When is a road a road? Dispelling confusion regarding road closures under s32 of The Road Traffic Act

LG Leader June 2019

In the wake of numerous new large scale and broad acre residential developments being approved across the state, a reoccurring question we receive is whether councils are required to undertake a road closure process under section 32 of the Road Traffic Act 1961 (“the RT Act”) when new roads are created, for example, by the deposit of a plan of division pursuant to section 223LF of the Real Property Act 1886, and constructed as a footpath or walkway (i.e. for use by pedestrian traffic only)?

Simply put, whether or not a road closure is required turns on the status and the use of the relevant land prior to it becoming and being constructed as a road (including a footpath or shared path) and, in particular, whether or not the land is or was previously open to and accessible for use by the public for the driving of vehicles.

In circumstances where the land in question was not, prior to being constructed and developed for use by the public, open to and accessible by motor vehicles, a council is not required to undertake a road closure under section 32 of the RT Act to construct the road as a walkway or shared path, including by way of installing design elements to restrict vehicular access to the Road.

There are a number of legal reasons that support this position, which include, but are not limited to:

• the proposal ‘to close a road’ to motor vehicles under section 32 of the RT Act necessarily, requires the road to have been open to vehicular traffic in the first instance. This provision addresses circumstances where a road or road-related area (as those terms are defined under the RT Act) is used for the driving of vehicles and the Council proposes to change this use to restrict all or certain vehicles from using the road (i.e. a change in circumstances); and
• where land that acquires legal status as a road (for example, under the Local Government Act 1999 or under the Real Property Act) has not been constructed for use by the public and is not accessible to the public (including by motor vehicles), the land does not (and cannot, reasonably, be said to) come within the definitions of a ‘road’ or ‘road-related’ area under the RT Act and is not land captured by section 32 of the RT Act.

For more information or advice regarding specific circumstances please contact Cimon Burke on 08 8113 7105 or cburke@kelledyjones.com.au.