South Fremantle Oil Installations Pipe Line Act 1948

Operator. The term “operator” is defined in section 2 to mean the Commonwealth and also any person who at any time, with the consent of the Commonwealth, uses the pipeline. This creates a two-tier regime. The Commonwealth is an operator as of right; all others require the Commonwealth’s consent to become operators. The concept of operator is central because the powers in section 3, the duties in sections 4, 5, 8 and 9, and the rates liability in section 12 all attach to the operator. The penalty for delay in reinstatement under section 6, however, expressly does not apply to the Commonwealth; only a non-Commonwealth operator faces the statutory penalty. The Commonwealth is not wholly immune from consequences: the proviso to section 6 preserves civil liability for anyone (including the Commonwealth) for default, and the offences in section 10 apply to “any person” without exempting the Commonwealth or its employees.

Pipe line. The definition in section 2 is specific: “pipe line means the pipe line constructed by the Commonwealth along the route delineated on the plan in the Schedule to this Act or any part of such pipe line, together with all mains, service pipes, fixtures, fittings and appliances connected with or affixed to such pipe line.” This is not a general pipeline authority. It covers only one physical pipeline along a single route. The Schedule contains a plan (not reproduced in the legislative text but presumably a map showing the alignment). The Act does not authorise construction of a new pipeline, only the use and maintenance of the one already built. The definition of “pipe line” includes fixtures and fittings attached to it, so the powers extend to ancillary equipment.

Local authority. Section 2 defines “local authority” as, within their respective jurisdictions, the City of Fremantle, the Fremantle Road Board, the Commissioner of Railways and the Fremantle Port Authority. Each has a supervisory role: the operator must serve notice and deposit plans with each relevant authority before breaking up streets, railways, wharves or reserves under that authority’s jurisdiction. The proviso to section 3(b) requires consent from the Minister administering the Land Act (for reserves) or the Government Railways Act or Port Authorities Act (for railways or wharves respectively), and that Minister may impose conditions. The local authority concept therefore bundles together four distinct bodies with different powers.

Superintendence. The operator’s street opening work must generally be done under the superintendence of the Minister and the local authority (section 4(1)). That means officers appointed by those bodies are entitled to attend and oversee the work. If no officer attends at the time fixed in the notice, the operator may proceed without superintendence. The operator must pay the costs incurred by the Minister and the local authority in respect of any examination or preparation of plans or of superintendence or inspection (section 4(2)). This cost recovery mechanism means the public authorities are not out of pocket for their regulatory role.

Reinstatement and the six-month repair period. Section 5 imposes a duty to “make good the same to the satisfaction of the Minister and the local authority concerned” and then “re-surface such part of any road, street, bridge, railway or wharf as shall have been opened, broken up or interfered with and when and as required by the Minister or the local authority, keep the same in good repair for six months after replacing, making good and re-surfacing the same.” The six-month period runs from completion of the reinstatement, and the duty to repair is triggered only when and as required by the Minister or local authority. It is not a free-standing obligation to guarantee the surface; it is a duty to respond to a specific requirement.

Vehicle passage limitations. Section 8 restricts the amount of road or street that may be open at any one time. If the works allow room for only one vehicle of the maximum permitted width to pass, the open section must not exceed fifty yards. If the works allow room for two vehicles to pass (one in each direction), the open section must not exceed one hundred yards. This is a blunt operational constraint that affects traffic management and the speed of pipeline repairs.

Rates in lieu. Section 12 replaces ordinary property rating for the pipeline when a non-Commonwealth operator has the right to use it. The pipeline is “deemed to be rateable land”, but instead of valuation under the general rating Acts, the operator pays an amount equal to 0.125 per cent of the gross revenue from oil and liquid fuel conveyed through the pipeline in the preceding twelve months ending 31 December, subject to a minimum of £100. That amount is apportioned between the City of Fremantle and the Fremantle Road Board proportionately to the length of pipeline within each district. Payment is due on or before 31 March each year and is in full satisfaction of all rates and rents. The operator and the two authorities may by mutual agreement vary the method of computing the amount, the minimum, the time of payment and the apportionment. This provision creates an incentive for the operator to minimise revenue or negotiate a lower fixed sum, but the floor of £100 prevents nominal payments.

Emergency. The Act contains an emergency exception in section 4, second proviso. Where accidents to or defects in the pipeline necessitate immediate opening or breaking up of infrastructure, the operator may proceed without prior notice or plan deposit. However, the operator must give notice and deposit a plan “as soon as possible after the necessity for the work has arisen.” This creates a period of unregulated work that is bounded only by the operator’s duty to act quickly in giving retroactive notification. The emergency exception does not relieve the operator of the duties to reinstate, guard and light the works, or compensate for damage.

