Australian Oil Refining Agreements Act 1954 (NSW)

Australian Oil Refining Agreements Act 1954 No 34 An Act to ratify a certain Agreement made between Australian Oil Refining Limited of the one part and the Minister for Lands for and on behalf of Her Most Gracious Majesty Queen Elizabeth II of the other part with respect to the sale to such Company of certain lands at Kurnell and the granting to such Company of the right to obtain leases of and licences over certain adjacent lands; to provide for the carrying into effect of the said Agreement; to amend the Crown Lands Consolidation Act 1913, the Public Works Act 1912, and certain other Acts in certain respects; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act This Act may be cited as the Australian Oil Refining Agreements Act 1954. Part 2 Australian Oil Refining Limited Agreement Ratification 2 Definitions In this Part, unless the context or subject matter otherwise indicates or requires— Board means the Maritime Services Board of New South Wales. Company means Australian Oil Refining Limited. Minister means the Minister for Lands of the State of New South Wales and his successors in office. The Agreement means the Agreement, a copy of which is set out in the First Schedule to this Act, as amended by the Agreement, a copy of which is set out in the Second Schedule to this Act. 3 Ratification of Agreement (1) The Agreement a copy of which is set out in the First Schedule to this Act is hereby approved, ratified and confirmed and may be carried into effect notwithstanding the provisions of any other Act. (2) All acts, matters and things, for or with respect to which provision is made in the Agreement, or which, by the Agreement are agreed, directed, authorised or permitted to be made, done or executed by or on behalf of Her Majesty or the Governor or the Minister or the Minister for Public Works or the Board or the Auditor-General or the Registrar-General are hereby sanctioned, authorised and confirmed. 4 Restrictions on sale or lease of land in First Schedule to Agreement The Company shall not, unless the written consent of the Minister be first obtained, sell or dispose of or lease for a term exceeding three years from the execution of the lease the lands described in the First Schedule to the Agreement or any part thereof: Provided that this section shall cease to operate— (a) upon the Minister stating in writing that the Company has performed the provisions of subclause (a) of clause one of the Agreement, or (b) upon the Company paying to the Minister the liquidated damages covenanted by it in subclause (b) of clause one of the Agreement to be paid to him, or (c) upon the Auditor-General certifying that the total sum arrived at by adding together the cost of the permanent and fixed improvements erected and constructed and caused to be erected and constructed within four years from the first day of January, one thousand nine hundred and fifty-three (or such further time, if any, allowed by the Auditor-General in writing) by the Company upon the said lands and the other lands referred to in subclause (a) of clause one of the Agreement for the purpose of carrying on industrial operations thereon and all other expenditure incurred by the Company in relation to the project generally is the equivalent of at least ten million pounds Australian currency. In this section the terms permanent and fixed improvements and industrial operations and all other expenditure incurred by the Company in relation to the project generally and project have the meanings respectively ascribed to them in subclause (h) of clause one of the Agreement. 5 Resumption of land described in Second Part of First Schedule to Agreement (1) As soon as practicable after the completion of the sale to the Company of the lands described in the First Schedule to the Agreement, the Governor shall appropriate and resume the land described in the Second Part of such Schedule but to a depth only of five hundred feet below the surface by Gazette notification under Division 1 of Part 5 of the Public Works Act 1912, as amended by subsequent Acts. (2) For the purposes of the Public Works Act 1912, as amended by subsequent Acts, such appropriation and resumption shall be deemed to be for the purpose of carrying out an authorised work within the meaning of that Act, as so amended, and the Minister shall be the Constructing Authority in respect thereof. (3) Such appropriation and resumption shall not acquire the mines or deposits of coal, ironstone, kerosene shale, limestone, slate or other minerals under the land so appropriated and resumed. (4) Notwithstanding anything contained in the Public Works Act 1912, or in any other Act, upon the publication in the Gazette of such notification the lands therein described shall, to the depth to which they are so appropriated and resumed, forthwith be vested in Her Majesty, Her Heirs and Successors freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights of the public, rights-of-way or other easements whatsoever and shall be deemed to be Crown lands within the meaning of the Crown Lands Consolidation Act 1913, as amended. (5) The Council of the Shire of Sutherland shall, upon asserting its claim and subject to proof of title, be entitled to compensation on account of any and every appropriation and resumption of lands effected under the foregoing provisions of this section but otherwise subsection five of section two hundred and thirty-three of the Local Government Act 1919, as amended by subsequent Acts, shall not apply to any such appropriation and resumption. 