Part 6 Provisions applicable to every case where land is taken or acquired under this Act
In this Part of this Act, unless the context or subject-matter otherwise indicates or requires:Public work means any work to which this Act applies, and includes authorised work.
50A–79(Repealed)
Division 6 Powers and duties of Constructing Authority
80 Powers of Constructing Authority
For the carrying out of any public work the Constructing Authority and all persons acting under the Constructing Authority:(a) may enter into and upon the lands and grounds of any person whomsoever, and survey and take levels of the same, and ascertain and stake or set out, take and appropriate, for the purposes herein mentioned, such parts thereof as may be necessary and proper for the laying out, making and using any public work, and all other works, matters, and conveniences connected therewith,(b) may in or upon such lands, or any lands adjoining or contiguous thereto, bore, dig, cut, trench, embank and sough, remove or lay, take, carry away and use any earth, stone, timber, gravel, or sand, or any other materials or things dug, raised, or obtained therein, in constructing such public work and other works, out of any lands contiguous or adjoining thereto, and which may be proper or necessary for making, maintaining, altering, repairing, or using any such public work, or which may hinder, prevent, or obstruct the constructing, reconstructing, making, maintaining, altering, repairing, adding to, extending, or using the same respectively,(c) may make or construct in, upon, across, under, or over any lands, streets, roads, rivers, streams, or other waters, within the lands described in the plans or mentioned in the books of reference of any public work, or any correction thereof, such temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passages, conduits, drains, piers, arches, cuttings, fences, as are considered necessary,(d) may alter the course of any rivers (not navigable), streams or watercourses for the purpose of constructing and maintaining tunnels, bridges, passages, or other works over or under the same, or for any other necessary purpose; and also may divert or alter, as well temporarily as permanently, the course of any such rivers or streams of water, streets, roads, or ways, or raise or sink the level of any such rivers or streams, streets, roads or ways, in order the more conveniently to carry the same over, or under, or by the side of, any such public work, as may be thought proper,(e) may make drains or conduits into, through, or under any lands adjoining any public work, for the purpose of conveying water from or to the same,(f) may in or upon any such public work or any lands adjoining or near thereto, erect and construct such houses, warehouses, offices, and other buildings, yards, stations, wharves, engines, machinery, apparatus, and other works and conveniences as shall be thought requisite,(g) may alter, or repair, or discontinue the before-mentioned works or any of them and substitute others in their stead,(h) where any public work is constructed in or passes through any wood-lands or forest, may fell or remove any trees standing thereon, within the distance of 46 metres from either or every side of such work,(i) and generally may do all other acts necessary for constructing, reconstructing, making, maintaining, altering, repairing, adding to, extending, and using such public work.
82 Power to take temporary possession of land
(1) The Constructing Authority and all persons authorised by the Constructing Authority may enter, from time to time, upon any lands:(a) being within a distance of not more than 200 metres from the nearest boundary of the public work, as delineated on the plans thereof, and(b) not being a garden, orchard, or plantation attached or belonging to a house, nor a park, planted walk, avenue, or ground ornamentally planted, and(c) not being nearer to the dwelling-house of the owner of any such lands than a distance of 500 metres,and may occupy the said lands, as long as may be necessary for the construction, reconstruction, repair, alteration, addition, to, or extension of the public works or the works connected therewith, and may use the same for any of the following purposes (that is to say):(d) for the purpose of taking earth or soil by side cuttings therefrom,(e) for the purpose of depositing soil thereon,(f) for the purpose of obtaining materials therefrom for the construction, reconstruction, repair, alteration, addition to or extension of the public work or such other works as aforesaid,(g) for the purpose of forming roads thereon to, or from, or by the side of the public work.(2) In exercise of the powers aforesaid the Constructing Authority and all such persons may deposit, and also manufacture and work upon such lands materials of every kind used in constructing the public work, and also may take from any such lands any timber, and also dig and take from or out thereof any clay, stone, gravel, sand, or other things found therein, useful or proper for constructing the said work or any such roads as aforesaid, and for the purposes aforesaid may erect thereon workshops, sheds, and other buildings of a temporary nature.(3) Nothing in this Act contained shall exempt the Constructing Authority from any action for nuisance or other injury, if any, done in the exercise of the powers hereinbefore given, to the lands or habitations of any party other than the party whose lands shall be so taken or used for any of the purposes aforesaid.(4) Provided that no stone or slate quarry, brickfield, or other like place which, at the time of the passing of this Act is commonly worked or used for getting materials therefrom for the purpose of selling or disposing of the same, shall be taken or used by the Constructing Authority, either wholly or in part, for any of the purposes lastly hereinbefore mentioned.
