Mitcham - Frankston Project Act 2004

Victorian Legislation and Parliamentary Documents i Mitcham-Frankston Project Act 2004 Act No. 39/2004 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Definitions 3 4. The Project 11 5. Project area 12 6. Extended Project area 12 7. Changes to Project area and Extended Project area 12 8. Traffic control centre 13 9. Application of Crown Land (Reserves) Act 1978 14 10. Freeway Corporation 14 11. Freeway Corporation not to be public authority 14 12. Delegation by Freeway Corporation 15 13. Delegation by Minister 15 14. Act to bind Crown 15 PART 2—THE AGREEMENT 16 Division 1—The Agreement for the Project 16 15. Power to enter into Agreement 16 16. Power to enter into Project Documents 16 17. Amendment of Agreement 16 18. Notice of Agreement, Amending agreement, or variation 17 19. Commencement of Agreement 17 20. Commencement of Amending agreement or variation 17 21. Tabling in Parliament 18 22. Revocation 18 23. Effect of revocation of Amending agreement or variation 19 Division 2—Giving Effect to the Agreement 20 24. Act to prevail over Agreement 20 25. Duty of Government to give effect to Agreement 20 26. Appropriation 20 27. Specific performance 20 28. Enforcement of Agreement 21 29. No warranty given 21 -- 1 of 181 -- Victorian Legislation and Parliamentary Documents Section Page ii 30. Agreement to be "State contract" 21 31. Agreement may require performance bond or other security 22 32. Agreement may empower State to call for transfer of property 22 33. Security for payments to State under Agreement 23 PART 3—ACQUISITION OF PROJECT LAND 24 Division 1—Acquisition of Land in the Project Area 24 34. Powers of acquisition 24 35. Application of Land Acquisition and Compensation Act 1986 24 36. Acquired land to be Crown land 24 37. Acquired land deemed to be reserved 24 38. Acquisition of easement—easement in gross 25 39. Acquisition by Authority—effect on Utilities 25 40. Acquisition of lease or licence 26 41. Modification of Land Acquisition and Compensation Act 1986—general 26 42. Modification of Land Acquisition and Compensation Act 1986—temporary occupation 27 43. Modification of Land Acquisition and Compensation Act 1986—regulations 27 44. Transfer of building or structure as compensation 27 45. Adjoining land may be provided as compensation 28 46. Cultural and Recreational Lands Act 1963 29 Division 2—Acquisition of Native Title Rights and Interests 29 47. Compulsory acquisition of native title rights and interests 29 48. Acquired right or interest to vest in Crown 29 49. Procedure for acquisition 30 50. Referral of objections to Tribunal 31 51. Determination of Tribunal on objection 32 52. Disputed claims for compensation: native title land 32 53. Cultural and Recreational Lands Act 1963 33 Division 3—Acquisition of Land Outside the Project Area 33 54. Power of Authority to purchase land 33 PART 4—PROVISION OF PUBLIC LAND AND COUNCIL LAND 34 Division 1—Surrender or Divesting of Public Land and Council Land 34 55. Surrender or divesting of land of public authorities and Councils 34 56. Surrender of interests in unreserved Crown land 35 57. Effect of surrender or divesting 35 58. Temporary reservation may be amended or revoked 37 -- 2 of 181 -- Victorian Legislation and Parliamentary Documents Section Page iii Division 2—Removal of Reservations on Land 37 59. Land Acts not to apply 37 60. Revocation of reservation of Schedule 1 land 37 61. Revocation of reservations—entire reservation 37 62. Revocation of reservations—part of reservation 38 63. Effect of revocation of reservation 38 64. Temporary reservation may be amended or revoked 40 65. Minister to be notified of reservation 40 Division 3—Declaration of Roads 40 66. Orders may continue or declare roads 40 Division 4—Entry into Possession of Certain Project Land 41 67. Definitions 41 68. Power to enter into possession 42 69. Authority must try to obtain agreement 42 70. Time for entry into possession—general 42 71. Time for entry into possession—residence or business 42 72. Early entry of place of residence or business 44 73. Occupation may be extended by agreement 45 74. Continued occupation without agreement 45 75. Recovery of rent 46 76. Proceedings where refusal to give up possession 46 77. Residential Tenancies Act 1997 not to apply 47 78. Giving of notices and documents 47 Division 5—Compensation for Surrendered or Divested or Reserved Land 48 79. Compensation—surrender, divesting or revocation of reservation 48 80. Compensation for Councils in certain circumstances 49 81. Transfer of building or structure as compensation 50 82. Adjoining land may be provided as compensation 51 83. No other compensation payable 51 Division 6—General 52 84. Effect of reservation of a stratum of Crown land 52 PART 5—MANAGEMENT OF LAND FOR PROJECT 53 Division 1—General Powers of Authority 53 85. Authority appointed committee of management 53 86. Authority may carry out or authorise works on public land 53 87. Authority liable to pay compensation 54 88. Temporary access to Crown land 54 -- 3 of 181 -- Victorian Legislation and Parliamentary Documents Section Page iv Division 2—Licences 55 89. Application 55 90. Authority may issue licence for purposes of Project 55 91. Term of licence 56 92. Conditions of licence—general 56 93. Conditions on licence over stratum of land 56 94. Conditions relating to sub-licences 57 95. Ability to mortgage licence 57 96. Amendment of licence 57 97. Termination of licence 57 98. Renewal of licence 58 99. Revocation of reservation on termination of licence 58 100. Orders may close roads 59 101. Orders may continue roads 59 Division 3—Leases 60 102. Application 60 103. Leasing powers 60 104. Term of lease 60 105. Conditions of lease—general 60 106. Conditions on lease over stratum of land 60 107. Conditions relating to sub-leases 61 108. Ability to mortgage lease 61 109. Amendment of lease 61 110. Termination of lease 61 111. Renewal of lease 61 Division 4—Interim Operation 62 112. Interim operation 62 Division 5—Interim Leases and Licences for Reserved Project Land 62 113. Application 62 114. Power to issue interim licences for reserved project land 63 115. Power to grant interim leases for reserved project land 63 116. Termination of lease or licence 63 117. Proceedings where refusal to give up possession 64 118. Residential Tenancies Act 1997 not to apply 65 Division 6—Powers Over Other Land 65 119. Land purchased by Authority 65 120. Authority may enter into agreements for land 65 121. Surplus land 66 122. Disposition of surplus land 66 -- 4 of 181 -- Victorian Legislation and Parliamentary Documents Section Page v PART 6—STATUTORY POWERS AND EXEMPTIONS 67 Division 1—Planning Controls 67 123. Authority may be planning authority 67 124. Authority to be responsible authority 67 125. Authority to be referral authority 67 126. Application of planning laws 67 127. Planning compensation 68 Division 2—Exemption from Other Statutory Approvals 68 128. Approvals of public bodies not required 68 Division 3—Application of Other Acts 69 129. Building Act 1993 69 130. Building and Construction Industry Security of Payment Act 2002 69 131. Mineral resources and extractive industry 69 PART 7—ROAD MANAGEMENT 71 Division 1—Application 71 132. Powers under Road Management Act 2004 71 Division 2—Construction Powers in Relation to Roads 71 133. Powers relating to roads 71 134. Authority to comply with Agreement 72 135. Authority to advise road authority before exercising power 72 136. Exercise of powers by road authority 72 137. Effect of decision about road 72 138. Temporary closure of roads to traffic 73 139. Powers of Freeway Corporation in relation to existing roads 73 140. Restriction on powers to close or discontinue roads 74 141. Compensation for denial of access 74 142. Freeway Corporation to be responsible for road management for certain roads on licensed land 76 Division 3—Road Declaration Powers 77 143. Declaration of Mitcham-Frankston Freeway 77 144. Declaration of other roads 78 145. Power to revoke declaration 78 146. VicRoads may not declare roads on licensed land or leased land 79 Division 4—Power of Minister to Close Freeway to Traffic 79 147. Power of Minister to close Mitcham-Frankston Freeway 79 -- 5 of 181 -- Victorian Legislation and Parliamentary Documents Section Page vi PART 8—INTERFACE WITH UTILITIES 80 Division 1—Introduction 80 148. Certain powers of Utilities not affected 80 Division 2—Consent of Authority 80 149. Division does not apply to leased land or licensed land 80 150. Utility to obtain consent of Authority 80 151. Utility may refer matter to Ministers for determination 81 Division 3—Consent of Freeway Corporation 81 152. Utility to obtain consent of Freeway Corporation 81 153. Utility may refer matter to Ministers for determination 82 Division 4—Agreements between Freeway Corporation and Utility 82 154. Agreements in relation to licensed land 82 155. What can a Utility agreement provide for? 82 156. Requirements for Utility agreements 83 157. Utility agreements must be approved by the Authority 83 158. Utility agreement may be amended 84 Division 5—Notified Utility Infrastructure 84 159. Duty to identify Utility infrastructure 84 160. Freeway Corporation to give notice 84 161. Duty of Utility to give notice 85 162. Copies of notices to be given to Authority 85 163. Freeway Corporation to consult and seek agreement 86 164. Referral to Ministers for determination if no agreement 86 165. Power of Minister to direct Utility 86 166. Direction to Freeway Corporation 87 167. Requirements for directions 88 168. Direction to prevail over requirement to consent 88 Division 6—Unnotified Utility Infrastructure 88 169. Duties of Freeway Corporation 88 170. Freeway Corporation to give notice 89 171. Utility agreement may be entered into 89 172. Notice to Minister if Utility cannot be found or fails to respond 90 173. Minister may direct Utility to carry out works 90 174. Direction to Freeway Corporation after notice to Minister 91 175. Direction to Freeway Corporation after application to Minister 92 176. Requirements for directions 93 177. Direction to prevail over requirement to consent 93 -- 6 of 181 -- Victorian Legislation and Parliamentary Documents Section Page vii Division 7—Liability for Costs 93 178. Freeway Corporation to be liable for certain relocation and rectification costs 93 179. Standard to apply to relocation or rectification 94 180. Liability for costs of disruption of infrastructure services 94 181. Utility liable for differential if it requests upgrade 95 182. Utility liable for delay costs 95 183. Limitation of liability 95 184. Dispute as to cost of relocation or rectification 96 185. Certification of work 96 186. Referral of matters by Utilities to Ministers for determination 97 187. Referral of matters by Freeway Corporation to Ministers for determination 97 188. Freeway Corporation no longer liable if work satisfactory 97 Division 8—Dispute Resolution 98 189. Who can determine matters referred to the Ministers? 98 190. What must be considered in determining a matter? 98 191. Requirements for determinations 98 192. Determination to prevail over inconsistent laws 98 Division 9—No Review of Determination or Direction 99 193. No appeal or review 99 PART 9—TOLLS 100 Division 1—Right to Toll 100 194. Freeway Corporation may fix, charge and collect tolls and toll administration fees 100 195. Fixing of tolls and toll administration fees 100 196. Commencement of tolling 101 Division 2—Charge and Collection of Tolls 101 197. Liability to pay toll charged 101 198. Exemptions from toll and toll administration fee 102 199. Owner not liable if sworn statement or statutory declaration supplied 102 200. Charge of toll 103 201. Payment of toll 104 202. Declared freeway use agreements 104 203. Prescribed tolling system not surveillance device 104 -- 7 of 181 -- Victorian Legislation and Parliamentary Documents Section Page viii Division 3—Tolling Offences 105 204. Offence to drive on Mitcham-Frankston Freeway without payment of toll 105 205. Application of offence 106 206. Offence to tamper with prescribed tolling devices 106 Division 4—Tolling Enforcement 107 207. Freeway Corporation may notify enforcement agency of non-payment of toll 107 208. Enforcement officers 108 209. Identification of enforcement officers 108 210. Power to serve a notice 109 211. Form of notice 109 212. Infringement penalty 110 213. Late payment of penalty 110 214. Withdrawal of notice 110 215. Payment expiates offence 111 216. Application of penalty 111 217. Prosecution after service of infringement notice 112 218. Enforcement of infringement penalty 112 219. Owner onus 113 Division 5—Evidentiary Provisions 115 220. Proof that vehicle driven on Mitcham-Frankston Freeway 115 221. Evidence of certificate or document from VicRoads 116 222. Evidence of certificate issued by Freeway Corporation 117 Division 6—Disclosure and Keeping of Records 118 223. VicRoads may disclose certain information to Freeway Corporation 118 224. Freeway Corporation to keep proper records 119 225. Destruction of records 119 PART 10—ADMINISTRATION AND ENFORCEMENT 120 Division 1—Use of Statutory Powers and Functions for Project 120 226. Governor in Council may require bodies to act 120 227. Minister may direct certain bodies to act 120 228. Powers of certain bodies extended 121 Division 2—Limitations on Powers of Councils 121 229. Limitation on Council powers—generally 121 230. Limitation on powers to make local laws 122 -- 8 of 181 -- Victorian Legislation and Parliamentary Documents Section Page ix Division 3—Emergency Orders 124 231. Independent Reviewer 124 232. Emergency orders 124 233. Service of emergency order 124 234. Period of operation of emergency order 125 235. Offence to fail to comply with emergency order 125 236. No appeal or review 125 237. Request for police assistance 126 Division 4—Emergency Management 126 238. Emergency management 126 239. Emergency access to Project area 126 Division 5—Powers of State to Control Mitcham-Frankston Freeway 127 240. Powers of State to control Project 127 Division 6—Powers of Authority to Investigate 128 241. Who is a Project party? 128 242. Authority can require information 128 243. Offence to fail to comply 129 244. Authorised officers 129 245. Identification of authorised officers 129 246. Powers of entry and access 130 247. Offence to hinder authorised officer 131 Division 7—Evidentiary Provisions 131 248. Evidentiary certificates of Authority 131 249. Evidentiary certificates of Freeway Corporation 131 Division 8—Service of Documents 132 250. Service of documents 132 Division 9—Proceedings for Offences 132 251. Proceedings for offences under Part 9 132 252. Proceedings for other offences 133 PART 11—GENERAL 134 253. Taxes and duties 134 254. Rates and charges 134 255. Requirement on Minister to consult 134 256. Action by Registrar of Titles 134 257. Supreme Court—limitation of jurisdiction 135 258. Regulations 135 -- 9 of 181 -- Victorian Legislation and Parliamentary Documents Section Page x PART 12—AMENDMENTS TO OTHER ACTS 137 259. Constitution Act 1975—Amendment of section 85 137 260. Magistrates' Court Act 1989—Schedule 7 137 261. Planning and Environment Act 1987—section 201A 138 262. Road Management Act 2004—definitions 138 263. Road Management Act 2004—application 139 264. Road Management Act 2004—public road 139 265. Road Management Act 2004—responsible road authority 139 266. Road Management Act 2004—Statutory duties 139 267. Road Management Act 2004—road management plans 140 268. Road Management Act 2004—interference with road 140 269. Road Management Act 2004—authorised officers 141 270. Road Management Act 2004—new Divisions 2 and 3 inserted in Part 6 141 Division 2—Negligence 141 99. Application of Division 141 100. Application of Part XII of Wrongs Act 1958 141 101. Principles concerning performance of road management functions 142 102. Limitations on liability of road authority 143 103. Policy defence 144 104. Liability where duty to perform and discretionary power to remedy 144 105. Defence to prove that reasonable care was taken 145 106. Matters which may be considered to constitute contributory negligence 146 Division 3—Other Liability 146 107. Liability of road authority 146 108. Road authority is not liable as an occupier 147 109. Liability in relation to fencing 147 110. Limits in relation to liability for property damages 147 111. Indexation provision 149 271. Road Management Act 2004—damage to road 151 272. Road Management Act 2004—New section 129 inserted 151 129. Partial abrogation of "ratione tenure" rule 151 273. Road Management Act 2004—section 131 repealed 151 274. Road Management Act 2004— new section 133A inserted 152 133A. Application of regulations to Mitcham-Frankston Freeway 152 -- 10 of 181 -- Victorian Legislation and Parliamentary Documents Section Page xi 275. Road Management Act 2004—new sections 134A and 134B inserted 153 134A. Application of Act in respect of the Mitcham- Frankston Freeway and Freeway Corporation 153 134B. Application of Schedule 7 in respect of the Mitcham- Frankston Freeway 155 276. Road Management Act 2004—Amendments to Victorian Civil and Administrative Tribunal Act 1998 157 277. Road Management Act 2004—section 168 repealed 158 278. Road Management Act 2004—registers of public roads 158 __________________ SCHEDULE 159 SCHEDULE 1—Revocation of Reservations 159 ═══════════════ ENDNOTES 160 INDEX 161 -- 11 of 181 -- Victorian Legislation and Parliamentary Documents 1 Mitcham-Frankston Project Act 2004† [Assented to 8 June 2004] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to empower the State to enter into an Agreement for the design, construction, operation, maintenance and management of the Mitcham-Frankston Freeway; and (b) to provide for the collection and enforcement of tolls in relation to the use of the Mitcham- Frankston Freeway; and Victoria No. 39 of 2004 -- 12 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 2 (c) to confer powers on the Southern and Eastern Integrated Transport Authority in relation to the land required for or affected by the Project; and (d) to provide procedures to deal with the interface between Utilities and the Freeway Corporation in relation to Utility infrastructure and the Project; and (e) to confer other powers on the Minister, the Southern and Eastern Integrated Transport Authority and the Freeway Corporation and other persons for the purposes of the Project; and (f) to amend the Road Management Act 2004— (i) to modify its operation in relation to the Mitcham-Frankston Freeway; and (ii) to provide for issues relating to civil liability arising out of road management; and (iii) in relation to rights of review of decisions under that Act; and (g) to amend section 85 of the Constitution Act 1975 in relation to certain of the amendments made by this Act to the Road Management Act 2004. 2. Commencement (1) This section and sections 1, 266, 270, 272, 273, 276 and 277 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Section 259 comes into operation on 1 July 2004. (3) The remaining provisions of this Act come into operation on a day or days to be proclaimed. s. 2 -- 13 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 3 (4) If a provision referred to in sub-section (3) does not come into operation before 1 July 2005, it comes into operation on that day. 3. Definitions (1) In this Act— "Agreement" means— (a) the agreement for the Project entered into under section 15 and the exhibits to that agreement; or (b) if all or any of the provisions of the agreement for the Project entered into under section 15 or the exhibits to that agreement are amended, the agreement and the exhibits as so amended; "Amending agreement" means an Amending agreement under section 17(1); "approved Utility agreement" means a Utility agreement that is approved by the Authority under section 157; "arterial road" has the same meaning as it has in the Road Management Act 2004; "Authority" means the Southern and Eastern Integrated Transport Authority established under the Southern and Eastern Integrated Transport Authority Act 2003; "business day" means a day that is not— (a) a Saturday or a Sunday; or (b) a day that is appointed as a public holiday or public half-holiday throughout the whole of Victoria under the Public Holidays Act 1993; s. 3 -- 14 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 4 "Central Plan Office" means the Central Plan Office of the Department of Sustainability and Environment; "Council" has the same meaning as it has in the Local Government Act 1989; "Crown land" includes a stratum of Crown land; "decision-maker", in Part 8, means— (a) the Minister and the Utility Minister; or (b) a person appointed under section 189; "declared freeway use agreement" means an agreement in a class of agreements declared under section 202 to be declared freeway use agreements; "Department Head" has the same meaning as it has in the Public Sector Management and Employment Act 1998; "enactment" means an Act or a regulation under an Act; "enforcement agency" means— (a) the Chief Commissioner of Police; or (b) if another person is prescribed by the regulations to be the enforcement agency with respect to all or any part of the enforcement agency's functions, that other person in respect of those functions; "enforcement officer" means a person appointed under section 208; "Extended Project area" has the meaning given by section 6; "freeway" has the same meaning as it has in the Road Management Act 2004; s. 3 -- 15 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 5 "Freeway Corporation", in relation to a provision of this Act, means the person who, for the time being, is declared under section 10 to be the Freeway Corporation in relation to that provision; "freeway use agreement" means— (a) an agreement between the Freeway Corporation and another person for the use of a vehicle on the Mitcham- Frankston Freeway; or (b) a declared freeway use agreement; "land" includes a stratum of land; "lease" in Division 3 of Part 5, means a lease granted under section 103; "lessee" means a person who is for the time being the lessee under a lease granted under section 103; "leased land" means land that is the subject of a lease granted under section 103; "licence" in Division 2 of Part 5, means a licence issued under section 90(1) or 90(2); "licensee" means— (a) a person who is for the time being the holder of a licence issued under section 90(1); or (b) in Division 2 of Part 5, a person who is for the time being the holder of a licence issued under section 90(1) or 90(2); "licensed land" means land that is subject to a licence issued under section 90(1); s. 3 -- 16 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 6 "Mitcham-Frankston Freeway" means land declared under section 143 to be a road and includes any part of that land; "municipal road" has the same meaning as it has in the Road Management Act 2004; "Native Title Act" means the Native Title Act 1993 of the Commonwealth; "non-arterial State road" has the same meaning as it has in the Road Management Act 2004; "notified Utility infrastructure" means Utility infrastructure— (a) that is identified under section 159; or (b) that has been notified under section 161; "owner", in relation to a vehicle, means— (a) the person in whose name the vehicle is registered, at the time of the trip, under the Road Safety Act 1986 or a corresponding Act of the Commonwealth or of another State or Territory of the Commonwealth; or (b) if VicRoads has received notice of transfer of registration under the regulations made under the Road Safety Act 1986, the person whose name is disclosed in the records kept by VicRoads as being entitled to possession of the vehicle at the time of the trip; or (c) if the vehicle is not registered under the Road Safety Act 1986 or a corresponding Act of the Commonwealth or of another State or Territory of the Commonwealth, the s. 3 -- 17 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 7 person whose name is disclosed in the records kept by VicRoads or the corresponding Act as being the owner of or entitled to possession of the vehicle at the time of the trip; or (d) if the vehicle displays a number plate— (i) the person who, at the time at which the registration number borne by that number plate was last assigned by VicRoads or the corresponding body under a corresponding Act, was the person in whose name the vehicle, to which that registration number was assigned, was registered under the Road Safety Act 1986 or a corresponding Act of the Commonwealth or of another State or Territory of the Commonwealth, whether or not that vehicle is the same as the vehicle involved in the trip; or (ii) the person whose name is disclosed in the records kept by VicRoads or the corresponding body under a corresponding Act as being entitled, or last entitled, to use or possess that number plate at the time of the trip; or (e) if the vehicle displays a general identification mark by means of a special identification plate issued under the regulations under the Road Safety Act 1986, the person to whom the mark is assigned at the time of the trip; "Project" means the project described in section 4 or any part of that project; s. 3 -- 18 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 8 "Project area" has the meaning given by section 5; "Project construction work" means work for the construction of the Project; "Project Document" means a document of a class that is designated in the Agreement as a Project Document; "public authority" means any body (including any trust) established by or under an Act for a public purpose, other than a Council; "public land" means— (a) Crown land; or (b) land owned by or vested in a public authority; "rectification" includes repair, replacement and reinstatement; "reserved Crown land" means land reserved or deemed to be reserved for any public purpose under the Crown Land (Reserves) Act 1978; "reserved project land" means land that is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for public purposes, being, in particular, the purposes of the Project; "road" has the same meaning as it has in the Road Management Act 2004; "road authority" has the same meaning as it has in the Road Management Act 2004; "Secretary to the Department of Infrastructure" means the body corporate established under section 35 of the Project Development and Construction Management Act 1994; s. 3 -- 19 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 9 "Secretary to the Department of Sustainability and Environment" means the Department Head of the Department of Sustainability and Environment; "stratum of Crown land" means a stratum of land that is Crown land; "stratum of land" means a part of land consisting of a space of any shape, below on or above the surface of the land, or partly below and partly above the surface of the land, all the dimensions of which are limited; "surplus land" means land determined under section 121 to be surplus land; "toll" means a toll fixed under section 195; "toll administration fee" means a toll administration fee fixed under section 195; "toll zone" means a toll zone specified under section 195; "traffic control centre" means an area of land declared under section 8 to be the traffic control centre; "Tribunal" means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998; "trip" means the driving of a vehicle on the Mitcham-Frankston Freeway uninterrupted by exit from that Freeway; "unnotified Utility infrastructure" means Utility infrastructure— (a) that has not been identified under section 159; or (b) that has not been notified under section 161; s. 3 -- 20 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 10 "Utility" means— (a) a utility within the meaning of the Road Management Act 2004; or (b) the Director of Public Transport under the Transport Act 1983; or (c) any person who manages rail infrastructure within the meaning of Division 3 of Part VI of the Transport Act 1983; or (d) any person who operates rolling stock within the meaning of Division 3 of Part VI of the Transport Act 1983; "Utility agreement" means an agreement entered into under section 154 and, if that agreement is amended under section 158, that agreement as so amended; "Utility infrastructure" means any part of the supply, distribution or reticulation network operated or managed by a Utility, including— (a) poles, pipes, cables, wires, conduits and tunnels; and (b) rail infrastructure and tram infrastructure (both within the meaning of the Rail Corporations Act 1996); "Utility Minister" in relation to a Utility, means the Minister for the time being administering any Act— (a) under which a Utility is authorised to provide an infrastructure service; or (b) that regulates the provision by the Utility of an infrastructure service; s. 3 -- 21 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 11 "variation" means an amendment of the Agreement made under section 17(2); "variation statement" means a statement setting out the terms of a variation; "vehicle" has the same meaning as "motor vehicle" has in the Road Safety Act 1986; "VicRoads" means the Roads Corporation established under Part II of the Transport Act 1983; "works" has the same meaning as it has in the Road Management Act 2004. (2) In this Act, the expressions "just terms", "native title", "native title holder", "native title rights and interests", "registered native title body corporate" and "registered native title claimant" have the same respective meanings as they have in the Native Title Act 1993 of the Commonwealth. (3) The Premier may determine a Minister as the Utility Minister for a Utility and if a determination is made that Minister is deemed to be the Utility Minister for that Utility for the purposes of this Act. 4. The Project In this Act, a reference to the Project is a reference to the project for an integrated transport corridor connecting the Eastern Freeway to the Frankston Freeway including tunnels under the Mullum Mullum Creek and a link with the Ringwood By-Pass. s. 4 -- 22 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 12 5. Project area (1) Subject to sub-section (2), for the purposes of this Act, the Project area means the areas of land shown as the Project area on the plans numbered LEGL./04–047 to LEGL./04–106 and lodged in the Central Plan Office or, if any of those areas of land is varied in accordance with this Part, those areas as so varied. (2) For the purposes of this Act the plans referred to in sub-section (1) must be read as one plan in the manner shown in plan numbered LEGL./04–046 and lodged in the Central Plan Office. 