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TASMANIA
__________
RAIL INFRASTRUCTURE BILL 2007
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Application of Act the rail network
5. Act binds Crown
6. Act prevails over certain other Acts
PART 2 RAILWAY ENTITIES
7. Rail Infrastructure Owner
8. Rail Infrastructure Manager
9. Rolling Stock Operator
10. Status of railway entities for owner accreditation under Rail
Safety Act 1997
11. Responsible public land manager for gas and electricity
infrastructure approvals
PART 3 LANDS AND PLANNING
Division 1 Land acquisition
12. Minister may acquire land for railway purposes
Division 2 Rail planning corridors
13. Interpretation of Division
[Bill 34]-III
14. Declaration of rail planning corridors
15. Effect of declarations as regards permitted planning applications
16. Effect of declarations as regards discretionary development
applications
17. Effect of declarations as regards minor amendment of permits
18. Effect of declarations as regards compensation and land
acquisition
Division 3 Miscellaneous
19. Planning status of railway works
PART 4 WORKS AND ACCESS
Division 1 Fencing
20. Fencing obligations of Rail Infrastructure Owner
Division 2 Railway works and works access
21. Emergency works access to adjoining land
22. Routine works access to adjoining land with permission
23. Routine works access to adjoining land without permission
24. Clearing obstructions to lines of sight, &c.
25. Damage to be made good, &c.
26. Control of vegetation
27. Demolition, &c., of unlawful works
Division 3 Service infrastructure
28. Interpretation of Division
29. Installation of service infrastructure on rail network
30. Compliance with installation conditions
31. Removal, &c., of problematic service infrastructure
32. Removal, &c., of pre-existing service infrastructure
33. Removal, &c., of unlawful service infrastructure
34. Relationship to service infrastructure legislation
Division 4 Responsibility for railway crossings, &c.
35. Interpretation of Division
36. Maintenance responsibilities at railway crossings public roads
2
37. Maintenance responsibilities at established level crossings
private roads
38. Construction of new level crossings private roads
39. Compliance with construction conditions
40. Railway entity to reinstate public road after removing tracks
from level crossing
Division 5 Works liabilities
41. Liability for forced consequential infrastructure works
42. Non-feasance protection for failure to carry out railway works
Division 6 Rights and obligations of adjoining landholders
43. Right of emergency access to rail network
44. Notification and control of major excavations
45. Control of drainage
PART 5 MISCELLANEOUS
46. Service of notices and other documents
47. Delegation by Minister
48. Regulations
49. Amendment of Schedule
50. Status of orders
51. Administration of Act
52. Consequential Amendments
SCHEDULE 1 THE RAIL NETWORK
SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
3
4
RAIL INFRASTRUCTURE BILL 2007
(Brought in by the Minister for Infrastructure, the Honourable
James Glennister Cox)
A BILL FOR
An Act to provide for and facilitate the operation of the
State's major rail network including its attendant land and
infrastructure consequent on its reversion to State control
and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Rail Infrastructure
Act 2007.
2. Commencement
This Act commences on a day to be proclaimed.
3. Interpretation
(1) In this Act, unless the contrary intention
appears
[Bill 34] 5
Rail Infrastructure Act 2007
Act No. of
s. 3 Part 1 Preliminary
"access", land, means enter and cross over the
land or enter and remain on the land;
"adjoining land" means land adjoining the
rail network;
"adjoining landholder" means the owner or
occupier of adjoining land;
"administrative costs" includes assessment,
supervision and inspection costs;
"carry out" includes cause to be carried out;
"commencement day" means the day
proclaimed under section 2;
"deal", with a railway emergency, includes
(a) assess, avert and lessen the
railway emergency; and
(b) take any necessary or incidental
remedial or follow-up action;
"emergency railway works" means railway
works to deal with a railway emergency;
"maintain", the rail network, includes
(a) repair the rail network; and
(b) modify the rail network; and
(c) upgrade the rail network; and
(d) any dismantling or replacement
of infrastructure carried out in
6
Rail Infrastructure Act 2007
Act No. of
Part 1 Preliminary s. 3
connection with such a repair,
modification or upgrade;
"notice" means notice in writing;
"occupier", of land, means a person who has,
or is entitled to, possession or control of
the land;
"owner", of land, means any one or more of
the following:
(a) in the case of a fee simple estate
in land, the person in whom that
estate is vested;
(b) in the case of land that is not
registered under the Land Titles
Act 1980 and is subject to a
mortgage, the person for the time
being holding the equity of
redemption in that mortgage;
(c) in the case of land held under a
tenancy for life, the person who is
the life tenant;
(d) in the case of land held under a
lease for a term of not less than
99 years or for a term of not less
than such other prescribed period,
the person who is the lessee of
the land;
(e) in the case of land in respect of
which a person has a prescribed
7
Rail Infrastructure Act 2007
Act No. of
s. 3 Part 1 Preliminary
interest, the person with the
prescribed interest;
(f) in the case of land that has not
been alienated from the Crown,
the Minister, authority or other
person responsible for managing
the land;
"person" includes a body of any kind;
"protective protocol" means a lawful land
use protocol, standard or restriction
relating, but not limited, to the following:
(a) an agricultural or industrial
research or development project;
(b) air, soil or water quality;
(c) biological control;
(d) crop security;
(e) food standards or hygiene;
(f) occupational health and safety;
(g) plant or animal quarantine;
(h) product processing;
(i) waste treatment;
"rail infrastructure" or "infrastructure"
includes
(a) rail lines and fastenings; and
8
Rail Infrastructure Act 2007
Act No. of
Part 1 Preliminary s. 3
(b) crossing loops, sidings, switches
and points; and
(c) sleepers and ballast; and
(d) drains and culverts; and
(e) bridges, cuttings, tunnels and
embankments; and
(f) poles and pylons; and
(g) structures and supports; and
(h) overhead lines; and
(i) platforms and railway stations;
and
(j) rail yards; and
(k) freight sheds, workshops and
associated buildings; and
(l) electrical substations; and
(m) signs and signalling equipment;
and
(n) train control and communication
systems; and
(o) traffic control devices that are
capable of being automatically
activated by trains; and
(p) plant, machinery and other fixed
equipment;
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Rail Infrastructure Act 2007
Act No. of
s. 3 Part 1 Preliminary
"Rail Infrastructure Manager" see
section 8;
"Rail Infrastructure Owner" see
section 7;
"rail network" see section 4;
"railway" see subsection (2);
"railway crossing" means a level crossing or
other place where a road and railway
track intersect;
"railway emergency" includes, but is not
limited to
(a) an imminent threat to the safety
or operability of the rail network
arising from natural or artificial
causes; and
(b) a notifiable occurrence within the
meaning of the Rail Safety Act
1997;
"railway employee" means an employee or
contractor of a railway entity;
"railway entity" means the Rail
Infrastructure Owner, a Rail
Infrastructure Manager or a Rolling
Stock Operator;
"railway operations" means either or both of
the following:
(a) operating trains;
10
Rail Infrastructure Act 2007
Act No. of
Part 1 Preliminary s. 3
(b) carrying out activities connected
with the operation of trains;
"railway works" means works to maintain or
extend the rail network;
"recover", a debt, means recover the debt in a
court of competent jurisdiction;
"responsible Rail Infrastructure Manager",
in respect of any power, function,
obligation, liability or other matter,
means
(a) if there is a Rail Infrastructure
Manager for the entire rail
network, the Rail Infrastructure
Manager; or
(b) if there is a Rail Infrastructure
Manager for the part of the rail
network to which the power,
function, obligation, liability or
other matter relates, that Rail
Infrastructure Manager;
"restricted Rail Infrastructure Manager"
see section 8;
"road" means any kind of road, street, lane,
path or stock crossing;
"Rolling Stock Operator" see section 9;
"routine railway works" means railway
works other than emergency railway
works;
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Rail Infrastructure Act 2007
Act No. of
s. 4 Part 1 Preliminary
"standards" means any State, national or
international standards, codes or
guidelines relating to railway operations
or to railways or their management;
"track" has the same meaning as in the Rail
Safety Act 1997;
"train" has the same meaning as in the Rail
Safety Act 1997.
(2) In this Act, unless the contrary intention appears,
a reference to a railway is taken to be a reference
to the track of the railway, the land corridor
along which the track of the railway is laid and
all of the attendant rail infrastructure.
(3) To avoid doubt, land is not taken to be adjoining
land for the purposes of this Act unless, fences,
ditches or other artificial barriers
notwithstanding, the land is in fact contiguous to
the rail network.
(4) A note in the text of this Act does not form part
of this Act.
4. Application of Act the rail network
(1) This Act applies to the State rail network
(referred to throughout this Act as the "rail
network").
