Church of England Act 1875 (Victoria)

The Church of England Act 1875 is a short, targeted statutory instrument that accomplishes three mechanical changes. First, it vests two specified parcels of land (set out in the First and Second Schedules) in five named trustees and their heirs for the estate previously held by the original trustee owners (s 1). Second, it gives those trustees power to sell all or part of those parcels, by private sale or public auction, in one lot or in lots, on such terms as they or he may think fit, subject to a written consent requirement from the Bishop of the Diocese of Melbourne (s 2). Third, it prescribes how sale proceeds and certain sum of money already held on trust (£552 9s 4d plus accrued interest) must be applied: the net proceeds of sale may, subject to the Bishop’s written consent, be applied either to purchase a site for a church and Sunday‑school for the Church of England parish of Prahran or to the erection of a church and Sunday‑school on such a purchased or retained site (ss 4-6). The Act also provides that purchasers who pay to the trustees are given effective discharges (s 3) and that lands purchased with sale proceeds must themselves be conveyed to the trustees as a site held on specified church trusts (s 5). Finally, the trustees’ tenure and succession are to be governed by the then‑operative laws of the Church Assembly of the Diocese of Melbourne dealing with trusteeship of churches or parsonages (s 7).

The text effects an immediate transfer of ownership rights by statute (s 1). It removes prior trust obligations attaching to the First Schedule land by declaring it to be held “until sale … in trust for the purpose of providing a church and Sunday‑school … and discharged of all other trusts” (s 5). It creates express statutory authority to apply the existing cash sum identified in the preamble and s 6, together with net sale proceeds, exclusively for church site acquisition and building. The operative dates and formalities are recorded in the Endnotes: the Act was assented to and commenced on 19 October 1875 (Endnotes 1). The Endnotes further state that, as at publication, there are no subsequent amendments (Endnotes 2-3). The Schedules set out the precise parcels by historical metes and bounds (First Schedule and Second Schedule).

Version No. 002

Church of England Act 1875

No. 511 of 1875

Version as at
1 June 2019

table of provisions

Section Page

1 Lands vested in Trustees 7

2 Trustees to have power to sell as they may think fit 7

3 Receipts of Trustees to discharge purchasers 8

4 Application of sale moneys 8

5 Purchased and unsold lands to be conveyed in trust for church purposes 8

6 Moneys vested in trust to be expended in erecting church buildings 9

7 Trustees to hold office subject to laws of Church Assembly 9

The First Schedule referred to 10

The Second Schedule 11

Endnotes 12

1 General information 12

2 Table of Amendments 14

3 Amendments Not in Operation 15

4 Explanatory details 16

Version No. 002

Church of England Act 1875

No. 511 of 1875

Version as at
1 June 2019

An Act to authorize the sale of Trust Lands and the application of the proceeds and of Trust Moneys in the purchase of a Site and building thereon a Church for the Members of the Church of England in the Parish of Prahran.

Preamble

WHEREAS by an indenture dated the sixteenth day of May One thousand eight hundred and fifty-four and made between William Hague of the one part and John Matthew Smith Thomas Waldron and Charles Frouton of the other part in consideration of the sum of six hundred pounds the said William Hague purporting to be seized in fee of the land described in the First Schedule hereto granted the same unto and to the use of the said John Matthew Smith Thomas Waldron and Charles Frouton and their heirs upon the trusts expressed to be set forth in a declaration of trust bearing even date with the same indenture:

AND WHEREAS by an indenture dated the day of February One thousand eight hundred and fifty-seven and made between the said John Matthew Smith and Thomas Waldron of the one part and the said John Matthew Smith Alexander George Dumas and John Dudley of the other part after reciting the hereinbefore recited indenture and that there was in fact no such declaration of trust as that referred to in the same indenture, but that it had been intended by an indenture of even date with the same indenture to declare such trusts of the land comprised therein as are declared by the indenture now in recital. And after reciting that since the date of the hereinbefore recited indenture a building had been erected upon the said land for the education of poor children of the parish of Prahran by means of contributions from the Denominational School Board and from private individuals and after reciting that the said Charles Frouton had died and that the said Thomas Waldron desired to retire from the trust and that the said Alexander George Dumas and John Dudley had been appointed trustees in the place of the said Charles Frouton and Thomas Waldron by the persons contributing to the erection and maintenance of the said school building the said John Matthew Smith and Thomas Waldron did by the indenture now in recital grant the said land unto the said Alexander George Dumas and John Dudley and their heirs to the use of the said John Matthew Smith Alexander George Dumas and John Dudley their heirs and assigns to the intent that the same might be used for the education of poor children of the parish of Prahran in the principles of the Christian religion according to the doctrines and discipline of the United Church of England and Ireland and for a house or houses for the master or mistress of such school such school to be subject to the rules and regulations of the said Denominational School Board established in the colony of Victoria for the temporal regulation and inspection of schools commonly called denominational schools in the colony of Victoria:

