Access private property via a rail corridor

An occupation crossing provides access between two parcels of land owned by the same land owner that have been divided by a rail corridor. It is sometimes referred to as a Section 36 crossing.

 

The following information may assist if you are buying or selling land on opposite sides of the rail corridor or have questions about accessing crossings over the rail corridor.

 

Background

Occupation crossings were historically granted to a landowner under Section 36 of the Lands Compensation Statute 1869 VIC and the subsequent corresponding legislation being Section 43 (2) of the Land Acquisition and Compensation Act 1986 VIC

 
The granting of Section 36 crossing rights recognised the landowner’s ongoing need to access their land remaining in common ownership on both sides of the acquired land.


General principles


The general principles applicable to these crossings are:

  • The crossings were provided for the exclusive use of the landowner including visitors and others accessing the property.

     

  • An occupation right was mapped by the rail authority at the time of the land being taken to allow for construction of a rail corridor. The railway authority was not bound to consider any prospective or different use, in particular there was no obligation to adapt the crossing to any change of use that would increase the intensity of use and burden on the crossing.

     

  • Subdivision or sale of the original property cannot confer any rights on the purchaser of the subdivided land to use and enjoy the benefits of the crossing, which was provided for the owner of the total land at the time of the construction of the railway. It is the responsibility of the subdivider of the land to arrange alternative appropriate legal access.

 

There is no time restriction on the use and operation of the crossings, which are maintained by the rail operator.
 
Generally an occupation crossing right can be terminated in these ways:

  • Once the land on both sides of an occupation crossing ceases to be owned by the same person, then the occupation crossing right is terminated.

     

  • If a change of use of the crossing occurs and/or substantially increases the burden on the crossing, the crossing will be terminated. For example where a business has been established on one side of the crossing that now requires additional vehicular movements across the crossing, the right is automatically terminated and alternative access must be arranged.

     

  • The crossing will be terminated if the landowner agrees to terminate by agreement with the relevant rail operator.

If the above information does not apply to your property, you can apply for an access license.

We do not provide legal advice, however, we may however hold records to assist in determining historical use of the rail corridor.

 

Contact

If you have any further questions, please contact our Property Customer Service Coordinator on (03) 9619 8889 or at customer.service@victrack.com.au