25 Nov 2021

Suburban Rail Loop Act: Changes to land acquisition, assembly and disposal powers in Victoria under the MTPFA

By Sallyanne Everett, Chris Wiseman, Annika McInerney and Ignatius Quin

A new definition of land and expanded powers coming into operation on 1 December 2021 should prompt project authorities for declared transport projects being delivered under the Major Transport Projects Facilitation Act 2009 to rethink their current and future plans.

Victorian project authorities for declared transport projects under the Major Transport Projects Facilitation Act 2009 (Vic) (MTPFA) will no doubt be grappling with changes to the Suburban Rail Loop Act 2021 (Vic) and what this means for their land acquisition, assembly and disposal powers. These changes, along with the rest of the Suburban Rail Loop Act 2021, will come into operation on 1 December 2021.

We've already explored the effect the Suburban Rail Loop Act will have on managing roads and traffic during project delivery. In this article, we examine the changes in respect of land in more depth, and what project authorities should be thinking about now. In a future article we will address the amendments to the powers of entry and temporary occupation and the specific provisions regarding the acquisition of, and compensation for, underground land./p>

Expanded definition of "land"

In addition to stratum land, "land" will be defined under the MTPFA to include buildings and other structures permanently fixed to the land, land covered in water and an interest in land. As in the Land Acquisition and Compensation Act 1986 (LAC Act), "interest", in relation to land, will mean:

  • a legal or equitable estate or interest in land; or
  • an easement, right, charge, power or privilege in, under, over, affecting or in connection with land.

Dealings in land before project area designation and with specified entities

A new Division 1AA will enable land to be dealt with both before and after a declared project becomes an approved project in certain circumstances.

New section 111B will allow a project authority or project proponent:

  • to acquire land by agreement or hold land for the purposes of the declared project or any purpose connected with the declared project; and
  • transfer or otherwise dispose of land.

This includes the acquisition of land from, or transfer to, a "specified entity", including the Crown, a Minister, a Department Head, a public authority, a Council or a transport body.

Once a project becomes an approved project (ie. upon project area designation), under new section 111C, a project authority will additionally be able to, by agreement, acquire land from or transfer land to specified entities. Any land acquired from, or transferred to, a specified entity under this Division (whether under section 111B or 111C) may be for nominal consideration.

Importantly, new section 111D displaces the application of the LAC Act in relation to land proposed to be acquired under Division 1AA. This will mean that none of the obligation or requirements in the LAC Act will need to be followed prior to acquisition.

Acquisition of land by a project authority

If land is acquired by a project authority under section 112, the land will automatically vest in the Crown unless there is an express declaration that it will vest in the project authority (section 114).

Under amended section 115, land will only be taken to be unalienated Crown land and temporarily reserved for the purposes of the approved project where the project authority acquires the land and all alienated estates and interests in the land vest in the Crown under section 114. This reservation will be able to be amended, revoked or otherwise dealt with under the MTPFA and Crown Land (Reserves) Act 1978 (Vic) (CLR Act).

A project authority's power to purchase land outside the project area for the purposes of an approved project under section 133 will also be extended to allow purchase of land for any purpose connected with an approved project.

Surrender, divestment and acquisition of public authority and Council land

In addition to surrender and divestment, the Governor in Council will be able to make an Order under section 134 to allow the Crown or a project authority to acquire an interest in land within the project area that is vested in a public authority or Council. This may be an interest that did not previously exist. Further, an Order to divest or acquire will be able to specify that the land is to vest in, or be acquired by, the project authority.

Section 136 will be amended so it only applies to land that is surrendered, divested or acquired by the Crown. Further, on the conveyance or publication of an Order under sections 134 or 135, unless expressly excluded, the land will be temporarily reserved under the CLR Act for a public purpose being for the purposes of the approved project, and:

  • the land will be freed and discharged from all limitations, reservations, restrictions, encumbrances, estates and interests;
  • except in the case of an Order providing for the acquisition of an interest in land, the land will be taken to be unalienated land of the Crown;
  • for an Order providing for the acquisition of an interest in land, the interest specified in the Order will vest in the Crown; and
  • any interest in the relevant land will be divested or diminished to the extent necessary to give effect to the above.

Where land is divested or acquired by a project authority under section 134 and the Order specifies that the land vests in the project authority, new section 136A will apply. This new section will make clear that the land or interest in land vests in the project authority freed and discharged from all trusts reservations and encumbrances etc and will automatically discontinue any road unless it expressly provides to the contrary.

The power under section 137B to request the consent of the Project Minister to surrender land to the Crown will be extended to allow surrender of any land the project authority holds in fee simple even if it is not land intended to form part of a lease under section 177, provided it is for the purposes of the approved project or a purpose connected with the approved project.

Other ways of making Crown land available for an approved project

The effect of a designation of Crown land for the purposes of an approved project under section 142A will be clarified to make clear that, unless the Order expressly provides to the contrary, the land is freed and discharged from all interests and will automatically discontinue any road.

A new section 142B will provide for the grant of Crown land to a project authority in fee simple for the purposes of an approved project. However, this will not apply to land reserved under the CLR Act except where the grant is part of section 139 or 140 instrument to remove a temporary or permanent reservation. In that case, the land will be taken to have been granted to the project authority immediately after publication of the Order.

Transfer of easements

An amended section 171A will make clear that a project authority can transfer an easement vested in the project authority or the Crown (if it is project land) to a utility. The section will also be expanded to allow a transfer to a transport body (provided it is capable of holding an easement). The definition of utility will also be expanded to expressly include an entity that provides telecommunication services under the authority of an enactment or law of the Commonwealth.

Surplus land provisions

The surplus land provisions under the MTPFA will also be modified to streamline the process for dealing with surplus land.

Getting to grips with the Suburban Rail Loop Act

On 23 November 2021, the Suburban Rail Loop Act was proclaimed to come into operation in full on 1 December 2021.

In light of the changes set out above, project authorities for declared transport projects should now:

  • consider the impact of the change in the definition of "land";
  • determine whether to exercise new powers to deal with land before project area designation and with specified entities;
  • consider the changes made to the acquisition and surrender and divestment of land, especially the expanded acquisition powers and where the land is to vest; and
  • consider utilising expanded powers for the transfer of easements and dealing with surplus land.

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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.