Offences. Section 10 creates three specific offences: (a) laying a connecting pipe without the operator’s consent; (b) erecting or keeping erected apparatus for tapping the pipeline without the operator’s written consent; (c) wilfully or negligently removing, destroying or damaging any part of the pipeline. The penalty for each offence is up to £5, and it is “without prejudice to any right or remedy of the operator to recover damages.” That means criminal liability does not replace civil liability for trespass, conversion, nuisance or negligence; the operator may pursue both.

Court of summary jurisdiction. All penalties are recoverable in a court of summary jurisdiction (section 11). That means the Magistrates Court in Western Australia. This simplifies enforcement but also limits the maximum penalty that can be imposed, given the jurisdictional limits of lower courts.

The Commonwealth of Australia. The original and primary beneficiary of the Act is the Commonwealth, which is defined as an operator by section 2. The Commonwealth is not subject to the statutory penalty under section 6 for delay or failure to give notice, but it remains subject to civil liability and the offences in section 10 (since those apply to “any person”). The Commonwealth also has the power to consent to other persons becoming operators, effectively controlling access to the pipeline. The rates provision in section 12 only applies when an operator other than the Commonwealth has the right to use the pipeline; if the Commonwealth is the sole operator, no rates are payable.

Private operators (assigns or licensees of the Commonwealth). Any person who obtains the Commonwealth’s consent to use the pipeline becomes an operator under the Act. That person is subject to the full suite of duties: notice, plan deposit, superintendence cost, reinstatement, lighting and guarding, vehicle passage restrictions, compensation for damage, and payment of rates in lieu under section 12. Unlike the Commonwealth, a private operator faces the statutory penalty of up to £50 (plus daily penalty) for breach of sections 4 and 5. The private operator also carries the burden of the rates formula (0.125 per cent of revenue with a £100 minimum), which is a direct impost on the commercial viability of the pipeline. The rates provision creates a marginal cost of 0.125 per cent on revenue, which a private operator will factor into its pricing and throughput decisions. The minimum £100 floor means that low-revenue periods still trigger a fixed cost.

Local authorities. The City of Fremantle, the Fremantle Road Board, the Commissioner of Railways and the Fremantle Port Authority are all “local authority” for the purposes of notice, superintendence and reinstatement satisfaction. They are entitled to receive notice, examine plans, supervise work, and recover their costs. The City of Fremantle and the Fremantle Road Board are also the recipients of the rates in lieu under section 12. Their revenue from the pipeline depends on the throughput and the negotiated variation possibilities. They are not obliged to reinstate if the operator delays; section 7 gives them a permissive power to do so at the operator’s expense, but imposes no duty.

The relevant Ministers. The Minister for Works (and any Minister administering the Public Works Act) is the recipient of notices and plans. The Minister administering the Land Act must consent to interference with reserves. The Minister administering the Government Railways Act (now the Port Authorities Act) must consent to interference with railways or wharves. Those Ministers may impose conditions on the consent.

Road users and the public. The public is affected by the vehicle passage restrictions in section 8, which limit the amount of road that can be under works at one time, theoretically reducing traffic disruption. The public also benefits from the duty to guard, light and sign the works (section 5). The compensation obligation in section 9 provides a remedy for anyone suffering physical damage from the pipeline operations, but only “physical damage” is covered, not pure economic loss or inconvenience.

Persons who tamper with the pipeline. Any person who connects to the pipeline without consent, taps the pipeline, or damages it (wilfully or negligently) commits an offence under section 10 and is liable to up to £5 per offence, plus potential civil damages. This affects contractors, third-party developers, and adjacent landowners who might be tempted to tap into the pipeline for oil or to interfere with it during other works. The low penalty cap (£5) may not be a strong deterrent, but the operator’s residual civil claims and the possibility of injunctive relief likely provide more meaningful protection. However, £5 in 1948 is not the same as £5 today; the penalty has not been updated, so the real deterrent value is negligible for a commercial operator.

The Fremantle Port Authority and the Commissioner of Railways. These bodies have specific infrastructure that the operator may need to break up: railways and wharves. The Act requires consent from the Minister administering the Port Authorities Act (and originally the Government Railways Act) before the operator interferes with those assets, and the Minister may impose conditions. This gives those bodies indirect control over pipeline works affecting port and rail infrastructure.

