West Lakes Development Act 1969

This Act may be cited as the West Lakes Development Act 1969.

In this Act, unless the contrary intention appears—

land includes any estate or interest (legal or equitable) in land and any easement, right, power, or privilege in, under, over, affecting, or in connection with, land;

the Company means Development Finance Corporation Limited, a company incorporated in the State of New South Wales whose registered office at the time when the Indenture was made was situated at 16 O'Connell Street, Sydney in that State;

the Indenture means the indenture which, together with the Schedules, plans and other annexures annexed thereto and forming part thereof, was made on the Twenty-third day of June, 1969, between the Honourable Raymond Steele Hall, Premier of the State of South Australia for and on behalf of the State of the first part, the Minister of the second part and the Company of the third part and has been deposited in the General Registry Office at Adelaide bearing No. 647 of 1969; and, where, pursuant to that indenture, that indenture has been subsequently amended by any agreement or agreements in writing made before or after the commencement of this Act and deposited in the General Registry Office at Adelaide as required by paragraph (a) of subsection (2) of section 2 of this Act, includes the first mentioned indenture as so amended by that other agreement or those other agreements;

the Minister means the corporation sole whose corporate name is Minister of Marine;

the previous Indenture means the Indenture made on the eleventh day of April, 1968, between the Honourable Donald Allan Dunstan, Premier of the State of South Australia for and on behalf of the State, the Minister, The South Australian Housing Trust and the Company and referred to in the Indenture as defined in this subsection.

For the purposes of the Indenture, and without limiting the generality of the scheme referred to in recital (4) of the Indenture, the scheme shall be deemed to include—

the excavation of the Basin, referred to in paragraph 25 of the Fourth Schedule to the Indenture, of impounded water to form a lake, the reclamation of land adjacent thereto and the development of parcels of land within West Lakes for residential, shopping, commercial, industrial, recreational or institutional development or for any number of such types of development; and

the flushing of the Basin with seawater as provided in that Schedule and the provision of bank protection along its shores; and

the entry of seawater into the Basin by way of the Water Conduit referred to in that Schedule and constructed into Gulf St. Vincent and by way of the Head Works referred to therein which will be located at or towards the southern end of the Basin; and

provision for handling External Stormwater Drainage referred to in that Schedule which enters West Lakes from land outside West Lakes; and

the provision within West Lakes of roads, bridges, Internal Stormwater Drainage referred to in that Schedule and water and sewerage services in accordance with the Indenture and this Act; and

the laying out of certain roads, streets, vehicle parking areas and thoroughfares and the creation of allotments of land and their subsequent use as the Corporation within the meaning of the Indenture shall, subject to the Indenture and this Act, from time to time think necessary or desirable.

Where the Indenture that has been deposited in the General Registry Office at Adelaide bearing No. 647 of 1969 has been amended by any subsequent agreement in writing between the Premier and the Corporation as provided in clause 13 of the Indenture, then, notwithstanding anything contained in the Registration of Deeds Act 1935 or any other Act—

the Premier shall cause each of such agreements to be deposited in the General Registry Office at Adelaide and shall cause the Registrar-General of Deeds to be informed in writing that such agreement is an amendment of that Indenture; and

the Registrar-General of Deeds shall, by endorsement on the outside cover page of that Indenture, indicate that that Indenture has been amended by such agreement which shall be referred to in the endorsement by the General Registry Office number assigned thereto.

Expressions used in this Act shall, unless a contrary intention appears, have the same respective meanings as in the Indenture.

The Indenture is hereby approved and ratified and, notwithstanding any other Act or law, or any instrument or order made in pursuance of any other Act or law, shall, subject to this Act, be carried out and have effect as if the provisions thereof (including the Schedules, plans and other annexures annexed thereto) were agreed to between the parties thereto and expressly enacted in this Act.

The previous Indenture is, by operation of this section, rescinded and ceases to be of force or effect notwithstanding that The South Australian Housing Trust is not a party to the Indenture.

For the purpose of giving effect to the Indenture, the Minister shall have power, either by agreement or compulsorily, to acquire or take subject to and in accordance with the Land Acquisition Act 1969 the whole or any of the lands set out and described in the Second Schedule to the Indenture, or such other land as the Minister shall be required to acquire or may agree to acquire under the Indenture, and any person in whom is vested an estate in fee simple or a lesser estate in any such land shall, notwithstanding any other Act or law or any instrument, have power—

to enter into and give effect to any agreement with the Minister to sell or to transfer to him; and

effectively to convey to him, any such estate in any such land.

