Schedule Schedule 2 - Port Kembla Inner Harbour Construction and Agreement Ratification Act 1955 - ELECTRICITY TRANSMISSION LINE AND LIGHTS. | Zoe

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Port Kembla Inner Harbour Construction and Agreement Ratification Act 1955

Schedule 2ELECTRICITY TRANSMISSION LINE AND LIGHTS.

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Schedule 2 ELECTRICITY TRANSMISSION LINE AND LIGHTS.

Second Schedule

THIS AGREEMENT made the twenty-fourth day of October one thousand nine hundred and fifty five BETWEEN—THE BROKEN HILL PROPRIETARY COMPANY LIMITED a corporation incorporated under the laws of the State of Victoria and carrying on business in the State of New South Wales (hereinafter called “B.H.P.”) of the first part AUSTRALIAN IRON & STEEL LIMITED a company incorporated under the Companies Act, 1936 of the State of New South Wales (hereinafter called “A.I.S.”) of the second part (the parties hereto of the first and second parts when hereinafter jointly referred to being termed “the Companies”) and THE HONOURABLE JOHN BROPHY RENSHAW the Minister for Public Works of the State of New South Wales for and on behalf of HER MOST GRACIOUS MAJESTY QUEEN ELIZABETH THE SECOND (hereinafter called “the Minister” which expression shall where the context demands include his successors in office) of the third part WHEREAS the Minister is about to submit to Parliament a Bill for an Act to authorise the extension of existing shipping facilities at Port Kembla in the State of New South Wales by the construction of an Inner Harbour leading from the present harbour AND WHEREAS with the object of expanding their industrial operations in the said State of New South Wales B.H.P. is desirous of obtaining the right to lease certain lands within the proposed Inner Harbour and to construct and erect thereon wharves and other facilities for the purposes of the Company AND is also desirous of acquiring the lands described in the First Schedule hereto AND A.I.S. is desirous of acquiring the lands described in the Third Schedule hereto AND WHEREAS The Minister is desirous of acquiring from B.H.P. the lands described in the Second Schedule hereto and from A.I.S. the lands described in the Fourth Schedule hereto NOW IT IS HEREBY AGREED as follows:—

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

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

“Authorising Act”—means the Act approving the Bill hereinbefore mentioned or otherwise authorising the construction of an Inner Harbour at Port Kembla aforesaid:

“Director”—means the Director of Public Works or other Permanent Head of the Department of Public Works of the State of New South Wales, or the person acting as such for the time being:

“Gazette”—means the New South Wales Government Gazette:

“Indian Spring Low Water”—means the datum for sounding at Port Kembla being 12.61 feet below Bench Mark No. 5 on the concrete block near Number 3 Jetty as shown on plan catalogued 57/181 in the Department of Public Works New South Wales:

(a)

The land described in the First Part of the First Schedule hereto comprises part of Main Road No. 295, otherwise called Kembla Road and upon the closing and assurance thereof as hereinafter provided all mines and deposits of coal, ironstone, kerosene shale, limestone, slate and other minerals therein and thereunder shall be excepted from the assurance to be executed by the Minister.

(b)

The lands described in the Second Part of the First Schedule hereto and in the Third Schedule hereto comprise part of an area of about 496 acres 2 roods 0 perches resumed by Notification published in the Gazette of the 1st day of September 1900 at p. 6865 under the Lands for Public Purposes Acquisition Act as adopted by the Public Works Act of 1888 and by section 114 of the last mentioned Act no mines or deposits of coal, ironstone, kerosene shale, limestone, slate or other minerals under the said area were acquired and the same are excepted from the assurances to executed by the Minister.

(c)

The conveyance by the Minister of the land described in the First Part of the Third Schedule hereto is subject to and the assurance by the Minister to A.I.S. of such land shall contain a reservation in favour of the Minister his successors and assigns of an easement and rights over the land described in the Fifth Schedule hereto with respect to electric transmission lines and other matters in and according to the form set out in the First Part of the Seventh Schedule hereto.

(d)

The land described in the First Part of the Third Schedule hereto is also subject to the rights of the Commissioner for Railways of the State of New South Wales the Vacuum Oil Company Proprietary Limited and Commonwealth Oil Refineries Limited in respect of the existing railway lines owned by them or any of them upon or over such land and appropriate provisions in favour of the said Commissioner and those Companies with respect to those lines and the rights of the said Commissioner and those Companies to continue using the same shall be inserted in the assurance by the Minister to A.I.S.

