Pauls Ice Cream & Milk Ltd. Hope Street Viaduct Authorisation Act of 1959 (8 Eliz Ii) (Qld)

330 Queettziattb ANNO OCTAVO ELIZABETHAE SECUNDAE REGINAE. • An Act to Authorise PauIs Ice Cream & Milk Ltd. to Construct and thereafter Maintain a Viaduct above Hope Street, in the City of Brisbane; and for other consequential purposes. [ASSENTED TO 21ST DECEMBER, 1959.] Preamble. NST HEREAS Pauls Ice Cream & Milk Ltd. of Brisbane E in the State of Queensland, a company duly incorporated under " The Companies Acts, 1931 to 1955," (hereinafter with its successors and assigns called " the Company "), is the owner in fee-simple of the land situated in the county of Stanley, parish of South Brisbane, in the City of Brisbane, being subdivisions 5 and 6 of allotment 5 of section 17, being the whole of the land described in Certificate of Title Number 305476, volume 1662, folio 216; and subdivisions 7, 8 and 9 of allotment 5 of section 17, being the whole of the land described in Certificate of Title Number 655709,

8 Euz. II., 1959. Pauls Ice Cream & Milk, Etc., Act. volume 3165, folio 199; and resubdivision 1 of subdivisions 2, 3 and 4 of allotments 6 and 7 of section 17, being the whole of the land described in Certificate of Title Number 605569, volume 2958, folio 59; and subdivision 1 of allotment 7 of section 17, being the whole of the land described in Certificate of Title Number 305475, volume 1662, folio 215; and allotments 8 and 9 of section 17, being the whole of the land described in Certificate of Title Number 555520, volume 2752, folio 10, which lands are situated on the northern side of and have a frontage to Hope Street, South Brisbane aforesaid, between Montague Road and the Brisbane River; and the Company is also the owner in fee-simple of subdivision 2 of allotment 4 of section 18, being the whole of the land described in Certificate of Title Number 566948, volume 2798, folio 188; and subdivision 1 of allotment, 3 of section 18, being the whole of the land described in Certificate of Title Number 448614, volume 2308, folio 104; and subdivision 2 of allotment 3 of section 18, being the whole of the land described in Certificate of Title Number 448613, volume 2308, folio 103; and allotment 2 of section 18, being the whole of the land described in Certificate of Title Number 48398, volume 325, folio 138; and allotment 7 of section 18, being the whole of the land described in Certificate of Title Number 425375, volume 2209, folio 115; and allotment 1 of section 18, being the whole of the land described in Certificate of Title Number 372005, volume 1964, folio 95; and subdivision A of allotment 6 of section 18, being the whole of the land described in Certificate of Title Number 588290, volume 2887, folio 30; and subdivision B of allotment 6 of section 18, being the whole of the land described in Certificate of Title Number 588291, volume 2887, folio 31; and subdivision 19 of allotment 5 of section 18, being the whole of the land described in Certificate of Title Number 588292, volume 2887, folio 32; and subdivision 20 of allotment 5 of section 18, being the whole of the land described in Certificate of Title Number 588293, volume 2887, folio 33, which lands are situated immediately opposite the above described land and have a frontage to Hope Street, South Brisbane, commencing approximately 1 chain from the Brisbane River and extending to Montague Road: 331

332 Pauls Ice Cream & Milk, Etc., Act. 8 ELTZ. AND WHEREAS the Company is desirous of constructing and thereafter maintaining a viaduct above the surface of the said Hope Street so as to afford by means thereof direct communication between the lands of the Company hereinbefore mentioned: AND WHEREAS the Company has obtained from the Brisbane City Council the consent of the said Council to the construction and maintenance of the said viaduct (so far as the said Council is empowered to so consent) and an agreement in that behalf was on the second day of October, one thousand nine hundred and fifty-nine, made and entered into by and between the said Council and the Company (a copy of which agreement and of the sketch therein referred to is set forth in the Schedule to this Act) : AND WHEREAS the Company has procured the consents to the construction and maintenance of the said viaduct of the Postmaster-General of the Commonwealth of Australia, the said Council, the South Brisbane Gas Company, and the Southern Electric Authority of Queensland: AND WHEREAS the Company is ready and willing in the construction and maintenance of the said viaduct to carry into effect and to conform in all respects with the covenants, conditions, stipulations and provisoes set forth in the agreement between the said Council and the Company hereinbefore mentioned: AND WHEREAS the construction and maintenance of the said viaduct will be of great advantage to the Company in carrying on its business, and if the terms and conditions in the said agreement set forth are at all times observed and conformed with by the Company the said viaduct may be constructed and maintained without disadvantage to the public or to the said Council or any other persons or corporations possessing any powers, rights or authorities in respect of or in relation to the said street and the surface of the same and the subsoil lying thereunder: AND WHEREAS it is expedient that the Company be granted authority to construct and maintain the said viaduct subject to the provisions in this Act contained, and also subject to the terms and conditions in the said agreement set forth:

