamation under section 52A, with the effect that it is a highway for vehicles and livestock to pass from end to end or between proclaimed places of access, and a general highway for pedestrians. Proclaimed place of access is a place set forth in the proclamation itself. Licence means a licence issued under section 52CB or a pre-existing licence taken to be validly issued by virtue of section 52G. Potential access means an access that could reasonably be constructed in accordance with national road safety standards and is not prohibited by any Act. In Part V, vested jetty and vested facility refer to jetties or marine facilities (such as landing stages, slipways, breakwaters, navigation aids) the control and management of which are vested in the Minister by proclamation or by construction on Crown land.

The Act directly affects the Minister administering the Act (the road authority for State highways and subsidiary roads), the Transport Commission (in certain residual roles such as paying jetty revenue and receiving Commonwealth transport planning money under section 4), and the Marine and Safety Authority (which, by section 54DB, presently holds management and control of vested jetties and vested facilities as from the commencement of the Marine and Safety Authority Act 1997). Local government councils are significantly affected: they are road authorities for roads other than State highways and subsidiary roads; they share maintenance and reconstruction duties with the Minister under section 11 for State highways and subsidiary roads within cities, towns, and villages; and councils of Kingborough (in relation to Bruny Island), Flinders, and King Island are entitled to a payment from the Fund equal to 98 per cent of the lesser of their own road expenditure or motor taxes collected in their area (section 5(2)). Service authorities (water, gas, electricity, drainage, sewerage) are affected by sections 12 to 15, which require them to remove or alter pipes and wires at their own expense when directed by the Minister, to obtain consent before excavating in a State highway, and to comply with minimum clearance requirements for overhead wires. Landowners and occupiers adjacent to roads are affected by numerous provisions: they must not concentrate drainage onto a State highway without consent (section 17B), must not allow sullage into highway drains (section 17C), must cut hedges and trees obstructing traffic view when notified (section 42), must construct culverts at vehicular entrances when required (section 44), and must not commit acts of obstruction (section 49). Owners of land through which an intended highway line is proclaimed under section 9A are obliged to notify the Minister if the land becomes clear of buildings, and may require the Minister to acquire their land or, in the case of Crown lands contracts, their estate and interest. Owners of land deprived of access by a limited access proclamation may claim compensation within 12 months (section 52C) or apply for a licence (section 52CA). Persons who erect or place structures in a State highway or subsidiary road without the Minister’s consent, or who fail to comply with a notice under section 16, are subject to penalties and may be required to remove the works at their own cost. Any person who uses a closed road without authorisation, damages a road, or engages in other prohibited conduct faces fines and potential liability for the cost of repair.

The Act imposes a range of duties and confers corresponding rights. The Minister is under a duty to cause all State highways and subsidiary roads to be constructed and maintained as he or she directs (section 8(2)). In cities, towns, and villages with footpaths, the Minister is required to maintain and reconstruct specified elements of the carriageway, and the local authority must maintain and reconstruct the remainder, including drainage and shoulders (section 11(1)), though this division may be varied by agreement (section 11(2)). The Minister must also ensure that traffic control devices are erected when a highway is closed (section 16A(3)), and must give notice to affected landowners within 60 days after an alignment or limited access proclamation (sections 9A(2), 52A(7)). Landowners have the right to compensation when their land is injuriously affected by an alignment proclamation (section 9A(5)(e)) or by a limited access proclamation (section 52C), with claims to be made within 12 months. Where land becomes clear of buildings on an intended highway line, the owner may require the Minister to acquire the fee or a term of 21 years (section 9A(5)(c), (6)). The owners of land deprived of existing access by a limited access road may apply for a licence under section 52CA; if granted, the licence authorises access to the land from the limited access road at a place other than a proclaimed place of access, but that licence is taken as full or partial satisfaction of a compensation claim (section 52CC(2)(c)). Service authorities have the right to be repaid their reasonable costs when they move mains or wires at the Minister’s direction because of an alteration to the line or level of a road (section 12A(2)). A person served with a notice under section 16 (structures in highways) must comply or face a fine of up to 10 penalty units and the risk of the Minister carrying out the required work at the person’s cost (section 16(9)-(12)). The duty to maintain an informal access pathway rests on the owner of the land from which the access runs (section 16AA(2)). Owners of land adjacent to a limited access road are required to maintain any fence erected by the Minister on the side boundary (section 52B(5)). Road authorities are obliged to restore fences temporarily taken down during works (section 37), to fence quarries and pits (section 36), and to make good damage to land after using a temporary road (section 34(3)). The Minister may delegate functions under section 17D, but remains able to exercise them concurrently.