(e)

The lands described in the Second Schedule hereto are comprised in Certificate of Title registered Volume 6913 Folio 230 standing in the name of B.H.P. subject to the Notifications endorsed thereon namely:—

(i) an exception of the mines and minerals not acquired by the notifications of resumption referred to in Clause 4 of the Agreement set out in the First Schedule to the Australian Iron & Steel Limited Agreement Ratification Act, 1936:

(ii) the covenant in Clause 26 of the Agreement referred to in the last preceding sub-paragraph;

AND the lands described in the Second Schedule hereto are agreed to be transferred subject to such exception and covenant.

(f)

The lands described in the First and Second Parts of the Fourth Schedule hereto are comprised in Certificate of Title registered Volume 4784 Folio 24 standing in the name of A.I.S. subject to the notifications endorsed thereon namely:

(i) an exception of the mines and minerals not acquired by the notifications of resumption referred to in Clause 4 of the Agreement set out in the First Schedule to the Australian Iron & Steel Limited Agreement Ratification Act, 1936:

(ii) the covenants and provisions in Clauses 26, 29, and 33 of the Agreement set out in the First Schedule to the Australian Iron & Steel Limited Agreement Ratification Act, 1936:

(iii) the easements reserved to the Minister for Public Works by Transfer No. C480813 in favour of Electricity Transmission Line and Lights and Railway Line:

AND the lands described in the First and Second Parts of the Fourth Schedule hereto are agreed to be transferred subject to such exception covenants provisions and easements and also subject to the rights of A.I.S. in respect of the existing saltwater channel across that part of such lands as is described in the Sixth Schedule hereto and to the rights of the Commissioner for Railways of the said State Vacuum Oil Company Proprietary Limited and Commonwealth Oil Refineries Limited in respect of the existing railway lines owned by them or any of them and appropriate provisions in favour of the said Commissioner and of those Companies with respect to those lines and the rights of the said Commissioner and those Companies to continue using the same shall be inserted in the Transfer from A.I.S. to the Minister.

(g)

The lands described in the Third Part of the Fourth Schedule hereto are comprised as to part in Certificate of Title registered Volume 4784 Folio 24 and as to the residue in Certificate of Title registered Volume 6784 Folio 206 standing in the name of A.I.S. subject to the Notifications endorsed thereon namely:—

(i) an exception of the mines and minerals not acquired by the notifications of resumption referred to in Clause 4 of the Agreement set out in the First Schedule to the Australian Iron & Steel Limited Agreement Ratification Act, 1936:

(ii) the covenants and provisions in Clauses 26 and 33 of the Agreement set out in the First Schedule to the Australian Iron & Steel Limited Agreement Ratification Act, 1936:

AND the lands described in the Third Part of the Fourth Schedule hereto are agreed to be transferred subject to such exception covenants and provisions.

(a)

The Minister shall be empowered by the Act ratifying this Agreement to close that portion of Main Road 295 described in the First Part of the First Schedule hereto and the Minister not later than three months after the bridge on such road across Tom Thumb’s Lagoon and the southern approach thereto have been demolished shall by notice in the Gazette close that portion of Main Road 295 as is described in the First Part of the First Schedule hereto and upon publication in the Gazette of such notice any and every dedication of such land for a public road shall absolutely cease and determine and subject to the reservation contained in Clause 33 hereof the right or of any person to use the same for the purpose of a road shall be extinguished and so much of such land as is not already vested in the Minister shall vest in the Minister and the Act ratifying this Agreement shall provide accordingly and authorise the Minister to convey such land to B.H.P. pursuant to the provisions of Clause 2 of this Agreement.

(b)

To the extent that the provisions of Clauses 14 and 18 hereof relate to the agreement by the Minister to convey and assure the land described in the First Part of the First Schedule hereto to B.H.P. the expression “the date of commencement of this Agreement” shall be construed in those Clauses as the date of publication in the Gazette of the notice closing that part of Main Road 295 described in the First Part of the First Schedule hereto and the date of completion of the conveyance of such land shall be related to the date of commencement thus ascertained and determined in the manner defined in Clause 18.

