Industrial Lands (Kwinana) Agreement Act 1964 (Western Australia)

The Industrial Lands (Kwinana) Agreement Act 1964 approves and gives statutory effect to the agreement set out in its Schedule between the State of Western Australia, BP Refinery (Kwinana) Proprietary Limited (BP) and CSBP & Farmers Ltd (CSBP). Section 2 makes the Schedule agreement effective “notwithstanding any other Act or law” once the ratifying Act comes into operation (s 2). The Schedule is the operative contractual framework that (among other things) reallocates and vests specified parcels of land at Kwinana (Areas A-E), imposes construction and operation obligations on CSBP (notably a fertiliser plant to be built on Area D), creates rights and duties in relation to wharf construction and use, provides for utilities and transport connections, and limits certain State actions (for example resumption and discriminatory taxation) during the agreement’s currency (clauses 3-27).

Mechanically the Act converts private contractual undertakings into statutory rights and obligations by approving the Schedule (s 2) and declaring that the agreement shall “take effect” despite other laws. The Schedule itself is detailed and prescriptive: it specifies land parcels (Schedules A-D), sale prices and instalment dates for Area D (clause 6), timelines and minimum capital and capacity obligations for CSBP’s plant (clause 11), the State’s obligations to acquire land and construct roads (clauses 3-4, 6), and the arrangements for construction, allocation and charges for a wharf (clauses 12-13, 17). It also protects CSBP against discriminatory taxes and resumption (clauses 20-23), provides for assignment with the State’s consent not to be unreasonably withheld (clause 19), and sets a defined term (clause 10).

The Schedule creates a mixture of proprietary effects (vesting land in Her Majesty and transfers of fee simple, see clauses 3(4), 4(3)(c), 6(4)(c)), regulatory carve-outs (TP Board approvals to be given without conditions as agreed by the parties, clauses 3(3), 4(2), 6(3)), commercial entitlements (price protection in clause 25), and operational obligations (water, power, rail, effluent and dredging responsibilities, clauses 14-18, 27). Dispute resolution is by arbitration under the Arbitration Act 1895 (clause 33). The agreement also contains termination and default mechanics with 12 months’ remedial period (clause 28) and a force majeure/delay clause (clause 30). The Schedule expressly exempts the agreement and implementing documents from State stamp duties (clause 9).

CrestWestern Australia

Industrial Lands (Kwinana) Agreement Act 1964

Western Australia

Industrial Lands (Kwinana) Agreement Act 1964

Contents

Short title 1
Agreement approved and to take effect 1

Schedule — Industrial Lands (Kwinana) Agreement

Notes

Compilation table 27

Western Australia

Industrial Lands (Kwinana) Agreement Act 1964

An Act to approve, and give effect to, an agreement relating to the disposition of certain lands at Kwinana for industrial purposes.

1. Short title

This Act may be cited as the Industrial Lands (Kwinana) Agreement Act 1964 1.

2. Agreement approved and to take effect

The agreement of which a copy is set out in the Schedule is approved and shall, notwithstanding any other Act or law, take effect.

Schedule — Industrial Lands (Kwinana) Agreement

[s. 2]

[Heading amended: No. 19 of 2010 s. 4.]

AN AGREEMENT under seal made the twenty‑fourth day of November 1964 BETWEEN the HONOURABLE DAVID BRAND, M.L.A. Premier and Treasurer of the State of Western Australia acting for and on behalf of the said State and its instrumentalities (hereinafter referred to as “the State”) of the first part BP REFINERY (KWINANA) PROPRIETARY LIMITED a company which is deemed by the BP Refinery (Kwinana) Limited Act 1962 to be incorporated under the Companies Act 1961, which is the assignee of “the Company” referred to in the agreement ratified by the Oil Refinery Industry (Anglo‑Iranian Oil Company Limited) Act 1952 (Act No. 1 of 1952) and which has its registered office in the said State at Kwinana (hereinafter referred to as “BP” which term shall include its successors and assigns) of the second part and CSBP & FARMERS LTD. a company incorporated under the Companies Act 1961 and having its registered office at 133 St. George’s Terrace Perth in the said State (hereinafter referred to as “CSBP” which term shall include its successors and assigns) of the third part.

WHEREAS the parties hereto —

(a) desire to enter into this Agreement with a view to the establishment and carrying on at Kwinana of —

(i) a plant for the manufacture of ammonia and other products (being such a mixture of substances as to be “petroleum” within the meaning of the agreement ratified by the said Act No. 1 of 1952) on part of the refinery site as defined in that agreement;

(ii) a plant on Area D (as hereinafter defined) for the manufacture by CSBP (using the said or other ammonia) of products including nitrogenous fertilisers.

(b) desire to deal with certain lands for the said and other purposes.

NOW THIS AGREEMENT WITNESSETH and the parties hereto hereby covenant and agree with one another as follows:

Interpretation 2

In this Agreement subject to the context —

“Area A” means all that piece of land (comprising 100 acres or thereabouts) delineated and coloured partly in red and the remainder in hachure on the Plan marked “A” initialled by or on behalf of the parties hereto for the purposes of identification and being (subject to survey) the land more particularly described in Schedule “A” hereto but if the boundaries of the land are altered pursuant to clause 3 hereof means that land as so altered;

“Area B” means all that piece of land (comprising 115 acres or thereabouts) delineated and coloured blue on the said Plan marked “A” and being (subject to survey) the land more particularly described in Schedule “B” hereto but if the boundaries of the land are altered pursuant to clause 4 hereof means that land as so altered;

“Area C” means all that piece of land (comprising 75 acres or thereabouts) referred to in clause 4(a) of the said recited agreement ratified by Act No. 1 of 1952 and being the land more particularly described in Schedule “C” hereto;

“Area D” means all that piece of land (comprising 128 acres or thereabouts) delineated and coloured partly in brown and the remainder in hachure as aforesaid on the said Plan marked “A” and being (subject to survey) the land more particularly described in Schedule “D” hereto but if the boundaries of the land are altered pursuant to clause 6 hereof means that land as so altered;

“Area E” means all that piece of land enclosed by the prolongation easterly of the southern boundary of Area B the prolongation southerly of the eastern boundary of Area B and the south‑east boundary of Area B and being the land delineated and coloured green on the said Plan marked “A”.

“associated company” means

(a) any company notified in writing by CSBP to the Minister which is incorporated in the Commonwealth of Australia and which is —

(i) a subsidiary of CSBP within the meaning of the term “subsidiary” in section 6 of the Companies Act 1961; or

(ii) a company in which CSBP holds not less than thirty per cent (30%) of the issued ordinary share capital; and

(b) any company approved in writing by the Minister for the purposes of this Agreement which is associated directly or indirectly with CSBP in its business or operations hereunder;

“bulk cargo” means the bulk materials used or manufactured by CSBP and consigned for shipment or consigned for use by CSBP in connection with its operations;

“diversion road” means Pioneer Road from the intersection of Ocean Street to the intersection of Gulf Street with projection north‑easterly until Mandurah Road is intersected;

“KNC” means the company incorporated under the name of Kwinana Nitrogen Company Proprietary Limited;

“Minister” means the Minister of the Crown to whose administration the ratifying Act is for the time being committed and otherwise the Minister for Industrial Development;

“Commissioners” means the Fremantle Harbour Trust Commissioners constituted under the Fremantle Harbour Trust Act 1902;

“ratifying Act” means the Act referred to in clause 2(1) hereof;

“refinery site” has the same meaning as in the said recited agreement ratified by Act No. 1 of 1952;

“the said State” means the State of Western Australia;

“ton” means a ton of 2,240 pounds weight;

“TP Board” means the Town Planning Board constituted under the Town Planning and Development Act 1928;

“wharf” includes jetty structure.

Any reference in this Agreement to an Act means that Act as amended from time to time and includes any Act passed in substitution for that Act and any regulations and by‑laws made and for the time being in force under any such Act.

Marginal notes shall not affect the interpretation or construction hereof 2.

Operation 2

(1) This Agreement shall be of no force or effect unless ratified by an Act of the Parliament of Western Australia which Act comes into operation before the 28th day of February, 1965 but if the Act so comes into operation the following provisions shall thereupon apply operate and take effect —

(a) the State may by agreement acquire or compulsorily take or resume as for a public work within the meaning of the Public Works Act 1902 any land or any estate or interest in land which in the opinion of the State is reasonably required for the purposes of this Agreement and may thereafter dispose of or deal with the same in accordance with or for the purposes of this Agreement apart from the provisions of that Act;

(b) rights and obligations herein created conferred or imposed shall have statutory effect as if enacted by the ratifying Act; and

(c) no Act regulation or by‑law shall operate so as to prevent the State from fulfilling its obligations hereunder in accordance with and subject to the provisions hereof.

(2) If the ratifying Act does not so come into operation, none of the parties hereto shall have any claim against either or both of the others of them by reason of anything herein contained.

Area A 2

(1) As soon as conveniently may be after the coming into operation of the ratifying Act BP will submit to the TP Board a plan of subdivision of the refinery site in a form already approved (subject to survey) by the parties hereto and initialled by them or on their behalf for the purposes of identification or in any altered form upon which the parties hereto may mutually agree.

(2) The said plan of subdivision shall delineate separately the portions of Area A coloured red and hachured respectively as referred to in the definition of Area A in clause 1 hereof.

(3) The TP Board having prior to the execution hereof considered and tentatively approved the plan of subdivision referred to in subclause (1) of this clause will on the formal submission hereafter of the said plan or in any altered form as in this clause provided approve thereof without alteration thereto and without the affixing of any conditions or approval except such alterations and/or conditions if any as the parties hereto shall all agree to accept. The approval of the TP Board under this subclause shall be deemed to be an approval within the meaning and for the purposes of the Town Planning and Development Act 1928.

(4) In exchange for and in consideration of the transfer of an estate in fee simple free of trusts and encumbrances in Area B as mentioned in clause 4 hereof BP shall transfer to the State which shall take an estate in fee simple free of encumbrances in Area A subject to any alterations which the parties hereto shall have all agreed to accept as aforesaid.

(5) Possession of Area A shall be given to the State concurrently with the giving to BP of possession of Area B as hereinafter mentioned or on such other date if any as the State and BP may mutually agree upon.

