Version incorporating amendments as at
1 December 2013
table of provisions
Section Page
1 Purpose 1
2 Commencement 1
3 Definitions 2
4 Interpretation of plans 3
5 Act to be read with Gas and Fuel Corporation Act 3
6 Act to bind the Crown 3
7 Pipelines are not part of land 4
8 Transfer of Heatane pipeline 4
9 Documents to be lodged before statutory easement created 4
10 Plans—statutory easement 5
11 Approval of easement covenant and transfer 6
12 Effect of Order 7
13 Responsibilities to cease in certain circumstances 9
14 Certain rules about easements and covenants not to apply 9
15 Pipelines 10
16 Variation of easement covenant or agreement 11
17 Other easements and rights not affected 13
18 Amendment of records relating to title 14
19 Easement and covenant not breach of agreement 16
20 No compensation payable in certain circumstances 16
20A Effect of Order under section 11 16
22 Supreme Court—Limitation of jurisdiction 17
SCHEDULES 18
SCHEDULE 1—Route of the Corporation Pipeline and the Heatane Pipeline 18
SCHEDULE 2—Land Burdened by the Statutory Easement 18
ENDNOTES 19
General Information 19
Table of Amendments 20
Explanatory Details 21
Version No.015
Gas and Fuel Corporation (Heatane Gas) Act 1993
No. 88 of 1993
Version incorporating amendments as at
1 December 2013
Preamble
As part of the transfer of the Heatane gas business of the Gas and Fuel Corporation of Victoria, it is necessary to provide for the transfer of a pipeline extending from Dandenong to Hastings, Long Island Point and Crib Point and for the continued operation of another pipeline over part of the same route that is to be retained by the Corporation, and for certain rights, privileges and obligations over land in connection with those pipelines.
The Parliament of Victoria enacts as follows:
1 Purpose
The purposes of this Act are—
(a) to provide for the transfer of a pipeline in connection with the transfer of the Heatane gas business of the Gas and Fuel Corporation of Victoria, and for another pipeline which is to be retained by that Corporation, and for certain rights, privileges and obligations over land in connection with those pipelines; and
(b) to amend the Gas and Fuel Corporation Act 1958 concerning the creation of easements in favour of that Corporation.
2 Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
3 Definitions
s. 3
(1) In this Act—
appointed day means the day on which an Order under section 11 comes into operation;
Central Plan Office means the Central Plan Office under the Survey Co-ordination Act 1958;
Corporation has the same meaning as in the Gas and Fuel Corporation Act 1958;
Corporation pipeline means a pipeline, other than the Heatane pipeline, that is located within the land shown by parallel broken lines and described as an easement in the plans referred to in Schedule 2 and that immediately before the appointed day the Corporation is permitted to own and use under the Pipelines Act 1967;
S. 3(1) def. of Elgas amended by No. 44/2001 s. 3(Sch. item 55).
Elgas means Elgas Reticulation Pty. Ltd., a company within the meaning of the Corporations Act;
Heatane pipeline means the 100 millimetre nominal bore pipeline that—
(a) is located within the land shown by parallel broken lines and described as an easement in the plans referred to in Schedule 2; and
(b) immediately before the appointed day the Corporation is permitted to own and use under the Pipelines Act 1967;
pipeline includes valves, apparatus, equipment, cathodic protection works and other works associated with a pipeline;
Plan means a plan lodged at the Central Plan Office;
statutory covenant means the obligations referred to in section 12(g) as varied and in force from time to time;
statutory easement means the easement created by section 12(c) as varied and in force from time to time.
(2) A reference in this Act to—
(a) the statement lodged under section 9 is a reference to that statement as varied from time to time under section 16; and
(b) the agreement lodged under section 9 is a reference to that agreement as varied from time to time under section 16.
4 Interpretation of plans
s. 4
(1) The Plan referred to in Schedule 1 shows, by solid black line, the route of the Corporation pipeline and the Heatane pipeline.
(2) The Plans referred to in Schedule 2 describe, by reference to the route of the Corporation pipeline and the Heatane pipeline, the land to be burdened by the statutory easement, and show that land by parallel broken lines.
