(1) This section applies if a person (in this section referred to as "the excavator") intends to do an excavation within 3 metres of the rail network.
(2) If the excavation is a major excavation, the excavator must give the responsible Rail Infrastructure Manager notice of that intention.
(3) The notice must –
(a) specify the date on which the excavator expects to physically start the excavation (in this section referred to as "the starting date"); and
(b) be given at least 7 clear days before the starting date.
(4) Consequent on the notice, the responsible Rail Infrastructure Manager may give the excavator any directions it reasonably considers necessary or expedient for the safety or operability of the rail network.
(5) The excavator must –
(a) comply with any directions given under subsection (4) before the starting date; and
(b) in so far as it is in the excavator's power to do so, ensure that other persons comply with those directions.
(6) If any railway entity has to carry out railway works to ensure the safety or operability of the rail network as the direct or indirect result of the excavator's failure to comply with an obligation under this section, any costs reasonably incurred by the railway entity in carrying out those railway works are recoverable as a debt due to the railway entity from the excavator.
(7) If the excavator –
(a) is in any doubt as to whether the intended excavation should be regarded as a major excavation for the purposes of this section; or
(b) disputes that the excavation, even if in progress or completed, may properly be so regarded by any railway entity; or
(c) disputes that a direction given under subsection (4) may reasonably be considered necessary or expedient for the safety or operability of the rail network –
the excavator may apply to the Minister for a ruling.
Section 44 - Rail Infrastructure Act 2007 - Notification and control of major excavations | Zoe
(8) In making the application, the excavator must meet the prescribed requirements, if any, and pay a prescribed fee, if any.
(9) The Minister, after consulting the excavator and such railway entities and other persons and considering such matters as he or she thinks the circumstances require, is to make the ruling, in writing, without undue delay.
(10) The ruling –
(a) is binding on the excavator and all railway entities; but
(b) is not grounds for challenging any judicial or administrative decision made before the date of the ruling.
(11) The Minister may –
(a) formulate guidelines to assist adjoining landholders and professional excavators for the purposes of this section; and
(b) from time to time publish those guidelines electronically and in such other ways as the Minister thinks fit.
(12) In any proceedings, the production of a document purporting to be signed by the Minister and certifying that the document is a ruling or true copy of a ruling made under subsection (9) is evidence –
(a) that the document is such a ruling or copy; and
(b) of the matters the document contains.
(13) Nothing in this section is to be taken as –
(a) requiring the excavator to give the responsible Rail Infrastructure Manager notice of intention to do excavations of which it has notice under other provisions of this Part; or
(b) authorising the responsible Rail Infrastructure Manager to give directions about excavations in respect of which it may give directions, impose requirements or exercise any other degree of control under other provisions of this Part; or
(c) conferring on any railway entity power to recover debts for carrying out railway works consequent on acts or omissions relating to excavations where the acts or omissions relate to, and the debts are recoverable under, other provisions of this Part; or
(d) restricting or regulating minor excavations.
(14) In this section –
major excavation means a deep, disruptive or extensive excavation of the kind ordinarily required for or associated with –
(a) building foundations; or
(b) roadworks; or
(c) quarrying; or
(d) the construction of dams or swimming pools; or
(e) the installation, by trenching, of underground service apparatus like gas pipelines, sewer pipes, storm water drains or telecommunications cables; or
(f) the installation of underground water storage tanks; or
(g) the installation of septic tanks or construction of sullage pits; or
(h) pits for the mass burial of diseased stock;
minor excavation means a superficial, shallow or isolated excavation of the kind ordinarily required for or associated with –
(a) fencing; or
(b) the domestic installation of kerbs, paths or paving; or
(c) the domestic installation of minor conveniences like low-voltage outdoor lighting or garden watering systems; or
(d) the domestic installation of poles for things like clotheslines, flags, netball hoops, shade structures or private power connections; or
(e) the erection of minor domestic structures like barbeques, cubbyhouses, kennels or pre-fabricated garden sheds; or
(f) the installation of farm irrigation systems; or
(g) the tillage of farms or gardens.
| Note: For a part of the rail network that does not for the time being have a Rail Infrastructure Manager, section 8(5) applies to the operation of this section. |