Mile End Underpass Act 2005

Underpass construction area. This is the geographic scope of the project, identified in the plan in Schedule 1. The plan is not reproduced in the text provided, but it defines the land on which the Commissioner may exercise the broad powers in section 4(2). Works outside this area are generally not authorised, except for roadworks on Glover Avenue (section 4(1)(b)). The Act does not grant any power to alter the boundaries of the area; it is fixed by the Schedule. This limits the Commissioner’s discretion in spatial terms, but within the area the powers are very wide.

Underpass project. Defined in section 3 to include not only the construction of the underpass itself but also earth works, demolition, drainage and other infrastructure works, temporary works to divert pedestrians and traffic, works to relocate or modify rail infrastructure, roadwork on Glover Avenue both inside and outside the construction area, and “any other works undertaken in the underpass construction area in connection with the construction of the underpass”. The inclusive wording (a) to (f) captures virtually every conceivable activity incidental to building an underpass, including activities that might ordinarily require separate approvals under other legislation.

Override of other Acts and laws. Section 4(1) states “Despite any other Act or law, the Commissioner may … carry out such works … as the Commissioner thinks fit”. This language disapplies any inconsistent statutory or common law restriction unless the other Act expressly provides that it prevails over this one. It is a standard “paramountcy” clause for major infrastructure projects. It does not, however, override the constitutional limits of the South Australian Parliament; Commonwealth laws could still apply (though the Act does not address the Commonwealth). The override applies only to the carrying out of works, not to all actions under the Act (e.g., section 7 title cancellations are subject to their own override provisions in sections 7(3) and 7(4)).

Assumption of care, control and management. Under section 4(4) and (5), the Commissioner may, with ministerial approval, publish a Gazette notice assuming care, control and management of land in the underpass construction area for a specified period (or until further notice). This is a different concept from ownership or compulsory acquisition. The Commissioner does not take title but obtains the right to manage the land for the project. Once the notice ceases, presumably management reverts to the owner or the relevant authority, though the Act is silent on reversion.

New title mechanism (section 7). This is an unusual procedure that bypasses the Land Acquisition Act 1969. The Minister, after consultation only (not requiring consent), may direct the Registrar-General to cancel the existing fee simple and issue a new title for the same land or a stratum of it, plus any other interests or easements. No stamp duty applies. The Land Acquisition Act is excluded, meaning no compensation is mandated by that Act. The Act itself does not provide a separate compensation entitlement. The only potential compensation route is through a section 5 agreement, which is available only to owners of land on which a railway line is situated. Other landowners have no express right to compensation under the Act, though they might have a common law claim for nuisance or trespass if the Commissioner acts beyond power. However, the “despite any other Act or law” clause in section 4 may also limit such claims for actions within power.

Commissioner of Highways. The primary actor. The Commissioner gains extensive powers to enter land, close roads, divert traffic, assume management, and construct the underpass. The Commissioner must comply with any section 5 agreement with a railway land owner and the Park Lands restrictions in section 4(3). The Commissioner may also be bound by Gazette notices or instruments made by the Minister under sections 4(4) and 9.

Owners of land within the underpass construction area. These landowners are most affected. Their land may be entered without consent, temporary structures may be erected, and the Commissioner may assume management. Under section 7, the Minister may effectively restructure their title by cancelling the existing fee simple and issuing a new one for a different stratum or with different interests. There is no right to object beyond consultation, and no compensation is provided for under the Act. Owners of land with railway lines are in a better position because the Minister may enter into an agreement under section 5, which can include compensation and consultation requirements. For other owners, the Act is silent on compensation; a common law claim would face the “despite any other Act or law” barrier for actions within power.

Owner of the railway line. Likely the Australian Rail Track Corporation or a private operator. This entity can negotiate an agreement under section 5 that may require consultation before powers are exercised on its land and may provide for compensation. The Commissioner is bound to comply. If no agreement is reached, the Commissioner can still exercise powers under section 4(2)(b) to temporarily close or limit railway lines, but the Minister is not compelled to enter an agreement. Section 8 excludes liability for delays or disruptions to rail services arising from the exercise of powers, which would limit the railway owner’s ability to claim damages for loss of revenue.

Adelaide Park Lands authority and users. Section 4(3) restricts works within the Park Lands to temporary works, Glover Avenue roadworks (not to exceed pre-existing width), and footpaths or bikeways. This provides a modest degree of protection for the park, but temporary works could still involve significant disruption. The boundaries of Glover Avenue within the Park Lands are delineated in the plan in Schedule 2, which is not reproduced but presumably ensures the road does not expand into park space.

Registrar-General and other land recording officials. Section 10 imposes a duty to give effect to plans deposited or notices published under the Act, overriding any other recording obligations. This may create administrative burdens if titles are complex, but the Registrar-General is obliged to comply without court order.