6. Extended Project area (1) Subject to sub-section (2), for the purposes of this Act, the Extended Project area means the areas of land shown as the Extended Project Area on the plans numbered LEGL./04–047 to LEGL./04–106 and lodged in the Central Plan Office or, if any of those areas of land is varied in accordance with this Part, those areas as so varied. Note: The Extended Project area includes the Project area. (2) For the purposes of this Act the plans referred to in sub-section (1) must be read as one plan in the manner shown in plan numbered LEGL./04–046 and lodged in the Central Plan Office. 7. Changes to Project area and Extended Project area (1) The Governor in Council may, by Order published in the Government Gazette, vary the Project area by doing either or both of the following— (a) increasing the Project area by adding land in the vicinity of the Project area; or (b) decreasing the Project area. s. 5 -- 23 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 13 (2) The Governor in Council may, by Order published in the Government Gazette, vary the Extended Project area by doing either or both of the following— (a) increasing the Extended Project area by adding land in the vicinity of the Extended Project area; or (b) decreasing the Extended Project area. (3) An Order under this section takes effect on the day that it is published in the Government Gazette or, if a later day is specified in the Order, on that later day. (4) An Order under this section must be made on the recommendation of the Minister and the Minister administering the Planning and Environment Act 1987. (5) The Ministers must not make a recommendation under sub-section (4) unless they have received the appropriate plans, which have been— (a) signed by the Surveyor-General; and (b) lodged at the Central Plan Office. (6) The Minister must cause a copy of each Order under this section to be laid before each House of the Parliament within 6 sitting days of that House after the Order is made. (7) Part 5 of the Subordinate Legislation Act 1994 applies to an Order under this section as if that Order were a statutory rule within the meaning of that Act. 8. Traffic control centre (1) The Governor in Council may, by Order published in the Government Gazette, declare any area of land in the Project area to be the traffic control centre. s. 8 -- 24 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 14 (2) An Order under this section must be made on the recommendation of the Minister and the Minister administering the Planning and Environment Act 1987. (3) The Ministers must not make a recommendation under sub-section (2) unless they have received the appropriate plans, which have been— (a) signed by the Surveyor-General; and (b) lodged at the Central Plan Office. 9. Application of Crown Land (Reserves) Act 1978 For the purposes of this Act, the Crown Land (Reserves) Act 1978 is deemed to have effect as if, in that Act, the terms "land" and "Crown land" had the same meanings as in this Act. 10. Freeway Corporation (1) The Governor in Council, on the recommendation of the Minister, may, by Order published in the Government Gazette, declare any person to be the Freeway Corporation in relation to any provision of— (a) this Act or the regulations; or (b) the Road Management Act 2004 or the regulations under that Act. (2) An Order under this section takes effect on the day that it is published in the Government Gazette, or if a later day is specified in the Order, on that later day. 11. Freeway Corporation not to be public authority The person who is for the time being the Freeway Corporation is not a public authority within the meaning of any enactment by reason only that it is the Freeway Corporation. s. 9 -- 25 of 181 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Mitcham-Frankston Project Act 2004 Act No. 39/2004 15 12. Delegation by Freeway Corporation (1) The Freeway Corporation may, by instrument, delegate to one or more approved persons any of the powers and functions of the Freeway Corporation under— (a) this Act or the regulations; or (b) the Road Management Act 2004 or the regulations under that Act. (2) The Governor in Council may, by Order published in the Government Gazette, approve persons for the purposes of this section. 13. Delegation by Minister (1) The Minister may, by instrument, delegate to any person any of the powers of the Minister under this Act or the Agreement. (2) A delegate of a power under sub-section (1) may, subject to any conditions to which the delegation is subject, sub-delegate that power to any other person or persons or body if the instrument of delegation authorises its sub-delegation. (3) Sections 42 and 42A of the Interpretation of Legislation Act 1984 apply to a sub-delegation authorised by this section in the same way as they apply to a delegation. 14. Act to bind Crown This Act binds the Crown in right of Victoria and, as far as the legislative power of the Parliament permits, the Crown in all its other capacities. __________________ s. 12 -- 26 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 16 PART 2—THE AGREEMENT Division 1—The Agreement for the Project 15. Power to enter into Agreement (1) The Minister, after consultation with the Treasurer, may enter into, for and on behalf of the State, an agreement for the Project. (2) The agreement must be in writing. (3) Without limiting sub-section (1), the agreement may provide for the design, construction, finance, lease, operation, maintenance, repair, transfer, modification, up-grade and management of the Project. 16. Power to enter into Project Documents The Minister, after consultation with the Treasurer, may enter into, for and on behalf of the State, any Project Document. 17. Amendment of Agreement (1) All or any of the provisions of the Agreement may be amended from time to time by an Amending agreement. (2) All or any of the provisions of the Agreement may be amended from time to time in accordance with the terms of the Agreement. (3) A variation statement must be prepared for each amendment made under sub-section (2). (4) In this section, "amended" includes varied, added to, substituted, cancelled or revoked. s. 15 -- 27 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 17 18. Notice of Agreement, Amending agreement, or variation (1) The Minister must cause to be published in the Government Gazette, a notice of the making of— (a) the Agreement; or (b) an Amending agreement; or (c) a variation. (2) The notice must specify the place or places at which a person may inspect (as the case requires)— (a) the Agreement; or (b) the Amending agreement; or (c) the variation statement. 19. Commencement of Agreement The Agreement commences— (a) when the notice of making of the Agreement is published in the Government Gazette under section 18; or (b) if a later day is specified in the Agreement, on that later day. 20. Commencement of Amending agreement or variation (1) An Amending agreement commences— (a) when the notice of making of the Amending agreement is published in the Government Gazette under section 18; or (b) if a later day is specified in the Amending agreement, on that later day. s. 18 -- 28 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 18 (2) A variation commences— (a) when the notice of making of the variation is published in the Government Gazette under section 18; or (b) if a later day is specified in the variation statement, on that later day. 21. Tabling in Parliament (1) The Minister must cause a copy of the Agreement to be laid before each House of the Parliament within 6 sitting days of that House following the making of the Agreement. (2) The Minister must cause a copy of each Amending agreement to be laid before each House of the Parliament within 6 sitting days of that House following the making of the Amending agreement. (3) The Minister must cause a copy of each variation statement to be laid before each House of the Parliament within 6 sitting days of that House following the making of the variation. 22. Revocation (1) The Agreement may be revoked wholly or in part by resolution of each House of the Parliament passed within 6 sitting days of that House after a copy of the Agreement is laid before that House. (2) An Amending agreement may be revoked wholly or in part by resolution of each House of the Parliament passed within 6 sitting days of that House after a copy of the Amending agreement is laid before that House. (3) A variation may be revoked wholly or in part by resolution of each House of the Parliament passed within 6 sitting days of that House after a copy of the variation statement is laid before that House. s. 21 -- 29 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 19 (4) If the Agreement is not laid before a House of the Parliament within the period required by section 21(1), the Agreement is deemed to be revoked on the day immediately following the end of that period. (5) If an Amending agreement is not laid before a House of the Parliament within the period required by section 21(2), the Amending agreement is deemed to be revoked on the day immediately following the end of that period. (6) If a variation statement is not laid before a House of the Parliament within the period required by section 21(3), the variation is deemed to be revoked on the day immediately following the end of that period. (7) The Minister must cause to be published in the Government Gazette a notice of the revocation of the Agreement, Amending agreement or variation or part of the Agreement, Amending agreement or variation. 23. Effect of revocation of Amending agreement or variation If an Amending agreement or variation or part of an Amending agreement or variation is revoked under section 22— (a) a provision of the Agreement that had been cancelled or revoked by the Amending agreement or variation, or by the part of the Amending agreement or variation that is revoked, is revived as from the beginning of the day on which the Amending agreement or variation or part, was revoked; and (b) a provision of the Agreement that had been amended (otherwise than by cancellation or revocation) by the Amending agreement or variation, or by the part of the Amending s. 23 -- 30 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 20 agreement or variation that is revoked, takes effect without that amendment as from the beginning of the day on which the Amending agreement or variation, or part, was revoked as if the amendment had not been made. Division 2—Giving Effect to the Agreement 24. Act to prevail over Agreement If a provision of the Agreement is inconsistent with a provision of this Act, the provision of this Act prevails. 25. Duty of Government to give effect to Agreement Subject to the laws of Victoria, the Government, its Ministers and its public authorities will do all things necessary and practicable— (a) to ensure that the State and all its public authorities facilitate, on behalf of the State, the implementation of the Agreement; and (b) to enable the State to discharge its obligations under the Agreement. 26. Appropriation Any amount that the State is required to pay under or arising out of the Agreement or a Project Document is payable from the Consolidated Fund which is, to the necessary extent, appropriated accordingly. 27. Specific performance For the avoidance of doubt, it is declared that section 23(1) of the Crown Proceedings Act 1958 authorises the granting and enforcement of a decree of specific performance against the Crown in respect of the obligations of the State under the Agreement or a Project Document. s. 24 -- 31 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 21 28. Enforcement of Agreement (1) The Agreement may be enforced only by or on behalf of the State or another party to the Agreement or a successor or assign of another party to the Agreement. (2) Neither the State nor a public authority is liable for the acts or omissions of— (a) any other party to the Agreement; or (b) a licensee in relation to the Project; or (c) a lessee in relation to the Project. 29. No warranty given (1) Except as expressly provided in this Act or the Agreement, the State or a public authority must not be taken to have given— (a) any express or implied warranty to any person as to the accuracy of any information provided to the Freeway Corporation in connection with the Agreement; or (b) any express or implied representation to any person in relation to any matter disclosed in any tender document or negotiation relating to the Agreement. (2) Sub-section (1) does not apply to a warranty or representation given under an Act if the Act expressly provides for a warranty or representation of that kind to be relied on by any person. 30. Agreement to be "State contract" (1) The Agreement is deemed to be a State contract for the purposes of the Information Privacy Act 2000. s. 28 -- 32 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 22 (2) Services performed under the Agreement are services in connection with the performance of the State's functions. 31. Agreement may require performance bond or other security (1) The Agreement may require the Freeway Corporation to provide or enter into a bond or other arrangement for payment to secure performance of the Agreement. (2) The State may recover any money payable under a bond or arrangement referred to in sub-section (1) even if the requirement in the Agreement for the provision of the bond or arrangement or the payment of any amount under the bond or arrangement is a penalty. 32. Agreement may empower State to call for transfer of property (1) The Agreement may provide that the State may call for the sale, transfer or assignment to itself, or to another person, of any real or personal property in which the Freeway Corporation has an interest (a property transfer provision). (2) A property transfer provision is not invalid and the State is not prevented from exercising a power conferred by the provision by reason only of a law or a rule of law under which the provision, or the exercise of the power, would, but for this sub- section, have been invalid because of any mortgage, charge or other security held by the State over or in respect of the property of the Freeway Corporation. (3) The State may exercise any power under a property transfer provision even if the provision is a penalty. s. 31 -- 33 of 181 -- Victorian Legislation and Parliamentary Documents Part 2—The Agreement Mitcham-Frankston Project Act 2004 Act No. 39/2004 23 33. Security for payments to State under Agreement (1) This section applies to a mortgage, charge or other security given by a person that includes a provision that secures, or purports to secure, payment to the State of an amount that is, or may become due or payable to the State by the person under, or in connection with, the Agreement (a security provision). (2) A security provision is not invalid by reason only of a law or rule of law under which the provision would, but for this sub-section, have been invalid or unenforceable because the property secured under the mortgage, charge or other security includes an amount that is, or may become, due and payable by the State. __________________ s. 33 -- 34 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 24 PART 3—ACQUISITION OF PROJECT LAND Division 1—Acquisition of Land in the Project Area 34. Powers of acquisition (1) The Authority may acquire an interest in land in the Project area by agreement or by a compulsory process for the purposes of the Project or any purpose connected with the Project. (2) This section does not apply to the compulsory acquisition of native title rights and interests. 35. Application of Land Acquisition and Compensation Act 1986 Subject to this Division, the Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose— (a) the Mitcham-Frankston Project Act 2004 is the special Act; and (b) the Southern and Eastern Integrated Transport Authority is the Authority. 36. Acquired land to be Crown land Subject to section 39, any interest in land acquired by the Authority under section 34 vests in the Crown under section 24 of the Land Acquisition and Compensation Act 1986 despite anything to the contrary in that Act. 37. Acquired land deemed to be reserved (1) If the Authority acquires the fee simple in land under section 34, the land— (a) is deemed to be unalienated land of the Crown; and s. 34 -- 35 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 25 (b) is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for public purposes, being, in particular, the purposes of the Project. (2) The reservation of land under sub-section (1) may be amended, revoked and otherwise dealt with in accordance with the Crown Land (Reserves) Act 1978. 38. Acquisition of easement—easement in gross If the Authority acquires any right in the nature of an easement or purporting to be an easement under section 34, that right must be taken to be an easement even though there is no land vested in the Authority or the Crown that is benefited by or capable of being benefited by that right. 39. Acquisition by Authority—effect on Utilities (1) This section applies if— (a) the Authority acquires an interest in land under section 34; and (b) an easement of a Utility or a right in the nature of an easement of a Utility is extinguished on that acquisition. (2) Nothing in section 24 of the Land Acquisition and Compensation Act 1986 has the effect of removing— (a) a Utility's ownership of any Utility infrastructure; or (b) any right (other than an interest in real property) arising under any existing agreement between Utilities in relation to Utility infrastructure; or (c) any right conferred by an enactment on a Utility in relation to Utility infrastructure. s. 38 -- 36 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 26 (3) The acquisition of the interest in land is not to be regarded as placing a Utility in breach of, or as constituting a default or potential default under any obligation, undertaking, warranty or covenant in any agreement, arrangement or understanding between the Utility and a third party, including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment, transfer or disposal of any land or interest in land. 40. Acquisition of lease or licence (1) If any interest in land to be acquired under section 34 is held by a licensee or lessee of the Crown, the Authority must notify the Secretary to the Department of Sustainability and Environment of the intention to acquire the interest. (2) The notice must include a description of the interest to be acquired. 41. Modification of Land Acquisition and Compensation Act 1986—general (1) Section 3(3) of the Land Acquisition and Compensation Act 1986 does not apply to the extent that this Division is inconsistent with that Act. (2) The Project area is deemed to have been reserved under a planning instrument for a public purpose for the purposes of section 5 of the Land Acquisition and Compensation Act 1986. (3) Section 8(1) of the Land Acquisition and Compensation Act 1986 applies to an acquisition under section 34 as if for paragraph (e) there were substituted— "(e) state that the land is within the Project area under the Mitcham-Frankston Project Act 2004;". s. 40 -- 37 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 27 (4) Section 43 of the Land Acquisition and Compensation Act 1986 applies to an acquisition under section 34 as if after section 43(1)(b) there were inserted— "(ba) Any special suitability or adaptability of the land in which the acquired interest subsists for a purpose for which it could be used under the Mitcham-Frankston Project Act 2004 for the purposes of the Project within the meaning of that Act.". (5) Section 109 of the Land Acquisition and Compensation Act 1986 does not apply to an interest in land acquired under section 34. 42. Modification of Land Acquisition and Compensation Act 1986—temporary occupation Section 75 of the Land Acquisition and Compensation Act 1986 has effect as if it empowered the Authority and any person authorised by the Authority under that section to enter any land and section 75(6) did not apply. 43. Modification of Land Acquisition and Compensation Act 1986—regulations The regulations in force from time to time under the Land Acquisition and Compensation Act 1986 and the forms prescribed under those regulations apply in relation to the operation of this Division with such modifications as are necessary to give effect to this Division. 44. Transfer of building or structure as compensation (1) With the agreement of the person entitled to compensation under this Division for the acquisition of an interest in land, the Authority may transfer a building or structure from reserved project land or surplus land or from land owned by the Authority or by that person to other land owned by that person in full or in part settlement s. 42 -- 38 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 28 of any compensation that the Authority is liable to pay. (2) With the agreement of the person entitled to compensation under this Division for the acquisition of an interest in land, the Authority may ask— (a) VicRoads to transfer a building or structure from land owned by it to land owned by that person; or (b) the Secretary to the Department of Infrastructure to transfer a building or structure from land owned by it to land owned by that person— in full or in part settlement of any compensation that the Authority is liable to pay. (3) VicRoads or the Secretary to the Department of Infrastructure may comply with a request under this section despite anything to the contrary in any other Act. 45. Adjoining land may be provided as compensation (1) If the Authority acquires compulsorily under this Division part of a parcel of land owned by a person, the Authority may require that person to take land— (a) that adjoins the part of that parcel that was not acquired; and (b) that is owned by the Authority or is surplus land. (2) The value of that adjoining land must be deducted from any amount to be paid by way of compensation to the owner of the land acquired compulsorily by the Authority. s. 45 -- 39 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 29 (3) If the Authority and the owner cannot agree as to the value of the adjoining land, the value must be settled in the same manner and at the same time as the compensation to be paid to that owner. 46. Cultural and Recreational Lands Act 1963 Section 3 of the Cultural and Recreational Lands Act 1963 does not apply to the compulsory acquisition of land under this Division. Division 2—Acquisition of Native Title Rights and Interests 47. Compulsory acquisition of native title rights and interests (1) The Authority may acquire a native title right or interest in land in the Extended Project area by a compulsory process for the purposes of the Project or any purpose connected with the Project. (2) Subject to this Division, the Land Acquisition and Compensation Act 1986 applies to a compulsory acquisition referred to in sub- section (1) and for that purpose— (a) the Mitcham-Frankston Project Act 2004 is the special Act; and (b) the Southern and Eastern Integrated Transport Authority is the Authority. (3) Section 3(3) of the Land Acquisition and Compensation Act 1986 does not apply to the extent that this Division is inconsistent with that Act. 48. Acquired right or interest to vest in Crown Any right or interest in land acquired by the Authority under section 47 vests in the Crown under section 24 of the Land Acquisition and Compensation Act 1986 despite anything to the contrary in that Act. s. 46 -- 40 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 30 49. Procedure for acquisition (1) For the purposes of the compulsory acquisition of native title rights and interests in land, the Authority is authorised to comply with any relevant procedure under the Native Title Act for a valid acquisition of those rights and interests. (2) If the procedure under section 24MD(6B) of the Native Title Act applies and an objection is not made under paragraph (d) of that sub-section within 2 months after notice is given under that sub-section, the Authority may compulsorily acquire the native title rights and interests. (3) For the purposes of the application of the procedure under section 24MD(6B) of the Native Title Act in relation to the compulsory acquisition, the Tribunal is the independent body for hearing an objection under section 24MD(6B)(f) and sections 50 and 51 apply. (4) If an objection is made under section 24MD(6B)(d) of the Native Title Act to a proposed compulsory acquisition of native title rights and interests, the Authority may compulsorily acquire the native title rights and interests in the land if— (a) all those objections have been withdrawn; or (b) within 5 months after notification under section 24MD(6B) of the Native Title Act of a proposed compulsory acquisition a request has not been made for the objection to be referred to the Tribunal. s. 49 -- 41 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 31 (5) If an objection made under section 24MD(6B)(d) of the Native Title Act to a proposed compulsory acquisition is referred to the Tribunal and a determination is made that the proposed compulsory acquisition proceed, the Authority, in accordance with the determination and subject to this Act, may compulsorily acquire the native title rights and interests. (6) If the Tribunal makes a determination that the proposed compulsory acquisition not proceed, or proceed subject to conditions, the Authority must comply with that determination except as permitted by sub-paragraphs (i), (ii) and (iii) of section 24MD(6B)(g) of the Native Title Act. 50. Referral of objections to Tribunal (1) A person or body that makes an objection under section 24MD(6B)(d) of the Native Title Act to a proposed compulsory acquisition of native title rights and interests may request the Authority to refer the objection to the Tribunal. (2) A request must be made within 5 months after notification under section 24MD(6B) of the Native Title Act of the proposed compulsory acquisition. (3) If a request is made, the Authority must refer the objection to the Tribunal unless the Authority decides not to proceed with the compulsory acquisition. (4) The Authority is a party to a proceeding in the Tribunal in respect of an objection. s. 50 -- 42 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 32 51. Determination of Tribunal on objection (1) The Tribunal may make any of the following determinations in respect of an objection referred to it under section 50— (a) a determination that the proposed compulsory acquisition that is the subject of the objection proceed; or (b) a determination that the proposed compulsory acquisition proceed subject to conditions; or (c) a determination that the proposed compulsory acquisition not proceed. (2) In making a determination, the Tribunal must take into account— (a) the likely impact of the proposed compulsory acquisition on the objector's registered native title rights and interests; and (b) the measures proposed to be taken to minimise that impact. (3) For the avoidance of doubt, a determination is not an order of the Tribunal for the purposes of the Victorian Civil and Administrative Tribunal Act 1998. Note: Compare section 79 of the Native Title Act. 52. Disputed claims for compensation: native title land If the compensation payable to a person in respect of the compulsory acquisition of native title rights and interests in land to which this Division applies does not amount to compensation on just terms, the person is entitled to such additional compensation as is necessary to ensure that compensation is paid on just terms. s. 51 -- 43 of 181 -- Victorian Legislation and Parliamentary Documents Part 3—Acquisition of Project Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 33 53. Cultural and Recreational Lands Act 1963 Section 3 of the Cultural and Recreational Lands Act 1963 does not apply to the compulsory acquisition of a right or interest under this Division. Division 3—Acquisition of Land Outside the Project Area 54. Power of Authority to purchase land (1) The Authority may purchase land for the purposes of the Project in any area outside the Project area. (2) The Authority may purchase land in any area outside the Project area for the purpose of preservation, restoration or provision of native habitat. (3) The Authority may purchase the whole of a parcel of land even if only part of the land is required for the purposes of the Project or for the purposes of sub-section (2). (4) If the Authority acquires part of a parcel of land under section 34, it may purchase the rest of the parcel of land under this Division even if the rest of the parcel is not required for the purposes of the Project or for the purposes of sub-section (2). __________________ s. 53 -- 44 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 34 PART 4—PROVISION OF PUBLIC LAND AND COUNCIL LAND Division 1—Surrender or Divesting of Public Land and Council Land 55. Surrender or divesting of land of public authorities and Councils (1) The Governor in Council may, by Order published in the Government Gazette— (a) require a public authority or Council in which land in the Project area is vested to surrender that land to the Crown; or (b) divest land in the Project area from a public authority or Council. (2) Sub-section (1) applies whether or not that land was vested in the public authority or Council by or under an Act or by any other means. (3) Sub-section (1) does not apply to land that is reserved under the Crown Land (Reserves) Act 1978. (4) A public authority or Council must comply with a requirement under sub-section (1)(a). (5) A power may only be exercised under sub- section (1) on the joint recommendation of the Minister and— (a) in the case of a public authority, the Minister administering the Act under which the public authority is established; or (b) in the case of a Council, the Minister administering the Local Government Act 1989. s. 55 -- 45 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 35 56. Surrender of interests in unreserved Crown land (1) The Minister may recommend to the Governor in Council that the interests (if any) of a public authority or a Council in any Crown land that is a part of the Project area be surrendered to the Crown on— (a) receiving a plan of land signed by the Surveyor-General; and (b) being satisfied that the land shown on the plan represents land, the interests in which are to be surrendered to the Crown. (2) Sub-section (1) does not apply to land that is reserved under the Crown Land (Reserves) Act 1978. (3) On receiving the Minister's recommendation, the Governor in Council may, by Order published in the Government Gazette, declare that the interests (if any) in the land shown on the plan are surrendered to the Crown. 