Roads (Opening and Closing) Regulations 2021

The regulations introduce several concepts that are essential to understanding how the Act operates in practice. Prescribed public utility (regulation 4) is a defined term under section 3(1) of the Act. The regulations declare eight entities: the Distribution Lessor Corporation, Transmission Lessor Corporation, holders of licences under the Electricity Act 1996 authorising transmission or distribution networks, Australian Gas Networks (SA) Ltd, South Australian Water Corporation, Telstra Corporation Ltd, Epic Energy South Australia Pty Ltd, and NBN Co Ltd. Any road process that affects land in which a prescribed public utility has an interest triggers special notification or compensation provisions under the Act. Prescribed public authority (regulation 5) is a category within the definition of person affected in section 3(1). The regulations designate five authorities: the Commissioner of Highways (for adjoining land vested under the Highways Act 1926), the Coast Protection Board (for coast protection districts), the National Parks and Wildlife Service (for reserves under the National Parks and Wildlife Act 1972), the Native Vegetation Council (for land where native vegetation is growing), and the administrative unit assisting the Minister for Recreation, Sport and Racing (for unmade roads subject to closure). Each authority is prescribed only for a specific class of land. The concept of an unmade road is defined in regulation 3 as a road not sealed with bitumen or other surfacing material for use by motor vehicles; this definition is used solely in regulation 5(e) to identify the relevant authority for closure of such roads. The regulations also impose standardised requirements for public notice (regulation 6), objection (regulation 7), application for easement (regulation 8), and notice of discontinuance (regulation 9). For the Adelaide Park Lands, additional concepts are introduced: an application under section 6B of the Act must include reasons, evidence of research or consultation on potential impacts, findings from that research or consultation, and evidence that alternative options were considered (regulation 10). Public notice of such an application must describe the land and any loss of land, specify how closed land will be dealt with, and invite objections or comments (regulation 11). The concept of a closed road title certificate appears in regulation 12, allowing the Minister to vest closed road land in the Crown and merge it with adjoining land, or place it under the care, control and management of the City of Adelaide. These concepts collectively define the procedural architecture: they determine who must be told, what they must be told, how they can respond, and what happens if a proposal is abandoned.

The regulations directly affect several distinct groups. First, councils and relevant authorities (which may be the Minister or other bodies depending on the road type) are the entities required to take action under the regulations. They must draft and publish notices, receive and consider objections and easement applications, and serve notices of discontinuance. The compliance burden falls primarily on them. Second, the prescribed public utilities listed in regulation 4 have a statutory interest in road processes because their infrastructure may lie under or near roads. While the regulations do not impose duties on these utilities, they do give them a right to be notified and to object or claim compensation under the Act. Third, the prescribed public authorities in regulation 5 similarly have a recognised interest for specific land classes. For example, the Native Vegetation Council must be considered when a road opening affects native vegetation; the Coast Protection Board must be involved when the road is in a coast protection district. Fourth, landowners whose land adjoins or is near the road subject to a process are affected: they may object, apply for an easement if the road is closed, or claim compensation if a proposed opening is discontinued. Fifth, objectors generally (any person can object under the Act) are affected because the regulations prescribe the form their objection must take. Sixth, applicants for easements (typically adjoining owners who would lose access if a road is closed) must comply with regulation 8. Seventh, persons with interests in land (including holders of lesser interests) are affected by the notice of discontinuance requirements: regulation 9 requires that they be personally notified and informed of their compensation rights. Eighth, the South Australian community is affected indirectly through the cost implications: councils’ compliance costs are ultimately borne by ratepayers, and the procedural delays can affect the timing of road openings and closures, which in turn affects property development, land subdivision, and infrastructure delivery. Ninth, in the Adelaide Park Lands context, the applicant (which could be a council or a state authority), the Minister, the Registrar-General, and the Corporation of the City of Adelaide are all affected by the modifications in regulation 12, which alter the ordinary road closure process to suit the unique status of the Park Lands.

