1. On 20 December 2024, APCO Service Stations Pty Ltd (applicant) lodged an application for the determination of a disputed claim under s 80 of the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act).
2. The details of the disputed claim on the application form are as follows:

1. In circumstances where no compensation is offered, the applicant is to provide the reasons why this has occurred. The applicant provided the following explanation:

No offer has been received as Major Road Projects claims that the project authority did not exercise any powers under the Major Transport Projects Facilitation Act 2009 (Vic) to temporarily divert traffic. Further, no powers under the Road Management Act 2004 (Vic) which would give rise to an entitlement for compensation pursuant to section 127 of the RM Act were exercised for the purposes of the temporary diversion of traffic. Further, access to the premises was not denied during the diversion.[2]

2. The reasons for the application are as follows:

On or about 9 January 2024, the Project Authority exercised its power under section 186D(1)(c) of the Major Transport Projects Facilitation Act 2009 (Vic) (MTPF Act) (or an alternative section of the MTPF Act or the Road Management Act 204 (Vic) (RM Act)) to temporarily divert traffic from the intersection at Hall Road and Narre Warren Road and Thompsons Road to a temporary roadway or a temporarily deviated road, and the effect of the exercise of that power was that access to the premises was denied until the temporary diversion concluded on 13 February 2023. As a direct result of the denial of access to the premises, APCO Service Stations Pty Ltd (APCO) made significantly less shop sales and fuel sales at the premises, resulting in a loss of profit comprising the profit it would have made but for the denial of access to the premises. APCO claims that it is entitled to compensation in accordance with 127 of the RM Act.[3]

3. On 15 January 2025, the Tribunal made orders (amongst other things) for the filing of written submissions as to whether or not that party considers the Tribunal has jurisdiction to consider the application made by the applicant pursuant to s 191A of the MTPF Act or s 127 of the Road Management Act 2004 (Vic) (RM Act) by 14 February 2025; and submissions in reply by 28 February 2025.
4. The applicant and the authority, Secretary to the Department of Transport and Planning (respondent) both filed submissions on 14 February 2025 and submissions in reply on 27 February 2025 and 28 February 2025, respectively.
5. The proceeding was listed to be heard on the papers on 14 March 2025, as neither party objected to the question of jurisdiction being determined on the papers. However, the Tribunal did not make a determination on that date as it determined that procedural orders were required. On 24 March 2025 the Tribunal made the following orders (24 March 2025 Orders):

1. On 4 April 2025, the applicant provided a response to order 1.
2. On 11 April 2025, the respondent filed submissions in reply.
3. On 2 May 2025, the applicant sent an email stating that it did not intend to file any evidence in accordance with order 3.[4] No evidence was received from the respondent.
4. The applicant filed final submissions on 24 June 2025, dated 30 May 2025.[5] No final submissions have been received from the respondent.
5. The Tribunal received no response to order 6, objecting to the question of jurisdiction being determined on the papers.[6]

1. The relevant legislation is:
   • 23.1. Road Management Act 2004 (Vic) (RM Act).
   • 23.2. Major Transport Projects Facilitation Act 2009 (Vic) (MTPF Act).
   • 23.3. Land Acquisition and Compensation Act 1986 (Vic) (LAC Act).
   • 23.4. Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

Section 127 - Compensation payable by a road authority in certain circumstances

(1) This section applies in addition to any other provision of this Act relating to compensation payable by a road authority if the effect of the construction of a freeway or a decision under clause 2 of Schedule 2 is that existing access to any land is denied.

_(2) Compensation is not payable under this section if - _

a) there is adequate existing alternative access to the land; or

b) the road authority provides, or agrees to provide, adequate alternative access to the land; or

c) if a policy was in force under clause 3 of Schedule 2 before a proposed development of the land had commenced and the need for access which has been denied relates to the proposed development; or

d) the road authority has instituted compulsory acquisition procedures under the Land Acquisition and Compensation Act 1986; or

e) a claim for compensation is not served on the road authority within one year of the completion of the construction or the making of the decision.

(3) For the purposes of determining whether alternative access to the land is adequate, no regard is to be had as to which stream of traffic has access to the land.

(4) Compensation is to be determined on the basis of the diminution in the value of the land to which access is denied as a direct result of the loss of access to that land.

(5) Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary modifications, apply to the determination of compensation under this section as if the claim were a claim under section 37 of that Act.

1. The most relevant substantive provisions of the MTPF Act are:

Section 186D Other powers relating to the management of roads and traffic

_(1) A project authority may, for the purposes of an approved project or any purpose connected with an approved project, do any one or more of the following - _

a) provide for temporary roadways on relevant land;

b) temporarily deviate a road over relevant land;

c) temporarily divert traffic onto a temporary roadway or a temporarily deviated road;

d) close a road to traffic;

e) open a road to traffic.

