Version No. 001
Westernport Development Act 1967
Act No. 7652/1967
Version incorporating amendments as at 21 August 2001
table of provisions
SectionPage
1
SectionPage
1.Short title
2.Definition and expressions
3.Act to bind Crown
4.Ratification of agreement
5.Power to Governor in Council to grant easements etc. over Crown lands
6.Variation of Agreement
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SCHEDULE
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 001
Westernport Development Act 1967
Act No. 7652/1967
Version incorporating amendments as at 21 August 2001
An Act to ratify validate approve and otherwise give Effect to an Agreement between the Premier for and on behalf of the State of Victoria and Hematite Petroleum Proprietary Limited and Esso Exploration and Production Australia Inc. to authorize the Construction of Additional Port Facilities in Westernport to make Provision with respect to the Reclamation of Certain Land at Old Tyabb and for other purposes.
1
Act No. 7652/1967
Westernport Development Act 1967
Preamble
WHEREAS Hematite Petroleum Proprietary Limited a company incorporated in the State of Victoria under the Companies Act 1961 and Esso Exploration and Production Australia Inc. a company incorporated in Delaware one of the United States of America and registered as a foreign company in the State of Victoria are desirous of establishing a fractionation plant at Old Tyabb to enable the petroleum recovered in the waters adjacent to the State of Victoria to be further processed:
AND WHEREAS the operation of the fractionation plant requires the establishment of adequate port facilities in Westernport:
AND WHEREAS an agreement to facilitate the establishment of the fractionation plant and the port facilities has been entered into between the Premier of the State of Victoria and the Companies:
AND WHEREAS the agreement is expressed to be subject to ratification of the Parliament of Victoria:
AND WHEREAS it is expedient in the public interest to ratify validate approve and otherwise give effect to the said agreement and to make other provisions hereinafter provided.
BE IT THEREFORE ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1.Short title
s. 1
This Act may be cited as the Westernport Development Act 1967.
2.Definition and expressions
S. 2(a) amended by No. 82/1995 s.197.
(a)In this Act unless inconsistent with the context or subject-matter—
"the agreement" means the agreement a copy of which is set out in the Schedule and includes the Agreement as varied from time to time.
(b)The expressions used in this Act shall have the meanings respectively assigned to them in the agreement.
3.Act to bind Crown
This Act shall bind the Crown.
4.Ratification of agreement
(1)The agreement is hereby ratified validated and approved and shall be given effect to.
(2)The following provisions shall be read as in aid of and not in derogation from the provisions of the last preceding sub-section—
(a)the Premier and all other Ministers of the State of Victoria and all public statutory corporations and all officers concerned are hereby empowered to carry out the agreement and to enter into such agreements and to give such approvals as are provided for by it; and
(b)this Act and the agreement shall take effect notwithstanding anything in any Act or in any proclamation regulation Order in Council by-law lease licence authority permit or agreement under any Act; and every Act proclamation regulation Order in Council by-law lease licence or authority permit or agreement shall by virtue of this Act be deemed to be modified to the extent necessary to give full force and effect to this Act and the agreement (but not further or otherwise) and shall be read and construed and take effect accordingly; and
(c)the provisions of the agreement relating to the revocation of the temporary reservation referred to in clause 5 of the agreement shall, by force of this Act and without any further authority take effect.
5.Power to Governor in Council to grant easements etc. over Crown lands
s. 5
(1)Notwithstanding anything to the contrary in any Act or in any lease licence proclamation reservation declaration or dedication of or with respect to any unalienated Crown land, the Governor in Council may upon such conditions as he thinks fit grant to the Companies any lease easement licence or other authority necessary or expedient to enable the Companies to develop the reclaimed area or any land owned by the Companies in the vicinity of the reclaimed area.
(2)Where the Governor in Council proposes to make a grant in fee simple pursuant to paragraph (m) of clause 5 of the agreement the following provisions shall have effect—
(a)the Governor in Council may accept the surrender of the whole or any part of any lease granted pursuant to the provisions of paragraph (l) of clause 5 of the agreement;
S. 5(2)(b) amended by No. 18/1989 s.13(Sch. 2 item 103).
(b)the Registrar of Titles shall record the surrender of any such lease or part of a lease and make any necessary recordings in the Register.
S. 6
inserted by No. 82/1995 s.198.
6.Variation of Agreement
s. 6
(1)The Agreement may be varied by agreement between the Premier of Victoria and the Companies with the approval of the Governor in Council by Order in Council containing particulars of the variation published in the Government Gazette.
(2)Unless and until each House of Parliament passes a resolution in accordance with sub-section (6) disallowing an Order in Council varying the Agreement, the provisions of the agreement making the variation shall have the force of law on and after the date on which the Order was published in the Government Gazette as though the provisions of the agreement were expressly enacted in this Act.
(3)An Order in Council made under sub-section (1) must, on publication in the Government Gazette, be judicially noticed and that publication is conclusive evidence of the variation to the Agreement set out in the Order.
(4)A copy of each Order in Council made under sub-section (1) must be laid before both Houses of Parliament on or before the sixth sitting day after the publication of the Order in the Government Gazette.