AND WHEREAS by an indenture dated the day of One thousand eight hundred and seventy endorsed upon the said indenture of the day of February One thousand eight hundred and fifty-seven and made between the said John Matthew Smith Alexander George Dumas and John Dudley of the first part Thomas Turner a'Beckett of the second part and Charles Perry Bishop of Melbourne the said John Matthew Smith and the said Thomas Turner a'Beckett of the third part after reciting that the said Alexander George Dumas and John Dudley desired to act no longer in the trusts of the said indenture of the day of February One thousand eight hundred and fifty-seven and that the said Charles Perry and Thomas Turner a'Beckett were willing to act in the said trusts upon having the said land vested in them jointly with the said John Matthew Smith upon the trusts of the same indenture the said John Matthew Smith Alexander George Dumas and John Dudley granted the said land to the said Thomas Turner a'Beckett and his heirs to the use of the said Charles Perry John Matthew Smith and Thomas Turner a'Beckett their heirs and assigns upon the trusts of the same indenture:

AND WHEREAS by an indenture dated the eleventh day of December One thousand eight hundred and sixty-one and made between Thomas Monahan of the first part Phillip Darvell of the second part and John Branscombe Crews Alexander George Dumas Edwin Nott Robert Smith and Augustus Frederick White of the third part after reciting that the said Philip Darvell was entitled in fee to the land firstly and secondly described in the second schedule hereto subject to a mortgage of the land therein firstly described with other lands to the said Thomas Monahan and that the said Philip Darvell had agreed to sell the said lands firstly and secondly described in the said second schedule to the said John Branscombe Crews Alexander George Dumas Edwin Nott Robert Smith and Augustus Frederick White and that the said Thomas Monahan being satisfied with the other mortgaged land as security had agreed to release the said land firstly described in the Second Schedule in consideration of One hundred and seventy pounds paid to the said Philip Darvell the said Thomas Monahan and Philip Darvell conveyed the said land firstly described in the Second Schedule and in consideration of thirty pounds paid to him he the said Philip Darvell conveyed the said land secondly described in the same Schedule to the use of the said John Branscombe Crews Alexander George Dumas Edwin Nott Robert Smith and Augustus Frederick White their heirs and assigns upon trust to be applied as a site for a church for divine worship according to the rites principles laws and regulations of the United Church of England and Ireland in Victoria and for the maintenance thereof:

AND WHEREAS by deed dated the day of March One thousand eight hundred and sixty-nine endorsed on the said indenture of the eleventh day of December One thousand eight hundred and sixty-one and made between the said John Branscombe Crews Alexander George Dumas Edwin Nott Robert Smith and Augustus Frederick White of the one part and Thomas Broadbent John Owen and William Vann of the other part after reciting that the said John Branscombe Crews Alexander George Dumas Edwin Nott Robert Smith and Augustus Frederick White had resigned the office of trustees of the lands described in the said Second Schedule and that the said Thomas Broadbent John Owen and William Vann had been elected trustees thereof the said John Branscombe Crews Alexander George Dumas Edwin Nott Robert Smith and Augustus Frederick White granted the lands described in the said Second Schedule unto and to the use of the said Thomas Broadbent John Owen and William Vann and their heirs upon the trusts of the said indenture of the eleventh day of December One thousand eight hundred and sixty-one.

