tion. ( 1) Any person entitled to claim compensation under "The Acquisition of Land Act of 1967," in respect of the taking of any land by the Commissioner, may claim from the Commissioner compensation for injurious affection to the land caused by the execution by the Com- missioner of any of the powers (other than the power to acquire the land) conferred by this Act.
(2) The claimant and the Commissioner may agree upon the amount of the compensation to be paid pursuant to this section or such amount may, upon the reference of either of them, be determined by the Land Court under "The Acquisition of Land Act of 1967 ," as if the land had
B
30 ss. 53-72 RAILWAYS ACT 1914-1971
been taken by the Commissioner and the claim for compensation in respect of such taking were limited to compensation for the injurious affection in question.
Substituted by Act of 1967, No. 48, s. 3 (2), Sch. 1, Part II.
Act referred to:
Acquisition of Land Act 1967-1969.
53-70. (Repealed.)
Repealed by Act of 1967, No. 48, s. 3 (2), Sch. 1, Part II.
71. Lands not wanted may be sold. 1863, s. 80. Where any land taken by the Commissioner is not required, the Commissioner may, with the approval of the Governor in Council, exchange or sell ·such land and execute the necessary transfer for and on behalf of the Crown.
72. ( 1) Substituted roads. 1863, ss. 90, 91. The following provisions shall be applicable to cases where a railway is constructed upon or otherwise interferes with any road:-
(2) If it is found necessary to cross, cut through, raise, lower, or use any part of any road, so as to render it extraordinarily inconvenient for public traffic, the Commissioner shall, before the commencement of any such operations, cause a sufficient substituted road to be made.
Any person who suffers special damage by reason of the failure of the Commissioner to cause such substituted road to be made before he interferes with an existing road may recover the amount of such damage from the Commissioner with costs by action in any court of competent jurisdiction.
If the existing road can be restored compatibly with the use of the railway, it shall, with reasonable expedition, be restored to a substantial condition.
If it cannot be restored compatibly with the use of the railway, the Commissioner shall, with reasonable expedition, cause a sufficient substituted road to be put into a permanently substantial condition, equally convenient as the former road or as near thereto as circumstances permit.
The question of the sufficiency of such substituted road shall, in case of dispute, be determined by the Governor in Council.
( 3) Width of substituted roads. 1896, s. 25. Notwithstanding anything contained in "The Undue Subdivision of Land Prevention Act of 1885," where a road of less width than sixty-six feet is interfered with, the substituted road need not be of greater but shall not (except in the case of a railway crossing over and above such road by means of a bridge or other structure as hereinbefore provided) be of less width than the road so interfered with.
( 4) Lanes along railway. In any case a road parallel and contiguous to any part of a line of railway may be lessened to not less than thirty-three feet in width, or may be made of a width of not less than thirty-three feet.
( 5) Approaches and fences to crossings. 1863, s. 93. If the railway crosses a road other than on the level, the Commissioner shall make convenient ascents and descents and other convenient approaches, with handrails or other fences and such gates or stiles as are necessary.
( 6) Alteration of levels of road. 1880, ss. 2, 5, 9, 11, 12. Where it is expedient to alter the levels of any road for the purpose of the construction of a railway, the Commissioner shall pay all reasonable expenses incurred in connection therewith, unless otherwise agreed upon.
The owner of any land prejudicially affected by such alteration of the level of any road within any city or town, the level of which has been fixed under the Local Authorities Acts, shall be entitled to compensation from the Commissioner, to be agreed on or, failing agreement, to be determined by the Court under this Part, for all damages sustained by him by reason of such alteration.
(7) Line to be kept in repair. The Commissioner shall maintain in good order and repair the railway on a road, and, if within a city or town, the surface of the roadway between the rails and for the space of eighteen inches outside each rail.
The character of the maintenance shall be in keeping with the road on which the railway has been constructed.
( 8) Repairs to drains. The Commissioner shall at once repair any damage occasioned to any sewer, drain, gas or water main, or works for supply of electricity <luring the construction or maintenance of any railway on a road.