_(2) In this section - _

_"relevant land" means - _

a) project land; or

b) land owned by the project authority; or

c) land temporarily occupied by a project authority under this Part; or

...

d) land occupied and used under section 167; or

e) land within a road reserve (within the meaning of the Road Management Act 2004); or

_f) land owned by a person other than the project authority - _

1. that is under the management or control of the project authority; and
2. in relation to which the project authority has obtained the written consent of that person to use that land as a temporary road.

[Emphasis added to identify the provision relied upon]

Section 186E - Notification of exercise of road powers relating to temporary deviations

_(1) A project authority must publish in the Government Gazette notice of the doing of either or both of the following under section 186D by the project authority - _

a) the temporary deviation of a road;

b) the temporary diversion of traffic onto a temporary roadway or a temporarily deviated road.

_(2) A notice under subsection (1) must specify the date on which, as the case requires - _

a) the temporary deviation of the road commences; or

b) the temporary diversion of traffic onto a temporary roadway or a temporarily deviated road commences.

(3) The date specified under a notice under subsection (1) must not be earlier than the date on which the notice is published in the Government Gazette.

Section 191A - Compensation for temporary diversions or deviations of road that deny access

(1) Subject to subsection (2), a project authority is liable to pay compensation in accordance with this section to a person who has interest in land who sustains a pecuniary loss or incurs an expense as a direct, natural and reasonable consequence of the exercise of a power under section 186D(1)(b) or (c) if the effect of the exercise of that power is that access to that land is denied.

Section 186D(1)(b) provides for the temporary deviation of a road. Section 186D(1)(c) provides for the temporary deviation of traffic onto a temporary roadway or a temporarily deviated road.

_(2) Compensation is not payable under this section for the denial of access if - _

1. there is adequate existing alternative access to the land; or
2. the project authority provides, or agrees to provide, adequate alternative access to the land; or
3. a claim for compensation is not served on the project authority within one year of the end of the temporary deviation of a road or temporary deviation of traffic (as the case requires).

(2) For the purposes of determining whether alternative access to the land is adequate, no regard is to be had as to which stream of traffic has access to the land.

(3) Any claim for compensation under this section must be made and dealt with in accordance with the Land Acquisition and Compensation Act 1986 as if it were a claim under section 47(1) of that Act.

(4) Section 127 of the Road Management Act 2004 does not apply in respect of any matter for which compensation is payable under this section.

Section 47 - Compensation for entry or temporary occupation

_(1) Any person with an interest in land that has been entered or temporarily occupied pursuant to Part 9 who has - _

a) sustained any pecuniary loss; or

_b) incurred any expense - _

c) as a direct, natural and reasonable consequence of that entry or occupation may claim the amount of that loss or expense from the Authority.

(2) Subject to section 106(1), a claim under subsection (1) must be made within two years after the day on which the Authority was last in occupation of or upon the land.

(3) In addition to the amount of loss or expense which may become payable under subsection (1), the Authority must during the period of its occupation of the land pay half-yearly or quarterly to the person or persons entitled to receive the rent from the land the amount of rent agreed upon between the parties or, failing agreement, fixed by the Court or the Tribunal, as the case may be.

Section 80 - Application or referral of disputed claim

a) apply to the Tribunal for determination of a disputed claim in accordance with this Act; or

b) refer a disputed claim to the Court for determination in accordance with this Act.

Section 43 - How is original jurisdiction invoked?

_The original jurisdiction of the Tribunal is invoked - _

a) by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; or

b) by a matter being referred to the Tribunal under an enabling enactment in accordance with section 69; or

c) in any other way permitted or provided for by the enabling enactment.

Section 75 - Summary dismissal of unjustified proceedings

_(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion - _

a) is frivolous, vexatious, misconceived or lacking in substance; or

b) is otherwise an abuse of process.

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

_(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by - _

a) the Tribunal as constituted for the proceeding; or

b) a presidential member; or

c) a member who is an Australian lawyer.

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

a) is bound by the rules of natural justice;

b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

c) may inform itself on any matter as it sees fit;

d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(2) Without limiting subsection (1)(b), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.

(2A) Without limiting subsection (1), at the hearing of a proceeding the Tribunal may admit into evidence any material put before the Tribunal at an earlier stage of the proceeding, or any material put before the Tribunal in another proceeding, if the Tribunal considers it desirable to do so.