AND WHEREAS by a deed dated the day of August One thousand eight hundred and sixty-nine also endorsed upon the said indenture of the eleventh day of December One thousand eight hundred and sixty-one after reciting that the said William Vann had resigned his office of trustee of the lands described in the said Second Schedule and that John Dickson Loch had been appointed a trustee in his stead and that Augustus Frederick White and John Fulford had been appointed additional trustees thereof the said Thomas Broadbent John Owen and William Vann granted the lands mentioned in the Second Schedule unto the said John Dickson Loch Augustus Frederick White and John Fulford and their heirs to the use of the said Thomas Broadbent John Owen John Dickson Loch Augustus Frederick White and John Fulford and their heirs upon the trusts of the said indenture of the eleventh day of December One thousand eight hundred and sixty-one:

AND WHEREAS the said Augustus Frederick White has departed this life and William Hartnett has been elected a trustee in his stead and has accepted the office of trustee accordingly:

AND WHEREAS the said John Fulford being about to leave the colony of Victoria with the view of permanently residing in England has resigned his office of trustee:

AND WHEREAS the sum of Five hundred and fifty-two pounds nine shillings and four pence which has been contributed by several of the inhabitants of the parish of Prahran for the purpose of building a church for the conduct of divine worship according to the rites of the Church of England in Victoria upon the lands described in the Second Schedule hereto or upon some other site in the parish of Prahran is with a sum which has accrued as interest on a bank deposit thereof now in the hands of the said Thomas Broadbent John Owen John Dickson Loch and William Hartnett who hold the same in trust for that purpose:

AND WHEREAS the Denominational School Board of the colony of Victoria no longer exists and under the present system of National education it has been found unnecessary and impracticable to maintain a school for the education of poor children in the parish of Prahran upon the land described in the First Schedule hereto and the buildings thereon have been used for many years as a church for the conduct of divine worship according to the rites of the Church of England in Victoria and of a Sunday-school in connection therewith:

AND WHEREAS the land described in the First Schedule hereto and the land described in the Second Schedule hereto are within a distance of about half-a-mile from each other and it would not be desirable to conduct the services of the Church of England in buildings upon both the said lands and it is believed that a more convenient site for the erection of a church than the land described in either of the said Schedules might be purchased with the proceeds of the sale thereof or of part thereof:

AND WHEREAS it would be for the advantage of the members of the Church of England in the parish of Prahran to obtain power to sell the lands described in both the said Schedules and to expend the proceeds of sale in the purchase of another site and in building a church thereon and a Sunday-school in connection therewith or instead of purchasing a new site to build a church upon any part of the land described in the Schedules hereto and to sell the remainder and also power to apply the said sum of Five hundred and fifty-two pounds nine shillings and fourpence and the interest accrued or that shall accrue thereon together with the proceeds of the sale of any of the said lands in the erection of a church and Sunday-school in connection therewith upon the site finally determined on and for the purposes aforesaid it is desired to vest the lands described in the Schedules hereto and also the said sum of Five hundred and fifty-two pounds nine shillings and fourpence with the interest hereinbefore mentioned in the said Thomas Turner a'Beckett Thomas Broadbent William Hartnett and John Owen and Barnabas Shaw Walker of Prahran aforesaid clerk in holy orders who have been approved as trustees thereof by the Vicar-General of the Diocese of Melbourne acting on behalf of the Bishop during his absence therefrom and have consented to act as trustees thereof:

BE IT THEREFORE ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows that is to say:

1 Lands vested in Trustees

The land described in the first schedule hereto shall be and the same is hereby vested in the said Thomas Turner a'Beckett Thomas Broadbent William Hartnett John Owen and Barnabas Shaw Walker (hereinafter called the Trustees) and their heirs for all the estate of the said Charles Perry John Matthew Smith and Thomas Turner a'Beckett therein and the lands described in the Second Schedule hereto shall be and the same are hereby vested in the Trustees and their heirs for all the estate of the said Thomas Broadbent John Owen John Dickson Loch and John Fulford therein.

2 Trustees to have power to sell as they may think fit

The Trustees or the survivors or survivor of them may with the consent in writing of the Bishop for the time being of the Diocese of Melbourne or of the person administering the affairs of the Diocese during the absence of the Bishop or the vacancy of the See sell all or any part of the lands described in the said Schedules by private sale or public auction in one lot or in lots from time to time and upon such terms and conditions as to title credit for unpaid purchase money and otherwise as they or he may think fit and may lay out and reserve from sale any part of the said lands for a road and may buy in or rescind or vary any contract for sale without being responsible for any consequent loss.

