Insights Library
Update on Melbourne Airport Rail Link
The Project
The Melbourne Airport Rail Link Project (Project) is the transport project set to be undertaken by the Victorian Government to provide additional public transport connecting Melbourne Airport to Victoria’s regional and metropolitan train network.
The new Rail Link is to run from Melbourne Airport through to Sunshine Station, then into the Metro Tunnel, visit this link for more info.
Update on the Project
On 30 August 2022, the Minister for Environment and Climate Action designated the land required to be used for the Project under section 95 of the Major Transport Projects Facilitation Act 2009 (MTPF Act).
Rail Projects Victoria now has the power under section 111C and 112 of the MTPF Act to compulsorily acquire any land designated in the Project area for the purposes of constructing the Project. This may occur by agreement with landowners, or as anticipated, by compulsory processes under the Land Acquisition and Compensation Act 1986 (LAC Act).
Rail Projects Victoria are now expected to commence serving the initial notices to the affected landowners this month to commence the compulsory process.
Project background
On 3 June 2021 the Project was declared a major transport project under section 10 of the MTPF Act.
In May 2021 clause 52.36 was incorporated into the Victoria Planning Provisions to facilitate the delivery of projects carried out by or on behalf of Rail Projects Victoria. As a result, the Project does not require a planning scheme amendment prior to the delivery of the Project.
The Minister for Planning has also declared that an Environment Effects Statement was not required for the Project under the Environment Effects Act 1978 (Vic).
Rail Projects Victoria are still required to obtain planning approvals prior to undertaking works of the Project, however, these requirements under clause 52.37 of the Victoria Planning Provisions may be varied or waived by the Minister for Planning.
Compulsory acquisition process and possession
Should Rail Projects Victoria proceed to acquire the declared project land by compulsory process, the following events are likely to occur in accordance with the principles of the LAC Act:
- A Notice of Intention to Acquire (NOITA) will be served on the landowner and any other person with an interest in the Project area land. This will notify affected persons that Rail Project Victoria intends to shortly acquire their interest in the land.
Once a NOITA is served, you are no longer entitled to:
- enter into any sale, transaction or arrangement in respect of the subject land;
- grant any licence or lease for the subject land; and/or
- make any improvements of a substantial nature to the subject land.
Accordingly, it is important to consider any lease or proposed sale of land prior to receiving a NOITA.
- No earlier than 2 months, and no later than 6 months, after receiving a NOITA, Rail Projects Victoria, must publish a Notice of Acquisition (NOA) in the Victoria Government Gazette which, once published, has the legal effect of acquiring the interest in the land. A copy of the NOITA must be served on any person that had an interest in the subject land prior to the acquisition.
- Following the acquisition of the subject land, Rail Projects Victoria will notify affected persons as to the date it wishes to take possession of the land. The requirements for possession are governed by the LAC Act. Rail Projects Victoria is not permitted to take possession of the land if it is occupied and used as a principal place of residence or business before the end of 3 months from the date of acquisition. If, however, the land is not the principal place of residence or business, then Rail Projects Victoria may take possession within 7 days upon providing notice of such intention. Nevertheless, the date of possession may be negotiated by agreement between the parties.
Right to compensation
If your interest in land is compulsorily acquired as a result of the Project, you may be entitled to compensation under Part 3 of the LAC Act.
Unless agreed otherwise, Rail Projects Victoria is required to provide all persons that previously held an interest in the acquired land an initial offer of compensation within 14 days of the date the land is acquired. The initial offer of compensation will be based upon, and be accompanied by, a certificate of valuation.
Under section 41 of the LAC Act, your claim for compensation may include the following types of compensation:
- Market value – being of the value of the interest acquired in the land as at the date of acquisition.
- Special value – being an amount attributable to any pecuniary advantage that a person has with the acquired land that is unique to their ownership or occupation of the land.
- Loss attributable to severance – this head of compensation is applicable in circumstances where part of the land is acquired, and there is a reduction in the market value of the balance of the land as a result of the acquisition. It also includes a reduction in the market value of any other land that is used in conjunction with the acquired land and is owned by the same person.
- Loss attributable to disturbance – being any pecuniary loss suffered as a natural, direct and reasonable consequence of Rail Project Victoria’s acquisition of your interest in the land.
- Professional expenses – being any legal or professional expenses that are necessarily incurred as a result of the acquisition.
About Best Hooper – Victoria’s Property, Planning and Land Development Advisory Law Firm
Best Hooper are the oldest and most prominent developer focused law firm in Victoria who have served our community since 1886; through wars, recessions, depressions and pandemics. We are continuously recognised as industry leaders in a variety of publications, including Doyles Guide and Best Lawyers.
It is important that persons with an interest in land that is set to be affected by the Project are aware of their rights, obligations and entitlements.
Best Hooper is regularly involved in land acquisition and compensation matters acting for landowners and occupiers of acquired land to assist with all aspects of the acquisition process and to ensure they receive the best compensation possible.
Jonathan and Lauren are members of our Land Development & Compulsory Acquisitions team, if you require more information please call Jonathan on (03) 9691 0253 or email on jhourigan@besthooper.com.au or contact Lauren on (03) 9691 0217 or email on lcullen@besthooper.com.au