5 Act to be read with Gas and Fuel Corporation Act
This Act must be read as one with the Gas and Fuel Corporation Act 1958.
6 Act to bind the Crown
This Act binds the Crown in right of the State of Victoria.
7 Pipelines are not part of land
s. 7
The Corporation pipeline and the Heatane pipeline are not part of the land through which they run, and are personal property.
8 Transfer of Heatane pipeline
(1) The Corporation may transfer ownership of the Heatane pipeline to Elgas on any terms agreed between the Corporation and Elgas.
(2) The transfer has no effect unless and until approved by the Governor in Council by Order under section 11.
(3) Section 15 applies to any subsequent transfer of the ownership of the Heatane pipeline.
9 Documents to be lodged before statutory easement created
(1) The Corporation and Elgas may jointly prepare a written statement specifying—
(a) the rights to be given to the persons for the time being entitled to the benefit of the statutory easement; and
(b) the obligations to be imposed on the owners for the time being of land to be burdened by the statutory easement in respect of the easement and the pipelines within it; and
(c) the obligations of the persons for the time being entitled to the benefit of the statutory easement with respect to the use of the easement and the protection of the land burdened by it.
(2) The Corporation and Elgas may enter into a written agreement relating to the Corporation pipeline and the Heatane pipeline, which may include provision for all or any of the following—
(a) the use of the statutory easement;
(b) their respective rights and obligations in relation to the benefit of the easement;
(c) the taking of proceedings in relation to that easement.
(3) The Corporation must lodge a copy of the statement and agreement—
(a) with the Minister; and
(b) at the Central Plan Office.
(4) Production of a copy of the statement or agreement lodged under subsection (3)(a) or (b) is conclusive proof of the existence and contents of the original.
10 Plans—statutory easement
s. 10
(1) At any time before the making of an Order under section 11, the Surveyor-General may cause to be prepared and may sign substitute plans for all or any of the plans referred to in Schedule 1 or 2 or for any part of the land described in those plans, if the Surveyor-General considers this necessary to correct any defect in the boundaries or description, or for the better identification, of the land to be burdened by the statutory easement.
(2) A substitute plan referred to in subsection (1)—
(a) may only be prepared at the request of and in consultation with the Corporation and Elgas; and
(b) may be based on plans prepared by the Corporation when constructing the Corporation pipeline or the Heatane pipeline, without a survey being conducted.
(3) Without delay after signing a substitute plan the Surveyor-General must—
(a) lodge the plan at the Central Plan Office; and
(b) lodge a copy of the plan with the Minister.
(4) If a plan has been substituted for all or any part of the land in a plan referred to in Schedule 1 or 2, a reference to that plan in this Act, to the extent that it relates to the land in the substitute plan, must be taken to be a reference to that substitute plan.
11 Approval of easement covenant and transfer
s. 11
(1) On the Minister's recommendation the Governor in Council, by Order published in the Government Gazette, may—
(a) approve the statement and agreement lodged under section 9; and
(b) specify the land to be burdened by the statutory easement by reference to the plans referred to in Schedule 1 and 2; and
(c) approve the transfer of the Heatane pipeline to Elgas on the terms and conditions agreed between the Corporation and Elgas.
(2) An Order under subsection (1) comes into operation on the date of publication of the Order in the Government Gazette or on any later day specified in the Order.