(2B) Subsection (2A) is subject to any other provision of this Act, an enabling enactment or any other law that provides that evidence or material is not admissible in a proceeding.

1. The applicant filed its first submission on 14 February 2025. The applicant stated that it no longer pressed for compensation pursuant to s 127 of the RM Act. Accordingly, the only matter that falls for determination by the Tribunal is the applicant's claim for compensation under s 191A of the MTPF Act.[7]
2. The applicant's submission of 14 February 2025 set out the relevant legislative provisions under s 191A of the MTPF Act and the LAC Act.
3. The applicant contended that the question as to whether the Tribunal has jurisdiction turns on whether, at the time of application, a 'disputed claim' existed within the meaning of the LAC Act.[8] The applicant relies on six reasons as to why there was a disputed claim:
   • 30.1. On 12 February 2024, the applicant served on the respondent a notice of claim in accordance with s 48(1) of the LAC Act;[9]
   • 30.2. On 9 May 2024, the respondent, at least purported to, serve on the applicant a reply to the notice of claim, stating that the respondent cannot accept the applicant's claim;[10]
   • 30.3. On 9 May 2024, having rejected the applicant's claim, the claim became a disputed claim;[11]
   • 30.4. On December 2024, the date of application to the Tribunal, the applicant's claim was a disputed claim thus invoking the Tribunal's jurisdiction under s 80 of the LAC Act;[12]
   • 30.5. The Tribunal's jurisdiction is not affected by s 81 of the LAC Act; and[13]
   • 30.6. The application was compliant with clause 45 of schedule 1 of the VCAT Act.[14]
4. The applicant submits that if the Tribunal considers the matters raised by the respondent in respect of the applicant's entitlement to compensation under s 191A(1) of the MTPF Act, in accordance with s 97 and s 98 of the VCAT Act, the parties should be given the opportunity to file and serve evidence.[15]

1. The submissions on behalf of Secretary to the Department of Transport and Planning dated 14 February 2025[16] stated that the Tribunal does not have jurisdiction to consider the application under s 191A of the MTPF Act or s 127 of the RM Act.[17]
2. The respondent's submissions outlined the project at paragraphs 10 to 14 (footnotes omitted) as follows:

The Project is part of a program of road projects referred to as the 'suburban road upgrades'. > > In general terms, the Project involves the upgrade of Cranbourne-Narre Warren Road between Thompson Road and South Gippsland Highway. This includes the development of additional lanes, service roads, new traffic lights, pedestrian crossings, upgraded intersections, and new and upgraded shared walking and cycling paths. > > On 1 August 2019, the Project was declared to be a project to which the MTPFA (other than Parts 3 and 8) applies and the Minister for Transport Infrastructure was appointed the Project Minister for the Project. > > On 23 January 2020, the Project Minister appointed the Respondent to be the "project proponent" for the Project. > > On 27 March 2020, the Minister for Planning designated the project area for the Project, pursuant to s 95(2)(a) of the MTPFA. Upon designation of the project area, the Project became an "approved" project under the MTPFA and the Respondent became the "project authority" for the Project under the MTPFA. An extract showing the project area in relation to the Land is provided below. > >

3. The respondent's 14 February 2025 submissions set out the facts in paragraphs 23, 26 and 27, the subject of order 1 in the Tribunals orders dated 24 March 2025 as follows:

1. The respondent's 14 February 2025 submissions sets out the legislative provisions in s 191A and s 186D of the MTPF Act.
2. The respondent places particular emphasis on s 186D(1)(b) and (c):
   1. A project authority may, for the purposes of an approved project or any purpose connected with an approved project, do any one or more of the following -

(b) temporarily deviate a road over relevant land; and

(c) temporarily divert traffic onto a temporary roadway or a temporarily deviated road ...:

