ROAD MANAGEMENT ACT 2004 - SCHEDULE 5

ROAD MANAGEMENT ACT 2004 - SCHEDULE 5

Schedule 5—Road property provisions, powers and duties

        1     Vesting of roads and public highways

    (1)     Subject to this clause, the Crown has absolute property in—

        (a)     the land over which there is a freeway or arterial road (whether the freeway or arterial road is constructed at the level of the surface of the land or not); and

        (b)     all land reserved or proclaimed as a road under the Crown Land (Reserves) Act 1978 , the Land Act 1958 , the Forests Act 1958 or the National Parks Act 1975 —

whether before or after the commencement of this Schedule.

    (2)     The declaration of a freeway or arterial road under section 14 as a freeway or arterial road may provide that the declaration has effect in respect of a specified part of the land over which there is a freeway or arterial road of vesting in the Crown absolute property only in a specified stratum.

    (3)     Subclause (1) is subject to any lease or licence granted under—

        (a)     this Act; or

Sch. 5 cl. 1(3)(b) amended by No. 9/2020 s. 390(Sch.  1 item 87.3).

        (b)     the Local Government Act 1989 or the Local Government Act 2020 ; or

        (c)     the Land Act 1958 ; or

        (d)     clause 13(3) of Schedule 5 of the Transport Act 1983 as in force before the commencement of this Schedule.

    (4)     Subject to subclause (6), a road vests in fee simple in the municipal council of the municipal district in which it is located upon becoming a road.

    (5)     The public highway vests in the municipal council free of all mortgages, charges, leases and sub-leases.

    (6)     Subclause (4) does not apply to—

        (a)     a freeway or an arterial road;

Sch. 5 cl. 1(6)(b) amended by No. 49/2019 s. 183(Sch.  3 item 45(a)).

        (b)     a road that becomes a road if it is agreed between the municipal council and the Head, Transport for Victoria that the road should vest in the Head, Transport for Victoria;

        (c)     roads on Crown land;

        (d)     roads vested in a Minister or in any public authority (other than a municipal council).

        2     Nature of ownership of road

    (1)     Clause 1 does not have effect to—

        (a)     impose any duty on the Crown, a municipal council or a public statutory authority as owner of the land in a road that it would not have if it were not the owner of the land but were only the road authority;

        (b)     allow adverse possession or easements by long user to be acquired over the road;

        (c)     authorise the disposition of the fee simple or any estate or interest in the land except as authorised by clause 9;

        (d)     make a road subject to the compulsory acquisition powers under the Land Acquisition and Compensation Act 1986 .

    (2)     Subject to clause 1 and subclause (1), for the purposes of the management of a road, a road authority has the powers that a freehold owner in possession of the land would have.

        3     Boundary of road if no boundary fixed

    (1)     If the boundary of a road has not been fixed, the boundary is deemed to be—

Sch. 5 cl. 3(1)(a) amended by No. 41/2020 s. 13(4).

        (a)     if the road adjoins unalienated Crown land, one metre from the edge of the roadway or any road‑related infrastructure; or

        (b)     if the road adjoins freehold land, the boundary of the freehold land; or

        (c)     subject to subclause (3), if the road adjoins Crown land held under a lease or a licence, the boundary of the Crown land.

    (2)     For the purposes of subclause (1)(a) the edge of the roadway is the edge of the shoulder.

    (3)     Subclause (1)(c) does not apply if the Crown land is held—

        (a)     under a licence of a kind to which section 138A(5) of the Land Act 1958 applies; or

        (b)     under a lease or licence granted under clause 9; or

        (c)     under a lease or licence deemed to have been granted under clause 9.

Sch. 5 cl. 4 amended by No. 28/2009 s. 60.

        4     Obligations in relation to fencing

Despite any Act or rule of law to the contrary, neither the Crown nor a road authority is required to fence or contribute to the fencing of any portion of a road.

        5     Power of State road authority to use road for other functions

Subject to clause 16 of Schedule 7, a State road authority may use a road in the performance of its other functions if the use does not unreasonably interfere with the primary purpose of the road.

        6     Right to support

A road authority has in respect of a road for which it is responsible a right of physical support from land adjacent to the road.

        7     Powers may be exercised in relation to a stratum

A State road authority may exercise any power conferred on a State road authority under this Act in respect of a specified stratum only.