12 Effect of Order
By force of this section, on and from the appointed day—
(a) any easement, right or privilege for pipeline purposes—
(i) existing immediately before the appointed day; and
(ii) in favour of the Corporation or land owned by or vested in the Corporation; and
(iii) relating to the land to be burdened by the statutory easement—
is extinguished; and
(b) any restrictive covenant—
(i) existing immediately before the appointed day; and
(ii) in favour of the Corporation or land owned by or vested in the Corporation; and
(iii) relating to an easement, right or privilege extinguished by paragraph (a)—
is discharged; and
s. 12
(c) an easement is created over the land specified in the Order under section 11; and
(d) the owner for the time being of the Corporation pipeline and the owner for the time being of the Heatane pipeline are entitled to the benefit of the statutory easement; and
(e) the creation of the statutory easement gives to the persons entitled to the benefit of the easement the rights specified in the statement lodged under section 9; and
s. 12
(f) the creation of the statutory easement imposes on the persons entitled to the benefit of the easement the obligations specified in the statement lodged under section 9, and the owners for the time being of the land burdened by the easement may enforce those obligations as if the persons so entitled had entered into an agreement with each of those owners containing those obligations; and
(g) the burden of any obligation on an owner of land (whether positive or negative) specified in the statement lodged under section 9—
(i) runs with that land; and
(ii) may be enforced against that owner or that owner's successor in title as if that owner had agreed to be bound by it and as if it were a restrictive covenant; and
(iii) may be enforced by the persons for the time being entitled to the benefit of the statutory easement; and
(h) in relation to the statutory easement, the agreement lodged under section 9 governs the rights and obligations of the persons for the time being entitled to the benefit of the easement in respect of each other; and
(i) the agreement lodged under section 9 binds each person who becomes entitled to the benefit of the statutory easement as if that person had entered into the agreement on becoming so entitled; and
(j) the ownership of the Heatane pipeline is transferred to Elgas.
13 Responsibilities to cease in certain circumstances
s. 13
(1) If a restrictive covenant discharged by section 12 is also a term of a contract, that term ceases to have effect by force of this section on the discharge of the covenant.
(2) If a person bound by an agreement lodged under section 9 ceases to be the owner of the Corporation pipeline or the Heatane pipeline, the agreement ceases to bind that person.
(3) Subsections (1) and (2) do not affect the previous operation of a covenant or agreement or any right or liability resulting from that previous operation.
14 Certain rules about easements and covenants not to apply
The statutory easement and statutory covenant have effect—
(a) even though there is no land benefited or capable of being benefited by them; and
(b) even though they may burden land owned or occupied by a person entitled to the benefit of the easement or covenant; and
(c) even though they may affect Crown land or land owned or occupied by a public authority; and
(d) even though any of the land burdened by them may be reserved Crown land a public highway or road; and
(e) despite any other Act or rule of law to the contrary.
15 Pipelines
(1) On the appointed day—
(a) Elgas is deemed to be the holder of a permit under the Pipelines Act 1967 to own and use and a licence under that Act to operate the Heatane pipeline on the terms and conditions and for the period specified in the order under section 11; and
(b) any permits or licences for the Heatane pipeline held by the Corporation under the Pipelines Act 1967 are cancelled by force of this section.
(2) An order under section 11 may specify the terms, conditions and period of a permit or licence referred to in subsection (1)(a), and those terms and conditions and that period must be the same as those in the cancelled permits and licences referred to in subsection (1)(b).
(3) As soon as practicable after the appointed day, the Minister must issue to Elgas permit and licence documents that comply with subsection (1)(a).
(4) As soon as practicable after the appointed day the Minister must amend any permits or licences held under the Pipelines Act 1967 by the Corporation for the Corporation pipeline so that the part of the authorised route shown in them and also included in the statutory easement accords with the route shown in the plan referred to in Schedule 1.
(5) The Pipelines Act 1967 does not apply to—
(a) a permit or licence referred to in subsection (1)(a); or
(b) the issue, under subsection (3), of a permit or licence document; or
s. 15
(c) the amendment of a permit or licence under subsection (4); or
(d) the cancellation of a permit or licence by force of subsection (1)(b).
(6) Subject to subsection (7), the Pipelines Act 1967 applies on and from the appointed day to—
(a) the renewal, transfer, amendment or cancellation of a permit or licence referred to in subsection (1)(a), and to any new permit or licence issued on or after the expiry of that permit or licence; and
(b) the renewal, transfer, amendment or cancellation of a permit or licence referred to in subsection (4) and to any new permit or licence issued on or after the expiry of that permit or licence; and
(c) the transfer of an interest in the Corporation pipeline or the Heatane pipeline, other than a transfer under this Act; and
(d) the construction, reconstruction, alteration, repair, maintenance, operation and use of the Corporation pipeline and the Heatane pipeline.
