Schedule Schedule 1 - Australian Oil Refining Agreements Act 1954 - Australian Oil Refining Limited Agreement | Zoe

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Australian Oil Refining Agreements Act 1954

Schedule 1Australian Oil Refining Limited Agreement

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Schedule 1 Australian Oil Refining Limited Agreement

First Schedule Australian Oil Refining Limited Agreement

First Sch, hdg: Subst 1961 No 35, sec 4 (d); 2012 No 42, Sch 4.2 [10].

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:—

(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.

(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.

(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.

(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.

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.

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.

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.

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.

(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 thereof.

(c)

Upon completion of the said culvert and channels in the manner hereinbefore described the said Council shall be responsible for the maintenance repair and cleaning and other work in connection with the said culvert channels and facilities. The said Council will indemnify and keep indemnified the Company from all actions suits proceedings claims demands costs and expenses whatsoever arising out of the use maintenance repair or cleaning of the said culvert channels and facilities.

(d)

The agreements by the Company contained in this Clause shall be taken by the Council in full satisfaction and discharge of all claims which the Council now has or may hereafter have against the Company in respect of the drainage of the land to be drained by the said culvert and channels PROVIDED HOWEVER that in the event of the Company being at any time after the commencement of this Agreement the owner or occupier of the land to be drained by the said culvert and channels or any part of such land then in such case nothing in this Clause contained shall preclude the Council from exercising in respect of such land or part any right power or function which it would be entitled to exercise in respect of such land or part had this Agreement not been executed.

The completion of the purchase by the Company of the lands described in the First Schedule hereto and payment of the purchase moneys therefor shall take place at the office of the State Crown Solicitor within a period of two months from the date of commencement of this Agreement. If from any cause whatever other than the non-completion caused by the default of the Minister the purchase money shall not be paid within that period the Company agrees with the Minister to pay to the Minister interest thereon at the rate of Five pounds (£5) per centum per annum computed from the date which shall be two months from the date of commencement of this Agreement until the date of actual payment.

The Minister shall be entitled to the rents and profits to the date of completion and shall pay and bear all rates taxes assessments and outgoings to that date in respect of the lands comprised in the First Schedule hereto other than the rates taxes assessments and outgoings payable by the Company under or by reason of its occupancies or interest in any of such lands prior to the date of completion from which date the Company shall be entitled to such rents and profits and shall pay or bear all rates taxes assessments and outgoings in respect of the lands comprised in the First Schedule hereto. Any necessary apportionments shall be made and adjusted on completion. Nothing in this Clause shall relieve the Company of any liability under or by reason of its occupancy or interest in any of the said lands at or prior to the date of completion.

No error or misdescription of the lands sold shall annul the sale of the lands described in the First Schedule hereto but compensation (if demanded in writing before completion but not otherwise and if as regards the Company it is otherwise entitled thereto under this Agreement) shall be made to or given by the Company as the case may be and should the parties be unable to agree between themselves as to the amount thereof such amount shall be settled by two arbitrators one to be appointed by the Minister and the other by the Company in accordance with the provisions of the Arbitration Act, 1902.

All objections and requisitions (if any) which under this Agreement the Company shall be entitled to make shall be made and delivered to the Crown Solicitor of the State of New South Wales within twenty-one days from the date of commencement of this Agreement and all objections and requisitions not so made shall be deemed to be waived.

If the Minister shall be unable or unwilling to comply with or remove any objection or requisition which the Company shall be entitled to make under this Agreement the Minister shall whether he or Her Majesty Her Heirs or Successors shall or shall not have attempted to remove or comply with such objection or requisition and notwithstanding any negotiations or litigation whatsoever in respect thereof be at liberty to rescind this Agreement and in no case shall Her Majesty or Her Heirs or Successors or the Minister be liable for any damages costs charges expenses and losses whatsoever incurred by the Company in and about this Agreement AND IT IS HEREBY DECLARED that seven days’ notice of the intention of the Minister to rescind this Agreement shall be deemed reasonable notice of such intention under Section 56 of the Conveyancing Act, 1919–1953.

