Significant changes to powers for major transport projects

A project becomes an approved project at the point at which the project area is designated by the Minister for Planning under section 95 the MTPF Act.

The project area defines the boundaries within which some project powers can be exercised.

The amendments simplify the designation step in two main ways:

• Plans will no longer be required to be signed by the Surveyor-General, to avoid the burden on the Surveyor-General and associated delays, because surveying detail is not required for the purposes of determining the extent of the project area. The change brings the Act more into line with project declarations under other Acts.
• For projects to which the MTPF Act (other than Parts 3 and 8 apply), a project area may be designated for any project for which the use and development of land is not prohibited under an existing planning scheme (replacing the current standard which requires that the Planning Minister has made any amendments to the planning scheme).

The SRL Act introduces new Division 1AA of Part 6 of the MTPF Act to provide some new options for dealing with land by agreement. They include:

• project authorities may deal with land, by agreement, before a project becomes an approved project (currently land powers arise only once a project area is designated) (s 111B).
• project authorities, once a project is approved, may acquire land from and transfer land to, certain government bodies ('specified entities'), including for nominal consideration. This will enable (for example) railway land to be more readily transferred to VicTrack, or drainage infrastructure land to be transferred to a water authority (s 111C).

To avoid doubt, section 111D provides that any such agreements will not be subject to the procedural requirements of the LAC Act, even if the project authority is empowered to compulsorily acquire land under another provision or Act.

Currently, land acquired or divested under the MTPF Act becomes Crown land by 'default'. Sometimes there is an option for the land to vest in the project authority, but not for all powers.

The amendments either enable or make it simpler for land to vest in the project authority (though the default position remains that land becomes Crown land). They include:

• Interests in land acquired under s 112, of any kind (not just a fee simple estate), may vest in the project authority if the Notice of Acquisition provides for that result. A new approved form will be created to make it easier for Notices of Acquisition to clearly provide for that result, when that is the desired outcome.
• Orders divesting land owned by Councils or public authorities under section 134 will be able to specify that land vests in the project authority, rather than becoming Crown land. Under the current Act, there needs to be subsequent grant of Crown land under section 137A for the project authority to obtain fee simple title to divested land.
• Orders revoking the reservation of Crown land under section 139 or 140 may be accompanied by a Crown grant of that land to the project authority under new section 142B of the MTPF Act, made at the same time as the revocation order.
• Orders acquiring a stratum of underground land may also specify that the stratum vests in the project authority, rather than becoming Crown land, by operation of new sections 162(4) and 162A(1)(a) of the MTPF Act.

The amendments also provide a broader power to enable the grant of any unreserved Crown land to a project authority under new section 142B. The narrower power currently in s 137A of the MTPF Act is accordingly repealed.

Currently, land divested by public authorities or by local councils under s 134 and underground land acquired under s 162 of the MTPF Act becomes unalienated Crown land, freed from all other interests.

That means that these powers cannot be used only to obtain lesser interests, such as an easement. The amendments enable:

• A section 134 order to be used to acquire, from land vested in a public authority or a Council, a lesser interest, such as rights in the nature of an easement. While this could also be achieved under s 112, section 134 orders have shorter procedures and different compensation consequences.
• An order to be made under new section 162B, by which rights in the nature of an easement can be acquired in a stratum below the surface of land (either separately from or together with an order under section 162).

The amendments (new ss 163-164) will alter the compensation a person is entitled to for the acquisition of an interest in underground land by an Order made under s 162 or 162B. The compensation entitlement is altered in two main ways:

• A person will not be entitled to compensation in relation to the effect of an Order at a depth of 15 metres or more below the surface of land. The reason for this limit is that titles granted since the late 19th century have had a depth of either 50 feet or 15 metres, so an acquisition at a greater depth puts owners of old titles in a similar position to those with newer titles.
• For acquisitions at a depth shallower than 15 metres, compensation will be limited to only market value (i.e. no claim can be made for other losses that would be claimable under the LAC Act, such as for professional expenses). The amendments also provide for that loss of market value to be assessed on a 'before' and 'after' basis, as currently applies under the LAC Act.

The amendments (new ss 165B to 165N) provide a new suite of powers and obligations relating to entry and temporary occupation of privately held land. The new suite of powers replaces the current reliance on sections 74 and 75 of the LAC Act, which are currently applied but heavily modified by the MTPF Act. The new powers include:

• a power to enter onto land before a declared project becomes an approved project, for project investigation activities (s 165B).
• a power once the project is approved to enter land and to undertake a broader range of activities, including the things presently authorised under s 74 of the LAC Act and the additional investigatory activities in new section 165B (s 165C).
• a power to temporarily occupy any land for an approved project, and to do a range of things on the occupied land. The things that may be done on the occupied land include each of the things authorised by section 75(2) of the LAC Act, the additional things added currently by s 119 of the MTPF Act, and additional powers to make and use roadways, railways or carparks and construct driveways, pathways or other means of access to the land (including associated drains and curbs) (s 165D).
• a power to enter land to investigate and assess whether trees or vegetation create a safety risk. If such a safety risk is identified, it also provides for a power to enter land to lop, fell or remove such trees or vegetation. This is similar to powers presently available for railways under the Rail Management Act 1996 (s 165F).
• a power to occupy and use land below ground level to install support measures for project infrastructure being constructed on other land, where that support is only required for the construction period of the project. The separate power has different consequences than the ordinary occupation power: rent is not required to be paid for the underground land, the compensation entitlement is modified, and the support measures can be left in the ground at the end of the period of occupation (s 165G).