83 Authority to separate the lands before using them
If any such lands are used for any of the purposes aforesaid, the Constructing Authority shall, if required so to do by the owner or occupier thereof, separate the same by a sufficient fence from the lands adjoining thereto with such gates as may be necessary for the convenient occupation of such lands; and, in case of any difference between the owners or occupiers of such lands and the Constructing Authority as to the necessity for such fences and gates, then with such fences and gates as the Governor deems necessary for the purposes aforesaid.
84 Compensation to be made for temporary occupation
In any of the cases aforesaid, where the Constructing Authority takes temporary possession of lands by virtue of the powers herein granted, the Constructing Authority shall:(a) within one month after the Constructing Authority’s entry upon such lands, upon being required to do so, pay to the occupier of the said lands the value of any crop or dressing that may be thereon, as well as full compensation for any other damage of a temporary nature which the occupier may sustain by reason of the Constructing Authority so taking possession of the occupier’s lands,(b) during such occupation of the said lands, pay half-yearly or quarterly to such occupier or the owner of the lands, as the case may require, a rent, to be agreed upon by the parties, or, if they cannot agree, to be fixed by the Local Court,(c) within six months after the Constructing Authority has ceased to occupy the said lands, pay to such owner and occupier or pay into Court as prescribed by rules of Court, for the benefit of all parties interested, as the case may require, compensation for all permanent or other loss, damage or injury that may have been sustained by them, by reason of the exercise as regards the said lands of the powers herein granted, including the full value of all such clay, stone, gravel, sand, and other things taken from such land.
(1) A person who wishes to claim compensation under this Division must lodge a claim for compensation with the Constructing Authority.(2) The Constructing Authority may accept the claim for compensation (in whole or in part) or reject the claim.(3) A claim for compensation is taken to have been rejected if the Constructing Authority has not dealt with the claim within 60 days after receiving the claim or within 60 days after completion of the public work concerned (whichever is the later). However, the Constructing Authority is not precluded from accepting the claim after that time.
If the public work crosses any public highway or carriage road, then such work shall not be carried across, over or under such road, unless the proposed place and mode of such crossing and the immediate approaches thereto, and all other necessary works connected therewith, and the provisions to be adopted for the protection of the public using the same have been previously notified, and have been approved of by the Governor.
87 Before roads interfered with, others to be substituted
If, in the exercise of the powers hereby granted, it is found necessary to cross, cut through, raise, sink, or use any part of any road, whether carriage road, horse road, tram road or railway, either public or private, so as to render it impassable for, or dangerous, or extraordinarily inconvenient to passengers or carriages or to the persons entitled to the use thereof, the Constructing Authority shall, before the commencement of any such operations, cause a sufficient road to be made instead of the road to be interfered with, and shall at the public expense maintain such substituted road in a state as convenient for passengers and carriages as the road so interfered with or as nearly so as may be.
88 Remedy for damage from interruption of road
If any party entitled to a right of way over any road so interfered with by the Constructing Authority suffers any special damage because the Constructing Authority fails to cause another sufficient road to be made before it interferes with the existing road, such party may recover the amount of such special damage from the Constructing Authority in the Supreme Court.
89 Restoration of roads interfered with
(1) If the road so interfered with can be restored compatibly with the formation and use of the public work, the same shall, with all reasonable expedition, be restored to as good a condition as it was in at the time when it was first interfered with by the Constructing Authority or as near thereto as may be.(2) If such a road cannot be restored compatibly with the formation and use of the public work, the Constructing Authority shall cause the new or substituted road or some other sufficient substituted road to be, with all reasonable expedition, put into a permanently substantial condition, equally convenient as the former road or as near thereto as circumstances will allow.
If the public work crosses any highway (other than a public carriage-way) on the level, the Constructing Authority shall make and at all times maintain convenient ascents and descents and other convenient approaches with hand-rails or other fences; and shall, if such highway is a bridle-way, erect and at all times maintain good and sufficient gates, and if the same is a footway, good and sufficient gates or stiles on each side of the said work where the highway communicates therewith.
