Access to roads under the control of Main Roads WA

Over the last 12 months, Lavan has been involved in a number of matters in which developers and local government agencies have faced difficulties with the position of Main Roads WA (MRWA) with respect to proposals either on or near roads under their control.

In effect, MRWA have adopted a zero risk approach to the roads under their control and taken a position that limits or inhibits the ability for the redevelopment of sites relying on access from a main road.

As a consequence, projects of state and national importance have been placed on hold, have been abandoned or are in the process of appeal and/or litigation.

What is the issue?

The common law, as it applies in Western Australia, provides an owner of land adjoining a highway with the right to a single point of free and uninterrupted access at any point of the premises that is contiguous to that road, subject to the access being “lawfully justified”.

In respect of access to private land, the lawful justification for access is normally established via the grant of planning approval.  That is why it is critically important in preparing an application for planning approval, that access to the site between the road pavement and the development site is shown on the submitted and approved plans.

The common law position is only modified in this state by way of a control of access designation under s28A of the Main Roads Act¹ (in circumstances where compensation is paid to abutting landowners for loss of the common law right).

The power to control development within road reserves including crossovers onto roads under the control of Main Roads is provided by the Local Government Act ²  (LG Act) and regulated by the Local Government (Uniform Local Provisions) Regulations³ (Regulations).

In particular Regulation 14 of the Regulations relates to crossings from public thoroughfares to private land abutting MRWA controlled highways. It states:

14  Role of Commissioner of Main Roads in some cases — Sch. 9.1 cl. 7(2)

1. This regulation applies to a crossing for vehicles from a public thoroughfare that is a Government road to -
   1. land on which premises have been or are about to be constructed; or
   2. a private thoroughfare serving the land.

2. A local government cannot - 
   1. under regulation 12 construct or approve the construction of; or
   2. under regulation 13(1) require the construction of,

a crossing to which this regulation applies unless the local government has consulted with the Commissioner and the Commissioner has approved in writing the construction of the crossing.

3. If a person -
   1. constructs a crossing to which this regulation applies other than in accordance with approval given by the Commissioner under this regulation; or
   2. modifies a crossing to which this regulation applies in such a way that it is not in accordance with approval given by the Commissioner under this regulation,

the Commissioner may, by notice in writing, require the person to bring the crossing into accordance with the approval, if approval was given, or remove the crossing and restore the place where the crossing was to its former condition.

4. If the person fails to comply with the notice, the Commissioner may do anything required by the notice to be done and recover the cost of doing it as a debt due from the person.
5. A person given a notice under sub regulation (3) must comply with the notice.
6. [(6)  deleted.
7. In this regulation — Commissioner means the Commissioner of Main Roads.

What is in essence occurring as a consequence of the framework outlined above is a need for dual approvals relating to land use and access to road infrastructure (i.e. a planning approval and a cross over approval). 

The fact that this occurs is not necessarily problematic if those approvals are consistent with each other.  However a recent trend is emerging resulting in conflict between those approvals.

By way of example, land use approval for a particular development is sought and obtained from the relevant planning decision maker, including the nature of the development and access to road infrastructure, which is the subject of comment from referral agencies (including MRWA), assessment and determination. 

In a majority of circumstances Lavan is involved in, MRWA oppose the proposed development on the basis of a zero risk approach, despite expert evidence to the contrary and even in circumstance that approval is granted (including by the SAT on appeal), MRWA refuse to grant cross over approval consistent with the planning approval.  This causes the assessment of planning decisions to become protracted and likely to be the subject of review in the SAT.

Further, and perhaps more problematically the likelihood of the refusal for the construction of crossovers under the Regulations results despite valid development approvals being obtained, adds an additional layer of uncertainty that is causing developers, financiers and investors to question their investment now and in future.

Lavan comment

If you are involved in a project which requires access to or from a road under MRWA control, or Main Roads has decided to intervene or make negative submissions in respect of your project, even though it is not on a MRWA controlled road, it is recommended that you seek specialist planning law advice early on in your project, to ensure that risks, delays and costs are appropriately mitigated and considered.

Our team has significant experience in this space, and would be happy to discuss any issues you may be facing.