1. The respondent contends[18] these sections should be given the following meaning:

Temporary deviation of a road > > 33 The term "temporarily deviated road" is contained in both section 186D(1)(b) and (c). > > 34 Section 3 of the MTPFA defines "road" to have the same meaning as in the RMA. > > 35 Accordingly, for the purposes of 186D(1)(b) and (c), a "road" includes: > > (a) any public highway; > > (b) any ancillary area; and > > (c) any land declared to be a road under section 11 of the RMA or forming part of a public highway or ancillary area. > > 36 The temporary deviation of a "road" requires provision of a new section of road in a different location to the existing road, and the project authority must give notice of the temporary road deviation in the Government Gazette as per section 186E of the MTPFA. > > 37 There are recent examples of this occurring as part of the works for the North East Link Project both at the intersection of Greensborough Highway and Elder Street, Watsonia and at Bulleen Road. In each case, the notices published in the Government Gazette show how the relevant roads are temporarily deviated by the construction of a new section of road. > > 38 There was no temporary deviation of any road as part of the Works in this case. > > 39 Accordingly, there is no basis for any claim to be made by the Applicant in connection with the Project in respect of either: > > (a) the temporary deviation of a road under section 186D(1)(b); or > > (b) the temporary diversion of traffic onto a temporarily deviated road under section 186D(1)(c). > > Temporarily diversion of traffic onto a temporary roadway > > 40 Section 186D(1)(c) enables a project authority to temporarily divert traffic onto a "temporary roadway". > > 41 the term "temporary roadway" is not defined in the MTPFA. However, the following guidance is provided in the Explanatory Memorandum for the Suburban Rail Loop Bill 2021, which inserted section 186D in the MTPFA:15 > > New section 186D includes a power to create and manage temporary roads and traffic on roads, including to divert or deviate any road. The provision enables a project authority to create a roadway on relevant land or deviate an existing road, and to divert traffic onto that road. The provision is intended to provide a clearer mechanism for a project authority to provide alternative throughways while it uses a road for project purposes. The temporary or deviated roadway is intended to operate as the de facto road, without having the consequence that land becomes a legal road (in the sense of a public highway which has to be discontinued, and which would result in the vesting of ownership under Schedule 5 to the Road Management Act 2004). As road is defined to have the same meaning as the Road Management Act 2004, being a legal road, "roadway" is used to describe a "built road" (it is not intended to have the same limited meaning as roadway has under the Road Management Act 2004). > > (Emphasis added, in bold). > > 42 In this context, the term "roadway" in the MTPFA describes the built road and can be distinguished from the concept of a "road" and the meaning of "roadway" in the RMA. > > The Works did not involve the creation or use of any "temporary roadway" as that term is to be understood for the purposes of the MTPFA. > > 44. The Works involved: > > (a) the temporary closure of part of some roads to traffic (including parts of Cranbourne-Narre Warren Road and Thompson Road in the immediate vicinity of the Land); > > (b) the implementation traffic detours using parts of the existing road network; and > > (c) the implementation of traffic control devices (such as traffic signage and signals). > > 45. Similar to the temporary deviation of a "road", the temporary diversion of traffic onto a temporary roadway would require provision of a new temporary roadway in a different location from the existing road. This did not occur as part of the Works or the broader Project activities. > > 46. Only parts of the existing and permanent road network were used to detour traffic around the temporary closure of parts of Cranbourne-Narre Warren Road and Thompson Road. > > 47. Further, if there had been a temporary diversion of traffic onto a temporary roadway, the project authority would have been required to give notice of this in the Government Gazette, as per section 186E of the MTPFA. No such notice was given because no temporary roadway was created.

2. The respondent's 14 February 2025 submissions concludes that on the facts of this matter, s 191A of the MPTF Act is not engaged as none of the necessary circumstances in 186D(1)(b) or (c) of the MPTF Act existed and therefore s 43 of the VCAT Act is not enlivened.[19]
3. The respondent submits that the application should be struck out under s 75(1)(a) of the VCAT Act.[20]

1. On 27 February 2025, the applicant filed the Applicant's Reply Submissions as to Jurisdiction[21] in response to the Tribunal's orders dated 15 January 2025.
2. In reply to the respondent's submission s that 'as the Tribunal is not seized of any matter or legal issue within its jurisdiction, the Application should be struck out pursuant to section 75(1)(a) of the VCAT Act', [22] the applicant submits:

The primary basis for that statement appears to the applicant to be that the respondent did not:

a) exercise a power under section 186D(1)(b) of the MTPF Act to "temporarily deviate a road over relevant land"; and/or

b) exercise a power under section 186D(1)(c) of the MTPF Act to "temporarily divert traffic onto a temporary roadway or a temporarily deviated road",

with the result that the applicant is not entitled to compensation under section 191A.[23]

1. The applicant relies on the decision of Niall JA and Macaulay AJA in Khan v Victorian Civil and Administrative Tribunal[24] (Khan), concerning an enforcement order under s 114 of the Planning and Environment Act 1998 (Vic). Their Honours said:

[p]rinciple requires that a high degree of caution be exercised before a proceeding is summarily dismissed" under section 75 of the VCAT Act. > > ... > > The deputy registrar and, on review, the member conflated the questions whether Mr Khan was entitled to bring the application and whether the application complied with the VCAT Act with the altogether different question concerning his entitlement to the relief that he sought. The issue confronting Mr Khan when he made his application under s 114 was not one of jurisdiction.[25]

2. The applicant applies the same reasoning in Khan and contends that the respondent's submissions conflate the question of jurisdiction and the applicant's entitlement to compensation.[26]

Whether or not the "temporary 'contraflow arrangement'" constituted:

a) a temporary deviation of a road over relevant land for the purposes of section 186D(1)(b) of the MTPF Act; or

b) a temporary diversion of traffic onto a temporary roadway or a temporarily deviated road for the purposes of section 186D(1)(c) of the MTPF Act,

are matters that go to the merits of the application, rather than whether the Tribunal has jurisdiction to entertain it.

