Crown land roads and accessways

The Land Administration Act 1997 (LAA) is Western Australia’s primary Crown land legislation dealing with the creation and closure of roads. The LAA is administered by the Minister for Lands, assisted by the Department of Planning, Lands and Heritage (DPLH).

Part 4 (section 52) of the LAA has provisions dealing with private roads.

Part 5 of the LAA refers to matters relating to public roads.

Part 6 of the LAA is the State’s legislation covering the sale, leasing and licensing of Crown land. Section 87 of the LAA provides a way of disposal of land after road closures, which would generally be by amalgamation with adjoining properties.

Regulations 6, 8 and 9 of the Land Administration Regulations 1998 (LAR) outline the procedural requirements for local government authorities in acquiring private roads, dedicating public roads and closing public roads.

Similar processes are followed in relation to closing pedestrian access ways (PAW) and right-of-ways (ROW) held by the State of Western Australia in freehold.

The Local Government Act 1995  (LGA) sets out local government authorities’ powers and responsibilities in relation to roads.  

The Planning and Development Act 2005 (PDA) also provides a mechanism for the creation of roads and road widening on the subdivision of freehold land.

The Main Roads Act 1930 (MRA) contains provisions in relation to roads, in particular highways, main roads and secondary roads. This Act gives the Commissioner of Main Roads similar powers to a local government authority.

Dedication – as applied to a public road, is the setting apart or registration of a portion of land for a public road, including road widening.

Dedicated road – a public place provided for the use of the public for traffic movement, and which has been declared, proclaimed, notified or dedicated.

Easement - an easement is a right held by the owner of land (benefited land) over land that is owned by another person (burdened land), to use the burdened land for a particular purpose.

The usual types of easement presented for registration over Crown land are rights of carriageway (access); rights to install and operate drains and drainage works; install, maintain and operate oil, gas or other pipelines and maintain and operate electric power lines, telephone and other cables and supporting pylons.

Highway – a road declared by proclamation to be a highway for the purpose of the MRA.

Local road – any dedicated road that is not a main road or highway.

Main road – a road declared by proclamation to be a main road for the purpose of the MRA.

Road – a route trafficable by motor vehicles; in law, the public right-of-way between boundaries of adjoining properties.

Road closure – the permanent closure of a road.

NOTE: Local governments can close roads for temporary purposes under the Local Government Act 1995

Road corridor – a legally described area within which facilities such as roads, footpaths and associated features are constructed for public travel.

Section 3 of the LAA defines a “private road” as an alley, court, lane, road, street, thoroughfare or yard on alienated land, or a right-of-way created under section 167A(1) of the Transfer of Land Act 1893  (TLA), which:

• is not dedicated, whether under a written law or at common law, to use as such by the public
• is shown on a plan or diagram deposited or in an instrument lodged with the Registrar of Titles
• forms a common access to land, or premises, separately occupied
• once formed or was part of a common access to land, or premises, separately occupied, but no longer does so
• is accessible from an alley, court, lane, road, street, thoroughfare, yard or public place that is dedicated, whether under a written law or at common law, to use as such by the public
• once was, but is no longer, accessible from an alley, court, lane, road, street, thoroughfare, yard or public place that was dedicated, whether under a written law or at common law, to use as such by the public.

Private thoroughfares will often be subject to easements or rights of carriageway created by instruments registered under the provisions of the TLA, or created pursuant to section 167A of the TLA.

A Right of Way (ROW) and Pedestrian Access Ways (PAW) are vested in the Crown under section 152 of the PDA (or previously under s.20A of the Town Planning and Development Act 1928). They are neither public roads nor private roads.

By virtue of section 55(2) of the LAA, section 3.53 of the LGA and section 168(2) of the PDA, the care, control and management of public roads or thoroughfares passes to the relevant local government authority.

The above general rule is modified by section 15 of the MRA, which places the care, control and management of highways and main roads with the Commissioner of Main Roads.The Department of Main Roads Western Australia (MRWA) is the agency who administers the MRA.

It is likely that public and private sector utility installations such as gas mains, telephone cabling and sewerage pipes, are located within a road corridor, either overhead or underground. Dial Before You Dig (www.1100.com.au) is a not for profit organisation delivering a service assisting in provision of information for those registered infrastructure network owners.  These services may also be located in PAWs and ROWs.

Roads may have been dedicated under superseded legislation. In the past, roads have been dedicated by technical description and some roads may be unsurveyed.

In accordance with section 56 of the LAA, local government authorities may request the Minister for Lands, through DPLH, to dedicate land as public road. The local government authority must comply with section 56 of the LAA and regulation 8 of the LAR before submitting a request for dedication of road.

If a local government authority makes a request to the Minister for Lands to dedicate land as public road, it must provide with the request:

1. A copy of Council resolution to request the dedication of the road.
2. Copies of any submissions relating to the request that the local government authority has received and the local government’s comments on those submissions. This may include comments from public utility providers and other government departments.
3. Indemnity in favour of the Minister for Lands against any claims for compensation (other than a claim for compensation in respect of land referred to in s56(6) of the LAA) in an amount equal to the amount of all costs and expenses reasonably incurred by DPLH on behalf of the Minister for Lands in considering and granting the request.
4. Plan of survey, sketch plan or document to describe the dimension of the road
5. Written confirmation that the local government authority has complied with section 56(2) of the LAA.

Upon receiving a request under section 56 of the LAA, DPLH will either grant the request or direct the local government authority to reconsider the request or refuse the request.

To be dedicated as a road the land must immediately before the time of dedication be unallocated Crown land or, in the case of a private road, alienated land and designated in the relevant plan of survey, sketch plan or document as having the purpose of a road.

In accordance with section 58 of the LAA, local government authorities may request the Minister for Lands, through DPLH, to close a public road permanently. The local government authority must comply with section 58 of the LAA and regulation 9 of the LAR before submitting a request for closure of road with following:

1. A copy of Council resolution to request the closure of the road
2. A copy the advertisement to close the road
3. Copies of any submissions and objections to the advertisement as well as comments which address any comments or objections
4. Copies of correspondence with service authorities and other government departments
5. Plan of survey, sketch plan or document showing the location of the road and the proposed future disposition of the land comprising the road after it has been closed
6. Written confirmation that the local government authority has complied with section 58(2) and (3) of the LAA

Proposed road closures are assessed on their individual merits and DPLH acts on the advice of the relevant local government authority, and in consultation with the DPLH Land Use Planning Division. For a wide range of reasons, a road closure may not necessarily be undertaken.  For example, because the road closure would deny formal access to an adjoining or nearby property.

Depending on the circumstances of a proposed road closure and the proposed future disposition, a service authority may require relocation of its facilities at the proponent’s expense, or request a LAA easement to protect its installation in situ.

Subject to LAA requirements being met and there being no impediment to closure, the local government authority will resolve whether to proceed with a permanent road closure or not and will advise DPLH in writing.

Private road closures are affected by taking action pursuant to section 52 of the LAA, with the land then becoming Crown land and then subject to disposition and typically amalgamated with adjoining lot(s) under section 87 of the LAA.

The procedures of section 52 of the LAA and regulation 6 of the LAR are similar to those described previously for public road closures, except that the local government authority must take all responsible steps to give notice to the holder of the subject land, and the holders of freehold land abutting the private road. Owners of land comprising private roads (closed in this way) are not entitled to compensation.

Refer to the WAPC Procedure for the Closure of Pedestrian Access Ways Planning Guidelines.

Following closure, the land is generally disposed of under section 87 of the LAA.