(6) So much of Area A as is delineated and coloured red on the said plan but excluding the land between high and low water marks on the seashore (subject to any alteration agreed upon by all parties hereto as aforesaid) shall be deemed held and may be dealt with under the provisions of the Industrial Development (Resumption of Land) Act 1945 as if acquired under section 11(1b) of that Act.

Area B 2

(1) As soon as conveniently may be after the coming into operation of the ratifying Act the State shall —

(a) acquire or compulsorily take or resume an estate in fee simple free of encumbrances in so much of Area B as then remains unalienated from the Crown;

(b) submit to the TP Board a plan of subdivision showing Area B in a form already approved (subject to survey) by the parties hereto and initialled by them or on their behalf for the purposes of identification or in any altered form upon which the parties hereto may mutually agree;

(c) cause the construction of the diversion road to be completed by the 31st day of August, 1965 and by that day to be opened to traffic;

(d) in exchange for and in consideration of the transfer of an estate in fee simple free of encumbrances in Area A by instrument under the hand of the State transfer to BP which shall take an estate in fee simple free of trusts and encumbrances in Area B including the closed portions of roads mentioned in subclause (3) of this clause whereupon the provisions of the Industrial Development (Resumption of Land) Act 1945 and of the Industrial Development (Kwinana Area) Act 1952 shall be deemed to have been duly complied with and to be no longer applicable to Area B.

(2) The TP Board having prior to the execution hereof considered and tentatively approved the plan of subdivision referred to in subclause (1) of this clause will on the formal submission hereafter of the said plan or in any altered form as in this clause provided approve thereof without alteration thereto and without the affixing of any conditions of approval except such alterations and/or conditions if any as the parties hereto shall all agree to accept. The approval of the TP Board under this subclause shall be deemed to be an approval within the meaning and for the purposes of the Town Planning and Development Act 1928.

(3) By force of this Agreement and of the ratifying Act and with effect from the date possession is given of Area B as hereinafter mentioned —

(a) all those portions of roads as at date hereof lie within Area B (being portions of Rockingham Road, Gulf Street and Richardson Street) shall be closed;

(b) all rights of way over those portions of the roads so closed shall cease;

(c) those portions of the roads so closed shall for all purposes be deemed to be added to and to form part of Area B and shall vest in Her Majesty as for an estate in fee simple in possession under the operation of the Transfer of Land Act 1893;

(d) Area B with those additions shall be deemed for all purposes (including those of the said recited agreement ratified by Act No. 1 of 1952) to form part of the refinery site in lieu of Area A; and

(e) Area A shall cease for all such purposes to form part of the refinery site;

and the said recited Act No. 1 of 1952 and the agreement ratified by that Act will be deemed amended or altered and read and construed accordingly.

(4) The Registrar of Titles shall on the application of the registered proprietor for the time being of the refinery site and on payment of the prescribed fee cancel the relative certificate or certificates of title to the refinery site as it exists at the date hereof and issue a new certificate or new certificates of title in which Area B with the addition of those portions of the roads so closed will be included within the refinery site and Area A will be excluded therefrom.

(5) Possession of Area B (subject to any leases or tenancies of which notice in writing has been given to BP prior to possession) shall be given on the 1st day of September, 1965, or on such earlier date if the diversion road is completed before the 31st day of August, 1965 as the State and BP agree.

Area C 2

BP shall sell to the State which shall purchase an estate in fee simple free of encumbrances in Area C for the sum of Seven Hundred and fifty pounds (£750) payable in full on acceptance for registration of a transfer of the land. Vacant possession of the land will thereupon be given to the State and Area C shall be deemed held and may be dealt with under the provisions of the Industrial Development (Resumption of Land) Act 1945 as if acquired under section 11(1b) of that Act.

Area D 2

(1) As soon as conveniently may be before or after the approval by the TP Board of the plan of subdivision mentioned in clause 4 hereof the State shall —

(a) acquire or compulsorily take or resume an estate in fee simple free of encumbrances in so much of Area D as then remains alienated from the Crown;

(b) submit to the TP Board a plan of subdivision showing Area D in a form already approved (subject to survey) by the parties hereto and initialled by them or on their behalf for the purposes of identification or in any altered form upon which the parties hereto may mutually agree;

(c) sell to CSBP which shall purchase an estate in fee simple free of trusts and encumbrances in Area D (subject to any alterations which the parties hereto shall have all agreed to accept as referred to in clause 3 hereof but including the closed portions of roads mentioned in subclause (4) of this clause) for the price calculated at the rate of £750 per acre, payable in three equal instalments the first of which instalments shall be paid on the 31st day of December, 1965, the second of which instalments shall be paid on the 31st day of December, 1968 and the third of which instalments shall be paid on the 31st day of December, 1970 provided that CSBP shall be at liberty to pay to the State the whole or balance of the purchase price of Area D at any time and the State shall by instrument under its hand transfer the land comprised in Area D to CSBP when the purchase price therefor is paid in full.

(2) Upon the sale as aforesaid the provisions of the Industrial Development (Resumption of Land) Act 1945 and of the Industrial Development (Kwinana Area) Act 1952 shall be deemed to have been duly complied with and to be no longer applicable to Area D.

(3) The TP Board having prior to the execution hereof considered and tentatively approved the plan of subdivision referred to in subclause (1) of this clause will on the formal submission hereafter of the said plan or in any altered form as in this clause provided approve thereof without alteration thereto and without the affixing of any conditions of approval except such alterations and/or conditions if any as the parties hereto shall all agree to accept. The approval of the TP Board under this subclause shall be deemed to be an approval within the meaning and for the purposes of the Town Planning and Development Act 1928.

(4) By force of this Agreement and the ratifying Act and with effect from the date possession is given pursuant to subclause (7) of this clause —

(a) all those portions of roads (including any Metropolitan Regional Road) as at date hereof lie within Area D shall be closed;

(b) all rights of way over those portions of the roads so closed shall cease; and

(c) those portions of the roads so closed shall for all purposes be deemed to be added to and to form part of Area D and shall vest in Her Majesty as for an estate in fee simple in possession under the operation of the Transfer of Land Act 1893.

(5) The Registrar of Titles shall on the application of CSBP or other the person or company for the time being registered or entitled to be registered as the proprietor of Area D and on payment of the prescribed fee cancel the relative certificate or certificates of title to the whole or part of Area D and issue a new certificate or new certificates of title for Area D which will include those portions of the roads so closed (but subject to alteration if any as agreed by all the parties hereto as aforesaid).

(6) On the day possession is given of Area D as hereinafter mentioned CSBP will pay to the State as a contribution towards the cost of constructing the diversion road adjacent to the eastern boundary of Area D a sum calculated on the length of the closed portion of Rockingham Road within Area D and computed at the rate of £11,000 per mile.

(7) Possession of Area D (or if altered as aforesaid then as altered) shall be given to CSBP concurrently with the giving to BP of possession of Area B as hereinbefore mentioned or on such other date if any as the parties hereto may mutually agree upon.

(8) Upon the completion of the construction of the wharf the westward end of the southern boundary of Area D shall be adjusted and formed in manner following, namely, by a line commencing from the centre point of the shore end of the wharf if the wharf is in the form of a jetty or otherwise from such point of the wharf as the State and CSBP agree upon being extended inland for a distance of ten (10) chains beyond high water mark and parallel with the general direction of the then existing southern boundary of Area D and being joined to the then existing southern boundary of Area D by the shortest route.

(9) The land (within Area D) south and west of the line referred to in the preceding subclause shall be the subject of a plan of subdivision and be submitted to the TP Board and it shall be the duty of the TP Board to approve such plan without alteration thereto and without the affixing of any conditions of approval except such alterations and/or conditions if any as the State shall agree to accept and the approval of the TP Board under this subclause shall be deemed to be an approval by the TP Board within the meaning and for the purposes of the Town Planning and Development Act 1928.

(10) Forthwith after the submission of the plan of subdivision mentioned in the preceding subclause the land the subject thereof shall by force of this Agreement be excised from Area D and thereupon vest in Her Majesty as for an estate in fee simple in possession and shall be deemed held and may be dealt with under the provisions of the Industrial Development (Resumption of Land) Act 1945 as if acquired under section 11(1b) of that Act. In respect of land so vested the State shall pay to CSBP compensation therefor computed at the same price per acre as CSBP paid to the State per acre for Area D.

(11) If at any time hereafter Her Majesty becomes possessed of such an estate as to be able to transfer to CSBP an estate in fee simple in both or either of the areas adjoining the southern boundary of Area D and shown coloured yellow and purple on the plan marked A and the TP Board approves or will approve of the plan of subdivision in respect of both or either of those areas then the Minister shall as soon as conveniently may be thereafter grant to CSBP an option to purchase both or either (as the case may be) of those areas at a price to be computed at the average price per acre paid by or on behalf of Her Majesty to acquire the alienated portions of the area or areas the subject of the option at the time or respective times of the exercise of the option. If CSBP desire to exercise the option it shall give notice to the Minister within the twenty‑eight (28) days next following the receipt by it of the option, and the purchase price shall be paid by CSBP within the fourteen days next following a notice to CSBP advising it of the amount of the purchase price.

Area E 2

(1) As soon as conveniently may be after the coming into operation of the ratifying Act the State shall acquire or compulsorily take or resume an estate in fee simple free of encumbrances in all or so much of the land comprised in Rockingham Lots 382, 383, 384 and 385 as then remains alienated from the Crown.

(2) In the event of —

(a) there being a re‑alignment of so much of Pioneer Road and the railway (which is hereafter to be constructed along the north‑western side of the road) as is within Area E, and

(b) the whole or portion of the land within Area E which adjoins the south‑eastern boundary of Area B is in the absolute opinion of the State no longer required for road or railway purposes

then the Minister shall as soon as conveniently may be thereafter grant to BP an option to purchase the whole or that portion of that said land at the current market price of land in the neighbouring area thereof upon and subject to the provisions contained in subclause (3) of this clause.

(3) If BP desires to exercise the option BP shall give notice to the Minister within the three (3) calendar months next following the receipt by it of the option and pay the purchase price therefor within the twenty‑eight (28) days next following the notice from the Minister advising it of the amount of the purchase price.