Respondent's 28 February 2025 Reply Submissions

1. The submissions in reply on behalf of Secretary to the Department of Transport and Planning dated 28 February 2025[27] states that the submission:
   • has been prepared on the basis that the Applicant no longer claims compensation pursuant to section 127 of the RMA;
   • maintains that there has been no exercise of power under section 186D(1)(b) or (c) of the MTPFA in this matter;
   • denies that the Applicant is entitled to make the Claim for compensation under section 80 of the LACA;[28]
2. Further the respondent submits:
   1. section 191A of the MTPFA is not, and cannot as a matter of law be, engaged;
   2. the Tribunal's jurisdiction derives entirely from statute and is limited to specific kinds of disputes and claims;
   3. only a person who is entitled by or under an enabling enactment to do so may apply to the Tribunal;
   4. the decision in this case was to temporarily close part of the arterial road network to traffic and implement traffic detours and traffic control devices;[29]
   5. that decision was:
      1. not a decision made under section 186D(1)(b) or (c) of the MTPFA, and liability for compensation under section 191A does not arise; and
      2. not a decision that can be subject to a statutory claim for compensation, either under the RMA or the MTPFA;
   6. there is no enabling enactment that provides the Tribunal with jurisdiction in this proceeding; and
   7. the Applicant does not have standing to make the Application under section 191A of the MTPFA because the Applicant is not "a person who ... sustains a pecuniary loss ... as a direct, natural and reasonable consequence of the exercise of a power under section 186D(1)(b) or (c) ...".[30]
3. The respondent continues to submit that the matter should be summarily dismissed under s 75(1)(a) of the VCAT Act.[31]
4. Whilst the respondent acknowledges that the bar for summary dismissal is high, referencing Deputy President Dwyer's decision in Axicom Pty Ltd v Melton CC (Red Dot)[32]; the respondent also relies upon Maddingley Brown Coal Pty Ltd v Moorabool SC (Corrected)[33] (Maddingley) at paragraph 114, President Quigley found:

There being no standing to bring the cancellation request, the proceeding is bound to fail and is appropriately dismissed pursuant to s 75(1).

a) the only way that there could be a "disputed claim" is if there was an exercise of a power under section 186D(1)(b) or (c) of the MTPFA; > > b) there was no such exercise of power and there is no jurisdiction conferred on the Tribunal by an enabling enactment; > > c) the Applicant is not entitled, and does not have standing, to apply for determination of a "disputed claim" under section 191A(4) of the MTPFA and section 80 of the LACA; > > d) applying Maddingley, the Application is therefore bound to fail and should be summarily dismissed.

6. Further, the respondent submits that it is appropriate for the Tribunal to determine whether s 191A of the MTPF Act is engaged as a preliminary issue, as it is a task of statutory construction with the relevant facts already before the Tribunal.[34]

Applicant's 4 April 2025 Response to the Tribunal's 24 March orders

1. The applicant's response to the Tribunal's orders of 24 March 2025 is:

... the applicant's position in respect of each of the facts set out in paragraphs 23, 26 and 27 of the respondent's submissions dated 14 February 2025 is as follows:

1. In relation to paragraph 23, the applicant accepts the accuracy of that paragraph (albeit it disputes that access via the "contraflow arrangement" was adequate).
2. In relation to paragraph 26:

a. the applicant accepts that the Works did not involve the construction or use of any temporarily deviated road; and

b. the applicant does not accept on a proper construction of the Major Transport Projects Facilitation Act 2009 (Vic) (MTPF Act), the Works did not involve the use of a "temporary roadway". The term "temporary roadway" is not defined in the MTPF Act. On a proper construction of that term, while the "contraflow arrangement" used the existing roadway, the use of the roadway in that manner constituted a temporary roadway onto which traffic heading in a southerly direction was diverted (from the eastern section of the roadway).