1959. Pauls Ice Cream & Milk, Etc., Act. 333 Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same as follows :- 1. This Act may be cited as " The Pauls Ice Cream Short title. & Milk Ltd. Hope Street Viaduct Authorisation Act of 1959." with 2 it . s ( s 1 u .) ccPeassuolsrsIcaendCraesasmign&s cMalillekdL" tdt. h(ehCeroeminpaaftneyr A, ,) uattonhcorrtirtyutat is hereby authorised and empowered to construct and viaduct thereafter at all times maintain, continue, repair, renew csvktreeret.llope and use a viaduct over Hope Street (a roadway within the City of Brisbane) as shown on the sketch attached to the agreement in the Schedule to this Act set forth to afford communication between the said parcels of land of the Company hereinbefore mentioned. (2.) The Company in the construction, maintenance, continuance, repair, renewal and use of the said viaduct, and in the carrying out of all subsidiary works including all works in connection with or in relation to the roadway, footways, roadway surface, water-tables, conduits, mains, cables, pipes, sewers, drains, buildings and structures of the said Council and of the Postmaster-General of the Commonwealth and of the Council and of the South Brisbane Gas Company and of the Southern Electric Authority of Queensland and of all other persons shall at all times and in all respects observe and conform with the provisions of this Act and the terms and conditions in the said agreement set forth. 3. For any of the purposes aforesaid the Temporary temporary closing or partial closing of Hope Street WospueVrteet. during the carryi rig out of any works herein referred to is authorised. 4. Subject to this Act and to the terms and indemnities. conditions in the said agreement set forth, but without limitation of or prejudice to the rights or remedies of the said Council or any person or corporation against the Company under the said agreement no action or other proceedings shall be commenced, prosecuted or maintained against the Company or any contractor with

334 Pauls Ice Cream & Milk, Etc., Act. 8 Euz. IL, the same or any person acting under the authority of the same for or in respect of the construction, maintenance, continuance, repair, renewal or use of the said viaduct or the carrying out of any subsidiary works in connection therewith or in relation thereto or for or in respect of the temporary closing or partial closing of the said street to traffic during such time as may be necessary for the carrying out of any works or subsidiary works in connection with or in relation to the said viaduct or for or in respect of any damages, loss or expense occasioned or alleged to be occasioned by reason of any such works or subsidiary works, or of any obstruction or alleged obstruction of the said street or in any wise whatever arising from the construction, maintenance, continuance, repair, renewal or use of the said viaduct or any such works or subsidiary works. SCHEDULE. THIS AGREEMENT is made the Second day of October, One thousand nine hundred and fifty-nine BETWEEN BRISBANE CITY COUNCIL duly constituted under " The City of Brisbane Acts, 1924 to 1959 " (hereinafter called "the Council ") which term includes its successors of the one part AND PAULS ICE CREAM & MILK LTD. a company registered in the State of Queensland under" The Companies Acts, 1931 to 1955" and having its registered office situate Montague Road, South Brisbane in the said State (hereinafter with its successors and assigns called "the Company ") of the other part WHEREAS the Company is the owner in fee-simple of the lands situate in the county of Stanley, parish of South Brisbane and City of Brisbane being subdivisions 5 and 6 of allotment 5 of section 17, containing an area of 29.7 perches, being the whole of the land described in Certificate of Title Number 305476, volume 1662, folio 216 ; and subdivisions 7, 8 and 9 of allotment 5 of section 17, containing an area of 35.2 perches, being the whole of the land described in Certificate of Title Number 655709, volume 3165, folio 199; and resubdivision 1 of subdivisions 2, 3 and 4 of allotments 6 and 7 of section 17, containing an area of 26.1 perches, being the whole of the land described in Certificate of Title Number 605569, volume 2958, folio 59, and subdivision 1 of allotment 7 of section 17, containing an area of 18 perches, being the whole of the land described in Certificate of Title Number 305475, volume 1662, folio 215 ; and allotments 8 and 9 of section 17, containing an area of 1 rood 32 perches, being the whole of the land described in Certificate of Title Number 555520, volume 2752, folio 10; which lands are situated on the northern side of and having a frontage to Hope Street, South Brisbane, as per sketch plan marked " A " in the Schedule to this agreement and the Company is also the owner in fee-simple of the lands immediately opposite the abovementioned lands being subdivision 2 of allotment 4 of section 18, containing an area of 36.2 perches, being the whole of the land described in Certificate of Title Number 566948, volume 2798, folio 188; and

