Roads and Jetties Act 1935 (Tas)

Roads and Jetties Act 1935 An Act to consolidate and amend certain enactments relating to roads and jetties and to make provision for the establishment and maintenance of aerodromes [Royal Assent 16 January 1936] 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 I - Preliminary 1. Short title This Act may be cited as the Roads and Jetties Act 1935 . 2. . . . . . . . . 3. Interpretation (1) In this Act, unless the contrary intention appears – construction, in relation to a road, includes – (a) the reconstruction or realignment of the road; (b) the bringing of the road to a higher standard; (c) investigation and associated engineering studies in connection with – (i) the construction, reconstruction, or realignment of the road; (ii) the bringing of the road to a higher standard; or (iii) the planning of alternative routes for the road; (d) the acquisition of land for the purpose of – (i) constructing, reconstructing, or realigning the road; or (ii) bringing the road to a higher standard; and (e) the doing of any other thing in relation to a matter specified in paragraph (a) or (b) – but does not include the maintenance of the road; country road means a road not being or forming portion of a State highway or subsidiary road, but does not include a street in any town; Crown lands contract means a contract made under the Crown Lands Act 1976 or a corresponding previous enactment; line, used in relation to a highway, means the strip of land subject, or to become subject, to the highway and includes a portion of the length or breadth of a line; maintenance, used in relation to – (a) a road, means all works which are required for the preservation and upkeep of the road or its associated works, but does not include any works for the reconstruction of the road; and (b) any plant, includes the reconstruction, repair, improving, and upkeep thereof; Minister for Lands means the Minister for the time being administering the Crown Lands Act 1976 ; motor taxes means the taxation imposed in respect of motor vehicles by, and collected under, the Vehicle and Traffic Act 1999 ; municipal district means a municipal area; municipality means a municipal area; plant means plant (including vehicles and animals) for the construction or maintenance of roads, bridges, jetties, and aerodromes, and includes any land, workshop, building, fixture, machine, implement, tool, or other equipment, erected, purchased, or acquired for the purpose of the construction or maintenance of any plant, and any spare parts to be used in connection therewith; Register means the register of title to land kept under the Land Titles Act 1980 ; road means a public highway and includes – (a) a road sign; (b) traffic control equipment; (c) street lighting equipment; (d) a vehicular ferry; (e) a bridge or tunnel, including a bridge or tunnel for the use of pedestrians; (f) a path for the use of persons riding bicycles; (g) a ramp to facilitate the launching of boats; (h) vehicular access from a road to a ramp referred to in paragraph (g) , being vehicular access; (i) a fence erected, at the cost of the Crown or a council, for the protection of traffic, being a fence; (j) a culvert; (k) a kilometre post; and (l) a milestone – that is associated with such a highway; road authority, used in relation to a State highway or subsidiary road, means the Minister; and, used in relation to any other road, means the council having the control of such road; Secretary means the Secretary of the Department; service authority means a person having the charge and control of a system for supplying water, gas, or electricity, or of drainage or sewerage; State highway means a road in respect of which a proclamation declaring the same to be a State highway for the purposes of Part II is in force; subsidiary road means a road in respect of which a proclamation declaring the same to be a subsidiary road for the purpose of Part II is in force; the Fund means the State Highways Trust Fund referred to in section 4 . (2) . . . . . . . . (3) Where in any Act passed before the commencement of the Roads and Jetties Act 1944 , reference is made to a main road, it shall be construed as a reference to a road which is a State highway within the meaning of this Act. PART IA - Powers and Functions of Minister in Respect of Certain Commonwealth Acts 3A. Interpretation: Part IA In this Part, Commonwealth Act means the Roads Grants Act 1981 of the Commonwealth or any other Commonwealth Act providing funds for the State for road purposes. 