20 May VCAT Widened the Application of Road Zone Category 1 (RDZ1) Clause
A recent VCAT decision (Peninsula Blue Developments Pty Ltd v Frankston CC (Red Dot) [2015]] VCAT 571) has widened the application of Clause 52.29. Clause 52.29 applies to land adjacent to a Road Zone Category 1 or a Public Acquisition Overlay for same.
Magenta coloured roads are Road Zone Category 1
This decision has determined that the phrase “create or alter access to a road in a Road Zone Category 1” applies to a change in the opportunity for traffic to approach or enter a road in a Road Zone Category 1 in either of the following ways:
- Any physical change, including creating or altering access and deleting existing access.
- Any change to the use or development which may result in traffic changes in terms of volume, frequency or type of traffic, whether it is an increase or a reduction.
This recent VCAT decision found that in contrast to past decisions the application of Clause 52.29 was broader and did not only apply to physical alterations to access. A change in the use or intensification of the land that would alter the nature of traffic either in terms of volume, frequency or type would also trigger a requirement under Clause 52.29.
The tribunal member did find that if a permit was not otherwise required for use or development, a permit would not be required under Clause 52.29 simply for intensifying or changing activities of an existing use.
However, if a permit (or amendment to a permit) is otherwise required and the project will change traffic access to a road in a Road Zone Category 1 (in either of the ways described above), then a permit is also required under Clause 52.29, with subsequent referral to VicRoads.
Lastly this Red Dot Decision looked at the scope of Clause 52.29. This decision agreed with past decisions that in order for Clause 52.29 to apply, access must be directly from the site to the relevant road. If access from the site is first through an intermediary road or laneway, there is no direct access and therefore Clause 52.29 does not apply. Also for Clause 52.29 to apply the road that will be altered (either physically or otherwise) must be the same road as the Road Zone Category 1 road adjacent to the site.
This recent VCAT decision may change when Clause 52.29 is applied to projects and increase the number of applications being referred to VicRoads.