All notices and documents hereunder may be served as mentioned in Section 170 of the Conveyancing Act, 1919–1953.

Clauses 2 to 6 inclusive of the conditions of sale contained in Schedule III of the Conveyancing Act, 1919–1953 shall not apply to this Agreement except insofar as the same or any part thereof are incorporated herein.

If the Company shall omit to fulfil observe or perform the provisions of this Agreement on the part of the Company to be fulfilled observed or performed the Minister may by notice in writing served on the Company call upon the Company to rectify the default complained of within a reasonable time (to be stated in the notice) after the service of such notice and if the Company shall fail after service of the said notice upon it to rectify the said default within such reasonable time the Minister may by notice in writing served on the Company determine this Agreement but without prejudice to any claim which Her Majesty Her Heirs and Successors and/or the Minister may have against the Company in respect of any breach of the provisions of this Agreement on the part of the Company to be fulfilled observed and performed PROVIDED ALWAYS that a determination of this Agreement under this Clause after completion of the sale to the Company of the lands described in the First Schedule hereto shall not operate to defeat the Company’s title to such lands.

(a)

As soon as practicable after the completion of the sale to the Company of the lands described in the First Schedule hereto a Crown Grant or Crown Grants shall be issued to the Company for the assurance to it of the lands described in the First Part of the First Schedule hereto.

(b)

As soon as practicable after completion of the sale to the Company of the lands described in the First Schedule hereto the Governor shall appropriate and resume the land described in the Second Part of the First Schedule hereto but to a depth only of 500 feet below the surface by Gazette Notification under Division I of Part V of the Public Works Act, 1912, as amended, and for the purposes of such Act such appropriation and resumption shall be deemed to be for the purpose of carrying out an authorised work within the meaning of that Act and the Minister shall be the Constructing Authority in respect thereof and the Act ratifying this Agreement may provide accordingly. The said appropriation and resumption shall not acquire the mines or deposits of coal, ironstone, kerosene shale, limestone, slate or other minerals under the land. The Act ratifying this Agreement is to provide that notwithstanding anything contained in the Public Works Act, 1912, or in any other Act, upon the publication in the Gazette of the Notification referred to in this sub-clause the lands described in such Notification 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.

(c)

As soon as practicable after the publication in the Gazette of the Notification referred to in sub-clause (b) of this Clause, a Crown Grant or Crown Grants shall be issued to the Company for the assurance to it of the land described in the Second Part of the First Schedule hereto.

(d)

The Crown Grant or Crown Grants so to be issued to the Company for the assurance to it of the lands described in the First Part of the First Schedule hereto shall contain a reservation of all minerals in such lands.

(e)

There shall be excluded from the Crown Grant or Crown Grants so to be issued to the Company for the assurance to it of the lands described in the Second Part of the First Schedule hereto all mines or deposits of coal, ironstone, kerosene shale, limestone, slate or other minerals under such lands which will not be acquired by the Notification of Resumption referred to in sub-clause (b) of this Clause and in addition such Crown Grant or Crown Grants shall contain a reservation of all other minerals which such lands contain

(a)

The arrangements with respect to the supply of water to the Company’s oil refinery shall be such as have been or may hereafter be agreed upon between the Company and the Metropolitan Water Sewerage and Drainage Board.

(b)

The arrangements with respect to road connection between the Company’s oil refinery and Caringbah shall be such as have been or may hereafter be agreed upon between the Company and the Council of the Shire of Sutherland.

(a)

The Company for itself and its successors and assigns hereby covenants with the Minister that the lands described in the First Schedule hereto shall not nor shall any part thereof be at any time without the written consent of the Minister used or permitted or suffered to be used otherwise than for the purposes of an oil refinery and such purposes as are associated therewith or incidental thereto.