(c)

B.H.P. shall not be entitled to possession of the land described in the First Part of the First Schedule hereto until the date of completion as ascertained in accordance with the last preceding sub-clause and such possession shall be subject to the rights which exist in respect of telegraph lines electric cables and electricity transmission lines referred to in Clause 7 hereof and the lines of pipes referred to in Clause 8 hereof until such time as B.H.P. with the assistance of the Minister (if required) makes satisfactory arrangements with the Authorities concerned in respect thereof.

(a)

Subject to the provisions hereinafter appearing B.H.P. shall have the exclusive right from time to time and at all times during the period of ninety nine (99) years calculated from the date of commencement of this Agreement to construct and erect wharves and other facilities for loading and unloading goods and other structures upon any and every part of that portion of the Inner Harbour fronting the proposed boundary of the land of B.H.P. commencing near the left bank of Allan’s creek (as re-aligned pursuant to this Agreement) and extending south easterly for a distance of approximately 3725 feet to a point near the western boundary of Main Road 295 as indicated by the letters “A” and “B” on the plan hereunto annexed and extending to a distance of 50 feet outwards into the Inner Harbour and which portion of the Inner Harbour is hereinafter referred to as the “said portion”.

(b)

In consideration of the right conferred upon B.H.P. by sub-clauses (a) and (c) of this clause B.H.P. will pay to the Minister by way of rental firstly the annual sum of Five hundred pounds (£500) (subject to re-appraisement as provided by sub-clause (f) of this clause) in each and every year during the said period of ninety-nine (99) years the first of such payments to be made by B.H.P. within one month from the commencement of this Agreement and the subsequent payments to be annually in advance upon the anniversary of the date of the commencement of this Agreement and secondly the annual sums specified as additional rental in Clause 23 hereof in the amounts and at the times specified in the said Clause 23.

(c)

Upon completion of any wharf or other structure constructed or erected by or on behalf of B.H.P. under the provisions of this Clause B.H.P. shall be entitled to receive for the balance then unexpired of the said period of ninety-nine (99) years a lease of the part of the said portion upon which such wharf or other structure has been constructed or erected and B.H.P. shall not be called upon to pay in respect of any such lease any rental in addition to the said sums referred to in sub-clause (b) of this Clause and Clause 23 hereof PROVIDED HOWEVER that any lease or leases granted pursuant to this sub-clause shall include conditions in or to the effect of the conditions set out in the Eighth Schedule hereto.

(d)

All wharves structures and facilities which B.H.P. has the right to construct and erect pursuant to subclause (a) of this clause shall be of such type of construction as the Minister may acquire and shall be constructed and erected without cost or expense to the Minister in a proper and workmanlike manner to the satisfaction of the Minister and in accordance in all respects with specifications and plans previously approved in writing by the Minister. The specifications and plans referred to in this sub-clause shall be furnished by B.H.P. to the Minister without cost or expense to the Minister.

(e)

B.H.P. shall pay to the Minister on demand all costs and fees incurred and the cost of all surveys and plans made in connection with any lease granted to B.H.P. in accordance with the provisions of sub-clause (c) of this Clause or in connection with any wharf facility or other structure erected or proposed to be erected by B.H.P. in accordance with the provisions of this Clause.

(f)

The said sum of five hundred pounds (£500) shall be liable to reappraisement at the expiration of each period of twenty five years during the same period of ninety nine years and in every such case the re-appraised annual payment shall be such sum as is determined by the Local Land Board constituted under the Crown Lands Consolidation Act, 1913, as amended, or on appeal therefrom by the Land and Valuation Court.

(g)

The Act ratifying this Agreement shall provide—

(i) That for the purpose of the Local Land Board determining the annual payment under this sub-clause such Board and the Chairman and Members thereof shall respectively have the same powers as when acting under the Crown Lands Consolidation Act, 1913, as amended, for the purpose of the said Board determining rentals thereunder: and

(ii) That any appeal to the Land and Valuation Court from the determination by the Local Land Board of such annual payment under this subclause shall be made within twenty eight days of the date of the determination by filing within such period notice of the appeal in the office of the Registrar of the Land and Valuation Court and by serving within the same period notice of the appeal on the other party to the determination: and

(iii) That for the purpose of dealing with any and every such appeal the Land and Environment Court and the Judge thereof shall have the same powers as when dealing with appeals from Local Land Boards under the Crown Lands Consolidation Act, 1913, as amended.