3B. Powers and functions of Minister in respect of certain Commonwealth Acts The Minister – (a) has and may exercise all the powers of a State or a Minister of a State conferred by a Commonwealth Act; and (b) shall perform all the functions of a State or a Minister of a State required to be performed under a Commonwealth Act. PART IB - Appointment of Persons Required for the Exercise and Performance of the Minister's Powers and Functions 3C. Appointment of persons required for the exercise and performance of the Minister's powers and functions Subject to and in accordance with the State Service Act 2000 , there may be appointed or employed such persons as are required for the exercise and performance by the Minister of his powers and functions under this Act or any other Act. PART II - State Highways 4. State Highways Trust Fund (1) There shall be kept in the Public Account an account, to be called the State Highways Trust Fund (in this Part referred to as "the Fund"). (2) There shall be credited to the Fund – (a) . . . . . . . . (b) . . . . . . . . (c) . . . . . . . . (d) . . . . . . . . (e) . . . . . . . . (f) . . . . . . . . (g) all money received by the Minister in respect of the sale or disposal of any stores or materials (other than plant) pursuant to section 17 ; (h) . . . . . . . . (i) any money provided by Parliament for the purposes of the Fund; (ia) any profits made by the Minister in the exercise or performance of his powers or functions under an Act of Tasmania or a Commonwealth Act or under an agreement with the Commonwealth; and (j) such other money (if any) as the Treasurer may direct to be credited to the Fund. (2A) . . . . . . . . (3) The Transport Commission shall, as and when directed by the Treasurer, pay to the Treasurer, to the credit of the Public Account– (a) all money received by it in each financial year by way of revenue derived from the use and operation of any jetty, the control and management of which are vested in the Minister under Part V ; (b) . . . . . . . . (3A) . . . . . . . . (4) . . . . . . . . (4A) Money for transport planning and research received by the State from the Commonwealth shall be paid into the Public Account and, as soon as practicable thereafter, shall be paid by the Treasurer to the Transport Commission out of the Public Account (which, to the necessary extent, is hereby appropriated accordingly). (5) . . . . . . . . (6) . . . . . . . . (7) . . . . . . . . 5. Application of Fund (1) There shall be debited to the Fund – (a) all costs and expenses (including the costs of supervision) incurred in or in connection with the construction and maintenance of State highways and subsidiary roads in accordance with the provisions of this Act; (b) . . . . . . . . (c) all sums payable out of the Fund pursuant to subsection (2) ; (d) all sums required for expenditure by the State, in accordance with the provisions of the Roads Grants Act 1981 of the Commonwealth and any other Commonwealth Act, for any purpose for which those sums are, by virtue of such an Act, required or permitted to be expended; (da) any losses made by the Minister in the exercise or performance of his powers or functions under an Act of Tasmania or a Commonwealth Act or an agreement with the Commonwealth; (e) all costs and expenses incurred by the Minister in or in connection with the purchase, acquisition, or hiring of stores and materials (other than plant) pursuant to section 17 ; (f) all costs and expenses paid or payable under section 22 of the Local Government (Highways) Act 1982 in connection with a local highway within the meaning of that Act; (g) all costs and expenses incurred by the Minister in connection with the maintenance or renewal of a bridge under section 23 of the Local Government (Highways) Act 1982 ; and (h) all or part of the costs and expenses incurred by the Minister in connection with highway works carried out under section 111 of the Local Government (Highways) Act 1982 . (2) The Minister, out of the Fund, is to pay for a financial year to each of the councils of the municipal areas of Kingborough, (in respect of Bruny Island) Flinders and King Island a sum equivalent to 98% of whichever of the following amounts is the lesser: (a) the amount expended by the council from its own resources during that financial year on roads within its municipal area or, in the case of Kingborough, within Bruny Island; or (b) the amount of motor taxes collected during that financial year within the municipal area or, in the case of Kingborough, within Bruny Island. (2A) The amounts paid to a council under subsection (2) shall be expended on roads within its municipality. (3) A statement of the expenditure out of the Fund shall be submitted annually to Parliament by the Treasurer. 