(4) If at any time prior to the re‑alignment of Pioneer Road or the railway as mentioned in subclause (2) of this clause the State requires any portion of Area E for the purposes of industrial development the State shall be released and discharged from its obligations to BP under that subclause on giving to BP a notice stating that such land is so required and such notice shall be conclusive evidence that the land is required for the purposes of industrial development.

Further assurance 2

The parties hereto shall execute deliver and do all such documents acts and things as may be necessary or expedient to implement or give effect to the provisions hereof.

Exemptions from Stamp Duties 2

This Agreement and the documents necessary to give effect to the foregoing provisions hereof shall be exempt from stamp duties payable under the laws of the said State.

Terms of Agreement 2

This clause and the remaining provisions of this Agreement subject to clause 28 hereof will continue in force until and expire on the 1st day of January, 2014 unless CSBP by notice in writing to the State not later than the 1st day of January 2010 requires extension for such further period not exceeding twenty years as CSBP may nominate in such notice and this clause and the remaining provisions of this Agreement save for the right of renewal shall thereupon be extended accordingly.

Construction of plant 2

(1) CSBP will before the 30th day of June 1966 commence to erect and thereafter will diligently proceed with the construction and establishment on Area D of a plant estimated to cost (inclusive of all necessary ancillary buildings work plant equipment wharf and services) Five million pounds (£5,000,000) and designed to produce and capable of producing not less than a total of one hundred thousand (100,000) tons of nitrogenous fertilisers and related products per annum and shall by the 31st day of December 1968 complete the construction and establishment aforesaid.

(2) Subject to the laws for the time being in force in the said State CSBP shall at all times in relation to such construction and establishment and in equipping and operating the said plant comply with accepted modern practice.

Wharf 2

(1) If the State desires the Commissioners to construct or to cause to be constructed in Cockburn Sound a wharf portion of which will be suitable for the operations of CSBP BP and KNC and which portion the State shall cause the Commissioners to set aside and reserve for the operations of CSBP, BP and KNC (which portion is hereinafter referred to as the “CSBP portion”) the State shall by or before the 31st day of January 1965 give notice to CSBP of its desire so to do.

(2) As soon as conveniently may be after giving that notice the State will cause the Commissioners to commence or to cause to be commenced and by the 31st day of December 1968 or by such other day as CSBP nominates (provided that CSBP gives to the Commissioners not less than twelve (12) calendar months’ notice of such other day) to complete or to cause to be completed the construction of the CSBP portion (providing forty (40) feet depth at low water mark) and approaches to the CSBP portion.

(3) Unless CSBP advises the State by notice on or before the 31st day of July 1965 of its intention to instal on that wharf such conveyors cranes appliances and facilities as are suitable for the efficient loading and discharge of vessels at the CSBP portion for the purposes of the operations of CSBP hereunder the State will cause the Commissioners to construct and instal those conveyors cranes appliances and facilities.

(4) The State will cause the CSBP portion to be constructed in such location and in accordance with such plans and specifications as are to the reasonable satisfaction of CSBP and BP.

(5) The State will at all times during the currency of this Agreement cause the Commissioners to maintain or to cause to be maintained in good order and condition the CSBP portion and the approaches thereto constructed under this clause.

(6) If the CSBP portion is constructed pursuant to the provisions of this clause then CSBP, BP and KNC will respectively pay to Commissioners for their respective goods which are discharged upon or over or shipped from the CSBP portion the appropriate prescribed wharf charges applicable to the Inner Harbour cargoes except that for the period expiring on the 1st day of January 1988 in respect of bulk cargoes the wharf charges shall not be in excess of 2/9 per ton unless the inward general cargo rate for the Inner Harbour is increased above 13/6 per ton and from the date or respective dates of any such increase or increases the bulk wharf charges will increase in like proportion.

(7) Where and to the extent that the CSBP portion may be used by third parties without unduly hindering the operations of CSBP BP and KNC hereunder (a matter which shall be within the sole determination of CSBP) CSBP will permit the CSBP portion to be used by any other person or corporation for the handling of inward and outward cargo upon terms and conditions (including charges) to be determined by the Commissioners from time to time.

CSBP’s wharf 2

(1) If the State is not desirous of constructing or causing to be constructed the wharf referred to in and pursuant to the provisions of clause 12 hereof then CSBP at its own expense and risk in all things but in close liaison with the Commissioners shall construct with all convenient speed a wharf suitable for the operations of CSBP hereunder but in all things subject to the approval of the Commissioners. Any dispute or difference between CSBP and the Commissioners under this clause shall be referred to and determined by the Minister whose decision shall be final and binding for all purposes.

(2) CSBP will at all times maintain in good order and condition the wharf and shore approaches within Area D and be responsible for proper insurance thereof.

(3) Where and to the extent that the wharf may be used by third parties without unduly hindering the operations of CSBP hereunder (a matter which shall be within the sole determination of CSBP) CSBP will permit the wharf to be used by any other person for the handling of inward and outward cargo upon terms and conditions (including charges) to be determined by the Commissioners from time to time provided however, that the collection and allocation of charges as between CSBP and the Commissioners shall be determined by mutual agreement between CSBP and the Commissioners.

(4) Subject to the provisions hereof and to the control of the Commissioners in the discharge of their statutory functions and powers CSBP shall be entitled to use the wharf for its purposes hereunder and to control and manage it free of rental or license fee.

(5) CSBP will indemnify and keep indemnified the State against all actions claims costs and demands (not based on or arising out of the negligence of the State its agents servants or third party contractors) arising out of or in connection with the construction maintenance or use of its wharf and the operations on and from its wharf.

(6) BP and KNC shall each have the right to use CSBP’s wharf upon the same terms and conditions as are made available to CSBP by the Commissioners.

(7) Within 6 months after the end or sooner determination of the currency of this Agreement CSBP may (except in so far as the State and CSBP may otherwise in writing mutually agree and subject to the next succeeding subclause) remove and carry away from the wharf (whether constructed under this or the immediately preceding clause) such plant equipment and removable buildings as it has installed constructed or placed thereon and shall fill in and consolidate and level off all holes and excavations thereby resulting and if within such period of 6 months CSBP fails so to consolidate and level off the State may so consolidate and level off and CSBP shall on demand pay to the State the amount of the costs and expenses so incurred and the plant equipment and removable buildings not removed by CSBP within the period aforesaid shall become the absolute property of the State.

(8) In the event of CSBP deciding to remove the said plant equipment and removable buildings it shall not do so without first notifying the State in writing of that decision and thereby granting to the State an option exercisable within 3 months of the service of such notice to purchase at valuation in situ the said plant equipment and removable buildings or any of them. Such valuation if not mutually agreed shall be made by such competent valuer as the State and CSBP may appoint or failing agreement as to such appointment then by two competent valuers one to be appointed by each party or by an umpire appointed by such valuers should they fail to agree.

Electricity 2

Subject to reasonable notice in writing from time to time of CSBP’s requirements as to industrial electric power for both construction and operations purposes hereunder The State Electricity Commission of Western Australia will supply to the boundary of Area D fifty (50) cycle power on the Commission’s terms and conditions for the time being for industrial users in the Metropolitan Area for the supply of such power to meet CSBP’s reasonable requirements in that regard but not exceeding 25,000 k.v.a. at any time without the Commission’s consent.

Sea water 2

CSBP may at its own cost in all things draw and use sea water for cooling purposes in its operations hereunder from such positions in Cockburn Sound as the Commissioners shall from time to time approve. Sea water so drawn may be returned to the sea in such positions as aforesaid admixed with effluent from manufacturing operations hereunder provided that the discharge is not dangerous or injurious to public health.

Potable water 2

(1) Subject to reasonable notice in writing from time to time of CSBP’s requirements as to potable water for its purposes hereunder the Metropolitan Water Sewerage and Drainage Board shall provide to the boundary of Area D on that Board’s terms and conditions for the time being prevailing for excess water supplied for industrial purposes such quantities of potable water as will meet CSBP’s reasonable requirements in that regard but not exceeding two million (2,000,000) gallons in any one week without the said Board’s consent.

(2) The State agrees that CSBP may sink on Area D such wells and bores into the sub‑soil as CSBP thinks fit to a depth not exceeding Reduced Level Low Water Mark Fremantle minus five hundred (500) feet for the purpose of obtaining water for its purposes hereunder and the water so obtained and used will not be the subject of a charge by the State: Provided always that without the prior approval in writing of the said Board no well or bore shall be sunk within two chains of a boundary of Area D other than the western boundary and no well or bore shall in any event be sunk to a depth which shall cause the artesian basin to be tapped. CSBP will on request by the State from time to time give to the State particulars of the number depth and kind of wells and bores sunk by it and the precise situation of each respectively and the quantities and quality of water obtained from each respectively.

(3) CSBP shall so far as is reasonably practicable recirculate on its said plant the potable water used for cooling and/or processing purposes therein.

Harbour charges 2

(1) If a wharf is constructed pursuant to the provisions of clause 13 hereof then the rates charges and dues mentioned in the succeeding subclauses of this clause shall be chargeable.

(2) CSBP BP and KNC shall in relation to their respective goods which are discharged upon or over or shipped from its wharf pay to the Commissioners wharf charges as set out below: —

(a) On all inwards and outwards bulk cargoes

	Rate per Ton Weight.
Up to 100,000 tons per annum.................	1/4.5d.
Over 100,000 tons but not exceeding 200,000 tons per annum.......................	1/2.85d.
Over 200,000 tons but not exceeding 300,000 tons per annum.......................	1/1.2d.
Over 300,000 tons but not exceeding 400,000 tons per annum.......................	11.55d.
Over 400,000 tons but not exceeding 500,000 tons per annum.......................	9.9d.
Over 500,000 tons per annum..................	8.25d.

Wharf charges will be assessed on the aggregate of all inwards and outwards bulk cargoes during each financial year (commencing on the first day of July) at the rate appropriate to such aggregate and upon any alterations in the Commissioners general cargo Inner Harbour rate for wharfage on inwards goods for which other specific rates are not provided as fixed at the completion of review of rates in progress at the date hereof (hereinafter in this paragraph referred to as “the basic rate”) the rates shall increase or decrease proportionately to the alterations in the basic rate for the time being.