(h)

The Minister agrees with B.H.P. that he will not at any time during the said period of ninety nine years grant to any person without the consent of B.H.P. any right of occupancy of or any right to erect or construct or place any structure upon in or over the bed of the Inner Harbour adjoining or adjacent to the said portion which would interfere unreasonably with the exercise by B.H.P. of any of the rights granted to it under the provisions of this clause AND in any case shall not grant any such right closer to the said portion than a line generally 60 feet distant therefrom.

(i)

Nothing in this Agreement shall be construed to imply any right in B.H.P.—

(i) to erect wharves or other facilities for loading or unloading goods or any other structure upon any part of the Inner Harbour in addition to the rights expressly conferred upon such Company by this clause:

(ii) to deny to the Minister his agents servants and/or contractors access to the said portion for the purposes of the construction and/or the maintenance of the Inner Harbour:

(iii) to prevent or restrain the Minister his agents servants or contractors from removing from the said portion soil sand gravel rock and other materials which in the opinion of the Minister should be removed for the purpose of the construction and/or the maintenance of the Inner Harbour:

(iv) to direct the Minister as to the order in which berths shall be made available to B.H.P.

(a)

When construction of the Inner Harbour has proceeded to the stage at which there is available for use along the frontage of the said portion a berth of 500 feet in length and sixty feet in width dredged to a depth of 28 feet below Indian Spring Low Water with a swinging basin 700 feet wide (including the width of the berth) dredged to a depth of 25 feet below Indian Spring Low Water and an approach channel not less than 250 feet wide from the existing Port Kembla Harbour to the said swinging basin and berth dredged to a depth of 25 feet below Indian Spring Low Water the Director shall within fourteen days issue to B.H.P. a certificate that such berth swinging basin and approach channel are available for use and certifying the date on which they first became available for use.

(b)

Upon the Minister making the first berth of 500 feet the swinging basin and the approach channel available as provided in subclause (a) of this clause B.H.P. covenants that it will pay by way of additional rental to the Minister in each and every year of the unexpired portion of the said period of ninety-nine years from the date of the commencement of this Agreement annual payments as follows:—

| First | Year | …£50,000 | | | Second | " | …£48,000 | | | Third | " | …£46,000 | | | Fourth | " | …£44,000 | | | Fifth | " | …£42,000 | | | Sixth | " | …£40,000 | | | Seventh | " | …£38,000 | | | Eighth | " | …£36,000 | | | Ninth | " | …£34,000 | | | Tenth | " | …£32,000 | | | Eleventh | " | …£30,000 | | | Twelfth | " | …£28,000 | | | Thirteenth | " | …£26,000 | | | Fourteenth | " | …£24,000 | | | Fifteenth | " | …£22,000 | | | Sixteenth | "and each subsequent year—at the rate of | …£20,000 | for each year and a proportionate part thereof for any period less than a year |

the first of such payments shall be made within three months of the date of the issue of the certificate referred to in subclause (a) of this clause and each subsequent payment will be made annually in advance upon the anniversary of the date set out in such Certificate as the date on which the berth swinging basin and approach channel first became available for use.

(c)

The Minister shall not be entitled to any increase in the annual payments by way of additional rental mentioned in the last preceding subclause in respect of further berths along the frontage of the said portion made available to B.H.P. nor shall such payments be subject to re-appraisement.

(a)

The Companies hereby jointly and severally covenant with the Minister that they or one of them without cost to the Minister shall upon the date on which the Director shall have certified that a berth 500 feet long a swinging basin and approach channel were first available for use as provided in sub-clause (a) of Clause 23 of this Agreement have commenced or caused to be commenced the erection and construction on lands at Port Kembla or thereabouts owned by the Companies or one of them of a blast furnace or furnaces adjacent to the Inner Harbour and other works and shall thereafter continuously proceed or cause to be proceeded with such erection and construction so that at the expiration of the period of six years from the date of such Certificate or of such further period, if any, as the Auditor General in writing may allow, the Companies or one of them shall have without cost to the Minister erected and constructed or caused to be erected and constructed upon such lands and upon the said portion after the date or commencement of this Agreement works and improvements to the cost of Twenty million pounds (£20,000,000) for the purpose of carrying on industrial operations on such lands and the Companies hereby jointly and severally covenant with the Minister to erect and construct such works and improvements to the said cost after the date of commencement of this Agreement and before the expiration of the said period of six years (or further period, if any, allowed in writing by the Auditor-General as aforesaid) accordingly.

