With recent changes to the legislation governing the management of Crown lands, I thought it would be worth revisiting the subject of one of my first pieces on Road Reserves.
By way of background, when the first formal surveys of land were commenced in the 1830s, access to every holding was provided through a network of Crown roads. These roads were typically aligned with the boundaries of surveyed lots, without any practical consideration given to topography or other barriers that might impede the actual construction of a road. Practical access to every surveyed portion was therefore not assured.
The result is that, while a Crown road reserve might exist on paper, it may be impractical or even impossible to actually build a road on the reserve. Note also that it is the relevant planning authority that decides whether or not it is practical to build a road—not any property owner that might wish to make use of it.
In more recent rural residential subdivisions, the provision of an appropriate public road network is a mandatory requirement. In rural areas, however, it is not uncommon for the practical access to a property to have been ‘inherited’ from a traditional access route over private land.
There are two problems that can arise in cases such as these. The first is that the ‘inherited’ access may never have been formalised, and thus not be legal. This fact usually comes to light when conflict arises between the parties involved.
To provide legal access over private land, a Right of Carriageway (RoC) must be established via negotiation between the owner(s) of the burdened land and the beneficiary of the RoC. A RoC is generally included as a covenant on the title(s) of the burdened land and will explicitly identify any beneficiary. If several individual properties require access via a RoC, each needs to be explicitly identified on the relevant title(s). Any property not so identified will not have legal access via the RoC, regardless of how many other properties might be using it legally.
The other problem that can arise is the maintenance of the access path. This ultimately remains the responsibility of the parties involved, although the primary burden is generally on the beneficiary of the RoC, not the owner of the land. As time passes, and properties change hands, this can become problematic.
From time to time, Council is approached to take over the ownership and maintenance of a private road. These requests will generally be considered favourably provided the road is formed to the standard required by council before ownership is transferred.
A former Mayor joked with me just recently that, when he writes his account of his civic life, it will be entitled “Barking Dogs and Rights of Way”. Perhaps I’ll deal with barking dogs another time…
Pete Harrison ~ The QPR Blog cross-reference
26 September 2017 @ 16:11
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