New powers to enter and temporarily occupy land

The amendments (new ss 165B to 165N) provide a new suite of powers and obligations relating to entry and temporary occupation of privately held land. The new suite of powers replaces the current reliance on sections 74 and 75 of the LAC Act, which are currently applied but heavily modified by the MTPF Act. The new powers include:

  • a power to enter onto land before a declared project becomes an approved project, for project investigation activities (s 165B).
  • a power once the project is approved to enter land and to undertake a broader range of activities, including the things presently authorised under s 74 of the LAC Act and the additional investigatory activities in new section 165B (s 165C).
  • a power to temporarily occupy any land for an approved project, and to do a range of things on the occupied land. The things that may be done on the occupied land include each of the things authorised by section 75(2) of the LAC Act, the additional things added currently by s 119 of the MTPF Act, and additional powers to make and use roadways, railways or carparks and construct driveways, pathways or other means of access to the land (including associated drains and curbs) (s 165D).
  • a power to enter land to investigate and assess whether trees or vegetation create a safety risk. If such a safety risk is identified, it also provides for a power to enter land to lop, fell or remove such trees or vegetation. This is similar to powers presently available for railways under the Rail Management Act 1996 (s 165F).
  • a power to occupy and use land below ground level to install support measures for project infrastructure being constructed on other land, where that support is only required for the construction period of the project. The separate power has different consequences than the ordinary occupation power: rent is not required to be paid for the underground land, the compensation entitlement is modified, and the support measures can be left in the ground at the end of the period of occupation (s 165G).

The project authority will be under a range of obligations for land occupied under these provisions. The project authority will be generally under a 'make good' obligation, but there will be clearer exceptions or more specific provision for certain types of actions (e.g. to replace a demolished fence). A project authority may also agree with the owner or occupier to restore the land to an alternative state to the state it was in when the occupation commenced (165H).

The amendments also provide, in new sections 167 and 168, a consolidated power to enter and use public land (as defined, which includes Crown land) and other similar types of land. In summary:

New section 167 will, in contrast to the current provision, authorise the use of land and works on land (instead of just works). Use of reserved Crown land will be subject to the same limitation as currently applies to the conduct of works currently provided for in section 167.

Section 170 of the MTPF Act, which currently provides a project authority with a power to use or authorise use of Crown land, is repealed, as a consequence of the use of Crown land being covered by new section 167.