Users of roads and railways. The public may face road closures (temporary or permanent), traffic diversions, and rail disruptions. Section 8 excludes all liability for delays or disruptions to rail services, so passengers and freight operators have no statutory claim for inconvenience or financial loss. Similarly, road users have no express remedy under the Act for diverted traffic.

Commissioner’s duties. The Commissioner must comply with any section 5 agreement entered into by the Minister (section 5(3)). The Commissioner must not carry out works in the Adelaide Park Lands beyond the limits in section 4(3). Before assuming care, control and management of land under section 4(4), the Commissioner must obtain the Minister’s approval. The Commissioner must also publish notices in the Gazette for permanent road closures (section 4(2)(d)) and for assuming management of land (section 4(4)). There is no duty to consult landowners generally; only the consultation requirement in section 7(1) applies before the Minister may require a title change.

Minister’s rights and duties. The Minister may enter into a section 5 agreement with a railway land owner, but is not required to do so. The Minister may designate public roads under section 6 by depositing plans. The Minister may require the Registrar-General to cancel and issue new titles under section 7, after consultation. The Minister may place structures under the care, control and management of another body under section 9, and may vary or revoke those instruments. Notices under sections 4(4), 4(5), and 9 must be published in the Gazette; section 6 plans must be deposited in the Lands Titles Registration Office.

Landowner’s rights. Landowners have a right to be consulted before the Minister acts under section 7, but no right to veto or to demand compensation. They have no right to refuse entry under section 4(2) (entry may be with or without consent). They may, if they own railway land, seek a section 5 agreement. If the Commissioner acts beyond the scope of the Act, landowners may have common law rights, but the “despite any other Act or law” clause limits what counts as beyond scope. Practice: landowners are largely at the mercy of the Commissioner’s powers.

Railway owner’s rights. If the railway owner enters a section 5 agreement, it gains contractual rights (e.g., consultation, compensation). The Act does not prescribe the content of the agreement; it is entirely negotiable. The Minister is not compelled to agree, so the railway owner’s practical leverage may be limited to the threat of disruption or political pressure.

No liability for rail delays. Section 8 provides a defence to the Crown, Minister and Commissioner for any liability in respect of rail service delays or disruptions. This overrides any common law or statutory duty of care. It does not exclude liability for personal injury or property damage unrelated to delays (e.g., negligence causing a derailment would still be actionable). But the exclusion is broad: “arising from the exercise or purported exercise of powers under this Act or as a result of action taken under section 7.” Purported exercise covers even actions that may be invalid.

The Act contains no penalty provisions, no offences, and no civil penalties. Enforcement of the Act is therefore limited to public law remedies such as judicial review, injunction, or declaration, and possibly contractual enforcement of section 5 agreements.

Judicial review of Commissioner’s actions. If the Commissioner acts outside the scope of the Act (e.g., carries out works outside the underpass construction area, or exceeds the Park Lands restrictions), an affected party may seek review in the Supreme Court. The “despite any other Act or law” clause does not protect ultra vires acts. However, the court would likely show considerable deference to the Commissioner’s assessment of what works are “for the purpose of the underpass project”. The definition of that term is broad and inclusive.

Failure to comply with section 5 agreement. The agreement is entered into by the Minister, but the Commissioner is bound by it (section 5(3)). If the Commissioner fails to comply, the railway owner may have a contractual claim for breach of agreement. The Act does not specify remedies; ordinary contract law would apply.

Registrar-General’s duties. Section 10(a) requires the Registrar-General to amend, cancel or replace documents of title. Failure to do so could be challenged by mandamus or similar order, but the Act does not prescribe a penalty for non-compliance. The Registrar-General is a public official and would ordinarily comply.

Minister’s notice obligations. The Minister must publish notices under sections 4(4), 4(5), and 9 in the Gazette. Failure to publish does not invalidate the notice if it is later confirmed, but could be challenged on procedural grounds. The Act does not specify consequences of non-publication.

Practical enforcement. Given the broad powers and pro‑infrastructure purpose, the Act is designed to minimise legal obstacles. The absence of penalties reflects a policy choice to let administrative and political accountability (rather than court enforcement) ensure compliance. However, landowners with no compensation mechanism might be effectively disenfranchised. Judicial review remains theoretically available but is expensive, and the high threshold of unreasonableness or jurisdictional error makes it an unlikely check on the Commissioner’s powers.

Highways Act 1926. Section 4(6) states that the Commissioner’s powers under this Act are “in addition to, and do not derogate from, any other powers of the Commissioner” under the Highways Act. That means the Commissioner retains all existing roadworks powers and gains additional ones. There is no conflict, only supplementation.