(7) The authorised route specified in a permit or licence referred to in subsection (6) cannot be varied under the Pipelines Act 1967 unless at the same time the statutory easement is also varied.
16 Variation of easement covenant or agreement
s. 16
(1) The persons for the time being bound by an agreement lodged under section 9 may vary it by further agreement.
(2) The persons for the time being entitled to the benefit of the statutory easement or statutory covenant may jointly prepare an instrument of variation of that easement or covenant.
(3) The owner for the time being of the Corporation pipeline, the owner for the time being of the Heatane pipeline and the owner for the time being of any land burdened by the statutory easement or statutory covenant may, by agreement, vary—
(a) an obligation of the owners of those pipelines referred to in section 12(f*)*; or
(b) that easement or covenant—
to the extent that it relates to that land.
(4) At the request of and in consultation with the persons who enter into an agreement under subsection (1) or (3) or prepare an instrument under subsection (2), the Surveyor-General may cause to be prepared and may sign any plans for the purposes of the variation, including substitute plans for all or any part of the land covered by the statutory easement.
(5) Those plans—
(a) may be based on information supplied by the persons who requested their preparation, without a survey being conducted; and
(b) must be lodged by the Surveyor-General at the Central Plan Office.
(6) An easement or covenant must not be varied under this section so that it burdens other land unless—
s. 16
(a) the variation occurs in conjunction with a change (in accordance with the Pipelines Act 1967) in the authorised route of the Corporation pipeline or the Elgas pipeline and the variation—
(i) is made with the agreement of the owners of the land affected; or
(ii) is authorised by an Act other than this Act; or
(b) the instrument of variation states that the variation is made to correct—
(i) an error or omission; or
(ii) a defect found on survey; or
(iii) a discrepancy between the actual route and the route shown on the plan referred to in Schedule 1—
in relation to the route of the Corporation pipeline or the Heatane pipeline.
(7) The persons who enter into an agreement or prepare an instrument under this section must lodge a copy of it with the Minister and at the Central Plan Office.
(8) An agreement under subsection (1) or (3) or an instrument under subsection (2) has no effect unless and until a copy is lodged at the Central Plan Office under this section.
(9) The production of a copy of an agreement or instrument lodged under subsection (7) is conclusive proof of the existence and contents of the original.
(10) Despite anything to the contrary in any other Act or law, the statutory easement or the statutory covenant created by this Act cannot be varied except in accordance with this section.
17 Other easements and rights not affected
s. 17
(1) Subject to section 12(a) and (b), the creation or variation of the statutory easement or the statutory covenant does not affect—
(a) any other easement, right, privilege, interest or obligation existing over the land burdened by the easement or covenant; or
(b) the use of the land burdened by that easement or covenant in a way that is consistent with the easement or covenant; or
(c) the creation of any other easement, right, privilege, interest or obligation over the land burdened by the easement and covenant, if that creation is authorised by law; or
(d) any agreement existing immediately before the appointed day and relating to the transmission of substances through the Corporation pipeline or the Heatane pipeline.
(2) If immediately before the appointed day there existed between the Corporation and an owner of land which, on and from that day, is to be land burdened by the statutory easement, an agreement in writing about access to that land by the Corporation or the use of that land by the owner, that agreement—
(a) is not extinguished by this Act; and
(b) has effect as if made in relation to the statutory easement.
18 Amendment of records relating to title
s. 18
(1) On being requested to do so by a person for the time being entitled to the benefit of a statutory easement or statutory covenant, the Registrar of Titles must record on any relevant folio of the Register under the Transfer of Land Act 1958 that the land in the folio is subject to an easement and covenant created by this Act or that the statutory easement or statutory covenant is varied, as the case requires, and must also make any other amendments to the Register that are necessary because of the operation of this Act.