The Constructing Authority shall make, and at all times maintain, the following works (hereinafter called accommodation works), for the accommodation of the owners and occupiers of lands adjoining any public work, that is to say:(a) such and so many convenient gates, bridges, arches, culverts, and passages over, under or by the sides of or leading to or from the public work as are necessary for the purpose of making good any interruptions caused by the public work to the use of the land through, in, or upon which such public work is made or constructed; and such work shall be made forthwith after such public work or part of it passing over such lands has been laid out or formed or during the formation thereof,(b) sufficient posts, rails, hedges, ditches, mounds, or other fences for separating the land, taken for or for the use of the public work, from the adjoining lands not taken and protecting such lands from trespass, or the cattle of the owners of occupiers thereof from straying thereout, in consequence of such public work; together with all necessary gates made to open towards such adjoining lands and not towards the public work. All necessary stiles, and such posts, rails, and other fences shall be made forthwith after the taking of any such lands, if the owners thereof so require, and such other works as soon as conveniently may be,(c) all necessary arches, tunnels, culverts, drains, or other passages either over or under, or by the sides of the public work, of such dimensions as will be sufficient, at all times, to convey the water as clearly from the lands lying near or affected by such public work as before the making of the public work or as nearly so as may be; and such works shall be made from time to time as the public work proceeds.Provided that the Constructing Authority shall not be required to make such accommodation works in such a manner as would prevent or obstruct the working or using of the public work; 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 instead of the making them.
91A Fences—transferred railway provisions
(1) Bungendore to Captain’s Flat Railway Act 1930
Notwithstanding the provisions of section 91, the Constructing Authority shall not be compelled, nor shall it be the duty of the said Authority, to make or maintain any fence along the line of railway described in the Schedule to the Bungendore to Captain’s Flat Railway Act 1930 (as in force immediately before its repeal) for the accommodation of any person or for any purpose whatsoever; but the said Authority may, in its discretion, make and maintain such fences in connection with the said line of railway as it may think fit.(2) Coonabarabran to Burren Junction Railway Act 1913
Notwithstanding the provisions of section 91, the Constructing Authority shall not be compelled, nor shall it be the duty of the said authority to make or maintain any fence along the line of railway described in the Schedule to the Coonabarabran to Burren Junction Railway Act 1913 (as in force immediately before its repeal) for the accommodation of any person or for any purpose whatsoever; but the said Authority may, in his discretion, make and maintain such fences in connection with the said line of railway as he may think fit.(2A) Government Railways (Fencing) Act 1902
Notwithstanding the provisions of section 91, the Constructing Authority shall not in respect of any of the lines of railway mentioned in the Second Schedule to the Government Railways (Fencing) Act 1902 (as in force immediately before its repeal) be required or compelled, nor shall it be the duty of the said Authority, to make or maintain any fence along the said lines of railway for the accommodation of any person or for any purpose whatsoever; but the said Authority may, in its discretion, make and maintain such fences in connection with the said lines of railway as it may think fit.Note. The railway lines concerned are Nyngan to Cobar, Narrabri to Moree, Jerilderie to Berrigan, Parkes to Condobolin, Nevertire to Warren, Berrigan to Finley, Tamworth to Manilla, Moree to Inverell, Dubbo to Coonamble, Goulburn to Crookwell, The Rock to Green’s Gunyah, Koorawatha to Grenfell, Byrock to Brewarrina, Gundagai to Tumut, Narrabri to Walgett, Culcairn to Germanton, Temora to Wyalong and Manilla to Barraba.(3) Newcastle Islands Development Scheme Railway Act 1966
Notwithstanding the provisions of section 91, the Commissioner for Railways as constructing authority shall not be compelled nor shall it be the duty of the Commissioner for Railways as constructing authority to make or maintain, for the accommodation of any person or for any purpose whatsoever, any fence along that portion of the work described in the Schedule to the Newcastle Islands Development Scheme Railway Act 1966 (as in force immediately before its repeal) extending from the northern bank of the South Channel of the Hunter River to the point adjacent to wharves to be constructed at Rotten Row; but the Commissioner for Railways may, in the Commissioner’s discretion, make and maintain such fences in connection with that portion of the said work as the Commissioner may think fit.(4) Sandy Hollow, via Gulgong, to Maryvale Railway Act 1927
Notwithstanding the provisions of section 91, the Constructing Authority shall not be compelled, nor shall it be the duty of the said Authority, to make or maintain any fence along the line of railway described in the Schedule to the Sandy Hollow, via Gulgong, to Maryvale Railway Act 1927 (as in force immediately before its repeal) for the accommodation of any person or for any purpose whatsoever; but the said Authority may, in its discretion, make and maintain such fences in connection with the said line of railway as it may think fit.(5) Whittingham to Mount Thorley Railway Act 1975
Notwithstanding the exclusion by subsection (3) of the Whittingham to Mount Thorley Railway Act 1975 (as in force immediately before its repeal) of the provisions of section 91 (b) to and in respect of the scheduled work (within the meaning of that Act as in force immediately before its repeal), the Commission may in its discretion make and maintain such fences in connection with that scheduled work as it thinks fit.(6) Wyalong towards Condobolin Railway Act 1923
Notwithstanding the provisions of section 91, the Constructing Authority shall not be compelled, nor shall it be the duty of the said Authority to make or maintain any fence along the line of railway described in the Schedule to the Wyalong towards Condobolin Railway Act 1923 (as in force immediately before its repeal) for the accommodation of any person or for any purpose whatsoever; but the said Authority may, in its discretion, make and maintain such fences in connection with the said line of railway as it may think fit.(7) Subsections (1)–(6), respectively, re-enact (with minor modifications) the following provisions and are transferred provisions to which section 30A of the Interpretation Act 1987 applies:(a) section 6 of the Bungendore to Captain’s Flat Railway Act 1930,(b) section 6 of the Coonabarabran to Burren Junction Railway Act 1913,(b1) section 4 of the Government Railways (Fencing) Act 1902,(c) section 8 of the Newcastle Islands Development Scheme Railway Act 1966,(d) section 6 of the Sandy Hollow, via Gulgong, to Maryvale Railway Act 1927,(e) section 5 (4) of the Whittingham to Mount Thorley Railway Act 1975,(f) section 6 of the Wyalong towards Condobolin Railway Act 1923.