6. Road Construction Plant Suspense Account (1) There shall be kept in the books of the Treasury an account, to be called the Road Construction Plant Suspense Account (in this Act referred to as "the Account"). (2) All money standing to the credit of the Road Construction Plant Account in the books of the Transport Commission on 30th June 1951, shall, forthwith after the commencement of this section, be paid by the Commission to the credit of the Account. (3) There shall also be credited to the Account – (a) all money paid to the Minister in respect of the use, hire, sale, or disposal of any plant vested in the Minister by section 10 of the Road Construction (Transfer of Functions) Act 1951 or purchased or acquired by the Minister for the purposes of this Act; and (b) such amounts (including provision for wages, stores, and transport) as the Minister thinks reasonable in respect of – (i) the use of any such plant in connection with the – (A) construction and maintenance of State highways, subsidiary roads, and country roads, in accordance with the provisions of this Act; and (B) execution, carrying out, construction, and maintenance of any public works authorized by Parliament; and (ii) the insurance, maintenance, depreciation, and other charges in connection with the use of any such plant – and all amounts so credited to the Account shall be debited to the costs of the State highways, subsidiary roads, country roads, and public works, in connection with which the plant is used. (4) There shall be debited to the Account – (a) all costs incurred in connection with the operation, maintenance, and insurance of plant vested in the Minister by section 10 of the Road Construction (Transfer of Functions) Act 1951 or purchased or acquired by him for the purposes of this Act; and (b) all costs and expenses incurred by the Minister in connection with the purchase, replacement, renewal, or hire of plant for the purposes of this Act. 7. Power to proclaim State highways and subsidiary roads (1) The Governor may, by proclamation, declare any road or any specified portion thereof to be a State highway or subsidiary road for the purposes of this Part, and in like manner may at any time declare that any such road, or any specified portion thereof, shall cease to be a State highway or subsidiary road. (2) Every proclamation under this section shall have effect upon and from the date specified therein or, if no date is so specified, from the date of the gazettal of the proclamation. (3) In any proclamation under this section which declares any road or portion thereof to be a subsidiary road, every subsidiary road to which the proclamation relates shall be classified as a – (a) main road; (b) secondary road; (c) developmental road; or (d) tourist road. 8. Vesting of State highways and subsidiary roads (1) All State highways and subsidiary roads shall be vested in the Crown, and shall be under the control and direction of the Minister. (2) Except as otherwise provided, the Minister shall cause all State highways and subsidiary roads to be constructed and maintained as he shall direct. (3) . . . . . . . . (4) . . . . . . . . (5) . . . . . . . . 9. . . . . . . . . 9A. Alignment of highways (1) The Governor may, by proclamation, declare – (a) the intended new line of a State highway or subsidiary road; or (b) the intended line of a new State highway or subsidiary road – by setting it forth in the proclamation or by reference to a plan lodged in the office of the Director-General of Lands. (2) The Minister shall within 60 days after the gazettal of a proclamation under this section – (a) if any lands affected by the proclamation are under the Land Titles Act 1980 , lodge with the Recorder of Titles a copy of the proclamation, together with a plan showing the names of the registered proprietors of those lands and the volume and folium of their respective folios of the Register and the Recorder shall thereupon register the proclamation by making an appropriate entry of it on those folios of the Register; (b) if any lands affected by the proclamation are not under the Land Titles Act 1980 and are not being purchased under Crown lands contracts, lodge in the Registry of Deeds a copy of the proclamation, together with a plan identifying those lands and showing their owners so far as the Minister can ascertain them; (c) lodge with the Director-General of Lands a copy of the proclamation and, if any lands affected by the proclamation are being purchased under Crown lands contracts, also lodge with the Director-General a plan showing the names of the purchasers of those lands; and (d) give notice in such form as he thinks fit to all owners of lands, and to all purchasers of lands being purchased under Crown lands contracts, that are affected by the proclamation or such of them as he can with reasonable diligence ascertain and notify within the 60 days. (2A) In subsection (2) , proclamation under this section includes a proclamation under this section that is combined with a proclamation under section 52A . (2B) Where a copy of a proclamation under this section that is lodged as required by subsection (2) (c) affects any land being purchased under a Crown lands contract, the Director-General of Lands shall register the proclamation by making an appropriate entry