Operator’s rights. The operator has the right to use and maintain the pipeline (section 3(a)). It has the right to open, break up, and interfere with the soil or surface of roads, streets, bridges, railways, wharves and reserves along the pipeline route for the purpose of repairing, altering, renewing or removing the pipeline or any part of it (section 3(b)). This right is subject to the notice, plan, superintendence, consent and limitation provisions. The operator also has the right, under the proviso to section 4, to proceed without superintendence if no officer of the Minister or local authority attends at the specified time. In an emergency, the operator has the right to proceed without prior notice or plan, but must give retroactive notice.

Operator’s duties. The operator must give at least three clear days’ written notice to the Minister and the local authority before opening or breaking up any road, street, bridge, railway, wharf or reserve, and must at the same time deposit a plan showing the extent, manner and timing of the work (section 4(1)). The operator must pay the costs incurred by the Minister and the local authority in respect of examination, plan preparation, superintendence or inspection (section 4(2)). The operator must, with all convenient speed, complete the work and make good the disturbed surface to the satisfaction of the Minister and the local authority, and immediately carry away all rubbish (section 5). While the work is open, the operator must properly guard and sufficiently light the works and affix adequate signs or notices for the warning of the public (section 5). On completion, the operator must re-surface the disturbed part and, when and as required by the Minister or the local authority, keep the surface in good repair for six months after replacement, making good and re-surfacing (section 5). The operator must ensure that its street works allow room for at least one vehicle of the maximum permitted width to pass, and must not open more than fifty yards of road if only one vehicle can pass, or more than one hundred yards in other cases (section 8). The operator must do as little damage as possible and compensate for any physical damage done (section 9). If the operator is a person other than the Commonwealth, it must pay rates in lieu under section 12: by 31 March each year, pay an amount equal to 0.125 per cent of the revenue from oil and liquid fuel conveyed through the pipeline during the twelve months ending 31 December preceding, or £100, whichever is greater, apportioned to the City of Fremantle and the Fremantle Road Board proportionately to pipeline length. The operator must also obtain consent from the relevant Minister before interfering with reserves, railways or wharves (section 3(b) proviso), and must not allow any unauthorised person to connect to or tap the pipeline.

Rights of the Minister and local authorities. The Minister and the local authority have the right to receive notice and a plan before street opening (section 4). They have the right to superintend the work, and to have their costs of examination, plan preparation, superintendence or inspection paid by the operator (section 4(2)). They have the right to require the operator to reinstate to their satisfaction and to keep the surface in good repair for six months (section 5). If the operator delays or neglects its reinstatement duties, they have the right to carry out the work themselves and recover the expenses from the operator (section 7), but no obligation to do so. They have the right to prosecute offences under sections 6 and 10 in a court of summary jurisdiction. The City of Fremantle and the Fremantle Road Board have the right to receive the rates in lieu under section 12, and the right to negotiate variations to the rate formula with the operator.

Rights of the public. The public has the right to warning signs and lights around open works (section 5). The public has the right to compensation for physical damage caused by the operator (section 9). Road users have the right to expect that no more than fifty yards or one hundred yards of road will be obstructed at any one time (section 8).

Consent requirement for interfering with reserves, railways and wharves. The operator’s right to open or break up a reserve, railway or wharf is subject to the consent of the Minister administering the Land Act (for reserves) or the Government Railways Act or Port Authorities Act (for railways or wharves). The Minister may impose conditions. This gives the Crown a veto over pipeline works on certain categories of land, limiting the operator’s freedom of action.

Right to vary the rates provision. The operator and the City of Fremantle and the Fremantle Road Board may by mutual agreement vary the method of computing the amount payable under section 12, the minimum amount, the time of payment and the apportionment. This is a private contractual overlay on a statutory obligation. It allows the parties to adjust the impost to reflect changed circumstances, such as inflation, changed throughput, or different cost structures. The variation power is important because the fixed formula (0.125 per cent of revenue or £100 minimum) is a product of 1948 values and does not index to inflation. A private operator in a modern context would want to negotiate a variation; otherwise, £100 in current terms is trivial, making the percentage of revenue the effective charge.

Emergency duties. In an emergency, the operator may dispense with prior notice and plan deposit, but must give notice and deposit a plan “as soon as possible after the necessity for the work has arisen” (section 4, second proviso). The standard “as soon as possible” is undefined and could be litigated if there is disagreement about timeliness. The operator retains all other duties: to reinstate, guard, light, sign, limit vehicle obstruction, and compensate for damage.