Land Acquisition Act 1969. Section 7(3) expressly excludes the application of that Act to actions taken under section 7 (title cancellation and reissuance). This is a critical interaction: the Land Acquisition Act provides for a compensation process and a right of objection to acquisition. By excluding it, the Act removes those protections. Landowners cannot use that Act to challenge the Minister’s direction or to claim compensation for the loss of the fee simple (though the new title may preserve the owner’s interest in a different stratum). The Act does not provide a substitute compensation mechanism, so owners must rely on common law or political lobbying.

Real Property Act 1886. Section 7(4) provides that section 7 applies “notwithstanding the provisions of the Real Property Act 1886”. This overrides the usual Torrens system requirements for consent of the registered proprietor before any alteration of title. The Registrar-General must comply with the Minister’s direction even if it would ordinarily be prohibited by the Real Property Act.

Roads (Opening and Closing) Act 1991. Section 6(2) deems a public road designated under section 6 to have been established in accordance with the Roads (Opening and Closing) Act 1991. That Act normally requires a public process of consultation, plans, and approvals. This section shortcuts that process: the Minister simply deposits plans and the road is taken to be validly established. This saves time but reduces transparency.

Stamp Duties Act. Section 7(2) provides that no stamp duty is payable in respect of any action taken under section 7. This is a financial benefit for landowners whose titles are restructured, but it is not compensation for any loss of value.

Mile End Overway Bridge Act 1925. Repealed by Schedule 2. The transitional provision confirms that Glover Avenue continues as a public road despite the repeal, with boundaries delineated in the Schedule. This prevents the road from reverting to non‑public status simply because the old Act is gone.

Adelaide Park Lands. Section 4(3) restricts works in the Park Lands. This suggests that the Parliament intended to protect the park from full‑scale development. The Act does not name any specific Park Lands legislation, but “works within the area of the Adelaide Park Lands” would be subject to that limitation. The Commissioner cannot override park protections for anything other than temporary works, roadworks (no wider than before), and footpaths/bikeways.

Other acts and laws. The “despite any other Act or law” clause in section 4(1) overrides any other State legislation that would impede the works. This could include the Development Act 1993 (planning approvals), the Environment Protection Act 1993 (pollution licences), the Heritage Act 1993, the Native Vegetation Act 1991, and local council by‑laws. Commonwealth laws, such as the Environment Protection and Biodiversity Conservation Act 1999, are not affected unless there is a Constitutional issue, but the Act does not address them. The override is powerful but not unlimited; it does not affect private property rights (except through section 7) or the common law duty of care for personal injury (except as limited by section 8 for rail delays).

The Act was assented to on 1 December 2005 and commenced on 12 January 2006, by proclamation published in the South Australian Government Gazette on 12 January 2006 at page 44. According to the legislative history provided in the text, the Act is a principal Act (No. 65 of 2005) and does not show any subsequent amendments. The text as provided by the user appears to be the original version as enacted. No amending Acts are listed. However, the legislative history note in the Act states “For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.” It is possible that minor amendments have been made since 2005 (e.g., to update references or extend time frames) but the text does not mention any. A reader should check the current version on the South Australian legislation website to confirm the Act’s status. As it stands, the Act has been in force for nearly 20 years without textual amendment.

The text of the Act does not mention any litigation. There is no case list, no reference to court decisions, and no provision for merits review or appeals. The Act itself is short and provides no statutory right of appeal against the Commissioner’s decisions. Because the Act confers very broad powers and excludes the Land Acquisition Act, any litigation would likely be in the nature of judicial review (e.g., challenging the validity of a Gazette notice or the scope of works). Given that the project was a specific infrastructure project (the Mile End underpass), it is plausible that disputes arose over land access or compensation, but the Act’s design makes such challenges difficult. The exclusion of liability under section 8 for rail delays probably deters lawsuits from rail operators. A search of South Australian case law might reveal decisions related to this Act, but none appear in the source material. For the purposes of this deep dive, no litigation history can be stated beyond speculation. The Act’s parliamentary history also does not indicate any legal challenges.

No compensation for landowners (except railway owners). The most significant gotcha. Section 7 provides for compulsory restructuring of titles without any compensation from the Land Acquisition Act. The only compensation entitlement in the Act is through a section 5 agreement, available only to owners of land with a railway line. Other landowners lose their fee simple and receive a new title (perhaps for a different stratum) but with no statutory right to monetary compensation. The Act does not even mention “compensation” except in section 5. Practically, this means a landowner could lose the value of their land or see its use severely restricted without a legal claim for payment. The “consultation” requirement is weak: the Minister must consult but need not agree.

Liability exclusion for rail disruptions is very broad. Section 8 excludes liability for “delays or disruptions to rail services arising from the exercise or purported exercise of powers under this Act or as a result of action taken under section 7”. The phrase “purported exercise” covers even actions that were not authorised, as long as they were ostensibly under the Act. This means if the Commissioner accidentally severs a rail line or causes a prolonged shutdown, the government cannot be sued for the resulting financial losses by the rail operator or passengers. Only negligent personal injury might still be actionable. This is a major diminishing of common law rights.

