Australia: When a public road in NSW gets in the way of development

Last Updated: 27 February 2017
Article by Peter Barakate

Overview

Dedicating land as a public road is easy and inexpensive – it happens on registration of a plan at Land & Property Information! But reversing the process – known as road closure – is quite the opposite and a source of angst for councils, members of the public and public authorities. The main reason for this angst is because the Roads Act 1993 (Roads Act) confers on the public important rights of access to public roads. The Roads Act and other statutes also confer important rights on public authorities to place their infrastructure under, on or above public roads without the need to acquire easements for that purpose.

Road closures are important where the benefit of incorporating the road within a redevelopment of adjoining land is considered to outweigh the benefit of the public to access the road and public authorities to place and operate infrastructure within the road. A redundant back lane, sandwiched within a development site, might serve as an example.

The Roads Act provides no more than an outline of what is required for a council, as the roads authority within its local government area, to close a road. The detail of the road closure process is found within the published requirements of the Department of Primary Industries (Department.)

When a road has been closed, the land vests in the council and is deemed to be 'operational land' for the purpose of the Local Government Act 1993 (Local Government Act). On closure, all statutory rights of passage and access over the road are extinguished. So are the statutory rights of public authorities to use the road for infrastructure purposes. For this reason, members of the public and authorities with infrastructure within roads often object to road closures to protect their statutory rights.

The purpose of this article is to explain, step by step, the road closure process practically and with the objective of facilitating cooperation between councils, authorities with infrastructure in roads, developers and members of the public to achieve important planning outcomes.

These steps are an amalgam of the requirements of the Department, the Roads Act and Land & Property Information for councils to close roads.

Process

  1. Preliminary search
  2. Before applying to the Department for approval to close a public road, council must undertake a title search of the land in question to determine its legal status and classification. This can be done by engaging a qualified title searcher who will review the records at Land & Property Information to determine whether the land has in fact been dedicated as a public road by statute or by common law. It may eventuate that the land in question is not a public road and, therefore, does not need to go through the road closure process.

  3. Council resolution
  4. If the title search reveals that the land in question has been dedicated as a public road, council should pass a resolution to apply to the Department for the road closure. Neither the Roads Act nor the Local Government Act specifically mandate a resolution for the purpose of closing a road, but the Department requires councils to provide a 'Council report and approval' as part of the road closure application. So a resolution is necessary to make the application.

    Section 43 of the Roads Act will deem the road, on closure, to be operational land, so if council requires the land to be classified as community land, because it is going to be used as parkland, then council should make this classification in its resolution.

  5. Public notice
  6. Council must publish a notice in a local newspaper advising the public of the proposed closing of the public road and allowing any person to make submissions with respect to the closing of the road. The notice must give a minimum period of 28 days for the public to make submissions.

    Council must also write to the affected adjoining land owners to give them notice of the proposed road closure. The letters which are written are very important and should be drafted simply and accurately. For example, an affected adjoining land owner may not really be affected by a road closure if council is only closing the subsurface of the road, but not the surface and the airspace – such as in the case of a below ground development. Accurate letters not only allay the concerns of the neighbouring land owners, but also reduce unnecessary submissions and delays. Council's lawyers can assist in the letter-writing process.

    Council should consider all submissions received and take any action necessary to resolve any objections to the road closure. When the submissions and objections have been resolved, council must prepare a report with a summary and assessment of the submissions and recommendations.

    Depending on the circumstances, adjoining land owners may insist on being granted an easement if it is necessary for their land as a result of the road closure.

  7. Public utilities
  8. As mentioned, numerous public authorities have statutory powers to install and maintain infrastructure on, under, and above public roads. Such infrastructure often comprises electricity cables, water and sewer pipes and telecommunications equipment. Council should undertake a 'dial-before-you-dig' search to determine which authorities may have infrastructure within the road.

    Council should then approach the authorities which have infrastructure within the road to see if they object to the road closure or require an easement to be created as a condition of the road closure.

    It will save council considerable time and expense if it can obtain the agreement of the relevant authorities to the road closure at this early stage. The terms of any easements should be negotiated at this stage.

  9. Survey
  10. Council should now engage a surveyor to prepare a road closure plan. This plan will identify the road to be closed and any easements which the adjoining owners and public authorities require. This plan will be registered at Land & Property Information to create a title for the land on road closure.

    Council's lawyers can help to draft the section 88B instrument which will accompany the road closure plan and which will set out the easements being created with the plan.

    To prevent delays, council should arrange for the adjoining owners and authorities requiring easements to sign the road closure plan and section 88B instrument at this stage.

  11. Formal application to the Department
  12. Council is now in a position to make a formal application to the Department for road closure.

  13. Departmental assessment
  14. The Department will assess the application within a 60 day period.

    If the Department considers that valid objections have not been resolved, then council will be given notice that it must undertake further negotiation and provide the Department with an updated report. The Department will then have a further period of 60 days to consider the report and make a decision. So it is critical for council to resolve all valid objections before lodging its application with the Department.

  15. Departmental approval
  16. If the Department approves the road closure, it will sign the road closure plan and section 88B instrument.

    Council can now lodge the plan and section 88B instrument for registration at Land & Property Information.

  17. Gazettal
  18. Registration of the road closure plan will create a distinctive title for the former road and enable council to prepare a notice for publication in the government gazette of the road closure.

    On publication of the notice in the gazette, the land will cease to be a public road. If the closed road includes the surface and airspace, then the rights of passage and access that previously existed in relation to the road will now be extinguished.

  19. Final steps
  20. Council must provide the Department with a copy of the gazette notice following publication.

    If council wishes, council can apply to Land & Property Information for a certificate of title to the former road. This application takes the form of an LPI request with the gazette notice annexed.

    The issue of a certificate of title will enable council to deal with the property – such as transferring it to a third party or incorporating it into a larger development.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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