Operator’s penalty under section 6. If the operator, being a person other than the Commonwealth, commits, permits or suffers any act, delay, neglect or omission contrary to sections 4 and 5 (notice, plan deposit, reinstatement, lighting, guarding, signing, six-month repair), it is liable to a penalty not exceeding £50 for every such offence and an additional penalty of 40 shillings per day during which the neglect, omission or delay continues after notice from the Minister or local authority. The daily penalty accrues after notice, not from the original breach. The maximum £50 cap applies per offence, not per day. The section expressly exempts the Commonwealth from this penalty provision: “If the operator (being a person other than the Commonwealth of Australia)”. However, the proviso to section 6 states that nothing in the section relieves the operator (whether the Commonwealth or another person) from liability in respect of any right of action or remedy of any person for the same defaults. That means civil claims for nuisance, trespass or negligence are preserved against the Commonwealth even though the statutory penalty does not apply.

Offences under section 10. Any person who: (a) lays a connecting pipe to the pipeline without the operator’s consent; (b) erects or keeps erected tapping apparatus without the operator’s written consent; or (c) wilfully or negligently removes, destroys or damages any part of the pipeline, commits an offence and is liable to a penalty not exceeding £5 for every such offence, “without prejudice to any right or remedy of the operator to recover damages.” The offence applies to “any person” , which includes the Commonwealth operator, its employees, and third parties. The penalty is low (£5) but the preservation of civil remedies means the operator may also sue for damages in tort. The low penalty cap likely reflects 1948 values; it has not been increased by amendment. As a practical deterrent, £5 is negligible for a commercial entity or a person, but the prospect of damages and injunctive relief from court is more significant.

Enforcement court. Section 11 provides that all penalties under the Act are recoverable in a court of summary jurisdiction , that is, the Magistrates Court in Western Australia. This simplifies and cheapens enforcement compared to a superior court. The court can impose the penalties and order costs. The operator or the local authority or the Minister could bring proceedings.

Reinstatement by Minister or local authority under section 7. If delay, neglect or omission contrary to sections 4 and 5 occurs, the Minister or local authority may cause the work to be completed, executed or performed, and all expenses incurred must be repaid by the operator. This is a statutory debt. Section 7 also provides that nothing makes it compulsory for the Minister or local authority to do the work or renders either liable for any neglect to do so. That is a significant limitation: the public authority can decide to do nothing, leaving the road unreinstated, without legal exposure. The operator remains liable for the original duty and for the penalty.

No criminal liability for the Commonwealth under section 6. The structure of section 6 means the Commonwealth cannot be prosecuted by a local authority or the Minister for delay in reinstatement or failure to give notice. The Commonwealth’s only exposure for such defaults is through civil proceedings by an aggrieved party (for example, a person injured by unguarded works, or a local authority that incurs costs to reinstate). The proviso to section 6 expressly preserves “any right of action or remedy of any person”. That may include the local authority suing the Commonwealth in tort for the cost of reinstatement, but such an action would be subject to Crown immunity principles unless waived.

Effect of penalties on incentives. For a private operator, the penalty structure creates incentives to comply with notice and reinstatement duties: up to £50 per breach plus £2 per day after notice. However, the quantum is very low by modern standards, so the deterrent effect depends on the risk of enforcement. The local authority may prefer to invoke the self-help power in section 7 and recover actual expenses, which could exceed the penalty many times over. The penalty therefore functions as a supplementary enforcement mechanism rather than the primary sanction.

Costs of superintendence. Section 4(2) requires the operator to pay the costs incurred by the Minister and the local authority in respect of examination, plan preparation, superintendence or inspection. This is not a penalty but a cost recovery mechanism. The operator must budget for these charges, which could be significant if the authority deploys multiple officers over a lengthy pipeline repair.

Daily penalty trigger. The daily penalty under section 6 operates only after the Minister or local authority gives notice of the neglect, omission or delay. The operator can thus avoid the daily penalty by promptly rectifying the problem once notified. The initial £50 penalty attaches to the original act or omission regardless of subsequent compliance.

Public Works Act 1902-1945. The definition of “Minister” in section 2 includes the Minister charged with the administration of the Public Works Act. That Minister is the one to whom notices and plans must be given under section 4. The Public Works Act governs public works generally, but the specific provisions of this Act (being a later, specific Act) would prevail over the Public Works Act to the extent of any inconsistency, under the principle generalia specialibus non derogant. The pipeline is a public work, but its maintenance and use are regulated entirely by this Act rather than by the general public works regime.

Land Act 1933-1946. The proviso to section 3(b) requires the operator to obtain the consent of the Minister administering the Land Act before opening, breaking up or interfering with any reserve. The Minister may impose conditions. This preserves the Crown’s control over reserves, which would otherwise be subject to the general law of Crown land. The Land Act governs the management and disposition of Crown land; the pipeline Act carves out a specific power to interfere with reserves but subjects it to ministerial discretion.