3. In relation to paragraph 27, the applicant accepts the accuracy of that paragraph.

1. On 11 April 20025, the respondent filed further submissions in reply on behalf of Secretary to the Department of Transport and Planning. [35]
2. These submissions focused on addressing why it submits that the Works did not involve the temporary diversion of traffic onto a "temporary roadway"; given the applicant disagreed with this assertion.
3. The respondent submits that the applicant's reasoning does not properly engage with the statutory framework, including relevant statutory provisions and extrinsic material.[36]
4. The respondent outlines in paragraphs 6 to 10, why it submits that the words "temporary roadway" must be given meaning within their statutory context and what that meaning is:[37]

1. Relevantly, subsection 186D(1)(a) empowers a project authority to "provide for temporary roadways on relevant land".

7. The term "relevant land" is defined in section 186D(2) to mean: > > (a) project land; or > > (b) land owned by the project authority; or > > (c) land temporarily occupied by a project authority under this Part; or > > Example > > Section 165D. > > (d) land occupied and used under section 167; or > > (e) land within a road reserve (within the meaning of the Road Management Act 2004); or > > _(f) land owned by a person other than the project authority - _ > > (i) that is under the management or control of the project authority; and > > (ii) in relation to which the project authority has obtained the written consent of that person to use that land as a temporary road. > > 8. This definition includes various types of land, some of which do not part of the existing road network. In this context, the power in subsection 186D(1)(a) to "provide for temporary roadways" should be understood as providing the project authority with the ability to construct a temporary roadway over "relevant land" which includes land that does not form part of an existing road. > > 9. The respondent relies upon the Explanatory Memorandum for the Suburban Rail Loop Bill 2021 as previously cited. > > 10. This passage states that section 186D enables a project authority to "create a roadway on relevant land ... and divert traffic onto that road". This is consistent with a temporary roadway being something that is constructed (with materials such as asphalt, bitumen, gravel, lane markers and lines etc.), and provided by the project authority as a de facto road, without having the consequence that land becomes a legal road.

5. The respondent concludes that no "temporary roadway" was created in this case, only parts of the existing road network were used to provide traffic diversions/detours.[38] The respondent provided examples of notices published in the Government Gazette where that power had been exercised.
6. In the respondent's submission, two limbs must be met for s 186D(1)(c) to be engaged:

(a) First, there must be a temporary diversion of traffic. > > (b) Second, it must be "onto a temporary roadway".[39]

7. It further submits:
   1. The Applicant has properly conceded that the "contraflow arrangement" used an "existing roadway". The Respondent agrees with this. As set out in paragraph 23(b) of the Respondent's Submission, which is accepted by the Applicant, the 'contraflow arrangement' was implemented on the western carriageway of Cranbourne-Narre Warren Road, which is an existing roadway and part of declared arterial road.
   2. The Applicant argues that a "temporary roadway" was created based on how the "existing roadway" was used during the relevant period. This argument is without foundation and should be rejected.
   3. The Works involved a temporary diversion of traffic onto an existing roadway that is part of the declared arterial network. This does not fall within the scope of the subsection 186D(1)(c) because there was not diversion of traffic "onto a temporary roadway".
   4. The Respondent maintains that:

(a) there was no exercise of section 186D(1)(c) of the MTPFA;

(b) section 191A of the MTPFA is not, and cannot as a matter of law be engaged;

(c) there is no enabling enactment that provides the Tribunal with jurisdiction in this proceeding; and

(d) the Applicant does not have standing to make the Application under section 191A of the MRPFA because the Applicant is not "a person who ... sustains a pecuniary loss ... as direct, natural and reasonable consequence of the exercise of a power under section 186D(1)(b) or (c) ..."

1. The submissions filed on behalf of the applicant on 30 May 2025[40] maintains its submission that the exercise of statutory interpretation as to the meaning of "temporary roadway" for the purposes of the MTPF Act is unnecessary for the purposes of determining the Tribunal's jurisdiction.[41]
2. In the applicant's submission that this is a matter for the hearing. It says in part:

In any event, paragraph 8 of those submissions ignores the ordinary grammatical sense of the words of section 186D, and should be rejected accordingly. As the plurality of the High Court of Australia said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, "[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention". > > A departure from the text is not otherwise justified by virtue of any conflict with other provisions of the MTPF Act, inconsistency with the purposes of the MTPF Act, nor incapability of practical application. [42]

3. The applicant submits that the Tribunal's jurisdiction has been invoked.

1. There can be no dispute that the Tribunal's jurisdiction derives from statute and that it can only consider the limited range of disputes and claims in relation to which its jurisdiction can be invoked.[43]
2. The matter that falls for determination by the Tribunal relates to the applicant's claim for compensation under s 191A of the MTPF Act, as the applicant no longer pursues s 127 of the RM Act.