6 Certain covenants by Company to bind lands in First Schedule to Agreement (1) The provisions to the effect of sub-clause (a) of clause twenty of the Agreement included in the Crown Grants of the lands described in the First and Second Parts of the First Schedule to the Agreement shall without limiting the Agreement be deemed to be covenants by the Company for itself its successors and assigns with the Minister and shall bind the said lands and every part thereof into whosesoever hands the same may come and bind all persons interested therein and the Registrar-General shall endorse every Crown Grant comprising such lands or any part thereof accordingly. (2) The provisions to the effect of sub-clauses (a), (b) and (c) of clause twenty-six of the Agreement included in the Crown Grants of the lands described in the First Schedule to the Agreement shall without limiting the Agreement be deemed to be covenants by the Company for itself its successors and assigns with the Minister and his successors in office and the other parties with whom the covenants contained in the said sub-clauses are expressed to be made and shall bind the said lands and every part thereof into whosesoever hands the same may come and bind the persons interested therein and the Registrar-General shall endorse every Crown Grant comprising such lands or any part thereof accordingly. (3) The provisions to the effect of sub-clause (a) of clause twenty-seven of the Agreement included in the Crown Grants of the lands described in the First Schedule to the Agreement shall without limiting the Agreement be deemed to be covenants by the Company for itself its successors and assigns with the Minister and his successors in office and shall bind the said lands and every part thereof into whosesoever hands the same may come and bind the persons interested therein and the Registrar-General shall endorse every Crown Grant comprising such lands or any part thereof accordingly. 7 Determination of rental by Secretary (1) The Secretary is to determine the annual rental under clause 21 (d) of the Agreement. (2) In determining the annual rent— (a) the Secretary has and may exercise all of the functions that a local land board could have exercised under this section and the Agreement immediately before the amendment of this section by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013, and (b) the Secretary's decision is taken to have the same effect for the purposes of the Agreement as a decision of a local land board would have had immediately before that amendment. (2A) For the avoidance of doubt, the amendment of this section (or a determination of annual rent as provided for by this section) does not constitute a breach of the Agreement. (3) An appeal by either party may be made to the Land and Environment Court from the determination by the Secretary of such annual rental by filing within a period of twenty-eight days from the date of the determination appealed against notice of the appeal in the Court, and by serving within such period notice of the appeal on the other party to the determination. An appeal on behalf of Her Majesty against any such determination may be made by the Minister or by the Under Secretary for Lands on the Minister's behalf. (4) In this section— Secretary has the same meaning as in the Crown Land Management Act 2016. 8 Provisions of Harbour and Tonnage Rates Act 1920–1953, to apply The Harbour and Tonnage Rates Act 1920–1953, and any Act amending or replacing the same and the regulations from time to time in force thereunder but in so far only as such Acts and regulations relate to the imposition, collection and payment of tonnage rates and berthing charges shall apply to and in respect of every jetty or wharf (which terms for the purposes of this section shall include any structure, landing place or facility where cargo may be loaded or discharged or where vessels may be berthed) now or hereafter erected, constructed or provided upon any and every part of the land described in the Second Schedule to the Agreement as if the same were a public wharf and accordingly tonnage rates and berthing charges in accordance with the said Act and regulations shall be payable in respect of all vessels berthing at any such jetty or wharf subject only to the following exceptions— (a) any vessel carrying loading or discharging only cargo and/or goods which are or have been or are about to become the property of the Company and/or of any affiliate of the Company shall be exempt from the payment of such tonnage rates and berthing charges, (b) any vessel carrying and/or loading and/or discharging cargo and/or goods part only of which is has been or is about to become the property of the Company and/or of any affiliate of the Company shall be granted a rebate of such tonnage rates and berthing charges to the extent of the ratio which that part of the cargo and/or goods which is loaded and/or discharged and which is has been or is about to become the property of the Company and/or of any affiliate of the Company bears to the whole of the cargo and/or goods which is loaded and/or discharged, (c) any vessel the property of or chartered by the Company or the property of or chartered by any affiliate of the Company berthing for a purpose other than the loading or discharging of cargo shall be exempt from the payment of such tonnage rates and berthing charges. In this section the term affiliate has the meaning ascribed to it in subclause (c) of clause twenty-four of the Agreement. 