57. Effect of surrender or divesting (1) This section applies to land on— (a) the conveyance to the Crown or the registration of an instrument of transfer and surrender to the Crown of the land that a public authority or Council is required to surrender under section 55(1)(a); or (b) the publication in the Government Gazette of an Order under section 55(1)(b) in respect of the land; or (c) the publication in the Government Gazette of an Order under section 56 in respect of the land. s. 56 -- 46 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 36 (2) The land is deemed to be unalienated land of the Crown and is freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests. (3) Unless the relevant Order under section 55 or 56 expressly excludes the operation of this sub- section, if any part of the land is or is being used as a road— (a) that part of the land ceases to be a road; and (b) all rights, easements and privileges existing or claimed in that part of the land either in the public or by any body or person as incident to any express or implied grant, or past dedication or supposed dedication or by user or operation of law or otherwise, cease. (4) Unless the relevant Order under section 55 or 56 expressly excludes the operation of this sub- section, if any part of the land is the bed, soil and banks of a river, all rights, easements and privileges existing or claimed in that part of the land either in the public or by any body or person as incident to any express or implied grant, or past dedication or supposed dedication or by user or operation of law or otherwise, cease. (5) The land is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for public purposes, being, in particular, the purposes of the Project. (6) This section has effect despite anything to the contrary in section 175A of the Water Industry Act 1994, section 10 or clause 1 of Schedule 5 to the Road Management Act 2004 or any other Act. s. 57 -- 47 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 37 58. Temporary reservation may be amended or revoked The reservation of land under section 57(5) may be amended, revoked and otherwise dealt with in accordance with the Crown Land (Reserves) Act 1978. Division 2—Removal of Reservations on Land 59. Land Acts not to apply This Division has effect despite anything to the contrary in the Crown Land (Reserves) Act 1978 or the Land Act 1958. 60. Revocation of reservation of Schedule 1 land (1) The Order in Council specified in item 1 in Schedule 1 is revoked in so far as it relates to the land shown hatched on the plan numbered LEGL./04–044 and lodged in the Central Plan Office. (2) The reservation of land specified in item 2 in Schedule 1 is revoked in so far as it relates to the land shown hatched on the plan numbered LEGL./04–045 and lodged in the Central Plan Office. 61. Revocation of reservations—entire reservation (1) If any Crown land permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 is entirely within the Project area, the Minister may recommend to the Governor in Council that the reservation of that land be revoked in its entirety. (2) On receiving the Minister's recommendation, the Governor in Council may, by Order published in the Government Gazette, revoke the following— (a) any Order in Council reserving the land; s. 58 -- 48 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 38 (b) any Crown grant, certificate of title or folio of the Register issued or created with respect to the land. 62. Revocation of reservations—part of reservation (1) If any Crown land permanently or temporarily reserved under the Crown Land (Reserves) Act 1978 is within the Project area, and if only part of the reservation of that land is to be revoked, the Minister on— (a) receiving a plan of land signed by the Surveyor-General; and (b) being satisfied that the land shown on the plan represents that part of the reservation to be revoked— may recommend to the Governor in Council that that part of the reservation be revoked. (2) On receiving the Minister's recommendation, the Governor in Council may, by Order published in the Government Gazette, revoke the following— (a) any Order in Council reserving the land; (b) any Crown grant, certificate of title or folio of the Register issued or created with respect to the land— to the extent that the Order in Council, Crown grant, certificate of title or folio relates to the land shown on the plan. 63. Effect of revocation of reservation (1) This section applies to— (a) land referred to in section 60(1) or 60(2), on the commencement of that sub-section; (b) land referred to in an Order under section 61, on the publication of that Order in the Government Gazette; s. 62 -- 49 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 39 (c) land shown on a plan to which an Order under section 62 applies, on the publication of that Order in the Government Gazette. (2) The land is deemed to be unalienated land of the Crown and is freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests. (3) Unless the relevant Order under section 61 or 62 expressly excludes the operation of this sub- section, if any part of the land is or is being used as a road— (a) that part of the land ceases to be a road; and (b) all rights, easements and privileges existing or claimed in that part of the land either in the public or by any body or person as incident to any express or implied grant, or past dedication or supposed dedication or by user or operation of law or otherwise, cease. (4) Unless the relevant Order under section 61 or 62 expressly excludes the operation of this sub- section, if any part of the land is the bed, soil and banks of a river, all rights, easements and privileges existing or claimed in that part of the land either in the public or by any body or person as incident to any express or implied grant, or past dedication or supposed dedication or by user or operation of law or otherwise, cease. (5) The appointment of any committee of management is revoked in so far as it applies to the land. (6) Any regulations made under section 13 of the Crown Land (Reserves) Act 1978 are revoked in so far as they apply to the land. s. 63 -- 50 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 40 (7) The land is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for public purposes, being, in particular, the purposes of the Project. (8) This section has effect despite anything to the contrary in section 175A of the Water Industry Act 1994, section 10 of the Road Management Act 2004 or any other Act. 64. Temporary reservation may be amended or revoked The reservation of land under section 63(7) may be amended, revoked and otherwise dealt with in accordance with the Crown Land (Reserves) Act 1978. 65. Minister to be notified of reservation The Authority must notify the Minister administering the Crown Land (Reserves) Act 1978 of the reservation of any land under this Division. Division 3—Declaration of Roads 66. Orders may continue or declare roads (1) An Order made under Division 1 or Division 2 may specify that any part of the land (that is the subject of the Order) that was a freeway, an arterial road, a non-arterial State road or a municipal road before the publication of the Order continues to be a freeway, an arterial road, a non- arterial State road or a municipal road. (2) Any land that is specified in an Order in accordance with sub-section (1) continues be a freeway, an arterial road, a non-arterial State road or a municipal road as specified in the Order. s. 64 -- 51 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 41 (3) The Governor in Council may, by Order published in the Government Gazette, specify that any reserved project land that was a freeway, an arterial road, a non-arterial State road or a municipal road immediately before it became reserved project land is to be deemed to be a freeway, an arterial road, a non-arterial State road or a municipal road. (4) Any land that is specified in an Order in accordance with sub-section (3) is, from the date of publication of the Order, deemed to be declared under section 14 of the Road Management Act 2004 as a freeway, an arterial road, a non-arterial State road or a municipal road as specified in the Order. (5) For the avoidance of doubt it is declared that this section has effect in addition to and not in derogation of the deemed reservation of the land under this Division. (6) This section has effect despite anything to the contrary in any other Act. Division 4—Entry into Possession of Certain Project Land 67. Definitions In this Division— "project land" means land that is deemed under Division 1 or Division 2 to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for public purposes, being, in particular, the purposes of the Project; "reservation date" in relation to land means the date on which the land became project land. s. 67 -- 52 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 42 68. Power to enter into possession Subject to this Division, the Authority may enter into possession of project land. 69. Authority must try to obtain agreement The Authority must diligently endeavour to obtain agreement with the person in occupation of project land (the occupier) as to the terms on which the Authority will enter into possession of the land. 70. Time for entry into possession—general If, at the reservation date, project land is not used by any person as the principal place of residence or business of that person, the Authority may enter into possession of the land at any time after the reservation date after giving 7 days' notice in writing of its intention to enter into possession to the occupier of the land. 71. Time for entry into possession—residence or business (1) Subject to this Division, if project land or part of project land is used, at the reservation date, by a person as the principal place of residence or business of that person, the Authority must not enter into possession of— (a) the part of the land so used; or (b) if the whole of the land is so used, that land— before the end of 3 months after the reservation and unless the Authority has given 7 days' notice in writing of its intention to enter into possession to the occupier of the land. s. 68 -- 53 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 43 (2) The occupier is not liable for the payment of rent in respect of the occupation of that part of the project land that is used as the principal place of residence or business of the occupier during the 3 month period referred to in sub-section (1). (3) If the occupier ceases of the occupier's own accord to occupy the project land before the end of the 3 month period referred to in sub-section (1), the entitlement of that person under this Division to occupy the land without payment of rent to the Authority also ceases. (4) If the occupier was in occupation of the land immediately before the reservation date— (a) in accordance with section 26(2) of the Land Acquisition and Compensation Act 1986 or an agreement under section 26(6) of that Act; or (b) in accordance with section 20E(2) of the Project Development and Construction Management Act 1994 or an agreement under section 20E(6) of that Act— this Division applies as if the 3 month period referred to in sub-section (1) were the remainder of the period of occupation permitted under the relevant provision or agreement specified in paragraph (a) or (b) of this sub-section. (5) If the occupier was in occupation of the land before the reservation date— (a) in accordance with section 26(2) of the Land Acquisition and Compensation Act 1986 or an agreement under section 26(6) of that Act; or s. 71 -- 54 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 44 (b) in accordance with section 20E(2) of the Project Development and Construction Management Act 1994 or an agreement under section 20E(6) of that Act— and the period of occupation permitted under the relevant provision or agreement specified in paragraph (a) or (b) had ended before the reservation date, the Authority may enter into possession of the land at any time after the reservation date after giving 7 days' notice in writing of its intention to enter into possession to the occupier of the land. 72. Early entry of place of residence or business (1) Section 71 does not apply if— (a) the Governor in Council certifies that having regard to— (i) the urgency of the case or any other exceptional circumstances; and (ii) the public interest— it is not practicable for the Authority to delay entry into possession of the project land until after the end of the 3 month period referred to in section 71(1); or (b) the Authority and the occupier have, with the consent of the Minister, entered into an agreement in relation to the time of entry into possession of the project land by the Authority. (2) A certificate under sub-section (1)(a) must specify the date on which the Authority is to take possession. (3) The Authority must serve a copy of the certificate under sub-section (1)(a) on the occupier. s. 72 -- 55 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 45 (4) The occupier whose period of occupation of the project land was abridged under sub-section (1)(a) is entitled to claim compensation under Division 5 for any loss or damage that is incurred as a direct, natural and reasonable consequence of that abridgment and for which the person could not otherwise make a claim under that Division. (5) The compensation payable pursuant to sub- section (4) may be paid to— (a) the person who is entitled to claim the compensation; or (b) the constituted attorney of that person. 73. Occupation may be extended by agreement (1) The period of occupation of the project land after the reservation date (including the 3 month period referred to in section 71(1)) may be extended by agreement in writing between the Authority and the occupier of the project land. (2) An agreement under sub-section (1) must provide for the payment of rent by the occupier of the relevant land to the Authority. 74. Continued occupation without agreement If a person continues to occupy project land after the period permitted under section 71 or the reservation date (as the case may be) and an agreement has not been entered into under section 73 in respect of that occupation, that person— (a) is to be taken to be in possession of the land in pursuance of a tenancy determinable at will by the Authority; and (b) is liable to pay to the Authority a fair market rent in respect of that continued occupation. s. 73 -- 56 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 46 75. Recovery of rent Any rent payable to the Authority under this Division may be recovered as a debt due to the Authority in any court of competent jurisdiction. 76. Proceedings where refusal to give up possession (1) If the Authority is entitled under this Division to enter into possession of project land and the occupier of the land or any other person— (a) refuses to give up the possession of the land; or (b) hinders the Authority from entering on and taking possession of the land— the Authority may issue its warrant under this section to the sheriff. (2) A warrant issued under this section authorises the sheriff to— (a) enter onto the land specified in the warrant; and (b) deliver possession of the land to the Authority or the person appointed in the warrant to receive possession of the land; and (c) use such force as is reasonably necessary to execute the warrant. (3) On receipt of a warrant issued under this section, the sheriff must deliver possession of the land to the Authority or the person appointed in the warrant to receive possession of the land. (4) The costs incurred in the issuing and execution of a warrant must be paid by the person refusing to give up possession. s. 75 -- 57 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 47 (5) The amount of the costs and the amount of any rent owed by that person must be deducted and retained by the Authority from the compensation (if any) payable under this Part to that person. (6) If no compensation is payable to that person or if the compensation payable is less than the amount of the costs and rent (if any) then payment of the amount in excess of the compensation must if not paid on demand be enforced by a warrant to seize property. (7) On application by the Authority, a magistrate must issue a warrant for the purposes of sub- section (6). (8) In this section, "sheriff" means the sheriff or a deputy sheriff under the Supreme Court Act 1986. 77. Residential Tenancies Act 1997 not to apply Nothing in the Residential Tenancies Act 1997 applies to or in relation to any matter provided for or any proceedings under this Division. 78. Giving of notices and documents (1) Any notice or other document that the Authority is required to give to any person under this Division may be served on that person in accordance with section 250. (2) If the Authority does not know the location of a person on whom the Authority is required to serve the notice or document, the notice or document may be served— (a) by publication of a copy of it in a newspaper circulating generally throughout the State; and (b) by affixing it in a prominent place on the land to which it relates. s. 77 -- 58 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 48 (3) The validity of any notice under this Division is not affected by any misdescription in it of the land or of any interest in the land if sufficient information appears on the face of the notice to identify the land or interest affected. Division 5—Compensation for Surrendered or Divested or Reserved Land 79. Compensation—surrender, divesting or revocation of reservation (1) Subject to this Act and the Land Acquisition and Compensation Act 1986, every person who— (a) immediately before the publication of an Order under Division 1 or 2 had a legal or equitable estate or interest in land to which the Order applies; or (b) immediately before the commencement of section 60(1) or 60(2) had a legal or equitable estate or interest in any Crown land to which that sub-section applies— has a claim for compensation. (2) The Land Acquisition and Compensation Act 1986 (except sections 31 to 36) applies to the determination of compensation payable under this section— (a) in the case of an estate or interest in land to which sub-section (1)(a) applies, as if the publication of the Order were a notice of acquisition of that estate or interest and the Authority had acquired that estate or interest; or s. 79 -- 59 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 49 (b) in the case of an estate or interest in land to which sub-section (1)(b) applies, as if the proclamation of the commencement of section 60(1) or 60(2) were a notice of acquisition of that estate or interest and the Authority had acquired that estate or interest. (3) Section 43 of the Land Acquisition and Compensation Act 1986 applies to the determination of compensation under this section as if after section 43(1)(b) there were inserted— "(ba) Any special suitability or adaptability of the land in which the acquired interest subsists for a purpose for which it could be used under the Mitcham-Frankston Project Act 2004 for the purposes of the Project within the meaning of that Act.". (4) This section does not apply to— (a) an estate or interest held by a public authority; or (b) an estate or interest (other than an interest in fee simple) held by a Council. 80. Compensation for Councils in certain circumstances (1) This section applies to land— (a) that was under the control of a Council immediately before the publication of an Order under Division 1 or 2 in relation to that land; or (b) to which section 60(1) or 60(2) applies that was under the control of a Council immediately before the commencement of that sub-section. s. 80 -- 60 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 50 (2) If the Council has— (a) sustained any pecuniary loss; or (b) incurred any expense— as a direct, natural and reasonable consequence of the Order or the commencement of section 60(1) or 60(2), the Council may claim the amount of that loss or expense from the Authority. (3) For the purposes of sub-section (2), the value of the land must not be taken into account when calculating the loss sustained or expense incurred by the Council. (4) A claim under sub-section (2) must be made within 2 years after the Order was made or section 60(1) or 60(2) commenced (as the case requires). (5) Section 48 and Parts 10 and 11 of the Land Acquisition and Compensation Act 1986 apply to a claim under sub-section (2) as if it were a claim under section 47(1) of that Act. 81. Transfer of building or structure as compensation (1) With the agreement of a Council entitled to compensation under this Division, the Authority may transfer a building or structure from reserved project land or surplus land or from land owned by the Authority or by the Council to other land owned by the Council in full or in part settlement of any compensation that the Authority is liable to pay. (2) With the agreement of a Council entitled to compensation under this Division, the Authority may ask— (a) VicRoads to transfer a building or structure from land owned by it to land owned by the Council; or s. 81 -- 61 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 51 (b) the Secretary to the Department of Infrastructure to transfer a building or structure from land owned by it to land owned by the Council— in full or in part settlement of any compensation that the Authority is liable to pay. (3) VicRoads or the Secretary to the Department of Infrastructure may comply with a request under this section despite anything to the contrary in any other Act. 82. Adjoining land may be provided as compensation (1) If the Authority is liable to pay compensation to a Council under section 80, the Authority may require the Council to take land— (a) that adjoins land owned by the Council; and (b) that is owned by the Authority or is surplus land. (2) The value of that land must be deducted from any amount to be paid by way of compensation to the Council by the Authority under section 80. (3) If the Authority and the Council cannot agree on the value of the adjoining land, the value must be settled in the same manner and at the same time as the compensation to be paid to the Council under section 80. 83. No other compensation payable Except as provided in this Division, no compensation is payable by the Crown or the Authority in respect of anything done or arising out of this Part. s. 82 -- 62 of 181 -- Victorian Legislation and Parliamentary Documents Part 4—Provision of Public Land and Council Land Mitcham-Frankston Project Act 2004 Act No. 39/2004 52 Division 6—General 84. Effect of reservation of a stratum of Crown land If a stratum of Crown land becomes reserved project land, any reservation or other right, title, trust, limitation, reservation, restriction, encumbrance, estate or interest— (a) that applied both to that stratum of land and to any other stratum of land, immediately before the reservation of that stratum; and (b) that was revoked or surrendered with respect to the reserved stratum on the reservation of the stratum— continues to apply to the other strata of land to which it applied immediately before the reservation, despite the reservation of that stratum. __________________ s. 84 -- 63 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 53 PART 5—MANAGEMENT OF LAND FOR PROJECT Division 1—General Powers of Authority 85. Authority appointed committee of management (1) The Authority is deemed to be the committee of management under the Crown Land (Reserves) Act 1978 of reserved project land. (2) The provisions of sections 15(2), 15(3), 15(4), 15(7), 15(8) and 15(9) of the Crown Land (Reserves) Act 1978 do not apply to the Authority as committee of management. (3) In addition to the powers conferred on committees of management under the Crown Land (Reserves) Act 1978, the Authority as committee of management has all the powers necessary to give effect to this Act. (4) For the purposes of this section, the Crown Land (Reserves) Act 1978 applies as if a reference to the Minister under that Act were a reference to the Minister administering this Act. 86. Authority may carry out or authorise works on public land (1) The Authority may carry out or authorise any person or body to carry out works on public land in the Extended Project area for the purposes of the Project. (2) The Authority must consult with any Minister or public authority that owns or is responsible for the management of public land before carrying out or authorising the carrying out of works on that land. s. 85 -- 64 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 54 (3) The Authority must not carry out or authorise the carrying out of works on reserved Crown land unless— (a) the works are not inconsistent with the reservation of the land; or (b) the reservation is revoked. 87. Authority liable to pay compensation (1) The Authority is liable to compensate any person who has— (a) sustained any pecuniary loss; or (b) incurred any expense— as a direct, natural and reasonable consequence of the entry onto or occupation of or the carrying out of works on public land under section 86 by or on behalf of the Authority. (2) Any claim for compensation must be made and dealt with in accordance with the Land Acquisition and Compensation Act 1986 as if it were a claim under section 47(1) of that Act. (3) A Utility is not entitled to compensation under this section. 88. Temporary access to Crown land (1) The Authority may use or authorise the use of any Crown land for the purposes of the Project. (2) The Authority must obtain the approval of the Land Minister before exercising any power under sub-section (1). (3) Once the use has ended, the Authority must ensure that any land used under this section is restored to a condition that is satisfactory to the Land Minister. s. 87 -- 65 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 55 (4) The Authority must not use or authorise the use of reserved Crown land under this section unless— (a) the use is not inconsistent with the reservation of the land; or (b) the reservation is revoked. (5) In this section "Land Minister" means the Minister administering section 12 of the Land Act 1958. Division 2—Licences 89. Application This Division applies despite anything to the contrary in section 175A of the Water Industry Act 1994, the Land Act 1958, the Crown Land (Reserves) Act 1978 or any other Act. 90. Authority may issue licence for purposes of Project (1) The Authority may issue a licence to any person to enter on and use the whole or part of— (a) any reserved Project land in the Project area; or (b) any public land in the Extended Project area that is not in the Project area— for the purposes of the construction of the Project. (2) The Authority may issue a licence to any person to enter on and use the whole or part of— (a) any former Project land; or (b) any public land in the Extended Project area that is not in the Project area— for any of the other purposes of the Project. s. 89 -- 66 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 56 (3) The Authority must consult with any Minister or public authority that owns or is responsible for the management of public land or former Project land before carrying out or authorising the carrying out of works on that land. (4) The Authority must not issue a licence for the use of public land or former Project land that is reserved Crown land unless— (a) the use is not inconsistent with the reservation of the land; or (b) the reservation is revoked. (5) In this section "former Project land" means land in the Project area that was reserved Project land but in respect of which the reservation for the purposes of the Project has been revoked. 