THE CITY of BRISBANE (FLOOD MITIGATION WORKS APPROVAL) ACT of 1952 1 Eliz

THE CITY OF BRISBANE (FLOOD MITIGATION WORKS APPROVAL) ACT of 1952 1 Eliz. 2 No. 29

An Act to Authorise Brisbane City Council to Carry Out Works for the Mitigation of Flooding by Creeks within the Area of the City of Brisbane, and the Reclamation of Tidal Lands Adjacent to those Creeks; to Approve of Certain Works as aforesaid already Carried Out in respect of Breakfast Creek; and for other purposes. [Assented to 16 October 1952]

Preamble. WHEREAS following the extensive flooding of Breakfast Creek, a tributary of the Brisbane River, and adjacent lands in the year one thousand nine hundred and thirty-one, a Committee appointed by the Government of Queensland to inquire into the cause of such flooding and the possibility of taking steps to minimise a recurrence of the extensive flooding of such Creek and adjacent lands recommended a Flood Miti gation Scheme for the said Breakfast Creek: AND WHEREAS the said Flood Mitigation Scheme provided for the construction of a regulating darn on the said Breakfast Creek, the im proving of the course of Breakfast Creek below such Darn embracing the deepening, widening, and straightening of the course of the said Breakfast Creek between its junction with the Brisbane River and the bridge known as Normanby Bridge, and the consequential reclamation of tidal lands comprised in the parts of the original course of the said Creek eliminated by such works: AND WHEREAS certain works were carried out for the said Flood Mitigation Scheme in deepening, widening, and straightening the course of the said Breakfast Creek, and reclaiming the tidal lands in the elimin ated parts of the original course of that Creek, by the Brisbane City Council and later by the Co-ordinator-General of Public Works, during the period commenced on the first day of March, one thousand nine hundred and thirty-two, and ended on the twenty-eighth day of February, one thousand nine hundred and forty-two: AND WHEREAS the Brisbane City Council has, subsequent to that period, carried out further works in reclaiming the said tidal lands: AND WHEREAS it is desirable to approve of the carrying out of all such works and to set all doubts at rest as to the powers of the Brisbane City Council and the Co-ordinator-General of Public Works in respect thereof and as to other matters consequent thereon or relating thereto: AND WHEREAS for the improvement of the City of Brisbane it is further desirable to make provision for authorising the carrying out of works for the mitigation of flooding by other creeks within the Area of the City of Brisbane and the reclamation of tidal lands adjacent to those creeks: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queens land in Parliament assembled, and by the authority of the same, as foIlows:- 82 BRISBANE Vol. 3

1. Short title. This Act may be cited as "The City of Brisbane (Flood Mitigation Works Approval) Act of 1952."

2. Definitions. In this Act, unless the context otherwise indicates or requires, the following terms shall have the meanings respectively assigned to them, that is to say:- "Constructed works"-Any and every work within the meaning of the definition "works" in this section- (a) For any purpose of or connected with the Flood Mitigation Scheme for Breakfast Creek recommended by the Com mittee appointed by the Government of this State to inquire into the causes of the extensive flooding of that creek and the lands adjacent thereto in the year one thousand nine hundred and thirty-one and the possibility of taking steps to minimise a recurrence of that extensive flooding; and (b) Carried out in respect of that creek by Brisbane City Coun cil or by the Co-ordinator-General of Public Works during the period commenced on the first day of March, one thousand nine hundred and thirty-two, and ended on the twenty-eighth day of February, one thousand nine hundred and forty-two. In respect of Breakfast Creek, the term also includes any and every work within the meaning of the definition "works" in this section carried out by Brisbane City Council between the twenty-eighth day of February, one thousand nine hundred and forty-two and the passing of this Act or in the course of being carried out by Brisbane City Council at the passing of this Act. "Creek"-Any and every watercourse or stream in which water flows in a natural channel either permanently, intermittently, or occasionally and which flows into the Brisbane River within the Area of the City of Brisbane and includes that watercourse at every place where it is subject to tidal influence but does not include the Brisbane River. "Marine Board" or "Board"-The Marine Board constituted under "The Navigation Acts, 1876 to 1950." "Works"-Any and every work for any purpose of, or in con nection with, or in relation to- (a) Straightening the course or any part or portion of the course of a creek; (b) Diverting the flow of waters in a creek from the natural channel, or any part or portion of the natural channel therefor to an artificial channel; (c) Deepening, or widening, or deepening and widening the natural channel, or any part of the natural channel, of a creek; (d) Otherwise howsoever regulating, or controlling or regulating and controlling the flow of water and in particular of flood water in any creek; (e) The reclamation or improvement otherwise of land within the area of the City of Brisbane which is adjacent to a creek and subject therefrom to tidal influence; (FLOOD MITIGATION ETC.) ACT OF 1952 ss. 1-5 83