        8     Power to use public land with consent

    (1)     Subject to this clause, a State road authority may for the purpose of the construction or maintenance of a road exercise any power conferred on a State road authority under this Act in respect of unreserved Crown land or land vested in a public authority.

    (2)     Before exercising any power under subclause (1), the State road authority must obtain consent in writing—

        (a)     in the case of unreserved Crown land, from   the Minister administering the Land Act 1958 ;

        (b)     in the case of land vested in a public authority, the public authority or the Minister administering the Act under which the public authority is constituted.

        9     Power to grant lease or licence

Sch. 5 cl. 9(1) amended by No. 49/2019 s. 183(Sch.  3 item 45(b)(i)).

    (1)     Subject to subclause (2), the Head, Transport for Victoria may grant a lease or licence for a period not exceeding 40 years of any part of a road reserve of a road administered by the Head, Transport for Victoria if the Head, Transport for Victoria is satisfied that the lease or licence will not significantly affect the primary use of the road.

    (2)     Subclause (1) does not apply to a road on land administered under the Forests Act 1958 , the National Parks Act 1975 or the Crown Land (Reserves) Act 1978 .

Sch. 5 cl. 9(3) amended by No. 49/2019 s. 183(Sch.  3 item 45(b)(ii)).

    (3)     The Head, Transport for Victoria may enter into a commercial agreement with any person in relation to a lease or licence granted under this clause.

Sch. 5 cl. 9(4) amended by No. 49/2019 s. 183(Sch.  3 item 45(b)(ii)).

    (4)     The Head, Transport for Victoria must give notice to the Minister administering the Land Act 1958 of any lease or licence granted under this clause.

Sch. 5 cl. 9(5) amended by No. 17/2009 s. 13(3)(d).

    (5)     The Minister may, with the agreement of the administering Ministers, determine policies for the granting of leases and licences under this clause.

    (6)     The Minister must cause a copy of any policy determined under subclause (5) to be published in the Government Gazette.

Sch. 5 cl. 9(7) amended by No. 49/2019 s. 183(Sch.  3 item 45(b)(ii)).

    (7)     The Head, Transport for Victoria must comply with any policy determined under subclause (5).

    (8)     Any policies made under clause 13(6) of Schedule 5 of the Transport Act 1983 which are in force immediately before the commencement of this clause have effect as if made under this clause.

    (9)     Nothing in subclause (1) prevents the grant of a lease or licence under the Land Act 1958 of land in a road which is not subject to a lease or licence granted under subclause (1).

Sch. 5 cl. 9(10) amended by No. 17/2009 s. 13(3)(e).

    (10)     In this clause "administering" Ministers means the   Minister or Ministers administering the Land Act 1958 , the Forests Act 1958 , the National Parks Act 1975 and the Crown Land (Reserves) Act 1978 .

        10     Infrastructure not part of land

    (1)     Infrastructure on, in, under or over any road reserve—

        (a)     is not part of the land or road reserve on, in, under or over which it is located; and

        (b)     is personal property of the relevant road authority or infrastructure manager.

Note

Examples of infrastructure are included in the definitions of "non-road infrastructure", road infrastructure and road‑related infrastructure in section 3(1).

    (2)     This clause has effect despite any provision in this Act or any other Act or law relating to the vesting of roads.

        11     Acquisition of land

    (1)     A State road authority may, with the approval of the Minister, purchase or compulsorily acquire any land which is or may be required by the State road authority for or in connection with the performance of its functions under this Act.

    (2)     The Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose—

        (a)     the Road Management Act 2004 is the special Act; and

        (b)     a State road authority is the Authority; and

        (c)         land includes strata above or below the surface of land and easements and rights to use land or strata above or below the surface of the land; and

        (d)     section 74(1)(c) of the Land Acquisition and Compensation Act 1986 has effect as if it also empowered a State road authority to take samples of plants; and

        (e)     section 75 of the Land Acquisition and Compensation Act 1986 has effect as if it empowered a State road authority to enter any land and section 75(6) did not apply.