91. Term of licence The period for which a licence is issued must not exceed the period of operation of the Agreement. 92. Conditions of licence—general (1) A licence may be issued subject to any conditions that are not inconsistent with the Agreement. (2) A licence that is inconsistent with the Agreement is invalid only to the extent of the inconsistency. 93. Conditions on licence over stratum of land (1) In imposing conditions on a licence over a stratum of land, the Authority must have regard to the following matters— (a) that reasonable access to and use of the stratum and other land be provided for; and (b) that the rights of the registered proprietor, lessee or licensee of other land not be interfered with; and s. 91 -- 67 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 57 (c) that the rights of support of the stratum or of other land or of any building or structure erected or to be erected on those lands be provided for; and (d) that the making and removal of improvements by the licensee be provided for; and (e) that any necessary rights for the passage or provision of services (including drainage, sewerage or the supply of water, gas, electricity or telecommunications) to or through the stratum, where those rights are necessary for the reasonable enjoyment of the stratum or of other land, be provided for. (2) The issuing of a licence under this Division of a stratum of land is conclusive proof of compliance with sub-sections (1)(a), (1)(b), (1)(c), (1)(d) and (1)(e) with respect to the licence. 94. Conditions relating to sub-licences The conditions on a licence may include conditions relating to sub-licences. 95. Ability to mortgage licence The licensee may only mortgage, charge, assign or otherwise encumber the licensee's interest in the licence in accordance with the terms of the Agreement. 96. Amendment of licence A licence may be amended at any time with the agreement of the licensee. 97. Termination of licence A licence may be terminated in whole or in part before the end of the term of the licence in accordance with the Agreement. s. 94 -- 68 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 58 98. Renewal of licence (1) A licence may be renewed in accordance with the terms of the Agreement. (2) A licence must not be renewed for a period that ends after the end of the period of operation of the Agreement. 99. Revocation of reservation on termination of licence (1) The Minister, after consultation with the Minister administering the Crown Land (Reserves) Act 1978, may recommend to the Governor in Council that the temporary reservation of licensed land be revoked on the termination of the licence as to that land. (2) After receiving the Minister's recommendation, the Governor in Council may, by Order published in the Government Gazette, revoke the reservation of the land. (3) An Order under sub-section (2) has effect on the day that it is published in the Government Gazette. (4) On an Order under sub-section (2) taking effect— (a) the land is deemed to be unalienated land of the Crown, freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests; and (b) the appointment of the Authority as committee of management is revoked to the extent that it applies to the land. s. 98 -- 69 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 59 100. Orders may close roads (1) An Order made under section 99 may specify that any part of the land that is the subject of the Order ceases to be a road. (2) If an Order made under section 99 specifies that any land ceases to be a road— (a) that land ceases to be a road; and (b) all rights, easements and privileges existing or claimed in that land either in the public or by any body or person as incident to any express or implied grant, or past dedication or supposed dedication or by user or operation of law or otherwise, cease. (3) This section applies despite anything to the contrary in section 10 of the Road Management Act 2004. 101. Orders may continue roads (1) An Order made under section 99 may specify that any part of the land that is the subject of the Order that was a freeway, an arterial road, a non-arterial State road or a municipal road immediately before the publication of the Order continues to be a freeway, an arterial road, a non-arterial State road or a municipal road. (2) Any land that is specified in an Order in accordance with sub-section (1) continues to be a freeway, an arterial road, a non-arterial State road or a municipal road as specified in the Order. (3) This section has effect despite anything to the contrary in any other Act. s. 100 -- 70 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 60 Division 3—Leases 102. Application This Division applies despite anything to the contrary in section 175A of the Water Industry Act 1994, the Land Act 1958, the Crown Land (Reserves) Act 1978 or any other Act. 103. Leasing powers The Governor in Council, on behalf of the Crown, subject to and in accordance with the terms of the Agreement may grant a lease of any part of the Project area for the purposes of the Project. 104. Term of lease The term of a lease must be in accordance with the Agreement. 105. Conditions of lease—general (1) A lease may be granted subject to any conditions that are not inconsistent with the Agreement. (2) A lease that is inconsistent with the Agreement is invalid only to the extent of the inconsistency. 106. Conditions on lease over stratum of land (1) In imposing conditions on a lease of a stratum of land, the Governor in Council must have regard to the following matters— (a) that reasonable access to and use of the stratum and other land be provided for; and (b) that the rights of the registered proprietor, lessee or licensee of other land not be interfered with; and (c) that the rights of support of the stratum or of other land or of any building or structure erected or to be erected on those lands be provided for; and s. 102 -- 71 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 61 (d) that the making, maintenance and removal of improvements by the lessee be provided for; and (e) that any necessary rights for the passage or provision of services (including drainage, sewerage or the supply of water, gas, electricity or telecommunications) to or through the stratum, where those rights are necessary for the reasonable enjoyment of the stratum or of other land, be provided for. (2) The granting of a lease under this Division of a stratum of land is conclusive proof of compliance with sub-sections (1)(a), (1)(b), (1)(c), (1)(d) and (1)(e) with respect to the lease. 107. Conditions relating to sub-leases The conditions imposed on a lease may include conditions relating to sub-leases. 108. Ability to mortgage lease The lessee may only mortgage, charge, assign or otherwise encumber the lessee's interest in the lease in accordance with the terms of the Agreement. 109. Amendment of lease A lease may be amended at any time with the agreement of the lessee. 110. Termination of lease A lease may be terminated in whole or in part before the end of the term of the lease in accordance with the Agreement. 111. Renewal of lease A lease may be renewed in accordance with the terms of the Agreement. s. 107 -- 72 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 62 Division 4—Interim Operation 112. Interim operation (1) The Minister may, by notice in the Government Gazette, determine an area of land as land to which this section applies. (2) A determination may only be made under sub- section (1) in relation to land in respect of which the temporary reservation has been revoked under Division 2. (3) If notice of an area of land has been given under sub-section (1) this Act applies to that land as if any reference in this Act to leased land or land leased under Division 3 included a reference to that land. (4) The Governor in Council may by Order published in the Government Gazette declare that this section no longer applies to certain land. (5) This section ceases to apply to land— (a) on the grant of a lease of that land under Division 3; or (b) on the publication of an Order under sub- section (4) in respect of the land— whichever is the earlier. Division 5—Interim Leases and Licences for Reserved Project Land 113. Application (1) This Division applies despite anything to the contrary in section 175A of the Water Industry Act 1994, the Land Act 1958, the Crown Land (Reserves) Act 1978 or any other Act. (2) This Division does not apply to leased land or licensed land. s. 112 -- 73 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 63 114. Power to issue interim licences for reserved project land The Authority may issue a licence to any person to enter on and use the whole or part of reserved project land for any purpose that is not inconsistent with the proposed use of the land for the purposes of the Project. 115. Power to grant interim leases for reserved project land The Authority may grant a lease to any person of the whole or part of reserved project land for any purpose that is not inconsistent with the proposed use of the land for the purposes of the Project. 116. Termination of lease or licence (1) The Authority may terminate a lease or licence by giving the required notice of termination to the lessee or licensee. (2) The required notice of termination is not less than— (a) 60 business days in respect of land used as the lessee's or licensee's principal place of residence; or (b) 20 business days in any other case. (3) A lease or licence may be terminated earlier with the agreement of the lessee or licensee. (4) The Authority is entitled to enter into possession of the land on the termination of the lease or licence. (5) This section applies despite anything to the contrary in the lease or licence. s. 114 -- 74 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 64 117. Proceedings where refusal to give up possession (1) If the Authority is entitled under this Division to enter into possession of land and the person in occupation of the land or any other person— (a) refuses to give up the possession of the land; or (b) hinders the Authority from entering on and taking possession of the land— the Authority may issue its warrant under this section to the sheriff. (2) A warrant issued under this section authorises the sheriff to— (a) enter on the land specified in the warrant; and (b) deliver possession of the land to the Authority or the person appointed in the warrant to receive possession of the land; and (c) use such force as is reasonably necessary to execute the warrant. (3) On receipt of a warrant issued under this section, the sheriff must deliver possession of the land to the Authority or the person appointed in the warrant to receive possession of the land. (4) The costs incurred in the issuing and execution of a warrant must be paid by the person refusing to give up possession. (5) The amount of the costs may if not paid on demand be enforced by a warrant to seize property. (6) On application by the Authority, a magistrate must issue a warrant for the purposes of sub- section (5). s. 117 -- 75 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 65 (7) In this section, "sheriff" means the sheriff or a deputy sheriff under the Supreme Court Act 1986. 118. Residential Tenancies Act 1997 not to apply Nothing in the Residential Tenancies Act 1997 applies to or in relation to a lease under this Division. Division 6—Powers Over Other Land 119. Land purchased by Authority The Authority may sell, lease, licence or otherwise deal with any land purchased by the Authority under section 54. 120. Authority may enter into agreements for land (1) The Authority alone or jointly with any other person may enter into an agreement with another person (the purchaser) concerning the use or development of land purchased by the Authority under section 54— (a) on disposing of the whole of its interest in the land to the purchaser; or (b) in anticipation of disposing of the whole of its interest in the land to the purchaser. (2) Division 2 of Part 9 of the Planning and Environment Act 1987 applies to an agreement under sub-section (1) as if— (a) that agreement were an agreement under that Division; and (b) that Division referred to the Authority instead of the responsible authority for the planning scheme; and (c) section 174(2)(c) were omitted; and s. 118 -- 76 of 181 -- Victorian Legislation and Parliamentary Documents Part 5—Management of Land for Project Mitcham-Frankston Project Act 2004 Act No. 39/2004 66 (d) sections 177(2), 178 and 179(1) referred to the Minister administering this Act instead of the Minister. 121. Surplus land (1) The Authority, with the approval of the Minister and the Minister administering section 12 of the Land Act 1958, may determine that certain Crown land in the Project area is not required for the Project and is surplus land. (2) The Authority must publish a copy of a determination under this section in the Government Gazette. (3) This section does not apply to— (a) land reserved or deemed to be reserved under the Crown Land (Reserves) Act 1978; or (b) leased land; or (c) licensed land; or (d) land for which the Agreement requires a licence to be issued under Division 2 or a lease to be granted under Division 3. 122. Disposition of surplus land (1) The Authority, after consultation with the Minister administering section 12 of the Land Act 1958, may, on behalf of the Crown, sell, lease or licence surplus land. (2) The proceeds of the sale of land under this section, less any costs incurred by the Authority in selling the land, must be paid into the Consolidated Fund. (3) This section applies despite anything to the contrary in the Land Act 1958. __________________ s. 121 -- 77 of 181 -- Victorian Legislation and Parliamentary Documents Part 6—Statutory Powers and Exemptions Mitcham-Frankston Project Act 2004 Act No. 39/2004 67 PART 6—STATUTORY POWERS AND EXEMPTIONS Division 1—Planning Controls 123. Authority may be planning authority The Authority may be authorised as a planning authority under section 11 of the Planning and Environment Act 1987 in respect of the preparation of an amendment to a planning scheme for any part of the Extended Project area. 124. Authority to be responsible authority (1) The Minister administering the Planning and Environment Act 1987 on the recommendation of the Minister may appoint the Authority as the responsible authority for the administration and enforcement of any planning scheme or any part of a planning scheme. (2) If the Authority is appointed under sub- section (1), it is deemed for the purposes of the Planning and Environment Act 1987 to be the responsible authority for the administration and enforcement of the planning scheme or the relevant part of a planning scheme. 125. Authority to be referral authority The Authority is deemed to be specified as a referral authority in any planning scheme under the Planning and Environment Act 1987 in relation to land in the Extended Project area. 126. Application of planning laws (1) This section applies to a use or development of land in the Extended Project area that is authorised by or under this Act or the Agreement for the purposes of the Project. s. 123 -- 78 of 181 -- Victorian Legislation and Parliamentary Documents Part 6—Statutory Powers and Exemptions Mitcham-Frankston Project Act 2004 Act No. 39/2004 68 (2) Nothing in a planning scheme under the Planning and Environment Act 1987— (a) requires a permit under that Act for the use or development; or (b) prevents the use or development. (3) This section does not apply to the traffic control centre. 127. Planning compensation (1) Despite anything to the contrary in Part 5 of the Planning and Environment Act 1987 or in a planning scheme or amendment under that Act, that Part applies as if— (a) the Project area had been reserved for a public purpose under a planning scheme; and (b) the Authority was liable to pay any compensation under that Part that arises from that deemed reservation and no other planning authority, responsible authority, Minister or public authority was liable to pay compensation in respect of the Project area under that Part. (2) On the revocation of the reservation under this Act of any reserved project land, sub-section (1) ceases to apply to that land. Division 2—Exemption from Other Statutory Approvals 128. Approvals of public bodies not required (1) Subject to Part 8, but despite anything to the contrary in any other enactment or law, a permit, licence, consent, approval or other authority is not required from any person or body, other than the Authority (in accordance with the Agreement) or the Environment Protection Authority, for the s. 127 -- 79 of 181 -- Victorian Legislation and Parliamentary Documents Part 6—Statutory Powers and Exemptions Mitcham-Frankston Project Act 2004 Act No. 39/2004 69 carrying out of works for the purposes of the Project. (2) Nothing in this section derogates from any requirement relating to standards of construction and safety that may apply under any other Act. Division 3—Application of Other Acts 129. Building Act 1993 (1) The Building Act 1993 does not apply to or in relation to licensed land or leased land or to anything done on that land. (2) Despite sub-section (1), the Building Act 1993 applies to and in relation to the traffic control centre. 130. Building and Construction Industry Security of Payment Act 2002 The Building and Construction Industry Security of Payment Act 2002 does not apply to the Crown in respect of the Agreement or anything done under the Agreement. 131. Mineral resources and extractive industry (1) The Mineral Resources Development Act 1990 does not apply to or in relation to licensed land or leased land or to anything done on that land. (2) The Extractive Industries Development Act 1995 does not apply to or in relation to licensed land or leased land or to anything done on that land. (3) Section 204 of the Land Act 1958 does not apply to a licence issued under section 90(1) or to a lease granted under section 103. s. 129 -- 80 of 181 -- Victorian Legislation and Parliamentary Documents Part 6—Statutory Powers and Exemptions Mitcham-Frankston Project Act 2004 Act No. 39/2004 70 (4) Section 205 of the Land Act 1958 does not apply to licensed land or leased land. (5) Nothing in this section affects the ownership by the Crown of minerals. __________________ s. 131 -- 81 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 71 PART 7—ROAD MANAGEMENT Division 1—Application 132. Powers under Road Management Act 2004 The powers conferred on the Freeway Corporation under this Part are in addition to any powers conferred on the Freeway Corporation under the Road Management Act 2004. Division 2—Construction Powers in Relation to Roads 133. Powers relating to roads (1) The Authority, for the purposes of facilitating the construction of the Project, may— (a) open, discontinue, construct, relocate or realign any road; and (b) close any road to traffic. (2) Without limiting sub-section (1), the Authority may— (a) carry out improvements to roads in the Extended Project area; and (b) carry roads over or under any road constructed or to be constructed in the Extended Project area; and (c) carry any road constructed or to be constructed in the Extended Project area over or under other roads; and (d) cause fences, posts or other structures to be erected along any road constructed or to be constructed in the Extended Project area or along or across any entrance, approach or means of access to any road constructed or to be constructed in the Extended Project area. s. 132 -- 82 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 72 (3) The Governor in Council, by Order published in the Government Gazette, may provide for any vesting or divesting of lands necessary because of the exercise of any powers under sub-section (1) or (2). 134. Authority to comply with Agreement The Authority must not exercise its powers under section 133 in a manner that is inconsistent with the Agreement. 135. Authority to advise road authority before exercising power The Authority must advise the relevant road authority before exercising any power under section 133, unless the exercise of that power is provided for in the Agreement. 136. Exercise of powers by road authority A road authority must not exercise its powers in a manner that is inconsistent with the Agreement or with the exercise by the Authority of its powers under section 133. 137. Effect of decision about road (1) A decision under section 133 to open, discontinue, construct, relocate or realign a road has no effect until the Authority causes notice of it to be published in— (a) the Government Gazette; and (b) in a newspaper circulating generally throughout the area affected by the decision. (2) On the publication under sub-section (1) of a decision discontinuing, realigning or relocating a road— (a) the land over which the discontinued, realigned or relocated road ran ceases to be a road; and s. 134 -- 83 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 73 (b) all rights, easements and privileges existing or claimed in the land either in the public or by any body or person as incident to any express or implied grant, or past dedication or supposed dedication or by user or operation of law or otherwise, cease; and (c) the land is deemed to be unalienated land of the Crown freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests; and (d) if the decision provides for the land to be reserved for the purposes of the Project, the land is deemed to be temporarily reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for public purposes, being, in particular, the purposes of the Project. (3) The reservation under sub-section (2)(d) may be amended, revoked and otherwise dealt with in accordance with the Crown Land (Reserves) Act 1978. (4) This section applies despite anything to the contrary in section 10 of the Road Management Act 2004 or any other Act. 138. Temporary closure of roads to traffic For the purposes of facilitating the construction of the Project, the Authority may temporarily close a road to traffic if the Authority considers it necessary to do so so that works on the road or neighbouring land can be carried out. 139. Powers of Freeway Corporation in relation to existing roads (1) The Freeway Corporation has all the powers of the Authority under sections 133 and 138 for the purposes of the Project in respect of roads specified in the Agreement. s. 138 -- 84 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 74 (2) The Freeway Corporation, with the agreement of the Authority, may exercise any of the powers of the Authority under sections 133 and 138 for the purposes of the Project in respect of any road not specified in the Agreement. (3) If the Freeway Corporation exercises a power under this section, it must do so in a manner that— (a) is not inconsistent with the Agreement; and (b) is consistent with any requirements of the Authority. (4) The Freeway Corporation must advise the Authority and the relevant road authority before exercising any power under this section, unless the exercise of that power is provided for in the Agreement. (5) A road authority must not exercise its powers in a manner that is inconsistent with the exercise by the Freeway Corporation of its powers under this section. 140. Restriction on powers to close or discontinue roads Nothing in this Act permits the Authority or the Freeway Corporation to close to traffic or discontinue a road for the purpose of increasing traffic on the Mitcham-Frankston Freeway. 141. Compensation for denial of access (1) Subject to sub-section (2), the Authority is liable to pay compensation in accordance with this section if the effect of a decision made under this Division to discontinue, realign or relocate a road is that existing access to any land is denied. s. 140 -- 85 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 75 (2) Compensation is not payable under this section for the denial of access if— (a) there is adequate existing alternative access to the land; or (b) the Authority provides, or agrees to provide, adequate alternative access to the land; or (c) the Authority has begun compulsory acquisition procedures under the Land Acquisition and Compensation Act 1986 for the land to which access is denied; or (d) a claim for compensation is not served on the Authority within one year of the making of the decision under this Division. (3) For the purposes of determining whether alternative access to the land is adequate, no regard is to be had as to which stream of traffic has access to the land. (4) Compensation is to be determined on the basis of the diminution in the value of the land to which access is denied as a direct result of the loss of access to that land. (5) Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary modifications, apply to the determination of compensation under this section as if the claim were a claim under section 37 of that Act. (6) Section 127 of the Road Management Act 2004 does not apply in respect of any matter for which compensation is payable under this Division. s. 141 -- 86 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 76 142. Freeway Corporation to be responsible for road management for certain roads on licensed land (1) The Minister may from time to time declare that the Freeway Corporation is to be the responsible road authority for a road or part of a road on licensed land. (2) The Minister must cause a notice of a declaration under sub-section (1) to be published in the Government Gazette. (3) On the publication of a notice of a declaration under sub-section (1), the Freeway Corporation is deemed to be the responsible road authority under the Road Management Act 2004 for the road or part of a road specified in the declaration. (4) The Road Management Act 2004 (except Division 4 of Part 4 and Schedule 7) applies to a road or part of a road specified in a declaration under sub-section (1) as if any reference in that Act to the Mitcham-Frankston Freeway were a reference to the road or part of a road specified in the declaration. (5) The Minister may at any time revoke a declaration under sub-section (1). (6) The Minister must cause a notice of a revocation of a declaration under sub-section (1) to be published in the Government Gazette. (7) On the publication of the notice of revocation of a declaration under this section, the Freeway Corporation ceases to be the responsible road authority for the road or part of a road specified in the declaration. s. 142 -- 87 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 77 Division 3—Road Declaration Powers 143. Declaration of Mitcham-Frankston Freeway (1) The Minister may from time to time declare any part of the following land to be a road— (a) any land leased under section 103; or (b) any land that was licensed land but in respect of which the licence has terminated. (2) A declaration under sub-section (1) must state whether the road or any part of the road is to be treated as— (a) a freeway; or (b) an arterial road. (3) The Minister must cause a notice of a declaration under sub-section (1) to be published in the Government Gazette. (4) On the publication of a notice of a declaration under sub-section (1), the road specified in the declaration is deemed to be— (a) declared under section 14 of the Road Management Act 2004 to be a freeway or an arterial road as specified in the notice; and (b) a road open to and for use by the public for passage with vehicles; and (c) a highway within the meaning of the Road Safety Act 1986. (5) Nothing in this section makes VicRoads the responsible road authority for the Mitcham- Frankston Freeway. s. 143 -- 88 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 78 144. Declaration of other roads (1) The Minister may from time to time declare to be a road any part of any land that was licensed land but in respect of which the licence has terminated. (2) A declaration under sub-section (1) must state whether the road or any part of the road is to be treated as— (a) an arterial road; or (b) a non-arterial State road; or (c) a municipal road. (3) The Minister must cause a notice of a declaration under sub-section (1) to be published in the Government Gazette. (4) On the publication of a notice of a declaration under sub-section (1), the road specified in the declaration is deemed to be— (a) declared under section 14 of the Road Management Act 2004 to be an arterial road, a non-arterial State road or a municipal road as specified in the notice; and (b) a road open to and for use by the public for passage with vehicles; and (c) a highway within the meaning of the Road Safety Act 1986. 