(2) The rail network consists of the railways
specified in Part 1 of Schedule 1, other than
railways, or railways of a kind, specified in
Part 2 of that Schedule.
12
Rail Infrastructure Act 2007
Act No. of
Part 1 Preliminary s. 5
5. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
6. Act prevails over certain other Acts
If a provision of this Act is inconsistent with a
provision of the Crown Lands Act 1976 or
Boundary Fences Act 1908, the provision of this
Act prevails to the extent of the inconsistency.
13
Rail Infrastructure Act 2007
Act No. of
s. 7 Part 2 Railway Entities
PART 2 RAILWAY ENTITIES
7. Rail Infrastructure Owner
(1) The Rail Infrastructure Owner is
(a) such person as the Minister, by order,
designates; or
(b) in the absence of such a designation, the
Crown in right of Tasmania.
(2) The Rail Infrastructure Owner has
(a) such powers and functions in respect of
the rail network as are conferred and
imposed on it by this or any other Act;
and
(b) such incidental and ancillary powers as
may be necessary or convenient in that
regard.
8. Rail Infrastructure Manager
(1) The Minister, by order, may designate a person
as Rail Infrastructure Manager for
(a) the entire rail network; or
(b) a part of the rail network specified in the
order.
14
Rail Infrastructure Act 2007
Act No. of
Part 2 Railway Entities s. 8
(2) A person designated as Rail Infrastructure
Manager for a part of the rail network is a
"restricted Rail Infrastructure Manager".
(3) The Minister must ensure that, at any time, no
part of the rail network has more than one Rail
Infrastructure Manager.
(4) A Rail Infrastructure Manager has
(a) such powers and functions in respect of
the rail network (or, if it is a restricted
Rail Infrastructure Manager, its part of
the rail network) as are conferred and
imposed on it by this or any other Act;
and
(b) such incidental and ancillary powers as
may be necessary or convenient in that
regard.
(5) If any part of the rail network does not for the
time being have a Rail Infrastructure Manager,
the Rail Infrastructure Owner
(a) may exercise or perform any power or
function that a Rail Infrastructure
Manager for that part of the rail network
could exercise or perform; and
(b) is responsible for discharging any
obligation that a Rail Infrastructure
Manager for that part of the rail network
would have; and
(c) may incur any liabilities that a Rail
Infrastructure Manager for that part of
15
Rail Infrastructure Act 2007
Act No. of
s. 9 Part 2 Railway Entities
the rail network would be capable of
incurring.
9. Rolling Stock Operator
A Rolling Stock Operator is a person permitted
to use all or part of the rail network to carry out
railway operations.
10. Status of railway entities for owner accreditation
under Rail Safety Act 1997
For the purposes of the Rail Safety Act 1997, the
following provisions apply:
(a) if there is one Rail Infrastructure
Manager for the entire rail network, the
Rail Infrastructure Manager is taken to
be the owner of the railways in the rail
network;
(b) if there is a Rail Infrastructure Manager
for a part of the rail network, that Rail
Infrastructure Manager is taken to be the
owner of the railways in that part of the
rail network;
(c) if for the time being a part of the rail
network does not have a Rail
Infrastructure Manager, the Rail
Infrastructure Owner is taken to be the
owner of the railways in that part of the
rail network;
16
Rail Infrastructure Act 2007
Act No. of
Part 2 Railway Entities s. 11
(d) if for the time being no part of the rail
network has a Rail Infrastructure
Manager, the Rail Infrastructure Owner
is taken to be the owner of the railways
in the rail network.
11. Responsible public land manager for gas and
electricity infrastructure approvals
For the purposes of section 84 of the Gas Act
2000 and section 52 of the Electricity Supply
Industry Act 1995, the following provisions
apply:
(a) if there is one Rail Infrastructure
Manager for the entire rail network, the
Rail Infrastructure Manager is taken to
be the responsible management authority
for the public land in the rail network;
(b) if there is a Rail Infrastructure Manager
for a part of the rail network, that Rail
Infrastructure Manager is taken to be the
responsible management authority for the
public land in that part of the rail
network;
(c) if for the time being a part of the rail
network does not have a Rail
Infrastructure Manager, the Rail
Infrastructure Owner is taken to be the
responsible management authority for the
public land in that part of the rail
network;
17
Rail Infrastructure Act 2007
Act No. of
s. 11 Part 2 Railway Entities
(d) if for the time being no part of the rail
network has a Rail Infrastructure
Manager, the Rail Infrastructure Owner
is taken to be the responsible
management authority for the public land
in the rail network.
18
Rail Infrastructure Act 2007
Act No. of
Part 3 Lands and Planning s. 12
PART 3 LANDS AND PLANNING
Division 1 Land acquisition
12. Minister may acquire land for railway purposes
(1) The Minister may acquire land for railway
purposes.
(2) The Land Acquisition Act 1993 applies to the
acquisition and the land acquired.
(3) Where the Minister is authorised under this
section to acquire any land, that land may be
acquired by the exchange for that land of any
Crown land if the Director-General of Lands
consents.
(4) An exchange of land under this section may be
made on such terms and conditions as may be
agreed, including terms and conditions with
respect to the payment, giving or receipt of any
money or other consideration by way of
exchange.
(5) For the purpose of effecting an exchange, the
Governor, in the name of the Crown, may grant
any Crown land for an estate in fee simple.
Division 2 Rail planning corridors
13. Interpretation of Division
In this Division
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Rail Infrastructure Act 2007
Act No. of
s. 13 Part 3 Lands and Planning
"affected railway" means a part of the rail
network in respect of which a rail
planning corridor has been declared
under this Division;
"appeal" means an appeal to the Resource
Management and Planning Appeal
Tribunal under Division 3 of Part 4 of the
Land Use Planning and Approvals Act
1993;
"condition" includes restriction;
"discretionary development" means a
development or use to which section 57
of the Land Use Planning and Approvals
Act 1993 applies;
"permitted development" means a
development or use to which section 58
of the Land Use Planning and Approvals
Act 1993 applies;
"planning authority" means a planning
authority within the meaning of the Land
Use Planning and Approvals Act 1993;
"rail network" includes a proposed extension
of the rail network;
"rail network safeguard" means a condition
imposed on a permit for a permitted or
discretionary development to ensure the
safety or operability of the rail network;
20
Rail Infrastructure Act 2007
Act No. of
Part 3 Lands and Planning s. 14
"rail planning corridor" means a planning
corridor declared by an order in force
under section 14(1).
14. Declaration of rail planning corridors
(1) To ensure the safety or operability of the rail
network, the Minister, by order, may declare a
planning corridor in respect of any part of the
rail network.
(2) In determining the width of the planning corridor
the Minister may have regard to
(a) any standards; and
(b) any accreditations, plans or other matters
in place under the Rail Safety Act 1997;
and
(c) any other matters the Minister considers
relevant.
(3) The Minister may revoke an order under
subsection (1) at any time and must do so
without delay if he or she becomes aware that
(a) in the case of an order in respect of
existing rail network, the rail network
has been permanently dismantled or has
ceased permanently to be operational;
and
(b) in the case of an order for a proposed
extension of the rail network, the
21
Rail Infrastructure Act 2007
Act No. of
s. 15 Part 3 Lands and Planning
extension is not going to be constructed
or made operational.
15. Effect of declarations as regards permitted planning
applications
(1) If application is made for a permit for a
permitted development wholly or partly within a
rail planning corridor
(a) the relevant planning authority must give
the Minister notice of the application
and, subject to the time constraints of
section 58(2) of the Land Use Planning
and Approvals Act 1993, at least 14 days
in which to advise the planning authority
on the proposed development; and
(b) the Minister may, within that period, give
the planning authority such advice on the
application as the Minister thinks fit and
in so doing may recommend that the
permit be granted subject to rail network
safeguards specified in the advice.
(2) If the Minister gives such advice, the planning
authority
(a) may have regard to the advice in
determining the application; and
(b) may, without limiting its discretion, grant
the permit subject to any rail network
safeguards recommended by the Minister
(with or without modification).
22
Rail Infrastructure Act 2007
Act No. of
Part 3 Lands and Planning s. 16
(3) If the planning authority decides to grant the
permit subject to rail network safeguards and the
applicant lodges an appeal against that
decision
(a) the planning authority must give the
Minister notice of the appeal; and
(b) the Minister is, for the purposes of
section 14 of the Resource Management
and Planning Appeal Tribunal Act 1993,
taken to be a person whose interests are
affected by the decision and who has a
proper interest in the subject matter of
the appeal.
