Part 6Entry into possession of certain Redevelopment Project land

Part 6—Entry into possession of certain Redevelopment Project land 36 Definitions Sch. 5A cl. 36 def. of *redevelop-ment project land* amended by No. 49/2019 s. 183(Sch. 3 item 46(t)). ***redevelopment project land*** means— (a) land that is deemed under Part 5 to be temporarily reserved under section 4(1) of the **Crown Land (Reserves) Act 1978** for public purposes, being, inparticular, the purposes of the Link Upgrade Project; or (b) land that is vested in the Head, Transport for Victoria under Part 5. ***relevant date*** in relation to land means the date on which the land first became redevelopment project land. Sch. 5A cl. 37 amended by No. 49/2019 s. 183(Sch. 3 item 46(u)). 37 Power to enter into possession Subject to this Part, the Head, Transport for Victoria may enter into possession of redevelopment project land. Sch. 5A cl. 38 (Heading) amended by No. 49/2019 s. 183(Sch. 3 item 46(v)). Sch. 5A cl. 38 amended by No. 49/2019 s. 183(Sch. 3 item 46(w)). 38 Head, Transport for Victoria must try to obtain agreement The Head, Transport for Victoria must diligently endeavour to obtain agreement with the person in occupation of redevelopment project land (the ***occupier***) as to the terms on which the Head, Transport for Victoria will enter into possession of the land. Sch. 5A cl. 39 amended by No. 49/2019 s. 183(Sch. 3 item 46(x)). 39 Time for entry into possession—general If, at the relevant date, redevelopment project land is not used by any person as the principal place of residence or business of that person, the Head, Transport for Victoria may enter into possession of the land at any time after the relevant date after giving 7 days notice in writing of its intention to enter into possession to the occupier of the land. 40 Time for entry into possession—residence or business Sch. 5A cl. 40(1) amended by No. 49/2019 s. 183(Sch. 3 item 46(y)). (1) Subject to this Part, if redevelopment project land or part of redevelopment project land is used, at the relevant date, by a person as the principal place of residence or business of that person, the Head, Transport for Victoria must not enter into possession of— (a) the part of the land so used; or (b) if the whole of the land is so used, that land— before the end of 3 months after the relevant date and unless the Head, Transport for Victoria has given 7 days notice in writing of its intention to enter into possession to the occupier of the land. (2) The occupier is not liable for the payment of rent in respect of the occupation of that part of the redevelopment project land that is used as the principal place of residence or business of the occupier during the 3 month period referred to in subclause (1). Sch. 5A cl. 40(3) amended by No. 49/2019 s. 183(Sch. 3 item 46(y)). (3) If the occupier ceases of the occupier's own accord to occupy the redevelopment project land before the end of the 3 month period referred to in subclause (1), the entitlement of that person under this Part to occupy the land without payment of rent to the Head, Transport for Victoria also ceases. (4) If the occupier was in occupation of the land immediately before the relevant date— (a) in accordance with section 26(2) of the **Land Acquisition and Compensation Act 1986** or an agreement under section 26(6) of that Act; or (b) in accordance with section 20E(2) of the **Project Development and Construction Management Act 1994** or an agreement under section 20E(6) of that Act— this Part applies as if the 3 month period referred to in subclause (1) were the remainder of the period of occupation permitted under the relevant provision or agreement specified in paragraph (a) or (b) of this subclause. Sch. 5A cl. 40(5) amended by No. 49/2019 s. 183(Sch. 3 item 46(y)). (5) If the occupier was in occupation of the land before the relevant date— (a) in accordance with section 26(2) of the **Land Acquisition and Compensation Act 1986** or an agreement under section 26(6) of that Act; or (b) in accordance with section 20E(2) of the **Project Development and Construction Management Act 1994** or an agreement under section 20E(6) of that Act— and the period of occupation permitted under the relevant provision or agreement specified in paragraph (a) or (b) had ended before the relevant date, the Head, Transport for Victoria may enter into possession of the land at any time after the relevant date after giving 7 days notice in writing of its intention to enter into possession to the occupier of the land. 41 Early entry of place of residence or business (1) Clause 40 does not apply if— Sch. 5A cl. 41(1)(a) amended by No. 49/2019 s. 183(Sch. 3 item 46(z)(i)). (a) the Governor in Council certifies that having regard to— (i) the urgency of the case or any other exceptional circumstances; and (ii) the public interest— it is not practicable for the Head, Transport for Victoria to delay entry into possession of the redevelopment project land until after the end of the 3 month period referred to in clause 40(1); or Sch. 5A cl. 41(1)(b) amended by No. 49/2019 s. 183(Sch. 3 item 46(z)(i)). (b) the Head, Transport for Victoria and the occupier have, with the consent of the Minister, entered into an agreement