Government Railways Act 1904-1947 and Port Authorities Act 1999. The proviso to section 3(b) originally required the consent of the Minister administering the Government Railways Act before interfering with any railway. The reference to the Government Railways Act was amended by the Port Authorities (Consequential Provisions) Act 1999 to include the Port Authorities Act and its amendments. The effect is that rail and port infrastructure are protected by a ministerial veto. The Port Authorities Act creates port authorities with management powers; the Minister’s consent requirement sits above those authorities.

Municipal Corporations Act 1906-1947 and Road Districts Act 1919-1947. Section 12 overrides these Acts’ provisions relating to valuation and rating insofar as they apply to the pipeline. Instead of being valued and rated under those general Acts, the pipeline is subject to the specific revenue-based levy when a non-Commonwealth operator uses it. The rate in lieu is in full satisfaction of all rates and rents that would otherwise be payable to the City of Fremantle and the Fremantle Road Board. However, the section uses the phrase “in lieu of the provisions of the Municipal Corporations Act 1906-1947 and the Road Districts Act 1919-1947 relating to the valuation of land and the making of rates”. That means the rate in lieu displaces only those provisions; other provisions of those Acts (such as those relating to borrowing, tenders or planning) would still apply to the operator’s activities if otherwise relevant.

General common law rights. The Act does not codify the entire law of pipeline operation. It sits alongside the common law of nuisance, trespass, negligence and the rule in Rylands v Fletcher. The proviso to section 6 preserves “any right of action or remedy of any person for any act, delay, neglect or omission on the part of the operator”. That means a person who suffers damage from the operator’s works can sue in tort regardless of whether the operator has complied with the Act. Similarly, section 10 preserves the operator’s right to recover damages independently of the criminal offence. The Act therefore supplements rather than replaces the common law.

Occupational safety and health legislation. The Act requires the operator to guard and light works and affix signs (section 5). This is consistent with general occupational safety and health obligations under WA law, but the Act provides a specific minimum. Compliance with the Act does not necessarily satisfy all duties under safety legislation, which may impose higher standards.

Local government by-laws and road management laws. The operator’s power to break up streets under section 3 overrides any local government by-law that would otherwise prohibit or restrict such actions. However, the operator must still give notice and comply with the other procedural requirements. The local authority cannot refuse consent unreasonably (the Act gives it no power to refuse; it only has the right to superintend and to receive notice). For reserves, railways and wharves, the relevant Minister does have a discretion to consent and impose conditions, which could include conditions that touch on matters of local government.

The Emergency exception and other emergency legislation. The emergency exception in section 4 allows work without prior notice. This may interact with emergency services laws or state of emergency declarations, but the Act does not create any priority or override of other emergency response legislation.

Port Authorities Act 1999 and its amendments. The 1999 amendment to section 2 replaced the reference to the Fremantle Port Authority as a “local authority” with a reference to the Port Authorities Act 1999, and amended section 3 to refer to that Act as amended. This reflects the restructuring of port governance in Western Australia. The effect is that the Fremantle Port Authority (or its successor under the Port Authorities Act) remains a local authority for notice purposes, and the Minister under that Act can consent to interference with wharves.

Compilation table. The Act as compiled includes the 1948 original and the 1999 amendment. No other amendments have been made. The Act has not been repealed and remains in force as a special Act for a specific pipeline.

The South Fremantle Oil Installations Pipe Line Act 1948 was enacted as Act No. 48 of 1948 and received assent on 7 January 1949, commencing on the same day. It has been amended only once in its history. Section 21 of the Port Authorities (Consequential Provisions) Act 1999 (No. 5 of 1999) made amendments to sections 2 and 3. The amendments updated references from the “Fremantle Port Authority” (as a defined term in section 2) and related references in section 3 to reflect the new Port Authorities Act 1999 governance structure. Specifically, the definition of “local authority” in section 2 was amended to refer to “the Fremantle Port Authority” rather than the original formulation, and the proviso to section 3(b) was amended to refer to “the Port Authorities Act 1999, and its amendments” in place of the earlier reference to the Fremantle Port Authority Act or similar. The amendment was part of a consequential package that updated many WA Acts to align with the new port authorities regime. The amendment commenced on 14 August 1999 (see section 2 of the amending Act and the Gazette notice). No other substantive amendments have been made to the Act. The penalty amounts (£50, 40 shillings, £5, £100) have never been updated for inflation or decimal currency. They remain in the original pounds sterling amounts, though the adoption of decimal currency in Australia in 1966 would convert these amounts under the Currency Act 1965 (Cth) (one pound = two dollars). The compilation notes do not indicate any updating of monetary amounts. The rates formula in section 12 (one-eighth per centum) has not been adjusted. The plan in the Schedule has not been amended or updated. The pipeline route remains as originally delineated.