(f) The reclamation or improvement otherwise of land com prising the bed and banks of any natural channel, or any part or portion of the natural channel of a creek from which the flow of water has been permanently diverted; and any and every other work whatsoever which being deemed by the Governor in Council necessary or desirable for the improve ment of the City of Brisbane is authorised by him to be carried out in or in relation to a creek or on or in relation to land adjacent to a creek and subject therefrom to tidal in fluence. Act referred to: Navigation Acts, 1876 to 1950, see now Queensland Marine Acts, 1958 to 1963, title SHIPPING.

3. Carrying out of certain works validated. It is hereby declared- (a) That Brisbane City Council always was empowered to carry out any and every constructed work carried out by that Council to the same extent as if the carrying out of that work had been a function of Local Government authorised to be carried out by that Council under "The Local Government Acts, 1936 to 1951," and "The City of Brisbane Acts, 1924 to 1951"; and (b) That the Co-ordinator-General always was empowered and authorised to carry out any constructed work carried out by him to the same extent as if that work had been "works" within the meaning of "The State Development and Public Works Organisation Acts, 1938 to 1951," authorised by the Governor in Council under those last-mentioned Acts to be carried out by the said Co-ordinator-General, and the power and authority of the said Council and Co-ordinator-General to carry out any and every constructed work carried out by it or him respectively, and any and every act, matter or thing done or executed or step taken by it or him in, or for any purpose of or connected with, the carrying out of any constructed work carried out by it or him respectively is hereby validated, ratified, and confirmed. Acts referred to: Local Government Acts, 1936 to 1963, see title LOCAL AUTHORITIES. State Development and Public Works Organisation Acts, 1938 to 1958, see title WORKS. 4. Brisbane City Council empowered to maintain, etc., certain works. Brisbane City Council is, and it is hereby declared always was, hereby empowered to maintain, protect and renew any and every constructed works to the same extent as if the maintenance, protection and renewal of that work were a function of Local Government authorised to be carried out by that Council under "The Local Government Acts, 1936 to 1951," and "The City of Brisbane Acts, 1924 to 1951". Act referred to: Local Government Acts, 1936 to 1963, see title LOCAL AUTHORITIES. 5. Carrying out of works by Brisbane City Council. (1) Upon application by Brisbane City Council, the Governor in Council may at any time and from time to time by Order in Council published in the Gazette approve of the carrying out by Brisbane City Council of any work within the meaning of the definition "works" in this Act. 84 BRISBANE Vol. 3

