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Major Transport Projects Facilitation Amendment Bill 2019

  Major Transport Projects Facilitation
         Amendment Bill 2019

                        Introduction Print


              EXPLANATORY MEMORANDUM


                                  General
The Major Transport Projects Facilitation Amendment Bill 2019 amends the
utilities regime under Part 7 of the Major Transport Projects Facilitation
Act 2009.

                               Clause Notes
Clause 1   sets out the purpose of the Bill.
           The purpose is to amend the Major Transport Projects
           Facilitation Act 2009 to facilitate--
                   the earlier engagement of utilities by project authorities
                    in relation to utility infrastructure affected by declared
                    projects; and
                   the earlier negotiation of utility agreements between
                    project authorities and utilities.
           The object of doing so is to identify options to minimise the cost
           and impact of interfaces with utility infrastructure when decisions
           are being made about the proposed alignment of a major
           transport project.
           The amendments mean that utility interfaces are considered when
           there is greatest scope to come up with an option that best serves
           the interests of the project and utilities.

Clause 2   provides for the commencement of the Act on the day after the
           day on which it receives the Royal Assent.




591036                                1        BILL LA INTRODUCTION 5/3/2019

 


 

Clause 3 provides that the Major Transport Projects Facilitation Act 2009 is called the Principal Act. Clause 4 provides for the insertion or amendment of definitions in section 208 of the Principal Act. The definition of project authority notice is inserted. It is defined to be a notice issued under new section 211A(1). The amended definition of notification period reflects the ability for the project authority to extend the notification period under new section 212 to reduce the risk that utility infrastructure becomes unnotified utility infrastructure despite the project authority and the utility working in good faith to identify and locate utility infrastructure. Other amendments to definitions reflect the replacement of the notice requirement in the Principal Act with the new definition of project authority notice. Clause 5 substitutes a new section 209 of the Principal Act which specifies the meaning of unnotified utility infrastructure. Unnotified utility infrastructure is either--  utility infrastructure, the location of which is not known by the project authority, because it could not be identified even after taking all reasonable steps or because the utility failed to respond to a notice within 30 business days (or longer period permitted by the project authority under new section 212); or  utility infrastructure that has been incorrectly described or its location incorrectly given by the utility. There is no material change to the definition from that which was previously specified under section 209, however, drafting changes to other sections necessitate drafting changes to this definition. Clause 6 amends section 210 of the Principal Act to remove references to the project area and substitute "declared project" for "approved project". The amendments are consequential to changes to enable the utility regime in Part 7 of the Principal Act to be used following declaration of a project as a declared project. Prior to the 2

 


 

amendments, the utilities regime could only be used following the designation of the project area for the declared project. Clause 7 substitutes sections 211 and 212 of, and inserts a new section 211A into, the Principal Act. New section 211 requires that a project authority take all reasonable steps to identify all utility infrastructure that may be affected by the development of the declared project, and every utility that owns, controls or operates the identified utility infrastructure. New section 211A(1) provides that a project authority may notify a utility identified under new section 211 and require the utility to provide specified information on the location of its utility infrastructure. Under new section 211A(1) the project authority has the discretion to only engage with those utilities which the project authority believes may be affected by a declared project. This removes redundant work for both the project authority and the unaffected utilities. New section 211(A)(2) provides for the content of a notice given under new section 211A(1).  New subsection (2)(a) requires the project authority to specify an area or areas of land forming part of the project area or that the project authority considers may form part of the project area. This is necessary as the notification process may now commence before the project area is defined under Part 4 of the Principal Act.  New subsection (2)(b) requires that the project authority to state in the project authority notice that the utility must give written notice back to the project authority of the utility infrastructure the utility owns, operates or controls in the specified area before the notification period expires.  New subsection (2)(c) requires the project authority to state in the project authority notice that if the utility has utility infrastructure in the specified area then the written notice to be provided to the project authority by the utility must describe the nature and location of its utility infrastructure and attach a plan that shows its 3

 


 

location or shows 2 locations that enable the utility infrastructure to be located.  New subsection (2)(d) requires the project authority to state in the project authority notice that if the utility fails to provide written notice of the location of its utility infrastructure in the specified area before the notification period expires, in accordance with section 212, then the utility's infrastructure in the specified area will be taken to be unnotified utility infrastructure. New section 212 provides that a utility must comply with a project authority notice given under section 211A within--  30 business days after receiving the project authority notice; or  any longer period agreed to by the project authority before the end of the 30 business days following receipt of the project authority notice. The change introduced is to enable the project authority to extend the period within which the utility must comply with the project authority notice. Clause 8 amends section 213 of the Principal Act by substituting "section 212" for "notice under section 211" and "the utility has complied with that notice" for "the end of the notification period". These amendments enable the negotiation period under section 214 of the Principal Act to begin once a utility responds to a project authority notice and supplies the information requested by the project authority. Currently, section 213 of the Principal Act requires the full 30 days to elapse. In many instances the full 30 days will not be needed. The amendment will enable the formal negotiation period to be triggered as soon as the utility has provided written notice of the location of its utility infrastructure in the specified area. 4

 


 

Clause 9 substitutes a new section 216 of the Principal Act which provides when a project authority or utility can commence the dispute resolution procedure under Division 4 of Part 7 of the Principal Act. The new section enables either party to trigger the dispute resolution process by notifying the other party that a dispute exists. This change will avoid unnecessary delays in circumstances where all reasonable endeavours to negotiate resolutions acceptable to both parties have been undertaken, but agreement still cannot be reached. Clause 10 inserts new Part 11 into the Principal Act which provides for transitional provisions in relation to the North East Link Project. New section 268 defines a number of terms for the purposes of the transitional provisions including the term North East Link Project. North East Link Project is defined as the project declared under section 10, the declaration of which was published in the Government Gazette 19 June 2018. The purpose of the transitional provisions is to recognise the work already undertaken by the North East Link project authority with utility companies to identify utility infrastructure and exchange information so that plans can be made for the removal, relocation or protection of utility infrastructure that interfaces with the project. New section 269 provides that any steps taken by the project authority for the North East Link Project to identify utility infrastructure, and the utilities that own, operate or control that utility infrastructure, for the purposes of developing the North East Link Project are taken to be reasonable steps for the purposes of the new section 211. New section 270 provides that if a utility has, following a request from the project authority for the North East Link Project about the location of utility infrastructure that it owns, operates or controls, given the project authority the requested information, it is taken to have complied with the new section 212. 5

 


 

Clause 11 makes a statute law revision to section 230(2) of the Principal Act to update the language used to describe how proceedings are commenced. The amendment makes the language used in section 230(2) consistent with the language used in Victorian courts legislation. Clause 12 repeals the amending Act, the Major Transport Projects Facilitation Amendment Act 2019, on the first anniversary of its commencement. The repeal of the Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 6

 


 

 


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