Continuing our series of articles on the Suburban Rail Loop Act 2021 (Vic) (SRLA), in this article we examine the changes in respect of the acquisition of underground land.
Declaration of underground land as project land
On the recommendation of the Project Minister, land below ground level within a project area can be declared to be project land by the Governor in Council publishing an Order in the Government Gazette (underground land). This power now extends to Crown land, including Crown land permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 (CRLA) pursuant to new section 161A(1).
Under modified section 162, an Order may now provide that underground land is to vest in fee simple in the project authority (and not the Crown), freed and discharged from all restrictions and interests. If the relevant land was Crown land, it will vest in the project authority as if there had been a grant of the land for an estate in fee simple. If the Order does not expressly provide for vesting of the land in the project authority, it will vest in the Crown freed and discharged from all restrictions and interests, and will be taken to be temporarily reserved for the purposes of the approved project under the CRLA.
New section 162A further provides that in both cases any prior interest a person had in the land will be divested and diminished to the extent necessary. In respect of roads and riverbanks, unless expressly excluded in the Order, all rights, easements, and privileges will cease upon publication of the Order and any road will cease to be a road.
Except for Crown land, on the recommendation of the Project Minister, new section 162B enables the acquisition of a right in the nature of an easement by Order published in the Government Gazette, even if that right did not previously exist. The right may vest in the Crown or project authority and must be taken to be an easement even though there is no land vested in the Crown or project authority that is benefitted, or capable of being benefitted by that right.
Entry into possession of underground land
Once underground land is declared, new section 155A allows the project authority to enter into possession of the land at any time after declaration, regardless of whether the land is used as a principal place of business or residence.
Also, there is no longer a requirement to try to obtain the agreement of the occupier as to the terms on which the project authority will enter into possession of underground land, as this is now specifically excluded from the obligations of section 152(1).
Where an Order is made under section 162 or 162B, a project authority may be liable to compensate a person for loss of market value in respect of any divested or diminished interest in the land, except that:
- no compensation is payable in relation to any interest in land at a depth of 15 metres or more below the surface
- no compensation is payable to a public authority
- a Council is only entitled to compensation if the Council possessed an estate in fee simple in the land that was divested or diminished.
Market value is to be assessed on a before and after basis - that is the difference in the market value of the person's interest before and after publication of the Order, with market value given the same meaning as section 40 of the Land Acquisition and Compensation Act 1986 (LACA). A claim can also be settled by agreement in part or full through the transfer of a building or structure on specified land under section 164.
A project authority may also be liable to pay compensation if the effect of an Order under section 162 declaring underground land is to deny existing access to land. However compensation is not payable if:
- there is adequate existing alternative access
- the project authority agrees to provide adequate alternative access
- the project authority has begun compulsory acquisition procedures under the LACA for the land to which access is denied
- a claim for compensation is not made within one year of the making of the Order.
New section 165A makes clear that there is no other entitlement to compensation for anything done under Division 6 in relation to underground land.
It is important to note that sections 163 and 164, as in force immediately before 1 December 2021, continue to apply to an Order published in the Government Gazette under section 162 prior to this date (pursuant to section 272 of the Major Transport Projects Facilitation Act 2009 (Vic) (MTPFA)). A key difference is that the provisions in force prior to 1 December 2021 do not prevent a person from claiming compensation for an interest in land at a depth of 15 metres or below the surface of the land.
Ability to install temporary ground supports
As discussed in our previous article on entry and temporary occupation under the MTPFA, new section 165G gives a project authority the power to install temporary grounds supports for the purpose of an approved project. This provision will not apply to measures which were installed prior to the amendments coming into force on 1 December 2021.
Getting to grips with the Suburban Rail Loop Act 2021
In light of the changes set out above, project authorities for declared transport projects should now:
- be aware that the underground land regime in the MTPFA has expanded, including to allow the acquisition of easements where none existed before;
- consider the implications of the new possession provisions on the programme or timeline for a project, noting that possession can be entered into immediately after a section 162 Order is published; and
- familiarise themselves with the new compensation provisions and transitional arrangements, including those set out in sections 163(3) in respect of underground land and 165G(5) in respect of temporary ground supports