The project authority will be under a range of obligations for land occupied under these provisions. The project authority will be generally under a 'make good' obligation, but there will be clearer exceptions or more specific provision for certain types of actions (e.g. to replace a demolished fence). A project authority may also agree with the owner or occupier to restore the land to an alternative state to the state it was in when the occupation commenced (165H).

The amendments also provide, in new sections 167 and 168, a consolidated power to enter and use public land (as defined, which includes Crown land) and other similar types of land. In summary:

New section 167 will, in contrast to the current provision, authorise the use of land and works on land (instead of just works). Use of reserved Crown land will be subject to the same limitation as currently applies to the conduct of works currently provided for in section 167.

Section 170 of the MTPF Act, which currently provides a project authority with a power to use or authorise use of Crown land, is repealed, as a consequence of the use of Crown land being covered by new section 167.

The SRL Act includes, in new sections 186 to 186E, clearer and distinct powers to authorise different types of actions and activities in relation to roads. The amendments are intended to cover much the same field as section 186 and 189 of the current Act, but in a way that better aligns with the legal framework for managing roads in the Road Management Act 2004. The amendments include:

A power, in s 186, for the project authority to carry out, or authorise any person to carry out works to, on over, or under or in relation to a road for the purposes of an approved project. The works may be conducted for any type of infrastructure (whether road related or not), and without obtaining any further permission under the Road Management Act.

A power for a project authority to discontinue a road or realign a road (s 186A). The power to discontinue a road is in much the same terms as currently provided in section 186. The realignment power enables the project authority to, by a single notice, discontinue the road over those parts of the land no longer intended to form part of the road, and to declare the new alignment to be a road.

A power, in s 186D, for a project authority to temporarily manage roads and traffic, including: provide for temporary roadways on relevant land (a defined class of land the authority has obtained the power to use by other means); temporarily deviate a road over relevant land; temporarily divert traffic onto a temporary roadway or a temporarily deviated road; and to close or open a road to traffic. These powers may apply to any part of a road (for example, to close one lane of a road to traffic).

A clarification and expansion of existing requirements that a road authority not exercise its powers inconsistently with an approved project (s 188), and a new consent procedure in section 189 for works on roads and road discontinuances proposed in a project area by road authorities.

A new Subdivision 3 is inserted into Division 8 of Part 6 into the MTPF Act to provide the project authority with similar powers with respect to vehicles that road authorities possess under the Road Management Act 2004. The project authority will have:

• powers to alter parking conditions on roads closed to traffic for the purposes of an approved project and
• powers to remove vehicles or objects from closed roads if the vehicles or objects are obstructing or delaying works for the purposes of the approved project.

The SRL Act also makes amendments:

• To more clearly enable powers dealing with Crown land reserved under the Crown Land (Reserves) Act 1978 to also deal with land deemed to be reserved under that Act by the operation of other Acts, including the MTPF Act.
• To clarify that the project authority obtains possession of acquired land using the process in Division 5 of Part 6 of the MTPF Act. At the moment, LAC Act possession provisions also nominally apply to land acquired under the MTPF Act. The amendment removes that duplication. Amendments are also made to make clearer that the project authority can take immediate possession of underground land that has been acquired.
• To enable the project authority to transfer an easement in gross that has been obtained for project purposes to be transferred to a transport body (provided that body has the capacity to own an easement in gross) as well as a utility under section 171A. Some additional technical amendments have been made to that provision.
• To clarify and broaden the powers given to the Project Minister to deal with land no longer required for the development of the approved project (the 'surplus land' powers). The amendments clarify the intended meaning of 'surplus land'; project land may be declared surplus land if the Project Minister considers it is no longer necessary that the land be used or managed as project land under that Act. For example, once a railway is constructed on Crown land as part of a project, the surplus land powers can be used to re-reserve that land for railway purposes. The amendments also address a number of technical matters to make the Project Minister's powers with respect to surplus Crown land more effective. (ss 181-185)
• To provide that Council permissions are not required for the project, even outside the project area, but that planning permits are still required (even if the responsible authority is the Council) (s 258A).
• To provide a new set of options for effecting service of the various notices that may be required to be provided under the MTPF Act (s 264).

Contact our team

Mark Egan, Special Counsel
Phone: 0428 906 373
Email. mark.egan@vgso.vic.gov.au