(b)

Provisions to the effect of sub-clause (a) of this Clause shall be included in the Crown Grants of the lands described in the First and Second Parts of the First Schedule hereto and (without limiting the foregoing) the Act ratifying this Agreement may provide that such provisions of the said Crown Grants shall be deemed to be covenants by the Company for itself its successors and assigns with the Minister and that such provisions shall bind the said lands and every part thereof into whosesoever hands the same may come and bind all persons interested therein and that the Registrar-General shall endorse every Crown Grant comprising such lands or any part thereof accordingly.

(a)

Upon completion of the sale to the Company of the lands described in the said First Schedule hereto Special Lease 1952/333 Metropolitan shall cease and determine without prejudice nevertheless to the rights of either party against the other in respect of any antecedent breach of any covenant provision or condition therein contained or implied and the Minister shall grant to the Company a fresh lease of the land described in the Second Schedule hereto being part of the bed of Botany Bay for the period of ninety-nine years calculated from the date of completion of the sale to the Company of the lands described in the said First Schedule hereto at an annual rental of Two hundred pounds (£200) which annual rental shall however be subject to reappraisement as provided by sub-clause (d) of this Clause. The rental payable under the Lease shall be payable annually in advance the first of such payments to be made on the date of commencement of the said period of ninety-nine years and the subsequent payments to be made annually in advance upon each anniversary of the date of the commencement of the period of ninety-nine years.

(b)

The Lease to be issued to the Company in accordance with the provisions of sub-clause (a) of this Clause shall be for the purpose of the construction and erection on the land thereby leased of jetties wharves and other facilities for loading and unloading goods and all jetties wharves and other facilities for loading and unloading goods and dolphins and other structures to be constructed and erected by the Company upon the land described in the Second Schedule hereto shall be constructed and erected by the Company at its own cost and expense and the work of constructing and erecting the same shall be carried out and completed in a proper and workmanlike manner and in accordance in all respects with specifications and plans previously approved of in writing by the Minister and all such work shall be carried out to the satisfaction of the Minister. The plans and specifications referred to in this sub-clause shall be furnished by the Company to the Minister at the cost and expense of the Company.

(c)

The lease to be issued to the Company in accordance with the provisions of sub-clause (a) of this Clause shall be limited to the surface of the land thereby leased and to a depth of 500 feet below such surface and shall be subject to the conditions set out in the Third Schedule hereto with such modifications and additions as may be agreed upon between the parties hereto.

(d)

The annual rental of Two hundred pounds (£200) shall be liable to reappraisement at the expiration of each period of ten years during the said period of ninety-nine years and in every such case the reappraised annual rental shall be such sum as is determined by the Local Land Board constituted under the Crown Lands Consolidation Act, 1913, as amended, or on appeal therefrom the Land and Valuation Court. The Act ratifying this Agreement shall provide—

(a)

The Company shall pay to the Minister on demand the costs of all surveys plans and departmental investigations made in connection with this Agreement by or for the following Departments of the State of New South Wales namely, the Department of Lands and the Department of Public Works and by or for the Board.

(b)

A certificate under the hand of the Under Secretary, Department of Lands, Sydney, or the person for the time being acting as such shall be conclusive evidence of the cost of any and every such survey plan and investigation.

(a)

The Company hereby covenants with the Minister and with Her Majesty Her Heirs and Successors that the Company will before the First day of April 1955 carry out at its own cost and expense the following work that is to say:—

(i) such original dredging and other work as may be necessary for the construction of a turning basin upon in or over that part of the bed of Botany Bay described in the Fourth Schedule hereto;

(ii) such original dredging and other work for some distance outside the boundary of the land described in the Fourth Schedule hereto as is deemed necessary by the Company in order to provide a reasonable side slope to such turning basin not being steeper than one vertical in three horizontal.

(b)

The Company hereby covenants that the original dredging of the area referred to in paragraph (i) of subclause (a) of this Clause will be to a swept depth sufficient to allow a minimum of 36 feet of clear water at Indian Spring Low Water.