(b) On inwards and outwards cargoes, other than bulk cargoes and manufactured goods mentioned in paragraph (c) hereof

A sum equal to 25 per centum of the appropriate prescribed general cargo rates applicable to Fremantle Harbour Trust Inner Harbour cargoes (which rates as at the date of this Agreement are thirteen shillings and sixpence (13s. 6d.) per ton for inward cargoes and ten shillings (10s. -d.) per ton for outward cargoes).

50% of whatever rate may be prescribed from time to time for locally manufactured goods exported through the Inner Harbour.

(3) No charges shall be levied by the Commissioners in respect of vessels using CSBP’s wharf, other than —

(a) tonnage rates from time to time levied by the Commissioners for the Port of Fremantle on the gross registered tonnage of vessels;

(b) the usual charges from time to time prevailing made by the Commissioners in respect of pilotage the bunkering of vessels and/or services rendered to or in respect of any vessel by the Commissioners.

(4) Save as aforesaid no other charges or dues (except for services actually rendered at the request of CSBP) shall be levied by the Commissioners or any other State authority upon inwards and outwards cargoes belonging to CSBP discharged upon or over or shipped from its wharf.

Rail connection 2

The State will ensure that Area D will be connected by rail to both the now existing narrow and the future proposed standard gauge railway systems.

Assignment 2

(1) CSBP with the consent in writing of the State shall have the right to assign or dispose of all or part of its rights and obligations under this Agreement or any interest therein or acquired thereunder and such consent shall not be arbitrarily or unreasonably withheld subject to the assignee or assignees executing in favour of the State a deed of covenant to comply with and observe the assigned obligations.

(2) When under the provisions of subclause (1) of this clause any interest of CSBP is disposed of or assigned to a company being at the date of disposal or assignment an associated company the State will not levy or exact any State Stamp Duties in respect of that disposal or assignment if effected for the purpose of construction reconstruction or reorganisation: PROVIDED THAT such disposal or assignment takes place prior to the 31st day of March 1972.

No acquisition of works 2

The State agrees that having regard to the particular nature of the industry proposed to be established by CSBP under this Agreement and subject to the performance by CSBP of its obligations hereunder the State will not resume or suffer or permit to be resumed by any State instrumentality or by any local or other authority of the said State any portion of Area D or of the wharf (constructed under clause 13 hereof) the resumption of which would impede CSBP’s activities nor will the State create or grant or permit or suffer to be created or granted by an instrumentality or authority of the said State as aforesaid any road right of way or easement of any nature or kind whatsoever over or in respect of Area D without the consent in writing of CSBP first having been obtained which consent shall not be arbitrarily or unreasonably withheld.

Preservation of rights 2

The State hereby covenants and agrees with CSBP that subject to the due performance by CSBP of its obligations under this Agreement the State shall ensure that during the currency of this Agreement the rights of CSBP hereunder shall not in any way through any act of the State be impaired disturbed or prejudicially affected; PROVIDED THAT nothing in this clause shall apply to any law or requirement relating to safety.

Taxes and charges 2

The State shall not impose nor permit nor authorise any of its agencies or instrumentalities or any local or other authority to impose discriminatory taxes rates or charges of any nature whatsoever on or in respect of the titles property or other assets products materials or services used or produced by or through the operations of CSBP in the conduct of business incidental to its business hereunder nor will the State take or permit to be taken any other discriminatory action which would deprive CSBP of full enjoyment of the rights granted and intended to be granted under this Agreement.

Rating 2

Notwithstanding the provisions of any Act or anything done or purporting to be done under any Act the valuation of Area D shall for rating purposes be or be deemed to be on the unimproved value and shall not in any way be subject to any discriminatory rate: PROVIDED HOWEVER that nothing in this clause shall apply to any portion of Area D which shall be occupied as a permanent residence or upon which a permanent residence shall be erected.

Delegation to third parties 2

Without affecting the liability of the parties under the provisions of this Agreement either party shall have the right from time to time to entrust to third parties the carrying out of any portion of the operations which it is authorised or obliged to carry out under this Agreement.

Prices 2

The State will not at any time by legislation regulation or administrative action under any legislation of the said State as to prices prevent products produced by CSBP from being sold at prices which will allow CSBP to provide for such reasonable depreciation reserves and return on the capital employed in the production of those products as are determined by CSBP.

Dredging 2

Subject to the approval in writing of the Commissioners as to times method and extent of dredging and to the depositing of spoil CSBP may at its own expense in all things carry out any dredging within Cockburn Sound reasonably required by CSBP for its operations hereunder.

Effluent 2

(1) Subject to the provisions of this clause CSBP may discharge into Cockburn Sound into water not less than eight (8) fathoms deep at low water mark up to three hundred and fifty (350) tons in any one day of gypsum being effluent from the operations of CSBP hereunder.

(2) The discharge will be through pipes laid and maintained by CSBP at its expense in all things but in positions directed or approved by the Commissioners.

(3) (a) CSBP will be responsible for and carry out all dredging of Cockburn Sound that becomes necessary to remedy any shallowing or other alteration of the sea bed caused by the discharge of gypsum into the said Sound.

(b) The Commissioners may when and as often as in its opinion it becomes desirable that the said dredging be carried out notify CSBP in writing that it is required to dredge and remove gypsum discharged into Cockburn Sound to the extent required and to the locations specified by the Commissioners.

(c) If CSBP does not to the satisfaction of the Commissioners dredge and remove the gypsum to the extent so required and to the locations so specified within a period of 12 months after receipt of the said notice then the Commissioners may carry out the dredging and removal of gypsum to the extent required and to the locations so specified and the cost thereof shall be paid by CSBP to the Commissioners.

Default 2

(1) Subject to clause 30 hereof relating to delays if at any time during the continuance of this Agreement —

(a) CSBP fails to comply with or carry out any of the obligations on its part contained herein or abandons or repudiates this Agreement the State may by notice in writing to CSBP specifying the failure terminate this Agreement;

(b) the State fails to comply with or carry out any of the obligations on its part contained herein CSBP may by notice in writing to the State specifying the failure terminate this Agreement.

(2) The notice of termination shall be deemed to have been received on the day following its postage and shall take effect twelve (12) months after that date unless the State or CSBP as the case may be shall in the meantime have remedied the failure or shown to the satisfaction of the other party earnest intent to do so.

Variation 2

Any right or obligation herein contained affecting any two or more of the parties hereto may from time to time by the relevant parties affected be added to cancelled or varied to the extent that it is necessary so to do for the more efficient fulfilment of the objectives of this Agreement and references to this Agreement shall be deemed to be to this Agreement as varied in accordance with this clause.

Delays 2

(1) This Agreement shall be deemed to be made subject to any delays in the performance of obligations under this Agreement which may be occasioned by or arise from circumstances beyond the power and control of the party responsible for the performance of such obligations including delays caused by or arising from act of God act of war force majeure act of public enemies floods and washaways strikes lockouts stoppages restraint of labour or other similar acts (whether partial or general) shortages of labour or essential materials reasonable failure to secure contractors delays of contractors riots and civil commotion and delays due to overall Australian economic conditions or factors which could not reasonably have been foreseen.

(2) This clause shall apply only to delays of which and of the cause of which notice in writing is given by the party subject to the delay to the other party hereto within one month of the commencement of the delay.

North Fremantle site 2

(1) CSBP covenants and undertakes

(a) not to extend or enlarge the manufacturing capacity of its factory or works at present carried on at North Fremantle (in this clause referred to as “the said site”);

(b) to vacate the said site and cease thereon carrying on the manufacture of superphosphate or any other manufacturing or industrial process whatsoever on or before the expiration of the term of the leases under which it is at present in occupation of the said site at North Fremantle.

(2) The State undertakes that the said site at North Fremantle will not be made available to any person or corporation for the purpose of carrying on any heavy or light industrial manufacturing business within the meaning of any town planning or zoning enactment or regulations or schemes applying from time to time to the area without first giving to CSBP the opportunity to carry on business at the said site on terms and conditions not less favourable than those proposed to be offered to the person or corporation to whom it is otherwise proposed to make the said site available except that the area will not be made available to any fertilizer chemical or petroleum industry without the prior approval of CSBP.

State law to apply 2

This Agreement shall be interpreted according to the laws for the time being in force in the said State.

Arbitration 2

Any dispute or difference between any two or more of the parties arising out of or in connection with this Agreement or as to the construction of this Agreement or of any variation thereof or as to the rights duties or liabilities of any party hereunder or as to any matter to be agreed upon between any two or more of the parties in terms of this Agreement shall in default of agreement between the parties and in the absence of any provision in this Agreement to the contrary be referred to and settled by arbitration under the provisions of the Arbitration Act 1895.

Notices 2

Any notice consent option or other writing authorised or required by this Agreement to be given or sent by the State if signed by the Minister or by any senior officer of the Civil Service of the said State acting by direction of the Minister and forwarded by prepaid post to the addressee being a party hereto at its registered office in the said State and by either of the other parties hereto if signed on behalf of that party by a director manager secretary or attorney of that party and forwarded by prepaid post to the Minister and any such notice option consent or writing shall be deemed to have been duly given on the day on which it would be delivered in the ordinary course of post.

SCHEDULE A.

AREA A.

SCHEDULE B.

AREA B.