(5)An Order in Council made under sub-section (1) is disallowed if each House of Parliament passes a resolution in accordance with sub-section (6).
(6)A resolution to disallow an Order in Council made under sub-section (1) is passed in accordance with this sub-section if—
(a)notice of the resolution is given in each House of the Parliament on or before the 18th day on which that House sits after the Order in Council is laid before that House; and
s. 6
(b)the resolution is passed on or before the 12thday on which that House sits after the notice of resolution has been given in that House.
(7)The power of each House to pass a resolution disallowing an Order in Council under this section is not affected by the prorogation or dissolution of the Parliament or of either House of the Parliament and, if there is such a prorogation or dissolution, the calculation of days on which a House has sat must be made as if there had been no such prorogation or dissolution.
(8)Notice of a resolution to disallow an Order in Council may be expressed to apply to all or any part of the particulars of the variation contained in the Order in Council and a resolution to disallow all or any part of those particulars shall taken effect according to its tenor.
(9)If a resolution is passed disallowing part only of the particulars of the variation contained in an Order in Council, the particulars not disallowed shall be of no effect unless and until each of the Premier of Victoria and the Companies gives notice to the other expressing an intention to be bound by the particulars not disallowed, or by part of those particulars, and, if notice is so given, the particulars, or part of the particulars, take effect accordingly.
(10)If an Order in Council is disallowed by Parliament in accordance with sub-section (6), the disallowance has the like effect to the repeal of an enactment.
s. 6
(11)This section is in addition to and not in derogation from the power conferred by the Agreement for the Premier of Victoria and the Companies to enter agreements and arrangements for better giving effect to the provisions of the Agreement.
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SCHEDULE
Sch.
THIS AGREEMENT is made the 24th day of October One thousand nine hundred and sixty-seven BETWEEN The Honourable Sir HENRY BOLTE in his capacity as the Premier for the time being of the State of Victoria and for and on behalf of the Crown in right of the said State of the one part and HEMATITE PETROLEUM PROPRIETARY LIMITED a company incorporated under the Companies Act 1961 of the said State, the registered office of which in the said State is situate at 500 Bourke-street, Melbourne, and ESSO EXPLORATION AND PRODUCTION AUSTRALIA INC. a company incorporated in Delaware one of the United States of America and registered as a foreign company under the said Companies Act 1961, the registered office of which in the said State is situate at 380 Lonsdale-street, Melbourne, aforesaid (hereinafter called "the Companies") of the other parts—
WHEREAS:
I.The Companies desire to establish, in the vicinity of the Port of Westernport in the said State, a plant for the processing of petroleum.
II.The State, for the purpose of encouraging decentralization of industry, desires to facilitate the establishment of the said plant.
III.Before the Companies incur the expense involved in the establishment of the said plant, it is necessary that certain rights and powers incidental to the establishment and operation of the said plant should be conferred on the Companies.
IV.For the purpose of conferring the said rights and powers and making provision for other matters, the parties hereto have agreed to execute this Agreement.
NOW IT IS HEREBY AGREED as follows:
PART I
Preliminary
1.Agreement to be ratified by Act of Parliament
This Agreement shall not be of any force or effect nor shall the parties hereto have any claim against the other in respect of any matter arising out of or in connexion therewith unless such matter arises after this Agreement has been ratified, validated, approved or otherwise given effect to by an Act of Parliament of the said State.
2.Definitions
In this Agreement unless inconsistent with the context or subject-matter—
"the Act" means the Act of the Parliament of the said State ratifying validating approving or otherwise giving effect to this Agreement;
"Chief Engineer" means the Chief Engineer of Ports and Harbors for the State of Victoria, or any other person authorized by him in writing to act for him either generally or in relation to any particular matter under this Agreement;
"commencing date" means the date on which the Act comes into operation;
Sch.
"Commissioning Date" means the date on which the Companies or either of them first use the jetty for the receipt or dispatch of petroleum;
"Companies" means Hematite Petroleum Proprietary Limited and Esso Exploration and Production Australia Inc. and any assigns of these companies;
"Governor in Council" has the same meaning as in the Acts Interpretation Act 1958;
"jetty" means the jetty to be constructed by the Companies pursuant to this Agreement and includes any additions renovations and alterations made thereto;
"petroleum" includes mineral oil liquefied petroleum gas and other hydrocarbons of any description or source whether crude or refined including but without limiting the generality of the foregoing all products obtained from these substances and mixtures of these substances or their products with other substances;
"pipelines" means pipelines installations and attendant facilities erected, constructed, laid down, established or fixed by the Companies on the jetty or between the plant and the jetty or between the plant and petroleum installations established or to be established in other parts of the said State;
"the plant" means the Fractionation Plant to be constructed on the plant site to the plans and specifications of the Companies in accordance with the provisions of this Agreement and includes all additions and alterations that may be made to the plant;
"plant site" means the whole of the land described in Certificates of Title volume 7926 folio 090 and volume 4784 folio 753 and any other land in the vicinity thereof which has or may be acquired by the Companies;
"Premier" means the Premier for the time being of the State and includes any Minister of the Crown acting for or on behalf of the Premier;
"reclamation area" means the area of land at or near Old Tyabb containing 250 acres 2 roods 30 perches more or less, commencing in the Parish of Tyabb County of Mornington at the south-western angle of the site temporarily reserved for a cemetery by Order in Council of the 24th February, 1862; bounded thence by that site bearing 93 46 1000 links; by allotment 76 bearing 180 2 200 links, 93 46 2960 links, and 355 28 14952/10 links; and thence by lines bearing and measuring approximately 90 0 1000 links,
180 0 7652 links, 270 0 682 links, 308 23 5296 links, and 0 0 3333 links to the point of commencement;
Sch.