1959. Pools Ice Cream & Milk, Etc., Act. subdivision 1 of allotment 3 of section 18, containing 18 perches, being the whole of the land described in Certificate of Title Number 448614, volume 2308, folio 104; and subdivision 2 of allotment 3 of section 18, containing an area of 18 perches, being the whole of the land described in Certificate of Title Number 448613, volume 2308, folio 103; and allotment 2 of section 18, containing an area of 36 perches, being the whole of the land described in Certificate of Title Number 48398, volume 325, folio 138 ; and allotment 7 of section 18, containing an area of 36 perches, being the whole of the land described in Certificate of Title Number 425375, volume 2209, folio 115; and allotment 1 of section 18, containing an area of 36 perches, being the whole of the land described in Certificate of Title Number 372005, volume 1964, folio 95 ; and subdivision A of allotment 6 of section 18, containing an area of 32 perches, being the whole of the land described in Certificate of Title Number 588290, volume 2887, folio 30; and subdivision B of allotment 6 of section 18, containing an area of 32-9 perches, being the whole of the land described in Certificate of Title Number 588291, volume 2887, folio 31; and subdivision 19 of allotment 5 of section 18, containing an area of 10 perches, being the whole of the land described in Certificate of Title Number 588292, volume 2887, folio 32; and subdivision 20 of allotment 5 of section 18, containing an area of 11-6 perches, being the whole of the land described in Certificate of Title Number 588293, volume 2887, folio 33, which lands are situated on the southern side of and having a frontage to Hope Street, South Brisbane, as per the said sketch plan marked " A " AND WHEREAS the Company has constructed certain buildings on each side of Hope Street for the purposes of its business of milk and milk products processers and distributors and of ice cream manufacturers, and, subject to the approval of the Council, is about to construct further buildings on the northern side of Hope Street aforesaid AND WHEREAS the Company for the purpose of the more convenient operation of its business and for the purpose of pedestrian access to and from the proposed new buildings has requested the permission of the Council to construct a private viaduct across and above the surface of the said roadway at the location marked " Viaduct " on the said sketch plan to connect the said lands and the buildings constructed and about to be constructed thereupon respectively AND WHEREAS the Company warrants that it has secured the consents of the South Brisbane Gas Company, the Postmaster-General, and the Southern Electric Authority of Queensland to the construction of such viaduct AND WHEREAS the Council relying upon such warranty has consented to the construction of such viaduct subject to the covenants conditions and stipulations and provisoes hereinafter set forth: Now THIS INDENTURE WITNESSETH and it is hereby covenanted by and between the parties hereto as follows :- 1. Subject as hereinafter provided the Council hereby grants permission for the construction by the Company of a private viaduct across and above Hope Street at the position shown on the said sketch plan for the purpose of connecting the Company's lands hereinbefore described on the northern side of Hope Street with the Company's lands hereinbefore described on the southern side of that street and the buildings constructed or about to be constructed thereupon respectively. 335