in relation to the time of entry into possession of the redevelopment project land by the Head, Transport for Victoria. Sch. 5A cl. 41(2) amended by No. 49/2019 s. 183(Sch. 3 item 46(z)(i)). (2) A certificate under subclause (1)(a) must specify the date on which the Head, Transport for Victoria is to take possession. Sch. 5A cl. 41(3) amended by No. 49/2019 s. 183(Sch. 3 item 46(z)(ii)). (3) The Head, Transport for Victoria must serve a copy of the certificate under subclause (1)(a) on the occupier. (4) The occupier whose period of occupation of the redevelopment project land was abridged under subclause (1)(a) is entitled to claim compensation under Part 7 for any loss or damage that is incurred as a direct, natural and reasonable consequence of that abridgment and for which the person could not otherwise make a claim under that Part. (5) The compensation payable pursuant to subclause (4) may be paid to— (a) the person who is entitled to claim the compensation; or (b) the constituted attorney of that person. 42 Occupation may be extended by agreement Sch. 5A cl. 42(1) amended by No. 49/2019 s. 183(Sch. 3 item 46(za)). (1) The period of occupation of the redevelopment project land after the relevant date (including the 3 month period referred to in clause 40(1)) may be extended by agreement in writing between the Head, Transport for Victoria and the occupier of the redevelopment project land. Sch. 5A cl. 42(2) amended by No. 49/2019 s. 183(Sch. 3 item 46(za)). (2) An agreement under subclause (1) must provide for the payment of rent by the occupier of the relevant land to the Head, Transport for Victoria. 43 Continued occupation without agreement If a person continues to occupy redevelopment project land after the period permitted under clause 40 or the relevant date (as the case may be) and an agreement has not been entered into under clause 42 in respect of that occupation, that person— Sch. 5A cl. 43(a) amended by No. 49/2019 s. 183(Sch. 3 item 46(zb)). (a) is to be taken to be in possession of the land in pursuance of a tenancy determinable at will by the Head, Transport for Victoria; and Sch. 5A cl. 43(b) amended by No. 49/2019 s. 183(Sch. 3 item 46(zb)). (b) is liable to pay to the Head, Transport for Victoria a fair market rent in respect of that continued occupation. Sch. 5A cl. 44 amended by No. 49/2019 s. 183(Sch. 3 item 46(zc)). 44 Recovery of rent Any rent payable to the Head, Transport for Victoria under this Part may be recovered as a debt due to the Head, Transport for Victoria in any court of competent jurisdiction. 45 Proceedings where refusal to give up possession Sch. 5A cl. 45(1) amended by No. 49/2019 s. 183(Sch. 3 item 46(zd)). (1) If the Head, Transport for Victoria is entitled under this Part to enter into possession of redevelopment project land and the occupier of the land or any other person— (a) refuses to give up the possession of the land; or Sch. 5A cl. 45(1)(b) amended by No. 49/2019 s. 183(Sch. 3 item 46(zd)). (b) hinders the Head, Transport for Victoria from entering on and taking possession of the land— the Head, Transport for Victoria may issue its warrant under this clause to the sheriff. (2) A warrant issued under this clause authorises the sheriff to— (a) enter onto the land specified in the warrant; and Sch. 5A cl. 45(2)(b) amended by No. 49/2019 s. 183(Sch. 3 item 46(zd)). (b) deliver possession of the land to the Head, Transport for Victoria or the person appointed in the warrant to receive possession of the land; and (c) use such force as is reasonably necessary to execute the warrant. Sch. 5A cl. 45(3) amended by No. 49/2019 s. 183(Sch. 3 item 46(zd)). (3) On receipt of a warrant issued under this clause, the sheriff must deliver possession of the land to the Head, Transport for Victoria or the person appointed in the warrant to receive possession of the land. (4) The costs incurred in the issuing and execution of a warrant must be paid by the person refusing to give up possession. Sch. 5A cl. 45(5) amended by No. 49/2019 s. 183(Sch. 3 item 46(zd)). (5) The amount of the costs and the amount of any rent owed by that person must be deducted and retained by the Head, Transport for Victoria from the compensation (if any) payable under Part 7 to that person. (6) If no compensation is payable to that person or if the compensation payable is less than the amount of the costs and rent (if any) then payment of the amount in excess of the compensation must if not paid on demand be enforced by a warrant to seize property. Sch. 5A cl. 45(7) amended by No. 49/2019 s. 183(Sch. 3 item 46(zd)). (7) On application by the Head, Transport for Victoria, a magistrate must issue a warrant for the purposes of subclause (6). Sch. 5A cl. 45(8) repealed by No. 87/2009 s. 31. 46 Residential Tenancies Act 1997 not to apply Nothing in the **Residential Tenancies Act 1997** applies to or in relation to any matter provided for or any proceedings under this Part. 47 Giving of notices and documents Sch. 5A cl. 47(1) amended by No. 49/2019 s. 183(Sch. 3 item 46(ze)). (1) Any notice or other document that the Head, Transport for Victoria is required to give to any person under this Part may be served on that person personally or by post. Sch. 5A cl. 47(2) amended by No. 49/2019 s. 183(Sch. 3 item 46(ze)). (2) If the Head, Transport for Victoria does not know the location of a person on whom the Head, Transport for Victoria is required to serve the notice or document, the notice or document may be served— (a) by publication of a copy of it in a newspaper circulating generally throughout the State; and (b) by affixing it in a prominent place on the land to which it relates. 