9 Certain persons may sue and be sued by the Company It shall not be an objection to the Minister for Public Works, the Board and the Council of the Shire of Sutherland or any of them suing the Company and being sued by the Company under the Agreement that the Minister for Public Works, the Board and the Council of the Shire of Sutherland or any of them are not parties to the Agreement a copy of which is set out in the First Schedule to this Act. Part 3 Australian Lubricating Oil Refinery Limited Agreement Ratification 10 Definitions In this Part, unless the context or subject matter otherwise indicates or requires— Board means the Maritime Services Board of New South Wales. Company means Australian Lubricating Oil Refinery Limited. Minister means the Minister for Lands of the State of New South Wales and his successors in office. The Agreement means the Agreement, a copy of which is set out in the Third Schedule to this Act. 11 Ratification of Agreement (1) The Agreement is hereby approved, ratified and confirmed and may be carried into effect notwithstanding the provisions of any other Act. (2) All acts, matters and things, for or with respect to which provision is made in the Agreement, or which, by the Agreement are agreed, directed, authorised or permitted to be made, done or executed by or on behalf of Her Majesty or the Governor or the Minister or the Board or the Auditor-General or the Registrar-General are hereby sanctioned, authorised and confirmed. 12 Certain covenants by Company to bind lands in First Schedule to Agreement (1) The provisions to the effect of subclause (a) of clause twenty of the Agreement included in the Crown Grants of the lands described in the First Schedule to the Agreement shall without limiting the Agreement be deemed to be covenants by the Company for itself its successors and assigns with the Minister and shall bind the said lands and every part thereof into whosesoever hands the same may come and bind all persons interested therein and the Registrar-General shall endorse every Crown Grant comprising such lands or any part thereof accordingly. (2) The provisions to the effect of subclauses (a), (b) and (c) of clause twenty-two of the Agreement included in the Crown Grants of the lands described in the First Schedule to the Agreement shall without limiting the Agreement be deemed to be covenants by the Company for itself its successors and assigns with the Minister and his successors in office and the other parties with whom the covenants contained in the said subclauses are expressed to be made and shall bind the said lands and every part thereof into whosesoever hands the same may come and bind the persons interested therein and the Registrar-General shall endorse every Crown Grant comprising such lands or any part thereof accordingly. (3) The provisions to the effect of subclause (a) of clause twenty-three of the Agreement included in the Crown Grants of the lands described in the First Schedule to the Agreement shall without limiting the Agreement be deemed to be covenants by the Company for itself its successors and assigns with the Minister and his successors in office and shall bind the said lands and every part thereof into whosesoever hands the same may come and bind the persons interested therein and the Registrar-General shall endorse every Crown Grant comprising such lands or any part thereof accordingly. 13 Certain persons may sue and be sued by the Company It shall not be an objection to the Board and the Council of the Shire of Sutherland or either of them suing the Company and being sued by the Company under the Agreement that the Board and the Council of the Shire of Sutherland or any of them are not parties to the Agreement. 14 Transferred provisions to which Interpretation Act 1987 applies Sections 10–13 and the Third Schedule re-enact (with minor modifications) sections 2, 3, 5 and 6 and the Schedule to the Australian Lubricating Oil Refinery Limited Agreement Ratification Act 1962 and are transferred provisions to which section 30A of the Interpretation Act 1987 applies. First Schedule Australian Oil Refining Limited Agreement THIS AGREEMENT made the sixteenth day of June One thousand nine hundred and fifty-four BETWEEN—AUSTRALIAN OIL REFINING LIMITED a Company duly incorporated under the Companies Acts of the State of New South Wales (hereinafter called "the Company") of the one part and THE HONOURABLE FRANCIS HAROLD HAWKINS the Minister for Lands of the said State for and on behalf of Her Most Gracious Majesty Queen Elizabeth II (hereinafter called "the Minister" which expression shall where the context admits include his successors in office) of the other part WHEREAS the Company is desirous of