Division 3 Rail services, access and infrastructure obligations

88J   Obligation to maintain linear continuity of rail services

(1)  It is the duty of ARTC to maintain the linear continuity of railway lines affected by, or subject to, an ARTC arrangement between ARTC and a rail authority.

(2)  This section does not extend to closures of rail lines in emergencies, for normal, routine maintenance or repairs or for the construction of works authorised or otherwise provided for by an ARTC arrangement.

88K   Rail access obligations and functions

(1)  ARTC is to provide persons with access under any current NSW rail access undertaking to any part of the NSW rail network for which it is a rail infrastructure owner.

Note. ARTC’s rail access obligations are also set out in section 99C and Schedule 6AA.

(2)  A rail authority may authorise ARTC to act as the agent of the rail authority or to provide other services to the rail authority for the purpose of selling access to parts of the NSW rail network.

(3)  For the purposes of section 24A of the Independent Pricing and Regulatory Tribunal Act 1992, ARTC is, in respect of rail infrastructure facilities subject to an ARTC lease or licence, taken to be a government agency that provides services by means of rail infrastructure facilities.

Note. The effect of this provision is that disputes relating to rail infrastructure access involving ARTC may be referred to arbitration.

88L   Network control

(1)  An ARTC arrangement may make provision for or with respect to the conferral on ARTC of responsibility for network control with respect to any part of the NSW rail network for which ARTC is a rail infrastructure owner.

(2)  ARTC is responsible for network control with respect to any such part of the NSW rail network while that responsibility is conferred on ARTC under the ARTC arrangement.

(3)  In exercising its responsibility for network control, ARTC must:

(a)  give reasonable priority to passenger services, and

(b)  subject to giving priority to those services, promote and facilitate access to the part of the NSW rail network for which it is responsible in accordance with the current NSW rail access undertaking.

(4)  If responsibility for network control is not conferred on ARTC with respect to a part of the NSW rail network for which ARTC is a rail infrastructure owner, the rail authority in whom that part is vested or who owns it is, for the purposes of section 99D, taken to be the rail infrastructure owner for that part and that section applies accordingly.

Note. Under section 99D, the rail infrastructure owner has responsibility for network control, so that subsection (4) has the effect of conferring that responsibility on a rail authority if there is no conferral of it on ARTC under this section.

(5)  In this section:

network control with respect to any part of the NSW rail network has the same meaning as it has in section 99D.

88M   Restrictions on dealings with land and rail infrastructure facilities and other rights

(1)  ARTC must not sell or otherwise deal with land or rail infrastructure facilities subject to an ARTC lease or licence, or installed or established by ARTC in or on the NSW rail network for the purposes of an ARTC arrangement, in a way that affects, or is likely to affect, the linear continuity of railway lines affected by, or subject to, an ARTC arrangement.

(2)  ARTC must not assign (other than by granting a security interest), or grant a mortgage over, all or any of its rights under an ARTC arrangement.

(3)  ARTC may grant a security interest over all or any of its rights under an ARTC arrangement, but only if the granting of that interest complies with the following:

(a)  it does not affect, or is not likely to affect, the linear continuity of railway lines affected by, or subject to, an ARTC arrangement,

(b)  it does not materially interfere with or restrict, or is not likely to materially interfere with or restrict, the carrying out of rail operations by ARTC in accordance with an ARTC arrangement,

(c)  it does not permit or potentially permit the assignment or other disposition of ARTC’s obligations or rights under an ARTC arrangement by the holder of the security interest,

(d)  it does not permit or potentially permit the exercise of a power of sale or foreclosure in respect of any land or rail infrastructure facilities subject to, or assets or rights under, an ARTC arrangement.

(4)  A transaction entered into by ARTC is, to the extent that it contravenes this section, void.

(5)  In this section, a reference to ARTC includes a reference to a successor of ARTC.

(6)  This section does not apply to or in respect of any thing permitted to be sold to ARTC under section 88E.

(7)  In this section:

security interest means any pledge, lien, charge or preferential interest or arrangement, but does not include a mortgage.

88N   Obligations and rights under Rail Safety Act 2008

(1)  This section applies to railway operations within the meaning of the Rail Safety Act 2008 that are carried out by ARTC instead of a rail authority under a lease entered into under this Part.

(2)  To avoid doubt, ARTC is the operator responsible for any such operation for the purposes of that Act.

(3)  The rail authority is not required to be accredited under that Act:

(a)  in respect of any such railway operation, or

(b)  merely because it is the owner of rail infrastructure facilities, being facilities subject to an ARTC lease or licence.

(4)  Nothing in this section affects the obligation of the rail authority to be accredited under that Act for a rail operation it carries out.

88O   Obligations and rights under Protection of the Environment Operations Act 1997

(1)  This section applies to railway systems activities referred to in Schedule 1 to the Protection of the Environment Operations Act 1997 that are carried out separately by ARTC and a rail authority in or on land that is subject to an ARTC lease or licence or is adjacent to any such land.

(2)  For the purposes of that Act, both the rail authority and ARTC are taken to be occupiers of the land concerned and are each required to hold a licence under that Act authorising the railway systems activity carried out by each of them on the land.

88P   Obligations and rights under Heritage Act 1977

(1)  This section applies to land or rail infrastructure facilities subject to an ARTC lease or licence between ARTC and a rail authority.

(2)  For the purposes of the Heritage Act 1977 and any instrument under that Act, ARTC is taken to be the owner of the land or rail infrastructure facilities instead of the rail authority and that Act applies accordingly.

(3)  For the purposes of sections 170 and 170A of the Heritage Act 1977, ARTC has, in relation to land or rail infrastructure facilities, the functions of a government instrumentality.

88Q   Obligations and rights under Threatened Species Conservation Act 1995

(1)  This section applies to land or rail infrastructure facilities subject to an ARTC lease or licence.

(2)  ARTC is to be treated as the public authority having responsibility for the land or rail infrastructure facilities for the purposes of the conferral of, and implementation of, responsibilities under or relating to a recovery plan or threat abatement plan under the Threatened Species Conservation Act 1995.

88R   Obligations relating to activities under Environmental Planning and Assessment Act 1979

(1)  This section applies if ARTC is prescribed under the Environmental Planning and Assessment Act 1979 as a public authority for the purposes of Part 5 of that Act in relation to activities for the purposes of rail infrastructure facilities with respect to land subject to an ARTC lease or licence or land owned by ARTC.

(2)  In addition to any requirements applicable under that Part, regulations may be made under the Environmental Planning and Assessment Act 1979 for or with respect to the following matters:

(a)  additional circumstances in which an environmental impact statement may be required to be prepared under that Part in respect of an activity,

(b)  requirements for public consultation in respect of activities for which an environmental impact statement is not required to be prepared under that Part,

(c)  matters to be considered, and documentation relating to any such consideration, for the purposes of that Part,

(d)  availability to the public of documents relating to any consideration of an activity for the purposes of that Part.