Every such approval may be subject to all such terms, provisions, conditions and stipulations as are fixed by the Governor in Council and set out in the Order in Council in question. Any such term, provision, condition, or stipulation may be revoked, amended, altered or otherwise modified by a further Order in Councilor any term, provision, condition or stipulation to which such an approval is subject may be fixed by the Governor in Council by a separate or further Order in Council. (2) Every application as aforesaid shall contain or be accompanied by full and complete information with respect to the work to which that application relates and the said Council shall at the request of the Governor in Council furnish to him all such further or other information and par ticulars with respect to that work as he may require. (3) Brisbane City Council may, subject to and in accordance with the approval (including any and every term, provision, condition, or stipulation set out in the Order in Council granting the approval or in a separate or further Order in Council) carry out any and every work within the meaning of the definition "works" in this Act, and may also do and execute any and every act, matter or thing and take any and every step necessary or convenient to be done, executed or taken for any purpose of, or connected with the carrying out of that work to the same extent as if the carrying out of that work, or the doing, executing, or taking of that act, matter, thing, or step, as the case may be, were a function of Local Government authorised by "The Local Government Acts, 1936 to 1951," and "The City of Brisbane Acts, 1924 to 1951." Act referred to: Local Government Acts, 1936 to 1963, see title LOCAL AUTHORITIES. 6. Limit of actions in respect of works. (1) Save as provided under sub sections two and three of this section no action, indictment, information, or other proceeding shall be commenced, presented, prosecuted, or main tained against the Government of Queensland, the Board, Brisbane City Council, the Co-ordinator-General of Public Works, any contractor with the said Council, or with the said Co-ordinator-General, or any other person whomsoever for or in respect of- (a) The carrying out, undertaking, maintenance, protection or renewal of any work within the meaning of the definition "works" in this Act; (b) The carrying out, undertaking, maintenance, protection or re newal at any time before the passing of this Act of any work within the meaning of the definition "constructed works" in this Act or the maintenance, protection or renewal at any time, whether before, on or after the passing of this Act of any work specified in this paragraph (b); (c) The doing, executing or taking of any act, matter, thing or step done, executed or taken for any purpose of or connected with the carrying out, undertaking, maintenance, protection or renewal of any work within the meaning of the definition "works" in this Act and whether, in the case of any work within the meaning of the definition "constructed works" in this Act, done, executed or taken before, on or after the passing of this Act; (d) Any alleged destruction or diminution of the navigation of any creek, or any part or portion of a creek, or any alleged (FLOOD MITIGATION ETC.) ACT OF 1952 ss. 5-6 85

deprivation of or interference with any riparian right, or right of access to any creek or any part or portion of a creek, or any other damage, loss or expense whatsoever occasioned or alleged to be occasioned, or in anywise what soever arising or alleged to have arisen from the carrying out, undertaking, maintenance, protection or renewal of any work within the meaning of the definition "works" in this Act or the doing, executing or taking of any act, matter, thing or step specified in paragraph (C) of this subsection and whether, in the case of any work within the meaning of the definition "constructed works" in this Act, any destruction, diminution, deprivation, interference, other damage, loss or expense whatsoever hereinbefore referred to in this paragraph (d) shall have been or shall be occasioned before, on or after the passing of this Act. (2) Subsection one of this section shall be read and shall apply so that- (a) In respect of the carrying out, undertaking, maintenance, pro tection and renewal of any and every work within the mean ing of the definition "works" in this Act and the doing, exe cuting or taking of any act, matter, thing or step done, executed or taken for any purpose of or connected with the carrying out, undertaking, maintenance, protection or renewal of that work and whether, in the case of any work within the meaning of the definition "constructed works" in this section that work shall have been or shall be carried out, or that act, matter, thing or step shall have been or shall be done, executed or taken before, on or after the passing of this Act, Brisbane City Council shall have, and it is hereby declared always had, the immunities and shall be subject, and it is hereby declared always was subject, to the duties, obligations and liabilities conferred or imposed upon that Council as a Local Authority under "The Local Government Acts, 1936 to 1951," and "The City of Brisbane Acts, 1924 to 1951," to the same extent as if the carrying out, undertaking, maintenance, protection, renewal or any act, matter, thing or step done, executed or taken for any purpose of, or connected with the carrying out, undertaking, maintenance, protection or renewal of that work, as the case may be, were authorised by "The Local Govern ment Acts, 1936 to 1951," and "The City of Brisbane Acts, 1924 to 1951"; and (b) In respect of lands and easements over land which shall have been or shall be taken before, on or after the passing of this Act by Brisbane City Council or by the Co-ordinator-General of Public Works for or in respect of the carrying out, under taking, maintenance, protection and renewal of any work within the meaning of the definition "works" or the definition "con structed works" in this Act, no provision of the said subsection one shall limit, prejudice or otherwise affect any right, claim or remedy had by any person for compensation, in relation to Brisbane City Council, under "The Public Works Land Resumption Acts, 1906 to 1951," or, in relation to the said Co-ordinator-General, under those lastmentioned Acts as modi fied by "The State Development and Public Works Organi sation Acts, 1938 to 1951." 86 BRISBANE Vol. 3