establishing and conducting an extensive oil refinery at Kurnell in the said State and to that end has requested the Minister to enter into this Agreement with the Company which the Minister has agreed to do NOW IT IS HEREBY AGREED as follows:— 1. (a) The Company hereby covenants with the Minister that the Company without cost to the Minister or Her Majesty Her Heirs or Successors shall upon the date of commencement of this Agreement have commenced or caused to be commenced the erection and construction of permanent and fixed improvements upon the lands described in the First Second Fourth Sixth Seventh and Eighth Schedules hereto and the other lands now owned or hereafter acquired by the Company adjoining or adjacent to the lands described in the First Schedule hereto for the purpose of carrying on industrial operations thereon and shall thereafter proceed with or cause to be proceeded with such erection and construction so that at the expiration of four years from the First day of January 1953 or of such further period if any as may be allowed by the Auditor-General in writing under the provisions hereinafter contained the Company shall have without cost to the Minister or Her Majesty Her Heirs and Successors erected and constructed or caused to be erected and constructed since the First day of January 1953 upon the said lands and other lands as aforesaid permanent and fixed improvements to a cost which together with all other expenditure incurred by the Company in relation to the project generally amounts to the equivalent of at least Sixteen million pounds (£16,000,000) Australian currency for the purpose of carrying on industrial operations thereon and the Company covenants with the Minister to construct and to have constructed such permanent and fixed improvements to the said cost within the said period of four years from the First day of January 1953 (or further period if any allowed in writing by the Auditor-General as aforesaid) accordingly. (b) In the event of the Company failing to erect and construct or cause to be erected and constructed upon the said lands and other lands as aforesaid such permanent and fixed improvements to a cost which together with all other expenditure incurred by the Company in relation to the project generally amounts to the equivalent of at least Sixteen million pounds (£16,000,000) Australian currency as required by the preceding sub-clause within the time as thereby provided the Company hereby covenants to pay to the Minister as liquidated damages and not as penalty a sum calculated at the rate of Ten pounds (£10) per centum of the amount by which the sum of Sixteen million pounds (£16,000,000) in Australian currency exceeds the total sum (in Australian currency) arrived at by adding together the cost of such permanent and fixed improvements erected and constructed and caused to be erected and constructed by the Company upon the said lands and other lands as aforesaid within the time as aforesaid and all other expenditure incurred by the Company in relation to the project generally. (c) A certificate by the Auditor-General of the State of New South Wales as to the total sum arrived at by adding together the cost of the permanent and fixed improvements erected and constructed and caused to be erected and constructed within the period of four years from the First day of January 1953 (or such further period if any allowed by the Auditor-General in writing under the provisions hereinafter contained) by the Company upon the said lands and other lands as aforesaid for the purpose of carrying on industrial operations thereon and all other expenditure incurred by the Company in relation to the project generally shall be final and conclusive and binding upon the parties hereto (d) The Company shall from time to time produce all relevant books vouchers documents papers and evidence to, and allow the permanent and fixed improvements on the said lands and other lands as aforesaid and all other relevant property assets and things to be inspected by:— (i) the Minister and persons authorised by him for the purpose of ascertaining the performance or non-performance by the Company of sub-clause (a) of this Clause; and (ii) the Auditor-General (and persons authorised by him) for the purposes of subclauses (a) (c) and (f) of this Clause. (e) The Company shall not unless the written consent of the Minister be first obtained, sell or dispose of or lease for a term exceeding three years from the execution of the lease the lands described in the First Schedule hereto or any part thereof PROVIDED that this subclause shall cease to operate upon the Minister stating in writing that the Company has performed the provisions of sub-clause (a) of this Clause or upon the Company paying to the Minister the liquidated damages covenanted by it in sub-clause (b) of this Clause to be paid to him or upon the Auditor-General certifying that the total sum arrived at by adding together the cost of the permanent and fixed improvements erected and constructed and caused to be erected and constructed within four years from the First day of January 1953 (or such further time if any allowed by the Auditor-general in writing) by the Company upon the said lands and other lands as aforesaid for the purpose