The Act creates numerous offences, each with a specified maximum fine expressed in penalty units (and in one case a fixed dollar amount). Offences under Division 3 of Part IV include: wilfully obstructing a road, making or erecting a building or fence that reduces the width of a road, filling up or obstructing drains, making a drain across a road, or pulling down road fixtures (section 49(1) - maximum 5 penalty units); permitting encroaching hedges or overhanging branches (section 49(2) - 5 penalty units); damaging a road, bridge, or jetty intentionally or recklessly (section 50(2) - 20 penalty units), with the court also able to order payment for the damage (section 50(3)); depositing timber, soil, ashes, or rubbish on a road without authority (section 51 - 5 penalty units); making a fire on the paved portion of a road or within 1.8 metres of a fence (section 52 - 5 penalty units). Under Part II, unauthorised works in a State highway or subsidiary road attract a fine of up to 10 penalty units (section 16(1)), and failure to remove work when the Minister’s consent is withdrawn carries up to 50 penalty units (section 16(4)). Non-compliance with a notice under section 16(5) or (6) is punishable by a fine of up to 10 penalty units (section 16(9)). Contravention of the limited access prohibition (crossing the side boundary without a licence or at an unauthorised place) carries a fine of up to 5 penalty units (section 52B(2)). Concentrating natural drainage onto a State highway without consent attracts a maximum of 10 penalty units (section 17B(1)), as does causing sullage to flow into highway drains (section 17C(1)). Failure to obey directions about where to discharge drainage from land adjacent to any road is punishable by up to 5 penalty units (section 43). Leaving gates open after passing through a gate erected under section 45 attracts a fine of up to 1 penalty unit. Scaffolding, excavation, and removal of barricades in streets are each punishable by up to 2 penalty units (sections 50A-50C). For enforcement, the road authority may take down buildings, remove obstructions, or fill drains at the offender’s expense and recover those costs in court (section 49(3)). The Minister may also enter land and carry out work if a person fails to comply with a notice under section 16 or section 16AA, and recover the reasonable costs as a debt due to the Crown (sections 16(10)-(12), 16AA(7)-(10)). Road authorities may recover extraordinary expenses caused by excessive vehicle weight or extraordinary traffic under section 46, and the cost of impounding, storing, and disposing of abandoned articles under section 48A(9). Impounded vehicles may be sold or destroyed after 60 days if the owner does not pay the fee, subject to reasonable notice (section 48B). Regulations under section 55(6) may create summary offences with fines up to 10 penalty units and daily fines of up to 2 penalty units.

The Act does not operate in isolation; it is deeply interconnected with several other Tasmanian statutes. The Land Acquisition Act 1993 is the primary instrument for determining disputed compensation under numerous provisions: alignment proclamations (sections 9A(5)(e), 9A(6)), realignment of highways (section 9D(12)), limited access compensation (sections 52C(5), 52CG(6)(b)), variation of licence conditions (section 52CE(5)(b)), and general powers of the Minister to acquire land (sections 26, 28, 29, 9B(2), 9F, 52F). The Crown Lands Act 1976 governs the definition of Crown lands contracts (section 3) and is relevant where land is purchased under such a contract: the Director-General of Lands registers proclamations and manages dealings (sections 9A(2B), 9A(11)). The Local Government (Highways) Act 1982 is referenced in section 5(1) for the debiting of costs under sections 22 and 23 of that Act and for highway works under section 111. The Land Titles Act 1980 provides the register on which proclamations are recorded (sections 9A(2)(a), 52A(4)(a)) and the definition of the Register in section 3. Motor taxes are defined by reference to the Vehicle and Traffic Act 1999, and the registered operator of a motor vehicle under that Act is deemed an owner of an abandoned vehicle for the purposes of sections 48A (section 48A(13)). The Building Act 2016 may be overridden by a licence under section 9A(7) of this Act. The Criminal Code (Chapter XV), the Public Health Act 1997, the Police Offences Act 1935 (section 15), and the Biosecurity Act 2019 (weed definitions) are all saved from being impliedly altered by the drainage and nuisance provisions (sections 17C(5), 49(2)(d)). The State Service Act 2000 governs the appointment of persons to assist the Minister (section 3C). The Marine and Safety Authority Act 1997 is the vehicle for transferring control of jetties and facilities from the Minister to the Marine and Safety Authority (section 54DB). The Tasmanian Planning Commission Act 1997 requires the Commission and local authorities to take notice of highway alignment proclamations for town planning and subdivision purposes (section 9A(5)(a)). The Public Works Committee Act 1914 is saved from applying to certain projects by the transitional provision in section 56. Finally, Part IA gives the Minister the powers and functions of a State under Commonwealth Acts that provide funds for road purposes, including the Roads Grants Act 1981.

