Tourist and Heritage Railways Act 2010

VersionNo. 006

Tourist and Heritage Railways Act 2010

No. 79 of 2010

Version incorporating amendments as at
19 May 2014

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

4Application

5Transport Integration Act 2010

Part 2—Administration

6Appointment of Registrar

7Function of Registrar

8Advisory committee

Part 3—Tourist and Heritage Rail Asset Register

9Establishment of register

10Information to be included in register

11Form of register and access to register

12Compilation of information for inclusion on the register

13Assets not owned by the State or the custodian

14Accuracy of information

15Currency of asset register

16On-site inspection of assets

17Register does not provide evidence of ownership

18Relationship to Victorian Heritage Register

Part 4—Lease Agreements

19Land

20Assets

21Reporting and record keeping

Part 5—Voluntary Registration Scheme

22Registration scheme

23Tourist and Heritage Railway Group Register

24Application for registration

25Registration

26Change of details

27Removal from register at request of operator

28Removal from register of operator that no longer meets criteria for registration

29Review by VCAT

Part 6—General

30Liability in relation to leased railway

31Regulations

Part 7—Consequential Amendments and Savings

33Amendment of Transport (Compliance and Miscellaneous) Act1983

34Land tenure under the Transport (Compliance and Miscellaneous) Act1983

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ENDNOTES

1. General Information

2. Table of Amendments

3. Explanatory Details

VersionNo. 006

Tourist and Heritage Railways Act 2010

No. 79 of 2010

Version incorporating amendments as at
19 May 2014

Part 3—Tourist and Heritage Rail Asset Register

Tourist and Heritage Railways Act 2010
No. 79 of 2010

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purpose

The purpose of this Act is to promote the long term viability of the tourist and heritage railway sector and promote an improvement in the operations of that sector as part of an integrated and sustainable transport system. The Act does so by—

(a)establishing a register of assets used, controlled or managed by tourist and heritage railway operators; and

(b)providing improved land tenure and asset management schemes for tourist and heritage railway operators; and

(c)establishing a voluntary registration scheme for tourist and heritage railway operators under which registered operators may access programs and initiatives made available under the scheme.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 December 2011, it comes into operation on that day.

3Definitions

In this Act—

asset register means the Tourist and Heritage Rail Asset Register established under section 9;

custodian, of a rail asset, means the tourist and heritage railway operator that uses, controls or manages the asset;

description, of an asset,means a description of the asset that includes the following information—

(a)the name of the asset;

(b)the asset type;

(c)the make and model of the asset;

(d)the current condition of the asset relative to its original condition;

(e) the serial number (if any) of the asset;

(f) any other information prescribed by the regulations;

s. 3

S.3 def.of Director repealedby No.61/2011 s.25(Sch.1 item12.1(a)).

*****

history, of an asset, includes the following information in relation to the asset—

(a)the manufacturer of the asset;

(b)the date the asset was manufactured;

(c)details regarding the previous use of the asset;

(d) if known, details of any maintenance, repairs or modifications carried out on the asset including who carried out and who funded the maintenance, repairs or modifications, as the case may be;

owned by the State means owned by or vested in a State entity;

s. 3

person includes an unincorporated body or association and a partnership;

S.3 def. of Public Transport Development Authority insertedby No.61/2011 s.25(Sch.1 item12.1(b)).

Public Transport Development Authorityhas the same meaning as it has in section 3 of the Transport Integration Act 2010;

S.3 def. of
rail asset amendedby No.22/2013 s.75(a).

rail asset means—

(a)the following rail infrastructure—

(i) structures and works associated with railway tracks (for example, cuttings, tunnels, bridges, stations, platforms, tram stops);

(ii)over-track and under-track structures;

(iii)signalling systems;

(iv)rolling stock control systems;

(v)communication systems, notices and signs;

(vi)overhead electrical power supply systems;

(vii)buildings, workshops and depots;

(viii)plant, machinery and equipment;