Notwithstanding anything in the Mining Act 1930 as amended, or any other Act, upon the commencement of this Act, the mineral leases which are referred to in the Third Schedule to the Indenture, being either mineral leases which have been granted, or applications for mineral leases which have been approved, under that Act, such mineral leases or approvals having been in force immediately before the commencement of this Act, shall, by force of this section, be cancelled and all rights thereunder extinguished.

Where, upon the commencement of this Act, there are on any land within West Lakes any minerals mined in pursuance of a mineral lease cancelled or right extinguished under this section or any other enactment, or any machinery, plant, equipment or other property which does not belong to the Crown, the owner thereof shall, within two months after the commencement of this Act or such further period as the Minister may in writing allow or have allowed, remove the same from West Lakes, and, if he fails to do so before the expiration of that time or such further period, if any, such minerals, machinery, plant, equipment and property shall, upon the expiration of that period, become the property of the Crown.

A lessee under a mineral lease cancelled by virtue of subsection (1) of this section and any applicant for a mineral lease whose application has been approved under the Mining Act 1930, as amended, but whose rights under that approval have been extinguished by virtue of that subsection shall, subject to this section, be entitled to compensation from the Minister for the cancellation of the lease or the extinction of the right, as the case may be.

The provisions of the Compulsory Acquisition of Land Act 1925, as amended, shall not apply to or in relation to the cancellation of a mineral lease or the extinction of a right under this section.

The amount of compensation in respect of the cancellation of a mineral lease or the extinction of a right under this section shall be determined—

by agreement, whether before or after the commencement of this Act, between the lessee under the mineral lease or the owner of the right and the Minister or the Minister of Mines, or both such Ministers; or

by an action for compensation by the lessee or the owner against the Minister as provided by this section; or

by a proceeding in a court on the application of the Minister as provided by this section.

Within two months after the commencement of this Act, a person claiming compensation under this section is required to give the Minister notice of the amount and full particulars of his claim.

A claimant shall not be at liberty to institute any proceedings for the recovery of the amount of his claim until after the expiration of two months after the giving of the notice under subsection (6) of this section.

Within twenty-one days after the receipt of the notice of claim by the Minister, the Minister shall—

notify the claimant that the Minister admits the claim for compensation and that the compensation claimed will be paid to the claimant; or

offer the claimant such amount as the Minister thinks reasonable in satisfaction of the claim, and notify the claimant that the amount offered will be paid to him if he accepts the offer; or

notify the claimant that the Minister disputes the claim for compensation.

The claimant must, within twenty-one days after the receipt of the offer, by notice in writing, notify the Minister whether he does or does not accept the offer.

If the Minister—

offers the claimant an amount in satisfaction of the claim and the claimant does not notify the Minister as provided by subsection (9) of this section that he accepts the offer; or

notifies the claimant that the Minister disputes the claim for compensation, the claim shall be a disputed claim.

Where a claim for compensation under this section becomes a disputed claim, an action for compensation may be instituted by the claimant against the Minister in any court having jurisdiction in personal actions up to the amount claimed and subject to this section, the action shall be heard and determined in the same manner as ordinary actions.

If within one month after a claim for compensation became a disputed claim—

it has not been determined by agreement between the Minister and the claimant; and

no process in an action for compensation by the claimant against the Minister to determine the claim has been served on the Minister, the Minister may apply to any court in which an action for compensation might be instituted to determine the claim.

If a person entitled to compensation under this section does not give to the Minister a notice of the amount and full particulars of his claim as required by subsection (6) of this section, the Minister may apply to a court for a determination of the amount of compensation payable.

The application shall be made to the Supreme Court if the Minister considers the compensation awarded will amount to more than two thousand five hundred dollars, but shall be made to a local court of full jurisdiction if the Minister considers the compensation awarded will not amount to more than two thousand five hundred dollars.

A court before which any action for compensation under subsection (11) of this section is brought or to which any application under subsection (12) or subsection (13) of this section is made shall, after such notice to such persons as it directs, hear and determine the action or application in such manner as it deems just and proper in the circumstances and may make such order as to costs as it thinks just.

The determination, of the court shall be final and conclusive and without appeal, and shall be binding on the Minister and all persons having any right to compensation under this section in respect of the mineral lease, whether he was or they were represented before the court at the hearing or not.