The Act has not been repealed, nor has it been the subject of a sunset clause, review, or modernisation. It remains as a narrow, single-purpose statute. Its longevity reflects the fact that it applies to a specific physical asset, and as long as that pipeline exists and operates, the Act provides the legal basis for its maintenance and use. The 1999 amendment was purely a machinery update; it did not change the scope, duties, penalties or rights under the Act.

The source text of the Act does not list or refer to any court decisions. The compilation notes do not record any litigation or case annotations. Given the Act’s narrow scope (a single oil pipeline serving a military or industrial facility in South Fremantle), it is likely that it has been rarely litigated. Several structural features of the Act make litigation unlikely: the small monetary amounts (£50 maximum penalty, £5 offence cap) give little incentive for litigants to pursue contested proceedings; the Act is a permissive authority with conditions rather than a regulatory prohibition; the Commonwealth is exempt from the main penalty, and local authorities have the self-help remedy of reinstatement at the operator’s expense, which may be more attractive than litigation. Disputes over plan approval, superintendence costs or the rates formula may be resolved administratively or through the contractual variation mechanism in section 12 rather than through the courts.

If litigation has occurred, it would most likely concern: (a) the interpretation of “physical damage” under section 9 (whether it includes purely economic loss); (b) the meaning of “as soon as possible” in the emergency exception; (c) the definition of “pipe line” and whether a particular fixture is included; (d) the apportionment of rates under section 12; or (e) the liability of the Commonwealth for civil damages despite the penalty exemption. None of these issues appears in the source material. The absence of recorded litigation is itself a notable fact: the Act has operated for over 75 years without generating published case law, which suggests either that its provisions are uncontroversial in practice, or that disputes are resolved by alternative means (negotiation, arbitration, or administrative decision) that do not result in reported judgments. It also suggests that the pipeline has not been involved in major accidents or third-party damage claims that reached court.

The Act only covers one pipeline, and only along one route. The definition of “pipe line” in section 2 is tied to “the pipe line constructed by the Commonwealth along the route delineated on the plan in the Schedule”. If the operator wants to build a spur, bypass, or replacement pipeline along a different route, this Act does not authorise it. The operator would need separate statutory authority, or landowner agreements, to deviate from the Schedule route. The Schedule plan is not reproduced in the compiled text, so anyone needing to know the exact alignment must obtain the original Act as passed.

The Commonwealth is exempt from the reinstatement penalty but not from civil liability. Section 6 imposes a penalty on the operator for delay or non-compliance with sections 4 and 5, but only where the operator is “a person other than the Commonwealth of Australia”. This means a local authority cannot prosecute the Commonwealth for leaving a road unrepaired. However, the proviso preserves “any right of action or remedy of any person” against the Commonwealth. A member of the public who is injured by an unrepaired road could sue the Commonwealth in tort. But the local authority that must reinstate the road at its own cost cannot recover the statutory penalty. Its only recourse is the self-help cost recovery under section 7 (if it chooses to act) or a civil claim for the cost of reinstatement, which depends on the Commonwealth’s amenability to suit (which is now governed by the common law and the Crown Suits Act). The operator’s constitutional immunity as a Commonwealth entity under section 109 of the Australian Constitution may also be relevant, though the Act is a State Act and the Commonwealth has submitted to its regime by accepting the benefits of section 3.

The penalty amounts are in pounds and have never been converted or updated. The Act still specifies £50, 40 shillings, £5, and £100. The adoption of decimal currency in 1966 means these amounts are now $100, $4, $10, and $200 respectively (using the official conversion rate of £1 = $2). However, the Act has not been amended to state the amounts in dollars. The Interpretation Act 1984 (WA) would operate to convert references to pounds into dollars in the absence of express amendment, but the real value is negligible. The $10 penalty for unauthorised connection to a fuel pipeline is absurdly low by modern standards and provides no meaningful deterrence. The rates minimum of $200 is also trivial, meaning the effective rate is entirely determined by the 0.125 per cent revenue formula.

The “three clear days” notice rule excludes the day of notice and the day of work. Section 4 requires notice “not less than three clear days before commencing such work”. In standard statutory interpretation, “clear days” means at least three full days must intervene between service of the notice and commencement of the work, excluding the day of service and the day of commencement. An operator who serves notice on a Friday and tries to start work on Monday may not have three clear days, depending on weekend counting rules. The operator must calendar carefully, especially around public holidays.