(b)rolling stock;

(c)anything prescribed by the regulations to be a rail asset;

railway means a guided system designed for the movement of rolling stock that has the capability of transporting passengers on a railway track with a gauge of 600 mm or more, together with its associated infrastructure, and includes—

(a)a heavy railway;

(b)a light railway;

(c)a tramway;

(d)anything prescribed by the regulations to be a railway;

railway premises means any land or building used by a tourist and heritage railway operator in connection with the provision of historical and heritage related rail services but does not include residential premises;

registered operator means a tourist and heritage railway operator who is registered on the Tourist and Heritage Railway Group Register under Part 5;

Registrar means the Tourist and Heritage Railway Registrar appointed under section 6;

S.3 def. of
rolling stockinsertedby No.22/2013 s.75(c).

rolling stock means rolling stock within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria);

s. 3

S.3 def.of State entity amendedby No.70/2013 s.4(Sch.2 item50).

State entity means—

(a)the State; or

(b)the Secretary to the Department of Transport, Planning and Local Infrastructure; or

(d) a body corporate incorporated under an Act; or

(e) a wholly owned subsidiary of an entity referred to in paragraph (c) or (d);

tourist and heritage rail asset means a rail asset used, controlled or managed by a tourist and heritage railway operator in connection with the provision of historical and heritage related rail services;

Tourist and Heritage Rail Asset Register means the register of tourist and heritage rail assets established under section 9;

s. 3

Tourist and Heritage Railway Group Register means the register of tourist and heritage railway operators established under section22;

S.3 def. of
tourist and heritage railway operator amendedby No.22/2013 s.75(b).

tourist and heritage railway operator—

(a)means a non-profit entity that—

(i) provides historical and heritage related rail services; and

(ii)provides those services primarily as a tourist activity and predominantly in Victoria; and

(iii)is a rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006,an accredited person within the meaning of theRail Safety National Law (Victoria) or an entity which provides those services with rolling stock that is operated on behalf of the entity by an accredited rail transport operator or accredited person; but

(b)does not include an entity that the regulations prescribe is not a tourist and heritage railway operator;

VicTrack means Victorian Rail Track established by section 8 of the Rail Corporations Act 1996and continued under section 116 of the Transport Integration Act 2010.

4Application

This Act does not apply in relation to—

(a)a railway that involves only static or non-operational rail assets; or

Example

A railway that is dedicated to the preservation, repair or storage of non-operational rail assets.

(b) a railway in a mine that is underground, or chiefly underground, and that is used in connection with mining operations; or

(d) the narrow-gauge steam railway, known as the Puffing Billy railway, referred to in section 2(1) of the Emerald Tourist Railway Act 1977.

5Transport Integration Act 2010

s. 4

This Act is transport legislation within the meaning of the Transport Integration Act 2010.

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Part 2—Administration

S.6 amendedby No.61/2011 s.25(Sch.1 item12.2).

6Appointment of Registrar

s. 6

The Public Transport Development Authority must appoint a person employed under Part 3 of the Public Administration Act 2004 to be the Tourist and Heritage Railway Registrar.

7Function of Registrar

The function of the Tourist and Heritage Railway Registrar is to compile and maintain—

(a)the Tourist and Heritage Rail Asset Register; and

(b)a register of lease agreements granted by VicTrack under Part 4; and

8Advisory committee

S.8(1) amendedby No.61/2011 s.25(Sch.1 item12.2).

(1)The Public Transport Development Authority may establish an advisory committee to provide advice to the Public Transport Development Authority in relation to—

(a)the voluntary scheme for the registration of tourist and heritage railway operators; and

(b)other matters relating to the provision of historical and heritage related rail services.

(2)The number of members and composition of the advisory committee must be in accordance with the regulations.

______

Part 3—Tourist and Heritage Rail Asset Register

9Establishment of register

s. 9

S.9(1) amendedby No.61/2011 s.25(Sch.1 item12.2).