(c)

The Minister for Public Works will without cost or expense to the Company carry out and complete before the First day of April 1955 such original dredging and other work as may be necessary for the construction of an approach channel upon in or over that part of the bed of Botany Bay described in the Fifth Schedule hereto and such other work as the Minister for Public Works may deem necessary outside the boundaries of the land described in the said Fifth Schedule to provide a reasonable side slope to such channel not being steeper than one vertical in three horizontal. The original dredging of the land in the Fifth Schedule hereto shall be to a swept depth sufficient to allow a minimum of 36 feet of clear water at Indian Spring Low Water.

(d)

On completion of the original dredging referred to in subclauses (a) and (c) of this Clause and when the said turning basin has been first used by the Company for or in connection with the discharge of crude oil for the Company’s refining operations the Minister for Public Works or the Government of the State of New South Wales will commence and will during the currency of the lease referred to in Clause 21 hereof at the cost of Her majesty continue such dredging and other work as may be necessary to maintain—

(i) the turning basin constructed as mentioned in paragraph (i) of subclause (a) of this Clause but excepting any part of the said turning basin which is within 60 feet from the face of any jetty or wharf at any time constructed or erected in pursuance of Clause 21 of this Agreement or being at any time upon the land described in the Second Schedule hereto;

(ii) any approach channel constructed as mentioned in subclause (c) of this Clause;

(a)

The Company hereby agrees with Her Majesty and the Act ratifying this Agreement shall contain provisions to the effect that 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 insofar 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 Clause 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 hereto as if the same were a public wharf and that accordingly tonnage rates and berthing charges in accordance with the said Act and regulations will be payable in respect of all vessels berthing at any such jetty or wharf subject to the following exceptions, namely, that:—

(i) 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;

(ii) Any vessel carrying and/or loading and/or discharging cargo and/or goods part only of which is have 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;

(iii) 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.

(b)

The Company shall keep or cause to be kept in proper books true and complete records of all such matters in relation to all vessels berthing at any jetty or wharf to which the provisions of sub-clause (a) of this Clause apply as may be necessary to enable the Board or other proper authority to determine the tonnage rates and berthing charges payable in respect of such vessels in accordance with sub-clause (a) of this Clause and the Act ratifying this Agreement and the Company shall allow and provide every reasonable facility for the Board or other proper authority and any person authorised by the Board or authority at all reasonable times to inspect and make copies of or extracts from such records AND the Company shall at such times as are required by the Board or authority during the period of ninety-nine years referred to in Clause 21 hereof furnish to the Board or other authority all such particulars as the Board or authority may deem necessary for the purpose of enabling the Board or authority to ascertain and determine the tonnage rates and berthing charges payable in respect of all vessels berthing at any jetty or wharf to which the provisions of subclause (a) of this Clause apply.

(a)

After payment by the Company of the purchase money in accordance with subclause (b) of Clause 2 and subject always to default not having been made by the Company under Clause 1 hereof the Minister will upon the application of the Company grant to the Company a license or licenses to lay down construct use and maintain in and through the land described in the Sixth Schedule hereto a pipe line for the conveyance from the Company’s Oil Refinery to the ocean of effluent from the Septic System serving the said Refinery and water ballast after treatment and waste waters from the Refinery works for a period of ninety-nine years from the date of completion of the sale to the Company of the lands described in the First Schedule hereto and subject to such terms and conditions (including conditions as to payment for or in respect of the license and for or in respect of the maintenance of the pipe line and for or in respect of access for the public across the line of pipes and for or in resect of the position of the ocean outlet and for or in respect of the examination analysis and treatment of such effluent water ballast and waste waters) as the Minister may determine.