    (3)     In addition to its powers under section 75 of the Land Acquisition and Compensation Act 1986 , a State road authority may for the purposes of this Act and subject to compliance with subsections (3), (4) and (5) of section 75 of the Land Acquisition and Compensation Act 1986 —

        (a)     carry out investigations on and search for and obtain materials from any land; and

        (b)     use any temporarily occupied land for the purposes of—

              (i)     constructing a roadway on adjoining land; or

              (ii)     placing a temporary roadway or pathway on the land to be used while a road is impassable or for traffic management or safety purposes; and

        (c)     exercise on the land any of its powers under Schedule 6.

    (4)     In full or in part settlement of any compensation which a State road authority is liable to pay, the State road authority—

        (a)     may transfer a building from land owned by a person entitled to the compensation to other land owned either by that person or by the State road authority; or

        (b)     may transfer a building from land owned by the State road authority to other land owned either by the State road authority or by a person entitled to the compensation.

    (5)     Where by the exercise by a State road authority of any of the powers contained in this clause it is necessary to acquire any land compulsorily from the owner thereof—

        (a)     the State road authority may require that owner to take any land adjoining that land which is owned by the State road authority and is no longer required by the State road authority; and

        (b)     the value of that land is to be deducted from any sum to be paid by way of compensation to the owner of the land acquired compulsorily by the State road authority; and

        (c)     if that value cannot be agreed upon between the State road authority and the owner, it is to be settled in the same manner and at the same time as the compensation to be paid to that owner.

    (6)     Where any right to use land or any right in the nature of an easement or purporting to be an easement is acquired by a State road authority, that right is deemed for all purposes to be an easement notwithstanding that there is no land vested in the State road authority or its successors which is in fact benefited or capable of being benefited by that right.

    (7)     Clause 12 does not apply to an easement acquired compulsorily by a State road authority.

        12     Powers of Registrar of Titles

    (1)     The Registrar of Titles may make any recordings that are necessary or expedient in the Register relating to any land affected by the exercise of a power of a State road authority under this Act.

    (2)     Without limiting subclause (1), the Registrar of Titles may require a person to produce any instrument or document other than a certificate of title.

Sch. 5 cl. 13 (Heading) amended by No. 49/2019 s. 183(Sch.  3 item 45(c)).

        13     Head, Transport for Victoria may be appointed as committee of management

Sch. 5 cl. 13(1) amended by No. 49/2019 s. 183(Sch.  3 item 45(d)(i)).

    (1)     Despite anything in any Act, the Head, Transport for Victoria may be appointed to be a committee of management under the Crown Land (Reserves) Act 1978 of any areas of Crown land which are adjacent to any arterial road and are reserved under section 4 of that Act.

Sch. 5 cl. 13(2) amended by No. 49/2019 s. 183(Sch.  3 item 45(d)).

    (2)     Despite anything in any Act, the Head, Transport for Victoria may out of the Roads Fund or another account or fund determined by the Treasurer or the Minister administering Part 7 of the Financial Management Act 1994 expend money upon the improvement of an area of Crown land to which subclause (1) applies.

    (3)     Without limiting the generality of subclause (2), the improvement of an area of Crown land may include the provision of public toilets.

        14     No private right of way or easement on road

A private right of way or easement cannot—

        (a)     develop or co-exist with a public right of way over the same land; or

        (b)     revive on the revocation of the declaration of a road or the discontinuance of a public road or the permanent closure of a road over that land.

Sch. 5 cl. 15 (Heading) amended by No. 49/2019 s. 183(Sch.  3 item 45(e)).

Sch. 5 cl 15 inserted by No. 110/2004 s. 21.

        15     Head, Transport for Victoria may sell land if road or part of road discontinued

Sch. 5 cl. 15(1) amended by No. 49/2019 s. 183(Sch.  3 item 45(f)).

    (1)     If the Head, Transport for Victoria has discontinued the use of a road or part of a road, it may in accordance with this clause sell the land on which the road or part of the road was located, unless the land is administered under the Alpine Resorts (Management) Act 1997 , the Crown Land (Reserves) Act 1978 , the National Parks Act 1975 or the Forests Act 1958 .

    (2)     The provisions of sections 207B to 207E and Schedule 10 of the Local Government Act 1989 , so far as they are applicable and with any necessary alterations, modifications and substitutions, extend and apply to the road or part of the road so discontinued.

Sch. 5A inserted by No. 81/2006 s. 65.