92 Differences as to accommodation works to be settled by Governor
If any difference arises respecting the kind or number of any accommodation works or the dimensions or sufficiency thereof or respecting the maintaining thereof, the same shall be determined by the Governor, who shall also appoint the time within which such works shall be commenced and executed.
93 Power to owners of lands to make additional accommodation works
If any owner or occupier of lands affected by such public work considers the accommodation works made by the Constructing Authority or directed by the Governor to be made by the Constructing Authority insufficient for the commodious use of his or her lands, such owner or occupier, at any time, at his or her own expense, may make such further works for that purpose as he or she thinks necessary, and as are agreed to by the Constructing Authority.
94 Such works to be constructed under the superintendence of the Constructing Authority’s engineer
If the Constructing Authority so desires, all such last-mentioned accommodation works shall be constructed under the superintendence of the engineer or other officer superintending the making or construction of any public work, and according to plans and specifications to be submitted to and approved by the Constructing Authority.Provided that the Constructing Authority 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 Constructing Authority, or that the plans selected should be executed in a more expensive manner than that adopted in similar cases by the Constructing Authority.
95 Owners to be allowed to cross until accommodation works are made
Until the Constructing Authority has made the bridges or other proper communications which, under the provisions herein contained, it is required to make between lands intersected by the public work, and no longer, the owners and occupiers of such lands and any other person whose right-of-way is affected by the want of such communication, and their respective servants may, at all times, freely pass and repass with carriages, horses, and other animals directly (but not otherwise) across the part of the public work constructed or made through, in, or upon 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 such public work or to damage the same.Provided that if the owner or occupier of any such lands has, in his or her arrangements with the Constructing Authority, received or agreed to receive compensation for or on account of any such communications instead of the same being formed, such owner or occupier or those claiming under the owner or occupier shall not be entitled so to cross the public work.
In the exercise of the powers granted by this Act, the Constructing Authority and all other persons shall do as little damage as possible; and, if required, full satisfaction shall be made in manner herein provided, to all persons interested in any lands or hereditaments which are used, injured, or prejudicially affected, for all damages sustained by them by reason of the exercise of such powers.
97 Houses not to be damaged without notice
(1) Nothing in this Act contained shall empower the Constructing Authority or any person, in the exercise of the powers granted by this Act to injure, or damage any messuage, dwelling-house, or other permanent building, or the immediate appurtenances thereof, without the consent in writing of the owner and occupier thereof respectively, until after the expiration of three months from the time the Constructing Authority has given notice to such owner that the same is required under this Act.(2) This section does not apply to anything done after land has been acquired by the Constructing Authority.
98 Sale or lease of lands not wanted for any work
(1) The Constructing Authority may, with the approval of the Governor, sell or lease, in such manner, upon such terms and conditions and subject to such easements, covenants, provisions, exceptions and reservations as the Constructing Authority may deem expedient, any lands acquired under the provisions of this Act either before or after the commencement of the Public Works (Amendment) Act 1961 and which are not required for the purposes of any work for which they were acquired.(2) All moneys received by the Constructing Authority pursuant to any sale or lease made under subsection one of this section shall be applied in such manner as the Governor directs.
99 Lands to be conveyed to the purchasers
(1) Upon payment or tender to the Constructing Authority of the purchase money in respect of any sale under subsection one of the last preceding section, the Constructing Authority shall convey the lands, for and on behalf of the Crown to the purchasers thereof, by deed duly registered.(2) A deed so executed and registered shall be effectual to vest the lands comprised therein in the said purchaser for the estate so purchased by the purchaser.
A receipt under the hand and seal of the Constructing Authority shall be a sufficient discharge to the purchaser of any such lands for the purchase money in such receipt expressed to be received.