Sale of rights of way
There are many rights of way (ROW) in Merri-bek. These are also commonly referred to as laneways.
Anytime there is a decision to be made about whether to permanently discontinue and sell a right of way, there is a specific process to follow. This process can be started by us or by a property owner whose property is next to a right of way.
If you are interested in closing a right of way temporarily for an event, you will need a temporary road occupation permit. You can find out more on our Planning an event page.
If you are wanting to close a right of way temporarily for building works, you will need a temporary road occupation permit. Find out more on our Building permits page.
Applying to purchase and discontinue a right of way
To apply to purchase and discontinue a right of way next to your property, you first need to determine how it is used. If the right of way is used by cars, cyclists or pedestrians, or if it is constructed with bluestone or concrete, you cannot purchase and discontinue the right of way. If the right of way is not used or constructed in those ways, then you can apply to purchase and discontinue the right of way.
You can find out more about our process for the purchasing and discontinuing of rights of way in the Rights of Way Associated Policies (DOC 116Kb).
If you have made an application you can discuss it with our Property Services team by calling 9240 1111. The process to purchase and discontinue a right of way generally takes about one year to complete.
What happens after you apply to purchase and discontinue a right of way?
Below is a list of steps we take throughout the process of determining whether a right of way can be purchased and discontinued.
The first thing we do after we get an application to purchase and discontinue a right of way is we inspect the right of way and request information from our relevant officers and statutory authorities. The statutory authorities may include Yarra Valley Water so we can find out if they have any assets in the right of way.
We consider a range of factors for each application, including:
- the location and type of surface
- the access the right of way provides to streets, facilities and open space in the neighbourhood
- how the right of way is used by pedestrians, cyclists and cars
- the drainage requirements of the right of way
- any future development that may change the level of access and use of the right of way.
If the relevant statutory authorities agree with the proposal during step 1, we then consult with other property owners whose property is next to the right of way. This is usually done through a mailed questionnaire to property owners that asks for their views on the matter.
If the other property owners alongside the right of way generally agree with the request to discontinue the right of way in step 2, then a report is presented at a Council meeting asking for formal procedures to sell the right of way begin.
If consent is provided in the Council meeting to begin formal procedures to sell the right of way, then the application is advertised. Property owners whose property is next to the right of way can make a formal submission to Council about whether they would like the right of way to be discontinued.
We consider all submissions before we make a final decision about selling and discontinuing a right of way.
If we decide to permanently discontinue a right of way, the next step is to start the process to sell the former right of way.
Rights of way that are to be discontinued are usually offered for sale in equal proportions to the owners of the properties that are next to the right of way.
If a property owner does not want to take up the offer to purchase an allotment of the right of way, then that portion is offered to the other adjoining property owners. This goes on until an agreement is reached.
The purchase costs for the land of a former right of way include the current market value of the land (determined by an independent valuer) and administrative costs. The sale of land does attract GST which is payable in addition to the purchase price.
Construction of a right of way
We recognise the importance of our right of way (or laneway) network and how it works in combination with our road network.
How are different rights of way classified?
Our Rights of Way Strategy (DOC 3Mb) classifies our different laneways based on their need and use. A summary of these classifications is:
Class 1 - Within the boundaries of an activity centre.
Class 2 - Needed for public use, such as providing important connections and permeability.
Class 3 - Needed for private access to properties.
Class 4 - No longer required for public use and can be discontinued and sold.
How much does it cost to construct a new right of way?
It is difficult to estimate a general cost for constructing an unmade right of way. Costs vary with each project due to the need for and complexity of drainage works and how close the right of way is to the existing stormwater drainage network.
As a general guide, a rate of $250 to $300 per square metre is typical. This includes an allowance for some stormwater drainage works. For example a typical 3 metre wide right of way costs in the order of $7,500 to $9,000 to construct every 10 metres in length.
Construction works are always publicly tendered to ensure current competitive market rates.
Who pays for the construction of a new right of way?
The construction of a new right of way is partially paid for by Council, and the rest of the payment can come from a number of other sources.
We have developed a framework for determining our minimum contribution to right of way construction costs, and this framework is based on the right of way classification which you can find in the 'How are different rights of way classified?' section on this page.
In general we contribute a higher proportion to constructing rights of way which are considered to have greater public use and benefit.
The following are the minimum contribution percentages for different classifications of rights of way:
- Class 1 right of way: minimum contribution of 50%
- Class 2 right of way: minimum contribution of 25%
- Class 3 right of way: minimum contribution of 10%
- Class 4 right of way: no minimum contribution
When a right of way is determined to have a greater benefit to the community we are required to contribute a higher proportion to the construction than these amounts.
Often the best way to pay for the remaining costs of constructing a right of way is using a special charge scheme. A special charge scheme has the properties that gain a benefit from the construction of the right of way contribute to the cost of the right of way construction.
In circumstances where we contribute less than a third of the cost of the right of way construction, we cannot levy a special charge scheme if more than half of the rateable property owners included within the scheme object to it.
Significant changes occurred to the Local Government Act in 1958 and since that time developers have been required to construct roads, footpaths and underground drainage in addition to providing utility services such as gas, electricity, water and street lighting. The special charge scheme was created to pass on the cost of infrastructure improvements to property owners as local infrastructure mostly benefits nearby properties.
In addition to the Local Government Act 1989, Ministerial Guidelines provide guidance on calculating the maximum amount that a we may levy under a special charge scheme.
The level of ‘community benefit’ is required to be calculated as part of developing a Special Charge Scheme. This then determines the ‘benefit ratio’, or the maximum proportion of costs that can be put to property owners who are determined to receive ‘special benefit’ from the works. There is no fixed methodology when it comes to calculating community benefits, however the Ministerial Guidelines state that it should be 'reasonable and consistent in comparison to the estimates of special benefits'.
While the ‘benefit ratio’ identifies the maximum amount that we may levy (or in other words, the minimum amount Council must contribute), the legislation does not prohibit us from contributing more to offset the costs levied to property owners.
In adopting the above framework, we have committed to a minimum contribution, regardless of the ‘community benefit’ that may be determined.
The calculation of the actual amount of costs to each property is a separate process from the calculation of the maximum total levy. The amount of costs is generally determined in consultation with the property owners included within the special charge scheme.
For small laneways the administration cost to set up the special charge scheme may be more than the actual construction of the laneway. These situations can be best approached through a voluntary contribution.
Applying for a new right of way to be built
We usually request that you provide evidence to show that this change is supported by local residents close to the proposed right of way. This is usually provided in the form of a petition with your application submission.
This is due to the amount of resources required once a special charge scheme is developed, and is similar to how we assess requests for parking restrictions.