3 Receipts of Trustees to discharge purchasers

The receipts of the Trustees or of the survivors or survivor of them for the purchase money of any of the said lands shall be effectual discharges to the purchaser thereof who shall be in no manner concerned to see to the application of the purchase money.

4 Application of sale moneys

The Trustees or the survivors or survivor of them shall at their or his discretion but subject nevertheless to the consent in writing hereinbefore mentioned apply the net proceeds of sales hereby authorized in or towards one or both of the following objects:—

The purchase in fee of a convenient site for a church and a Sunday-school in connection therewith for the use of the members of the Church of England in the Parish of Prahran.

The erection of a church and of a Sunday-school in connection therewith upon the site so to be purchased or upon any part of the lands described in the Schedules hereto.

5 Purchased and unsold lands to be conveyed in trust for church purposes

Any land which may be purchased with the said moneys shall be conveyed to the Trustees as a site for a church for the conduct of divine worship according to the rites of the Church of England in Victoria and a Sunday-school in connection therewith and the lands described in the First Schedule shall until sale be held in trust for the purpose of providing a church and Sunday-school in connection therewith for the use of the members of the Church of England in the Parish of Prahran and discharged of all other trusts.

6 Moneys vested in trust to be expended in erecting church buildings

The said sum of Five hundred and fifty-two pounds nine shillings and fourpence and interest as aforesaid shall vest in the Trustees and their executors or administrators and they and the survivors or survivor of them shall hold the same in trust to apply the same in or towards the erection of the church to be built upon the site so to be purchased and of a Sunday-school in connection therewith or upon the site which may be reserved from the lands described in the said Schedules.

7 Trustees to hold office subject to laws of Church Assembly

The Trustees hereinbefore named their successors and assigns shall hold office subject to the laws of the Church Assembly of the Diocese of Melbourne in force for the time being relating to the office of Trustee of churches or parsonages belonging to the Church of England in the Colony of Victoria.

The First Schedule referred to

All that piece or parcel of land situate lying and being in the parish of Prahran in the county of Bourke and colony of Victoria part of portion numbered 41 of said parish commencing at a point one hundred and eighteen feet distant from the east corner of said portion number 41 bounded on the east by a Government road one chain wide in a line bearing north one hundred feet on the north by other part of said portion number 41 in a line at right angles to the last line bearing west one hundred and eight feet, on the west by other part of said portion number 41 in a line bearing south one hundred feet and on the south by other part of said portion number 41 in a line bearing easterly one hundred and eight feet home to the commencing point.

The Second Schedule

First Part

All that piece of land situated in and being part of suburban allotment number 42 in the said parish of Prahran, commencing at a point on the south side of Commercial road which is distant two hundred and forty feet or thereabouts east from the north-west corner of said suburban allotment and bounded on the north by Commercial road bearing east from said commencing point ninety feet on the east by a line bearing south one hundred feet then on the south by a line bearing west thirty feet then on the west by a line bearing north ten feet then on the south by other land now or late the property of Philip Darvell in a line at right angles to the last line bearing west sixty feet, and on the west by Clarence street forty feet wide reserved by the said Philip Darvell out of the said allotment in a line at right angles to the last line bearing north ninety feet to the commencing point.

Second Part

All that piece of land situate in the said parish of Prahran being other part of said suburban allotment number 42 bounded on the west by Clarence street forty feet wide reserved as aforesaid commencing at a point on the east side of the said street distant ninety feet south from a point on the south side of Commercial road aforesaid which said last mentioned point is again distant two hundred and forty feet or thereabouts east from the north-west corner of said suburban allotment bearing south from said commencing point along Clarence street aforesaid forty-one feet six inches on the south by other part of said suburban allotment in a line at right angles to the last line bearing east ninety feet on the east by a line at right angles to the last line bearing north thirty-one feet six inches on the north by the land described in the first part of this Schedule bearing west thirty feet again on the east by a line bearing north ten feet and again on the north by a line bearing west sixty feet to the commencing point.

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Church of England Act 1875 was assented to on 19 October 1875 and came into operation on 19 October 1875.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

There are no amendments made to the Church of England Act 1875 by Acts and subordinate instruments.