The regulations impose specific duties and confer corresponding rights on various actors. Duty to give public notice: under regulation 6, a council or relevant authority proposing a road process must publish notice in the Gazette and either on a Minister-determined website or in a daily newspaper circulating in the area. The notice must contain a reasonable description of the proposal, a diagram or other description of the land (determined by the Surveyor-General), details of how closed land will be dealt with, the location and times at which the preliminary plan and statement are available for public examination, and information about the right to object and (if a closure) the right to apply for an easement. Right to object: any person may lodge a written objection. The objector must comply with regulation 7: the notice must be in writing, set out the objector’s full name and address, state the reasons for the objection with reasonable particularity, and indicate whether the objector wishes to make submissions at any meeting of the relevant authority. Right to apply for an easement: an adjoining landowner or other person substantially affected by a proposed road closure may apply for an easement over the closed land. Regulation 8 requires the application to be in writing, include the applicant’s name and address, give full particulars of the nature and location of the easement, specify the land to which the easement is to be annexed (if the applicant is an owner of adjoining or nearby land), and state the reasons for the application. Duty to give notice of discontinuance: if a proposed road opening is discontinued in whole or in part, the council or relevant authority must serve a notice under regulation 9 on any person with an interest in the affected land. The notice must state the date of the original notice and the council’s name, indicate that the opening has been discontinued, describe the land no longer subject to the proposal (by diagram, written description or both), and inform the person that they may claim compensation under section 32 of the Act, specifying the time limit, where to lodge the claim, and the matters in respect of which compensation may be claimed (as per Part 3 of the Land Acquisition Act 1969). Duty on applicants for Park Lands proposals: under regulation 10, an applicant under section 6B of the Act must include reasons, evidence of research or consultation on potential impacts, findings from that research or consultation, and evidence that alternative options were considered and the basis for proceeding. Duty to give public notice of Park Lands applications: under regulation 11, the applicant (or relevant authority) must publish notice in the Gazette and on a Minister-determined website or in a daily newspaper circulating throughout the State. The notice must describe the proposal, show the land and any loss of adjoining land, specify how closed land will be dealt with, state where the applicant’s information is available for examination, and invite objections or comments, including information about the right to apply for an easement. Rights of objectors and commentators: persons may object or comment, and the notice must specify the time, place and required content. Modification of Act for Park Lands: regulation 12 gives the Minister and Registrar-General rights to take certain actions (e.g., issue a closed road title certificate, merge land, vest land in the Crown or the City of Adelaide) that would otherwise not be available under the ordinary provisions of Parts 4 and 8 of the Act. These modifications also impose a duty on the Commissioner of Highways to ensure that if a road is altered and fenced, the new fencing matches the old fence along the boundaries.

The regulations themselves contain no penalty provisions. Enforcement is left to the Roads (Opening and Closing) Act 1991, which is not reproduced in the source. However, the regulations have significant indirect enforcement consequences. Non-compliance with the procedural requirements for giving public notice, receiving objections, or serving notices of discontinuance may render a road process voidable or invalid. For example, if a council fails to include the mandatory information required by regulation 6(2) - such as a diagram approved by the Surveyor-General, or the address and times for inspection - an objector could challenge the validity of the entire process. Similarly, if a notice of discontinuance under regulation 9 omits the statement about compensation rights, the affected landowner may have grounds to argue that the discontinuance was not properly given, potentially affecting the council’s liability or ability to later reopen the road. The regulations do not create any enforcement body or inspection regime. The primary mechanism for enforcing compliance is judicial review or administrative challenge by affected persons. For the Adelaide Park Lands, the modifications in regulation 12 are expressed to take effect “in accordance with” section 34G(15) of the Act. If the Minister or Registrar-General acts outside the scope of those modifications, the validity of any closed road title certificate or vesting order could be challenged. The regulations also create a right to compensation under section 32 of the Act when a road opening is discontinued. The notice of discontinuance must inform the person of that right; failure to do so may expose the council to a claim that the person was prejudiced. In practical terms, the compliance burden falls on councils and state authorities. The cost of getting procedural steps wrong - including legal costs, delays, and the possibility of having to restart a road process - acts as a deterrent. But there is no monetary penalty for errors; rather, the sanction is procedural invalidity. For private parties, failing to lodge an objection in the prescribed form (regulation 7) may mean the objection is not considered by the relevant authority. Similarly, an application for an easement that does not meet the regulation 8 requirements (e.g., omitting the reasons or the annexation land) may be rejected, leaving the applicant without access rights when the road is closed. Thus the regulations impose a form of private enforcement risk: any procedural slip can lead to loss of rights.