All that portion of land bounded by lines starting from the intersection of the north‑western side of Rockingham Road with the western side of Mandurah Road and extending south‑westerly 4 chains 92 and nine tenths links along that side of Mandurah Road and onwards 180 degrees 19 minutes 34 chains 14 and one tenth links; thence 186 degrees 3 minutes 2 chains 79 and six tenths links; thence 197 degrees 31 minutes 2 chains 79 and six tenths links; thence 208 degrees 58 minutes 2 chains 79 and six tenths links; thence 214 degrees 42 minutes 16 chains 43 links; thence 270 degrees 29 chains 81 and eight tenths links to the north‑western side of Rockingham Road aforesaid and thence north‑easterly along that side to the starting point; being lots 321, 322, 325 to 328 inclusive and 331 of Cockburn Sound location 244 as shown on Land Titles Office 3 plan 3837, lots 335 to 351 inclusive and 357 to 364 inclusive as shown on Lands Titles Office 3 plan 3836, lots 4 to 7 inclusive as shown on Lands Title Office 3 diagram 21109, lots 1, 2 and 3 as shown on Land Titles Office 3 diagram 13500, parts of lots 315 to 320 inclusive, 332 and 333 as shown on Land Titles Office 3 plan 3837 aforesaid, parts of lots 334, 352 to 356 inclusive, 365 to 369 inclusive and 371 as shown on Land Titles Office 3 plan 3836 aforesaid together with parts of Rockingham Road, Gulf Street and Richardson Street and being the land delineated and coloured blue on the said Plan marked “A”.

SCHEDULE C.

AREA C.

ROCKINGHAM LOT 639.

SCHEDULE D.

AREA D.

All that portion of land bounded by lines starting from a point on the north‑western side of Rockingham Road situate 12 and one tenth links north‑easterly from the intersection of that side with the prolongation north‑westerly of the north‑eastern side of Beach Street and extending 90 degrees 29 chains 81 and eight tenths links; thence 214 degrees 42 minutes 29 chains 39 and nine tenths links; thence 270 degrees 17 chains 3 and nine tenths links to the eastern corner of lot 7 of Cockburn Sound location 244 as shown on Land Titles Office 3 diagram 14302; thence north‑westerly along the north‑eastern boundaries of that lot, lot 6 and part of lot 8 being the subject of Certificate of Title Volume 1167 Folio 830 and south‑westerly along the north‑western boundary of that part of lot 8 to the north‑eastern side of Ocean Street; thence north‑westerly along that side and onwards to the north‑western side of Rockingham Road aforesaid; thence south‑westerly 1 chain 77 and two tenths links along that side; thence 270 degrees to the high water mark of the Indian Ocean; thence generally northerly along that mark to a point situate 270 degrees from the starting point and thence 90 degrees to that point; being lots 298, 299, 300, 302 to 307 inclusive, 310, 311 and 312 as shown on Land Titles Office 3 plan 3837, lots 4, 5 and part of lot 8 as shown on Land Titles Office 3 diagram 14302 together with part of the right of way shown thereon, lots 1 and 2 as shown on Land Titles Office 3 diagram 13127, lots 9 to 12 inclusive as shown on Land Titles Office 3 diagram 15404, parts of lots 294, 295, 296, 313 to 320 inclusive, 332 and 333 together with parts of Rockingham Road and Beach Street and being the land delineated and coloured partly in brown and the remainder in hachure on the said Plan marked “A”.

AS WITNESS the execution of these presents the day and year first hereinbefore written.

SIGNED SEALED AND DELIVERED by THE HONOURABLE DAVID BRAND M.L.A. in the presence of —	View image in the official source	DAVID BRAND. [L.S.]

C. W. Court.

THE COMMON SEAL OF BP REFINERY (KWINANA) PROPRIETARY LIMITED was hereunto affixed in the presence of —	View image in the official source	[C.S.]

L. R. GASCOINE,

Director.

Wm. G. BEVAN,

Secretary.

THE COMMON SEAL OF CSBP & FARMERS LTD was hereunto affixed by authority of the directors in the presence of —	View image in the official source	[C.S.]

A. McA. BATTY,

Director.

E. THORLEY LOTON,

Director.

K. A. MARTIN,

Secretary or authorised
Signatory.

Notes

1 This is a compilation of the Industrial Lands (Kwinana) Agreement Act 1964 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title		Number and year	Assent	Commencement
Industrial Lands (Kwinana) Agreement Act 1964		93 of 1964	14 Dec 1964	14 Dec 1964
*Reprint 1: The Industrial Lands (Kwinana) Agreement Act 1964* as at 22 Aug 2003**
Standardisation of Formatting Act 2010 s. 4	19 of 2010	28 Jun 2010	11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)

2 Marginal notes in the agreement have been represented as bold headnotes in this reprint but that does not change their status as marginal notes.

3 Lands Titles Office diagrams and plans are now being held by the Western Australian Land Information Authority (see the Land Information Authority Act 2006 s. 100).

Western Australia

Industrial Lands (Kwinana) Agreement Act 1964

Western Australia

Industrial Lands (Kwinana) Agreement Act 1964

Contents

Short title 1
Agreement approved and to take effect 1

Schedule — Industrial Lands (Kwinana) Agreement

Notes

Compilation table 27

Western Australia

Industrial Lands (Kwinana) Agreement Act 1964

An Act to approve, and give effect to, an agreement relating to the disposition of certain lands at Kwinana for industrial purposes.

1. Short title

This Act may be cited as the Industrial Lands (Kwinana) Agreement Act 1964 1.

2. Agreement approved and to take effect

The agreement of which a copy is set out in the Schedule is approved and shall, notwithstanding any other Act or law, take effect.

Schedule — Industrial Lands (Kwinana) Agreement

[s. 2]

[Heading amended: No. 19 of 2010 s. 4.]

WHEREAS the parties hereto —

(a) desire to enter into this Agreement with a view to the establishment and carrying on at Kwinana of —

The Act operates through an approved agreement in the Schedule that combines land transfers, infrastructure obligations, operational licences, and protective covenants into a single legal package. The principal concepts embodied in the instrument are:

Statutory approval and primacy: s 2 gives the agreement statutory effect “notwithstanding any other Act or law” once the ratifying Act is in force (s 2(1)). This is the mechanism by which negotiated terms gain supremacy over inconsistent State law or regulation for the agreement’s duration.
Land re‑allocation and vesting: the Schedule defines Areas A-E geographically (Schedules A-D), and prescribes transfers and vesting. BP transfers Area A to the State and receives Area B in exchange (clauses 3-4). The State purchases Area C from BP (clause 5). Area D is sold to CSBP at £750 per acre on staged payments and vests as fee simple subject to specified adjustments and road closures (clause 6). Road closures within Areas B and D are to be effected by the agreement and the Registrar of Titles is required to issue new certificates reflecting those changes (clauses 4(3), 4(4), 6(4)-(5)).
Infrastructure and timing obligations: the State must construct a diversion road and open it by 31 August 1965 (clause 4(1)(c)); CSBP must start construction of the fertilizer plant by 30 June 1966 and complete by 31 December 1968, with an estimated capital cost of £5,000,000 and capacity of not less than 100,000 tons per annum (clause 11). The State may construct, or require the Fremantle Harbour Trust Commissioners to construct, a wharf portion for CSBP/BP/KNC (clause 12); alternatively CSBP may construct and maintain its own wharf subject to the Commissioners’ approval (clause 13).
Utilities, transport and port access: the agreement requires the State Electricity Commission to supply up to 25,000 kV·A of 50-cycle power to Area D on standard industrial terms (clause 14); the Metropolitan Water Sewerage and Drainage Board to supply potable water to Area D subject to limits (clause 16); and the State to ensure rail connection for Area D to narrow and future standard gauge systems (clause 18).
Operational permissions and limits: CSBP is permitted to draw and discharge sea water for cooling and to discharge up to 350 tons per day of gypsum effluent into Cockburn Sound subject to Commissioners’ position and conditions (clause 15 and 27). CSBP is responsible for dredging and removal of gypsum if required (clause 27(3)).
Economic protections and constraints: the State agrees not to impose discriminatory taxes, rates or charges on CSBP’s activities (clause 22), to have Area D rated on unimproved value (clause 23), and not to enact price controls that prevent CSBP selling at prices that provide “reasonable depreciation reserves and return on the capital employed” as determined by CSBP (clause 25).
Property and procedural mechanics: the TP Board is to approve certain subdivision plans “without alteration” except for changes mutually agreed by the parties (clauses 3(3), 4(2), 6(3)), rights of way over closed roads cease and the closed road portions vest in Her Majesty as fee simple (clauses 4(3)(a)-(c), 6(4)(a)-(c)). The agreement contains assignment mechanics for CSBP with State consent not to be “arbitrarily or unreasonably withheld” (clause 19).
Duration, default and dispute resolution: the core agreement runs until 1 January 2014 unless CSBP validly exercises an extension option by written notice before 1 January 2010 (clause 10). Defaults by either party may be met with a notice and a 12‑month remediation period prior to termination (clause 28). Disputes are to be referred to arbitration under the Arbitration Act 1895 (clause 33).

These concepts are integrated: proprietary changes (vesting, transfers and road closures) are coupled with operational and commercial undertakings (plant construction, wharf access, utility supply, port charges and price protection), while the State provides a set of protections to the private parties in exchange for the commitments to construct and operate the industrial facilities.

The instrument identifies specific named parties and categories of third parties that have rights or duties under the agreement. Direct parties are the State of Western Australia (the first party), BP Refinery (Kwinana) Proprietary Limited (the second party) and CSBP & Farmers Ltd (the third party). The agreement also contemplates and creates effects for other named bodies and stakeholders:

BP and CSBP: primary private beneficiaries and obligors. BP exchanges Areas with the State (clauses 3-4), and retains rights and obligations linked to the refinery site and wharf use (clauses 3-4, 12). CSBP purchases Area D, must construct the fertiliser plant to specified cost and capacity and fulfils operational duties including wharf construction/maintenance, effluent management and dredging responsibilities (clauses 6, 11-13, 27). CSBP has the right to assign its interests with State consent (clause 19) and an option to purchase adjacencies if they become Crown land (clause 6(11)).
KNC (Kwinana Nitrogen Company Proprietary Limited): referenced as a named entity with wharf access rights equivalent to BP and CSBP (clause 12(2), 13(6)).
Fremantle Harbour Trust Commissioners (the Commissioners): responsible for construction and maintenance of any State-directed wharf portion (clause 12(2), 12(5)), for prescribing wharf charges and for overseeing dredging approvals and directions (clauses 12, 17, 27). The Commissioners may carry out dredging and recoup costs from CSBP if CSBP fails to do so (clause 27(3)(c)).
Town Planning Board (TP Board): the TP Board must approve subdivision plans submitted by BP and the State, but the approval is to be given without alterations except for changes agreed by the parties (clauses 3(1)-(3), 4(1)(b), 6(1)(b), 6(3)).
Registrar of Titles: instructed to cancel and issue new certificates of title reflecting the land additions and exclusions when applied for by registered proprietors (clauses 4(4), 6(5)).
State instrumentalities: the State Electricity Commission (clause 14), Metropolitan Water Sewerage and Drainage Board (clause 16), and various State agencies and local authorities who are restrained from imposing discriminatory charges (clause 22) or resuming Area D/wharf without CSBP consent (clause 20).
Local landholders and the public: those affected by road closures (clauses 4(3), 6(4)), by the diversion road construction (clause 4), and by effluent discharge and dredging in Cockburn Sound (clauses 15, 27). The agreement gives CSBP rights to use sea water and to discharge effluent subject to approvals (clauses 15, 27), which will bear on local marine conditions and users.
Third parties using the wharf: the agreement contemplates third-party use of the CSBP portion of the wharf, subject to CSBP’s sole determination of whether third‑party use unduly hinders operations and subject to Commissioners’ charges (clauses 12(7), 13(3)). CSBP and the Commissioners are to determine allocation of charges where CSBP’s wharf is used by third parties (clause 13(3)).
Future assignees and associated companies: clause 19 allows CSBP to assign its rights to associated companies with the State’s written consent not to be unreasonably withheld, and provides a stamp duty exemption for such intra-group transfers if before 31 March 1972.