(1)The Public Transport Development Authoritymust establish a register of tourist and heritage rail assets, to be known as the Tourist and Heritage Rail Asset Register.

(2) The asset register must comprise 3 divisions—

(a)Division 1, listing tourist and heritage rail assets that are owned by the State; and

(b)Division 2, listing tourist and heritage rail assets that are owned by the custodian of the rail asset and which the custodian has elected to be included in the register; and

(c)Division 3, listing tourist and heritage rail assets that are owned by persons other than the State and other than the custodian of the rail asset and which the owner has elected to be included in the register.

10Information to be included in register

(1) The Registrar must assign to each rail asset listed in the Tourist and Heritage Rail Asset Register a unique asset number.

(2) The Registrar must record in the asset register the following information against each listed asset—

(a)the asset number assigned to the asset under subsection (1);

(b)a description of the asset;

(c)the location of the asset;

(d) the owner of the asset;

(e) the custodian of the asset;

(f) the history of the asset;

(g) details of insurance arrangements relating to the asset;

(h) any other information about the asset that the Registrar considers should be included in the asset register.

11Form of register and access to register

s. 11

(1)The Tourist and Heritage Rail Asset Register may be wholly or partly in the form of a computer database, in documentary form or in any other form the Registrar considers appropriate.

(2)Division 1 of the asset register must be available for inspection, free of charge, to the public.

(3)Divisions 2 and 3 of the asset register must be available for inspection, free of charge, to a registered operator.

(4)The custodian of a tourist and heritage rail asset listed in Division 2 or 3 must be given access to the information recorded against the asset on the asset register.

(5)Subsection (4) applies regardless of whether or not the custodian is a registered operator.

12Compilation of information for inclusion on the register

(1)The Registrar may request a tourist and heritage railway operator to provide to the Registrar the following information relating to each rail asset owned by the State of which the operator is the custodian—

(a) a description of the asset;

(b)the location of the asset;

(d) details of insurance arrangements relating to the asset;

(e) any other information about the asset that the Registrar considers should be included in the asset register.

(2) A request under subsection (1) must be in writing and state that the purpose of the request is to include in the asset register information relating to each tourist and heritage rail asset that is owned by the State.

(3) If a tourist and heritage rail asset is not owned by the State but the owner of the asset has elected to have the asset included in the asset register, the custodian of the rail asset must provide to the Registrar—

(a)the information relating to the asset specified in subsection (1)(a) to (e); and

(b)the name of the person whom the custodian believes is the owner of the asset.

13Assets not owned by the State or the custodian

s. 13

(1)This section applies to a tourist and heritage rail asset that is not owned by the State or by the custodian of the asset.

(2)The custodian of the rail asset must not provide to the Registrar the information relating to the asset specified in section 12(3) unless the custodian has obtained a written election from the owner of the asset to have the asset included in the asset register.

(3)If the owner of the rail asset which is included in the asset register requests the custodian of the asset to do so, the custodian must—

(a)provide the owner with an extract of the asset register containing the information recorded against the asset; and

(b)if necessary, notify the Registrar of any change or correction required to that information.

14Accuracy of information

s. 14

(1) The Registrar must not include a tourist and heritage rail asset in the asset register unless satisfied that—

(a)the asset is owned by the State; or

(b)in the case of an asset that is not owned by the State, the owner of the asset has elected to have the asset included in the asset register.

(2) The Registrar must not include information relating to a rail asset in the asset register unless the Registrar is satisfied that the information is accurate.

(3)In determining whether or not information relating to the ownership of an asset is accurate, the Registrar must have regard to any documentary evidence and other relevant material relating to the asset.

(4)If the Registrar is not satisfied as to the accuracy of the information relating to an asset, the Registrar may request the custodian of the asset to provide further information.

(5)VicTrack must provide the Registrar with any information or assistance required by the Registrar to verify information relating to a rail asset.