By the end of the exchange of submissions the applicant had addressed the critical propositions in the respondent's submissions which are reproduced for convenience below.

1. The applicant says in response to the Tribunal's orders of 24 March 2025 that it accepts:
   • 63.1. the facts as set out in paragraph 23 and depicted by the diagrams above;
   • 63.2. that the Works did not involve the construction or use of any temporarily deviated road; and
   • 63.3. that all roads used to maintain the access to the Land under the contraflow arrangement were existing roads.
2. The applicant does not accept that:

on a proper construction of the MTPF Act, the Works did not involve the use of a temporary roadway. The term "temporary roadway" is not defined in the MTPF Act. On a proper construction of that term, while the "contraflow arrangement" used the existing roadway, the use of the roadway in that manner constituted a temporary roadway on which traffic heading in a southerly direction was diverted (from the eastern section of the roadway).

1. The applicant says that 'the decision in this case was to temporarily close part of the arterial road network to traffic and to implement traffic detours and traffic control devices' and that this decision does not attract compensation.[44]
2. Having identified more clearly the argument sought to be pressed by the applicant it is useful to return to the provisions under which it is said that the right to compensation arises - section 191A(1) of the MTPF Act which states:

a project authority is liable to pay compensation in accordance with this section to a person who has interest in land who sustains a pecuniary loss or incurs an expense as a direct, natural and reasonable consequence of the exercise of a power under section 186D(1)(b) or (c) if the effect of the exercise of that power is that access to that land is denied.

1. The section requires the exercise of the relevant power which is identified as the power under section186D(1)(b) and (c) to:

b) temporarily deviate a road over relevant land; > > c) temporarily divert traffic onto a temporary roadway or a temporarily deviated road.

2. Given that the applicant accepts that all roads used to maintain access were existing roads and that the Works did not involve the use of a temporarily deviated road, the scope of the dispute is further narrowed.
3. The remaining submission is that the authority exercised its power to temporarily divert traffic onto a temporary roadway; or temporarily deviate a road over relevant land, in circumstances where:
   • 69.1. The respondent maintains that it did not exercise this power;
   • 69.2. The Cranbourne-Narre Warren Road is a declared arterial road on the Victorian Register of Public Roads, as such, it is an existing road;[45]
   • 69.3. No Government Gazette has been provided which evidences the use of this power despite an express requirement in section 186E of the MTPF Act which requires the project authority to publish in the Government Gazette, any temporary deviation of a road, and/or the temporary diversion of traffic onto a temporary roadway or a temporarily deviated road;
   • 69.4. The applicant has not sought to explain how the respondent could lawfully exercise its power to create a diversion onto a temporary roadway in circumstances where the relevant roadway is an existing road; and
   • 69.5. There was not a temporary deviation of any roadway or road;
   • 69.6. No proper basis has been identified for the respondent to exercise any compensable power under 186D where any alterations to traffic flow occurred on a road which is already part of the existing road network.
4. It follows that the applicant accepts that the Works involved a temporary diversion of traffic onto an existing road that is part of the declared arterial road network. This does not fall within the scope of subsection 186D(1)(c) because there was no diversion of traffic "onto a temporary roadway".
5. In order to conclude that a claim for compensation can be made, the applicant must identify statutory basis for compensation, for the relevant diversion of traffic.
6. Having considered the relevant legislative provisions identified by the applicant, I[46] have concluded that there is no statutory basis for a claim for compensation.
7. The temporary diversion of traffic onto an existing road that is part of the declared arterial road network does not satisfy the second limb of s 186D(1)(c) requiring the temporary diversion of traffic onto a temporary roadway nor could it be said to satisfy s 186D(1)(b). These being the only provisions which attract compensation, the application is misconceived and is doomed to fail.
8. The applicant's 30 May Submissions do not provide any basis to avoid this conclusion and do not seek to explain how the ordinary grammatical sense of the words of s 186D supports a conclusion that the diversion of traffic on an existing road constitutes the creation of a temporary roadway on the same land occupied by the existing road.
9. The applicant is correct in its submission that caution should be exercised in dismissing a proceeding and that has been borne in mind in reaching this decision.[47]
10. The Tribunal is also required to determine matters 'with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit'.[48] To require the parties to run the entire proceeding where the applicant has not identified a statutory basis for the claim for compensation would run counter to this.[49]
11. Where the Tribunal is unable to identify any legislative basis for the applicant to bring an application, the power exists under s 75 of the VCAT Act to dismiss the proceeding as misconceived and, I have formed that view in this case.[50]
12. To the extent that the applicant submits that the act of lodging an application and following the process consistent with section 80 of the LAC Act is sufficient to invoke the jurisdiction of the Tribunal, this argument is rejected. There must be a proper basis for any application to the Tribunal which requires in order to enliven its jurisdiction, identification of an enabling enactment which entitles the applicant to enliven that jurisdiction.[51] It is not entitled to decide a controversy or award statutory compensation in the absence of a legislative basis to do so.
13. Having determined the applicant has no entitlement to claim compensation under s 186D(b) or (c) of the MTPF Act there is no basis on which the Tribunal has jurisdiction to grant compensation.
14. The applicant contends that at the time of application, a 'disputed claim' existed within the meaning of the LAC Act, and the applicant has successfully 'made out' its claim and therefore jurisdiction has been established.
15. The respondent's position is essentially if there is no exercise of power under s 186D(1)(b) or (c) then the applicant is not entitled to apply for the determination of a disputed claim under s 191A(4) of the MTPF Act and s 80 of the LAC Act.
16. As the respondent has submitted, 'Whether the Applicant is entitled by or under an enabling enactment to bring the Application is in essence a task of statutory construction aided by the relevant facts that are already before the Tribunal'.[52]
17. As the Tribunal[53] found that there is no statutory basis established under s 186D(1), it follows that s 191A (1) of the MTPF Act cannot be engaged.
18. Consequently, the application for review must be summarily dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) because it is misconceived.