(b)

After payment by the Company of the purchase money in accordance with subclause (b) of Clause 2 hereof and subject always to default not having been made by the Company under Clause 1 hereof the Board will upon the application of the Company grant to the Company—

(i) a license or licenses to lay down construct use and maintain pipe lines for the conveyance of petroleum and petroleum products in all forms over part of the bed of Botany Bay from a point on the southern shore of Botany Bay near the Company’s oil refinery to a point on the northern shore of Botany Bay in such position or positions as the Board may determine and for a period of ninety-nine years from the date of completion of the sale to the Company of the lands described in the First Schedule hereto and subject to such terms and conditions (including conditions as to payment for or in respect of the license and for or in respect of the maintenance of the pipe lines and for or in respect of the safeguarding of the future development including the dredging of Botany Bay and for or in respect of preventing interference with navigation or fishing) as the Board may determine;

(ii) a license or licenses to lay down construct use and maintain in and through the land described in the Seventh Schedule hereto (being a further part of the bed of Botany Bay) a pipe line for the conveyance of waste water from the said Refinery and its discharge into Botany Bay at the northern extremity of such land for a period of ninety-nine years from the date of completion of the sale to the Company of the lands described in the First Schedule hereto and subject to such terms and conditions (including conditions as to payment for or in respect of the license and for or in respect of the maintenance of the pipe line and for or in respect of the safeguarding of the future development including the dredging of Botany Bay and for or in respect of preventing interference with navigation and fishing and for or in respect of the examination analysis and treatment of such waste water and for or in respect of the depth below the surface of the bed of the Bay at which the pipe line is to be laid and the length to which the pipe line is to extend into the Bay and the position of the outlet) as the Board may determine;

(a)

The Company hereby covenants and agrees with the Minister that the Company will at all times during the currency of this Agreement have and maintain in an efficient working condition upon the site of the Company’s oil refinery sufficient standard design septic tanks approved of by the Board of Health and the Council of the Shire of Sutherland for the treatment of all such sanitary sewage upon the site of the said oil refinery as shall not be removed by the said Council by arrangement with the Company or through the said Council’s sewage collection service or disposed of by any sewerage service hereafter installed by the Metropolitan Water Sewerage and Drainage Board or other public authority and the Company will dispose of the effluent from such tanks in a manner satisfactory to the Metropolitan Water Sewerage and Drainage Board and the said Council.

(b)

In no circumstances shall any of the effluent referred to in subclause (a) of this Clause be discharged by the Company into Botany Bay.

(c)

The Company hereby covenants with the Minister and with the Board and with Her Majesty Her Heirs and Successors that the Company will not permit any solid matter to be deposited or escape or any liquid matter to flow or percolate into Botany Bay or into any ditch or channel communicating therewith or so near thereto as to be liable to discharge into the same until such matter shall have been so sufficiently filtered or otherwise treated as to be innocuous to life and incapable of causing any destruction of or injury to fish or oysters or the breeding of fish or oysters or the young fry or ova of fish or the spat of oysters or any damage to the bed or banks of the said Bay or any pollution of the waters thereof AND THAT the Company will in discharging any liquid matter into Botany Bay at all times observe all the requirements of the Board the Metropolitan Water Sewerage and Drainage Board and the Chief Secretary’s Department in regard to the prevention of the pollution of the waters of Botany Bay.

(d)

Covenants or conditions to the effect of the foregoing provisions of this Clause may be inserted in any lease of license granted to the Company by the Crown or the Minister or the Board for the purposes of or in connection with its said oil refinery.

(e)

Provisions to the effect of subclauses (a) (b) and (c) of this Clause will be included in the Crown Grants of the lands described in the First Schedule hereto and (without limiting the foregoing) the Act ratifying this Agreement may provide that such provisions of the said Crown Grants shall 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 such covenants are expressed to be made and that such provisions shall bind the lands described in the First Schedule hereto and every part thereof into whosesoever hands the same may come and bind the persons interested therein and that the Registrar General shall endorse every Crown Grant comprising such lands or any part thereof accordingly.

(a)

The Company hereby covenants with the Minister that the Company will not upon any land comprised in any lease or license to it in connection with its said oil refinery or upon any land granted to or owned used or occupied by it in connection with such refinery at any time do or permit or suffer to be done anything which will in any way endanger the preservation of the historic Captain Cook’s Landing Reserve (being the land described in the Ninth Schedule hereto) or the vegetation thereon.