The regulations sit within a web of interconnected South Australian statutes. The primary interaction is with the Roads (Opening and Closing) Act 1991 itself. The regulations are made under that Act and give effect to its sections 3(1) (definitions), 10 (public notice), 13(3) (form of objection and easement application), 15(3)(c), 19(b)(ii), 20(3)(b) and 24(2)(b)(ii) (notice of discontinuance), and 34G (Adelaide Park Lands). Without the regulations, those sections would lack procedural content. The regulations also incorporate the Land Acquisition Act 1969 by reference: regulation 9(2)(d)(iii) states that the notice of discontinuance must indicate the matters in respect of which compensation may be claimed, “specified in Part 3 of the Land Acquisition Act 1969”. This means that a person claiming compensation for discontinued road opening must look to that Act’s provisions on heads of compensation. The regulations also reference the Highways Act 1926: the Commissioner of Highways is a prescribed public authority in relation to land vested in or under the Commissioner’s care, control and management. The Coast Protection Act 1972 is referenced for the Coast Protection Board’s jurisdiction over coast protection districts. The National Parks and Wildlife Act 1972 is referenced for national parks, conservation parks, game reserves, recreation parks and regional reserves. The Native Vegetation Act 1991 defines what counts as native vegetation. The Electricity Act 1996 is relevant because a licence holder under that Act is a prescribed public utility. The Real Property Act 1886 (impliedly) governs the actions of the Registrar-General in relation to closed road title certificates under regulation 12. The regulations also affect the operation of the Local Government Act 1999 to the extent that councils exercise road-opening and closure functions; the procedural requirements in these regulations overlay the council’s general powers. For the Adelaide Park Lands, the regulations modify Parts 4 and 8 of the Roads (Opening and Closing) Act to allow the Minister’s order to operate as a road process order, the issuance of closed road title certificates, vesting in the Crown or the City of Adelaide, and the Registrar-General’s actions. This interacts with the Adelaide Park Lands Act 2005 (if any) and the City of Adelaide Act 1998, though those are not expressly mentioned. The interaction with planning laws (the Planning, Development and Infrastructure Act 2016) is not explicit in the regulations, but road processes often involve planning approvals. The regulations do not override planning laws; they operate in parallel. For private landowners, the regulations interact with property law: easements created under regulation 8 will be registered under the Real Property Act, and compensation claims under section 32 of the parent Act involve the law of compulsory acquisition.

The Roads (Opening and Closing) Regulations 2021 are principal regulations, meaning they are the primary subordinate instrument under the Act. They were made on 3 June 2021 and commenced on that same date (Gazette 3.6.2021 p1832). They revoked the previous Roads (Opening and Closing) Regulations 2006 in their entirety. No amendments to the 2021 regulations appear in the source text; the legislative history notes only the principal regulations. The source includes “Legislative history” with a reference to the Index of South Australian Statutes. Since the source is current as at the date of writing (the regulations as provided), there have been no amending regulations. However, the parent Act has been amended multiple times, most notably the insertion of Part 6A (Adelaide Park Lands) by the Roads (Opening and Closing) (Adelaide Park Lands) Amendment Act 2020. The 2021 regulations were likely made to update the previous 2006 regulations to reflect that amendment and to modernise procedural requirements (e.g., allowing notice via a website determined by the Minister rather than only newspaper). The revocation of the 2006 regulations means that any precedent under those old regulations may not be directly applicable, although the new regulations are substantially similar in structure. The 2021 regulations introduced the definition of “unmade road” (not present in the 2006 regulations, which only defined “unmade” in passing) and the specific Park Lands provisions (regulations 10-12) which are entirely new. The lists of prescribed public utilities and prescribed public authorities were updated: NBN Co Ltd appears now; other entities have been carried forward. The regulations are still relatively new, with less than three years of operation at the time of writing, so their interpretation remains largely untested in courts.