“Despite any other Act or law” also overrides local planning and environmental laws. Environmental impact assessments, development approvals, heritage protection, and native vegetation clearance requirements under State law are all overridden. The only environmental limitation is the Park Lands restriction. Projects under this Act do not need to comply with the normal environmental safeguards. This could lead to unexpected damage outside the Park Lands.

Gazette notices can be indefinite. Section 4(4) allows the Commissioner to assume care, control and management of land “for a specified period (which may be until further notice published in the Gazette)”. This means the period can be indefinite. Landowners may lose control of their land for years without any right to reclaim it. The Act does not require the Commissioner to publish a revoking notice at any time.

Section 7 title changes can affect mortgages and other interests. When a new title is issued under section 7, the old fee simple is cancelled. The Act does not explicitly state what happens to existing mortgages, easements, or caveats. Section 7(1)(b) allows the Minister to specify new interests or easements, but registered interests could be wiped out unless specifically re‑granted. The Registrar-General is required to take action under section 10, but the Act does not guarantee that third‑party interests are preserved. A lender holding a mortgage over the original land might find its security extinguished and replaced with a mortgage over a different stratum or no mortgage at all.

No requirement to notify affected parties of Gazette notices. The Act requires publication in the Gazette for road closures and assumption of management, but does not require direct notification to landowners or occupiers. A landowner might not learn of a permanent road closure or a change in management until it happens. This creates a risk of procedural unfairness.

Common law claims may be limited. Even for acts not covered by the “despite” clause (e.g., trespass outside the construction area), the broad wording of powers and the definition of “underpass project” may make it difficult to prove the Commissioner acted outside power. The project includes “any other works undertaken in the underpass construction area in connection with the construction of the underpass”. This is almost unlimited.

For landowners within the underpass construction area. If you own land (other than railway land), you have limited options. You cannot prevent entry or works, but you can: (1) ensure the Commissioner stays within the boundaries of the underpass construction area; (2) monitor for any works outside those boundaries (which would be ultra vires); (3) if you receive a notice from the Minister under section 7, engage a lawyer to negotiate a favourable new title configuration, including stratum boundaries and easements. Although the Minister only has to “consult”, a well‑reasoned submission may influence the terms of the new title. (4) Investigate whether you have any common law claim for nuisance if the works cause damage beyond what is reasonably necessary. Given the broad statutory powers, such claims are difficult but not impossible, especially if the Commissioner acts negligently or capriciously. (5) If you are a railway land owner, prompt the Minister to enter into a section 5 agreement before works begin. The agreement should specify consultation processes, compensation for disruption, and maintenance obligations.

For the Commissioner of Highways. The Commissioner must: (1) ensure all works are within the underpass construction area, except for Glover Avenue roadworks outside that area; (2) respect the Park Lands boundaries and the width restriction on Glover Avenue; (3) obtain ministerial approval before assuming care, control and management of land (section 4(4)); (4) publish Gazette notices for any permanent road closures (section 4(2)(d)) and for assumption of management (section 4(4)); (5) comply with any section 5 agreement; (6) deposit plans for designation of roads under section 6 in the Lands Titles Registration Office; (7) before the Minister exercises section 7, ensure consultation has occurred; (8) keep records of all actions taken under the Act, particularly the location of works, to defend against any ultra vires challenge.

For the Minister. The Minister should: (1) only approve assumption of management and road closures after due consideration; (2) ensure that any section 7 direction is preceded by genuine consultation; (3) publish instruments under section 9 in the Gazette; (4) consider entering a section 5 agreement with the railway owner to avoid disputes; (5) ensure that road designations under section 6 comply with the boundaries in the Schedule and the Park Lands restrictions.

For the Registrar-General. Upon receiving a plan deposited under section 6 or a notice of an instrument under section 7 or 9, the Registrar-General must act promptly to amend, cancel, or replace relevant titles and make entries in the Register Book or Crown leases register. There is no discretion to refuse. The Registrar-General must also ensure that any other person required to record land transactions (e.g., the Valuer‑General) takes necessary action to give effect to the plan or instrument.

For lawyers advising affected parties. Advise clients that this Act is designed to facilitate the underpass project with minimal legal friction. Challenge are possible only on jurisdictional grounds: (1) whether the works are truly for the “underpass project” as defined; (2) whether the land in question is within the construction area; (3) whether the Park Lands restrictions have been breached; (4) whether proper consultation occurred under section 7. Compensation claims are not viable under the Act unless a section 5 agreement exists. The liability exclusion in section 8 is a complete bar to claims for rail delays. Advise railway clients to push for a section 5 agreement early, and other landowners to focus on preserving as much value as possible through the new title configuration, rather than opposing the project.