(b)

On the event of the Companies failing to erect and construct or to cause to be erected or constructed upon the said lands and the said portion such works and improvements to a cost of Twenty million pounds (£20,000,000) as required by the last preceding sub-clause within the time therein provided the Companies hereby jointly and severally covenant to pay to the Minister as liquidated damages and not as penalty a sum calculated at the rate of Ten pounds (£10) per centum of the amount by which the amount of Twenty million pounds (£20,000,000) exceeds the cost of such works and improvements erected and constructed or caused to be erected and constructed by the Companies or one of them upon the said lands and the said portion within the time specified in the last preceding subclause.

(c)

A certificate by the Auditor General of the cost of the works and improvements erected and constructed or caused to be erected and constructed by the Companies or one of them after the date of commencement of this Agreement and before the expiration of the said period of six years (or such further period if any allowed by the Auditor General in writing) upon the said lands and the said portion for the purpose of carrying on industrial operations thereon shall be final and conclusive and binding upon the parties hereto.

(d)

The Companies and each of them shall from time to time produce all books vouchers documents papers and evidence to, and allow the works and improvements to be inspected by the Auditor General (and persons authorised by him) for the purposes of subclauses (a) (c) and (e) of this Clause.

(e)

If through any cause beyond the control of the Companies and not arising from or due to or contributed to by any neglect default or misconduct of the Companies or either of them or their or its agents or servants delay occurs in the erection or construction by the Companies or either of them of such works and improvements as provided by subclause (a) of this clause the Companies or either of them may from time to time within six months of the happening or occurring of the event or matter causing the delay apply in writing to the Auditor General for an extension of time on account of such event or matter setting forth the cause of such application and the Auditor General shall if he thinks the cause sufficient and within the foregoing provisions of this subclause (e) but not otherwise allow by writing under his hand such extension of time as he may think adequate.

(f)

Unless the Companies or either of them shall make such application within the time and in the manner aforesaid and unless and until the Auditor General shall allow such extension or extensions of time as aforesaid the Companies shall not by reason of any delay arising as in the preceding subclause mentioned or for any other reason whatsoever be relieved in any way or to any extent of their or its liability to erect and construct such works and improvements as provided by subclause (a) of this Clause within the time as therein provided or of any other liability or obligation of the said Companies and each of them under this Agreement.

(g)

The term “works and improvements” in this Clause includes wharves and other structures on the said portion and plant and equipment installed thereon and buildings mills furnaces ovens railways levelling of land reclamation of land bridges roads drains and canals rolling stock and transport equipment and works and erections and other appurtenances to any of the foregoing and also includes fixed plant and machinery of any description and all costs and charges associated therewith.

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(a)

B.H.P. hereby agrees with the Minister and the Act ratifying this Agreement shall contain provisions to the effect that the Harbour and Tonnage Rates Act, 1920–1953, and any Act amending or replacing the same and the regulations from time to time in force thereunder but insofar only as such Acts and regulation relate to the imposition collection and payment of tonnage rates and berthing charges shall apply to and in respect of every wharf (which term for the purposes of this Clause shall include any structure landing place or facility where cargo may be loaded or discharged or where vessels may be berthed) to be hereafter erected constructed or provided over and along the said portion or upon lands adjoining or adjacent thereto as if the same portion or upon lands adjoining or adjacent thereto as if the same were a public wharf and that accordingly tonnage rated and berthing charges in accordance with the said Acts and regulations will be payable in respect of all vessels berthing at any such wharf subject to the following exceptions, such exceptions being applicable only during the period of ninety nine years calculated from the date of commencement of this Agreement and only to vessels whilst berthed at any such wharf namely that:—

(i) Any vessel carrying loading or discharging only cargo the property of the Companies or either of them and/or of any other company or companies in which the Companies or either of them holds at least one-third of the share capital shall be exempt from the payment of such tonnage rates and berthing charges:

(ii) Any vessel carrying loading or discharging cargo part only of which is the property of the Companies or either of them and/or of any other company or companies in which the Companies or either of them holds at least one-third of the share capital shall be granted a rebate of such tonnage rates and berthing charges to the extent of the ratio which the part of the cargo which is the property of the Companies or either of them and/or of any other company or companies in which the Companies or either of them holds at least one-third of the share capital bears to the whole of such cargo:

(iii) Any vessel the property of or chartered by the Companies or either of them or the property of or chartered by any other company in which the Companies or either of them holds at least one-third of the share capital berthing for a purpose other than the loading or discharging of cargo shall be exempt from the payment of such tonnage rates and berthing charges.

(b)

B.H.P. shall keep or cause to be kept in proper books true and complete records of all such matters in relation to all vessels berthing at any wharf to which the provisions of subclause (a) of this Clause apply as may be necessary to enable the Maritime Services Board of New South Wales or other proper authority to determine the tonnage rates and berthing charges payable in respect of such vessels in accordance with subclause (a) of this Clause and the Act ratifying this Agreement, and B.H.P. shall allow and provide every reasonable facility for the Maritime Services Board of New South Wales or other proper authority and any person authorised by such Board or authority at all reasonable times to inspect and make copies of or extracts from such records AND B.H.P. shall at such times as are required by such Board or authority during the period if ninety nine years referred to in Clause 22 hereof furnish to such Board or other authority all such particulars as such Board or other authority may deem necessary for the purpose of enabling such Board of authority to ascertain and determine the tonnage rates and berthing charges payable in respect of all vessels berthing at any wharf to which the provisions of subclause (a) of this Clause apply.

Commencing on the south-eastern boundary of the 19 acres 2 roods 29 perches parcel of land in Real Property Application 32740 at a point bearing 52 degrees 39 minutes and distant 106 feet 8⅛ inches from the southernmost corner of that land; and bounded thence on the north-west by part of that south-eastern boundary being a line bearing 52 degrees 39 minutes 548 feet 2 inches, 372 feet 8⅛ inches of the arc of a circle of radius 507 feet 10 inches the centre of which lies to the north-west of the chord which bears 31 degrees 37 minutes 35 seconds for a distance of 364 feet 1½ inches and another line bearing 10 degrees 36 minutes 10 seconds 565 feet 8½ inches; on the north-east by lines successively bearing 126 degrees 40 minutes 25 feet 9⅜ inches and 176 degrees 30 minutes 69 feet 1⅛ inches to the generally western boundary of the 9 acres 2 roods 16 perches parcel of land in Real Property Application 32740; generally on the east by part of that boundary of that land being a line bearing 190 degrees 36 minutes 10 seconds 487 feet 4¼ inches, 388 feet 6¼ inches of the arc of a circle of radius 823 feet 2¼ inches the centre of which lies to the east of the chord which bears 177 degrees 4 minutes 55 seconds for a distance of 384 feet 11⅛ inches and another line bearing 163 degrees 33 minutes 40 seconds 302 feet 7⅜ inches; on the south-east by a line bearing 258 degrees 10 minutes 40 feet 1⅝ inches to the north-eastern boundary of the 6 acres 2 roods 32½ perches of land in Real Property Application 32740; on the south-west by part of that boundary being a line bearing 343 degrees 33 minutes 40 seconds 299 feet 4¾ inches and 244 feet 1¼ inches of the arc of a circle of radius 863 feet 2½ inches the centre of which lies to the east of the chord which bears 351 degrees 39 minutes 50 seconds for a distance of 243 feet 3⅝ inches to the northernmost corner of the said 6 acres 2 roods 32½ perches parcel of land; again on the south-east by part of the north-western boundary of that land being 237 feet 2¾ inches of the arc of a circle of radius 547 feet 10 inches the centre of which lies to the north-west of the chord which bears 220 degrees 14 minutes 45 seconds for a distance of 235 feet 4⅝ inches and a line bearing 232 degrees 39 minutes 502 feet 2⅞ inches; and on the south by a line bearing 273 degrees 42 minutes 20 seconds 60 feet 10¾ inches to the point of commencement,—and having an area of 1 acre 3 roods 20½ perches or thereabouts.