(b)

A covenant or condition to the effect of the provisions of subclause (a) of this Clause may be inserted in every lease or license granted by the Crown or the Minister or the Board to the Company for the purposes of or in connection with the said oil refinery.

(c)

Provisions to the effect of subclause (a) of this Clause will be included in the Crown Grants of the lands described in the First Schedule hereto and (without limiting the foregoing) the Act ratifying this Agreement may provide that such provisions of the said Crown Grants shall be deemed to be covenants by the Company for itself its successors and assigns with the Minister and his successors in office and that such provisions shall bind the lands described in the First Schedule hereto and every part thereof into whosesoever hands the same may come and bind the persons interested therein and that the Registrar General shall endorse every Crown Grant comprising such lands or any part thereof accordingly.

(a)

The Company hereby covenants with the Minister that the Company shall at its own expense commence at the date notified to it in that behalf by the Minister on or after the date of commencement of this Agreement and thereafter continuously proceed with the construction and erection of a substantial fence to the approval in all respects of the Minister on and along the lines forming the boundaries of the lands comprising the Company’s oil refinery so that at the expiration of six months from the date so notified by the Minister the Company shall have at its own cost completed the full and proper construction and erection as aforesaid of the said fence and the Company covenants with the Minister to construct and erect at its own cost the said fence within the said period of six months in accordance in all respects with the foregoing provisions of this Clause.

(b)

In the event of the Company failing to comply with any of the foregoing provisions of this Clause the Minister may without prejudice to any other remedy of Her Majesty or the Minister under this Agreement by reason of such default of the Company do all such acts and things as the Minister may think necessary or desirable to remedy the default of the Company and the Company shall on demand pay to the Minister all costs and expenses incurred by the Minister in so doing and the same shall be recoverable by him from the Company in a Court of competent jurisdiction and a certificate of the Under Secretary, Department of Lands, or the person acting as such for the time being of the amount of such costs and expenses incurred by the Minister shall be prima facie evidence thereof and neither Her Majesty nor the Minister shall incur any liability towards the Company by reason of any damage whatsoever done to or upon the lands the subject of this Agreement or to or upon any adjoining or adjacent lands of the Company in the performance by the Minister, his employees, agents, workmen, servants or licensees of any act or thing permitted to be done by the Minister under the provisions of this Clause.

Her Majesty Her Heirs and Successors and/or the Minister shall not be called upon or bound to pay the cost or any proportion of the cost of any dividing fence or fences between any land sold or leased by Her Majesty or the Minister to the Company and any remaining land of Her Majesty or the Minister and the Company will from time to time and at all times indemnify and keep indemnified Her Majesty Her Heirs and Successors and the Minister against all claims by any person or corporation whomsoever or whatsoever for such cost or any proportion thereof.

The Company hereby covenants with the Minister that it will from time to time and at all times hereafter indemnify and keep indemnified Her Majesty Her Heirs and Successors and the Minister his successors and assigns and the Government of the said State of New South Wales from and against all actions claims and demands which may at any time be brought or made against Her Majesty Her Heirs and Successors or the Minister his successors or assigns or the Government of the said State of New South Wales by or for any person body firm or corporation whomsoever or whatsoever in respect of any loss of life or of any injury to person or property or of any loss or damage occasioned by or arising out of or by reason or as a result of any act or thing done or omitted to be done by the Company its successors or assigns or its or their employees agents workmen servants or licensees in or in connection with or with respect to the exercise and enjoyment of any of the rights or privileges by this Agreement to be conferred on or granted to the Company or in or in connection with or with respect to the performance by the Company of any of the obligations or duties by this Agreement imposed upon the Company.

Nothing in this Agreement contained shall affect in any way the liability of the Company or any other person to pay harbour rates in accordance with the provisions of 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.

The Company hereby covenants with the Minister that it will observe and perform and cause to be observed and performed the provisions of all statutes rules regulations ordinances and by-laws now or hereafter in force and all orders and directions which may be given under the same or any of them in so far as the same or any such order and direction relates to the Company’s oil refinery or to the construction control management or user of the structures thereon or any of them or to any business or activity conducted by the Company on the refinery premises.