[1] The submissions of the parties have all been considered. In accordance with the practice of the Tribunal, not all the material will be cited or referred in these reasons.

[2] Application form dated 20 December 2024.

[5] The applicant was advised by registry on 7 April 2025, 1 May 2025 and 2 June 2025, that unless technical error occurred, all documents and requests must be lodged via LV Hub.

[7] Applicant's Submissions as to Jurisdiction dated 14 February 2025 (Applicant's 14 February 2025 Submission) [2], [3].

[15] Ibid [22], [23]. The Tribunal made Orders on 24 March 2025 for the filing of any evidence that a party intends to rely upon concerning the Tribunal's jurisdiction to consider the application made by the applicant under s 191A of the MTPF Act. The applicant advised on 2 May 2025 that it did not intend to rely on any evidence.

[16] (Respondent's 14 February submission).

[17] Respondent's 14 February submissions 2025 [3].

[21] (Applicant's 7 February 2025 Reply).

[22] Applicant's 7 February 2025 Reply, [2].

[24] [2018] VSCA 351

[27] (Respondent's 14 February 2025 Submissions).

[28] Respondent's Reply Submissions 28 February 2025.

[29] Referring to the relevant works set out in paragraphs [22]-[28] in Respondent's 14 February 2025 Submissions.

[30] Respondent's Reply Submissions 28 February 2025 [1(g)]. (Footnotes omitted)

[32] [2020] VCAT 190.

[33] [2020] VCAT 555.

[35] (Respondent's 11 April 2025 Reply Submissions).

[40] (Applicant's 30 May Submissions).

[41] Applicant's Final Submissions [7].

[42] Ibid [7], [8] (footnotes omitted).

[43] Head, Transport for Victoria v Kilpatrick and Anor [2024] VSC 686, at [15].

[44] The Respondent's 28 February 2025 submission at [1(g)(4)].

[45] Respondent's Submissions 14 February 2025 [16], [17].

[46] As the Australian lawyer who has decided the questions of mixed fact and law and whether the power under section 75 of the VCAT Act should be exercised.

[47] As submitted by the applicant on the basis of the decision in Khan at [87].

[48] See the requirements of s 98 and 99 VCAT Act. In this case the applicant has been given numerous opportunities to make submissions and provide evidence and has not objected to this matter being determined "on the papers" pursuant to the Tribunal's orders.

[49] Which the respondent says would involve considering matters including the nature and quantum of pecuniary loss, the adequacy of alternative access and where the loss claimed was a 'direct natural and reasonable consequence' of the of the exercise of power which would require evidence in respect of these matters. See the Respondent's 28 February Submissions at 17(e).

[50] Cognisant of the guidance provided in exercising this task by the many cases in which this power has been discussed and exercised including: Axiom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190 at [9] and the cases upon which those principles are based and the discussion of this provision in Maddingley.

[51] See the requirement under section 43 of the VCAT Act which invokes the Tribunal's jurisdiction on application from a 'person who is entitled by enabling enactment'.

[52] Respondent's Reply Submissions 28 February 2025 [20].

[53] Comprised of an Australian lawyer who has decided the questions of mixed fact and law and whether the power under section 75 of the VCAT Act should be exercised.