As amended by Act of 1929, 20 Geo. 5 No. 20, s. 15.
Act referred to:
Undue Subdivision of Land Prevention Act of 1885; see now Local Government Act 1936-1971.
73. ( 1) Accommodation works. 1863, s. 94. The following provisions shall apply to works for the accommodation of the owners and occupiers of lands adjoining a railway:-
(2) The Commissioner shall make and at all times thereafter maintain the following works, that is to say,-
(i) Gates, bridges, etc. Such and so many convenient gates, bridges, arches, culverts, and passages over, under, or by the sides of or leading to or from the railway as are necessary for making good any interruptions caused by the railway to the use of the lands through which the railway is constructed;
Such works shall be made forthwith after the part of the railway passing over such lands has been laid out or formed or during the formation thereof;
(ii) Fences, etc. Sufficient posts, rails, hedges, ditches, mounds, or other fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass or the stock of the owners or occupiers thereof from straying thereout by reason of the railway, together with all necessary gates made to open towards such adjoining iands and not towards the railway, and all necessary stiles;
Such posts, rails, and other fences shall be made forth- with after the taking of any such lands if the owners thereof so require, and the said other works as soon as conveniently may be;
32 s. 73 RAILWAYS ACT 1914-1971
The obligation of the Commissioner under this paragraph with respect to any such fence shall be deemed to be dis- charged at all times during which such fence is equal in state and kind to the fence bounding the land adjoining the1 land taken for the use of the railway when such land was so taken;
(iii) Drains. Necessary arches, tunnels, culverts, drains, or other passages, either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the construction of the railway, or as nearly so as may be;
Such works shaH be made from time to time as the railway works proceed.
( 3) Proviso. But the Commissioner shall not be required to make such accommodation works in such a manner as would prevent or obstruct the working or using of the railway, nor to make any accommodation works with respect to which the owners and occupiers of the lands have agreed to receive and have been paid compensation in lieu of making them.
( 4) Difference as to accommodation works. 1863, s. 95. If any difference arises respecting any kind or number of any such accommoda- tion works or the dimensions or sufficiency thereof, or respecting the maintaining thereof, the same shall be determined by the Governor in Council, who shall also appoint the time within which such works shall be commenced and executed.
(5) Additional accommodation works. 1863, ss. 96, 97. Any owner or occupier of land affected by the railway, who considers the accommodation works made by the Commissioner, or directed by the Governor in Council, insufficient for the commodious use of such land, may at any time, at his own expense, make such further works for that purpose as he thinks necessary and as are agreed to by the Commissioner.
If the Commissioner so desires, all such last-mentioned accommoda- tion works shall be constructed under the superintendence of the engineer of the railway and according to plans and specifications to be submitted to and approved by the Commissioner.
Nevertheless, the Commissioner shall not be entitled to require either that plans should be adopted which would involve a greater expense than that incurred in the execution of similar works by the Commissioner, or that the plans selected should be executed in a more expensive manner than that adopted in similar cases by the Commissioner.
( 6) Owners to be allowed to cross until accommodation works are made. 1863, s. 98. Until the Commissioner has made the bridges or other proper communications which, under the provisions herein con- tained, he has been required to make between lands intersected by the railway, and no longer, the owners and occupiers of such lands and any other persons whose right-of-way is affected by the want of such communi- cation, and their respective servants, may at all times freely pass and repass with carriages and live stock directly (but not otherwise) across the part of the railway made in or through their respective lands solely for the purpose of occupying the same lands or for the exercise of such right-of-way, and so as not to obstruct the passage along the railway or to damage the same.
Nevertheless, if the owner or occupier of any such lands has, in his arrangements with the Commissioner, received or agreed to receive com- pensation for or on account of any such communications instead of the same being formed, such owner or occupier or those claiming under him shall not be entitled so to cross the railway.