The source text does not mention any cases. The regulations themselves are not a statute that attracts direct litigation; typically, litigation arises under the parent Act, and the regulations may be considered incidentally. Notable cases under the Roads (Opening and Closing) Act 1991 that might have considered the predecessor regulations (2006) include disputes over the adequacy of public notices, the validity of objections, or compensation claims. However, no such cases are cited or referenced in the provided text. It is possible that South Australian tribunals (such as the Environment, Resources and Development Court) have dealt with road closure processes involving these regulations, but the source does not provide that information. Given the procedural nature of the regulations, litigation is most likely to involve challenges to the form of notices or objections. For example, an objector might argue that the notice did not describe the land with reasonable particularity as required by regulation 6(2)(a) and (b), or that the diagram was not “clear and accurate” or not determined by the Surveyor-General. Similarly, a person claiming compensation might challenge a discontinuance notice that did not comply with regulation 9. There is no reported high court or Supreme Court decision specifically interpreting these 2021 regulations; the regulations are too recent. The 2006 regulations were subject to some litigation in the context of the parent Act, but those cases are not binding on the 2021 regulations unless the provisions are identical. Practitioners should note that the absence of litigation history does not mean the regulations are unproblematic; it simply means no party has yet succeeded in a reported challenge. The latent legal risk remains that non-compliance with the prescribed forms could lead to invalidity of an entire road opening or closure, with significant cost consequences for councils and developers.

Several provisions in the regulations create traps for the unwary. Regulation 6(2)(b) requires that land subject to the proposed road process be specified “by means of a clear and accurate diagram, or other description determined by the Surveyor-General”. The alternative “other description determined by the Surveyor-General” is not further defined. This gives the Surveyor-General discretion, but it also creates uncertainty: a council relying on a written description rather than a diagram must ensure that description has been formally determined by the Surveyor-General. Using an ordinary verbal description without such determination may invalidate the notice. Regulation 6(2)(c) requires that for a road closure, the notice must specify “the manner in which it is intended to deal with each part of the land that is subject to the closure”. This is more specific than the Act requires and may be overlooked. If the notice merely says “the land will be closed” without detailing how each part will be dealt with (e.g., sold to adjoining owners, transferred to council, retained as unalienated Crown land), it may be defective. Regulation 7 sets out the form of objection. The requirement at regulation 7(2)(d) - that the objection state whether the objector wishes to make submissions at any meeting - is easy to miss. An objector who fails to tick this box may lose the procedural right to be heard. Regulation 8(2)(d) requires an applicant for an easement who is the owner of adjoining or nearby land to specify the land to which the easement is to be annexed. This is a crucial property law requirement: if the applicant fails to identify the dominant tenement, the application may be rejected, and the applicant may lose the chance to secure access after the road is closed. Regulation 9 contains a trap for councils: the notice of discontinuance must state “the matters, specified in Part 3 of the Land Acquisition Act 1969, in respect of which compensation may be claimed”. Merely saying “you may claim compensation” is insufficient; the notice must specify the heads of compensation. Failure to do so could make the discontinuance procedurally invalid or give the landowner a right to argue that the compensation notice was not properly given. Regulation 10 for Adelaide Park Lands applications requires “evidence that the applicant has undertaken research or consulted on the potential impacts of the proposal” and “findings resulting from the research or consultations”. An applicant that has not actually conducted genuine research or consultation, or cannot provide documentary evidence, will not have a valid application. Regulation 11(3) allows public notice to be published in the Gazette and “on a website determined by the Minister” or “in a daily newspaper circulating generally throughout the State”. If the Minister has not determined a website, the newspaper option is the only one available. But if the Minister later determines a website, councils must check which option is current. Relying on a website that has not been formally determined by the Minister could be fatal. Regulation 12 contains a subtle modification: the Commissioner of Highways is made responsible for fencing any altered road. This duty is not otherwise in the Act. A council undertaking a road process in the Park Lands that does not involve the Commissioner may still be affected if the Commissioner later alters a fenced road. Finally, note that the definition of unmade road in regulation 3 is limited: it does not include a road that is sealed with any material, no matter how poorly. A road that is partially sealed or has a gravel surface that has been stabilised with bitumen may not be an unmade road, which could affect which prescribed public authority has standing (regulation 5(e) applies only to unmade roads). The absence of case law on these points means each is a potential source of dispute.