15Currency of asset register

(1)The Registrar must use his or her best endeavours to ensure that the information recorded in the asset register is up to date.

(2) The custodian of a rail asset listed on the asset register must notify the Registrar in writing of any change to the information recorded against the rail assetin the asset register.

(3) If—

(a)the Registrar is advised of a change to the information recorded against a rail asset in the asset register by the custodian of the rail asset; and

(b)the Registrar is satisfied that the advice is accurate—

the Registrar must amend the register accordingly.

(4) Subject to subsection (5), the Registrar may request the custodian of a rail asset to check that the information recorded against the rail asset in the asset register is up to date and, if it is not, to advise the Registrar of the required change.

(5) The Registrar may not make a request under subsection (4) more than once in any 12 month period.

16On-site inspection of assets

s. 16

(1)For the purpose of compiling or maintaining the asset register, the Registrar may conduct an onsite inspection of railway premises on which the Registrar reasonably believes tourist and heritage rail assets owned by the State are held.

(2)The Registrar may by instrument authorise another person or other persons to conduct an onsite inspection under subsection(1).

(3)An on-site inspection of railway premises must not be conducted under subsection (1) unlessthe operator of the railway premises—

(a)has been notified in writing of the proposed date and time of the inspection; and

(b) has given written consent to the inspection and confirmed the date and time of the inspection.

(4)In this section, the operator, of a railway premises, means the tourist and heritage railway operator who is using the railway premises in connection with the provision of historical and heritage related rail services.

17Register does not provide evidence of ownership

s. 17

The asset register does not provide evidence of ownership of any rail asset listed in the register.

18Relationship to Victorian Heritage Register

(1)Any information included in the asset register does not affect, add to or detract from the Victorian Heritage Register established under the Heritage Act 1995.

(2)The inclusion of a tourist and heritage rail asset on the asset register is not intended to imply that the asset is of any cultural heritage significance.

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Part 4—Lease Agreements

19Land

s. 19

(1)VicTrack may grant to a person who is a tourist and heritage railway operator, or who intends to be a tourist and heritage railway operator, a lease in respect of any land vested in VicTrack that is used, or proposed to be used, by the person in connection with the provision of historical and heritage related rail services.

(2) A lease of land granted under subsection (1) must include the following—

(a)a description of the land;

(b)a list of all fixtures to the land;

(c)the term of the lease;

(d) the process for renewing the lease;

(e) the amount of annual rent (if any) payable;

(f) for any tourist and heritage rail assets that are owned by the State and listed as fixtures to the land—

(i) the insurance arrangements for those rail assets; and

(ii)the maintenance responsibilities for those rail assets;

(g) a holding over provision to enable the lease to continue if, after the term of the lease, the lease is not renewed;

(h) the reclamation rights of the lessor including the notice required to be given to the lessee and any compensation payable;

(i) the circumstances under which the land may be sublet and the procedures for doing so.

(3)The amount of rent payable under a lease granted under subsection (1) must not be more than a nominal amount.

20Assets

s. 20

(1)This section applies to rail assets owned by the State other than rail assets that are fixtures to land leased to a tourist and heritage railway operator under section 19.

(2)VicTrack may, on behalf of a State entity, grant to a person who is a tourist and heritage railway operator, or who intends to be a tourist and heritage railway operator, a lease that entitles the person to use, control or manage such assets in connection with the provision of historical and heritage related rail services.

(3)Subsection (2) applies despite section 118 of the Transport Integration Act 2010.

(4)A lease of rail assets granted under subsection (2) must include the following—

(a)a description of each asset that is the subject of the lease;

(b) the term of the lease;

(d)the amount payable (if any) under the lease;

(e) for all rail assets that are the subject of the lease—

(i) the insurance arrangements for those rail assets; and

(ii)the maintenance responsibilities for those rail assets;

(f) a holding over provision to enable the lease to continue if, after the term of the lease, the lease is not renewed;