of it in the registers kept by him. (3) Where a plan is referred to as provided in subsection (1) a copy thereof shall be annexed to or endorsed on the copy proclamation lodged under paragraph (a) , (b) , or (c) of subsection (2) and shall have added to it, if it does not already contain them, the details required by those paragraphs respectively. (4) At the end of the 60 days referred to in subsection (2) – (a) a proclamation under this section that is not combined with a proclamation under section 52A ; or (b) the part of a proclamation under this section that is combined with such a proclamation – takes effect in accordance with subsection (5) . (5) When a proclamation under this section, or the part of a proclamation under this section, takes effect – (a) the Tasmanian Planning Commission established under the Tasmanian Planning Commission Act 1997 and the local authority shall take notice of it for the purposes of– (i) town planning; (ii) subdivision of land; (iii) minimum areas; (iv) distances of buildings from highways; (v) drainage; and (vi) new works; (b) buildings and other permanent improvements shall not be made on the intended line without the written consent of the Minister; (c) if any land on the intended line becomes clear of buildings or other structural improvements, the owner of the land or the purchaser of the land, in the case of land being purchased under a Crown lands contract – (i) shall notify the Minister forthwith; and (ii) may require the Minister to acquire the land as provided in subsection (6) or, as the case may require, to acquire the purchaser's estate and interest in the land as provided in subsection (6A) ; (d) the Minister may license the improvement of land on the intended line on such conditions as he thinks proper to ensure that – (i) compensation for acquisition of the land or the purchaser's estate and interest in the land, in the case of land being purchased under a Crown lands contract, will not thereby be increased; and (ii) construction of the highway on the intended line will not be more difficult; (e) if land is injuriously affected by the declaration of the intended line made in the proclamation or part of the proclamation, the owner of the land or its purchaser, in the case of land being purchased under a Crown lands contract, is entitled to make a claim for compensation within the period of 12 months after the proclamation or the part of the proclamation takes effect and that compensation – (i) if not agreed upon, shall be determined in the same manner as a disputed claim for compensation under the Land Acquisition Act 1993 ; and (ii) may be in the form of a lump sum or a yearly sum; and (f) land on the intended line of the highway or a term of years therein may be purchased or taken in accordance with the provisions of the Land Acquisition Act 1993 at any time, notwithstanding that there is no intention to proceed with the construction of the highway on the new line forthwith or at any definite time. (6) Where the Minister is required to acquire land under subsection (5) (c) – (a) he may elect to acquire the fee or a term of 21 years in the land; (b) if he elects to acquire the fee – (i) the price of the land, if not agreed upon, shall be determined in the same manner as a disputed claim for compensation under the Land Acquisition Act 1993 ; and (ii) on the ascertainment of the price the owner shall tender to the Minister an executed deed of surrender or transfer to the Crown; (c) if he elects to acquire a term – (i) the rent of the land, if not agreed upon, shall be determined in the same manner as a disputed claim for compensation under the Land Acquisition Act 1993 ; (ii) the conditions of the lease shall be such as the parties agree upon, and if the parties cannot agree either party may apply to a judge in chambers in a summary way to settle the form of the lease, and the judge may do so as he thinks reasonable and may order costs; and (iii) upon the ascertainment of the rent and conditions the owner shall tender to the Minister an executed deed of demise to the Minister and counterpart or an executed memorandum of lease to the Minister, as the case may require; and (d) an owner required by this subsection to tender an instrument – (i) is entitled to be paid by the Minister his costs of and incidental to the preparation, execution, and registration of that instrument; and (ii) shall, in the case of land under the Land Titles Act 1980 , do everything necessary for registration of the transfer or memorandum of lease. (6A) Where the Minister is required to acquire the purchaser's estate and interest in land under a Crown lands contract – (a) the price of the estate and interest, if not agreed on by the Minister and purchaser, shall be determined in the same manner as a disputed claim for compensation under the Land Acquisition Act 1993 ; (b) on the