Rail Infrastructure Act 2007 (Tas)

Rail Infrastructure Act 2007 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 [Royal Assent 28 September 2007] 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 – 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 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 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 (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; 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 National Law (Tasmania) Act 2012 ; 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; (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; standards means any State, national or international standards, codes or guidelines relating to railway operations or to railways or their management; track means the combination of rails, rail connectors, sleepers, ballast, points and crossings (or substitute devices if used); train has the same meaning as in the Rail Safety National Law (Tasmania) Act 2012 . (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. 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. 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. (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 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. . . . . . . . . 11. Responsible public land manager for gas and electricity infrastructure approvals For the purposes of section 47 of the Gas Industry Act 2019 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; (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. 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 – 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 Tasmanian Civil and Administrative 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; 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 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). (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 clause 7(3) of Part 8 of Schedule 2 to the Tasmanian Civil and Administrative Tribunal Act 2020 , taken to be a person whose interests are affected by the decision. 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 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 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 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. 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 (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, 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 – (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. (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 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 arbitral tribunal, within the meaning of the Commercial Arbitration Act 2011 , in accordance with that Act. (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 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 – (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 (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 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 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 – (a) modifying the fence or sign or trimming the vegetation; or (b) if neces