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TRANSPORT ADMINISTRATION ACT 1988 - SCHEDULE 6B

TRANSPORT ADMINISTRATION ACT 1988 - SCHEDULE 6B

SCHEDULE 6B – Special provisions for underground rail facilities

(Section 97)

1 Interpretation

(1) In this Schedule--


"rail authority" means TAHE, Sydney Metro, Sydney Trains, ARTC or TfNSW.


"underground rail facilities" means--
(a) rail infrastructure facilities that are located under the surface of land, and
(b) structures and facilities for or associated with the provision of railway services (such as railway stations, platforms, access ways and vents), being structures and facilities that are located under the surface of land.
(2) For the purposes of this Schedule, an underground rail facility is taken to be owned by a rail authority if the facility is on land owned or occupied by the rail authority (even if the facility is in fact owned by another person).
(3) This Schedule extends to underground rail facilities in existence on the commencement of this Schedule.

2 No compensation for acquisition of land for underground rail facilities

(1) If land under the surface is compulsorily acquired under the Land Acquisition (Just Terms Compensation) Act 1991 for the purpose of underground rail facilities, compensation is not payable under that Act unless--
(a) the surface of the overlying soil is disturbed, or
(b) the support of that surface is destroyed or injuriously affected by the construction of those facilities, or
(c) any mines or underground working in or adjacent to the land are thereby rendered unworkable or are injuriously affected.
(2) Section 62(2) of the Land Acquisition (Just Terms Compensation) Act 1991 does not apply to the compulsory acquisition of land under that Act for the purpose of underground rail facilities.
(3) Expressions used in this clause have the same meaning as in the Land Acquisition (Just Terms Compensation) Act 1991 .
(4) This clause extends to the acquisition of land for the purpose of underground rail facilities before the commencement of this clause, but not so as to affect any payment or award of compensation made before that commencement.

3 Compensation for damage to underground rail facilities

(1) A person who, without the consent of a rail authority, carries out any activity that causes destruction of, damage to or interference with any underground rail facility owned by the rail authority is liable to compensate the rail authority for all loss or damage suffered by the rail authority as a result.
(2) It is a defence in an action for compensation under this clause if the defendant establishes that the defendant did not know and could not reasonably be expected to have known that the destruction, damage or interference concerned would result from the carrying out of the activity concerned.
(3) A rail authority is not entitled to compensation under both this clause and another provision of this Act for the same destruction, damage or interference.
(4) A reference in this clause to a person who carries out an activity extends to any person--
(a) who caused the carrying out of the activity, or
(b) under whose order or direction the activity was carried out, or
(c) who aided, assisted, counselled or procured the carrying out of the activity.
(5) A rail authority may proceed against a person for recovery of loss or compensation for damage under this clause whether or not the rail authority has proceeded against the person principally responsible for the loss or damage or any other person involved in the carrying out of the activity that caused the loss or damage.

4 Right of support for underground rail facilities

(1) There is declared to be a right of support for an underground rail facility owned by a rail authority and a duty of care is declared to exist in relation to that right of support for the purposes of the common law of negligence.
(2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the
"supporting land" ) that removes the support provided by the supporting land to any underground rail facility owned by a rail authority.
(3) For the purposes of this clause,
"supporting land" includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed.
(4) The duty of care under this clause does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state provided to the underground rail facilities.
(5) A reference in this clause to the removal of the support provided by supporting land includes a reference to any reduction of that support.
(6) This clause does not apply in relation to anything done or omitted to be done before the commencement of this clause.

5 Implied covenant for protection of underground rail facilities

(1) Land above, under or adjacent to an underground rail facility owned by a rail authority is taken to be the subject of a covenant in favour of the rail authority pursuant to which the owner from time to time of that land must ensure that--
(a) the underground rail facility is not wilfully or negligently destroyed, damaged or interfered with, and
(b) no structure or object is placed in contact with or near the underground rail facility in a manner that interferes with the operation of the facility, and
(c) land is not excavated to expose the underground rail facility without the consent of the rail authority.
(2) A lease, including a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 , is taken to include a term requiring the lessee of land referred to in subclause (1) or any part of it to comply with the same obligations, in relation to land, as are imposed by that subclause on the owner who has leased the land to the lessee.
(3) A covenant under this clause is enforceable as a duly created covenant.
(4) It is a defence to proceedings by a rail authority in respect of a covenant under this clause that the owner or, in a case to which subclause (2) applies, the lessee could not reasonably have prevented action taken by any person that would (had it been capable of prevention by the owner or lessee) have resulted in a breach of covenant under this clause by the owner or lessee.

6 Removal of things interfering with underground rail facilities

(1) A person who places a structure or object in contact with or near an underground rail facility owned by a rail authority in a manner that interferes with the operation of the facility, must, on receiving a written notice from the rail authority requiring the removal of the structure or object--
(a) remove the structure or object within the period specified in the notice, and
(b) compensate the rail authority for all loss or damage suffered by the rail authority as a result of the placement of the structure or object in contact with or near the facility.
(2) If a person fails to comply with a notice under this clause within the period specified in the notice or within any extension of that period allowed by the rail authority in writing, the rail authority may remove the structure or object and recover from the person the cost of the removal together with compensation for all loss or damage referred to in subclause (1).
(3) A rail authority in whom an underground rail facility is vested, or who manages or controls an underground rail facility, has the same functions under this clause as any other rail authority that is the owner of the facility for the purposes of this Schedule.
(4) This clause does not apply to or in respect of underground rail facilities to the extent that an ARTC arrangement provides that any specified provisions of this clause do not apply to or in respect of ARTC and a rail authority in relation to those facilities.

7 Other provisions not affected

Nothing in this Schedule limits or otherwise affects the operation of any other provision of this Act in relation to underground rail facilities.

8 Application of section 42 of Real Property Act 1900

The provisions of this Schedule have effect despite anything contained in section 42 of the Real Property Act 1900 .