3 Amendments Not in Operation

There are no amendments which were Not in Operation at the date of this publication.

4 Explanatory details

No entries at date of publication.

1 Church of England Act 1875

Version No. 002

Church of England Act 1875

No. 511 of 1875

Version as at
1 June 2019

table of provisions

Section Page

1 Lands vested in Trustees 7

2 Trustees to have power to sell as they may think fit 7

3 Receipts of Trustees to discharge purchasers 8

4 Application of sale moneys 8

5 Purchased and unsold lands to be conveyed in trust for church purposes 8

6 Moneys vested in trust to be expended in erecting church buildings 9

7 Trustees to hold office subject to laws of Church Assembly 9

The First Schedule referred to 10

The Second Schedule 11

Endnotes 12

1 General information 12

2 Table of Amendments 14

3 Amendments Not in Operation 15

4 Explanatory details 16

Version No. 002

Church of England Act 1875

No. 511 of 1875

Version as at
1 June 2019

Preamble

The Act rests on a small set of legal concepts and statutory mechanics that interact:

Statutory vesting of land and estates (s 1). The legislature makes a direct vesting of freehold estates in specified persons and their heirs for the estates of prior named owners. This is a conveyancing device effected by statute rather than by private deed.
Trustee power of sale and discretion (s 2). The trustees have broad power to sell any or all of the land described in the Schedules by private sale or public auction, in any number of lots, and on terms as to title, credit for unpaid purchase money and otherwise as they or he think fit. The provision authorises reservation of parts for roads and the ability to buy in, rescind or vary contracts for sale “without being responsible for any consequent loss” (s 2).
Episcopal consent as a gating condition (s 2). Sales must be carried out with the consent in writing of the Bishop of the Diocese of Melbourne or the person administering the diocese in the Bishop’s absence or where the See is vacant (s 2). The Act therefore imposes a pre‑sale oversight or veto mechanism belonging to diocesan authority.
Purchaser discharge (s 3). A purchaser who pays the trustees (or survivor trustees) is given an “effectual discharge” for the purchase money; the purchaser “shall be in no manner concerned to see to the application of the purchase money.” That relocates the risk of proper application of proceeds away from purchasers.
Prescribed application of net proceeds (s 4). Net sale proceeds are to be applied at the trustees’ discretion but only towards the purchase of a convenient site for a church and Sunday‑school for the Church of England in Prahran and/or the erection of a church and Sunday‑school either on that purchased site or on part of the Schedules’ lands.
Re‑vesting and clarification of purpose for purchased land and retained land (s 5). Any land purchased with the sale moneys is to be conveyed to the trustees as a site for church worship according to Church of England rites and a Sunday‑school. The First Schedule land is until sale to be held for that purpose and discharged of all other trusts.
Dedicated fund vested and earmarked for building (s 6). The specific historic cash sum stated in the preamble (£552 9s 4d) plus interest is vested in the trustees and must be applied towards erecting the church and Sunday‑school on the site to be acquired or reserved.
Subordination to internal church law (s 7). Trustees and successors are to hold office subject to the laws of the Church Assembly of the Diocese of Melbourne “in force for the time being” relating to trusteeship of churches or parsonages.
Detailed property description (Schedules). The First and Second Schedules use historical metes and bounds to identify the lands, which is a practical specification for conveyancing and for any modern title search and valuation.
Non‑amendment and interpretative information (Endnotes). The Endnotes attach operational detail: the assent and commencement date, and that there have been no amendments to the Act. They also point to the Interpretation of Legislation Act 1984 and its effects on headings and other interpretive matters, which may be relevant to modern statutory reading.

Taken together, these concepts create a statutory trust regime with delegated discretion to trustees, an episcopal consent constraint, purchaser protections, and a positive direction for reallocation of assets into church infrastructure. The Act does not set out procedural steps for sale beyond the need for the Bishop’s written consent, nor does it specify detailed obligations of accounting, timing, or consultation with parishioners beyond the trustees’ stated discretion. The Schedules anchor the statute to concrete real property.

The Act identifies a narrow set of actors and affected interests; the effects are largely local and property‑specific.