16. Effect of declarations as regards discretionary
development applications
(1) If application is made for a permit for a
discretionary development wholly or partly
within a rail planning corridor
(a) the relevant planning authority must,
when notice of the application is given
under section 57 of the Land Use
Planning and Approvals Act 1993, refer
the application to the Minister; and
(b) the Minister may, within the 14-day or
further representation period allowed
under section 57(5) of the Land Use
Planning and Approvals Act 1993, give
the planning authority such advice on the
application as the Minister thinks fit and
23
Rail Infrastructure Act 2007
Act No. of
s. 16 Part 3 Lands and Planning
in so doing may recommend that, if
granted, the permit should be made
subject to rail network safeguards
specified in the advice.
(2) If the Minister fails to give any such advice, the
planning authority may determine the
application without further reference to the
Minister.
(3) If the Minister gives any such advice
(a) the planning authority is to have regard
to the advice in determining the
application; and
(b) the advice is taken to be a representation
made under section 57(5) of the Land
Use Planning and Approvals Act 1993 in
relation to the application; and
(c) the planning authority may, without
limiting its discretion in the event it
approves the application, grant the permit
subject to any rail network safeguards
recommended by the Minister (with or
without modification).
(4) Section 57(2) of the Land Use Planning and
Approvals Act 1993 does not apply to an
application referred to in subsection (1).
(5) When a planning authority complies with section
57(7) of the Land Use Planning and Approvals
Act 1993 for an application referred to in
subsection (1), it must also give the Minister
24
Rail Infrastructure Act 2007
Act No. of
Part 3 Lands and Planning s. 17
notice of its decision whether or not the Minister
has given it advice on the application.
(6) The failure of a planning authority to comply
with subsection (1) for a development
application does not invalidate a permit for the
development but, in any such case, the Minister
has the same right of appeal against the grant of
the permit as a person who made representations
in relation to the application.
17. Effect of declarations as regards minor amendment
of permits
A planning authority must, in making any
determination under section 56(2)(b) of the Land
Use Planning and Approvals Act 1993, have
regard to the safety and operability of any
affected railway.
18. Effect of declarations as regards compensation and
land acquisition
(1) The declaration of a rail planning corridor does
not entitle a person to claim or recover
compensation under this or any other Act for any
loss or detriment that the person may suffer in
consequence of the declaration.
(2) The declaration of a rail planning corridor over
any land does not constitute injurious affection
of that land or any other land for the purposes of
the Land Acquisition Act 1993, Major
25
Rail Infrastructure Act 2007
Act No. of
s. 19 Part 3 Lands and Planning
Infrastructure Development Approvals Act 1999
or any other Act.
Division 3 Miscellaneous
19. Planning status of railway works
(1) A railway entity does not have to comply with
the requirements of the Land Use Planning and
Approvals Act 1993 as regards
(a) emergency railway works; or
(b) routine railway works that are carried out
wholly within the rail network in order to
maintain the rail network.
(2) All other railway works are taken to be
developments that a planning authority has a
discretion either to refuse or permit in
accordance with section 57 of the Land Use
Planning and Approvals Act 1993.
(3) To avoid doubt over the application of
subsection (1)(b), the question of whether
railway works are carried out wholly within the
rail network is to be determined irrespective of
whether a railway entity has to access adjoining
land to carry out those railway works.
26
Rail Infrastructure Act 2007
Act No. of
Part 4 Works and Access s. 20
PART 4 WORKS AND ACCESS
Division 1 Fencing
20. Fencing obligations of Rail Infrastructure Owner
(1) This section applies if, as a result of railway
works carried out by or on behalf of the Rail
Infrastructure Owner or a railway accident
(a) a dividing fence is damaged; or
(b) a dividing fence is destroyed; or
(c) a dividing fence has to be dismantled; or
(d) a dividing fence has to be moved (with or
without being dismantled); or
(e) a new, unfenced, boundary is formed
between the rail network and any
adjoining land.
(2) The Rail Infrastructure Owner must, as soon as
practicable and in any event no later than 30
days after the railway works are completed and
at its own cost
(a) repair the fence if subsection (1)(a)
applies; or
(b) replace the fence with one of at least the
same standard if subsection (1)(b)
applies; or
27
Rail Infrastructure Act 2007
Act No. of
s. 20 Part 4 Works and Access
(c) reinstate the fence (and carry out any
necessary refurbishment of the fence) if
subsection (1)(c) applies; or
(d) move the fence (if necessary by carrying
out any necessary dismantling and
reassembly of the fence) if
subsection (1)(d) applies; or
(e) erect a suitable dividing fence along the
unfenced boundary if subsection (1)(e)
applies.
(3) If the Rail Infrastructure Owner fails to
discharge its obligation under subsection (2), the
adjoining landholder may give the Rail
Infrastructure Owner a notice requiring it to
carry out the necessary fencing work within 30
days or such longer period as the adjoining
landholder may allow.
(4) If the Rail Infrastructure Owner fails to comply
with the adjoining landholder's notice
(a) the adjoining landholder may carry out
the necessary fencing; and
(b) any costs reasonably incurred by the
adjoining landholder in carrying out that
fencing are recoverable as a debt due to
the adjoining landholder from the Rail
Infrastructure Owner.
(5) For the purposes of subsection (2), the adjoining
landholder is entitled to assume that railway
works have been completed if, in the absence of
any concession by the Rail Infrastructure Owner,
28
Rail Infrastructure Act 2007
Act No. of
Part 4 Works and Access s. 20
it reasonably appears to the adjoining landholder
that the purported object of those railway works
has been substantially attained, regardless of
whether any incidental follow-up action such as
equipment removal, land remediation or
cleaning-up remains to be taken.
(6) Notwithstanding any other provision of this
section, the adjoining landowner may, in writing,
release the Rail Infrastructure Owner from its
obligation under subsection (2).
(7) For the purposes of this section, and without
limiting its generality, railway works that are
carried out by a Rail Infrastructure Manager with
the actual or ostensible authority of the Rail
Infrastructure Owner are taken to have been
carried out on behalf of the Rail Infrastructure
Owner.
(8) In this section
"dividing fence" means a fence dividing a
part of the rail network from adjoining
land that is not Crown land;
"fence" includes part of a fence;
"repair", a fence, means repair it to the same
or a better condition;
"suitable", in relation to a fence, means
suitable in the circumstances having
regard to factors like
29
Rail Infrastructure Act 2007
Act No. of
s. 21 Part 4 Works and Access
(a) the safety, security and
operability of the rail network;
and
(b) the safety of persons on adjoining
land; and
(c) adjoining land use; and
(d) the durability and maintenance of
the fence; and
(e) relevant environmental, heritage
and land use factors.
Division 2 Railway works and works access
21. Emergency works access to adjoining land
(1) This section applies if a railway entity needs
access to adjoining land to carry out emergency
railway works.
(2) The railway entity, acting through its railway
employees, may access the adjoining land, if
necessary without warning or permission, to
such extent and for such period as is reasonably
necessary to carry out the emergency railway
works.
(3) If the access is effected without warning, the
railway entity is to alert the adjoining landholder
of the access and the nature of the railway
emergency and emergency railway works as
soon as practicable.
30
Rail Infrastructure Act 2007
Act No. of
Part 4 Works and Access s. 21
(4) In effecting the access, the railway entity may
(a) call on and use such assistance as the
railway entity considers necessary in the
circumstances; and
(b) adjust or shut off any machinery, energy
supply, water supply or other thing on
the adjoining land that, if not adjusted or
shut off, is likely to worsen the railway
emergency or create a fresh emergency;
and
(c) if there is no alternative, make use of
anything on the land, other than
machinery, that may serve to prevent a
worsening of the railway emergency or
prevent a fresh emergency; and
(d) open any door, gate, fence or other
barrier, if necessary by forcing a lock,
latch or chain or by dismantling or
removing the barrier.
(5) However, in effecting the access, the railway
entity is to
(a) cause as little damage and disruption as
possible; and
(b) do whatever can be practicably done in
the circumstances for the welfare of
stock; and
(c) make reasonable enquiry as to whether
the adjoining land is subject to any
31
Rail Infrastructure Act 2007
Act No. of
s. 22 Part 4 Works and Access
protective protocols and, if so, respect
those protocols; and
(d) do whatever can be practicably done in
the circumstances to accommodate
reasonable concerns of the adjoining
landholder.
(6) Once the access has been effected, section 25
applies.
(7) Where more than one railway entity accesses
adjoining land under this section in respect of the
same railway emergency
(a) the rights and obligations of those
railway entities under this section and
section 25 are joint and several; and
(b) if a dispute arises between those railway
entities as to their respective liability
regarding any of those obligations, the
dispute is to be determined by an
arbitrator in accordance with the
Commercial Arbitration Act 1986.
(8) For a restricted Railway Infrastructure Manager,
this section applies only in respect of its part of
the rail network.