145. Power to revoke declaration (1) The Minister, by Order published in the Government Gazette may revoke— (a) a declaration (in whole or in part) under section 143 or 144; or s. 144 -- 89 of 181 -- Victorian Legislation and Parliamentary Documents Part 7—Road Management Mitcham-Frankston Project Act 2004 Act No. 39/2004 79 (b) a declaration (in whole or in part) under the Road Management Act 2004 of any freeway, arterial road, non-arterial State road or municipal road on licensed land or leased land. (2) On the publication of an Order under sub- section (1), the road (or the relevant part of the road) ceases to be a freeway, arterial road, non- arterial State road or municipal road. 146. VicRoads may not declare roads on licensed land or leased land (1) Despite anything to the contrary in the Road Management Act 2004, VicRoads must not make a declaration or revoke a declaration under section 14 of that Act in respect of any road on licensed land or leased land. (2) Nothing in this section affects the status of any freeway, arterial road or non-arterial State road existing on land before it became licensed land or leased land. Division 4—Power of Minister to Close Freeway to Traffic 147. Power of Minister to close Mitcham-Frankston Freeway Despite anything to the contrary in this Act or the Agreement or the Road Management Act 2004, the Minister may close the Mitcham-Frankston Freeway to traffic if— (a) conditions exist outside the leased land that cause the Minister to believe that a serious threat to public safety exists; or (b) there is an emergency on leased land and the Freeway Corporation has failed to close the Mitcham-Frankston Freeway to traffic. __________________ s. 146 -- 90 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 80 PART 8—INTERFACE WITH UTILITIES Division 1—Introduction 148. Certain powers of Utilities not affected Nothing in this Part affects any power of a Utility— (a) to respond to and deal with an emergency; or (b) to use a vehicle on any road in the Extended Project area. Division 2—Consent of Authority 149. Division does not apply to leased land or licensed land This Division does not apply to leased land or licensed land. 150. Utility to obtain consent of Authority (1) A Utility must obtain the written consent of the Authority before carrying out works on Utility infrastructure, or for the construction of new Utility infrastructure, in the Extended Project area. (2) The Authority must not unreasonably delay or refuse its consent under this section. (3) The Authority may grant a consent under this section subject to any reasonable conditions that the Authority may determine. (4) This section applies in addition to the requirements of and despite anything to the contrary in any other Act or law. s. 148 -- 91 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 81 151. Utility may refer matter to Ministers for determination A Utility may refer the matter to the Minister and the Utility Minister for determination under Division 8 if— (a) the Authority refuses or unreasonably delays giving its consent under section 150; or (b) the Utility objects to any condition imposed by the Authority on that consent. Division 3—Consent of Freeway Corporation 152. Utility to obtain consent of Freeway Corporation (1) A Utility must obtain the written consent of the Freeway Corporation before carrying out or causing the carrying out of works on Utility infrastructure, or for the construction of new Utility infrastructure, in, on, over or under licensed land. (2) The Freeway Corporation must not unreasonably delay or refuse its consent under this section. (3) A consent under this section may be granted on such reasonable conditions as the Freeway Corporation thinks fit. (4) This section does not apply to Utility infrastructure if— (a) an approved Utility agreement provides for access by the Utility to licensed land to carry out works in relation to that Utility infrastructure; or (b) the work is being carried out under a determination made under Division 8. (5) This section applies in addition to the requirements of and despite anything to the contrary in any other Act or law. s. 151 -- 92 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 82 153. Utility may refer matter to Ministers for determination A Utility may refer the matter to the Minister and the Utility Minister for determination under Division 8 if— (a) the Freeway Corporation refuses or unreasonably delays giving its consent under section 152; or (b) the Utility objects to any condition imposed by the Freeway Corporation on that consent. Division 4—Agreements between Freeway Corporation and Utility 154. Agreements in relation to licensed land The Freeway Corporation may enter into an agreement with a Utility under this Division in relation to Utility infrastructure or any works affecting Utility infrastructure constructed or to be constructed in, on, over or under licensed land. 155. What can a Utility agreement provide for? (1) A Utility agreement may only provide for the following matters— (a) the means of minimising disruption to the Utility infrastructure and the services provided by the Utility infrastructure; (b) the respective rights of the Freeway Corporation and the Utility to have access to the Utility infrastructure; (c) the respective rights of the Freeway Corporation and the Utility to carry out works affecting the Utility infrastructure; (d) the relocation and rectification of Utility infrastructure; s. 153 -- 93 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 83 (e) the standards (including safety, operational and accreditation standards) that are to apply to the relocation or rectification of Utility infrastructure; (f) the costs of any relocation or rectification of the Utility infrastructure and how those costs are to be apportioned between the Freeway Corporation and the Utility; (g) the certification by the Utility of works affecting Utility infrastructure. (2) An agreement that provides for any other matter is not a Utility agreement for the purposes of this Division. 156. Requirements for Utility agreements (1) A Utility agreement must be in writing. (2) A Utility agreement must not be inconsistent with this Act or the Agreement. (3) A Utility agreement that does not comply with sub-section (2) is of no effect to the extent of the inconsistency. (4) If a Utility agreement provides for standards in relation to a matter in accordance with section 155(1)(e), those standards are to apply in relation to that matter despite anything to the contrary in any other Act or law, once the Utility agreement takes effect. 157. Utility agreements must be approved by the Authority A Utility agreement is of no effect unless it is approved by the Authority. s. 156 -- 94 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 84 158. Utility agreement may be amended (1) An approved Utility agreement may be amended by agreement between the Freeway Corporation and the Utility. (2) An amendment of an approved Utility agreement is of no effect unless it is approved by the Authority. (3) In this section, "amended" includes varied, added to, substituted, cancelled or revoked. Division 5—Notified Utility Infrastructure 159. Duty to identify Utility infrastructure Before commencing Project construction work on licensed land, the Freeway Corporation must take all reasonable steps to identify all Utility infrastructure in, on, over or under that land that may be affected by the Project construction work. 160. Freeway Corporation to give notice (1) Before commencing Project construction work on licensed land, the Freeway Corporation must give notice of the proposed Project construction work in accordance with this section. (2) The notice must— (a) be published in the Government Gazette; and (b) be given in writing to each Utility that the Freeway Corporation is aware owns or operates Utility infrastructure in the Extended Project area. s. 158 -- 95 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 85 (3) The notice must require Utilities with Utility infrastructure in the Extended Project area to notify the Freeway Corporation in writing within 30 business days after the publication or giving of the notice (whichever is the later)— (a) setting out the nature and location of the Utility infrastructure; and (b) stating whether or not the Utility believes that the Utility infrastructure will be affected by the Project construction work. (4) The Freeway Corporation is not required to give a notice to a Utility under sub-section (2)(b) in relation to particular Utility infrastructure if an approved Utility agreement exists with that Utility in relation to that Utility infrastructure. 161. Duty of Utility to give notice A Utility must, within the time required in the notice given under section 160, give notice in writing to the Freeway Corporation— (a) setting out the nature and location of the Utility infrastructure of the Utility in the Extended Project area; and (b) stating whether or not the Utility believes that the Utility infrastructure will be affected by the Project construction work. 162. Copies of notices to be given to Authority (1) The Freeway Corporation must give the Authority a copy of each notice given under section 160 as soon as practicable and not more than 7 days after the notice is given. (2) The Freeway Corporation must give the Authority a copy of each notice received by the Freeway Corporation under section 161 as soon as practicable and not more than 7 days after receiving that notice. s. 161 -- 96 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 86 163. Freeway Corporation to consult and seek agreement (1) After complying with section 160 and before commencing any Project construction work on licensed land, the Freeway Corporation must consult with any Utility that the Freeway Corporation is aware owns or operates Utility infrastructure in the Extended Project area that may be affected by the Project construction work. (2) In consulting under sub-section (1), the Freeway Corporation and the Utility must make all reasonable efforts to reach agreement in accordance with Division 4. (3) This section does not apply to Utility infrastructure if the Freeway Corporation has already reached an agreement with the Utility under Division 4 in respect of that Utility infrastructure. 164. Referral to Ministers for determination if no agreement If an agreement has not been reached with a Utility under Division 4 within 50 business days after the Utility gives notice to the Freeway Corporation under section 161, the Freeway Corporation may refer the matters under negotiation to the Minister and the Utility Minister for determination under Division 8. 165. Power of Minister to direct Utility (1) The Minister, after consultation with the Utility Minister, may direct a Utility to carry out works in the Extended Project area. (2) The Minister may only give a direction under sub- section (1) if it is necessary to implement the matters provided for in an approved Utility agreement or a determination under Division 8. s. 163 -- 97 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 87 (3) Without limiting sub-section (1), a direction under this section may specify a period within which works required under the approved Utility agreement or determination must be performed even if this is a different period from any period provided for in the approved Utility agreement or determination. 166. Direction to Freeway Corporation (1) The Freeway Corporation may apply to the Minister for a direction under this section if— (a) a Utility has not completed the works required by a direction under section 165 within the period specified in the direction; or (b) the Freeway Corporation believes on reasonable grounds that the works required by a direction under section 165 will not be completed within the period specified in the direction. (2) On an application under this section, the Minister, after consultation with the Utility Minister, may direct the Freeway Corporation to carry out or complete the works required by the relevant direction under section 165. (3) Without limiting sub-section (2), a direction under this section may specify a period within which the works must be performed even if this is a different period from any period provided for in the approved Utility agreement or determination or the relevant direction under section 165. (4) If the Freeway Corporation complies under a direction under this section with a requirement imposed on a Utility or any other person, the Utility or other person is not required to comply with that requirement. s. 166 -- 98 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 88 167. Requirements for directions (1) A direction under section 165 or 166 must be in writing. (2) A direction must not cause unreasonable delay or add unreasonable cost to the Project. (3) Subject to this section, a direction must not be inconsistent with this Act or the Agreement. 168. Direction to prevail over requirement to consent (1) A direction under section 165 or 166 prevails over any provision of any other Act or law that requires the Utility to consent to the carrying out of the work that is subject to the direction. (2) If a direction provides for compliance with a standard in relation to a matter, that standard applies in relation to that matter despite anything to the contrary in any other Act or law. Division 6—Unnotified Utility Infrastructure 169. Duties of Freeway Corporation If the Freeway Corporation discovers unnotified Utility infrastructure in the course of carrying out Project construction work, the Freeway Corporation must— (a) take all reasonable steps to identify the Utility that owns or operates that Utility infrastructure; and (b) give notice of the Utility infrastructure to— (i) the Authority; and (ii) the relevant Utility Minister. s. 167 -- 99 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 89 170. Freeway Corporation to give notice (1) If the Freeway Corporation has identified the Utility that owns or operates unnotified Utility infrastructure, the Freeway Corporation must give the Utility notice of the Project construction work in accordance with this section. (2) The notice must— (a) be in writing; and (b) request the Utility to advise the Freeway Corporation within 24 hours as to whether the Utility infrastructure is still operational or, if it is not operational, whether it is redundant; and (c) request the Utility within 24 hours— (i) to agree to authorise the Freeway Corporation to remove the Utility infrastructure, if it is redundant; or (ii) to agree to the relocation of the Utility infrastructure; or (iii) to request the Freeway Corporation to preserve the Utility infrastructure and agree to pay any costs incurred by the Freeway Corporation as a result of any delay caused by preserving that infrastructure. 171. Utility agreement may be entered into The Freeway Corporation and the Utility may enter into an agreement under Division 4 with respect to any matter referred to in section 170(2)(c). s. 170 -- 100 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 90 172. Notice to Minister if Utility cannot be found or fails to respond The Freeway Corporation may notify the Minister and the Authority if— (a) a Utility fails to comply with a request under section 170 within 24 hours after being given a notice under that section; or (b) the Freeway Corporation is unable to identify the Utility that owns or operates unnotified Utility infrastructure within 24 hours after the discovery of the infrastructure. 173. Minister may direct Utility to carry out works (1) The Minister, after consultation with the Utility Minister, may direct a Utility that is given notice under section 170 to carry out works in the Extended Project area. (2) The Minister must give a direction under sub- section (1) if it is necessary to give effect to the Agreement. (3) This section does not apply to the carrying out of works if an approved Utility agreement exists in respect of those works. (4) A direction under this section may specify— (a) the manner in which and the standard to which the direction must be complied with; and (b) the period (being not less than 28 days) within which the direction must be complied with. s. 172 -- 101 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 91 (5) If a direction under this section provides for compliance with a standard in relation to a matter that standard is to apply in relation to that matter despite anything to the contrary in any other Act or law. 174. Direction to Freeway Corporation after notice to Minister (1) The Minister, after consultation with the Utility Minister, may give a direction under this section if— (a) the Freeway Corporation has given the Minister notice under section 172; and (b) the Minister considers that a delay in relocating or reinstating the Utility infrastructure— (i) would be contrary to the public interest; or (ii) would, in all the circumstances, be unreasonable. (2) A direction under sub-section (1)— (a) may direct the Freeway Corporation to relocate, rectify or otherwise deal with the Utility infrastructure; and (b) may direct the Freeway Corporation to comply with specified standards (including safety, operational and accreditation standards) that are to apply to the relocation or rectification of the Utility infrastructure; and s. 174 -- 102 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 92 (c) may direct the Freeway Corporation to comply with any safety or technical requirements imposed by law in respect of the carrying out of the required works (including any requirements imposed on the Utility or any other person specified in the direction in respect of those works) that are not inconsistent with the Agreement; and (d) must direct the Freeway Corporation to take reasonable care and take all reasonable steps to minimise damage to the Utility infrastructure and disruption to the infrastructure services. (3) If a direction directs the Freeway Corporation, under sub-section (2)(b), to comply with specified standards in relation to a matter, those standards are to apply in relation to that matter despite anything to the contrary in any other Act or law. 175. Direction to Freeway Corporation after application to Minister (1) The Freeway Corporation may apply to the Minister for a direction under this section if— (a) a Utility has not completed the works required by a direction under section 173 within the period specified in the direction; or (b) the Freeway Corporation believes on reasonable grounds that the works required by a direction under section 173 will not be completed within the period specified in the direction. (2) On an application under this section, the Minister, after consultation with the Utility Minister, may direct the Freeway Corporation to carry out or complete the works required by the relevant direction under section 173. s. 175 -- 103 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 93 (3) Without limiting sub-section (2), a direction under this section may specify a period within which the works must be performed even if this is a different period from any period provided for in the relevant direction under section 173. (4) If the Freeway Corporation complies under a direction under this section with a requirement imposed on a Utility or any other person, the Utility or other person is not required to comply with that requirement. 176. Requirements for directions (1) A direction under section 173, 174 or 175 must be in writing. (2) The Minister must ensure that a direction under section 173, 174 or 175 does not cause unreasonable delay or add unreasonable cost to the Project. (3) Subject to this section, a direction under section 173, 174 or 175 must not be inconsistent with this Act or the Agreement. 177. Direction to prevail over requirement to consent A direction under section 174 or 175 prevails over any provision of any other Act that requires the Utility to consent to the carrying out of the work that is subject to the direction. Division 7—Liability for Costs 178. Freeway Corporation to be liable for certain relocation and rectification costs Subject to this Division, the Freeway Corporation is liable to pay the fair and reasonable costs of relocating or rectifying any Utility infrastructure that is affected by the Project construction work. s. 176 -- 104 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 94 179. Standard to apply to relocation or rectification (1) For the purposes of section 178, the standard applied to the relocation or rectification must result in the Utility infrastructure having the same or a similar technical capability and having at least the same remaining life as it had before it was affected. (2) If new Utility infrastructure is required to meet the standard referred to in sub-section (1), the Freeway Corporation is liable for the cost of that new infrastructure. 180. Liability for costs of disruption of infrastructure services (1) The Freeway Corporation is liable for the costs incurred by a Utility as a direct result of any disruption of the infrastructure services provided by the Utility caused by the carrying out of Project construction work. (2) For the purposes of sub-section (1), the costs may include any of the following— (a) an amount imposed on the Utility under a contract for failing to provide the infrastructure service; (b) liquidated damages for breach of a contract with a third party; (c) loss of revenue. (3) Except as provided in sub-section (2)(b), the Freeway Corporation is not liable under sub- section (1) for loss or damage arising from breach of contract with a third party. (4) The Freeway Corporation is liable for costs under this section on the basis that the Utility makes all reasonable efforts to mitigate its loss. s. 179 -- 105 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 95 (5) If the Utility does not make all reasonable efforts to mitigate its loss, the Freeway Corporation is only liable for the costs that would have been incurred if the Utility had made all reasonable efforts to mitigate its loss. 181. Utility liable for differential if it requests upgrade If a Utility requests that a higher standard than the standard required by section 179 should apply to the relocation or rectification of Utility infrastructure, the Utility is liable to pay the difference in cost between the lower and higher standard. 182. Utility liable for delay costs (1) If the failure of a Utility to notify the Freeway Corporation of Utility infrastructure caused the Freeway Corporation to incur costs as a result of a delay in carrying out Project construction work, the Utility is liable to pay those costs to the Freeway Corporation. (2) A Utility is liable for costs under this section on the basis that the Freeway Corporation makes all reasonable efforts to mitigate its loss. (3) If the Freeway Corporation does not make all reasonable efforts to mitigate its loss, the Utility is only liable for the costs that would have been incurred if the Freeway Corporation had made all reasonable efforts to mitigate its loss. 183. Limitation of liability Except as provided in this Part, the Freeway Corporation is not liable to pay damages or other compensation to the Utility or any other person as a result of any effect of the Project on— (a) the Utility infrastructure of the Utility; or (b) the provision of infrastructure services by the Utility using Utility infrastructure. s. 181 -- 106 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 96 184. Dispute as to cost of relocation or rectification (1) If a dispute arises between the Freeway Corporation and a Utility as to the cost of relocation or rectification of Utility infrastructure, the Freeway Corporation or the Utility may refer the matter to the Minister and the Utility Minister for determination under Division 8. (2) The person referring the matter for determination must notify the Authority of that referral. 185. Certification of work (1) On completion by the Freeway Corporation of any work of relocation or rectification of Utility infrastructure under Division 6, the Utility must assess the work and— (a) if it is satisfied that the work is satisfactory and complete, certify that fact to the Freeway Corporation; or (b) if it is not satisfied that the work is satisfactory or complete, notify the Freeway Corporation that more work is required. (2) The notice under sub-section (1)(b) must specify as clearly as possible the work that is required. (3) If the Utility does not give a certificate or notice under sub-section (1) within 14 days after the Freeway Corporation notifies it of the completion of the work, the Utility is deemed to be satisfied with the work. (4) If the Utility gives a notice under sub-section (1)(b), the Freeway Corporation must complete the further work required in the notice within the period of 30 days after receipt of the notice or any longer period specified in the notice. (5) This section does not apply if the Freeway Corporation is unable to identify the Utility that owns or operates the Utility infrastructure. s. 184 -- 107 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 97 186. Referral of matters by Utilities to Ministers for determination The Utility may refer the matter to the Minister and the Utility Minister for determination under Division 8 if the Freeway Corporation does not complete the further work to the Utility's satisfaction within the specified time under section 185. 187. Referral of matters by Freeway Corporation to Ministers for determination The Freeway Corporation may refer the matter to the Minister and the Utility Minister for determination under Division 8 if the Utility refuses to certify the work on the completion of the further work under section 185 or unreasonably delays giving that certification. 188. Freeway Corporation no longer liable if work satisfactory The Freeway Corporation ceases to be liable to carry out any further work in respect of a specific work of relocation or rectification if— (a) a certificate is given under section 185 in respect of the work; or (b) the work is deemed under that section to be satisfactory; or (c) the work is determined under Division 8 to be satisfactory. s. 186 -- 108 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 98 Division 8—Dispute Resolution 189. Who can determine matters referred to the Ministers? On the referral of a matter to them under this Part, the Minister and the Utility Minister must— (a) determine the matter; or (b) appoint a person to determine the matter. 190. What must be considered in determining a matter? In determining a matter, the decision-maker— (a) must have regard to— (i) any submission (whether written or oral) of the Freeway Corporation or the Utility; and (ii) in the case of a matter referred under section 164, the public interest in minimising the disruption of the services provided by the Utility; and (b) may have regard to any other information or material that the decision-maker thinks fit. 191. Requirements for determinations (1) A determination under this Division must be in writing. (2) The decision-maker must ensure that the determination does not cause unreasonable delay or add unreasonable cost to the Project. (3) Subject to this section, a determination must not be inconsistent with this Act or the Agreement. 192. Determination to prevail over inconsistent laws If there is any inconsistency between a determination under this Division and any other Act or law, the determination prevails to the extent of the inconsistency. s. 189 -- 109 of 181 -- Victorian Legislation and Parliamentary Documents Part 8—Interface with Utilities Mitcham-Frankston Project Act 2004 Act No. 39/2004 99 Division 9—No Review of Determination or Direction 193. No appeal or review (1) In this section "decision" means— (a) an approval under section 157; or (b) a direction made or purporting to be made under section 165, 166, 173, 174 or 175; or (c) a determination made or purporting to be made under Division 8. (2) Subject to sub-section (5), a decision is final and binding on the Freeway Corporation and the Utility. (3) Subject to sub-section (5), no appeal may be made to a court in respect of the decision. (4) Subject to sub-section (5), no proceedings— (a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration or injunction; or (b) seeking any order under the Administrative Law Act 1978— (whether on the ground of absence of jurisdiction or any other ground) may be brought against any decision-maker in respect of a decision or any proceedings relating to that decision or any other act, matter or thing incidental to the making of that decision. (5) Nothing in this section prevents the Freeway Corporation from challenging the validity of a decision if the Freeway Corporation believes that compliance with the decision would place it in breach of the Agreement. __________________ s. 193 -- 110 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 100 PART 9—TOLLS Division 1—Right to Toll 194. Freeway Corporation may fix, charge and collect tolls and toll administration fees The Freeway Corporation may fix, charge and collect tolls for the use of a vehicle in a toll zone and toll administration fees but may do so only in accordance with this Act and the Agreement. 