Primary affected persons and entities (express in the Act)

The named trustees: Thomas Turner a’Beckett, Thomas Broadbent, William Hartnett, John Owen and Barnabas Shaw Walker (and their survivors, successors and heirs). The statute vests the lands in those specific individuals (s 1). Their successors and assigns are subject to Church Assembly trustee laws (s 7).
The Bishop of the Diocese of Melbourne or the person administering diocesan affairs in the Bishop’s absence. That officer’s written consent is required for sales by the trustees under s 2. The Bishop therefore has an ongoing supervisory role over disposal decisions.
Members of the Church of England in the Parish of Prahran. The Act expressly identifies them as the beneficiaries of the trust purpose: a site, church and Sunday‑school are to be for their use (ss 4-5).
Purchasers of the lands. Buyers who pay purchase money to the trustees receive an “effectual discharge” (s 3) and are not concerned to see to the application of the purchase money. That affects purchaser risk allocation and due diligence priorities.

Other affected parties (implied or consequential)

Holders of prior estate and those with historical trust interests. The Act vests the estates “for all the estate of the said” previous owners (s 1) and discharges the First Schedule land of “all other trusts” until sale (s 5). That changes the legal position of any previously identified trust beneficiaries or trustees referenced in the preamble instruments.
Local property market participants and potential developers. Vesting and power to sell enable the trustees to bring land to the market. While the Act is not a modern planning instrument, sale of land could enable private development or different use consistent with contemporary planning regimes. The statute itself does not set planning controls or permit alternative uses; those remain regulated by other laws.
The Church Assembly of the Diocese of Melbourne. Its rules govern the tenure and succession of trustees (s 7), so diocesan governance structures affect how trustee office is filled and regulated.
The original contributors to the building fund and their successors. The Act vests the identified monetary sum in the trustees to be expended on buildings (s 6). Actual contributors no longer directly control those funds; the trustees hold them on the specified purpose.

Who pays and who chooses

Purchasers pay the purchase money; they get an effective receipt discharge and bear no statutory obligation to monitor the trustees’ application of funds (s 3). Parishioners do not pay under the Act itself, though implementation (erecting a church and Sunday‑school) may require additional funds raised by the trustees or parish. The trustees choose the terms of sale and the application of net proceeds within the permitted objects (ss 2, 4), subject to the Bishop’s written consent for disposal (s 2).

Who decides

Trustees decide on sale timing, method, lotting, terms, and use of proceeds within the statutory objects, exercising broad discretion (ss 2, 4). The Bishop has a formal consent role on sales (s 2). The Church Assembly’s laws determine trustee succession and office governance (s 7). There is no statutory role provided for parishioners, local government, or other third parties in the Act.

In short, the Act primarily affects the named trustees and the local Church of England congregation in Prahran, with purchasers and the Bishop of Melbourne also given defined roles and protections. The scope is geographically and substantively narrow.

Statutory duties and rights under the Act are concentrated and specific. They attach to trustees, purchasers, the Bishop and the beneficiaries. The Act does not purport to establish a comprehensive modern trustee regime; instead it sets out a set of powers, constraints and earmarked purposes.

Trustees: powers and positive duties

Vesting and title holding. Trustees are vested with the lands and the sum of money specifically mentioned. This gives them the legal right to hold, manage and dispose of the property but also an obligation to apply the assets to the act’s specified purposes (s 1; s 6).
Power to sell. Trustees may sell all or any part of the lands described in the Schedules, in one lot or in lots, by private sale or public auction and on terms as they see fit (s 2). That is a broad power to determine sale method, credit terms, title conditions and lotting.
Application of proceeds. Trustees must apply the net proceeds in or towards one or both of the two enumerated objects: purchase of a convenient site for a church and Sunday‑school for Prahran, and erection of a church and Sunday‑school on that site or on any part of the scheduled lands (s 4). The Act frames this as a duty to apply proceeds at their or his discretion but only for those objects.
Holding the dedicated cash sum. Trustees must hold the vested cash sum (£552 9s 4d) plus accrued interest in trust to apply it towards erecting the church and Sunday‑school (s 6). That is an outright earmarking obligation.
Conveyancing obligations for purchased land. Any land bought with the moneys must be conveyed to the trustees as the site for church and Sunday‑school, and lands in the First Schedule are to be held until sale for those purposes and discharged of other trusts (s 5).
Subordination to Church Assembly laws. Trustees and successors must hold office subject to diocesan Church Assembly laws relating to trustees of churches or parsonages then in force (s 7). That imports diocesan governance duties and potential accountability mechanisms into trustee office.