336 Pauls Ice Cream & Milk, Etc., Act. 8 Euz. II., 2. The said viaduct shall be constructed only across that part of Hope Street marked " Viaduct " on the said sketch plan. The design and construction shall be to the satisfaction of the Chief Engineer and Manager of the Council's Department of Works, herein- after called "the Engineer ", and unless the Council shall agree in writing to any variation thereof shall comply with the following general requirements :— (a) It shall have a minimum clearance of sixteen (16) feet above the carriageway of Hope Street and fourteen (14) feet above the footpaths of Hope Street; (b)It shall have a roof and enclosed sides for the full length of the structure with adequate windows for lighting and ventilation; (c) It shall not be wider than fourteen (14) feet between external wall faces; (d) The Council agrees to the incorporation of a supporting pier on each side of Hope Street but the width of each pier shall not exceed twelve (12) inches and the distance from the face of each pier on the carriageway side to the property alignment shall not exceed eleven (11) feet. 3. The Company shall give to the Council fourteen (14) clear days' notice in writing of its intention to commence the work of constructing the said viaduct and the carrying out of all subsidiary works. Upon the expiration of the said notice the Company shall proceed as expeditiously as possible with the construction of the work the subject of the said notice. If for any reason other than fire flood storm tempest or other act of God or causes beyond the control of the Company the said works once having been commenced shall not proceed to completion without interruption to the satisfaction of the Engineer the Company shall be liable to pay to the Council on demand by way of liquidated damages and not by way of penalty a sum of Ten pounds (£10) for every day or part of a day during which the work has been or has been allowed by the Company to be interrupted. 4. The Company shall at its own expense make all necessary arrangements with the Postmaster-General, the Council, the South Brisbane Gas Company, and the Southern Electric Authority of Queensland as may be necessary for the disconnection shifting alteration and or replacement of any conduits mains cables or pipes the property of the said Postmaster-General, the Council, the South Brisbane Gas Company or the Southern Electric Authority of Queensland as the case may be but the execution hereof by the Council shall connote and be deemed to connote the consent of the Council to any of the disconnecting shifting alteration and or replacement of any conduits mains cables or pipes the property of the Council. 5. The Company will not use or permit any other person whom- soever other than its contractors workmen servants and agents to use the said viaduct for any purpose until the same has been completed to the satisfaction of the Engineer.

1959. Pauls Ice Cream & Milk, Etc., Act. 6. The said viaduct and all works subsidiary thereto shall be constructed carried out and performed in every particular in strict accordance with the plans and specifications approved between and signed by the parties prior to the execution hereof, a counterpart of which is acknowledged to be held by each party, and if the Company shall in the future deem it necessary to alter the said plans of the piers and structures in relation to the said viaduct, then all works in accordance with such altered plans shall be carried out only after the approval in writing of the Council under the hand of the Town Clerk has been first obtained. 7. Save as provided in clause 2 as to piers, the Company shall not permit the said viaduct or the supports thereof to operate as an obstruction to the legal user of the road but the Company shall not be liable in an action for nuisance for anything done in accordance with the approved plans. 8. (a) The Council undertakes at the request and expense in all things of the Company to carry out all works in relation to the disconnecting shifting alteration and or replacement and or the relaying of the Council's service installations in Hope Street including any conduits drains mains cables or pipes as aforesaid as may be necessary or expedient in the opinion of the Engineer to enable the Company to carry out the construction of the viaduct. (b) The Company shall on demand pay to the Council prior to the commencement thereof the estimated cost of the work to be performed by the Council pursuant to this clause. Upon completion of the work the actual cost shall be ascertained and if the amount thereof exceeds the estimated cost the Company will pay the excess to the Council on demand; alternatively should the actual cost prove less than the estimated cost the Council will immediately refund the difference to the Company. In ascertaining the estimated and actual cost the Council's usual charge of 121 per cent. for administration and supervision shall be included in each case. (c) The Company will bear all risk and responsibility of and incidental to the building construction and maintenance of the said viaduct and if at any time or times hereafter any subsidence or other damage or injury shall result to the roadway of Hope Street or any sewers mains or pipes laid in Hope Street or electricity or other service installations therein or thereon by reason of the building construction maintenance or existence of the said viaduct or the use thereof or of the escape therefrom of any water gas electricity or any fluid force energy substance or thing the Company will pay to the Council the amount of any expenses incurred by the Council in making good and reinstating the said roadway sewers mains pipes and service installations and the Company will at all times keep the Council indemnified against all claims demands proceedings damages or costs by or at the instance of any person or body in relation to or in connection with the construction building or existence of the viaduct or any injury or accident arising therefrom or from the use thereof or from the escape therefrom of any water gas or electricity or any fluid force energy substance or thing whatsoever. 337