(3) Where waters flowing in any creek shall be diverted or, in the case of Breakfast Creek, shall have been diverted before the passing of this Act from the natural channel, or part or portion of the natural channel, therefor into an artificial channel by or by means of works or constructed works then neither Brisbane City Council nor, in respect of Breakfast Creek, the said Co-ordinator-General shall be, or ever have been, legally liable for damages, or for compensation or otherwise how ever for or in respect of any omission in relation to that artificial channel of which it or he shall be guilty or, in the case of Breakfast Creek, shall have been guilty before the passing of this Act unless Brisbane City Councilor, as the case may be, the said Co-ordinator-General would be subject to the legal liability in question were it or he guilty of the omission concerned in relation to the natural channel or some part or portion of the natural channel of that creek. Acts referred to: Local Government Acts, 1936 to 1963, see title LOCAL AUTHORITIES. Public Works Land Resumption Acts, 1906 to 1955, see title WORKS. State Development and Public Works Organisation Acts, 1938 to 1958, see title WORKS. 7. Reclaimed lands. (1) Notwithstanding any other Act, or law, or rule of law, this section shall apply to and with respect to all lands situated within the Area of the City of Brisbane and subject to tidal influence from any creek or comprising the natural channel of any creek, or any part or portion of the natural channel of a creek. (2) Any land to which this section applies which shall have been or shall be reclaimed, whether before, on, or after the passing of this Act, by means of constructed works or works shall be and be deemed to be Crown land and, subject to this section, may be dealt with accordingly under "The Land Acts, 1910 to 1951." (3) This section shall also apply to and with respect to land com prising any road, or any part or portion of a road which shall have been closed or shall be closed, whether before, on or after the passing of this Act, for the purposes of any constructed works or works, and that land shall be and be deemed to be Crown land and, subject to this section, may be dealt with accordingly under "The Land Acts, 1910 to 1951." (4) The Governor in Council may, in the name of Her Majesty, grant in fee-simple or demise in perpetuity or for a term of years any land which, by virtue of this section, is Crown land or he may reserve any such land for public purposes, or grant it in trust to Brisbane City Council, or deal with it otherwise as he deems fit under "The Land Acts, 1910 to 1951." (5) Section one hundred and seventy-five of "The Land Acts, 1910 to 1951," shall, subject to any necessary adaptations, apply and extend so that where any land which is Crown land by virtue of this section, lies between a creek, or any part or portion of a creek and any other land which was bounded by that creek or that part or portion of a creek prior to the carrying out or undertaking of constructed works or works then under subject to and in accordance with the provisions of the said section one hundred and seventy-five the Governor in Council may- (a) Sell and grant; or (b) Issue a Perpetual Town Lease, a Perpetual Suburban Lease, or a Perpetual Country Lease, without competition to the holder or holders of that other land. (FLOOD MITIGATION ETC.) A(:T OF 1952 ss. 6-8 87

(6) This section shall be read and construed with "The Land Acts, 1910 to 1951," and the provisions of those Acts shall apply to and witli respect to grants and demises of lands in pursuance of this section, as if those grants or demises were in pursuance of "The Land Acts, 1910 to ;'951," excepting that- (i) To the extent to which any provision of "The Land Acts, 1910 to 1951," is inconsistent with an express provision of this section, it shall not so apply; and (ii) All coal, petroleum, helium, and minerals are hereby expressly declared to remain the property of the Crown. Act referred t'0: See now Land Acts, 1962 t'0 1963, title LAND. S. Titles to lands affected by works. When and so often as the carrying out, undertaking, maintenance, protection or renewal of works or con structed works or the opening or closing of any road for any purpose of or connected with the carrying out, undertaking, maintenance, protection or renewal of any works or constructed works, shall have affected or shall affect, whether before, on or after the passing of this Act, any land so that the description of that land comprised in the existing instrument of title under the Crown therefor has ceased to be a convenient description of that land or of so much thereof as the holder or holders thereof shall have remained or shall remain entitled to, then the holder or holders of that land may surrender to the Crown his or their subsisting instrument of title to that land and upon that surrender a like fresh instrument of title shall be issued to him or them comprising the land to which he or they remain entitled.