Who pays: financial obligations are allocated in the Schedule. CSBP pays the purchase price for Area D (£750 per acre) in three instalments (clause 6(1)(c)), a contribution to the diversion road computed at £11,000 per mile for the closed portion of Rockingham Road within Area D (clause 6(6)), wharf charges and maintenance if it constructs the wharf (clauses 12(6), 13(2)-(4), 17), dredging and removal costs for gypsum discharge as required (clause 27(3)), and indemnities to the State for construction/maintenance/use of CSBP’s wharf (clause 13(5)). The State bears the cost of compulsory acquisition of land, road construction unless CSBP pays contributions, and (if State elects) wharf construction via the Commissioners (clauses 3-4, 12).

In practical terms, the agreement embeds specific financial flows from CSBP to the State and to port authorities, while conferring statutory protections on CSBP and BP and constraining certain State and local authority powers in relation to Area D, the wharf and taxation/ratings.

The Schedule contains explicit duties and rights distributed among the parties. Below are the principal ones grouped by actor, with section references to the Schedule clauses.

State of Western Australia (duties and rights)

Acquire, resume or compulsorily take land required for the agreement and dispose of it in accordance with the agreement (s 2(1)(a); clauses 3-7). The State may use Public Works Act powers to acquire land but may thereafter dispose of it for the agreement’s purposes apart from that Act (s 2(1)(a)).
Construct and open the diversion road by 31 August 1965 (clause 4(1)(c)).
Transfer an estate in fee simple in Area B to BP in exchange for Area A (clauses 3(4), 4(1)(d)).
Sell Area D to CSBP on specified terms and receive instalments (clause 6(1)(c)).
Cause the Commissioners to construct and maintain the CSBP portion of the wharf if desired and after giving notice (clause 12(1)-(5)).
Ensure Area D will be connected by rail to narrow and later standard gauge systems (clause 18).
Ensure that CSBP’s rights are not impaired by State acts during the currency of the agreement, subject to safety laws (clause 21).
Not resume Area D or the wharf in a manner that would impede CSBP’s activities, nor create rights of way/easements without CSBP’s consent (clause 20).

BP Refinery (rights and duties)

Submit the plan of subdivision of the refinery site and exchange Area A for Area B as provided (clauses 3-4).
Be entitled to the Area B estate in fee simple free of trusts and encumbrances in exchange for transferring Area A (clause 3(4)).
Have rights of access and use of the wharf (clauses 12, 13).

CSBP (rights and duties)

Purchase Area D at £750 per acre with three instalments and take possession concurrent with BP receiving Area B (clause 6(1)(c), 6(7)).
Begin construction of the fertiliser plant by 30 June 1966, proceed diligently, and complete by 31 December 1968, with estimated capital cost £5,000,000 and minimum production capacity 100,000 tons per annum (clause 11(1)).
Comply with accepted modern practice in construction, equipping and operating the plant (clause 11(2)).
Construct its own wharf at its expense if the State elects not to cause construction (clause 13(1)); maintain it and insure it (clause 13(2)); may control and manage the wharf free of rental or licence fee subject to Commissioners’ functions (clause 13(4)).
Pay wharf charges set by the Commissioners and specific rates in the Schedule (clauses 12(6), 17).
Allow third-party use of the CSBP portion of the wharf or its wharf where such use does not unduly hinder CSBP and on terms to be determined by Commissioners (clauses 12(7), 13(3)).
Pay a contribution towards constructing the diversion road adjacent to the eastern boundary of Area D based on the length of closed Rockingham Road at £11,000 per mile (clause 6(6)).
Draw and use sea water for cooling subject to Commissioners’ approval and discharge effluent not dangerous to public health (clauses 15, 27(2)). CSBP may discharge up to 350 tons/day of gypsum into Cockburn Sound at water not less than eight fathoms deep at low water mark (clause 27(1)).
Carry out dredging and removal of gypsum if discharge causes shallowing; comply with Commissioners’ notices to dredge; Commissioners may dredge and recover costs from CSBP if CSBP fails (clause 27(3)).
Keep particulars of wells and bores and provide details to the State on request; a condition on bores includes not tapping artesian basins and location/depth constraints (clause 16(2)-(3)).
Have assignment rights for its interest provided State consent is given not arbitrarily or unreasonably and assignee covenants to comply (clause 19).

Commissioners / Port Authority (rights and duties)

Construct and maintain the CSBP portion of the wharf if requested by the State by the specified dates and set aside the CSBP portion for CSBP, BP and KNC (clause 12(1)-(5)).
Prescribe wharf charges for goods handled on the CSBP portion, with caps and formulae for bulk cargo charges until 1 January 1988 and proportional adjustments tied to inner harbour rate changes (clause 12(6)).
Charge tonnage/pilotage and service fees on vessels using CSBP’s wharf as applicable (clause 17(3)).
Approve sea water drawing locations and dredging methods and positions for discharge pipes (clauses 15, 27(2)) and serve notices requiring dredging/removal (clause 27(3)(b)-(c)).

General mutual and procedural duties

Parties must execute further documents and do all acts necessary to give effect to the agreement (clause 8).
The agreement and implementing documents are exempt from stamp duties (clause 9).
Notices are valid when signed and posted as prescribed (clause 34).

Rights of remedy, termination and dispute resolution

Either party may terminate on the other party’s non‑performance after notice; termination takes effect 12 months after deemed receipt unless the default is remedied or intent to remedy shown (clause 28).
Any disputes are to be referred to arbitration under the Arbitration Act 1895 (clause 33).

Collectively the Schedule allocates construction obligations, property transfers and operational permissions with specified financial mechanics and protective covenants, with statutory force under the Act (s 2). Many rights are time‑bound and conditional on compliance with the spelled‑out procedural steps in the Schedule.

The instrument contains specific enforcement mechanics, cost recovery mechanisms and termination rights rather than criminal penalties. Primary enforcement and remedy features are:

Termination for default

If CSBP or the State fails to perform a contractual obligation, the other party may serve notice specifying the breach and terminate the agreement (clause 28(1)(a)-(b)). Notice is deemed received the day after posting and termination becomes effective 12 months after that date unless the failure is remedied or honest intent to do so is shown within the period (clause 28(2)). This gives a substantial grace period for remedial action.

Cost recovery and compulsory performance

Dredging and removal: if Commissioners notify CSBP to dredge and remove gypsum to specified extent/locations and CSBP fails to do so to the Commissioners’ satisfaction within 12 months, the Commissioners may carry out the work and recover the costs from CSBP (clause 27(3)(b)-(c)). This is an express power to compel remediation and to treat the cost as recoverable from CSBP.
Post‑termination site remediation: if CSBP removes plant equipment and leaves holes/excavations unfilled after the end or sooner determination of the agreement, and CSBP fails to consolidate and level within 6 months, the State may do the work and recover costs from CSBP; equipment left behind becomes the State’s property (clause 13(7)).

Indemnities and insurance

CSBP must indemnify the State against actions, claims, costs and demands arising from construction, maintenance or use of any CSBP-wharf, except where claims are based on negligence of the State, its agents, servants or third-party contractors (clause 13(5)). CSBP must insure the wharf and shore approaches if it constructs them (clause 13(2)).

Registration and vesting mechanics

Road closures become additions to Areas B and D and vest in Her Majesty as fee simple under Transfer of Land Act 1893, which effects immediate proprietary changes upon possession and triggers Registrar of Titles to issue new certificates on application and payment of prescribed fee (clauses 4(3)(c)-(4), 6(4)(c)-(5)). This is an administrative enforcement mechanism: the State, through the land title system, alters ownership upon compliance with the Schedule.

Statutory protections limiting State action

The State covenants not to resume or permit resumption of Area D or the wharf if that would impede CSBP activities, and not to create rights of way or easements over Area D without CSBP consent (clause 20). Failure by the State would be actionable under the agreement (clause 28 provides termination mechanics, and clauses 21-22 create assurances and prohibitions).

Economic constraints on State agencies

The State must not impose discriminatory taxes, rates or charges on CSBP’s titles, property, products, materials or services, nor authorise such by its agencies (clause 22). A breach would be a contractual failure by the State giving CSBP termination rights (clause 28).

Arbitration

All disputes between parties are to be referred to arbitration under the Arbitration Act 1895 (clause 33). Arbitration replaces court litigation for many disputes provided no provision in the agreement says otherwise.

Absence of criminal penalties

The Schedule does not prescribe criminal sanctions for non‑compliance. Remedies are civil: termination, cost recovery, indemnities and arbitration.

Practical enforcement implications

Enforcement largely relies on contract‑style remedies backed by statutory mechanisms (vesting via titles, compulsory acquisition powers in s 2(1)(a)) and State capacity to carry out works or compel Commissioners to act. The 12‑month cure window for termination softens the immediacy of contractual termination but allows serious breaches to lead to termination after a year.