of carrying on industrial operations thereon and all other expenditure incurred by the Company in relation to the project generally is the equivalent of at least Ten million pounds (£10,000,000) Australian currency. (f) If through any cause beyond the control of the Company and not arising from or due to or contributed to by any neglect default or misconduct of the Company or its agents or servants delay occurs in the erection or construction by the Company of such permanent and fixed improvements as provided by sub-clause (a) of this Clause the Company may from time to time within six months of the happening or occurring of the event or matter causing the delay apply in writing to the Auditor-General for an extension of time on account of such event or matter setting forth the cause of such application and the Auditor-General shall if he thinks the cause sufficient and within the foregoing provisions of this sub-clause (f) but not otherwise allow by writing under his hand such extension of time as he may think adequate. (g) Unless the Company shall make such application within the time and in the manner aforesaid and unless and until the Auditor-General shall allow such extension or extensions of time as aforesaid the Company shall not by reason of any delay arising as in the preceding subclause mentioned or for any other reason whatsoever be relieved in any way or to any extent of its liability to erect and construct such permanent and fixed improvements as provided by sub-clause (a) of this Clause within the time as therein provided or of any other liability or obligation of the Company under this Agreement. (h) In this Clause the term "permanent and fixed improvements" includes buildings structures fencing storage tanks railways permanent pipe lines levelling of land reclamation of land wharves roads drains and canals and works and erections and other appurtenances to any of the foregoing and also includes fixed plant and machinery of any description and the term "all other expenditure incurred by the Company in relation to the project generally" includes expenditure incurred by the Company prior to the expiration of the said period of four years (or further period, if any, allowed in writing by the Auditor-General as aforesaid) and whether before or after the First day of January, 1953, upon or in relation to— (i) the provision of access road from Caringbah to Kurnell and substituted Boat Harbour track; (ii) the provision of a water line to Kurnell; (iii) the dredging of Botany Bay for the construction of and to secure safe access to wharves and other works; (iv) preliminary operations and training expenses; (v) interest on debenture loans raised by the Company for the purpose of the project; (vi) royalties paid by the Company for the purposes of or in connection with the project; (vii) design and purchasing expenses incurred for the purposes of or in connection with the project; (viii) the acquisition of lands or interests in lands already or hereafter acquired by the Company for the purposes of or in connection with the project including agent's charges, conveyancing costs, stamp duty and other expenses properly paid in connection with such acquisition; (ix) the construction of the pipe lines referred to in paragraph (i) of Sub-clause (a) of Clause 25 hereof. (x) the construction of pipe lines and other works under on or over any public roads on Kurnell peninsula; and the term "industrial operations" includes such purposes associated therewith or incidental thereto as are conducive to carrying out such industrial operations and the term "project" means the oil refinery and the buildings works and installations appurtenant thereto erected or to be erected on under or over all the lands referred to in paragraph (a) of Clause 1 of this Agreement. (i) The Act ratifying this Agreement shall contain a prohibition to the effect of subclause (e) of this Clause. 2. (a) IN CONSIDERATION of the aforesaid covenant by the Company contained in paragraph (a) of Clause 1 of this Agreement and subject to the provisions hereinafter contained the Minister hereby agrees to sell to the Company and the Company agrees to buy the lands described in the First Schedule hereto at and for the price of Sixty one thousand eight hundred and three pounds (£61,803 0 0). (b) The Company shall pay the said price in full to the Minister on completion of such sale and purchase of the lands described in the First Schedule hereto. 3. (a) The lands described in the First Part of the First Schedule hereto are Crown Lands at present held by the Company under Special Lease 1952/285 Metropolitan granted to the Company under the Crown Lands Consolidation Act, 1913, as amended. (b) The land described in the Second Part of the First Schedule hereto is— (i) as to part thereof land appropriated for the purpose of a public road and vested in the Council of the Shire of Sutherland by Notification of Resumption under the Public Works Act, 1912, and in pursuance of Section 536 of the Local Government Act, 1919, published in the Gazette of the 8th January 1937 at page 17 as shown on plan filed in the Department of Lands, Sydney, catalogued Ms. 9271 Sy. Part of this land was prior to appropriation comprised in Special Lease 30/9 Metropolitan and is now a boundary road separating Portion 283 from Portion 570 Parish of Sutherland County of Cumberland and the residue was part of Reserve under General Notice dated 24th December 1861; (ii) as to part thereof comprised in Certificate of Title registered Volume 4976 Folio 21. By a Notification published in the Gazette of 21st July 1950 at page 2251 the Council of the Shire of Sutherland notified pursuant to Section 224 of the Local Government Act, 1919, that a road in this location and its westerly extension was a public road under the control of and vested in that Council; (iii) as to part thereof comprised in Certificate of Title registered Volume 1776 Folio 25. This land is also affected by the said Notification published in the Gazette of 21st July 1950 at page 2251. 