195. Fixing of tolls and toll administration fees (1) The Freeway Corporation in accordance with this Act and the Agreement by notice published in the Government Gazette— (a) may specify toll zones on the Mitcham- Frankston Freeway; and (b) may fix tolls that are payable in respect of the use of vehicles in toll zones; and (c) may fix toll administration fees that are payable to the Freeway Corporation and specify the circumstances in which they are payable. (2) A notice under sub-section (1) may specify different tolls in respect of different cases or classes of case including different zones or groups of zones, different classes of vehicle and the use of different vehicles at different times, or any combination of these. (3) A notice under sub-section (1) takes effect on the day that it is published in the Government Gazette or, if a later day is specified in the notice, on that day. s. 194 -- 111 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 101 (4) A day fixed under sub-section (3) in relation to the Mitcham-Frankston Freeway or part of the Mitcham-Frankston Freeway must be on or after the day fixed under section 196 for the commencement of tolling on the Mitcham- Frankston Freeway or that part of the Mitcham- Frankston Freeway. (5) In any proceedings under this Part, the production of a Government Gazette purporting to contain a notice under sub-section (1) is evidence of the valid publication of the notice and of the fixing of the toll or toll administration fee in accordance with this Act and the Agreement. 196. Commencement of tolling (1) The Governor in Council, by Order published in the Government Gazette, may fix a day for the commencement of tolling on the Mitcham- Frankston Freeway or part of the Mitcham- Frankston Freeway. (2) A day fixed under sub-section (1) must be determined in accordance with this Act and the Agreement. Division 2—Charge and Collection of Tolls 197. Liability to pay toll charged (1) Subject to this Part, a person who is the driver of a vehicle used in a toll zone is liable to pay to the Freeway Corporation— (a) the toll charged by the Freeway Corporation for that use; and (b) the relevant toll administration fee charged by the Freeway Corporation. (2) Subject to section 199, the person who was the owner of a vehicle at the time it was driven in a toll zone is liable for the payment of the toll and s. 196 -- 112 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 102 toll administration fee as if that person were the driver of the vehicle at the time the vehicle was driven in the toll zone. (3) Sub-section (2) does not affect the liability of the driver of a vehicle to pay a toll or toll administration fee, but if the toll or toll administration fee is paid to the Freeway Corporation, no further action may be taken by the Freeway Corporation to recover that toll or toll administration fee from the driver, owner or any other person. 198. Exemptions from toll and toll administration fee (1) A toll and toll administration fee is not payable under section 197 in respect of a vehicle that is the subject of a freeway use agreement. (2) A toll and toll administration fee is not payable under section 197 in respect of a vehicle that under the regulations is exempt from the payment of tolls. (3) Nothing in this section prevents any charge being made under a freeway use agreement. 199. Owner not liable if sworn statement or statutory declaration supplied (1) The owner of a vehicle is not liable under section 197 to pay a toll or toll administration fee for the use of the vehicle in a toll zone if— (a) within the period of 14 days after a demand for the payment of the toll or toll administration fee is served on the owner under section 200, the owner supplies to the Freeway Corporation in a sworn statement in writing or a statutory declaration— (i) the name and address of the person who was the driver of the vehicle at the relevant time; or s. 198 -- 113 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 103 (ii) a statement that the vehicle was a stolen vehicle at the relevant time; or (iii) a statement that the number plates displayed on the vehicle at the relevant time were stolen; or (b) within the period of 14 days after a demand is served on another person under section 200, that other person supplies to the Freeway Corporation in a sworn statement in writing or a statutory declaration the name and address of the person who was the driver of the vehicle at the relevant time. (2) In any proceedings for the recovery of a toll or toll administration fee, a statement or declaration purporting to be made under sub-section (1) is evidence that the person named in the statement or declaration was driving the vehicle at all the relevant times relating to the matter specified in the statement, if the proceedings are— (a) against the person named in the statement or declaration; and (b) in respect of the matter specified in the statement or declaration. 200. Charge of toll (1) The Freeway Corporation may demand payment of a toll for the use of a vehicle in a toll zone and any relevant toll administration fee payable from the person who the Freeway Corporation has reason to believe is liable under this Division for the payment of the toll and fee. (2) A demand must— (a) be in writing; and (b) must identify separately each trip for which a toll and toll administration fee is payable; and s. 200 -- 114 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 104 (c) be served on the person who appears to the Freeway Corporation to be liable under this Division for the payment of the toll and fee. 201. Payment of toll If an amount is paid to the Freeway Corporation on a demand made of a person under section 200— (a) the Freeway Corporation must apply that amount to the trips identified in the demand that are specified by the person making the payment; or (b) if the person does not specify the trips to which the amount is to be applied, the Freeway Corporation must apply that amount first to pay the earliest unpaid demand made of that person under that section and then to pay any later unpaid demands made of that person in the order in which the demands were made. 202. Declared freeway use agreements The Governor in Council may, by Order published in the Government Gazette, declare a class of agreements to be declared freeway use agreements for the purposes of this Part. 203. Prescribed tolling system not surveillance device (1) A tolling system that is prescribed as a prescribed tolling system for the purposes of this Part is not a surveillance device within the meaning of the Surveillance Devices Act 1999 when installed, used or maintained for the purpose of collecting information for the purpose of tolling or road management or traffic management. s. 201 -- 115 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 105 (2) If information is collected by means of a prescribed tolling system for a purpose set out in sub-section (1)— (a) that information may be provided to the State, a public authority or a Council in compliance with a requirement under any enactment or the Agreement; and (b) that information or access to that information may be provided to any person who is authorised by law or under the Agreement to have access to or to request the provision of that information; and (c) that information may be used for any other purpose if it does not identify and could not lead to the identification of any person. Division 3—Tolling Offences 204. Offence to drive on Mitcham-Frankston Freeway without payment of toll (1) A person is guilty of an offence if— (a) the person drives a vehicle on the Mitcham- Frankston Freeway; and (b) a demand is served on the person under section 200 for the payment of any relevant toll and toll administration fee for that use of the vehicle on the Mitcham-Frankston Freeway; and (c) the relevant toll and toll administration fee are not paid before the end of the period of 14 days after the service of that demand on that person. (2) A person who is guilty of an offence under this section is liable to a penalty not exceeding 10 penalty units. s. 204 -- 116 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 106 205. Application of offence (1) A person is guilty of only one offence under section 204 in relation to the use of a vehicle on the Mitcham-Frankston Freeway on one day regardless of how many trips the person makes in the vehicle on that Freeway during the course of that day. (2) If a person drives a vehicle on the Mitcham- Frankston Freeway and the trip commences before midnight on a particular day and continues into the succeeding day— (a) a person is guilty of only one offence under section 204 in relation to that trip; and (b) the offence is to be taken to have occurred on the day on which the trip commenced. 206. Offence to tamper with prescribed tolling devices A person must not, without just cause, tamper or interfere with a prescribed tolling device or any part of a prescribed tolling device in a manner— (a) that causes incorrect information to be recorded or transmitted; or (b) that prevents or interferes with the recording or transmission of information— in respect of the use of a toll zone by a vehicle in which that device is or may be situated. Penalty: 10 penalty units. s. 205 -- 117 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 107 Division 4—Tolling Enforcement 207. Freeway Corporation may notify enforcement agency of non-payment of toll (1) This section applies if the Freeway Corporation or an authorised person believes on reasonable grounds that a person has committed an offence under section 204. (2) The Freeway Corporation or authorised person may notify the enforcement agency of that belief and request the enforcement agency— (a) to serve an infringement notice in accordance with this Division on the owner of the vehicle involved in the offence; or (b) if a sworn statement or statutory declaration has been supplied to the Freeway Corporation under section 199 in respect of that use of the vehicle on the Mitcham- Frankston Freeway, to serve an infringement notice in accordance with this Division on the person named in the statement as the driver of the vehicle at the relevant time; or (c) to commence proceedings in respect of that offence in accordance with this Act. (3) If a request is made under this section in relation to a person, any right of the Freeway Corporation to bring proceedings to recover the toll and toll administration fee from that person as a debt ceases. (4) Nothing in sub-section (3) affects the existence of a debt. (5) Nothing in sub-section (2) requires the Freeway Corporation or an authorised person to notify the enforcement agency of an offence under section 204. s. 207 -- 118 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 108 (6) In this section "authorised person" means a person authorised by the Freeway Corporation for the purposes of this section. 208. Enforcement officers (1) An enforcement agency may appoint any person to be an enforcement officer for the purposes of this Part. (2) The appointment must be in writing and must specify the terms and conditions on which the person is appointed. (3) A person must not be appointed as an enforcement officer under this section unless the person has completed appropriate training or qualifications as determined by the enforcement agency. 209. Identification of enforcement officers (1) An enforcement agency must issue an identity card to each person it appoints as an enforcement officer. (2) The identity card issued to a person must— (a) contain a photograph of the person; and (b) state the full name of the person; and (c) state that the person is an enforcement officer for the purposes of this Part. (3) An enforcement officer must produce his or her identity card for inspection at any time during the exercise of a power under this Part, if asked to do so. Penalty: 10 penalty units. (4) In any proceedings under this Act, an identity card purporting to be issued to a person by an enforcement agency under this section is evidence of the appointment of that person as an enforcement officer. s. 208 -- 119 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 109 210. Power to serve a notice (1) An enforcement officer may serve or cause to be served an infringement notice on any person whom he or she has reason to believe has committed an offence under section 204. (2) An enforcement officer may cause to be served together with an infringement notice a notice containing information about the requirements arising under this Act in relation to the use of a vehicle on the Mitcham-Frankston Freeway. (3) An enforcement officer may rely on a certificate under section 222 in forming a belief under sub- section (1). 211. Form of notice An infringement notice must be in the prescribed form and must state— (a) the infringement penalty for the alleged offence; (b) the manner in which the infringement penalty may be paid; (c) the period (not being less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid; (d) that if the amount of infringement penalty is paid at the place referred to in the notice before the end of the period specified in the notice, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served; (e) that the person is entitled to disregard the notice and defend proceedings in respect of the alleged offence in the Magistrates' Court; (f) any other prescribed particulars. s. 210 -- 120 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 110 212. Infringement penalty (1) The infringement penalty for the offence for which an infringement notice is issued is the prescribed amount or, if no amount is prescribed, $100. (2) The prescribed amount must not exceed $200. 213. Late payment of penalty An enforcement officer may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if— (a) neither a charge has been filed nor a courtesy letter served under Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in respect of the offence to which the infringement penalty relates; and (b) the infringement notice has not been withdrawn. 214. Withdrawal of notice (1) An enforcement officer may withdraw an infringement notice at any time within 28 days after the date on which the notice was served by serving a withdrawal notice on the person served with the infringement notice. (2) An infringement notice may be withdrawn even if the infringement penalty has been paid. (3) If an infringement notice is withdrawn, the amount of any infringement penalty paid must be refunded and the Consolidated Fund is, to the necessary extent, appropriated accordingly. s. 212 -- 121 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 111 215. Payment expiates offence If an infringement notice is not withdrawn and the infringement penalty is paid within the time for payment stated in the notice or payment is accepted in accordance with section 213, then— (a) the person on whom the notice was served has expiated the offence by that payment; and (b) no proceedings may be taken against that person in respect of that offence; and (c) no conviction is to be taken to have been recorded against that person for that offence; and (d) the debt to the Freeway Corporation for the toll and toll administration fee to which the offence relates is extinguished. 216. Application of penalty (1) An infringement penalty paid under this Division must be applied in the same way as a fine paid under an order of a court made on an offender being convicted or found guilty of the offence to which the infringement penalty relates. (2) The payment of an infringement penalty under this Division is not and must not be taken to be— (a) an admission of guilt in relation to the offence; or (b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence and the payment does not in any way affect or prejudice any such claim or proceeding. (3) If proceedings have been taken or continued for an alleged offence because the person has not paid the penalty specified in the infringement notice s. 215 -- 122 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 112 and a conviction is imposed by the court, the conviction must not be taken to be a conviction for any purpose except in relation to— (a) the making of the conviction itself; and (b) subsequent proceedings that may be taken in respect of the conviction itself, including proceedings by way of appeal. (4) The payment of an infringement penalty under this Division must not be referred to in any report provided to a court for the purpose of determining sentence for any offence. 217. Prosecution after service of infringement notice A charge may be filed in respect of an offence to which an infringement notice relates if— (a) the infringement penalty has not been paid within the time for payment stated in the notice or in accordance with section 213; or (b) the notice is withdrawn. 218. Enforcement of infringement penalty (1) Payment of the infringement penalty may be enforced in accordance with Part 2 of Schedule 7 to the Magistrates' Court Act 1989 if— (a) the infringement penalty has not been paid within the time stated in the notice or in accordance with section 213; and (b) the notice has not been withdrawn; and (c) a charge has not been filed in accordance with section 217. (2) The Magistrates' Court Act 1989 applies as if— (a) an infringement notice under this Division were an infringement notice within the meaning of Schedule 7 to that Act; and s. 217 -- 123 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 113 (b) an offence referred to in section 204 were a prescribed offence within the meaning of that Schedule; and (c) the infringement penalty for the offence were the infringement penalty for the purposes of that Schedule. 219. Owner onus (1) If a vehicle is driven on the Mitcham-Frankston Freeway contrary to section 204, the person who was the owner of the vehicle involved in the offence at the time the vehicle was driven on that Freeway is guilty of an offence as if that person were the driver of the vehicle, unless the court is satisfied that the vehicle was a stolen vehicle or that the number plates displayed on the vehicle were stolen. (2) Sub-section (1) does not affect the liability of a driver of a vehicle for an offence but, if the penalty for the offence is paid and has not been refunded under section 214, no further penalty may be imposed or recovered from the owner, driver or any other person. (3) Despite sub-sections (1) and (2), the owner of a vehicle is not guilty of an offence if— (a) before or within the period of 28 days after the service on the owner of— (i) a summons; or (ii) a courtesy letter under Schedule 7 to the Magistrates' Court Act 1989— (whichever is first served) in respect of the offence, the owner supplies to an enforcement official in a sworn statement in writing or in a statutory declaration the name and address of the person who was driving the vehicle at the relevant time; or s. 219 -- 124 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 114 (b) another person against whom a charge has been filed, or on whom an infringement notice has been served, in relation to the driving of the vehicle at the relevant time supplies to an enforcement official in a sworn statement in writing or in a statutory declaration the name and address of the person who was driving the vehicle at the relevant time; or (c) the owner has supplied to the Freeway Corporation under section 199 in a sworn statement in writing or a statutory declaration the name and address of the person who was driving the vehicle at the relevant time; or (d) the owner satisfies an enforcement official by sworn statement in writing or by a statutory declaration that the owner did not know and could not with reasonable diligence have ascertained the name and the address of the person who was driving the vehicle at the relevant time. (4) A statement or declaration purporting to be made under sub-section (3)(a), (3)(b) or (3)(c) if produced in any proceedings against the person named in it in relation to the driving of a vehicle on a toll zone is evidence that that person was driving the vehicle at all relevant times. (5) An enforcement official must provide the Freeway Corporation without delay with a copy of any statement or declaration made under sub- section (3)(a) or (3)(b). s. 219 -- 125 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 115 (6) In this section "an enforcement official" means— (a) the informant in any proceeding commenced against the owner or another person; or (b) the enforcement officer who caused an infringement notice to be served on the owner or another person; or (c) the person who served (or caused to be served) a courtesy letter under Schedule 7 to the Magistrates' Court Act 1989 on the owner or another person— in relation to the driving of the vehicle at the relevant time. Division 5—Evidentiary Provisions 220. Proof that vehicle driven on Mitcham-Frankston Freeway Without prejudice to any other method of proving the relevant fact, if the fact that a vehicle was driven on the Mitcham-Frankston Freeway is relevant in proceedings for an offence under section 204 or for the recovery of a debt, evidence of that fact as indicated or determined by— (a) a prescribed tolling device that was used in the prescribed manner; or (b) an image or message produced by a prescribed process— is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of that fact. s. 220 -- 126 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 116 221. Evidence of certificate or document from VicRoads (1) A certificate in the prescribed form purporting to be issued by VicRoads or the Department of Infrastructure or an authorised person certifying that on a particular date a vehicle was registered under the Road Safety Act 1986 in the name of a particular person is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof that, on that date, the person was the owner of the vehicle. (2) A certificate or document that purports to have been issued under an Act of the Commonwealth or another State or a Territory corresponding to the Road Safety Act 1986 certifying that on a particular date a vehicle was registered under that Act in the name of a particular person is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof that, on that date, the person was the owner of the vehicle. (3) A certificate containing the prescribed particulars purporting to be issued by VicRoads or the Department of Infrastructure or an authorised person certifying that on a particular date— (a) a particular registration number was assigned to a particular vehicle; or (b) a particular person was entitled, or last entitled, to use or possess a number plate bearing a particular registration number— is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof that on that date that registration number was assigned to that vehicle or that person was entitled, or last entitled, to use or possess that number plate, as the case requires. s. 221 -- 127 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 117 (4) A certificate or document that purports to have been issued under any Act of the Commonwealth or of another State or Territory of the Commonwealth corresponding to the Road Safety Act 1986 certifying that on a particular date— (a) a particular registration number was assigned under the corresponding Act to a particular vehicle; or (b) a particular person was entitled, or last entitled, under the corresponding Act to use or possess a number plate bearing a particular registration number— is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof that on that date that registration number was assigned to that vehicle or that person was entitled, or last entitled, to use or possess that number plate, as the case requires. (5) In this section, "authorised person" means a person who is authorised or who is the holder of a position authorised for the purposes of this section by VicRoads. 222. Evidence of certificate issued by Freeway Corporation A certificate in the prescribed form purporting to be issued by the Freeway Corporation, or a person authorised by the Freeway Corporation, certifying— (a) that a specified person was, or was not, a party to a freeway use agreement; or (b) that a freeway use agreement— (i) existed, or did not exist, at a specified time; or (ii) contained, or did not contain, specified terms; or s. 222 -- 128 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 118 (iii) applied or did not apply to a specified vehicle; or (c) that the Freeway Corporation has served a demand on a specified person under section 200 for payment of a toll or toll administration fee and payment has not been made within the period of 14 days after service of that demand; or (d) that a prescribed tolling device was used in the prescribed manner; or (e) that an image or message was produced by a prescribed process; or (f) as to any matter related to a toll or toll administration fee that appears in or can be calculated from the records kept by the Freeway Corporation; or (g) as to any other matter that appears in, or that can be determined or calculated from, the records kept by the Freeway Corporation— is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate. Division 6—Disclosure and Keeping of Records 223. VicRoads may disclose certain information to Freeway Corporation (1) Despite anything to the contrary in section 92(2) of the Road Safety Act 1986, VicRoads or a relevant person within the meaning of that section may disclose information about the registration under that Act of any vehicle— (a) to the Freeway Corporation for the purposes of section 200; or (b) to the enforcement agency; or s. 223 -- 129 of 181 -- Victorian Legislation and Parliamentary Documents Part 9—Tolls Mitcham-Frankston Project Act 2004 Act No. 39/2004 119 (c) to a person who is employed by, or who is engaged to provide services for, the Freeway Corporation, VicRoads or the enforcement agency. (2) Sections 92(4), 92(5), 92(6) and 92(7) of the Road Safety Act 1986 apply to a disclosure under this section as if it were a disclosure under section 92 of that Act. 224. Freeway Corporation to keep proper records The Freeway Corporation must maintain proper records for the purposes of this Act about— (a) the payment or non-payment of tolls and toll administration fees; and (b) freeway use agreements. Penalty: 120 penalty units. 225. Destruction of records (1) The Freeway Corporation must cause any records it holds in relation to the non-payment of a toll or toll administration fee to be destroyed within 2 years after the creation of the records or within any shorter or longer period prescribed by the regulations. Penalty: 120 penalty units. (2) Sub-section (1) does not apply to records that do not identify any person or vehicle. __________________ s. 224 -- 130 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 120 PART 10—ADMINISTRATION AND ENFORCEMENT Division 1—Use of Statutory Powers and Functions for Project 226. Governor in Council may require bodies to act (1) The Governor in Council, by Order published in the Government Gazette, may require a Department Head, a public authority or a Council— (a) to carry out their functions in relation to the Project area or anything done or to be done in the Project area; and (b) to carry out those functions within a period specified in the Order. (2) If a function relates to the giving of statutory approval, a requirement under sub-section (1) cannot fix a shorter time or time limit to that prescribed by or under an Act. (3) The Department Head, public authority or Council must comply with a requirement under sub- section (1). (4) A requirement under sub-section (1) applies despite anything to the contrary in any other Act or law. 227. Minister may direct certain bodies to act (1) The Minister, after consultation with the relevant Minister, may direct VicRoads or a Council to exercise their powers in relation to roads in a manner that enhances the integration of the Mitcham-Frankston Freeway into the Victorian road network, as specified in the direction. (2) A direction under this section must be in writing. s. 226 -- 131 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 121 (3) A body to which a direction is given under this section must comply with that direction. (4) A direction under this section applies despite anything to the contrary in any other Act or law. (5) In this section— "relevant Minister" means the relevant road Minister within the meaning of the Road Management Act 2004. 