ascertainment of that price, the purchaser shall tender to the Minister an executed deed of surrender or transfer to the Crown of the estate and interest; and (c) the purchaser is entitled to be paid by the Minister his costs of and incidental to the preparation, execution, and registration of the deed of surrender or transfer that he is required, by paragraph (b) , to tender to the Minister. (7) A licence under subsection (5) (d) overrides in respect of manner of construction and type or use of buildings a provision of the Building Act 2016 or regulations made under the Building Act 2016 , a by-law, or a restrictive covenant to the contrary. (8) If – (a) by an instrument registered in the Registry of Deeds or under the Land Titles Act 1980 an estate or interest is assured in land that is affected by a proclamation under this section a copy of which has been lodged as provided in subsection (2) ; and (b) the registration of the proclamation before the registration of the first-mentioned instrument would not be disclosed by a reasonable and proper search in that Registry or in the office of the Recorder of Titles, as the case may be – the person to whom the estate or interest is assured or his successor in title is entitled to compensation by the Minister. (9) Where the Governor issues a proclamation – (a) revoking or amending a proclamation under this section that is not combined with a proclamation under section 52A ; or (b) revoking or amending the part of a proclamation under this section that is so combined – the Minister shall, within 60 days after the gazettal of the proclamation – (c) if any lands affected by the proclamation are under the Land Titles Act 1980 , lodge with the Recorder of Titles a copy of the proclamation, having attached to it, in the case of a proclamation amending a proclamation referred to in paragraph (a) or amending the part of a proclamation referred to in paragraph (b) , a copy of a plan showing the names of the registered proprietors of those lands and the volume and folium of their respective folios of the Register; (d) if any lands affected by the proclamation are not under the Land Titles Act 1980 and are not being purchased under Crown lands contracts, lodge in the Registry of Deeds a copy of the proclamation, having attached to it, in the case of a proclamation amending a proclamation referred to in paragraph (a) or amending the part of a proclamation referred to in paragraph (b) , a copy of a plan identifying those lands and showing their owners so far as the Minister can ascertain them; and (e) lodge with the Director-General of Lands a copy of the proclamation and, if any lands affected by the proclamation are being purchased under Crown lands contracts, having attached to it, in the case of a proclamation amending a proclamation referred to in paragraph (a) , or amending the part of a proclamation referred to in paragraph (b) , a copy of a plan identifying those lands and showing the persons who are purchasing them. (10) Where a copy of a proclamation under this section is lodged as required by subsection (9) (c) , the Recorder of Titles shall register the proclamation by making an appropriate entry of it on the folios of the Register affected by the proclamation. (11) Where a copy of a proclamation under this section that is lodged as required by subsection (9) (e) affects any land being purchased under a Crown lands contract, the Director-General of Lands shall register the proclamation by making an appropriate entry of it in the registers kept by him. (12) The Recorder of Titles shall, if a proclamation under this section is registered in his office, make recordings on the deeds of grant or certificates of title of the lands affected by the proclamation when they are next produced to him. 9B. Power to enter and make highways (1) The Minister may on 14 days' notice to the occupier of any land – (a) by warrant under his official seal authorize persons to enter on that land with or without animals, vehicles, machinery, and plant and there set out and construct roads and other works connected with highways; and (b) by notice published in the Gazette declare any road so constructed together with any land at the side which he intends to be used in connection therewith a highway. (2) Upon the publication of a notice under subsection (1) a highway shall for all purposes be deemed to exist accordingly and the Minister shall in the case of land subject to the Land Titles Act 1980 cause – (a) the highway to be registered under section 112 of the Land Titles Act 1980 ; or (b) the land subject to the highway to be purchased or taken under the provisions of the Land Acquisition Act 1993 – except where a proclamation under section 9D is used to the same end. (3) The Minister may make compensation for anything done under subsection (1) and its consequences, but if a person