(7) Omitting to fasten gates. 1863, s. 99. Any person who omits to shut and lock any gate set up at either side of the railway for the accommodation of the owners or occupiers of the adjoining lands, as soon as he and the vehicles and live stock (if any) under his care have passed through the same, shall be liable to a penalty not exceeding twenty dollars.
As amended by Act of 1946, 10 Geo. 6 No. 19, s. 16; Act of 1970, No. 39, s. 3 Sch.
74. Powers of Commissioner over lines in construction. 1888, s. 26.
Subject to this Act, the Commissioner, and in respect of each Division the General Manager concerned subject to the approval of the Commissioner, shall be the authority to decide on the position, character, and suitableness of all stations, station platforms, gate-houses, station· yards, sheds, piers, wharves, or jetties required for or in connection with any railway, or of any other building, siding, platform, or work for the accommodation of traffic.
As amended by Act of 1915, 6 Geo. 5 No. 28, s. 12; Act of 1923, 14 Geo.
5 No. 15, s. 14; Act of 1959, 8 Eliz. 2 No. 56, s. 22.
75. ( 1) Maintenance. 1888, s. 23. The Commissioner, and in respect of each Division the General Manager concerned shall maintain the rail- ways and all works in connection therewith in a state of efficiency, and work the same in such manner as will best conduce to the general public benefit.
(2) Inspection. The Commissioner, and in respect of each Division the General Manager concerned shall at all times cause to be made a careful inspection of the condition of the railways.
(3) Alteration and repair. Whenever it appears to ·the Commissioner that a partial reconstruction, duplication, or partial duplication or other addition to or extension of the roadway of any existing line or part thereof, or any bridge, viaduct, or other work, or that the laying of new rails or that any other repair or alteration of any line or work vested in him is necessary, he may construct and carry out such works by means of moneys from time to time appropriated by Parliament for the purpose.
( 4) Temporary roadways. During any reconstruction, repair, or alteration, the traffic may be conducted along temporary roadways, or otherwise, as the Commissioner deems best for the public interest and safety.
As amended by Act of 1915, 6 Geo. 5 No. 28, s. 13; Act of 1923, 14 Geo.
5 No. 15, s. 14; Act of 1959, 8 Eliz. 2 No. 56, s. 23.
75A. Closure of railway. ( 1) If the Governor in Council is satisfied that it is no longer necessary to continue maintaining a railway or part of a railway to meet the convenience and requirements of the public for the carriage of themselves and their goods the Governor in Council may authorise the Commissioner to cease maintaining that railway or part.
(2) Notwithstanding any other provision of this Act, the Com- missioner may cease to maintain any railway or part of a railway upon being thereunto authorised by the Governor in Council under this section and may-
( a) Dispose of the railway or part of a railway in question, or any portion thereof, or lift, take up, dismantle and remove the same or any portion thereof; and
34 s.75B RAILWAYS ACT 1914-1971
(b) Surrender to the Crown or sell or dispose otherwise of the land or any of the land appurtenant thereto.
(3) Upon being authorised under this section to cease maintaining a railway or part of a railway, the Commissioner may make arrangerhents with owners and occupiers of lands intersected by that railway or part, releasing the Commissioner from his obligations with respect to the maintenance thereafter of any bridge or other accommodation works to which section seventy-three of this Act applies, made in relation to those lands, or any of them, by the Commissioner pursuant to his obligations under this Act.
For enabling the Commissioner to make arrangements as aforesaid he may dispose of, to the owner of any of the intersected or adjoining lands in question, any of the land appurtenant to the rail~ay or part of a railway, or the Governor in Council may, :in the name of Her Majesty, grant in fee-simple or demise to any such owner any land so appurtenant which has been surrendered by the Commissioner to the Crown.
Such a demise may be upon such leasehold tenure under "The Land Acts, 1910 to 1955," as the Governor in Council deems appropriate in the circumstances.
If the Governor in Council is satisfied that an owner or occupier of land has refused or failed to make with the Commissioner arrange- ments as aforesaid upon just terms, the Governor in Council may release the Commissioner from the obligations in question upon such terms as the Governor in Council deems just.