(2) The request must—
s. 18
(a) specify the reference numbers given at the Central Plan Office to the plans, statements, instruments or agreements relevant to the request; and
S. 18(2)(b) amended by No. 85/1998 s. 24(Sch. item 27.1).
(b) in the case of land under the Transfer of Land Act 1958, specify the folios of the Register to which the request relates; and
(c) specify the amendments to the Register that the Registrar is requested to make; and
(d) in the case of the creation of the statutory easement and statutory covenant, be made without delay after the coming into operation of the Order under section 11 and be accompanied by a copy of that Order; and
(e) in the case of a variation of the statutory easement or statutory covenant, be made without delay after a copy of the relevant agreement or instrument under section 16 is lodged at the Central Plan Office and be accompanied by a copy of that instrument or agreement.
S. 18(2A) inserted by No. 85/1998 s. 24(Sch. item 27.2).
(2A) If any land to which a request under subsection (1) applies is not Crown land and is not under the Transfer of Land Act 1958, the Registrar of Titles before acting on a request under subsection (1) must first bring the land under that Act.
(3) A recording in the Register authorised by this section may be made without the production of any relevant consent or certificate of title and without requiring a plan of survey, or production of any other instrument, or the giving of any other notice.
S. 18(4)(5)
repealed by No. 85/1998
s. 24(Sch. item 27.3).
19 Easement and covenant not breach of agreement
s. 19
The extinguishment by this Act of an easement, right, privilege or covenant, the creation or variation by this Act of a statutory easement or statutory covenant, and the exercise of rights attaching to a statutory easement created by this Act do not constitute a breach of any agreement, arrangement or understanding existing immediately before the appointed day between a person entitled to the benefit of the easement, right, privilege or covenant so extinguished or created and a person whose land is burdened by it.
20 No compensation payable in certain circumstances
No compensation is payable by the Crown, the Corporation or Elgas in respect of the extinguishment, creation or variation by this Act of an interest, right, privilege or obligation over land.
S. 20A inserted by No. 55/2007 s. 35.
20A Effect of Order under section 11
(1) The relevant Order has, and is deemed always to have had, the same force and effect as it would have had if for paragraph (c) of the relevant Order there were substituted—
"(c) approves the transfer of the Heatane pipeline to Elgas Reticulation Pty Ltd on the terms and conditions agreed between the Gas and Fuel Corporation of Victoria and Elgas Reticulation Pty Ltd in the deed known as the Sale of Pipeline and Transfer of Easement Agreement dated 14 May 1993.".
(2) In this section—
relevant Order means the Order of the Governor in Council made under section 11 and published in the Government Gazette on 25 August 1994.
S. 21
repealed by No. 70/2013 s. 3(Sch. 1 item 18).
22 Supreme Court—Limitation of jurisdiction
s. 22
It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining actions for compensation in circumstances in which no compensation is payable by virtue of section 20.
SCHEDULES
SCHEDULE 1
Sch. 1
Section 4
Route of the Corporation Pipeline and the Heatane Pipeline
Plan No. LEGL93/206
SCHEDULE 2
Section 3
Land Burdened by the Statutory Easement
Plans Numbered LEGL93/207
ENDNOTES
Endnotes
General Information
Minister's second reading speech—
Legislative Assembly: 7 October 1993
Legislative Council: 24 October 1993
The long title for the Bill for this Act was "A Bill to facilitate the transfer of certain pipelines in connection with the transfer and operation of the Heatane gas business of the Gas and Fuel Corporation of Victoria, to amend the Gas and Fuel Corporation Act 1958 and for other purposes.".
Constitution Act 1975:
Section 85 (5) statement:
Legislative Assembly: 7 October 1993
Legislative Council: 27 October 1993
Absolute majorities:
Legislative Assembly: 26 October 1993
Legislative Council: 9 November 1993
The Gas and Fuel Corporation (Heatane Gas) Act 1993 was assented to on 16 November 1993 and came into operation on 16 November 1993: section 2.
Table of Amendments
This Version incorporates amendments made to the Gas and Fuel Corporation (Heatane Gas) Act 1993 by Acts and subordinate instruments.