Compliance with these regulations requires careful attention to form and timing. For councils or relevant authorities proposing a road process, the first step is to identify whether the proposal involves a road opening, a road closure, or both, and whether the land falls within the Adelaide Park Lands. For standard (non-Park Lands) processes, the council must prepare a preliminary plan and statement under section 9 of the Act. Then, before taking any step to open or close the road, it must publish a public notice in accordance with regulation 6. The notice must be published in the Gazette and either on a website determined by the Minister (check current determination with the relevant department) or in a daily newspaper circulating in the area. The content must include: a description of the proposal with reasonable particularity; a diagram or Surveyor-General-determined description of the land; for closures, the manner of dealing with each part of the closed land; the address and inspection times for the preliminary plan and statement (including the Surveyor-General’s Adelaide office); a statement of the right to object, with the time, place and required content; and, for closures, a statement of the right to apply for an easement, again with time, place and content. The council should keep a copy of the published notice and evidence of publication (Gazette extract, website screenshot or newspaper clipping). The council must then receive any objections and easement applications. Objections must be in writing, include the objector’s name and address, state reasons with reasonable particularity, and indicate whether the objector wishes to be heard. The council must consider these at a meeting. Easement applications must also be in writing, with full particulars. If the council decides to discontinue the road opening before an order is made, it must serve a notice of discontinuance under regulation 9 on every person with an interest in the affected land. The notice must be served individually (not just by Gazette), must describe the land no longer subject to the proposal, and must include the compensation clause referring to Part 3 of the Land Acquisition Act 1969. The council should maintain a register of all persons served. For applicants in the Adelaide Park Lands (which may be a council or a state body), the application under section 6B of the Act must include the information required by regulation 10: reasons, evidence of research or consultation on impacts, findings from that research or consultation, and evidence that alternatives were considered. The applicant must then give public notice under regulation 11, which is similar to the standard notice but also must show any loss of adjoining land. The notice must be published in the Gazette and on a Minister-determined website or in a statewide daily newspaper. The applicant must consider any objections or comments received within the time limit specified. For objectors, the key to having their objection considered is to comply strictly with regulation 7: write it, include full name and address, state reasons with reasonable particularity, and indicate whether they wish to make submissions at the meeting. An objector who wants to be heard must expressly say so. For easement applicants, compliance requires producing a written application that includes the information in regulation 8: name and address, full particulars of the easement (if possible including a plan), the land to which the easement is to be annexed if the applicant is an owner of adjoining or nearby land, and reasons. The applicant should lodge this within the time stated in the public notice. For persons with interests in land who receive a discontinuance notice, they should check that the notice specifies the compensation matters under Part 3 of the Land Acquisition Act 1969. If it does not, they may have grounds to challenge the notice. They should also note the time limit for making a compensation claim and lodge a claim within that time with the council. For prescribed public utilities and authorities, no proactive compliance steps are required by these regulations, but they should monitor Gazette notices and any direct notifications from councils to ensure their interests are protected. They can lodge objections or make submissions as any person can. For practitioners advising clients, the safest approach is to use checklists based on the exact wording of each regulation. Do not assume that a notice that “substantially complies” will be accepted; the courts may require strict compliance given the potential impact on property rights. The absence of penalty provisions does not mean compliance is optional - procedural invalidity is a worse outcome than a fine, because it can undo years of planning and expenditure.