QUESTION of access throws up tests for all, writes DAVID GABRIEL-JONES
There are 10,000 unused road reserves across rural Victoria.
Every second farm has one.
Sometimes they're clearly visible: parallel fences stretching across the landscape; in between them the only remnant vegetation in sight.
Others are invisible, merging into abutting paddocks, and identifiable only on title documents.
It's been like this for 150 years - since the first surveyors drove in their pegs and measured off distances in chains and links. Not needed for access, these road reserves have been held under licence by the abutting landowner.
Often, licensees have come to regard these reserves as part of their freehold properties.
And even if they do recognise them as being Crown land, they may think they have the security of a 99-year tenure.
This is a misunderstanding. It is one of several concerns with which communities and municipalities may need to come to grips.
Tenure over unused roads does not take the form of a lease, which would give security of tenure. It is only a licence, subject to termination at three months' notice.
As the courts have pointed out in recent judgments, a lease would allow the landholder to lock out the public, whereas a licence does not.
Communities and municipalities may soon have to grapple with these legal curiosities.
VicRoads recently circulated a paper to councils on the subject of orphaned roads, those where users and abutting owners face uncertainties because no authority seems to take responsibility.
At the same time, the Victorian Environment Assessment Council has recommended the Government recognise the environmental values of these roads.
VEAC's view is that appropriate unused roads should be managed for biodiversity conservation and ecological connectivity, but that options be kept open for future access.
It's the question of access that is perhaps the most contentious.
Who should have legal rights to use these road reserves, and for what purposes?
Last week's The Weekly Times covered the plight of Robert and Christine Dove, a farming couple who are in a dispute with neighbours over property access.
The County and Supreme courts had reaffirmed the Doves' right to use the road reserve, even though it was held under licence by neighbours.
The Shire of Yarra Ranges is nevertheless moving to discontinue the road reserve so it can be sold off to the neighbours.
In the Doves' case, we may agree with the courts but it must be acknowledged courts arrive at their conclusions through an examination of Acts of Parliament and legal precedents, not by considering questions of good policy.
Policy is the realm of governments, not the courts.
There are a string of policy issues the State Government and councils should work through as they consider the issues thrown up by VicRoads, VCAT and the courts, not to mention the Bushfire Royal Commission.
First, how should the rights of licensees be balanced against those of the public at large?
The pony club or recreational anglers may have a need to traverse the road, but what if the licensee has stock or crops on it?
We might approve of the CFA using the road, but what about the four-wheel drive club?
These are matters for politicians, not the courts.
Secondly, should abutting owners have greater rights than other members of the public?
Sooner or later, abutting property owners other than the licensee may want to open up the road, or at least put in an access track.
Surely landowners should be confident a road abuttal will grant access to their property when they need it.
Third, how should conservation values be balanced against access rights?
Black Saturday victims such as the Doves, who need a fire escape route, should not be denied permission to build a road just because a couple of trees would need to be replaced.
- David Gabriel-Jones is principal for The Public Land Consultancy.