Rights of Way - Banyule City Council

2. In certain circumstances, Council may have agreed
to be responsible for the repair and maintenance
of the right of way.
3. Otherwise, maintenance and repair responsibilities
would fall to the owner of the right of way. Where
the owner is the original owner or subdivider,
Council relies on the goodwill of its residents to
maintain rights of way in order to preserve the
appearance (and security) of the area immediately
adjacent to their properties.
Who is responsible for fencing on
rights of way?
Under the provisions of the Road Management Act
2004, Council has no obligation to construct or maintain
fencing on land abutting rights of way or other land
defined as a ‘road’ under the provisions of the Local
Government Act 1989.
Who is responsible for removing
obstructions and encroachments in
rights of way?
Where rights of way are obstructed by abandoned
vehicles, substantial hard rubbish or other materials,
you should contact Council’s Customer Service Unit on
9490 4222 to arrange for the Local Law Unit to have
the matter investigated.
Rights of Way
(roads)
Discontinuance
What is the difference between a
discontinuance and closure of a right
of way?
The discontinuance of a right of way (or road) removes
the ‘road’ status from a parcel of land so that the land is
no longer available for public use. The closure of a ‘road’
temporarily (or permanently) restricts the passage of
vehicular and/or pedestrian traffic upon a parcel of land
whilst retaining the road status of the land.

What are rights of way?
Generally speaking, rights of way are narrow roads providing
access to the rear, and sometimes the side of properties. (In
the past, rights of way were referred to and used as ‘night
cart’ lanes). A right of way may merely be a right to use
land for carriageway or access purposes or it could be a
‘paper road’ i.e. land set aside on a plan of subdivision as a
‘road’ but never used or constructed as a ‘road’.
When can Council discontinue rights
of way?
The Local Government Act 1989 provides Council with
the power to discontinue rights of way and roads when
Council forms the view that the right of way or road is ‘no
longer reasonably required for public use’.
In general, this means that Council must be satisfied that
adjoining property owners do not reasonably require
access to their properties via the right of way or road.
A request to Council for the discontinuance of a right of
way (or roads) is assessed in accordance with the ‘Rights of
Way (Road) Discontinuance Policy’ adopted by Council on
21 February 2000.
Council does not encourage the discontinuance of a
right of way that is constructed on or contains an open
drain. However, such rights of way can be considered
for discontinuance in certain circumstances i.e. when
all abutting owners consent to the
proposed discontinuance and agree
to meet the cost of removing
the existing paving and/or
installing an underground
drainage system.
What is involved in discontinuing rights
of way?
When a written request is received, Council officers
assess the information provided and carry out preliminary
investigations to gauge the suitability of the right of way for
discontinuance and sale.
Details of the proposal are referred to service authorities
for comment and consent to the proposal.
If, following these preliminary investigations, Council
considers that the proposal for discontinuance and sale is
feasible, the land is allocated and valued in accordance with
Council policy.
Before Council decides whether or not to discontinue the
right of way and sell the land to an abutting owner, the
proposal must be publicly advertised. Submissions are invited
from members of the public and must be considered by
Council in accordance with the legislative provisions.
If, having considered any submissions, Council forms the view
that the right of way is ‘no longer reasonably required for public
use’ Council may resolve to discontinue the right of way and
either sell or retain the land. Notice of Council’s resolution
is then published in the Victoria Government Gazette to give
effect to the discontinuance. Council may then proceed to
offer the land for sale to an abutting owner.
This statutory procedure is often a lengthy process and may
take up to 12 months to complete.
What information should be supplied
to Council?
Requests for discontinuance of rights of way require a
written application. Requests must be accompanied by:
• A map or plan showing the right of way and any
vehicular or pedestrian gates and access points;
• Evidence that the right of way is ‘not reasonably
required for public use’. (This can include
photographs and/or statutory declarations by
abutting owners).
• Evidence that abutting property owners and
occupiers affected by the proposed discontinuance
support the proposal;
• A non-refundable application fee of $110.00
(inclusive of GST).
Who owns rights of way?
Land subdivided prior to 1988 left infrastructure assets,
including roads, streets, rights of way and reserves, in the
name of the original owner or subdivider of the land. As
a result, and contrary to popular belief, Council is rarely
the registered owner of such infrastructure assets, but
merely the custodial manager.
Who is responsible for the
maintenance of rights of way?
The person responsible for maintaining a right of way
(road) will often depend on the circumstances surrounding
a particular right of way. As a general guide:
1. If the right of way constitutes a carriageway
easement, the ongoing repair and maintenance of
the easement is the responsibility of the person
who has the benefit of the easement.