228. Powers of certain bodies extended A Minister, Department Head, public authority or Council is deemed to have such powers as are necessary to enable the Minister, Department Head, public authority or Council— (a) to comply with any direction under or requirement of this Act or the regulations; and (b) to do any other thing that is necessary or convenient to be done for the purposes of the Project. Division 2—Limitations on Powers of Councils 229. Limitation on Council powers—generally (1) A Council must not exercise its powers under the following provisions of the Local Government Act 1989 in relation to leased land or licensed land— (a) sections 204, 207A, 207B, 207C, 207D and 207E; and (b) Schedule 10; and (c) Schedule 11. s. 228 -- 132 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 122 (2) A Council must not exercise any of its powers under Division 2 of Part 9 of the Local Government Act 1989 inconsistently with the functions and powers of the Freeway Corporation under the Road Management Act 2004 or the regulations under that Act or under the Agreement or under a licence or lease issued or granted under section 90(1) or 103 of this Act. (3) Sections 87 to 89 of the Melbourne and Metropolitan Board of Works Act 1958 apply in relation to the Project area as if— (a) any reference in those sections to a council were a reference to the Freeway Corporation; and (b) any reference in those sections to a municipal district were a reference to the Project area. 230. Limitation on powers to make local laws (1) A Council must not make a local law under the Local Government Act 1989 for or with respect to— (a) the Project area or the Extended Project area; or (b) the carrying out of works for the purposes of the Project (including the timing of works for and standards of construction of those works); or (c) restricting the use of any road for access to or egress from licensed land or a temporary construction site for the carrying out of works for the purposes of the Project; or (d) requiring the retention of trees or vegetation or earthworks in relation to the Project. s. 230 -- 133 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 123 (2) Without limiting sections 111(2), 111(3) and 111(4) of the Local Government Act 1989, a local law, whether made before or after the commencement of this section, is inoperative to the extent that it makes provision for or with respect to or affecting any matter or thing referred to in sub-section (1). (3) Without limiting sub-section (2), a local law is inoperative to the extent that it is inconsistent with the exercise by the Freeway Corporation of its powers or functions under this Act or under the Agreement or a Project Document or under a licence or a lease issued or granted under this Act. (4) Without limiting sub-section (2), a local law is inoperative to the extent that it has the effect of, or is exercised in a manner directed at, preventing, hindering or disrupting the Freeway Corporation or the holder of a licence or lease issued or granted under section 90(1) or 103 in the performance of an obligation or the pursuit of a right under the Agreement, if the Governor in Council, by Order published in the Government Gazette, declares it to be inoperative. (5) In this section "temporary construction site" means— (a) any Crown land approved under section 88; or (b) any land entered under the powers in section 74 or 75 of the Land Acquisition and Compensation Act 1986 for the purposes of the Project. s. 230 -- 134 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 124 Division 3—Emergency Orders 231. Independent Reviewer In this Division "Independent Reviewer" means a person who is for the time being appointed in accordance with the Agreement to exercise powers under this Division. 232. Emergency orders (1) The Independent Reviewer may make an emergency order if the Independent Reviewer is of the opinion that the order is necessary because of a danger to life or property arising out of the carrying out of works for the Project on licensed land. (2) An emergency order may require any person to do any one or more of the following things within a specified time or times— (a) to evacuate the licensed land or any part of the licensed land; (b) to stop the carrying out of works for the Project on the licensed land or any part of the licensed land; (c) to carry out works to make any part of the Project safe or to secure the licensed land or any part of the licensed land from access. (3) An emergency order must be in writing and may include any conditions that the Independent Reviewer thinks fit. 233. Service of emergency order The Independent Reviewer must cause an emergency order under section 232 to be served on— (a) the Freeway Corporation; and s. 231 -- 135 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 125 (b) the Authority; and (c) any person to whom it is directed— without delay after it is made. 234. Period of operation of emergency order An emergency order remains in force until— (a) it is complied with; or (b) it is cancelled in writing by the Independent Reviewer. 235. Offence to fail to comply with emergency order (1) A person to whom an emergency order is directed under this Division must comply with the emergency order. Penalty: 60 penalty units in the case of a natural person; 300 penalty units in the case of a corporation. (2) It is a defence to a prosecution of a person for an offence under this section if— (a) the person took all reasonable steps to comply with the emergency order; or (b) the person had a reasonable excuse for failing to comply with the emergency order. 236. No appeal or review (1) In this section "decision" means— (a) a decision or purported decision by the Independent Reviewer to make an emergency order; or (b) a failure by the Independent Reviewer to cancel an emergency order. s. 234 -- 136 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 126 (2) No proceedings— (a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration or injunction; or (b) seeking any order under the Administrative Law Act 1978 (whether on the ground of absence of jurisdiction or any other ground)— may be brought against the Independent Reviewer in respect of a decision or any proceedings relating to that decision or any other matter incidental to the making of that decision. 237. Request for police assistance The Independent Reviewer may request the assistance of a member of the police force to evacuate an area that is subject to an emergency order. Division 4—Emergency Management 238. Emergency management (1) The Freeway Corporation is deemed to be a government agency for the purposes of Part 5 of the Emergency Management Act 1986. (2) Sub-section (1) does not prevent the Freeway Corporation from receiving compensation under section 24 of the Emergency Management Act 1986 for the taking and use of the Freeway Corporation's property under that section. 239. Emergency access to Project area (1) A member of the police force or an officer or member of any emergency service may enter and carry out any emergency function in the Project area. s. 237 -- 137 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 127 (2) In this section— "emergency service" means— (a) the Country Fire Authority established under the Country Fire Authority Act 1958 or any permanent brigade established under that Act; (b) the Metropolitan Fire and Emergency Services Board established under the Metropolitan Fire Brigades Act 1958; (c) the Victoria State Emergency Service established under the Victoria State Emergency Service Act 1987; (d) an ambulance service within the meaning of the Ambulance Services Act 1986. Division 5—Powers of State to Control Mitcham-Frankston Freeway 240. Powers of State to control Project (1) If the State exercises a power under the Agreement to assume control of the Project, the State has and may exercise all the powers of the Freeway Corporation under— (a) this Act and the regulations; and (b) the Road Management Act 2004 and the regulations under that Act; and (c) the Road Safety Act 1986 and the regulations under that Act relating to traffic control devices. (2) The State may authorise any person to exercise any power conferred on the State by this section. s. 240 -- 138 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 128 (3) Despite anything to the contrary in this Act, the Road Management Act 2004 or the Road Safety Act 1986, the Freeway Corporation is not entitled to exercise any power while it is conferred on the State by this section. (4) A power conferred on the State by this section must be exercised in accordance with the Agreement. Division 6—Powers of Authority to Investigate 241. Who is a Project party? In this Division "Project party" means— (a) the Freeway Corporation; or (b) a person who is a party to a Project Document; or (c) a body corporate that is a related body corporate (within the meaning of the Corporations Act) of the Freeway Corporation or of a person who is a party to a Project Document. 242. Authority can require information The Authority, by notice in writing, may require a Project party to provide the Authority with information or to answer any questions put to it by the Authority for the purpose of determining compliance with— (a) this Act or the regulations; or (b) the Road Management Act 2004 or the regulations under that Act; or (c) sections 92 and 99A of the Road Safety Act 1986, any agreement under section 92 of that Act or any regulations under that Act relating to traffic control devices; or s. 241 -- 139 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 129 (d) the Agreement; or (e) a Project Document. 243. Offence to fail to comply (1) A Project party must comply with a requirement under section 242 within the time specified in the notice. Penalty: 120 penalty units. (2) It is a defence to a prosecution of a Project party for an offence under this section if— (a) the Project party took all reasonable steps to comply with the requirement; or (b) the Project party had a reasonable excuse for failing to comply with the requirement. 244. Authorised officers (1) The Authority may appoint any person to be an authorised officer for the purposes of this Division. (2) The appointment must be in writing and must specify the terms and conditions on which the person is appointed. (3) A person must not be appointed as an authorised officer under this section unless the person has completed appropriate training or qualifications as determined by the Authority. 245. Identification of authorised officers (1) The Authority must issue an identity card to each person appointed as an authorised officer for the purposes of this Division. (2) The identity card issued to a person must— (a) contain a photograph of the person; and (b) state the full name of the person; and s. 243 -- 140 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 130 (c) state that the person is an authorised officer for the purposes of this Division. (3) In any proceedings under this Act, an identity card purporting to be issued to a person by the Authority under this section is evidence of the appointment of that person as an authorised officer. 246. Powers of entry and access (1) An authorised officer appointed under section 244 may enter the offices of a Project party during ordinary business hours— (a) to inspect any records, systems or equipment in the possession of the Project party; and (b) to take copies of or extracts from those records— for the purpose of determining compliance with— (c) this Act or the regulations; or (d) the Road Management Act 2004 or the regulations under that Act; or (e) sections 92 and 99A of the Road Safety Act 1986, any agreement under section 92 of that Act or any regulations under that Act relating to traffic control devices; or (f) the Agreement; or (g) a Project Document. (2) Before exercising any power under this section, an authorised officer must— (a) produce his or her identity card to the Project party or an agent or employee of the Project party; and s. 246 -- 141 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 131 (b) inform the Project party or the agent or employee of the Project party that it is an offence under section 247 to prevent the authorised officer from carrying out an inspection or from taking any copy or extract under this section. 247. Offence to hinder authorised officer A Project party or an agent or employee of a Project party must not prevent an authorised officer appointed under section 244 from carrying out an inspection or from taking any copy or extract in accordance with section 246. Penalty: 120 penalty units. Division 7—Evidentiary Provisions 248. Evidentiary certificates of Authority In any proceedings under this Act, a certificate purporting to be signed by the Chief Executive Officer of the Authority, certifying— (a) that a person was or was not appointed under section 244 at a particular time; or (b) that a licence had or had not been issued to a particular person under this Act— is evidence of the facts stated in the certificate. 249. Evidentiary certificates of Freeway Corporation A certificate purporting to be signed by the Freeway Corporation certifying that any land, buildings or other property in the Extended Project area that is described in the certificate is vested in, occupied by or operated on behalf of the Freeway Corporation is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate. s. 247 -- 142 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 132 Division 8—Service of Documents 250. Service of documents If under this Act or the regulations, a notice, demand or other document is required or permitted to be served on any person, the notice, demand or other document may, unless the contrary intention appears, be served in or out of Victoria— (a) by delivering it personally to the person; or (b) by leaving it at the usual or last known place of residence or business of the person with a person apparently over the age of 16 years and apparently residing at that place or (in the case of a place of business) apparently in charge of or employed at that place; or (c) by sending it by post, addressed to the person at the usual or last known place of residence or business of that person; or (d) if the person has given an address to the enforcement agency or the Freeway Corporation that is not his or her place of residence or business, by sending it by post addressed to the person at that address. Division 9—Proceedings for Offences 251. Proceedings for offences under Part 9 (1) Proceedings for an offence under Part 9 may only be brought by— (a) a member of the police force; or (b) an enforcement agency; or (c) a person authorised by the Minister under sub-section (2). s. 250 -- 143 of 181 -- Victorian Legislation and Parliamentary Documents Part 10—Administration and Enforcement Mitcham-Frankston Project Act 2004 Act No. 39/2004 133 (2) The Minister may authorise a person to bring proceedings for an offence under Part 9. 252. Proceedings for other offences Proceedings for any offence under this Act (other than an offence referred to in section 251), may only be brought by— (a) a member of the police force; or (b) a prescribed person. __________________ s. 252 -- 144 of 181 -- Victorian Legislation and Parliamentary Documents Part 11—General Mitcham-Frankston Project Act 2004 Act No. 39/2004 134 PART 11—GENERAL 253. Taxes and duties (1) No duty is payable under the Duties Act 2000 in respect of the Agreement or any other agreement entered into by the State and contemplated under the Agreement. (2) No land tax is payable by the Freeway Corporation in respect of leased land or licensed land. 254. Rates and charges (1) Leased land and licensed land are not rateable land within the meaning of section 154 of the Local Government Act 1989. (2) Section 221 of the Local Government Act 1989 does not apply in respect of the Mitcham- Frankston Freeway. 255. Requirement on Minister to consult A failure of the Minister to consult with any other Minister under this Act before making any decision or taking any action does not invalidate that decision or action. 256. Action by Registrar of Titles (1) On being requested to do so and on delivery of any relevant instrument or document (but without production of a duplicate Crown grant or certificate of title), the Registrar of Titles must, as soon as practicable— (a) make any recordings in the Register that are necessary because of the operation of this Act or the Agreement; and (b) register any lease made in accordance with the Agreement. s. 253 -- 145 of 181 -- Victorian Legislation and Parliamentary Documents Part 11—General Mitcham-Frankston Project Act 2004 Act No. 39/2004 135 (2) Division 4 of Part IV of the Transfer of Land Act 1958 applies to any acquisition of land by the Authority under Division 1 of Part 3 as if the Crown were the acquiring authority rather than the Authority. 257. Supreme Court—limitation of jurisdiction It is the intention of sections 83, 193 and 236 to alter or vary section 85 of the Constitution Act 1975. 258. Regulations (1) The Governor in Council may make regulations for or with respect to— (a) prescribing the form of infringement notice and the level of infringement penalty for the purposes of Part 9; (b) prescribing as a tolling device any system, equipment or thing (including any equipment or thing to be placed in or on a vehicle) for recording the use of a vehicle on the Mitcham-Frankston Freeway; (c) prescribing the manner in which the tolling devices are to be installed, set up, tested, operated, used, maintained or repaired; (d) prescribing the manner in which information from the tolling devices is to be handled for the purposes of tolling; (e) prescribing methods of recording the payment of tolls; (f) exempting from the payment of tolls vehicles or classes of vehicle that under the Agreement may be exempted from the payment of tolls; s. 257 -- 146 of 181 -- Victorian Legislation and Parliamentary Documents Part 11—General Mitcham-Frankston Project Act 2004 Act No. 39/2004 136 (g) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstances; (c) may confer a discretionary authority or impose a duty on a specified person or class of person. __________________ s. 258 -- 147 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 137 PART 12—AMENDMENTS TO OTHER ACTS 259. Constitution Act 1975—Amendment of section 85 After section 85(11) of the Constitution Act 1975 insert— "(12) Divisions 2 and 3 of Part 6 of the Road Management Act 2004 (as inserted by section 270 of the Mitcham-Frankston Project Act 2004) and section 129 of the Road Management Act 2004 (as inserted by section 272 of the Mitcham-Frankston Project Act 2004) alter or vary this section and have effect as direct amendments of this section. (13) Section 52(4) of the Victorian Civil and Administrative Tribunal Act 1998 (as amended by section 167(1) of the Road Management Act 2004 as that Act is amended by section 276 of the Mitcham- Frankston Project Act 2004) alters or varies this section and has effect as a direct amendment of this section.". 260. Magistrates' Court Act 1989—Schedule 7 In Part 2 of Schedule 7 to the Magistrates' Court Act 1989, for "section 87(3)(a) of that Act." in clause 4(2)(j) substitute— "section 87(3)(a) of that Act; and (k) if the infringement notice was issued in respect of an offence under section 204 of the Mitcham-Frankston Project Act 2004, the person was at the time of the trip to which the alleged offence relates— (i) the owner of the vehicle within the meaning of that Act; or (ii) the driver of the vehicle as shown in a statement supplied under section 199 or 219 of that Act.". See: Act No. 8750/1975 Reprint No. 16 as at 8 April 2003 and amending Act No 2/2003. LawToday: www.dms. dpc.vic. gov.au s. 259 See: Act No. 51/1989. Reprint No. 9 as at 7 May 2003 and amending Act Nos 27/2002, 28/2003, 39/2003, 52/2003, 74/2003, 80/2003, 94/2003 and 108/2003 LawToday: www.dms. dpc.vic. gov.au -- 148 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 138 261. Planning and Environment Act 1987—section 201A After section 201A(c) of the Planning and Environment Act 1987 insert— "or (ca) the operation of any Act—". 262. Road Management Act 2004—definitions (1) In section 3(1) of the Road Management Act 2004 insert the following definitions— ' "Mitcham-Frankston Freeway" means the Mitcham-Frankston Freeway within the meaning of the Mitcham-Frankston Project Act 2004; "Mitcham-Frankston Freeway Agreement" means the Agreement within the meaning of the Mitcham-Frankston Project Act 2004; "Mitcham-Frankston Freeway Corporation", in relation to a provision of this Act, means the person who, for the time being, is declared under section 10 of the Mitcham- Frankston Project Act 2004 to be the Freeway Corporation in relation to that provision;'. (2) In section 3(1) of the Road Management Act 2004 in the definition of "State road authority" for "or the Link corporation" substitute ", the Link corporation or the Mitcham-Frankston Freeway Corporation". See: Act No. 45/1987. Reprint No. 7 as at 13 December 2000 and amending Act Nos 43/2003 and 77/2003. LawToday: www.dms. dpc.vic. gov.au s. 261 -- 149 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 139 263. Road Management Act 2004—application After section 5(8) of the Road Management Act 2004 insert— "(8A) This Act is subject to the Mitcham- Frankston Project Act 2004 and the Mitcham-Frankston Freeway Agreement. (8B) The Mitcham-Frankston Freeway Corporation must not exercise any power or carry out any duty under this Act in a manner that is not consistent with the Mitcham- Frankston Project Act 2004 or the Mitcham-Frankston Freeway Agreement.". 264. Road Management Act 2004—public road (1) After section 17(1)(d) of the Road Management Act 2004 insert— "(da) declared under section 143 of the Mitcham- Frankston Project Act 2004; or". (2) In section 17(2) of the Road Management Act 2004 after "(1)(d)," insert "(1)(da),". 265. Road Management Act 2004—responsible road authority (1) In section 37(1) of the Road Management Act 2004 for "sub-section (2)" substitute "sub-sections (1A) and (2)". (2) After section 37(1) of the Road Management Act 2004 insert— "(1A) The Mitcham-Frankston Freeway Corporation is the responsible road authority for the Mitcham-Frankston Freeway.". 266. Road Management Act 2004—Statutory duties In section 40(1) of the Road Management Act 2004 for "section 101" substitute "section 101(1)". s. 263 -- 150 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 140 267. Road Management Act 2004—road management plans After section 52(2) of the Road Management Act 2004 insert— "(2A) A road management plan relating to the Mitcham-Frankston Freeway— (a) must be consistent with the Mitcham- Frankston Project Act 2004 and the Mitcham-Frankston Freeway Agreement; and (b) must facilitate the performance of obligations and duties under the Mitcham-Frankston Project Act 2004 and the Mitcham-Frankston Freeway Agreement.". 268. Road Management Act 2004—interference with road After section 63(2)(b) of the Road Management Act 2004 insert— "(ba) the person is a Utility and is acting in accordance with— (i) an approved Utility agreement within the meaning of the Mitcham- Frankston Project Act 2004; or (ii) a determination under Division 8 of Part 8 of the Mitcham-Frankston Project Act 2004; or (iii) a direction under section 165, 166, 173, 174 or 175 of the Mitcham-Frankston Project Act 2004; or". s. 267 -- 151 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 141 269. Road Management Act 2004—authorised officers After section 71(5) of the Road Management Act 2004 insert— "(5A) An authorised officer appointed under sub- section (1) may exercise the powers of an authorised officer in respect of the Mitcham- Frankston Freeway as if VicRoads were the responsible road authority if— (a) the Mitcham-Frankston Freeway Corporation has so requested; and (b) there is a written arrangement with the Mitcham-Frankston Freeway Corporation.". 270. Road Management Act 2004—new Divisions 2 and 3 inserted in Part 6 (1) After Division 1 of Part 6 of the Road Management Act 2004 insert— "Division 2—Negligence 99. Application of Division This Division applies to any claim for damages resulting from negligence in relation to the performance or non- performance of a road management function, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. 100. Application of Part XII of Wrongs Act 1958 This Division is to be construed as being in addition to and not in derogation of Part XII of the Wrongs Act 1958. s. 269 -- 152 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 142 101. Principles concerning performance of road management functions (1) In determining whether a road authority, infrastructure manager or works manager has a duty of care or has breached a duty of care in respect of the performance of a road management function, a court is to consider the following principles (amongst other relevant things including the principles specified in section 83 of the Wrongs Act 1958)— (a) the character of the road and the type of traffic that could reasonably be expected to use the road; (b) the standard of maintenance and repair appropriate for a road of that character used by traffic of that type; (c) the state of repair in which a reasonable person would have expected to find a road or infrastructure of that character; (d) whether the road authority, infrastructure manager or works manager knew, or could reasonably be expected to have known, the condition of the road or infrastructure at the time of the relevant incident; (e) in the case where the road authority, infrastructure manager or works manager could not have reasonably been expected to repair the road or infrastructure or take other preventative measures before the relevant incident, whether the road authority, infrastructure manager or works manager did display, or could be s. 270 -- 153 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 143 reasonably expected to have displayed, appropriate warnings. (2) Sub-section (1) applies to the Mitcham- Frankston Freeway Corporation as if the reference to the principles specified in section 83 of the Wrongs Act 1958 were excluded. 102. Limitations on liability of road authority (1) Subject to this section, a road authority is not liable in any proceeding for damages, whether for breach of the statutory duty imposed by section 40 or for negligence, in respect of any alleged failure by the road authority— (a) to remove a hazard or to repair a defect or deterioration in a road; or (b) to give warning of a hazard, defect or deterioration in a road. (2) Sub-section (1) does not apply if, at the time of the alleged failure, the road authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (3) For the purposes of sub-section (2), the road authority is to be taken to have had actual knowledge of the particular risk if it is proven in the proceedings that the deterioration in the road had been reported in writing to the road authority under section 115. (4) This section does not affect any liability of a road authority arising out of a breach of the duty to inspect a public road imposed by section 40. s. 270 -- 154 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 144 103. Policy defence For the purposes of any proceeding to which this Division applies, an act or omission which is in accordance with a policy— (a) determined by the relevant road Minister under section 22 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no Minister in that Minister's position acting reasonably could have made that policy; (b) determined by the relevant road authority under section 39 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy. Note 1: One of the ways in which a road authority may determine a policy with respect to its road management functions is by a road management plan: see section 52. Note 2: Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a road management plan. 104. Liability where duty to perform and discretionary power to remedy For the purposes of proceedings relating to a claim arising out of a failure to exercise a road management function, if a person has a duty in relation to a matter and another person has a discretionary power to take remedial action in relation to that matter, only the person with the duty is liable in the proceedings. s. 270 -- 155 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 145 Example If particular infrastructure is not maintained in a safe condition and the relevant infrastructure manager has breached a duty to maintain that infrastructure under clause 6 of Schedule 7, the infrastructure manager would be liable in the proceedings not the coordinating road authority having a discretionary power to require that infrastructure manager to take remedial action. 105. Defence to prove that reasonable care was taken (1) In any proceeding against a road authority for damages resulting from a failure to maintain a public road it is a defence to prove that the road authority had taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic. (2) In any proceeding against an infrastructure manager or works manager for damages resulting from a failure to maintain non-road infrastructure it is a defence to prove that the infrastructure manager or works manager had taken such care as in all the circumstances was reasonably required to ensure that the relevant non-road infrastructure was not dangerous for traffic. (3) For the purposes of the defence referred to in sub-section (1), a road authority is to be taken to have established the defence if the road authority proves to the satisfaction of the court that— (a) the road authority had a policy which addressed the matter which was a cause of the incident giving rise to the action; and s. 270 -- 156 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 146 (b) the road authority complied with the relevant part of the policy. Note 1: One of the ways in which a road authority may determine a policy with respect to its road management functions is by a road management plan: see section 52. Note 2: Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a policy or road management plan. (4) The defence referred to in sub-section (1) or (2) does not prejudice any other defence or the application of the law relating to contributory negligence. 106. Matters which may be considered to constitute contributory negligence If the issue of the contributory negligence of a person, other than the road authority or an infrastructure manager, is raised in any proceeding relating to a claim of negligence in relation to the performance of a road management function in respect of a road or infrastructure on a road, the court must consider whether any matter specified in section 17A(1) of the Road Safety Act 1986 was a relevant factor. Division 3—Other Liability 107. Liability of road authority A road authority does not have a statutory duty or a common law duty to perform road management functions in respect of a public highway which is not a public road or to maintain, inspect or repair the roadside of any public highway (whether or not a public road). s. 270 -- 157 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 147 108. Road authority is not liable as an occupier (1) For the avoidance of doubt, it is hereby declared that for the purposes of section 14B of the Wrongs Act 1958— (a) a road authority is not an occupier of a road; and (b) a road is not premises. (2) This section does not affect any liability arising under the Wrongs Act 1958 in relation to any building on the road reserve. 