22. Routine works access to adjoining land with
permission
(1) This section applies if an adjoining landholder
gives a railway entity permission to access
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adjoining land to carry out routine railway
works.
(2) The railway entity is to ensure that
(a) the adjoining landholder is warned when
the access is about to be effected; and
(b) the access is effected in accordance with
the terms of the permission and with as
little damage and disruption as possible;
and
(c) if circumstances require, the adjoining
land is fenced or otherwise secured so as
to maintain the adjoining landholder's
level of protection as regards trespass
and, if applicable, loss of stock; and
(d) it respects all protective protocols of
which it has notice; and
(e) it vacates the adjoining land forthwith
and without argument if the permission is
for any reason withdrawn.
(3) Once the access has been effected then, except in
so far as the adjoining landholder and the
railway entity may otherwise agree, section 25
applies.
23. Routine works access to adjoining land without
permission
(1) This section applies if
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(a) a railway entity needs access to adjoining
land to carry out routine railway works
but the adjoining landholder
(i) cannot, despite the railway
entity's best endeavours, be
contacted; or
(ii) is, for any reason, incapable of
permitting the access; or
(iii) has, despite the railway entity's
reasonable entreaties,
unreasonably refused to permit
the access; or
(iv) has imposed such stringent
conditions on the access that the
routine railway works would be
unreasonably expensive, time-
consuming or difficult to carry
out or could not be carried out
safely, properly or at all; or
(b) a railway entity is unable to complete
routine railway works because an
adjoining landholder has unreasonably
withdrawn permission for the railway
entity to access adjoining land.
(2) The railway entity
(a) may apply to a justice for a warrant to
access the land for the purposes of
carrying out or, as the case may be,
completing the routine railway works;
but
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(b) must give the adjoining landholder at
least 5 clear days' notice of its intention
to make the application or, if
subsection (1)(a)(i) applies, make a
reasonable attempt to give such notice.
(3) The justice may issue the warrant if satisfied on
reasonable grounds that
(a) the routine railway works are necessary
for the safety or operability of the rail
network; and
(b) there is no feasible, safe or cost-effective
way of carrying out or, as the case may
be, completing the routine railway works
except by accessing the adjoining land;
and
(c) the railway entity will exercise the right
of access responsibly; and
(d) the railway entity has complied with
subsection (2)(b).
(4) The warrant may
(a) authorise the access by reference to
specified times or specified periods; and
(b) be issued on such conditions as the
justice considers appropriate.
(5) Without limiting this, the conditions may
(a) require the railway entity to meet
specified notification or other
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requirements before exercising the right
of access; and
(b) provide for the adjoining land to be
fenced or otherwise secured so as to
maintain the adjoining landholder's level
of protection as regards trespass and, if
applicable, loss of stock.
(6) The warrant is to specify whether the right of
access being conferred is a right to cross over the
adjoining land or a right to enter and remain on
the adjoining land.
(7) The warrant authorises the railway entity, acting
through its railway employees, to access the
adjoining land to carry out the routine railway
works specified in the warrant, at the times or
during the periods specified in the warrant and
on the conditions specified in the warrant.
(8) In effecting the access and carrying out the
routine railway works, the railway entity
(a) may call on and use such assistance as it
considers necessary or expedient in the
circumstances; and
(b) must, whether or not they are mentioned
in the warrant, respect all protective
protocols of which it has notice.
(9) Once access has been effected pursuant to the
warrant, section 25 applies.
(10) The railway employee in charge of executing the
warrant for the railway entity must produce it for
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inspection if asked to do so by the adjoining
landholder.
(11) The warrant is to specify the date on which, and
the time at which, the warrant ceases to have
effect.
(12) The date specified in the warrant pursuant to
subsection (11) is to be a date falling no later
than 3 months after the warrant is issued.
(13) For a restricted Railway Infrastructure Manager,
this section applies only in respect of its part of
the rail network.
24. Clearing obstructions to lines of sight, &c.
(1) This section applies if a railway entity other than
a Rolling Stock Operator reasonably considers
that
(a) any fence, sign or vegetation on
adjoining land is obstructing a line of
sight in respect of the rail network; and
(b) the obstruction poses a genuine risk to
the safety of the rail network or to road
users or other persons.
(2) The railway entity may give the adjoining
landholder a notice (in this section referred to as
a "clearance notice") requiring the adjoining
landholder to clear the obstruction by, as
circumstances require
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(a) modifying the fence or sign or trimming
the vegetation; or
(b) if necessary, relocating or removing the
fence, sign or vegetation.
(3) The clearance notice is to allow the adjoining
landholder a reasonable period, of at least 21
days, in which to clear the obstruction.
(4) The railway entity may, by the clearance notice
or otherwise, offer the adjoining landholder help
in clearing the obstruction.
(5) If the adjoining landholder fails for any reason to
comply with the clearance notice, the railway
entity may apply to a justice for a warrant to
access the land to clear the obstruction.
(6) The justice may issue the warrant if satisfied on
reasonable grounds that
(a) the fence, sign or vegetation in question
is obstructing a line of sight in respect of
the rail network; and
(b) the obstruction poses a genuine risk to
the safety of the rail network or to road
users or other persons; and
(c) a clearance notice given in respect of the
obstruction has not been complied with;
and
(d) the railway entity has received no
indication that the adjoining landholder
is likely to clear the obstruction within,
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in terms of the level of risk, a reasonable
time; and
(e) there are no countervailing heritage,
environmental or other considerations to
which the relevant safety considerations
ought to be subordinated.
(7) The warrant may be issued on such conditions as
the justice considers appropriate.
(8) Without limiting this, the conditions may
(a) require the railway entity to meet
specified notification or other
requirements before exercising the right
of access; and
(b) provide for the adjoining land to be
fenced or otherwise secured so as to
maintain the adjoining landholder's level
of protection as regards trespass and, if
applicable, loss of stock.
(9) The warrant authorises the railway entity, acting
through its railway employees, to access the
adjoining land and, causing as little damage and
disruption as possible, clear the obstruction
specified in the warrant in the way specified in
the warrant.
(10) In effecting the access and clearing the
obstruction, the railway entity
(a) may call on and use such assistance as it
considers necessary or expedient in the
circumstances; and
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(b) must, whether or not they are mentioned
in the warrant, respect all protective
protocols of which it has notice.
(11) Once access has been effected pursuant to the
warrant, section 25 applies.
(12) The railway employee in charge of executing the
warrant for the railway entity must produce it for
inspection if asked to do so by the adjoining
landholder.
(13) The warrant is to specify the date on which, and
the time at which, the warrant ceases to have
effect.
(14) The date specified in the warrant pursuant to
subsection (13) is to be a date falling no later
than 3 months after the warrant is issued.
(15) Any costs reasonably incurred by the railway
entity in clearing the obstruction pursuant to the
warrant are recoverable as a debt due to the
railway entity from the adjoining landholder.
(16) For a restricted Railway Infrastructure Manager,
this section applies only in respect of its part of
the rail network.
(17) In this section
"fence" incudes screen and free-standing
wall;
"line of sight", in respect of the rail network,
means
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(a) a view that, for safety and
operational purposes, a train
driver needs to have of railway
tracks ahead or of vehicles
approaching or traversing a
railway crossing; and
(b) a view that, for personal safety,
road users need to have of trains
approaching or traversing a
railway crossing;
"sign" includes the pole, hoarding or other
structure on which the sign is displayed.
25. Damage to be made good, &c.
(1) This section applies if a railway entity has
accessed adjoining land under section 21, 22, 23
or 24 to carry out railway works or other works.
(2) As soon as practicable after completing the
works, the railway entity must
(a) make good any unsanctioned damage
caused to or in respect of the adjoining
land as a result of effecting the access or
carrying out the works; or
(b) pay the adjoining landholder fair
compensation for that unsanctioned
damage.
(3) Any dispute regarding the nature or extent of the
railway entity's obligation under subsection (2)
is to be determined by an arbitrator in
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accordance with the Commercial Arbitration Act
1986.
(4) Without prejudice to the Commercial Arbitration
Act 1986, matters that may be considered in the
arbitration include, but are not limited to, the
following:
(a) whether some act or omission of the
adjoining landholder triggered or
contributed to the need to carry out the
works;
(b) whether the unsanctioned damage was
needlessly made worse by some act or
omission of the adjoining landholder;
(c) whether the adjoining landholder took, or
failed to take, measures that were
reasonably available to avoid or
minimise the unsanctioned damage;
(d) whether the railway entity effected the
access and carried out the works as
responsibly, efficiently and expeditiously
as possible in the circumstances;
(e) whether some act or omission of the
railway entity triggered or contributed to
the need to carry out the works;
(f) whether the unsanctioned damage was
needlessly made worse by some act or
omission of the railway entity;
(g) whether the railway entity took, or failed
to take, measures that were reasonably
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available to avoid or minimise the
unsanctioned damage.
