25Damage to be made good, &c.

25 Damage to be made good, &c.

(1)  This section applies if a railway entity has accessed adjoining land under section 21 , 22 , 23 or 24 to carry out railway works or other works.

(2)  As soon as practicable after completing the works, the railway entity must –

(a) make good any unsanctioned damage caused to or in respect of the adjoining land as a result of effecting the access or carrying out the works; or

(b) pay the adjoining landholder fair compensation for that unsanctioned damage.

(3)  [Section 25 Subsection (3) amended by No. 9 of 2011, Sched. 1, Applied:01 Oct 2012] Any dispute regarding the nature or extent of the railway entity's obligation under subsection (2) is to be determined by an arbitral tribunal, within the meaning of the Commercial Arbitration Act 2011 , in accordance with that Act.

(4)  [Section 25 Subsection (4) amended by No. 9 of 2011, Sched. 1, Applied:01 Oct 2012] Without prejudice to the Commercial Arbitration Act 2011 , matters that may be considered in the arbitration include, but are not limited to, the following:

(a) whether some act or omission of the adjoining landholder triggered or contributed to the need to carry out the works;

(b) whether the unsanctioned damage was needlessly made worse by some act or omission of the adjoining landholder;

(c) whether the adjoining landholder took, or failed to take, measures that were reasonably available to avoid or minimise the unsanctioned damage;

(d) whether the railway entity effected the access and carried out the works as responsibly, efficiently and expeditiously as possible in the circumstances;

(e) whether some act or omission of the railway entity triggered or contributed to the need to carry out the works;