The compensation payable under this section shall be calculated and paid in the following manner:

there shall be deducted from the gross income derived by the claimant from the exercise of the rights under the lease or from the exercise of the right to the lease in question over the period of five years immediately preceding the first day of July, 1968, the amount of the expenses incurred during that period in deriving such income, and the amount then remaining shall be divided by 1 825, the quotient being the net daily income over, that period; and

the net daily income over that period shall be multiplied by the number of days which, but for the cancellation or extinction, as the case may be, the lease or the right to the lease would have run after such cancellation or extinction, without regard being had to the right, if any, of the claimant to a renewal of the lease or the right to the lease; and

the amount calculated in accordance with paragraph (b) of this subsection shall, for the purpose only of making any calculation under this paragraph, be deemed to be due and payable in equal monthly instalments, the first of which it so deemed to be payable upon the date of cancellation or extinction, as the case may be, and the subsequent instalments being deemed to be payable at whole monthly intervals thereafter during the period over which the lease or right would have run, but for such cancellation or extinction, without regard being had to the right, if any, of the claimant to a renewal of the lease or of the right to the lease; and, having regard thereto, there shall be calculated actuarially the amount of the net present value of those instalments as at the date of the cancellation or extinction, as the case may be, at an interest rate of one half per centum per month; and

the amount of the net present value of those instalments, calculated, with respect to each such lease or right to a lease, in accordance with paragraph (c) of this subsection together with compound interest thereon at the rate of one half per centum for each complete month that has elapsed between the date of cancellation or extinction and the date of payment, shall be the compensation payable in respect of the cancellation of the lease or the extinction of the right by virtue of subsection (1) of this section and that amount shall be paid as soon as practicable after the date of the cancellation or extinction, as the case may be.

For the purpose of giving effect to paragraph (c) of clause 5 of the Indenture, and notwithstanding any other Act, the bed of the Old Port Reach (delineated on the Department of Marine and Harbors Drawing 14426/PH2 a copy whereof is annexed to the Indenture and referred to as Plan 1) extending from the Railway Reserve on the South to the Bower Road embankment on the North is, by virtue of this section, vested for an estate in fee simple in the Minister.

On the commencement of this Act, the lands, portions of lands and reserves referred to in paragraph (d) of clause 5 of the Indenture shall to the extent that they are not vested for an estate in fee simple in the Minister, and without the payment of any compensation or consideration by the Minister or the corporation, become so vested in the Minister freed of all encumbrances, if any, subject as therein provided.

Notwithstanding the provisions of any other Act and without limiting any other provision of this Act, the Minister may, at any time, and from time to time, at the request of the Corporation, by notice published in the Gazette close such roads within West Lakes as shall not be required as roads for the implementation of the scheme referred to in paragraph (e) of clause 5 of the Indenture.

Upon the closure of those roads the land that comprised the roads shall, without the payment by the Minister of any compensation or consideration therefor, vest in the Minister for an estate in fee simple freed from all encumbrances, if any.

On the commencement of this Act, all lands referred to in paragraph (e) of clause 5 of the Indenture, not being land referred to in subsection (2) of this section and excepting lands specifically excepted by that paragraph and also excepting any land that is the subject of a licence to obtain, take away and stack sand granted by the Minister of Lands pursuant to the Crown Lands Act 1929, as amended, shall be vested in the Minister for an estate in fee simple freed from all encumbrances, if any, and in the case of land vested before the commencement of this Act in The Corporation of the City of Woodville, such vesting in the Minister shall be without the payment of any compensation or consideration by the Minister or the Corporation within the meaning of the Indenture.

The Minister of Lands may, by notice published in the Gazette, declare that any licence referred to in subsection (3) of this section has expired or has been cancelled and, upon the day on which the notice is published in the Gazette, the land which was the subject of that licence shall become vested in the Minister as defined in subsection (1) of section 2 of this Act for an estate in fee simple freed from all encumbrances.

When land has become vested in the Minister by virtue of this section—

the Registrar-General of Deeds shall, on the application of the Minister, register the land under the provisions of the Real Property Act 1886, as amended, in the name of the Minister to the extent of the estate so vested in the Minister; and

if required by the Registrar-General of Deeds, in any case where an application is made under this subsection, the Minister shall furnish the Registrar-General with a plan of the land to which the application relates certified by a licensed surveyor.