(5) In this section
"unsanctioned damage" means damage other
than
(a) for section 21, damage directly
resulting from an action taken in
good faith to ensure the
immediate safety of persons, or
of stock or other animals, on the
adjoining land; and
(b) for section 24, damage resulting
from the actual modification or
removal of the relevant
obstruction.
26. Control of vegetation
(1) A Rail Infrastructure Manager is to
(a) prepare a vegetation management plan
for the rail network or, if it is a restricted
Rail Infrastructure Manager, its part of
the rail network; and
(b) periodically review and revise that plan;
and
(c) implement that plan.
(2) In preparing or reviewing and revising its
vegetation management plan, a Rail
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Infrastructure Manager is to have regard to the
following:
(a) the overall safety and operational
requirements of the rail network;
(b) the need to prevent vegetation from
becoming established in, encroaching on
or overhanging the rail network;
(c) the need for train drivers and road users
to have good lines of sight in and around
the rail network, particularly near railway
crossings;
(d) the need to prevent weeds from
spreading onto adjoining land from the
rail network;
(e) the need to eliminate or minimise fire
hazards in and around the rail network;
(f) the need for a regular, effective and
sustainable vegetation inspection and
monitoring regime;
(g) plans, standards, orders, declarations or
other things that from time to time may
be in force under the Rail Safety Act
1997, Weed Management Act 1999,
Threatened Species Protection Act 1995
or prescribed Acts;
(h) the vegetation management provisions, if
any, of relevant council planning
schemes;
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(i) prescribed requirements, if any;
(j) any directions that it is given by the
Minister.
(3) In preparing and revising its vegetation
management plan, a Rail Infrastructure Manager
is to carry out such consultations as it considers
necessary or expedient.
(4) A Rail Infrastructure Manager is to publish its
vegetation management plan electronically
(a) as soon as practicable after the plan is
prepared; and
(b) as soon as practicable after the plan is
revised.
(5) A Rail Infrastructure Manager may
(a) publish its vegetation management plan
in such other ways and at such other
times as it thinks fit; and
(b) charge a fee to recover the reasonable
cost of providing any person with a
printed copy of its vegetation
management plan.
(6) A Rail Infrastructure Manager may
(a) prepare a vegetation management plan
jointly with another Rail Infrastructure
Manager; and
(b) with the permission of another Rail
Infrastructure Manager, incorporate in its
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own vegetation management plan, with
or without modification, provisions from
a vegetation management plan prepared
by that other Rail Infrastructure
Manager.
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
27. Demolition, &c., of unlawful works
(1) If a person carries out works on the rail network
without lawful authority, the responsible Rail
Infrastructure Manager may
(a) demolish the unlawful works, dispose of
any materials from the unlawful works
and carry out such remediation works as
it thinks fit; and
(b) recover its costs of so doing as a debt due
to that Rail Infrastructure Manager from
that person; and
(c) retain, if applicable, any proceeds of
disposal.
(2) No action lies against the responsible Rail
Infrastructure Manager for demolishing or
disposing of the material from the unlawful
works.
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
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Division 3 Service infrastructure
28. Interpretation of Division
(1) In this Division
"install", on the rail network, includes install
under or over the rail network;
"installation conditions", of a permission to
install service infrastructure on the rail
network, includes conditions providing
for any of the following:
(a) the supervision, inspection and
testing of the installation;
(b) the time and manner of
installation;
(c) the management of initial and on-
going risks associated with the
installation;
(d) the on-going monitoring and
maintenance of the service
infrastructure, including
inspection, testing and
replacement schedules;
(e) the on-going operation of the
service infrastructure;
(f) the carrying out of remediation
works consequent on the
installation, maintenance or
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removal of the service
infrastructure;
(g) the carrying out of consequential
works including the erection,
alteration or removal of signs or
signals;
"installer" means an adjoining landholder or
other person who installs service
infrastructure on the rail network
pursuant to a permission granted under
section 29;
"remove", service infrastructure, includes
dismantle prior to removal;
"responsible entity" see subsections (2),
(3) and (4);
"service infrastructure" includes
(a) agricultural and domestic drains
and drainage works; and
(b) communications equipment; and
(c) farm irrigation pipes; and
(d) gas pipelines; and
(e) power conduits and cables; and
(f) water supply pipes.
(2) The responsible entity for the initial installation
of service infrastructure on the rail network, up
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until its operational commissioning, is the
installer.
(3) The responsible entity for service infrastructure
that has already been installed on the rail
network, and been operationally commissioned,
is
(a) the person who, by law or contractual
obligation, has primary responsibility for
its maintenance; or
(b) in the absence of legal or contractual
certainty, whichever of the following
persons, in the reasonable determination
of the responsible Rail Infrastructure
Manager, has, or should in equity have,
at the time of making the determination,
primary responsibility for its
maintenance:
(i) in the case of any service
infrastructure, the installer or the
installer's legal successor;
(ii) in the case of agricultural or
domestic service infrastructure
installed on the rail network by or
on behalf of an adjoining
landholder, the adjoining
landholder or the adjoining
landholder's legal successor;
(iii) in the case of service
infrastructure for a
communications, gas, electricity
or water service, the service
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provider or, if a person other than
the service provider owns or
operates the service infrastructure
and charges the service provider
for its use, that owner or operator.
(4) A person who disputes a determination under
subsection (3)(b), that the person has, or should
in equity have, the primary responsibility for
maintaining any particular service infrastructure,
may apply to the Magistrates Court
(Administrative Appeals Division) for a review
of that determination.
29. Installation of service infrastructure on rail
network
(1) A Rail Infrastructure Manager may permit an
adjoining landholder or other person to install
service infrastructure on the rail network or, if it
is a restricted Rail Infrastructure Manager, on its
part of the rail network.
(2) The permission may be granted subject to
(a) such installation conditions and other
conditions as the Rail Infrastructure
Manager considers necessary or
expedient having regard to the safety and
operability of the rail network; and
(b) conditions providing for the payment of
administrative or other costs that the Rail
Infrastructure Manager may incur in
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connection with the installation or its
operation or maintenance.
(3) If a condition of the kind referred to in
subsection (2)(b) is not complied with, the Rail
Infrastructure Manager may recover the unpaid
costs as a debt due to the Rail Infrastructure
Manager from the responsible entity.
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
30. Compliance with installation conditions
(1) This section applies if a permission under
section 29 is granted subject to installation
conditions.
(2) The responsible Rail Infrastructure Manager, by
notice to the responsible entity, may vary the
installation conditions from time to time as
circumstances require having regard to the safety
and operability of the rail network.
(3) If the responsible entity fails to comply with an
installation condition, the responsible Rail
Infrastructure Manager, depending on the nature
of the condition, the status of the responsible
entity and the urgency or seriousness of any
attendant threat to the safety or operability of the
rail network, may
(a) by notice to the responsible entity,
require the responsible entity to comply
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with the condition within a specified
time; or
(b) with or without notice to the responsible
entity, take action itself to ensure that the
condition is complied with; or
(c) by notice to the responsible entity,
revoke the permission (with or without
decommissioning, adjusting, moving,
removing or disposing of any service
infrastructure already installed).
(4) If the responsible entity fails to comply with a
notice under subsection (3)(a), the responsible
Rail Infrastructure Manager may proceed to act
under subsection (3)(b) or (c) as if it were an
initial failure to comply with the installation
condition.
(5) Any costs that the responsible Rail Infrastructure
Manager incurs pursuant to subsection (3)(b) or
(c) are recoverable as a debt due to that Rail
Infrastructure Manager from the responsible
entity.
(6) Neither the Crown nor the responsible Rail
Infrastructure Manager is liable for any loss or
damage that a responsible entity may incur as a
result of actions taken under subsection (3)(b) or
(c).
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
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31. Removal, &c., of problematic service infrastructure
(1) This section applies if it reasonably appears to a
Rail Infrastructure Manager that any service
infrastructure installed on the rail network or, if
applicable, its part of the rail network pursuant
to a permission under section 29
(a) has fallen into disuse or been abandoned;
or
(b) has fallen into disrepair or suffered major
damage; or
(c) is being operated, either constantly or
repeatedly, in an improper or dangerous
manner; or
(d) has become obsolete; or
(e) poses an unacceptable risk to the safety
or operability of the rail network; or
(f) poses an unacceptable risk to the safety
of any persons.
