Division 2 Bridges and tunnels across navigable waters

78   Roads authorities may construct bridges and tunnels

(1)  A roads authority may construct bridges and tunnels across navigable waters.

(2)  A bridge or tunnel that is constructed across navigable waters is taken to be a lawful obstruction of those waters.

(3)  Subsection (2) does not limit any person’s right of action with respect to loss or damage arising from the construction of the bridge or tunnel, but any such right of action is subject to the other provisions of this Division.

79   Notice of proposal to be given

(1)  Before constructing a bridge or tunnel across navigable waters, the roads authority may cause notice of the proposal to be published in a local newspaper.

(2)  The notice:

(a)  must indicate the place at which, and the times during which, a plan of the proposed construction is available for inspection by members of the public, and

(b)  must state that any person is entitled to make submissions to the roads authority with respect to the proposal, and

(c)  must indicate the manner in which, and the period (being at least 28 days) within which, any such submission should be made.

(3)  The roads authority must ensure that copies of the proposal are available for inspection by members of the public at the place, and during the times, specified in the notice.

80   Public submissions

(1)  Any person may make submissions to the roads authority with respect to the proposal.

(2)  In particular, any person may object to the proposed construction of the bridge or tunnel across navigable waters on the ground that the person would suffer special damage, as specified in the objection, if the bridge or tunnel were constructed, being damage arising from the restriction of public rights of navigation of those waters.

81   Decision on proposal

(1)  After considering any submissions that have been duly made with respect to the proposal, the roads authority must decide whether or not to construct the bridge or tunnel.

(2)  If the roads authority decides to construct the bridge or tunnel, the roads authority must give notice of its decision to each person who has objected to the proposal.

82   Limitation on right to seek injunction

Proceedings for the purpose of restraining the construction of the bridge or tunnel, whether by means of a declaration or injunction or otherwise:

(a)  may not be taken in any court unless the person by or on whose behalf the proceedings are taken has duly objected to the construction of the bridge or tunnel, and

(b)  may not in any case be taken later than 28 days after the date on which the person was notified of the decision to construct the bridge or tunnel, and

(c)  may be taken only on a ground specified in the objection.

83   Mitigating factors in proceedings for damages arising from construction of bridge

In proceedings for damages claimed because of the adverse effects of a bridge on public rights of navigation, the court is required to take the following matters into account by way of mitigation:

(a)  whether it is reasonably practicable for vessels under construction, or likely to be constructed, to be so designed or re-designed that any part of the vessel likely to prevent its passage past the bridge may be lowered or otherwise altered in order to allow passage,

(b)  any refusal by the claimant to remove a boat-building business conducted by the claimant to an alternative site provided by the appropriate roads authority,

(c)  the age, condition and future useful life of buildings and equipment used for the purposes of such a business,

(d)  any benefits that might accrue from a removal of such a business.

84   No right of action in relation to bridges and tunnels constructed before 21.5.1986

(cf sec 26 (7) of Act No 85, 1986)

A bridge across navigable waters whose construction was commenced or completed before 21 May 1986 (the date of commencement of the State Roads Act 1986) is taken not to be a public nuisance merely because of its effect on public rights of navigation of those waters.