The Act has been amended extensively since its original enactment in 1935. The source text shows amendments by numerous statutes, many identified only by reign or number. Key milestones include: 1944 (8 Geo. VI No. 4) - introduced changes to Part II and the definition of State highway; 1946 (9 Geo. VI No. 27) - amended definitions; 1951 (No. 22) - inserted the State Highways Trust Fund (section 4) and the Road Construction Plant Suspense Account (section 6); 1957 (No. 101) - a major overhaul adding sections 9A to 9F (alignment, realignment, simplified conveyancing), Part IVA (limited access roads), and Part VA (aerodromes); 1973 (No. 75) - amended various sections including section 11; 1984 (No. 84) - inserted Part V (jetties and marine facilities) and amended the regulations power; 1985 (No. 35) - extensive amendments including the insertion of Part IA (Commonwealth Acts), substitution of section 9A and Part IVA terms, and consolidation of cross-references; 1989 (No. 44) - repealed certain subsections in section 4; 1994 (No. 69) - substituted Part IVA, introducing the modern licensing and compensation regime for limited access roads; 1995 (No. 30) - amended the Fund payments to councils in section 5(2); 1997 (No. 16) - inserted section 54DB transferring jetties to the Marine and Safety Authority; 1999 (No. 90) - amended the definition of motor taxes; 2002 (No. 65) - inserted section 16B (prohibition of traffic likely to cause damage); 2004 (No. 4) - amended section 16 to give the Minister power to vary conditions of consent and issue directions; 2010 (No. 30) - inserted section 16AA (informal vehicular access); 2018 (No. 33) - substituted section 11 (maintenance division) and inserted section 48B (vehicle impoundment); 2019 (No. 38) - substituted sections 16 and 16AA again, expanding ministerial powers over structures and informal access; 2019 (No. 39) - amended Part IVA to add validation provisions (section 52G) and clarify access licences; 2022 (No. 30) - omitted certain subsections from section 8, substituted section 16A (temporary closure) and section 39 (entry onto adjoining land); 2025 (No. 7) - amended section 52CE(6) to substitute the Tasmanian Civil and Administrative Tribunal for the former review body. Several sections, such as Part III and many old sections, have been repealed.

The Act itself does not identify any specific case law. However, its provisions contemplate judicial and quasi-judicial proceedings. Under section 17A, when the boundary of a State highway or subsidiary road is disputed or uncertain, the Minister may obtain a writ from the Supreme Court directing a magistrate to inquire into and determine the true boundary, with the magistrate’s finding subject to traverse in the Supreme Court. Section 9D(14) permits enforcement of agreements for benefits under realignment proclamations by action for damages, which would generate civil proceedings. Disputed compensation under the Land Acquisition Act 1993 (incorporated by reference in many sections) would be determined by a court or tribunal, creating a body of compensation case law. Offences under the Act are dealt with summarily in magistrates courts, and fines are recoverable as debts. No reported appellate decisions are referenced in the source text.