"the State" means the State of Victoria.
3.
The headings and side-notes shall not affect the interpretation of this Agreement.
PART II
Obligations of the Companies
4.Construction of the plant
The Companies jointly covenant that they will—
(a)after the commencing date and without undue delay commence and complete the construction of the plant and thereafter so long as this Agreement shall continue maintain operate and use the plant for the processing of petroleum, such construction, maintenance and operation to comply with accepted good industry practice and the standards and specifications required for the time being of similar plants in Great Britain and in the United States of America;
(b)at the cost of the State not exceeding 3500000 dollars and to the satisfaction, at all times, of the Chief Engineer—
(i)carry out such preliminary investigations in addition to those conducted by the State as may be necessary in connexion with the design and construction of the jetty;
(ii)design erect and establish a jetty (which shall be and remain the property of the State) extending seaward from the shore adjacent to the south-eastern boundary of the plant site; and
(iii)after giving at least 14 days notice of their intention so to do to the Minister of Public Works carry out such dredging as shall provide (at mean low water, ordinary spring tide)—
Sch.
(A)a navigable channel of 40 feet minimum depth and a bottom width of approximately 800 feet through the northern arm of Westernport Bay and between the northern boundary of the swinging circle opposite the Refinery Pier at Crib Point and the area next hereinafter mentioned by a route which is to be agreed with the Chief Engineer;
(B)an adequate area in the vicinity of the jetty with a minimum depth of 40 feet to enable safe and unrestricted berthing of vessels and including a turning circle off the jetty of a diameter of approximately 1800 feet and a minimum depth of 40feet;
(C)an area approximately 1100 feet long by 275 feet wide alongside the jetty with a minimum depth of 42 feet;
(D)a 30-foot wide area along the berthing line with a minimum depth of 52 feet;
(c)to the satisfaction of the Chief Engineer properly maintain the jetty and make such repairs to the jetty as may from time to time be necessary during the period of 20 years after the commissioning date and for such further periods as are from time to time agreed by the Companies and the Premier but the State shall reimburse the Companies for any cost reasonably incurred by the Companies for so maintaining or repairing the jetty;
(d)at their own cost construct, erect and establish with any additions thereto that they may from time to time consider necessary such pipelines as they desire, in accordance with the port rules in force in the Port of Westernport and to the satisfaction of the Chief Engineer, for the loading, unloading of petroleum, provision of a fire-fighting service and the provisioning, bunkering, servicing and watering of vessels using the jetty PROVIDED that such pipelines shall be and remain the property of the Companies;
Sch.
(e)not cause, or permit to be caused any pollution of the waters of Westernport Bay from within the Plant, the Plant site, the Pipelines, or other sources within the control of the Companies: PROVIDED that this clause shall not be understood to impose any obligation or operating restrictions on the Companies more stringent that those imposed on any other persons engaged in similar operations in the Westernport Bay area;
(f)comply with all statutes, regulations and rules relating to standards health or safety in the construction, operation and maintenance of the plant and of the facilities attendant thereto including the jetty and all pipelines.
PART III
5.Obligations of the Crown
The Premier, on behalf of the State, covenants that the State will—
(a)by virtue of the Act [and without the necessity for any other authority, approval, permit, licence or consent, other than any authority approval permit licence or consent required under the Town and Country Planning Act 1961 and the Local Government Act 1958 in connexion with the construction operation and maintenance of any building or structure], authorize—
(i)the performance by the Companies of the covenants contained in paragraphs (a), (b), (c) and (d) of clause 4; and
(ii)subject to the port rules for the time being applicable to Westernport, the Companies to manage and control the jetty together with the pipelines of the Companies thereon and permit the Companies the prior but not exclusive right to the use of the jetty PROVIDED that the State will not authorize any other person to use the jetty in a way that would prejudicially affect or interfere with the operations of the Companies;
(b)maintain the dredging of the channel and areas mentioned in clause 4(b)(iii) hereof;
Sch.
(c)install and maintain adequate navigational aids for both day and night navigation;
(d)maintain repair and operate tugs and small craft sufficient and adequate to provide normal harbour services at all times including a fire-fighting service (all of which tugs craft and services are hereinafter called "the harbour services"), and shall make same available as necessary to satisfy the operational requirements of the plant and of the vessels entering and leaving Westernport for purposes connected with the Plant, at rates no higher than the rates at which such services are made available to any other user;