109. Liability in relation to fencing Despite any Act or rule of law to the contrary, neither the Crown nor a road authority is liable for any damage that may be caused by reason of any public highway not being fenced in or fenced off. Note: See clause 4 of Schedule 5. 110. Limits in relation to liability for property damages (1) In this section— "property damages" means any claim for damage to property or for economic loss caused by the condition of a road or infrastructure but does not include any damage or loss arising out of personal injury or death; Example Property damages would include a windscreen cracked by a loose stone or damage to a tyre caused by a pothole but would not include damage to a vehicle caused by an unsecured temporary barrier. "tar damage" means damage to a vehicle caused by tar, asphalt, bitumen or bituminous compounds; s. 270 -- 158 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 148 "threshold amount" means the amount of $1000 as varied under section 111; "vehicle" has the same meaning as in the Road Safety Act 1986. (2) For the purposes of the definition of "property damages" in sub-section (1), "the condition of a road or infrastructure" does not include machinery, plant, tools or other equipment or materials of a road authority, infrastructure manager or works manager used for the construction, installation or maintenance of roads or infrastructure. Example "The condition of a road or infrastructure" would not include graders, excavators, temporary barriers, shovels, stockpiles of gravel or sand and pipes or poles that have not yet been installed. (3) A road authority is not liable for property damages where the value of the damage is equal to or less than the threshold amount. (4) The amount which may be recovered against a road authority in a claim for property damages which exceeds the threshold amount is to be reduced by the threshold amount. (5) A road authority is not liable for tar damage if the road authority has— (a) closed the road to traffic during works and for a reasonable period after the tar was applied; and (b) covered the portion of the road to which the tar was applied with gravel or stones or other appropriate material before re-opening the road to traffic. s. 270 -- 159 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 149 (6) For the purposes of determining a reasonable period under sub-section (5), regard may be had to— (a) any relevant Code of Practice; (b) any relevant road management plan; (c) any policy; (d) the matters specified in paragraphs (a) to (e) of section 101(1). 111. Indexation provision (1) The amount that is to apply for the purposes of section 110 is to be varied, in respect of the financial year beginning on 1 July 2005 and each subsequent financial year, in accordance with the formula— C B A × where— "A" is the amount referred to in section 110. "B" is the all groups consumer price index for Melbourne as at 15 June in the preceding financial year last published by the Australian Statistician in respect of the December quarter of that financial year. "C" is the all groups consumer price index for Melbourne as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June. (2) If it is necessary for the purposes of this section to calculate an amount that consists of or includes a fraction of a whole number, the amount is deemed to have been s. 270 -- 160 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 150 calculated in accordance with this section if the calculation is made— (a) if the amount is less than $1000, to the nearest whole $1; or (b) if the amount is $1000 or more, to the nearest whole $10. (3) If an amount is varied in accordance with this section, section 110 and this section have effect as if a reference to the amount were a reference to the amount as so varied. (4) If the variation of an amount to which this section applies by operation of this section has the effect of reducing the amount— (a) the variation is deemed not to have taken effect, except for the purposes of the application of this sub-section; and (b) when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase. (5) The Minister must cause a notice to be published in the Government Gazette specifying the amount as varied for the purposes of section 110 in respect of the relevant financial year.". (2) The amendment made to the Road Management Act 2004 by sub-section (1) is in substitution for Divisions 2 and 3 of Part 6 of that Act. s. 270 -- 161 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 151 271. Road Management Act 2004—damage to road After section 112(3)(b) of the Road Management Act 2004 insert— "(ba) the Mitcham-Frankston Freeway Corporation in respect of damage to a road arising because of the operation or effect of the Mitcham-Frankston Freeway; or". 272. Road Management Act 2004—New section 129 inserted (1) After section 128 of the Road Management Act 2004 insert— '129. Partial abrogation of "ratione tenure" rule (1) The Crown or a road authority is not liable for the maintenance of a road on Crown land or freehold land owned by the road authority only by reason of tenure over the land. (2) This section does not limit the operation of section 40.' (2) The amendment made to the Road Management Act 2004 by sub-section (1) is in substitution for section 129 of that Act. 273. Road Management Act 2004—section 131 repealed Section 131 of the Road Management Act 2004 is repealed. s. 271 -- 162 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 152 274. Road Management Act 2004— new section 133A inserted After section 133 of the Road Management Act 2004 insert— "133A. Application of regulations to Mitcham- Frankston Freeway (1) Regulations which may be made under this Act in respect of a freeway may be made in respect of the Mitcham-Frankston Freeway in accordance with this section. (2) For the purpose of this section— (a) a reference in section 132 to a road is to be construed as a reference to the Mitcham-Frankston Freeway; (b) a power which may be conferred on VicRoads to recover damages is to be taken to enable power to be conferred on the Mitcham-Frankston Freeway Corporation to recover damages; (c) a reference to the property of VicRoads is to be construed as a reference to the property of the Mitcham-Frankston Freeway Corporation; (d) a discretionary power which may be conferred on VicRoads may be conferred on the Mitcham-Frankston Freeway Corporation.". s. 274 -- 163 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 153 275. Road Management Act 2004—new sections 134A and 134B inserted After section 134 of the Road Management Act 2004 insert— '134A. Application of Act in respect of the Mitcham-Frankston Freeway and Freeway Corporation (1) This Act applies in respect of the Mitcham- Frankston Freeway in accordance with this section and section 134B. (2) Subject to this section, the Mitcham- Frankston Freeway Corporation is, in respect of the Mitcham-Frankston Freeway, the co-ordinating road authority for the purposes of sections 19, 48(3) and 63(1) and clauses 7 and 13 and Part 2 of Schedule 7. (3) Subject to sub-section (2) and section 134B, VicRoads has the powers and functions of a co-ordinating road authority in respect of the Mitcham-Frankston Freeway if so requested by the Mitcham-Frankston Freeway Corporation. (4) The functions and powers of an authorised officer appointed by VicRoads extend in respect of the Mitcham-Frankston Freeway if so requested by the Mitcham-Frankston Freeway Corporation in accordance with an arrangement between the Mitcham- Frankston Freeway Corporation and VicRoads. (5) A direction to the Mitcham-Frankston Freeway Corporation under section 22 must not be inconsistent with the Mitcham- Frankston Project Act 2004 or the Mitcham-Frankston Freeway Agreement. s. 275 -- 164 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 154 (6) A Code of Practice under section 28 in its application to the Mitcham-Frankston Freeway Corporation must not be inconsistent with the Mitcham-Frankston Project Act 2004 or the Mitcham-Frankston Freeway Agreement. (7) A determination under section 41 must not be inconsistent with the Mitcham- Frankston Project Act 2004 or the Mitcham-Frankston Freeway Agreement. (8) Section 66 does not apply to the Mitcham- Frankston Freeway if the placing of the structure, device, hoarding, advertisement, sign or bill is permitted under the Mitcham- Frankston Project Act 2004 or the Mitcham-Frankston Freeway Agreement. (9) Section 96 applies to the Mitcham-Frankston Freeway as if VicRoads were the relevant road authority. (10) Sections 11, 12, 13, 14, 15, 18, 36, 38(1)(d), 39, 105(3), 118, 119, 120, 123 and 127 and clauses 2 and 3 of Schedule 2 and clauses 1, 2, 3, 5, 8, 9, 11 and 12 of Schedule 5 do not apply to the Mitcham-Frankston Freeway or the Mitcham-Frankston Freeway Corporation. (11) Clauses 1, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 of Schedule 4 apply to the Mitcham- Frankston Freeway Corporation in respect of the Mitcham-Frankston Freeway as if the Mitcham-Frankston Freeway Corporation were the responsible State road authority. (12) Clause 10(1) of Schedule 5 applies to the Mitcham-Frankston Freeway as if the reference to infrastructure did not include road-related infrastructure installed in s. 275 -- 165 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 155 accordance with the Mitcham-Frankston Freeway Agreement. (13) The power to— (a) cause to be removed, destroyed or blocked a means of access to a freeway constructed, formed or laid out without the consent of the road authority; and (b) cause to be erected and maintained fences, posts or other obstructions along a freeway or along or across an entrance, approach or means of access to a freeway for the purpose of preventing access to a freeway— which is conferred on VicRoads in relation to a freeway is conferred on the Mitcham- Frankston Freeway Corporation in respect of the Mitcham-Frankston Freeway. 134B. Application of Schedule 7 in respect of the Mitcham-Frankston Freeway (1) Schedule 7 applies in respect of the Mitcham-Frankston Freeway as modified by this section. (2) Clause 8 applies as if after sub-clause (4) there were inserted— "(5) Sub-clause (1) does not apply to the carrying out of routine maintenance and inspection work. (6) For the purposes of this clause, work is not routine maintenance and inspection work if it requires traffic management measures in order to be conducted safely.". s. 275 -- 166 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 156 (3) Clause 14 applies as if after sub-clause (1) there were inserted— "(1A) The Mitcham-Frankston Freeway Corporation must have regard to the principles specified in this clause in the provision of road infrastructure.". (4) Clause 14 applies as if for sub-clause (2) there were substituted— "(2) The Mitcham-Frankston Freeway must be managed as far as is reasonably practicable in such a way as to minimise any adverse effects on— (a) the use of the Mitcham-Frankston Freeway by members of the public; and (b) the provision of services by a Utility.". (5) Clause 14(3) applies as if after paragraph (g) there were inserted— "(h) minimise any damage to non-road infrastructure; (i) minimise any risk to the property of Utilities; (j) ensure that the non-road infrastructure is reinstated as nearly as practicable to the condition existing before the works necessary for the provision of the road infrastructure were conducted.". (6) Clause 16(5) applies as if the reference to the works and infrastructure management principles were a reference to clause 14(2). s. 275 -- 167 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 157 (7) Clause 16 applies as if after sub-clause (8) there were inserted— "(8A) Conditions to which a consent is given under this section must not require an applicant to compensate the Mitcham- Frankston Freeway Corporation for economic loss or to pay any form of penalty.". (8) Clause 17 applies as if after sub-clause (4) there were inserted— "(4A) A Code of Practice applying to the Project within the meaning of the Mitcham-Frankston Project Act 2004 must not be inconsistent with that Act or the Mitcham-Frankston Freeway Agreement.".'. 276. Road Management Act 2004—Amendments to Victorian Civil and Administrative Tribunal Act 1998 (1) In section 167 of the Road Management Act 2004, before sub-section (2) insert— "(1) In section 52(4) of the Victorian Civil and Administrative Tribunal Act 1998, after paragraph (f) in the definition of "planning enactment" insert— "(fa) section 57 of the Road Management Act 2004; (fb) section 126 and Schedule 2 of the Road Management Act 2004; (fc) section 132 of the Road Management Act 2004 and regulations made under that section;". (2) The amendment made to the Road Management Act 2004 by sub-section (1) is in substitution for section 167(1) of that Act. s. 276 -- 168 of 181 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Other Acts Mitcham-Frankston Project Act 2004 Act No. 39/2004 158 277. Road Management Act 2004—section 168 repealed Section 168 of the Road Management Act 2004 is repealed. 278. Road Management Act 2004—registers of public roads After clause 1(h) of Schedule 1 to the Road Management Act 2004 insert— "(ha) in relation to the Mitcham-Frankston Freeway, details of any toll zones specified under section 195 of the Mitcham- Frankston Project Act 2004;". __________________ s. 277 -- 169 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 159 SCHEDULE SCHEDULE 1 REVOCATION OF RESERVATIONS Item 1 Situation of land Dandenong Creek Instrument and date of reservation Order in Council dated 23 May 1881 Description of land by reference to the Government Gazette Government Gazette dated 25 February 1881, page 586 (item 30) and 27 May 1881, page 1389 Purpose of reservation Site for Public purposes Extent of revocation Land shown hatched on the plan numbered LEGL./04–044 and lodged in the Central Plan Office Item 2 Situation and area of land Parish of Dandenong, County of Bourke, 23⋅12 hectares Instrument and date of reservation Dandenong Lands Act 1961, Act No. 6797, section 3(1)(b), 28 November 1961 Purpose of reservation Site for Public Recreation and Showgrounds Extent of revocation Land shown hatched on the plan numbered LEGL./04–045 and lodged in the Central Plan Office ═══════════════ Sch. 1 -- 170 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 160 ENDNOTES † Minister's second reading speech— Legislative Assembly: 12 May 2004 Legislative Council: 27 May 2004 The long title for the Bill for this Act was "to make provision in relation to the construction and management of the Mitcham-Frankston Freeway, to amend section 85 of the Constitution Act 1975 and the Road Management Act 2004 and other Acts and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 12 May 2004 Legislative Council: 27 May 2004 Absolute majorities: Legislative Assembly: 26 May 2004 Legislative Council: 1 June 2004 Endnotes -- 171 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 161 INDEX Subject Section Actamendments to other Acts 259–261 amendments to Road Management Act 2004 262–278 commencement 2 Crown bound by 14 purposes 1 Agreement Act prevails over 24 amendments, Amending agreements 3, 17, 18, 20–23 appropriation 26 bonds, arrangements to secure performance of 31 Building and Construction Industry Security of Payment Act 2002 does not apply to Crown 130 commencement 19 deemed to be State contract 30 definition 3 enforcement 28 Government's duty to give effect to 25 Ministerial directions to give effect to 173 Minister's power to enter into 15 no duties payable in relation to 253 no warranties given 29 notice requirements 18, 22 property transfer provisions 32 revocation 22 security provisions 33 specific performance of State under 27 tabling in Parliament 21 variations, variation statements 3, 17–18, 20–23 Amending agreements 3, 17, 18, 20–23 Arterial roads continuation 66, 101 declarations 143–145 definition 3 Authorised officers 244–248 Authorised persons 207, 221, 251 Authority See Southern and Eastern Integrated Transport Authority Compensation denial of access after road closure 141 divested, surrendered land, revoked reservations 79–83 early entry into possession of Project land 72 occupiers refusing to give up possession 76 planning matters 127 works on public land in Extended Project area 87 See also Land -- 172 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 162 Subject Section Councils See Municipal councils Crown land acquired land in Project area 36 definition 3 surplus land in Project area 3, 121–122 surrender of Councils', public authorities' interests 56 temporary access to 88 See also Reserved land Definitions 3, 67, 76, 88, 90, 117, 158, 193, 207, 219, 221, 227, 230, 231, 239, 241 Department heads 3, 226, 228 Department of Infrastructure 44, 81, 221 Disputes decision makers (def.) 3 determinations 189–193 Ministerial directions to implement determinations 165 referrals to Minister, Utility Minister regarding consent to works by Utilities 151, 153 notified infrastructure 164 relocation, rectification work 184, 186–187 Easements 38–39 Emergencies closure of Mitcham-Frankston Freeway 147 emergency access to Project area 239 emergency management 238 emergency orders 232–237 Utilities' powers 148 Enforcement agencies, officers, officials definition of enforcement agencies 3 disclosure of information by VicRoads to 223 enforcement officers 3, 208–210, 213– 214, 219 enforcement officials 219 notification of non-payment of tolls 207 power to bring proceedings 251 Entry powers 76, 117, 246 Evidence authorised officers 245, 248 certificates of Authority 248 certificates of Freeway Corporation 222, 249 drivers of vehicles 199, 219 fixing of tolls, toll administration fees 195 identity cards of enforcement officers 209 owners, registration of vehicles 221 vehicles driven on Mitcham-Frankston Freeway 220 -- 173 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 163 Subject Section Extended Project area Authority's powers regarding roads in 133 definition 3, 6 planning controls 123–126 Utilities' powers to use vehicles on roads in 148 variations to 7 works on public land in 86–87 See also Project area; Utility infrastructure Freeway Corporation certificates of as evidence 222, 249 challenges to validity of certain decisions 193 declarations 10 definition 3 delegation 12 disclosure of information by VicRoads to 223 inspection of records, systems, equipment of 246–247 Ministerial directions to 166–168, 174–177, 193 not a public authority 11 powers regarding roads 132, 139, 140, 142 provision of information to Authority by 242–243 records kept by 224–225 See also Agreement; Tolls; Utility infrastructure Freeway use agreements declared freeway use agreements 3, 202 definition 3 evidentiary provisions 222 exemptions from tolls for vehicles subject of 198 records kept by Freeway Corporation regarding 224 Freeways continuation 66, 101 declarations 143, 145 definition 3 Highways 143–145 Independent Reviewer 231–237 Infringements form of notices 211 non-payment of penalty 218 penalties and payment of penalties 212–213, 215–216 prosecution after service of notices 217 service of notices 207, 210 withdrawal of notices 214 Land acquisition acquired land deemed to be reserved 37, 41 acquired land vests in Crown 36 adjoining land as compensation 45 application, modification of Land Acquisition and Compensation Act 1986 35, 41–43 Authority's power 34 -- 174 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 164 Subject Section Cultural and Recreational Lands Act 1963 does not apply 46 easements 38–39 leases and licences of Crown 40 transfer of buildings, structures as compensation 44 definition 3 divesting, vesting for exercise of Authority's powers regarding roads 133 purchase of land outside Project area 54, 119–120 Registrar of Titles' duties 256 See also Crown land; Leases; Licences; Native title; Project land; Public land; Reserved land Land Minister 88 Leases acquisition of land held under Crown leases 40 amendment 109 application of other Acts to 129, 131 application of Part 5, Division 3 102 application of Part 5, Division 5 113 conditions 105–107 grant 103 interim leases for reserved project land 115–118 land purchased by Authority 119 leased land declarations of roads on 143, 145, 146 definition 3 interim operation 112 limitations on Councils' powers 229 mineral resources, extractive industries on 131 no land tax, rates, charges payable 253–254 lessee (def.) 3 mortgages 108 registration 256 renewal 111 sub-leases 107 strata of land 106 surplus land 122 term 104 termination 110 Licences acquisition of land held under Crown licences 40 amendment 96 application of other Acts to 129, 131 application of Part 5, Division 2 89 application of Part 5, Division 5 113 conditions 92–94 evidentiary provisions 248 interim licences for reserved project land 114, 116–117 issue 90 land purchased by Authority 119 -- 175 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 165 Subject Section licensed land declarations of roads on if licence terminated 143–146 definition 3 emergency orders 232–237 limitations on Councils' powers 229 mineral resources, extractive industries on 131 no land tax, rates, charges payable 253–254 revocation of temporary reservations 99–101, 112 roads on 142 licensee (def.) 3 mortgages 95 renewal 98 sub-licences 94 strata of land 93 surplus land 122 term of 91 termination 97, 99–101 See also Utility infrastructure Minister delegation 13 failure to consult 255 powers and duties regarding Agreement and amendments to Agreement 15, 18, 21, 22 authorised persons 251 changes to Project area, Extended Project area 7 closure of Mitcham-Frankston Freeway 147 Councils 227 declaration of roads 143–145 disputes between Utilities and Authority or Freeway Corporation 151, 153, 164, 184, 186–187, 189–192 Freeway Corporation 10, 142, 166–168, 174–177 land 55–56, 61–62, 99, 112, 121 Project Documents 16 traffic control centre 8 VicRoads 227 Utilities 165, 167–168, 173 Minister administering the Planning and Environment Act 1987 7, 8, 124 Mitcham-Frankston Freeway 3, 143, 145, 147 Municipal councils compensation for land 80–83 definition of Council 3 Ministerial directions to 227 Orders to act in relation to Project area 226 powers, limitations on powers 228–230 surrender, divesting of land in Project area 55–58 Municipal roads continuation 66, 101 declarations 144–145 definition 3 -- 176 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 166 Subject Section Native title acquisition of rights and interests acquired rights, interests vest in Crown 48 additional compensation 52 application of Land Acquisition and Compensation Act 1986 47 Cultural and Recreational Lands Act 1963 does not apply 53 objections and Tribunal's determinations 49–51 procedure 49 definition of Native Title Act 3 Non-arterial State roads continuation 66, 101 declarations 144–145 definition 3 Offences infringements 207, 210–218 proceedings for 207, 251–252 regarding enforcement officers 209 hindrance of authorised officers 247 information from Project parties 243 non-compliance with emergency orders 235 records kept by Freeway Corporation 224–225 tolls, tolling devices 204–207, 219 Planning controls 123–127 Police 237, 239, 251–252 Premier 3 Project 3, 4, 240 See also Agreement; headings beginning with Project Project area definition 3, 5 emergency access to 239 Orders to bodies to act in relation to 226 planning compensation 127 traffic control centre in 3, 8, 129 variations to 7 See also Land; Leases; Licences Project construction work (def.) 3 Project Documents appropriation 26 definition 3 definition of Project party 241 inspection of records, equipment of parties to 246–247 Minister's power to enter into 16 provision of information to Authority by parties to 242–243 specific performance of State under 27 -- 177 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 167 Subject Section Project land definition 67 entry into possession Authority's powers, duties 68–69 continued occupation without agreement 74 extension of occupation 73 recovery of rent 75 refusal to give up possession 76–77, 117–118 service of notices regarding 78 time for 70–72 former project land (def.) 90 reservation date (def.) 67 reserved project land Authority as committee of management 85 continuation of roads in 66 definition 3 interim leases and licences for 113–118 revocation of reservation 127 strata of Crown land as 84 Public authorities definition 3 Orders to act in relation to Project area 226 powers 228 surrender, divesting of land in Project area 55–58 Public land compensation for surrender, divesting 79–83 definition 3 surrender, divesting of public land in Project area 55–58 works on public land in Extended Project area 86–87 See also Leases; Licences Regulations 258 Reserved land acquired land in Project area deemed to be 37, 41 application of Crown Land (Reserves) Act 1978 9 definition of reserved Crown land 3 discontinued roads 137 issue of licences for 90 reservation of strata of Crown land 3, 84 revocation of reservations compensation 79–83 land within Project area 59–65, Sch. 1 licensed land on termination of licence 99–101, 112 surrendered, divested land in Project area deemed 57–58 temporary access to 88 works on 86 See also Project land Reserved project land See Project land Road authorities 3, 135, 136, 139, 142 -- 178 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 168 Subject Section Road Management Act 2004 amendments to 262–278 Roads Authority's powers 133–138, 140 continuation 66, 101 declarations 143–146 definition 3 discontinuance compensation for denial of access 141 divested, surrendered public land 57 notice 137 restrictions on powers regarding 140 revoked declarations 145 revoked reservations 63, 100 Freeway Corporation's powers 132, 139, 140, 142 on licensed land 142 road authorities' powers 136 temporary closures 138 Seizure 76, 117 Service of documents 250 Sheriff 76, 117 Southern and Eastern Integrated Transport Authority certificates as evidence 248 powers and duties regarding authorised officers 244–245 consent to Utility infrastructure works 150–151 planning controls 123–125, 127 provision of information by Project parties 242–243 roads 133–138, 140 Utility agreements 157, 158 See also Disputes; Land; Native title State functions, duties in relation to Agreement 25–33 powers to control Project 240 Strata of land 3, 84, 93, 106 Supreme Court limitation of jurisdiction 257 Tolls charging of 200 commencement 196 definition 3 evidentiary provisions 195, 199, 219–222 exemptions 198 fixing of 195 Freeway Corporation's powers 194–195 infringements 207, 210–218 interference with prescribed tolling devices 206 liability for offences 219 liability for payment of 197, 199 -- 179 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 169 Subject Section non-payment of 204–205, 207 owners (def.) 3 payment of 201 prescribed tolling system not surveillance device 203 records kept by Freeway Corporation regarding 224–225 sworn statements, statutory declarations 199, 219 toll administration fees (def.) 3 toll zones 3, 195 trips (def.) 3 vehicles (def.) 3 See also Enforcement agencies, officers, officials Traffic control centre 3, 8, 129 Tribunal See Victorian Civil and Administrative Tribunal Utilities certain powers not affected 148 definition 3 easements 39 Ministerial directions to 165, 167–168, 173, 193 See also Disputes; headings beginning with Utility Utility agreements amendment 158 approval 3, 157, 158, 193 definition 3 directions regarding works required under 165 matters provided for (general) 155 power to enter into 154 regarding, providing for access to licensed land for Utility works 152 notified, unnotified infrastructure 160, 163, 171, 173 requirements for 156 Utility infrastructure definition 3 liability for costs 178–183 notified Utility infrastructure consultation requirements 163 definition 3 identification 159 Ministerial directions as to works required 165–168 notice requirements 160–162 referral to Ministers if no agreement 164 relocation, rectification work certification 185–188 costs of 178–179, 181, 184 definition of rectification 3 further work required 185–187 provided for in Utility agreements 155 standards 156, 174, 179, 181 -- 180 of 181 -- Victorian Legislation and Parliamentary Documents Mitcham-Frankston Project Act 2004 Act No. 39/2004 170 Subject Section unnotified Utility infrastructure agreements regarding 171 definition 3 Freeway Corporation's duties on discovery of 169 inability to identify owner, operator 172, 185 Ministerial directions as to works required 173–177 notice requirements 169–170 Utilities' failure to notify, respond to requests 172, 182 works in Extended Project area, on licensed land 149–153 See also Disputes Utility Ministers definition, determined by Premier 3 determination of disputes between Utilities and Authority or Freeway Corporation 151, 153, 164, 184, 186–187, 189–192 VicRoads certificates of as evidence 221 definition 3 disclosure of registration information by 223 may not declare roads on licensed, leased land 146 Ministerial directions to 227 transfer of buildings, structures 44, 81 Victorian Civil and Administrative Tribunal 49–51 Warrants 76, 117 Works approvals from public bodies not required 128 definition 3 on public land, former project land 86–87, 90 See also Utility infrastructure -- 181 of 181 --