11 Nov 2021

Not just about rail: Suburban Rail Loop Act clarifies and strengthens project authority road-related powers under MTPFA

By Simon Bailey, Peter Holcombe Henley, Jessica Lee and Olivia Hodgetts

Victorian project delivery agencies should consider whether the changes in the Suburban Rail Loop Act 2021 (Vic) may affect existing or proposed authorisations with respect to works on the road.

The Suburban Rail Loop Act 2021 (Vic) clarifies and strengthens the powers of project authorities to manage roads and traffic under the project delivery provisions of the Major Transport Projects Facilitation Act 2009 (Vic) (MTPFA).

The Bill received assent on 19 October 2021, but the Special Gazette proclaiming it did not specify any earlier commencement dates for the MTPFA changes than 1 September 2022 (the backstop commencement date). However, a much earlier commencement date may be proclaimed.

Victorian project delivery agencies using the MTPFA should consider whether the changes outlined below may affect existing or proposed authorisations with respect to works on a road, and:

  • evaluate whether any existing authorisations would extend beyond 1 September 2022 (or earlier date for commencement of the Act) using the existing MTPFA provisions;
  • consider whether any approved project plans or approvals pathways should be updated to reflect the new MTPFA provisions; and
  • consider whether any existing delegations of statutory powers or road functions need to be updated.

For an overview of the Bill see our previous article Suburban Rail Loop Bill delivers for major Victorian Government Transport Projects.

Works power under the MTPFA no longer subject to the Road Management Act

Section 186 has been amended to resolve previous uncertainty about whether its powers could be exercised on roads outside the project area, and confirms that the project authority does not need the consent of the coordinating road authority to exercise these powers. 

Modified section 186 allows a project authority to carry out works (or to authorise other persons to do so) to, on, over, under or in relation to a road:

  • for the purposes of an approved project; and
  • despite anything in the Road Management Act 2004 (Vic) (RMA). 

"Works" includes making improvements to, maintenance or construction of, road infrastructure or non-road infrastructure, and erecting fences, posts and other structures along a road, roadway or across any entrance, approach or means of access to a road.

Powers to discontinue or realign a road

New sections 186A to 186C clarify and streamline the process for discontinuing and realigning a road. A major practical benefit of these changes will be that the project authority can, in a single notice:

  • discontinue or re-align the road;
  • declare the new part of a realigned road; and
  • deal with the land of the discontinued road or section of road, including by vesting it in the project authority or a specified transport body. 

New section 186A allows a project authority to discontinue or realign a road or do both:

  • however, a road cannot be realigned if it would result in land other than "specified land" becoming a road; and
  • "specified land" is defined as project land, land owned by the project authority, land under the management or control of the project authority or land which the project authority has obtained the written consent of that person to use as a realigned road.

A notice issued under section 186A may specify that land in a discontinued or realigned road that is not Crown land will vest in the project authority or a specified transport body. Otherwise it will vest in the Crown and be temporarily reserved for the purposes of the approved project.

Power to temporarily create and deviate roads, and control traffic

Subdivision 1 of Division 8 of the MTPFA currently includes powers to extinguish the “public” status of a road or part of a road, and public highway user rights over it (eg., permanent closure, discontinuance, and realignment), and powers to close a road to traffic temporarily, which do not affect its status as a road under the RMA or extinguish public highway rights. The new provisions make this distinction clearer by establishing (in new sections 186A to 186C) separate processes for discontinuance and realignment and including temporary and partial closure powers in a separate provision. 

Section 186D consolidates into one provision the road powers available to project authorities to:

  • establish temporary roadways on, or deviations of roads over, "relevant land";
  • establish a temporary diversion of traffic onto a temporary roadway to a deviated road; and
  • open or close a road to traffic.

"Relevant land" is defined as project land, land owned by the project authority, land temporarily occupied by the project authority under Part 6, land within a road reserve, land under the management or control of the project authority or land which the project authority has obtained the written consent of that person to use as a temporary road.

New section 191A also makes clear that compensation is available for permanent (discontinuance and re-alignment) and temporary (diversions or deviations) interruptions to access.

Changes to requirements for road authorities to seek project authority consent and act consistently with approved projects

The substitution of sections 188 and 189 is likely to constitutes a considerable shift in the way road authorities and project authorities will interact.

Currently, section 188 provides that a coordinating road authority must not exercise its powers inconsistently with the purposes of an approved project or with the exercise by the project authority of its powers under section 186.

Substituted section 188 re-enacts current section 188 with changes which:

  • extend the prohibition currently in section 188 so that it applies to the exercise of all powers of a road authority, not only to powers exercised by a coordinating road authority;
  • make clear that the prohibition applies to road-related powers exercisable by a road authority in another capacity (for example, a Council exercising power under the Local Government Act 2020 (Vic)); and
  • expand the road-related powers of a project authority which a road authority must not act inconsistently with so that it includes the new and restated powers under sections 186, 186A and 186D, and new Subdivision 3 (Powers related to closed roads).

New section 189 provides that a road authority must obtain the consent of a project authority to carry out works (other than routine maintenance) or discontinue a road within the project area (section 189(1)). The project authority may decide whether or not the intended works or discontinuance will be inconsistent with the purpose of the project, but must make its decision within 14 days (sections 189(4) to (7). Failure to do so will be taken as deemed consent (section 189(8)).

New sections 188 and 189 will resolve uncertainties in the current provisions about the respective powers of project authorities and road authorities in relation to approved projects and strengthen the ability of project authorities to control works (other than maintenance works) on, and the discontinuance of, roads within the project area. 

New powers in relation to closed roads

A new Subdivision 3 in Division 8 of Part 6 is included, containing new powers for project authorities in relation to vehicles parked or things left on closed roads. A project authority may:

  • fix, rescind or vary "no standing" hours during which vehicles may be parked on a road closed to traffic under section 186D (section 195A);
  • remove unlawful, unregistered or abandoned vehicles, or any vehicle or abandoned thing causing an unlawful obstruction which is obstructing or delaying works (sections 195B and 195C — and under section 195E, the Secretary of the Department of Transport has a related power to disclose vehicle registration information so that the project authority can notify the registered operator); and
  • recover as a debt from the relevant owner any reasonable costs incurred in moving or storing a vehicle or other thing under new sections 195B and 195C (section 195D).

The definition of "road function" under the MTPFA has also been amended to include new Subdivision 3, enabling these powers to be delegated to a project contractor under section 105.

Transitional provisions

There are limited transitional provisions (which will be inserted into Part 12 of the MTPFA) which address certain implications of the above changes:

  • a project authority's acts under former section 186 immediately before commencement of the new sections (other than the discontinuance or realignment of a road) will be taken to have been done under the amended section 186 or the new sections 186D(1)(d) or (e) (as applicable), and section 186E will be taken to have been complied with in relation to the closing of a road;
  • a road temporarily closed to traffic under section 190 will be taken to be closed under section 186D(1)(d), and section 186E is taken to be have been complied with in relation to that closure; and
  • in relation to the relocation of a road that:
    • had the effect of denying access to land and for which compensation has not been paid, section 191 (Compensation for denial of access following discontinuation or realignment of road) will continue to apply unamended; and
    • adversely affected a utility and for which compensation has not been paid, section 192 (Compensation for affected utilities) will continue to apply unamended.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.