Overall, enforcement is structured to prioritise remediation, cost recovery and continuation of operations where possible, rather than immediate forfeiture or criminal sanction. The agreement embeds administrative actions (title changes, vesting, port authority powers) as the method of implementing remedies and effecting obligations.

The Schedule expressly references and interacts with a number of pre‑existing statutes, administrative bodies and statutory processes. The Act gives the Schedule statutory effect, and the Schedule in turn modifies the operation of some named laws for the parcels and activities concerned. Key interactions include:

Priority over conflicting laws

Section 2(1) provides that upon ratification the agreement “shall… take effect” notwithstanding any other Act or law. Clause 2(1)(b) says rights and obligations created shall have statutory effect “as if enacted by the ratifying Act.” Clause 2(1)(c) states no Act, regulation or by‑law shall operate so as to prevent the State from fulfilling its obligations under the agreement. These provisions create a direct statutory precedence for the agreement’s terms where they conflict with other State laws.

Interaction with land‑acquisition and development statutes

The State may acquire or compulsorily resume land “as for a public work within the meaning of the Public Works Act 1902” and thereafter dispose of it under the agreement apart from the provisions of that Act (clause 2(1)(a)). The agreement also deems certain acquisitions to be as if acquired under section 11(1b) of the Industrial Development (Resumption of Land) Act 1945 (clauses 3(6), 5, 6(2), 6(10)). For example, Areas designated may be “deemed held and may be dealt with” under that Act. The effect is to co‑ordinate compulsory acquisition and tenure changes with industrial development statutes.

Town planning and subdivision law

The TP Board (Town Planning Board under the Town Planning and Development Act 1928) is to approve plans of subdivision “without alteration” except for alterations mutually agreed by the parties (clauses 3(3), 4(2), 6(3), 6(9)). The Schedule explicitly deems such TP Board approvals “to be an approval within the meaning and for the purposes of the Town Planning and Development Act 1928” (clause 3(3)). This reduces TP Board discretion to impose additional conditions inconsistent with negotiated plans, subject to the parties’ mutual agreement on alterations.

Titles and transfer law

Road closures are to be treated as additions to Areas B and D and to “vest in Her Majesty as for an estate in fee simple in possession under the operation of the Transfer of Land Act 1893” (clauses 4(3)(c), 6(4)(c)). The Registrar of Titles is required, on application and payment of prescribed fee, to cancel and issue new certificates reflecting the rearranged boundaries (clauses 4(4), 6(5)). The Schedule thus triggers the land registration regime to operationalise the proprietary reallocations.

Port and harbour law

The Fremantle Harbour Trust Act 1902 is referenced by naming the Commissioners as the statutory Fremantle Harbour Trust Commissioners; the Commissioners’ powers and charges are invoked for construction, maintenance and charges on the CSBP portion of the wharf (clause 12 and clause 17). Clause 12(5) obliges the State to “cause the Commissioners to maintain” the CSBP portion if constructed by the Commissioners. Clause 27(2) makes dredging subject to Commissioners’ approval.

Utilities law and administrative agencies

The State Electricity Commission and the Metropolitan Water Sewerage and Drainage Board are called on to supply specified quantities of power and water under their prevailing industrial supply terms (clauses 14 and 16). Clause 16(2) also specifies controls on CSBP sinking wells and bores, including the Board’s approval for wells within two chains of a boundary and a prohibition on tapping the artesian basin.

Arbitration and dispute settlement

Clause 33 requires arbitration under the Arbitration Act 1895 for disputes between parties, which interacts with the ordinary civil court jurisdiction: parties have contracted to arbitrate rather than litigate most disputes.

Limits: safety and other laws

Clause 21 preserves rights but expressly states it does not apply to any law or requirement relating to safety. That means safety‑regulating legislation or requirements maintain their force and may require CSBP to comply even where other protections are in place.

Statutory exemptions and fiscal law

Clause 9 provides that the agreement and necessary documents shall be exempt from State stamp duties. Clause 22 prevents the State and its instrumentalities from imposing discriminatory taxes, rates or charges on CSBP’s titles/property/products/services during the agreement’s currency.

Territorial and temporal interaction

The agreement repeatedly treats specific parcels as forming part of the refinery site “for all purposes (including those of the said recited agreement ratified by Act No. 1 of 1952)” thereby adjusting the footprint of prior statutory agreements as between these parties (clause 4(3)(d)-(e)). It also sets temporal limits, for instance with wharf charge caps linked to dates (clause 12(6)) and the overall term of the agreement set to 1 January 2014 subject to CSBP’s renewal option given by clause 10.

Administrative procedure

Many implementations require applications, approvals and notices under other statutory regimes (Registrar of Titles, TP Board, Commissioners, electricity and water boards), but the Schedule constrains those bodies to follow the agreement’s prescriptive directions in specific instances.

In sum, the agreement both makes use of existing statutory mechanisms (titles, port authority powers, planning approvals, utility supply) and limits or prioritises the agreement’s terms over other laws for the defined parcels and period. Where other statutes would otherwise operate, the agreement either carves out or prescribes how those statutes are to be applied in the Kwinana context.

The text includes internal compilation notes and a brief amendment record. The Act was originally the Industrial Lands (Kwinana) Agreement Act 1964 (Assent 14 December 1964; commencement 14 December 1964) as set out in the compilation table. The instrument has been reprinted and subject to formatting changes. Specific items recorded in the provided text:

Compilation and reprint: a reprint of the Act is noted as “Reprint 1: The Industrial Lands (Kwinana) Agreement Act 1964 as at 22 Aug 2003” (Compilation table). This indicates the Act was reprinted up to that date.
Standardisation of Formatting Act 2010: the Schedule heading was amended by the Standardisation of Formatting Act 2010 (No. 19 of 2010 s. 4) as noted at the head of the Schedule: “[Heading amended: No. 19 of 2010 s. 4.]” The compilation table also notes s 4 of No. 19 of 2010 and the Gazette commencement details. This suggests amendments were principally formatting and heading updates rather than substantive commercial changes, as the note labels it a standardisation of formatting act.
Marginal notes: the compilation notes record that marginal notes in the agreement have been represented as bold headnotes in the reprint but “that does not change their status as marginal notes” (Note 2). This is an editorial/formatting adjustment in the reprint process.
Land plan custodianship: Note 3 explains that Land Titles Office diagrams and plans are now held by the Western Australian Land Information Authority per the Land Information Authority Act 2006 s. 100. This is a change in record‑keeping location rather than an amendment to substantive terms.

No other substantive amendments, substitutions or repeals of operative clauses are recorded in the text provided. The only explicitly identified amendment is the formatting/heading amendment by the 2010 Act (No. 19 of 2010 s 4). The compilation table indicates the Act remains in force as reprinted at 22 August 2003 and subjected to formatting standardisation in 2010.

Practically relevant consequences of the amendment history in the source:

Many of the Schedule’s mechanistic directions reference bodies and Acts as they existed at the time of negotiation (for example the Town Planning Board under the Town Planning and Development Act 1928). Users should verify whether subsequent legislative changes have altered agency names, procedural frameworks, or the competence of bodies referenced. Note 3 suggests plan custody has moved to the WA Land Information Authority.
The limited amendment record in the text shows no recorded substantive change to the commercial or land transfer terms in the Schedule within the provided notes. The Schedule’s major commercial provisions (prices, timelines, rights and obligations) appear unchanged by the identified formatting amendment.

If up‑to‑date status is required, practitioners should check subsequent legislative amendments, repeal schedules, or later reprints beyond the provided compilation to confirm whether any substantive changes were made after 2010 or whether exercise of renewal options or transfers have changed ownership or operative terms. The Schedule itself sets temporal limits (for example the expiry provision in clause 10 for 1 January 2014) that may require inquiry into whether CSBP exercised its renewal option.

The text of the Industrial Lands (Kwinana) Agreement Act 1964 and its Schedule does not record any litigation, adjudicative judgments, or judicial interpretations. The Schedule contains a comprehensive arbitration clause (clause 33) requiring disputes “arising out of or in connection with this Agreement” to be referred to arbitration under the Arbitration Act 1895, which indicates a neutral forum agreed by the parties for dispute resolution, and suggests disputes between the parties are intended to be resolved by arbitration rather than litigation.

What the text provides regarding dispute mechanisms:

Clause 33 prescribes arbitration under the Arbitration Act 1895 for “any dispute or difference” arising under or as to the interpretation of the agreement. There is no express carve‑out in the document permitting court challenges to particular issues, so the parties’ agreed mechanism is arbitration unless “provision in this Agreement to the contrary” is found, which the text does not disclose.
Clause 28 provides the mechanics for notices of default and a 12‑month window for remediation prior to termination, which is a contractual enforcement pathway rather than immediate court relief.

Absence of recorded cases

The Schedule names no judicial decisions nor records any litigation history. The compilation notes add no litigation references.

Implications for research and practice

The absence of litigation history in the statute text means any analysis of how courts have interpreted the agreement, enforced its covenants, or addressed disputes over its proprietary and regulatory carve‑outs cannot be drawn from the instrument itself. Practitioners or researchers seeking litigation history must search judicial, tribunal and arbitration records beyond the Act’s text to see whether disputes were arbitrated or litigated and what interpretive precedents, if any, exist. Clause 33 indicates arbitration was expected to be the primary mode of adjudication between the parties.

In short, the provided material contains no litigation history; disputes are contractually routed to arbitration under clause 33 and the Arbitration Act 1895.

The agreement has several provisions that create practical and legal traps or require careful attention when advising clients or implementing obligations. The following items should be flagged for attention, each grounded in the Schedule text.

Statutory primacy but limited scope

Section 2 declares the agreement will “take effect notwithstanding any other Act or law” once ratified, and protects performance from other Acts, regulations or by‑laws (s 2(1)(c)). This is broad but geographical and temporal limits apply: it operates only as to the parties and the specified lands and activities. It does not free the parties from safety laws (clause 21 proviso) or other general public law obligations.