(4) Upon the Commissioner being authorised under this section to cease maintaining a railway or part of a railway, the Commissioner shall no longer be subject to or incur any obligation or liability in respect of any bridge or other works whereby any road is carried across, over or under that railway or part:
Provided that the Local Authority for the Area in question (or, in the case of a road to which "The Main Roads Acts, 1920 to 1952,"
apply, the Commissioner for Main Roads) shall continue to be subject in respect of that bridge or works to the duties and responsibilities imposed on Local Authorities by law in respect of bridges and like works comprised in roads, save where the Commissioner shall have disposed of the railway or part of a railway in question to a person upon terms imposing upon that person obligations and liabilities with respect to the maintenance of that bridge or other works.
(5) This section applies so as not to prejudice the Commissioner in relation to railways and parts of railways which he ceased to maintain prior to the enactment of this section, it being hereby declared that the Commissioner is and always was authorised and empowered to cease to maintain those railways and parts of railways.
On and from the date of the enactment of this section, subsections two, three and four hereof shall apply to railways and parts of railways hereinbefore mentioned in this subsection as if the Commissioner had ceased to maintain them with the authority of the Governor in Council after the enactment of this section.
Inserted by Act of 1955 (No. 2), 4 Eliz. 2 No. 31, s. 6.
Acts referred to:
Land Acts, 1910 to 1955; see now Land Act 1962-1971.
Main Roads Acts, 1920 to 1968.
75B. Agreement for extension of certain roads through or over lands of Commissioner. ( 1) The Commissioner may, with the approval of the Governor in Council and subject to such terms, provisions and
conditions as the Governor in Council deems fit, grant to Brisbane City Council, the corporation constituted by the City of Brisbane Act 1924- 1969, permission-
(a) to construct, use, maintain, continue, repair, renew and operate a roadway as an extension of Turbot Street in the City of Brisbane from Edward Street to Wickham Terrace by means of a viaduct structure; and
(b) to construct, use, maintain, continue, repair, renew and operate a road and new over-bridge from Ann Street to Wickham Terrace,
over and across certain lands of the Commissioner in the City of Brisbane (being the lands more particularly described in Schedule A to this section) in the location delineated by broken lines and shown on the plan contained in Schedule B to this section which works together with all works associated therewith are hereinafter in this section referred to as the "said works".
(2) Brisbane City Council thereunto permitted under subsection ( 1) of this section may under, subject to and in compliance in every respect with the terms, provisions and conditions of the grant of permission construct and thereafter at all times during the continuance in force of the grant of permission use, maintain, continue, repair, renew and operate the said works over and across the lands specified in Schedule A to this section in the location specified in the grant of permission.
( 3) The said works, upon the completion of the construction thereof by Brisbane City Council in accordance with the terms, provisions and conditions of the permission granted under subsection ( 1) of this section, shall be used for the passing and repassing of vehicles as defined by subsection (1 ) of section 9 of the Traffic Act 1949-1969 and pedestrians and for no other purposes.
( 4) If at any time Brisbane City Council discontinues the use of the said works or any part of them for the purposes specified in subsection (3) of this section then, as against the Commissioner, dedication by the Commissioner of any of the lands over and across which the said works are or were constructed for use as a road shall not be presumed by reason only of continued user for whatever period of the said works by the public for the purposes specified in that subsection or any of those purposes.
(5) The grant of permission under subsection (I) of this section shall not derogate from the right of the Commissioner to use the lands specified in Schedule A to this section and the air-space above those lands (including the air-space above the works) other than-
(a) those parts of the lands upon which rest any piers or abutments of the viaduct structure or overbridge or any roadway of the said works;
(b) the air-space occupied by any of the said works; and (c) the air-space over and above the said works to a height of
eighteen feet above the nearest surface of the roadway thereof, for any purpose for which the Commissioner might have used those lands and air-space if such permission had not been granted.
( 6) The Commissioner and any officer or employee of the Com- missioner shall not be subject to any duty, obligation, liability or responsibility whatsoever in respect of the said works or the use and