Where—

by virtue of this Act, any land that is not under the provisions of the Real Property Act 1886, as amended, becomes vested in the Minister for an estate in fee simple; or

by virtue of the acquisition by agreement by the Minister of any land, the Minister has become the owner of an unencumbered estate in fee simple in any land within West Lakes that is not under the Real Property Act 1886, as amended; or

any land within West Lakes that belongs to the Crown and is not under the provisions of the Real Property Act 1886, as amended, is held by the Minister in his name or for and on behalf of the Crown by virtue of a proclamation or dedication, the Registrar-General of Deeds shall, notwithstanding anything contained in the Real Property Act 1886, as amended, or any other Act, on the application in writing of the Minister, and upon the furnishing by the Minister of such plan or plans of the land referred to in the application, certified by a licensed surveyor, as the Registrar-General may require, and without the execution of any transfer, conveyance, or other instrument or document, or the production of any instrument or document of title, and without any further action by the Registrar-General than is required by this section, bring the land under the provisions of the Real Property Act 1886, as amended, by issuing a certificate of title under that Act for an unencumbered estate in fee simple in the land in the name of the Minister.

Subject to subsection (2) of this section, where—

pursuant to the Indenture any allotment, within the meaning of the Real Property Act 1886 of land within West Lakes has been transferred to the Corporation; and

the allotment of land—

has not been disposed of by the Corporation; or

has had no completed buildings to the value of or exceeding three thousand dollars erected thereon by or on behalf of the Corporation; or

has had no work of the value of or exceeding three thousand dollars done thereon by or on behalf of the Corporation, such allotment shall, if the Corporation does not, within fourteen days after receiving a request in writing from the Minister so to do, transfer to the Minister an estate in fee simple in such allotment or satisfy the Minister that the scheme and development referred to in paragraph (h) of clause 5 of the Indenture will be proceeded with within a reasonable time, on the publication in the Gazette of a notice under the seal of the Minister, vest for an estate in fee simple in the Minister without the payment of any compensation by the Minister.

The Minister shall not cause to be published in the Gazette the notice referred to in subsection (1) of this section if the Minister has notified the Corporation that the Minister is not satisfied that the scheme and development referred to in subsection (1) of this section will be proceeded with within a reasonable time and the Corporation has notified the Minister in writing that the Minister should have been so satisfied, or in the event of either the Minister notifying the Corporation or the Corporation notifying the Minister of any question arising as to what is a reasonable time, unless the Minister and the Corporation have reached agreement on the matter or matters in dispute, or the matter or matters in dispute has or have been determined by arbitration in accordance with the arbitration clause.

Where the Minister is satisfied that the Corporation is in the process of liquidation for any purpose other than for the amalgamation or reconstruction of the Corporation as approved by the Minister, any such allotment of land transferred by the Minister to the Corporation in pursuance of the Indenture as has not been built upon or disposed of by or on behalf of the Corporation shall, on the publication in the Gazette of a notice under the seal of the Minister, vest for an estate in fee simple in the Minister without the payment of any compensation by the Minister.

On and after the commencement of this Act, all lands referred to in paragraph (j) of clause 5 of the Indenture as "the abutting lands" having prior to the making of the Indenture any bound or boundary extending to the bank or ordinary high water mark or the middle of the stream, or partly extending to one or more of them, of the Upper Port Reach of the Port River shall, notwithstanding that any or every such bound or boundary did then extend thereto, have as their respective areas, bounds and extent only such areas, bounds and extent as in fact they respectively had on the twenty-third day of June, 1969, and, for the purpose of giving effect to the foregoing provisions of this section, upon application to the appropriate authority by the registered proprietor of any such land, a new or amended Land Grant or certificate of title under the provisions of the Real Property Act 1886, as amended, shall be issued in lieu of the Land Grant or certificate of title then existing in respect thereof under that Act.

Notwithstanding subsection (1) of this section, the Corporation shall not for three months after the commencement of this Act, except with the approval of the Minister, do or cause to be done any act, matter or thing to alter or vary any bank or the bed of the stream of the Upper Port Reach of the Port River.

The Minister shall bear the costs and expenses (including the cost of necessary surveys, maps and plans) of ascertaining the respective areas, bounds and extent of each and all of the abutting lands for the purpose of giving full effect to this section and of issuing new or amended Land Grants or certificates of title under the Real Property Act 1886, as amended, in respect of the abutting lands.

The power conferred by section 4 of this Act on the Minister, either by agreement or compulsorily, to acquire or take land for the purpose of giving effect to the Indenture is hereby expressly extended to and in relation to any portion of the abutting lands referred to in paragraph (j) of clause 5 of the Indenture for the purpose of ensuring that the provisions of that paragraph are given full effect and any land which, prior to being acquired under this Act by the Minister, formed part of the abutting lands shall, upon such acquisition, become and form part of the additional lands within the meaning of the Indenture.