4. (a) Certain information as to the title to the lands comprised in the First Schedule hereto is referred to in this Agreement and the Company shall not require or be entitled to be furnished with any further particulars as to the title of Her Majesty or the Minister to any of such lands or with any abstract of the title to any of such lands or any evidence whatsoever of the title to any of such lands. (b) No objection or requisition whatsoever shall be made by the Company to or in respect of the title to any of the said lands and no objection whatever shall be taken by the Company to the power of Her Majesty and the Minister to sell and assure as provided by this Agreement the said Lands described in the First Schedule hereto. 5. All the said lands are sold by Her Majesty and/or the Minister to the Company subject to the existing easements and encroachments and all such lands are sold subject to the reservations exceptions and conditions contained in the Crown Grants under which any of the lands were originally or are now held. The Company shall not raise any objection or make any claim in respect of any encroachments by or on any part or parts of the lands described in the First Schedule hereto whether revealed by any present or future survey or otherwise. Subject to the provisions of this Clause vacant possession will be given on completion. 6. All moneys payable to the Minister or Her Majesty under this Agreement shall be paid to the Minister in cash in Sydney free of exchange. 7. The Company shall as from the date of this Agreement become liable for the due compliance with all notices which may hereafter be issued by any local Municipal statutory or other competent authority (whether to or against Her Majesty the Minister or any person whomsoever or otherwise) requiring the expenditure of money or the doing of any work upon or in respect of the lands described in the First Schedule hereto or imposing any liability pecuniary or otherwise on the owner or occupier of such lands and the Company shall indemnify and keep indemnified Her Majesty and the Minister against all liability under or in respect of all such notices issued as aforesaid. 8. On the completion of the sale to the Company of the lands described in the First Schedule hereto Special Lease 52/285 Metropolitan shall cease and determine without prejudice nevertheless to the rights of either party against the other for any antecedent breach of any covenant provision or agreement therein contained or implied. Any necessary apportionment of rental paid or payable by the Company in respect of the Lease shall be made and adjusted on completion. 9. (a) The Company hereby covenants with the Minister that the Company will at its own expense construct in a position approved of by the Council of the Shire of Sutherland and to the satisfaction of the said Council on suitable land to be provided without cost to the Company by the said Council a one cell 4′ x 3′ culvert fitted with tide flaps and head walls under Di Gama Street near its intersection with Solander Street together with concrete inlet and earth outlet channels the invert inlet level of such concrete inlet channel to be 4.5 feet above low water ordinary spring tides at Fort Denison SO THAT at the expiration of three months from the date of commencement of this Agreement or notification by the said Council that the said land is available whichever date is the later the Company shall have at its own cost completed the full and proper construction as aforesaid of the said culvert and channels and the Company covenants with the Minister to construct the said culvert and channels within the said period of three months in accordance in all respects with the foregoing provisions of this Clause. (b) In the event of the Company failing to comply with the foregoing provisions of this Clause the said Council may without prejudice to any other remedy of the Minister by reason of such default of the Company do all such acts and things as the said Council may think necessary to remedy the default of the Company and the Company shall on demand pay to the said Council all costs and expenses incurred by the said Council in so doing and the same shall be recoverable by the said Council from the Company in a court of competent jurisdiction and a certificate of the Shire Clerk of the said Council or the person acting as such for the time being of the amount of such costs and expenses incurred by the said Council shall be prima facie evidence t