Rail Infrastructure Act 2007

This section applies if, as a result of railway works carried out by or on behalf of the Rail Infrastructure Owner or a railway accident – a dividing fence is damaged; or a dividing fence is destroyed; or a dividing fence has to be dismantled; or a dividing fence has to be moved (with or without being dismantled); or a new, unfenced, boundary is formed between the rail network and any adjoining land.

The Rail Infrastructure Owner must, as soon as practicable and in any event no later than 30 days after the railway works are completed and at its own cost – repair the fence if subsection (1)(a) applies; or replace the fence with one of at least the same standard if subsection (1)(b) applies; or reinstate the fence (and carry out any necessary refurbishment of the fence) if subsection (1)(c) applies; or move the fence (if necessary by carrying out any necessary dismantling and reassembly of the fence) if subsection (1)(d) applies; or erect a suitable dividing fence along the unfenced boundary if subsection (1)(e) applies.

If the Rail Infrastructure Owner fails to discharge its obligation under subsection (2), the adjoining landholder may give the Rail Infrastructure Owner a notice requiring it to carry out the necessary fencing work within 30 days or such longer period as the adjoining landholder may allow.

If the Rail Infrastructure Owner fails to comply with the adjoining landholder's notice – the adjoining landholder may carry out the necessary fencing; and any costs reasonably incurred by the adjoining landholder in carrying out that fencing are recoverable as a debt due to the adjoining landholder from the Rail Infrastructure Owner.

For the purposes of subsection (2), the adjoining landholder is entitled to assume that railway works have been completed if, in the absence of any concession by the Rail Infrastructure Owner, it reasonably appears to the adjoining landholder that the purported object of those railway works has been substantially attained, regardless of whether any incidental follow-up action such as equipment removal, land remediation or cleaning-up remains to be taken.

Notwithstanding any other provision of this section, the adjoining landowner may, in writing, release the Rail Infrastructure Owner from its obligation under subsection (2).

For the purposes of this section, and without limiting its generality, railway works that are carried out by a Rail Infrastructure Manager with the actual or ostensible authority of the Rail Infrastructure Owner are taken to have been carried out on behalf of the Rail Infrastructure Owner.

In this section – dividing fence means a fence dividing a part of the rail network from adjoining land that is not Crown land; fence includes part of a fence; repair, a fence, means repair it to the same or a better condition; suitable, in relation to a fence, means suitable in the circumstances having regard to factors like – the safety, security and operability of the rail network; and the safety of persons on adjoining land; and adjoining land use; and the durability and maintenance of the fence; and relevant environmental, heritage and land use factors.