(a)

Any notice or communication required to be or that may be given to the Company under or in connection with this Agreement by or on behalf of Her Majesty Her Heirs or Successors or the Minister shall be deemed to have been duly given if signed by the Under Secretary, Department of Lands, or the person acting as such for the time being.

(b)

Any notice or communication required to be or that may be given to the Company under or in connection with this Agreement by or on behalf of the Minister for Public Works shall be deemed to have been duly given if signed by the Director of Public Works or other the Permanent Head of the Department of Public Works, or the person acting as such Director or Permanent Head for the time being.

(c)

Any notice or communication required to be or that may be given to the Company under or in connection with this Agreement by or on behalf of the Board shall be deemed to have been duly given if signed by the Secretary to the Board or the person acting as such for the time being.

This Agreement is subject to ratification by the Parliament of the State of New South Wales and shall come into effect when so ratified and the expression “the date of commencement of this Agreement” means the date of commencement of the Act which ratifies it PROVIDED that if this Agreement is not ratified by the said Parliament before the thirty-first day of December 1954 it shall become null and void.

The Company will not at any time without the consent in writing of the Minister first obtained assign transfer or in any manner make over this Agreement or the benefit of this Agreement to any person body or corporation.

Such of the provisions and conditions of this Agreement as require or prescribe any act or thing to be done or not to be done by the Company shall in addition to being read and construed as conditions of this Agreement be also read and construed as agreements whereby the Company covenants with the Minister to observe and perform the said provisions and conditions.

In this Agreement or any Schedule hereto unless the context otherwise requires the singular includes the plural and vice versa and the following expressions shall have the meanings set opposite thereto respectively:—

“Auditor General” means the Auditor General for the State of New South Wales or the person acting as such for the time being.

“Board” means the Maritime Services Board of New South Wales.

“Minister for Public Works” means the Minister for Public Works of the State of New South Wales and his successors in office.

“Gazette” means the New South Wales Government Gazette.

“month” means calendar month.

(g)

Every Crown Grant to be issued to the Company in accordance with this Clause shall be limited to the surface of the land comprised in such Crown Grant and to a depth of 500 feet below such surface and shall contain a proviso to the effect that mining operations may have been and may be carried on upon and in the land below the land thereby granted and the lands adjoining the land thereby granted and the land below the same and metals and minerals may have been and may be removed therefrom and that the Crown Grant is made upon and subject to the condition that the Company and its assigns shall not be entitled to make or prosecute any claim for damages or take any proceedings either by way of injunction or otherwise against Her Majesty Her Heirs or Successors or the Government of the State of New South Wales or any lessee or lessees under any Mining Act or Acts of the said State of New South Wales or his or their executors administrators or assigns for or in respect of any damage or loss occasioned by the letting down subsidence or lateral movement of the land thereby granted or otherwise howsoever by reason of the following acts and matters that is to say by reason of Her Majesty Her Heirs or Successors or the Government of the said State of New South Wales or any persons on Her Their or Its behalf or any lessee or lessees as aforesaid or his or their executors administrators or assigns having worked or then or thereafter working any mines or having carried on or then or thereafter carrying on mining operations or having searched for work won or removed or then or thereafter searching for working winning or removing any metals or minerals under in or from the land below the land thereby granted or on in under or from any other land situated laterally to the land thereby granted and the land below the same and whether on or below the surface of such other lands AND THAT Her Majesty doth thereby expressly reserve unto Her Majesty Her Heirs and Successors the liberty and authority by reason of the acts and matters aforesaid or in the course thereof for Her Majesty Her Heirs and Successors and the Government of the said State of New South Wales and any person on Her Their or Its behalf and any lessee or lessees as aforesaid and his or their executors administrators and assigns from time to time to let down without payment of any compensation whatsoever any part of the land thereby granted and/or of the surface thereof.