Several provisions contain traps for the unwary. The definition of “construction” in section 3 expressly excludes maintenance, but includes investigation, engineering studies, and land acquisition, which may catch activities that a practitioner might assume are merely preparatory. “Road” is defined far more broadly than carriageway: it includes road signs, traffic control equipment, street lighting, vehicular ferries, pedestrian bridges, bicycle paths, boat ramps, vehicular access to ramps, traffic fences, culverts, and milestone posts. A person erecting a sign or a fence on a State highway may require consent under section 16. Under section 16(5), even after consent has been granted, the Minister may unilaterally impose new conditions, or require the person to upgrade completed works to a satisfactory standard, by written notice. Failure to comply attracts a penalty of up to 10 penalty units, and the Minister may carry out the work and recover costs as a debt. Section 16AA places the responsibility for upgrading, maintaining, and repairing informal access pathways (formed by vehicle use only, not construction) on the landowner, and the Minister may require removal or relocation with 60 days’ notice. No compensation is payable for removal under that provision. In Part IVA, a licence to cross a limited access road at a non-proclaimed place is taken as full or partial satisfaction of a compensation claim (section 52CC(2)(c)). Compensation under section 52C may be reduced if a licence is issued (section 52C(6)). Compensation is payable once only for any particular land (section 52C(7)). A licence may be revoked without compensation if the owner breaches a condition (section 52CG(5)). Section 52G validates all licences issued in good faith before the commencement of the Roads and Jetties Amendment (Validation) Act 2019, and such licences are taken to have remained in force continuously, even if the land was sold before that commencement. This means a purchaser may have inherited a licence that was not formally transferred. Section 52D provides that frontage on a limited access road is not deemed a frontage on a highway for the purposes of any enactment requiring vehicular access to buildings, which may affect planning approvals. The requirement to notify the Minister when land on an intended highway line becomes clear of buildings (section 9A(5)(c)) is mandatory; failure to do so could prejudice the right to require acquisition. Drainage provisions contain concurrent liabilities: both section 17B (State highways) and section 43 (any road) apply, and the Minister is not deemed a party to a nuisance merely by consenting under section 17C(6). The penalty for failing to shut a gate on a highway under section 45 is a fine of up to 1 penalty unit, but the sign must state “Penalty $10”, which is a fixed amount that has not been updated for inflation. Section 54DB transfers all vested jetties and facilities to the Marine and Safety Authority, so practitioners should check whether the Minister remains the relevant authority for a particular jetty. Finally, section 56 (transitional) exempts certain projects from the Public Works Committee Act 1914, but only those that would not previously have been required to be considered; the exemption is limited to projects planned to start after 30 June 1991 or with work over $1,000,000 after that date, so its force is likely spent.

To comply with the Act, several categories of persons should take specific steps. Persons proposing to erect or place any structure, sign, banner, or pathway providing vehicular access in a State highway or subsidiary road must first obtain the Minister’s written consent under section 16(1). The application should be made in sufficient time and must include details of the proposed works. Once consent is granted, the person must comply with all conditions and ensure ongoing maintenance. The Minister may later vary conditions or require upgrades by notice; compliance with such notices within the specified period (not less than 60 days) is essential. If consent is withdrawn, the structure must be removed and the road restored at the person’s own cost. Owners of land with informal access pathways (those formed by vehicle use rather than construction) must maintain the pathway (section 16AA(2)). If the Minister issues a notice requiring upgrade, repair, relocation, or removal, the owner must comply within the period specified (at least 60 days). Non-compliance may result in the Minister carrying out the work and recovering costs as a debt. Service authorities must not excavate in a State highway without the Minister’s consent (section 13(1)). If the Minister directs the removal or alteration of pipes, mains, tunnels, or wires, the service authority must carry out the work at its own expense (sections 12, 14), though reasonable costs may be repaid in some circumstances (section 12A). Owners and occupiers of land adjacent to roads should avoid concentrating drainage onto a State highway without consent (section 17B), avoid causing sullage to flow into highway drains (section 17C), and comply with any notice to cut hedges or trees obstructing traffic view (section 42). They must also construct culverts at vehicular entrances when required (section 44) and not cause obstruction (section 49). Landowners affected by an alignment proclamation under section 9A must not build on the intended line without the Minister’s written consent (section 9A(5)(b)). If the land becomes clear of buildings, they must notify the Minister forthwith (section 9A(5)(c)). They may then require the Minister to acquire the land, or, in the case of Crown lands contracts, the purchaser’s estate and interest (section 9A(5)(c), (6), (6A)). Compensation for injurious affection must be claimed within 12 months of the proclamation taking effect (section 9A(5)(e)). Owners of land adjacent to a limited access road must not allow vehicles or livestock to cross the side boundary at any place other than a proclaimed place of access, unless they hold a valid licence (section 52B(2)). If they lose access or potential access because of the proclamation, they may apply for compensation under section 52C within 12 months of receiving notice under section 52A(7). Alternatively, they may apply for a licence under section 52CA, which may be granted subject to conditions (sections 52CB-52CD). A licence may affect the amount of compensation payable (section 52C(6)). Landowners must maintain any fence erected by the Minister on the side boundary (section 52B(5)). Councils should review their maintenance and reconstruction obligations under section 11, and ensure that any works they undertake in a State highway are either within the scope of their duties or otherwise authorised by the Minister. All persons should avoid engaging in conduct that damages a road, bridge, or jetty (section 50), or that obstructs the use of a road (section 49). If a vehicle is impounded under section 48B, the owner must pay the fee within 60 days to avoid sale or destruction. Anyone who abandons an article on a State highway or subsidiary road is liable for removal, storage, and disposal costs (section 48A).