(2) If the responsible entity is unknown and cannot
be identified or found after reasonably diligent
enquiry has been made, the Rail Infrastructure
Manager may, without notice to any specific
person and with or without giving any public
notice
(a) revoke the permission; and
(b) remove the service infrastructure; and
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(c) render the service infrastructure safe and
inoperative, dispose of it or take such
other action as the Rail Infrastructure
Manager thinks fit in the circumstances;
and
(d) retain, if applicable, any proceeds of
disposal.
(3) If the responsible entity's identity is known, the
Rail Infrastructure Manager is to give that entity
a notice
(a) explaining, in terms of subsection (1), the
nature of the Rail Infrastructure
Manager's concern with the service
infrastructure; and
(b) asking the responsible entity to show
cause, within such period as is specified
in the notice, why the relevant
permission should not be revoked.
(4) If the responsible entity fails to respond to the
notice under subsection (3), satisfactorily or at
all, the Rail Infrastructure Manager may give the
responsible entity a further notice
(a) revoking the relevant permission; and
(b) requiring that, within a specified time
and in accordance with any specified
conditions, the responsible entity remove
the service infrastructure, render it safe
and inoperative or carry out specified
actions in relation to the service
infrastructure.
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(5) If the responsible entity fails to comply with the
further notice, the Rail Infrastructure Manager
may, in its discretion
(a) take the actions specified in the notice or
any other actions regarding the service
infrastructure, including disposal, as it
considers necessary or expedient for the
safety or operability of the rail network;
and
(b) recover its costs of so doing as a debt due
to the Rail Infrastructure Manager from
the responsible entity; and
(c) retain, if applicable, any proceeds of
disposal.
(6) No action lies against the Rail Infrastructure
Manager for taking any actions pursuant to
subsection (2) or (5).
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
32. Removal, &c., of pre-existing service infrastructure
(1) To ensure the safety and operability of the rail
network, a Rail Infrastructure Manager's powers
under section 31 are also exercisable in respect
of any pre-existing service infrastructure and it
may, for that purpose
(a) treat the pre-existing service
infrastructure as service infrastructure
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that has been installed on the rail
network pursuant to a permission under
section 29; and
(b) treat the adjoining landholder as the
responsible entity.
(2) In this section
"pre-existing service infrastructure" means
service infrastructure installed on the rail
network before the commencement day.
33. Removal, &c., of unlawful service infrastructure
(1) If a person installs or leaves service
infrastructure on the rail network without lawful
authority, the responsible Rail Infrastructure
Manager may
(a) remove and dispose of the unlawful
service infrastructure and take such other
actions as it thinks fit; and
(b) recover its costs of so doing as a debt due
to that Rail Infrastructure Manager from
that person; and
(c) retain, if applicable, any proceeds of
disposal.
(2) No action lies against the responsible Rail
Infrastructure Manager for removing or
disposing of the unlawful service infrastructure.
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Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
34. Relationship to service infrastructure legislation
Nothing in this Division is to be taken as
derogating from the provisions of any of the
following:
(a) the Electricity Industry Safety and
Administration Act 1997;
(b) the Electricity Supply Industry Act 1995;
(c) the Gas Act 2000;
(d) the Gas Pipelines Act 2000;
(e) the Water Management Act 1999;
(f) any prescribed Act.
Division 4 Responsibility for railway crossings, &c.
35. Interpretation of Division
In this Division
"construction conditions", of a permission to
construct a private road across the rail
network by way of a level crossing,
includes conditions providing for any of
the following:
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(a) the supervision and inspection of
the construction;
(b) the time and manner of the
construction;
(c) the management of initial and on-
going risks associated with the
construction;
(d) the on-going monitoring and
maintenance of the level crossing,
including inspection schedules;
(e) the on-going operation of the
level crossing;
(f) the carrying out of remediation
works consequent on the
construction, maintenance or
removal of the level crossing;
(g) the carrying out of consequential
works including the erection,
alteration or removal of signs or
signals;
"established" means in place immediately
before the commencement day;
"level crossing" means a railway crossing at
which the road and the railway track
intersect at or about the same level;
"maintenance agreement" means a written
agreement that
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(a) a person has entered into with
any railway operator or manager
having the power to do so; and
(b) sets out their respective
maintenance responsibilities in
respect of a railway crossing;
"private road" means a road other than a
public road;
"private road owner", for a private road,
means the owner of the land on which the
private road is situated;
"public road" means any road or place open
to or used by the public or to which the
public have or are permitted to have
access, whether on payment of fee or
otherwise;
"rails" means the rails of a railway track;
"railway track" means a railway track within
the rail network;
"requisite standard", for the surface of any
part of a road, means a standard that
(a) matches that of the immediately
adjoining parts of that road; and
(b) does not compromise the safety
or operability of the rail network;
"responsible entity", for sections 38 and 39,
means
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(a) the adjoining landholder or other
person permitted, under
section 38, to construct the
relevant level crossing or their
legal successor; or
(b) such other person as is specified
by the terms of that permission;
"responsible road authority", for a public
road, means the person for the time being
responsible for maintaining the public
road;
"road infrastructure" includes
(a) a road and its surface or
pavement; and
(b) anything under or supporting a
road or its surface or pavement;
and
(c) safety barriers; and
(d) drains and culverts; and
(e) traffic lights and other traffic
control devices (other than traffic
control devices that are
automatically activated by trains);
and
(f) traffic signs (other than level
crossing signs located at or
immediately next to level
crossings); and
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(g) road markings; and
(h) road lighting; and
(i) pedestrian crossings and
associated infrastructure; and
(j) prescribed things.
36. Maintenance responsibilities at railway crossings
public roads
(1) Where a railway track intersects a public road by
way of a level crossing
(a) the Rail Infrastructure Owner must, at its
cost
(i) maintain the rail infrastructure;
and
(ii) maintain, to the requisite
standard, the road surface (and, if
applicable, the footpath surface)
(A) between the rails; and
(B) on either side of the
outermost rails, to a
distance of 0.6 metres;
and
(b) the responsible road authority must, at its
cost, maintain the road infrastructure on
either side of the railway track to within
0.6 metres of the outermost rails
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(regardless of whether that part of road
infrastructure impinges on the rail
network).
(2) Where a railway track crosses over a public road
by way of a bridge or other elevated structure
(a) the Rail Infrastructure Owner must, at its
cost, maintain the rail infrastructure and
the bridge or other elevated structure;
and
(b) the responsible road authority must, at its
cost, maintain the road infrastructure.
(3) Where a public road crosses over a railway track
by way of a bridge or other elevated structure
(a) the responsible road authority must at its
cost, maintain the road infrastructure and
the bridge or other elevated structure;
and
(b) the Rail Infrastructure Owner must at its
cost, maintain the rail infrastructure.
37. Maintenance responsibilities at established level
crossings private roads
(1) Where a railway track intersects a private road
by way of an established level crossing then,
unless an established maintenance agreement
provides to the contrary
(a) the Rail Infrastructure Owner must
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(i) maintain the rail infrastructure;
and
(ii) maintain, to the requisite
standard, the road surface (and, if
applicable, the footpath surface)
(A) between the rails; and
(B) on either side of the
outermost rails, to a
distance of 0.6 metres;
and
(b) the private road owner must, at the
private road owner's cost and in
accordance with the requirements, if any,
of the responsible Rail Infrastructure
Manager and any relevant standards,
maintain the road infrastructure to within
0.6 metres of the outermost rails
(regardless of whether that part of the
private road impinges on the rail
network).
(2) Except in an emergency, the private road owner
must give the responsible Rail Infrastructure
Manager at least 21 days' notice before
discharging, on any occasion, the obligation
under subsection (1)(b).
(3) If the private road owner fails to discharge the
obligation under subsection (1)(b), the
responsible Rail Infrastructure Manager may
give the private road owner a notice requiring
that the relevant road maintenance works be
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carried out within 30 days or such longer period
as that Rail Infrastructure Manager may allow.
(4) If the private road owner fails to comply with the
notice under subsection (3), the responsible Rail
Infrastructure Manager may, in its discretion
(a) carry out the relevant road maintenance
works; or
(b) if the relevant road maintenance works
have been partially carried out, complete
or undo them.
(5) The private road owner must, on reasonable
demand being made for same, pay the
responsible Rail Infrastructure Manager's
reasonable costs of carrying out (or completing
or undoing) road maintenance works pursuant to
subsection (4).
(6) The costs incurred under subsection (5) are
recoverable as a debt due to the responsible Rail
Infrastructure Manager from the private road
owner.
(7) Under this section, if an established private road
is in different ownership on either side of the rail
network, a private road owner is only
responsible for his or her own side of the rail
network.
(8) A private road owner who accesses the rail
network under and in accordance with this
section does not commit a trespass by so doing.