48 Minor misdescription not to invalidate notice The validity of any notice under this Part is not affected by any misdescription in it of the land or of any interest in the land if sufficient information appears on the face of the notice to identify the land or interest affected. Sch. 5A cl. 49 amended by No. 49/2019 s. 183(Sch. 3 item 46(zf)). 49 Process under this Part may be completed If the Head, Transport for Victoria has commenced a process under this Part to enter into possession of land vested in it under Part 5 and, before the Head, Transport for Victoria enters into possession of the land, the land is deemed under Part 5 to be temporarily reserved under section 4(1) of the **Crown Land (Reserves) Act** **1978**, the Head, Transport for Victoria may complete any process and take any further action under this Part to obtain possession of the land as if the land had not been so reserved. Part 7—Compensation for surrendered or divested or reserved land 50 Compensation—surrender, divesting or revocation of reservation (1) Subject to this Part and the **Land Acquisition and Compensation Act 1986**, every person who immediately before the publication of an Order under Division 1 or 2 of Part 5 had a legal or equitable estate or interest in land to which the Order applies has a claim for compensation. Sch. 5A cl. 50(2) amended by No. 49/2019 s. 183(Sch. 3 item 46(zg)). (2) The **Land Acquisition and Compensation Act** **1986** (except sections 31 to 36) applies to the determination of compensation payable under this clause as if the publication of the Order were a notice of acquisition of that estate or interest and the Head, Transport for Victoria had acquired that estate or interest. (3) Section 43 of the **Land Acquisition and Compensation Act 1986** applies to the determination of compensation under this clause as if after section 43(1)(b) there were inserted— "(ba) Any special suitability or adaptability of the land in which the acquired interest subsists for a purpose for which it could be used under the **Road Management Act 2004** or the **Melbourne City Link Act 1995** for the purposes of the M1 Redevelopment Project within the meaning of the **Road Management Act 2004**.". (4) This clause does not apply to— (a) an estate or interest held by a public statutory authority; or (b) an estate or interest (other than an interest in fee simple) held by a municipal council. 51 Compensation for municipal councils in certain circumstances (1) This clause applies to land that was under the control of a municipal council immediately before the publication of an Order under Division 2 of Part 5 in relation to that land. Sch. 5A cl. 51(2) amended by No. 49/2019 s. 183(Sch. 3 item 46(zh)). (2) If the municipal council has— (a) sustained any pecuniary loss; or (b) incurred any expense— as a direct, natural and reasonable consequence of the Order, the municipal council may claim the amount of that loss or expense from the Head, Transport for Victoria. (3) For the purposes of subclause (2), the value of the land must not be taken into account when calculating the loss sustained or expense incurred by the municipal council. (4) A claim under subclause (2) must be made within 2 years after the Order was made. (5) Section 48 and Parts 10 and 11 of the **Land Acquisition and Compensation Act 1986** apply to a claim under subclause (2) as if it were a claim under section 47(1) of that Act. Sch. 5A cl. 52 amended by No. 49/2019 s. 183(Sch. 3 item 46(zi)). 52 No other compensation payable Except as provided in this Part or clause 41 or section 127, no compensation is payable by the Crown or the Head, Transport for Victoria in respect of anything done or arising out of Part 5 or Part 6. Part 8—General 53 Effect of reservation of a stratum of Crown land (1) If a stratum of Crown land becomes redevelopment project land, any reservation or other right, title, trust, limitation, reservation, restriction, encumbrance, estate or interest— (a) that applied both to that stratum of land and to any other stratum of land, immediately before the relevant date; and (b) that was revoked or surrendered with respect to the redevelopment project land on the reservation of the stratum— continues to apply to the other strata of land to which it applied immediately before the relevant date, despite the stratum becoming redevelopment project land. (2) In this clause ***redevelopment project land*** and ***relevant date*** have the same meanings as they have in Part 6. 54 Action by Registrar of Titles On being requested to do so and on delivery of any relevant instrument or document (but without production of a duplicate Crown grant or certificate of title), the Registrar of Titles must, as soon as practicable, make any recordings in the Register that are necessary because of the operation of this Schedule.