338 Pauls Ice Cream (C, Milk, Etc., Act. 8 Euz. 9. The Council will from time to time as may be necessary arrange for the temporary closure of Hope Street or any part thereof during the period of construction and during any period thereafter required for the maintenance of the said viaduct. 10. At all reasonable times the Council shall be at liberty to enter the lands hereinbefore described and the viaduct and inspect the progress of the works associated with the said construction of the viaduct and after the completion thereof the like liberty to enter the said lands and inspect the said viaduct during the existence thereof and the Company undertakes and agrees that at all times it shall at its own cost and expense maintain the said viaduct and the supports thereof and all pipes and other services therein and all appurtenances pertaining thereto in a good and substantial state and condition of repair and the Council may from time to time by notice in writing inform the Company of all defects or want of maintenance or repair and if any such notice be not obeyed to the satisfaction of the Engineer within such time as may be prescribed in such notice the Council may itself perform the work and reparation and recover all costs charges and expenses in connection therewith from the Company. 11. Should the Company at any time cease to be the owner of the land abutting either end of the viaduct the Council shall have the right at any time thereafter by resolution to divest the property in the viaduct from the Company and vest the same absolutely in the Council and the Council may at any time after making the said resolution close remove or otherwise deal with the said viaduct many manner it thinks fit and remove or make any reasonable re-arrangement of any conduits or pipes in the said viaduct all at the expense of the Company and no payment shall be made to the Company on account of such divesting or vesting : Provided always and it is expressly agreed that this right shall not enure to the Council in the event of the acquisition from the Company by any other person company corporation society or association of both such abutting lands at the same time. In the event of the Council removing the viaduct in exercise of the right contained in this clause it shall not be responsible to make good any part of the building or buildings structure or structures on the abutting lands to which the said viaduct was attached or connected immediately prior to removal. 12. The Company shall be entitled to use the said viaduct only for the passage without vehicles of its employees servants agents contractors and invitees and for the conveyance by pipes or conduits of mains water, soft water, brine, whole milk, skim milk, concentrate milk, ice cream mix, liquid ammonia, ammonia gas, steam and steam condensate, and any fluid gas or substance of any other kind used or employed by the Company in the conduct of its business as aforesaid which may be approved by the Council; but it is expressly agreed that the said viaduct is intended to be used in connection with the ownership of the lands described in the recitals to this agreement and for the purposes of any works and operations and of any industry conducted in any buildings erected thereon and shall not be deemed to be public utilities.

1959. Pants Ice Cream & Milk, Etc., Act. 13. All questions or differences whatsoever which may arise between the Council and the Company as to the said viaduct and or subsidiary works as well as to the construction and meaning of this agreement and as to anything to be done or observed or omitted to be done or observed hereunder shall (in default of any other mutual agreement being arrived at between the parties) be referred to two arbitrators one to be appointed by each party or their umpire to be appointed before entering upon the business of the reference and in either case in accordance with the provisions of" The Interdict Act of 1867" or any statutory modification thereof for the time being in force. 14. These presents shall have no effect until the Parliament of Queensland shall have given statutory authority for the construction maintenance and continuance of the said viaduct and for the temporary closing or partial closing of the said roadway and footways or part of the roadway and footways to traffic during such construction and or maintenance and during the carrying out of any of the works incidental and necessary in respect of the disconnecting shifting alteration replacement and or relaying of any conduits mains cables or pipes by the Council or any other appropriate authority. 15. In this agreement the term " viaduct " shall, unless the context otherwise indicates or requires, be construed to include the piers, if any, which support the said viaduct. 16. All costs charges and expenses of and incidental to the preparation and completion of this agreement including the stamp duty thereon shall be borne and paid by the Company. SCHEDULE. 339 0

340 PauIs Ice Cream, and Milk, Etc., Act. 8 Euz. II., 1959. Ix WITNESS WHEREOF the execution of the parties hereto on the day and year first hereinbefore written. The Seal of BRISBANE CITY COUNCIL was hereunto affixed this second day of October, 1959, by me JAMES CAMERON SLAUGHTER, I being the proper officer to affix such seal, in the presence of: J. C. SLAUGHTER Town Clerk. CHAS. ADRIAN A Justice of the Peace. GIVEN under the Common Seal of PAULS ICE CREAM & MILK LTD. by the authority of the Board under the hands of EDWARD STOKES one of the Directors thereof and OSWALD CHARLES HAMBLETON SMITH the Secretary thereof in the presence of: T. J. ALDERDICE, J.P. (L.s.) E. STOKES Director. 0. C. H. SMITH Secretary.