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Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
38. Construction of new level crossings private roads
(1) A Rail Infrastructure Manager may permit an
adjoining landholder or other person to construct
a private road across the rail network by way of
a level crossing, or, if it is a restricted Rail
Infrastructure Manager, across its part of the rail
network by way of a level crossing.
(2) The permission may be granted subject to
(a) such construction conditions and other
conditions as the Rail Infrastructure
Manager considers necessary or
expedient having regard to the safety and
operability of the rail network and the
reasonable commercial and domestic
needs of any landholders; and
(b) conditions providing for the payment of
administrative or other costs that the Rail
Infrastructure Manager may incur in
connection with the construction or
maintenance of the level crossing.
(3) If a condition of the kind referred to in
subsection (2)(b) is not complied with, the Rail
Infrastructure Manager may recover the unpaid
costs as a debt due to the Rail Infrastructure
Manager from the responsible entity.
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Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
39. Compliance with construction conditions
(1) This section applies if a permission under
section 38 is granted subject to construction
conditions.
(2) The responsible Rail Infrastructure Manager, by
notice to the responsible entity, may vary the
construction conditions from time to time as
circumstances require having regard to the safety
and operability of the rail network.
(3) If the responsible entity fails to comply with a
construction condition, the responsible Rail
Infrastructure Manager, depending on the nature
of the condition, the status of the responsible
entity and the urgency or seriousness of any
attendant threat to the safety or operability of the
rail network, may
(a) by notice to the responsible entity,
require the responsible entity to comply
with the condition within a specified
time; or
(b) with or without notice to the responsible
entity, take action itself to ensure that the
condition is complied with; or
(c) by notice to the responsible entity,
revoke the permission (with or without
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undoing any work or removing or
disposing of any materials).
(4) If the responsible entity fails to comply with a
notice under subsection (3)(a), the responsible
Rail Infrastructure Manager may proceed to act
under subsection (3)(b) or (c) as if it were an
initial failure to comply with the construction
condition.
(5) Any costs that the responsible Rail Infrastructure
Manager incurs pursuant to subsection (3)(b) or
(c) are recoverable as a debt due to that Rail
Infrastructure Manager from the responsible
entity.
(6) Neither the Crown nor the responsible Rail
Infrastructure Manager is liable for any loss or
damage that a responsible entity may incur as a
result of actions taken under subsection (3)(b) or
(c).
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
40. Railway entity to reinstate public road after
removing tracks from level crossing
(1) This section applies if a railway entity
(a) intends to remove any track from a level
crossing on a public road; and
(b) does not intend to replace that track.
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(2) The railway entity must give the responsible
road authority as much notice of its intention as
practicable in the circumstances so that the
responsible road authority can, as necessary,
adjust traffic signage or take other safety
measures near the level crossing.
(3) After removing the track, the railway entity must
reinstate the public road to the requisite standard
without delay and at its own cost.
(4) If it appears to the responsible road authority that
the railway entity has failed to discharge its
obligation under subsection (3), the responsible
road authority may give the railway entity a
notice requiring it to reinstate the public road
within 30 days or such longer period as the
responsible road authority may allow.
(5) If the railway entity fails to comply with the
responsible road authority's notice
(a) the responsible road authority may
reinstate the public road to the requisite
standard; and
(b) any costs reasonably incurred by the
responsible road authority in so
reinstating the public road are
recoverable as a debt due to the
responsible road authority from the
railway entity.
(6) For the purposes of this section, a responsible
road authority is entitled to assume that a railway
entity does not intend to replace track that the
railway entity has removed from a level crossing
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if works to replace the track have not physically
commenced, at the level crossing, within 30 days
after the date of removal.
Division 5 Works liabilities
41. Liability for forced consequential infrastructure
works
(1) This section applies if
(a) the person for the time being responsible
for any infrastructure (in this section
referred to as "the initiating infrastructure
authority") repairs, modifies or replaces
any of that infrastructure or installs new
infrastructure; and
(b) as a direct consequence, another person
(in this section referred to as "the
affected infrastructure authority") is
compelled to install, repair, modify or
replace any infrastructure.
(2) In the absence of an agreement to the contrary
between the initiating infrastructure authority
and the affected infrastructure authority
(a) the initiating infrastructure authority is
liable for the reasonable costs that the
affected infrastructure authority incurs as
a result of being compelled to install,
repair, modify or replace infrastructure;
and
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(b) those costs are recoverable as a debt due
to the affected infrastructure authority
from the initiating infrastructure
authority.
(3) In this section
"compelled" means compelled by the
operation of any law or standards or by
the need to ensure the safety or
operability of infrastructure;
"infrastructure" means rail infrastructure or
road infrastructure;
"road infrastructure" has the same meaning
as in Division 4.
42. Non-feasance protection for failure to carry out
railway works
(1) The Crown is not liable in proceedings in respect
of a claim for any loss or damage arising from a
failure of the Crown to carry out or consider
carrying out railway works unless, at the time of
the alleged failure, the Crown had actual
knowledge of the facts creating the particular
risk the materialisation of which resulted in the
harm.
(2) This section does not operate
(a) to create a duty of care in respect of a
risk merely because the Crown or a Rail
Infrastructure Manager has actual
knowledge of the risk; or
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(b) to affect any standard of care that would
otherwise be applicable in respect of a
risk.
(3) In this section
"Crown" includes, if the Rail Infrastructure
Owner is a person other than the Crown,
that person.
Division 6 Rights and obligations of adjoining landholders
43. Right of emergency access to rail network
(1) An adjoining landholder may access the rail
network without the permission of the Crown or
any railway entity if
(a) the adjoining landholder is in the
business of primary production or
manufacturing or processing; and
(b) the relevant adjoining land is used for
that business; and
(c) the access is essential for an emergency
action related to that adjoining land.
(2) The adjoining landholder may
(a) call on and use such assistance as the
adjoining landholder considers necessary
or expedient in the circumstances; and
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(b) if the adjoining landholder is not a
natural person, effect the access through
an employee or contractor.
(3) However, the adjoining landholder must
(a) make a reasonable attempt to give the
responsible Rail Infrastructure Manager
prescribed notice before effecting the
access; and
(b) take account of any safety warnings or
injunctions, whether as to train schedules
or otherwise, given by the responsible
Rail Infrastructure Manager consequent
on such prescribed notice; and
(c) only effect the access strictly to such
extent and for such period as is required
to take the emergency action; and
(d) not endanger or knowingly interfere with
any railway operations; and
(e) not damage or knowingly disturb any rail
infrastructure; and
(f) take sensible precautions for the safety of
persons and property; and
(g) not knowingly aggravate any existing
danger, risk or hazard; and
(h) if practicable in the case of prolonged
access, maintain regular radio or
telephone contact with the responsible
Rail Infrastructure Manager; and
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(i) leave the rail network at, by or for a
specified time if directed to do so, for
personal or operational safety reasons, by
any railway entity; and
(j) make a reasonable attempt to give the
responsible Rail Infrastructure Manager
notice immediately after leaving the rail
network.
(4) An adjoining landholder who accesses the rail
network under and in accordance with the
requirements of this section does not commit a
trespass by so doing.
(5) Neither the Crown nor any railway entity is
liable for any loss or damage that an adjoining
landholder, or any employee or other person
acting for or accompanying the adjoining
landholder, may incur as a result of accessing the
rail network pursuant to this section.
(6) Without limiting section 46, a notice is
effectively given for the purposes of this section
if it is given by means of a radio or telephone.
(7) In this section
"emergency action" includes, but is not
limited to, the following:
(a) the rounding-up of runaway
stock;
(b) combating or averting a fire,
flood or chemical hazard;
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(c) the urgent repair of fencing,
structures or embankments that
have sustained sudden unforeseen
damage;
(d) the retrieval of structures or
materials that have been
dislodged by storm action, illegal
interference or other causes;
(e) the retrieval of broken down
vehicles or agricultural
machinery;
"prescribed notice" means notice as to the
actual or estimated time and duration of
access, the access location, the identity
and number of persons involved,
emergency contact details and particulars
of the required emergency action and any
attendant hazards and risks.
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
44. Notification and control of major excavations
(1) This section applies if a person (in this section
referred to as "the excavator") intends to do an
excavation within 3 metres of the rail network.
(2) If the excavation is a major excavation, the
excavator must give the responsible Rail
Infrastructure Manager notice of that intention.
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(3) The notice must
(a) specify the date on which the excavator
expects to physically start the excavation
(in this section referred to as "the starting
date"); and
(b) be given at least 7 clear days before the
starting date.
(4) Consequent on the notice, the responsible Rail
Infrastructure Manager may give the excavator
any directions it reasonably considers necessary
or expedient for the safety or operability of the
rail network.