The emergency exception does not eliminate plan deposit, only delays it. Section 4, second proviso allows the operator to proceed without “previous notice and without the deposit of any plan” in emergencies arising from accidents or defects. However, “such notice shall be given and such plan shall be deposited as soon as possible after the necessity for the work has arisen.” The operator must still produce a plan retrospectively. Failure to do so would constitute a breach of section 4, for which a non-Commonwealth operator could be penalised under section 6. The standard “as soon as possible” is vague and could be disputed.

The vehicle passage limits apply only to roads and streets, not to bridges, railways, wharves or reserves. Section 8 uses the phrase “whenever the operator opens, breaks up or interferes with any road or street”. It does not apply to bridges, railways, wharves or reserves. For those other categories of infrastructure, there is no statutory limit on the length of open works, subject only to conditions imposed by the relevant Minister under the proviso to section 3(b) and the general duty to do as little damage as possible under section 9.

The “satisfaction of the Minister and the local authority” for reinstatement creates potential for conflicting requirements. Section 5 requires the operator to make good the disturbed surface “to the satisfaction of the Minister and the local authority concerned”. If the Minister requires one standard of reinstatement and the local authority requires another, the operator faces a dilemma. The Act provides no mechanism for resolving a conflict. In practice, the operator would likely need to comply with the higher of the two standards, or seek a direction from one authority that overrides the other, but the Act does not give either authority priority.

The six-month repair obligation is not automatic; it must be required. Section 5 says the operator must keep the surface in good repair for six months “when and as required by the Minister or the local authority”. This means the operator does not have an automatic duty to monitor and repair; it only becomes liable if the Minister or local authority issues a requirement. An operator that does not receive a requirement within the six-month window may be off the hook. Conversely, a requirement issued near the end of the six-month period could extend the operator’s liability beyond six months if the repair takes time.

The rates formula uses revenue from “oil and liquid fuel conveyed through the pipe line during the twelve months ending on the thirty-first day of December immediately preceding”. The operator must calculate the amount based on receipts from the sale of the oil conveyed, not on profit or throughput. If the operator sells the oil at different prices or to different customers, the gross revenue is the relevant figure. The operator must keep accurate revenue records for the preceding calendar year (1 January to 31 December) and pay by 31 March of the following year. The Act does not specify what happens if the pipeline is idle for part of the year; the minimum £100 applies. The Act does not provide for auditing the operator’s revenue figures, so the local authorities rely on the operator’s self-reporting, subject to the negotiation mechanism in the proviso.

The definition of “pipe line” includes all fixtures, fittings and appliances connected or affixed to it. This broadens the scope of the Act beyond the pipe itself. A metering station, pump, valve or storage tank that is connected to the pipeline is part of the “pipe line” for the purposes of use, maintenance, and the power to open roads. It also means that any damage to those fixtures falls within section 10(c). An operator should ensure that its asset register identifies all fixtures and appliances that are part of the pipe line for legal purposes.

The consent requirement for reserves, railways and wharves under section 3(b) is additional to the notice requirement under section 4. The operator cannot simply give notice and start work on a railway or wharf; it must first obtain the Minister’s consent and comply with any conditions. The consent requirement is a prior condition, not a concurrent one. If the operator begins work without consent, it may be acting outside the authority of the Act and could be liable for trespass or nuisance.

Step 1: Confirm the pipeline route and the definition of “pipe line”. Obtain a copy of the original Act as passed (not just the compiled text) to view the Schedule plan. The plan shows the route. Any work must be on or directly related to that route. Identify all fixtures, fittings and appliances that are part of the pipe line (section 2), and include them in operational and compliance systems.

Step 2: Identify the relevant local authority for each section of the route. The definition in section 2 includes the City of Fremantle, the Fremantle Road Board (now the City of Fremantle or its successor, noting local government amalgamations), the Commissioner of Railways (now the Public Transport Authority or successor), and the Fremantle Port Authority. Determine which authority has jurisdiction over each road, street, bridge, railway, wharf or reserve along the route. Maintain a register of contacts for each.

Step 3: Before any planned road or street opening work, give at least three clear days’ written notice. The notice must be given to the Minister (the Minister for Works or Minister administering the Public Works Act) and to the relevant local authority. It must state the intention to open or break up the surface, and must be accompanied by a plan setting out the extent of the work, the manner in which it will be carried out, and the time at which it is intended to commence (section 4(1)). The plan must be deposited at the same time as the notice. The operator should confirm receipt and keep a dated copy of the notice and plan.

