Temporary occupation: how the Suburban Rail Loop Act changes powers of entry and temporary occupation under the MTPFA

Victorian project authorities for declared transport projects under the Major Transport Projects Facilitation Act 2009 (Vic) (MTPFA) should be aware that their entry and temporary occupation powers under the MTPFA have changed since the Suburban Rail Loop Act 2021 (Vic) (SRLA) came into operation on 1 December 2021.

Continuing our series of articles on the SRLA, in this article we examine the changes in respect of entry and temporary occupation. In a future article we will address the specific provisions regarding the acquisition of, and compensation for, underground land. 

Displacement of the Land Acquisition and Compensation Act 1986

New subsection 118(5) provides that Part 9 of the Land Acquisition and Compensation Act 1986 (LACA) no longer applies to approved projects, meaning that if a project authority wishes to enter or temporarily occupy land for such projects it will need to do so under the MTPFA. However, where the project authority has given notice under, or has already temporarily occupied land pursuant to, sections 74 or 75 of the LACA prior to commencement of the SRLA, Part 9 of the LACA (as modified by the MTPFA) will continue to apply under the transitional provisions.

Power to enter, occupy, use and carry out works on relevant land

Rather than just carry out works on public land (which includes Crown land or land owned by or vested in a public authority), an expanded section 167 will now allow a project authority, or an authorised person, for the purposes of an approved project to enter, occupy, use and carry out works on any relevant land inside or outside the project area. The amendments to this section also clarify that works can be of a permanent nature.

"Relevant land" includes public land, land owned by or vested in a Council or a company within the meaning of the Corporations Act 2001 (Cth) that exercises a public function on behalf of the State and all the shares are held by or on behalf of the State, a public authority or a state owned enterprise.

Limitations apply to this power in respect of reserved Crown land, however the Project Minister will now be able to grant a licence or tenancy agreement under the Crown Land (Reserves) Act 1978 to facilitate use of the power in respect of reserved Crown land.

Compensation under section 169 has been clarified, with a project authority being liable to compensate a person who has an interest in the relevant land that is interfered with or affected by the exercise of power under section 167 and who has suffered pecuniary loss or incurred an expense as a direct, natural and reasonable consequence of the interference with, or the effect on, that interest.

Entering land before and after a project becomes an approved project

At any time before a declared project becomes an approved project, a project authority, or an authorised person, will now be able to enter any land under new section 165B and do all things necessary or convenient for investigative purposes to determine:

• whether the land should be included in the project area for the declared project; or
• the suitability of the land for the purposes of the declared project.

A range of expanded activities will be able to be undertaken including, for example, undertaking utility and ecological surveys, contamination investigations and determining site conditions including noise monitoring. These are in addition to the range of activities permitted under section 74 of the LACA.

Notice requirements apply when using this power, however land can be entered early with the consent of the occupier or in an emergency. Where the land is primarily used for residential purposes, land can only be entered between 7.30am and 6pm unless the occupier consents.

Once a project becomes an approved project, under section 165C a project authority, or an authorised person, will be able to enter land and undertake the same activities as those listed under section 165B provided it is for the purposes of an approved project or any purpose connected with an approved project. Notice requirements also apply when using this power, however no exemptions or time limits apply as in section 165B.

Investigation and removal of trees and vegetation

New section 165F provides empowers project authorities, or an authorised person, to enter any land and investigate and assess whether any trees or vegetation on the land create a risk to the safety of any person:

• in connection with, or by reason of, a declared project; or
• on or using transport or non-transport infrastructure that is to be, or has been, developed or affected by a declared project.

Once a project becomes an approved project, where a tree or vegetation has been assessed as creating a risk under subsection 165F(1), the project authority or authorised person will be able to enter the land and lop or fell and remove the tree or vegetation. This power may be exercised without the need for a planning permit.

