Last week, the Metro Rail Authority (Authority), together with the Victorian Government, released additional information as to how the Melbourne Metro Rail Project (Project) will be built through Melbourne’s Central Business District (CBD). A short video prepared by the Authority demonstrates how the CBD North and South stations will be built to minimise disruption to the CBD. In addition, last week the Authority commenced notifying property owners and tenants along the proposed alignment of the Project regarding possible acquisition of land. The specific properties have not been publicly identified at this stage.

At present, site investigations (for example, technical studies on drilling, noise, vibration, groundwater and trees) are underway. It is intended that the assessment and approvals process will take place next year, with major construction beginning in 2018. There is likely to be enabling works (e.g. design and investigation activities, relocation of utilities, modification to existing transport infrastructure) in 2017.

In addition, the Authority and Victorian Government have commenced the acquisition process for the proposed alignment for the Project, with some inner-city properties already being acquired such as a three-level townhouse in Kensington.

The Rail Project consists of 2 parallel 9 kilometre rail tunnels and 5 new underground rail stations at Arden, Parkville, CBD North, CBD South and Domain.

The Assessment Process

The Project is a major project under the Major Transport Project Facilitation Act 2009 (Vic) (MTPF Act) for purposes of delivery of the project, but not for planning and environmental approvals over which the Environment Effects Statement (EES) process applies. Although the streamlined planning benefits of the MTPF Act have not been used in favour of the EES process, there are still significant benefits of pursuing the project through this Act. The Authority is empowered by a broadened range of project delivery powers, including powers of acquisition of land (in accordance with the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act) with some modifications), acquisition of easements, powers of entry and temporary occupation (subject to compensation), powers to open, discontinue, construct, relocate or realign any road (also subject to compensation) or close a road to traffic, and restricting access to the project land and areas required for the project.

An EES will be prepared by the Authority, and placed on public exhibition (likely to be mid 2016). The EES will then be considered (together with all public submissions) by an EES Inquiry Panel. This process will include a public hearing. The Inquiry’s report and the EES then inform the Minister for Planning’s assessment of the Project. We note that the Project Outline documents indicate that a planning scheme amendment will be pursued to allow for uses and development related to the Project.

The Draft Scoping requirements for the EES are out for comment now until 4 November 2015. Pursuant to these requirements, the EES is to cover:

  • construction and construction related works on air quality, noise levels, hydrology, surface water quality, ground water quality;
  • effect of disturbance of contamination groundwater or soils, acid sulphate soils or geophysical conditions;
  • effects on Indigenous and non-Indigenous cultural heritage;
  • effects on visual, landscape, recreational and biodiversity values;
  • effects on existing land uses and community and business activities (including with respect to acquisitions, services, connectivity and social impacts);
  • temporary and permanent effects on the transport systems and services for residents and businesses and the broader community; and
  • other effects on land uses and the community.

Compensation for disruption

Affected parties may seek compensation for disruption to business (including construction works restricting access, causing noise and disruption resulting in a significant reduction in business). The MTPF Act provides that the Authority is liable to compensate any person who has (1) sustained any pecuniary loss or (2) 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 by or on behalf of the Authority (s.169(1)) (for example, works on footpaths or roads outside retail premises).

The MTPF Act provides that any claim for compensation made for disruption must be made and dealt with in accordance with the LAC Act as if it were a claim under section 47(1) of the LAC Act. The LAC Act allows a claim to be made by a person with an interest in land that has been entered or temporarily occupied may claim the amount of that loss or expense from the Authority.

In most instances, a claim of this type is resolved via agreement between the parties. However, if the amount of compensation cannot be agreed between the landowner, business owner or tenant and the Authority, the matter will be determined by the Victorian Civil and Administrative Tribunal or the Supreme Court of Victoria.

Compensation for land acquisition

Compensation may also be sought for the acquisition by the Authority of all or part of an interest in land. The Authority will commence the formal acquisition process by serving a Notice of Intention to Acquire an interest in land upon the affected parties. This will contain information regarding the interest to be acquired and the process for receiving compensation.

After a minimum period of two months, the Authority may serve a Notice of Acquisition (NOA) on the relevant parties and published in the Victoria Government Gazette. This is the date upon which the interest in land vests in the Authority. Within 2 weeks of the date of the NOA, an offer of compensation will be provided which outlines the amount of compensation and your rights for disputing the amount.

If an agreement cannot be reached between the affected party and the Authority, the claim becomes contested and may be resolved by the Victorian Civil and Administrative Tribunal or the Supreme Court of Victoria.