Be Aware of Essential Public Transport Infrastructure Declarations

The use and ownership of public transport assets is a key focus of the Queensland Government’s plan to mandate the replacement of diesel-powered buses operating on TransLink services in South East Queensland with zero emission vehicles from 2025.

Under existing arrangements for integrated mass transit service contract holders with the Department of Transport and Main Roads (TransLink), assets including depots and buses used in the provision of public passenger services in Queensland are owned by contract holders and/or their related entities.

However, certain laws contained in the Transport Operations (Passenger Transport) Act 1994 (Qld) (TOPTA) can affect the use of these assets if they are declared to be essential public transport infrastructure.

power to declare assets to be essential public transport infrastructure

Under section 36A of TOPTA, the Minister for Transport and Main Roads has the power to declare certain assets used in the provision of a public passenger service to be “essential public transport infrastructure”.

Such a declaration can only be made if the Minister is satisfied that the infrastructure makes up part of the transport network for public passenger services and is essential to the continuity of such services.

Critically, the ordinary dictionary meaning of “infrastructure” is expanded to include “land and any other property”, meaning that bus depots and entire fleets of vehicles could be declared as being essential public transport infrastructure.

why were these laws introduced?

Explanatory notes reveal that these laws were introduced to ensure local government and privately owned infrastructure could always be used for public transport services even if they were affected by redevelopment or changes to ownership or leasing arrangements.

The Bulimba ferry terminal in Brisbane was used as an example as to why these laws were required. Prior to the introduction of these laws, the land used for the ferry terminal (which was privately owned) could have been sold to a developer, with the government powerless to prevent the removal of the ferry terminal.

Under these laws, the government could declare the ferry terminal as “essential public transport infrastructure” and issue the owner of the property with a direction to retain its current use for public transport services.

What happens if a declaration is made?

If a piece of infrastructure is declared to be essential, the chief executive of the Department of Transport and Main Roads has the power under section 36B of TOPTA to direct the owner:

• to allow any operator of the relevant service for the infrastructure to use the infrastructure on stated conditions fixed by the chief executive; and
• not to change the infrastructure in a way that restricts its use.

This known as an "essential infrastructure direction" which is binding on:

• the owner and any lessee of the infrastructure to which the direction relates; and
• if the infrastructure consists of land - any person with an interest in the land; and
• any transferee/purchaser of the infrastructure from a person mentioned above; and
• anyone else who has control of the infrastructure.
  
  

If an essential infrastructure direction relates to land, a copy of that direction must be registered by the State on the Queensland Land Titles Register.

There is a significant financial penalty for an owner’s failure to comply with an essential infrastructure direction. As of October 2023, the maximum penalty is $257,742 being 1,665 penalty units.

Limited right to compensation

Critically, a person’s right to claim compensation for the State for costs incurred in complying with an essential infrastructure direction is limited by section 36F of TOPTA.

A claim for compensation must not include any component for:

• loss of income or profit for any use of the infrastructure other than that required to be allowed under the direction; or
• diminution in the value of the infrastructure or land related to the infrastructure because of the direction.