Temporary occupation of any land

As section 75 of the LACA no longer applies to an approved project, project authorities or an authorised person will need to temporarily occupy land under section 165D of the MTPFA. This power allows land to be occupied so long as is necessary for the purposes of an approved project or any purpose connected with an approved project.

The range of activities which can be undertaken under subsection 165D(2) is much broader than section 75 of the LACA, including allowing project authorities to make and use roadways, railways and carparks and to construct driveways, pathways or other means of access to that land, including associated drains and curbs. The project authority can also make land that is temporarily occupied available to the public or section of the public for use for specified activities such as a railway, roadway, pathway or carpark constructed on the land.

At least 7 days prior notice must be given in accordance with section 165E.

A project authority will also need to give the owner of the land a condition report within 14 days after occupying the land, and the land will need to be fenced by the project authority if required by the owner or occupier of the land.

As with section 75 of the LACA, a project authority temporarily occupying land under section 165D will need to pay rent as determined under section 165L.

It is an offence under section 165N for a person who receives notice under section 165E(1) to wilfully do any act or thing calculated to prevent the project authority who gave the notice from exercising any power conferred by section 165D.

Installation of temporary ground supports

A new power has been introduced to the MTPFA in section 165G which will allow project authorities, or an authorised person, to enter, temporarily occupy and use any land below ground level for the purpose of an approved project to install, construct and use construction ground supports or ground stabilisation measures, to temporarily support transport or non-transport infrastructure or the construction of such infrastructure.

The supports or measures must be wholly below ground level once installation is complete and capable of being removed without damaging any permanent project infrastructure located on adjoining land. However, the project authority does not have an obligation to remove the supports or measures once occupation is complete.

Notice requirements apply to the exercise of this power prior to use, and at the end of the temporary occupation (including notifying the owner and occupier of the land of the location and depth of the installation or constructions).

Except where the whole of a support or measure is 15 metres or more below the surface of the land, a project authority may be liable for compensation under section 165G(5) if the owner or occupier has sustained any pecuniary loss or incurred any expense as a direct, natural and reasonable consequence of the removal of supports or measures installed or constructed under this section. A claim for compensation may be made only if the supports or measures are removed, and the claim is made within 2 years after notice is given at the end of the temporary occupation.

Obligations of a project authority and compensation

Under new section 165H, when exercising powers of entry and temporary occupation of land, a project authority, or an authorised person, must:

• cause as little harm and inconvenience and do as little damage as possible to the land and anything on or growing on the land;
• remain on the land only for the period that is reasonably necessary; and
• use all reasonable endeavours to co-operate with the owner and occupier of the land.

Additionally, after the exercise of the powers under Subdivision 1 of Division 7 of the MTPFA, the project authority or an authorised person must remove all plant, machinery, equipment, goods or buildings brought onto, or erected on, the land and, except as otherwise agreed, replace any fence or other structures demolished. The land must otherwise be left, as nearly as possible, in the condition it was in immediately before the land was entered or occupied. Exemptions apply to these requirements as set out in subsection 165H(3), including in respect of ground supports and stabilisation measures installed or constructed under section 165G.

Project authorities are not exempt from any action for nuisance or other injury (if any) done in the exercise of powers under Subdivision 1 of Division 7 to the land or residence of any person other than the person whose land is entered, occupied or used for any of the purposes referred to in the Subdivision.

In accordance with section 165K, except for the exercise of power under section 165G, compensation will be available for a person with an interest in land that has been entered or temporarily occupied under Subdivision 1 of Division 7 who has sustained any pecuniary loss or incurred any expense as a direct, natural and reasonable consequence of that entry or occupation. Any claim under section 165K will be dealt with as if it were a claim under section 47(1) of the LACA (as modified).

Related Insights

• Suburban Rail Loop Act: Changes to land acquisition, assembly and disposal powers in Victoria under the MTPFA
• Not just about rail: Suburban Rail Loop Act clarifies and strengthens project authority road-related powers under MTPFA