Residents above the Suburban Rail Loop fight for compensation but new law will shut other homeowners out
Thousands of residents who will live above road or rail tunnels will be cut off from compensation claims, thanks to a secret move by the Andrews government.
Victoria
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The Andrews government has cut off compensation claims for thousands of residents who will live above its road or rail tunnels after quietly changing acquisition laws.
The law changes were part of a Bill for the government’s 90km Suburban Rail Loop under middle Melbourne, and insulate it against claims land values above that tunnel would be damaged.
The changes limit compensation claims to where land is acquired at a depth of less than 15m, and were made amid a lengthy legal battle with Yarraville property owners who live above the route of the $10.6bn West Gate Tunnel.
More than 200 Yarraville titleholders had land acquired underground in 2018 for a tunnel to be built between West Gate Freeway and CityLink.
After taking part of their title, the Andrews government rejected compensation claims, arguing tunnels – even those a few metres below ground – don’t harm property values.
Shadow Treasurer David Davis slammed the change to compensation claims, saying it was “un-Victorian”.
“The unfair plan to take people’s property without proper and fair compensation is un-Victorian,” he said.
“Long-standing rights under the Land Acquisition Act should not have been quashed.
“(Premier Daniel) Andrews routinely operates this way, forcing individuals to carry the burden of his debt-driven edifice complex.”
About 40 homeowners remain in the fight for up to $4m in payments and five test cases will be heard at planning tribunal VCAT in a Victorian-first land rights matter.
Adrian McMillan, an associate at Slater and Gordon and a specialist in environmental and planning law, said “residents have had something that they own taken by the government, and it’s their right to be compensated for that”.
“The same right exists if your whole home is taken, or a corner of your block is shaved off for a road upgrade,” he said.
The WGT claims are worth up to 10 per cent per property, and will set a precedent for other projects, such as the $13.7bn Metro Tunnel.
Any underground land acquired after September for new projects will be subject to the government’s new laws.
Those laws say “a person is not entitled to compensation … at a depth of 15m or more below the surface of land”.
Yarraville homeowners fighting for compensation as part of the WGT project have property titles created before 1891, which run to the centre of the Earth.
Most titles created after this time have depth limits of 15m, meaning they were limited to compensation claims for property value losses when tunnels were shallow. Some businesses affected by the WGT will have the tunnel just 5m below their properties, and are in a separate stoush for compensation.
Mr McMillan said for the WGT and Metro Tunnel, property owners had a “legislative right to compensation” for acquisitions and it was “only fair” this included cash settlements.
A spokeswoman for the Andrews government said compensation offers had been made to 71 property owners in the path of the WGT for some costs but not for property value losses. She said adjustments to state laws had addressed “inconsistencies” around transport project delivery and would be in place for all future projects.
“Melbourne now has a significant number of properties above the City Loop, CityLink and EastLink tunnels. Similar to the people in those areas, people living above the West Gate Tunnels, Metro Tunnel, North East Link tunnels and Suburban Rail Loop will be able to continue using the land as they do today,” she said.
“In most instances these acquisitions start at 15m underground, which won’t stop a property owner from building a pool, cellar or basement.”
The WGT was initially expected to be built by 2022, but a dispute between tolling giant and project proponent Transurban and its builders John Holland and CPB means it will now be delivered three years late and $3.92bn over budget.
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Originally published as Residents above the Suburban Rail Loop fight for compensation but new law will shut other homeowners out
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