Australia: Infrastructure Reform in Queensland Part 2 – fixing the framework for developers and financiers


The legislative framework was designed for a bygone era where government was virtually the sole supplier of infrastructure. Its failure to accommodate the increased role of the private sector in major projects is affecting both government and private entities across a variety of gas, water, electricity and rail projects.

Part one of this article looked at the generic conflicts and challenges experienced by most industry sectors in trying to operate under the current framework. In this second instalment we turn our attention to the specific challenges faced by the water, gas, electricity and rail sectors and also the major project risks for proponents and financiers of linear infrastructure.


Securing easements for infrastructure assets such as power lines, water pipelines and gas pipelines is a key challenge for private sector projects. While there are provisions in the legislation to secure easement corridors, those provisions have been interpreted so that they can only be used where the easement is to provide a public utility service.

This creates problems for private infrastructure across a range of sectors. Typical examples include:

  • Bulk water transportation: Increasingly water projects are being developed for specific customers (such as a single mine). In this case, the supplier is not providing a public utility service and thus may not qualify as a public utility provider for the purpose of holding a public utility easement/easement in gross.
  • Bulk transportation of gas: Legislation was introduced to Parliament last year to amend the provisions of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) to provide for the holder of a pipeline licence to be deemed to be a public utility provider and hold a public utility easement. Those amendments have lapsed. It is not clear when or if those amendments will be reintroduced into Parliament. Furthermore, the amendments, if reintroduced and passed, will only apply to limited forms of infrastructure.
  • Transmission and distribution of electricity: While the Electricity Act 1994 (Qld) provides a mechanism for the compulsory acquisition of easement corridors, those provisions have not been made available for private projects.

As noted in Part one of this paper, there does not seem to be any policy basis for requiring an easement in gross to be for the purpose of providing a utility service to the public. We recommend this condition be removed from the Land Act 1994 (Qld) and the Land Title Act 1994 (Qld).

We also recommend that the Minister responsible for the Electricity Act 1994 (Qld) provides guidance (and greater flexibility) as to the types of projects that can be authorised to acquire land under section 116(1).


Existing rail corridors and new rail corridors face issues because there are gaps in tenure over water courses and some road crossings. There is a particular problem with non-tidal boundary water courses. This raises issues for the accreditation of those railway operations under the Transport (Rail Safety) Act 2010 (Qld).

The provisions for light rail currently operate on the basis of a perpetual lease/?sublease model. This may not be appropriate in circumstances where much of the route of the light rail track will be shared with road vehicles. The concept of a perpetual lease is inconsistent with shared use of a road. Other models should be investigated, including the use of a statutory licence (as contemplated by section 355A of the Transport Infrastructure Act 1994 (Qld)).


The private sector has, for some time, been integral to the development and financing of private infrastructure. Nowadays, private companies are also increasingly involved in developing and financing public infrastructure. This evolution towards more private sector involvement in projects has exposed potential issues for financiers under the current legislative framework.

Step in rights may not be possible

A step-in clause, as the name suggests, permits a financier to 'step-in' and take over a development project if the project proponent defaults. Financiers generally want step in rights as they provide a level of security that the project will be completed despite the proponent defaulting.

In an infrastructure context, to step in and take control of the infrastructure and the easement corridor, the financier would need to be eligible to hold a public utility easement. This would require recognition under the Land Act and the Land Title Act 1994 (Qld) as a "public utility provider". That is, the financier would need to be approved by the Minister "as suitable to provide a public utility service".

Even if this approval can be obtained, it is a process which will delay the financier.

The restrictions on the "public utility provider" status will also hinder the financier's ability to require a transfer of the easements to a prospective purchaser of the infrastructure. Any purchaser would also need to obtain this approval.

As noted earlier, the lack of any policy basis for requiring an easement in gross to be for providing a utility service to the public suggests this condition should be removed from the Land Act 1994 (Qld) and the Land Title Act 1994 (Qld).

No ability to mortgage

Current requirements do not allow a mortgage to be registered over the proponent's interest in the easements.

In the same way that the State needs to review the existing statutory framework to provide for the creation of sub-easements (as set out in Part one of this paper), the State needs to facilitate the creation and registration of mortgagee interests.

Otherwise, the only way a financier can protect against the termination of an easement is to require the proponent to put in place tripartite agreements between the landowner, the proponent and the financier. This may not be practical. There are also difficulties if the landowner sells the land.


There are clearly a number of issues that must be addressed to reform tenure used for linear infrastructure projects in Queensland.

Many of the issues are well known and require urgent attention.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.