TP Board “no alteration” approvals

The TP Board is directed to approve subdivision plans “without alteration thereto and without the affixing of any conditions of approval except such alterations and/or conditions if any as the parties hereto shall all agree to accept” (clauses 3(3), 4(2), 6(3)). This constrains an important planning regulator’s discretion. Practitioners should check whether contemporary planning legislation or procedural rules still allow such fettering or whether modern planning approvals require public notification or conditions that cannot be precluded.

Timing and performance obligations with hard dates

CSBP’s plant construction start and completion dates are firm (clause 11(1)). Clause 30 contains force‑majeure provisions covering specified causes of delay, but clause 28 allows termination on non‑performance after a 12‑month remediation window. Advisers must watch milestone triggers and the procedural preconditions to termination.

Long‑term expiry and renewal option mechanics

Clause 10 fixes the agreement to expire on 1 January 2014 unless CSBP, not later than 1 January 2010, serves notice requiring extension for a further period not exceeding 20 years. This places the renewal option solely with CSBP and requires strict compliance with notice timing. If a user wants to know current rights beyond 2014, they must verify whether CSBP exercised the option; the Schedule does not record this.

Price protection clause drafting

Clause 25 instructs that the State will not prevent CSBP from selling products “at prices which will allow CSBP to provide for such reasonable depreciation reserves and return on the capital employed in the production of those products as are determined by CSBP.” That gives CSBP a self-assessment right to determine “reasonable…return,” which may produce disputes over what is reasonable. The clause lacks objective calibration and may be difficult to arbitrate; the parties agreed arbitration (clause 33) but expect contentious valuation disputes.

Stamp duty exemption limitations

Clause 9 exempts the agreement and necessary documents from stamp duty, and clause 19 provides a narrow time‑limited exemption for assignments to associated companies before 31 March 1972. Practitioners should not assume unlimited duty relief; timing and the identity of assignees matter.

Environmental and effluent permissions

Clause 27 allows CSBP to discharge gypsum up to 350 tons per day into Cockburn Sound at specified depths, but subject to Commissioners’ approval of pipe positions and subject to obligations to dredge and remediate shallowing. The environmental terms are permissive but hinge on Commissioners’ oversight and CSBP’s continuing remediation obligations; those responsibilities create open-ended future costs (clause 27(3)). Also clause 15 permits sea water discharge “provided that the discharge is not dangerous or injurious to public health,” which is a qualitative standard potentially creating enforcement issues.

Road closure and title mechanics

Portions of Rockingham Road, Gulf Street and Richardson Street that lie within Areas B and D are to be closed and vested in Her Majesty as fee simple (clauses 4(3)(a)-(c), 6(4)(a)-(c)). Practitioners should note the practical effect on public access and utility easements; the Registrar of Titles must be asked to cancel and issue new certificates (clauses 4(4), 6(5)). These land changes may trigger local government or easement claims not fully addressed by the Schedule.

Delegation and third‑party contractors

Clause 24 permits entrusting third parties with performance of operations without affecting liability. Parties retaining liabilities despite delegation need to ensure contractors’ obligations and insurances are aligned, as the State and CSBP remain ultimately responsible.

Conferral of broad indemnities and cost burdens on CSBP

CSBP indemnifies the State against actions arising from construction/maintenance/use of its wharf subject to negligence carve‑outs (clause 13(5)), bears dredging and remediation costs if gypsum discharge causes shallowing (clause 27(3)(a)-(c)), and is liable for construction costs and contributions to road works (clause 6(6)). These create potentially significant contingent liabilities.

Safety law carve‑out

Clause 21’s preservation of rights excludes “any law or requirement relating to safety.” Regulators may still impose safety requirements that interfere with other rights or operations, and those safety law obligations are not overridden by the agreement.

Assignment consent “not arbitrarily or unreasonably withheld”

Clause 19 allows CSBP to assign with the State’s written consent, which “shall not be arbitrarily or unreasonably withheld.” That standard creates a contractual reasonableness test but requires interpretive work in arbitration or negotiation if the State refuses consent.

Records and supply agencies named as they existed

Clauses reference agencies and Acts current at the time of the agreement (for example the Town Planning Board under the Town Planning and Development Act 1928, the Metropolitan Water Sewerage and Drainage Board). Practitioners must check whether those agencies’ names, powers or statutory frameworks have since changed and whether delegated powers or procedural requirements now differ.

Each of these “gotchas” arises directly from the Schedule’s text and will affect transactional risk allocation, long‑term liabilities and administrative interactions. Practitioners must verify contemporary status and any post‑Schedule action (land transfers, renewal notices, wharf construction, dredging events) that affect the agreement’s present operation.

Compliance under the agreement is about satisfying temporal milestones, fulfilling ongoing operational duties, preserving property rights, and meeting administrative notice and approval requirements. The Schedule sets out precise steps and actors; the following is a practical checklist mapped to the relevant clauses.

Monitor and record deadlines and milestone triggers

CSBP: ensure commencement of construction by 30 June 1966 and completion by 31 December 1968 (clause 11(1)). Keep contemporaneous evidence of commencement dates, contractor mobilisations and work progress to rely on clause 30 force‑majeure defences if delays occur.
State and BP: meet the road construction and opening deadline of 31 August 1965 for the diversion road (clause 4(1)(c)). Document completion and handover.

Manage land title and subdivision procedures precisely

Submit subdivision plans to the TP Board in the form initialled by the parties or in mutually agreed altered forms (clauses 3(1), 4(1)(b), 6(1)(b)). Although TP Board approvals are to be given without unilateral alterations (clauses 3(3), 4(2), 6(3)), parties should secure written TP Board approval and retain records proving approval conformed to the agreed plan.
Apply to the Registrar of Titles to cancel and reissue certificates after road closures and boundary changes (clauses 4(4), 6(5)). Ensure payment of prescribed fees and obtain new certificates as part of completion documentation.

Financial compliance and accounting entries

CSBP: make purchase instalment payments for Area D on the dates specified (clause 6(1)(c)). Record the contribution payment for diversion road calculated at £11,000 per mile for closed Rockingham Road portions (clause 6(6)). Account for wharf charges, dredging costs and maintenance obligations.
Commissioners: set wharf charges and invoice CSBP/BP/KNC accordingly where a State-constructed wharf applies (clause 12(6)); where CSBP constructs a wharf, implement mutual arrangements with Commissioners for charge allocation (clause 13(3)).

Wharf construction and maintenance protocols

If State elects to instruct the Commissioners to construct a CSBP portion, the State must notify CSBP by 31 January 1965 and cause construction to be completed by the date nominated (clause 12(1)-(2)). Ensure delivery of notice and keep proof.
If CSBP constructs the wharf under clause 13, do so “in close liaison with the Commissioners” and obtain Commissioners’ written approval of plans; maintain proper insurance and maintenance records (clause 13(1)-(2)). Any dispute with Commissioners goes to the Minister whose decision is final (clause 13(1) second sentence); keep records of referrals and decisions.

Utilities and water management

Lodge reasonable notices with the State Electricity Commission and the Metropolitan Water Sewerage and Drainage Board specifying construction and operational power and potable water requirements and ensure consumption remains within the caps (clauses 14 and 16(1)). If CSBP proposes wells or bores on Area D, seek prior approval from the Board where required and maintain records of well locations, depths, yields and quality as clause 16(2) requires; provide particulars to the State on request.

Environmental and dredging obligations

Obtain Commissioners’ approvals for the locations of sea water intake and discharge pipes (clauses 15, 27(2)). Ensure effluent discharged is not dangerous or injurious to public health (clause 15).
Maintain environmental monitoring and dredging plans to detect shallowing linked to gypsum discharge; respond to Commissioners’ notices within 12 months to do dredging/removal or face Commissioners performing and charging the work to CSBP (clause 27(3)). Document environmental performance and communications with the Commissioners.

Record and manage assignment and associated company transfers

If CSBP intends to assign or dispose of its interest, seek the State’s written consent and obtain the assignee’s deed of covenant to the State as required (clause 19(1)). For associated company disposals prior to 31 March 1972, record eligibility for stamp duty relief as per clause 19(2). Ensure all consent processes are formalised in writing and preserved.

Observe non‑discrimination and pricing protections

The State must not impose discriminatory taxes or rates (clause 22), and CSBP must ensure its pricing demonstrates a reasonable return and depreciation reserves if the State raises pricing or regulatory concerns (clause 25). Keep internal cost accounting and pricing justifications to support price protection claims if contested.

Notices, options and renewals

Serve and accept notices strictly as prescribed under clause 34; notices are valid when signed and posted per that clause. CSBP’s option to extend the agreement required notice not later than 1 January 2010 for extensions up to 20 years (clause 10); ensure proof of delivery and confirmation if exercising renewal rights.
For Area E and other options to purchase (clauses 6(11), 7(2)-(3)), observe the strict responsive periods (28 days, 3 months, etc.) and ensure payments are timely.

Dispute resolution and recordkeeping

Include arbitration clauses in contracts with contractors and third parties to align with the agreement’s arbitration regime (clause 33), and preserve contemporaneous documents and correspondence as evidence for arbitrators.
Maintain mandatory records: well and bore details (clause 16(2)), wharf plant/equipment inventories (clause 13(7)), and annual tonnage aggregates for wharf charge calculation (clause 17(2)(a)). Accurate tonnage aggregation is necessary to determine the correct banded rates.

Compliance with safety and contemporary statutory requirements

Recognise that safety laws are not displaced by clause 21; ensure all operations comply with applicable safety legislation and standards notwithstanding other rights in the agreement.

Insurance and indemnity management

Maintain insurances for wharf construction and operations and ensure indemnity exposures under clause 13(5) are covered as required; establish self-insurance or third‑party coverage structures where appropriate.

Local government and easement coordination

Coordinate with local authorities about road closures and easement changes to ensure continuity of services and to manage public infrastructure consequences of the road closures that vest in Her Majesty under the Transfer of Land Act (clauses 4(3), 6(4)).

In practice, compliance will require tight project management, formal notification processes, robust environmental monitoring and contingency funds for remediation obligations. Parties should maintain a compliance register mapped to the Schedule’s clauses and ensure that any change in the statutory or administrative landscape (agency renaming, changed planning laws) is accounted for, given the number of references to other Acts and government bodies.

Industrial Lands (Kwinana) Agreement Act 1964

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