claiming such compensation is dissatisfied with the amount offered by the Minister or with the Minister's delay in making an offer he may by notice in writing require the Minister to purchase or take the land affected and the consideration or compensation payable therefor shall then include compensation for anything so done and its consequences. (4) The Minister on being required to purchase or take under subsection (3) may elect to proceed under section 9D and compensation shall then be made under that section to include the compensation otherwise specially payable under subsection (3) . (5) For the purposes of subsection (1) notice to the occupier of land – (a) is intended to enable him to do what is necessary for the benefit of his stock or other property and affairs when the entry and construction takes place; (b) shall be in writing; (c) may, where the occupier is absent or not a natural person, be given to his manager, overseer, or other person apparently in charge of his affairs in connection with the land; and (d) where the land is unoccupied may be addressed to "the occupier" without naming him and posted in a conspicuous place on the land, and shall then be deemed to have been given to the occupier of the land. (6) Where an occupier who receives a notice for the purposes of subsection (1) occupies as a tenant or licensee he shall forthwith pass on the notice to his landlord or licensor and where that landlord or licensor does not hold immediately of the Crown the same rule shall be followed until the notice reaches the person holding immediately of the Crown. 9C. Realignment of highways (1) The Minister may alter the line of a State highway or subsidiary road in accordance with this section. (2) The Minister may exclude the public from any part of the new line of the highway lying outside the old line, notwithstanding any dedication thereof as a highway, until reconstruction is completed. (3) So long as a sufficient way is provided for the normal traffic on the highway the Minister may exclude the public from any part of the existing line of the highway required for reconstruction. (4) When the construction of the highway on the new line is complete the Minister may, subject to subsection (5) , close off all portions of the old line of the highway not within the new line. (5) The Minister shall not under subsection (4) obstruct the access to the new line of the highway of any person who had access to the old line, but may determine how and where that access is to be given, and for the purpose of anticipating action under section 9D may acquire a right of way for a private person over another person's land as if it were a public right of passage. 9D. Simplified conveyancing on realignment (1) Upon, or in anticipation of, the completion of action under section 9C in respect of a length of a State highway or subsidiary road the Governor may, by proclamation in accordance with this section, bring the boundaries of adjacent and nearby lands into conformity with the new alignment. (2) Subject to the provisions of subsections (3) and (4) a proclamation may – (a) vest in the owner of specified land land of the Crown – (i) within either line of the highway; or (ii) reserved or acquired for the highway and not within either line – subject to the highway, in the case of land within the new line; (b) divest from its owner land within the new line of the highway and vest it in the Crown or without affecting its vesting declare it to be subject to the highway; and (c) divest from its owner land severed by the new line of the highway and vest it in the owner of specified land. (3) An owner in whom land may be vested under subsection (2) shall be the owner of land adjoining the land so vested. (4) Land may be dealt with under subsection (2) (c) only if the Director-General of Lands is of opinion that – (a) the severed land cannot reasonably be enjoyed in its severed condition by one owner not owning adjoining land; or (b) while one of the severed portions is sufficient to be enjoyed independently of any other land the other portion (being that dealt with) cannot reasonably be enjoyed therewith. (5) A proclamation under this section shall be registered – (a) if it affects any land not under the Land Titles Act 1980 , as a deed in the Registry of Deeds; and (b) if it affects any land under that Act, in the office of the Recorder of Titles as prescribed under that Act – and if required by this section to be registered in both places shall be so registered on the same day. (6) Upon the registration of a proclamation under this section it operates – (a) to vest in the Crown any land thereby expressed – (i) so to vest; or (ii) to be divested from its owner – as if that land were then duly surrendered by the most effectual assurance by a person having full power so to do; (b) to make subject to the highway any land ther