Step 4: Obtain any necessary consent for reserves, railways or wharves. If the work involves opening or breaking up a reserve, railway or wharf, the operator must also obtain the consent of the Minister administering the Land Act (for reserves) or the Minister administering the Port Authorities Act (for wharves) or the relevant Minister under the railways legislation. The consent may be subject to conditions. The operator should seek consent well before the intended start date, because the notice period runs concurrently but the consent is a separate prerequisite (proviso to section 3(b)).

Step 5: Prepare for superintendence. Notify the Minister and the local authority of the start time. If an officer appointed by either attends at that time, the work must be performed under that officer’s superintendence (section 4(1)). If no officer attends, the operator may proceed without superintendence. Record attendance or non-attendance in a site diary. The operator must pay the costs of the Minister and the local authority for any examination or preparation of plans or for superintendence or inspection (section 4(2)). Budget for these charges and be prepared to pay them on invoice.

Step 6: During the work, comply with safety and traffic obligations. Guard and light the open works adequately. Affix adequate signs or notices for the warning of the public (section 5). Ensure that the works allow room for at least one vehicle of the maximum permitted width to pass. If only one vehicle can pass, do not open more than fifty yards of road at any one time. If two vehicles can pass, do not open more than one hundred yards (section 8). If the work is on a road that is not subject to section 8 (e.g. a bridge, railway, wharf or reserve), the vehicle passage limits do not apply, but the operator should still minimise obstruction as far as practicable (section 9).

Step 7: On completion, reinstate with all convenient speed. Make good the surface to the satisfaction of the Minister and the local authority (section 5). The standard is their satisfaction, not merely an objective standard. The operator should request formal sign-off from both the Minister and the local authority to avoid later disputes. Carry away all rubbish immediately. Re-surface the disturbed part. Keep records of the reinstatement date and the standards applied.

Step 8: Respond to any requirement for repair within six months. If the Minister or the local authority requires the operator to keep the surface in good repair for six months after reinstatement, comply promptly. The requirement must be in writing or otherwise formally communicated. The operator should document the requirement and the repair works carried out.

Step 9: Compensate for any physical damage. Section 9 imposes a duty to compensate for any physical damage done. The operator should have a claims process for handling compensation claims from landowners, road users or others. The Act does not specify the measure of compensation, but “physical damage” suggests a tort-based measure (diminution in value or cost of repair). The operator should also ensure it obtains appropriate insurance to cover such claims.

Step 10: If the operator is not the Commonwealth, comply with the rates in lieu regime under section 12. Calculate the amount payable by 31 March each year: 0.125 per cent of the revenue from sale of oil and liquid fuel conveyed through the pipeline during the twelve months ending 31 December immediately preceding, or £100 (now $200), whichever is greater. Apportion the amount between the City of Fremantle and the Fremantle Road Board proportionately to the length of pipeline within each district. Pay the amounts to each authority on or before 31 March. The payment is in full satisfaction of all rates and rents. Consider whether to negotiate a variation of the rate formula with the two authorities under the proviso to section 12. If the pipeline revenue or length changes, the operator may wish to propose a different method of computation, a higher or lower minimum, a different payment time, or a different apportionment. Any variation must be by mutual agreement in writing.

Step 11: Prevent unauthorised connections and tapping. The operator should secure the pipeline against unauthorised access. If any person lays a connecting pipe, erects tapping apparatus, or damages the pipeline, the operator should report the matter to the police and consider prosecuting under section 10, and also pursue civil remedies for damages. The operator should also ensure that its own employees and contractors do not inadvertently create a breach of section 10.

Step 12: Maintain records. Keep copies of all notices, plans, consents, superintendence records, reinstatement sign-offs, repair requirements, compensation payments, revenue calculations for rates, and any variation agreements under section 12. These records are essential for defending any prosecution under section 6 or for demonstrating compliance with the Act.

Step 13: In emergencies, give notice as soon as possible. If an accident or defect requires emergency work without prior notice, the operator should proceed with the work but must give written notice and deposit a plan to the Minister and the local authority as soon as possible after the need arises (section 4, second proviso). Document the timing carefully. The operator remains subject to all other duties (reinstatement, guarding, lighting, signing, vehicle passage, compensation). The emergency exception only excuses the prior notice and plan, not the other obligations.

Step 14: Monitor for any future amendments or repeals. The Act is old and may be repealed or amended in the future. The operator should monitor the Western Australian legislation database for any changes. For now, the Act remains in force and its provisions are binding on anyone using the pipeline.