(5) The excavator must
(a) comply with any directions given under
subsection (4) before the starting date;
and
(b) in so far as it is in the excavator's power
to do so, ensure that other persons
comply with those directions.
(6) If any railway entity has to carry out railway
works to ensure the safety or operability of the
rail network as the direct or indirect result of the
excavator's failure to comply with an obligation
under this section, any costs reasonably incurred
by the railway entity in carrying out those
railway works are recoverable as a debt due to
the railway entity from the excavator.
(7) If the excavator
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(a) is in any doubt as to whether the intended
excavation should be regarded as a major
excavation for the purposes of this
section; or
(b) disputes that the excavation, even if in
progress or completed, may properly be
so regarded by any railway entity; or
(c) disputes that a direction given under
subsection (4) may reasonably be
considered necessary or expedient for the
safety or operability of the rail network
the excavator may apply to the Minister for a
ruling.
(8) In making the application, the excavator must
meet the prescribed requirements, if any, and
pay a prescribed fee, if any.
(9) The Minister, after consulting the excavator and
such railway entities and other persons and
considering such matters as he or she thinks the
circumstances require, is to make the ruling, in
writing, without undue delay.
(10) The ruling
(a) is binding on the excavator and all
railway entities; but
(b) is not grounds for challenging any
judicial or administrative decision made
before the date of the ruling.
(11) The Minister may
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(a) formulate guidelines to assist adjoining
landholders and professional excavators
for the purposes of this section; and
(b) from time to time publish those
guidelines electronically and in such
other ways as the Minister thinks fit.
(12) In any proceedings, the production of a
document purporting to be signed by the
Minister and certifying that the document is a
ruling or true copy of a ruling made under
subsection (9) is evidence
(a) that the document is such a ruling or
copy; and
(b) of the matters the document contains.
(13) Nothing in this section is to be taken as
(a) requiring the excavator to give the
responsible Rail Infrastructure Manager
notice of intention to do excavations of
which it has notice under other
provisions of this Part; or
(b) authorising the responsible Rail
Infrastructure Manager to give directions
about excavations in respect of which it
may give directions, impose
requirements or exercise any other
degree of control under other provisions
of this Part; or
(c) conferring on any railway entity power to
recover debts for carrying out railway
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works consequent on acts or omissions
relating to excavations where the acts or
omissions relate to, and the debts are
recoverable under, other provisions of
this Part; or
(d) restricting or regulating minor
excavations.
(14) In this section
"major excavation" means a deep, disruptive
or extensive excavation of the kind
ordinarily required for or associated
with
(a) building foundations; or
(b) roadworks; or
(c) quarrying; or
(d) the construction of dams or
swimming pools; or
(e) the installation, by trenching, of
underground service apparatus
like gas pipelines, sewer pipes,
storm water drains or
telecommunications cables; or
(f) the installation of underground
water storage tanks; or
(g) the installation of septic tanks or
construction of sullage pits; or
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(h) pits for the mass burial of
diseased stock;
"minor excavation" means a superficial,
shallow or isolated excavation of the kind
ordinarily required for or associated
with
(a) fencing; or
(b) the domestic installation of kerbs,
paths or paving; or
(c) the domestic installation of minor
conveniences like low-voltage
outdoor lighting or garden
watering systems; or
(d) the domestic installation of poles
for things like clotheslines, flags,
netball hoops, shade structures or
private power connections; or
(e) the erection of minor domestic
structures like barbeques,
cubbyhouses, kennels or pre-
fabricated garden sheds; or
(f) the installation of farm irrigation
systems; or
(g) the tillage of farms or gardens.
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
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45. Control of drainage
(1) A person who owns or occupies land adjoining
the rail network must not, without the written
consent of the responsible Rail Infrastructure
Manager
(a) do anything to concentrate the natural
drainage of the adjoining land onto the
rail network; or
(b) do anything on the adjoining land to
increase, impede or redirect natural
drainage in and around the rail network;
or
(c) cause or allow effluent from the
adjoining land to flow, drain, seep or
otherwise discharge onto the rail
network.
(2) If a railway entity has to carry out railway works
to ensure the safety or operability of the rail
network as the direct or indirect result of an
adjoining landholder's failure to comply with the
obligation under subsection (1), any costs
reasonably incurred by the railway entity in
carrying out those railway works are recoverable
as a debt due to the railway entity from the
adjoining landholder.
(3) In this section
"effluent" includes irrigation run-off, storm
water and waste water (whether
generated by humans or animals);
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"onto", the rail network, means onto the
surface of the rail network or into any
part of the subsurface of the rail network.
Note: For a part of the rail network that does not for the
time being have a Rail Infrastructure Manager, section 8(5)
applies to the operation of this section.
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PART 5 MISCELLANEOUS
46. Service of notices and other documents
A notice or other document is effectively given
to a person under this Act if
(a) in the case of a natural person, it is
(i) handed to the person; or
(ii) left at, or sent by post to, the
person's postal or residential
address or place of business or
employment last known to the
giver of the notice or document;
or
(iii) faxed to the person's fax number;
or
(iv) emailed to the person's email
address; and
(b) in the case of any other person, it is
(i) left at, or sent by post to, the
person's principal or registered
office or principal place of
business; or
(ii) faxed to the person's fax number;
or
(iii) emailed to the person's email
address.
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47. Delegation by Minister
The Minister may delegate any of the Minister's
powers or functions under this Act other than
(a) a power or function under section 7, 8,
12, 14 or 49; or
(b) this power of delegation.
48. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may, consistently with the Rail
Safety Act 1997
(a) make further provision for the
management, safety or operability of the
rail network or railway operations; and
(b) make further provision for the physical
security and protection of the rail
network or railway operations; and
(c) make further provision for the
management, safety or operability of
railway crossings; and
(d) prescribe notification requirements for
works or other activities affecting or
potentially affecting the rail network or
railway operations; and
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(e) prescribe track protection and other
precautions and measures with regard to
rolling stock and its operation on the rail
network.
(3) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(4) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by the Minister, the Rail Infrastructure
Owner or a Rail Infrastructure Manager.
(5) The regulations may confer powers on the
Minister, the Rail Infrastructure Owner or a Rail
Infrastructure Manager.
(6) The regulations may provide for any matter by
incorporating, either specifically or by reference
and either wholly or in part and with or without
modification, any standards, whether as in force
at a particular time or as from time to time
amended and whether published or issued
before, on or after the commencement day.
(7) The regulations may contain provisions of a
savings or transitional nature consequent on the
enactment of this Act.
(8) Regulations under subsection (7) may take effect
on the commencement day or a later day as
specified in the regulations, whether the day so
specified is before, on or after the day on which
the regulations are made.
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49. Amendment of Schedule
The Minister, by order, may amend Schedule 1
by doing one or more of the following:
(a) inserting an item in either Part of the
Schedule;
(b) omitting an item from either Part of the
Schedule;
(c) omitting an item from either Part of the
Schedule and substituting another item.
50. Status of orders
Ministerial orders under sections 7, 8, 14 and
49
(a) are statutory rules within the meaning of
the Rules Publication Act 1953; but
(b) are not instruments of a legislative
character for the purposes of the
Subordinate Legislation Act 1992.
51. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Infrastructure; and
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(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of
Infrastructure, Energy and Resources.
52. Consequential Amendments
The legislation specified in Schedule 2 is
amended as specified in that Schedule.
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SCHEDULE 1 THE RAIL NETWORK
Section 4
PART 1 RAILWAYS
1. The Bell Bay Line (being the railway running
from the East Tamar junction to Bell Bay).
2. The Derwent Valley Line (being the railway
running from Bridgewater to Maydena).
3. The Fingal Line (being the railway running from
Conara junction to Fingal).
4. The North-East Line (being the railway running
from Coldwater Creek junction to Tonganah).
5. The South Line (being the railway running from
the Hobart rail yard to the East Tamar junction).
6. The Western Line (being the railway running
from Western Junction to Wiltshire).
7. The "Zinc Works Line" also known as the
"Risdon Line" (being the railway running from
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the Derwent Park junction to the former siding at
the Risdon Smelter).
PART 2 EXCLUDED RAILWAYS
1. Railways that are entirely within the precincts of
and used only in connection with a factory, mine
or quarry.
2. Railways that are entirely within the precincts of
a transport, railway or other museum and, if
operational, used only in connection with that
museum.
3. Model railways.
4. Runways that are used only in connection with
the operation of cranes or gantries.
5. Marine slipways.
6. Tourist tramways.
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SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
Section 52
Rail Safety Act 1997
1. Section 3 is amended by inserting after the
definition of "owner" the following definition:
"person" includes a body of any kind;
Government Printer, Tasmania 89