Dear Mr. King
May I please acknowledge your correspondence of 19th October regarding queries from one of your constituents M r. Olmec Sinclair on the matter of ''purchase of a subdivision at Milmore Downs Ltd, Overtons Road, Scargill''.
You are right in your note that the Main North Railway bisects this portion of land and there is a rail crossing at the 89.9km (89. 985km Mark exactly).
It appears that Mr. Sinclair has issue with the nature of the crossing, the obligation on the part of the vested owner of the land and its affect on this subdivision.
For clarity it needs to be noted that the crossing at the 89.985km is ''not'' deemed to be statutory. The original block of land, owned by William Acton Adams and bisected for rail purposes by Proclamation 132 comprised CsT70/9, 1 53/149 and 164/111. Mr. Adams property of the time adjoined legal roads at both south-west and north-east ends.
Pursuant to the Public Works Act, statutory crossings were provided where the making of a railway severed access to a road. As this did not happen in this instance, any crossing formed accessing this property was not considered to be statutory. In fact it needs to be further noted that this entire original parcel of land does not have or hold rights for a statutory crossing, contrary to any other counsel M r. Sinclair may have on the matter.
Since the acquisition of the railway, the original property has been subdivided and four crossings have been formed. At best, all of these crossings remain as informal arrangements, without safety or operational controls and as such are liable for closure without notice. ONTRACK is currently undertaking a nationwide review of all informal crossings and in the absence of a formal Deed of Grant is arranging closure.
It is my understanding that ONTRACK has offered Mr. Sinclair a Deed of Grant for this crossing but there remains a question on his part with regard to rules of engagement.
Section 75 of the Railways Act 2005 states;
- Despite anything in any other Act. no person may exercise a right under an easement, or construct or carry out work on over or under any railway infrastructure or railway premises, without having first sought and obtained the written permission of the licensed access provider or railway premises owner concerned.
- The licensed access provider or railway premises owner may require the person to execute a deed or agreement setting out the conditions subject to which the permission is granted.
- If a condition in a deed or agreement executed under subsection (2) constitutes a charge, that charge must be reasonable
Therefore; in consideration for the offer of a Grant and access over railway land, Mr. Sinclair will be responsible for all costs associated with ongoing maintenance of the crossing as well as any ensuring any safety criteria are being met.
As the Crowns representative for land and rail infrastructure, as well as the rail access provider, it is absolutely essential that ONTRACK know who is using or crossing rail land and under what conditionality and safety consideration this is occurring. Where no Grant exists, as is the case at present, anyone crossing the corridor is deemed to be in breach of Trespass. ONTRACK'S legal powers for rectification to such issues are Section 35 New Zealand Railways Corporation Act 1981.
Yours sincerely,
Southern Regional manager
ONTRACK