Trustees: rights and protections

Broad discretion and immunity for sale conduct. Under s 2 trustees may buy in, rescind or vary contracts for sale without being responsible for consequent loss. That is a statutory protective buffer against liability for practical sale‑management decisions.
Receipt discharge. Trustees’ receipts for purchase money are effective discharges to purchasers (s 3). That gives trustees the right to receive payment and to rely on statutory protection in dealing with purchasers.

Purchasers: rights and protections

Effectual discharge. A purchaser paying the trustees’ receipt is entitled to an effectual discharge and is not concerned to see to application of the purchase money (s 3). That reduces purchaser risk in relation to beneficial application of funds and simplifies conveyancing.

Bishop: oversight role

Consent power. The Bishop of the Diocese of Melbourne or an authorised administrator must give written consent to any sale (s 2). That creates a veto or oversight right.

Beneficiaries and parishioners: entitlements and limitations

Beneficial objects. The beneficiaries are the members of the Church of England in the Parish of Prahran. The Act gives them the right to have a site and church and Sunday‑school provided out of sale proceeds and the vested fund (ss 4-6). The Act does not create a statutory right to decide where the site is or to control sale particulars; these choices are left to trustees, subject to the Bishop’s consent.

Limitations and omissions in duties

No express modern fiduciary duty statement. The Act does not spell out procedural duties such as accounting cycles, disclosure to parishioners, consultation requirements or timelines for expenditure. It does not set out remedial processes for breach other than the general law that would apply to trustees subject to diocesan laws.
No detailed sale process requirements. Aside from episcopal consent, the Act imposes no statutory process for notice, valuation, competitive tender or parish involvement in sales.

In practice, the Act creates a framework of rights: trustees can act freely to sell and deploy funds, purchasers can rely on receipts, the Bishop can control sales by withholding consent, and parishioners have a governmentally backed expectation that funds and proceeds be applied to church site and building.

The Act contains no express penalties, criminal sanctions or administrative fine regimes. Enforcement mechanisms are therefore limited to civil remedies under trust and property law and to internal diocesan governance referenced in the Act.

Absence of statutory penalties

No penalty provisions. Nowhere in the Act (ss 1-7 or Schedules) is there a specified criminal penalty, pecuniary penalty, or statutory enforcement power tied to non‑compliance with the trustees’ duties or misapplication of funds. The Endnotes do not identify any later amending legislation that would add such penalties (Endnotes 2-3).

Civil enforcement routes

Trust law and equitable remedies. Because the trustees are vested with property and funds to be held in trust and applied for specified church purposes (ss 4-6), beneficiaries (members of the Church of England in Prahran and perhaps original contributors or their successors) would, in principle, be able to pursue civil remedies under the general law of trusts for breach of trust, failure to apply funds appropriately, or misfeasance by trustees. The Act itself does not create or limit those common law or equitable remedies, but the statutory vesting and purpose provide a clear substantive obligation that equity can enforce.
Conveyancing protections limit purchaser recourse concerns. Purchasers receiving receipts under s 3 are statutorily protected; they are discharged and “shall be in no manner concerned to see to the application of the purchase money.” That bar limits claims against purchasers but leaves claims against trustees open.

Internal church discipline and diocesan mechanisms

Church Assembly laws. s 7 makes trustees and successors subject to the laws of the Church Assembly of the Diocese of Melbourne then in force. Those internal laws may provide disciplinary, removal or oversight mechanisms that can be invoked to enforce trustee conduct. The Act does not reproduce those rules; the content and sanctioning powers would be in diocesan instruments external to this Act.

Practical enforcement pathways

Beneficiaries could apply to a court for account, for directions, for appointment or removal of trustees, or for declaration of trust and orders for specific performance of the Act’s objects if trustees act contrary to ss 4-6. The Act’s explicit objects and the vested cash make the trust obligation relatively discrete and legally enforceable by equity.
Challenge to validity of sale without bishop’s written consent. A sale effected without the Bishop’s written consent required by s 2 could be challenged as ultra vires the trustees’ authority under the statute. Because purchasers are protected only where they receive trustees’ receipts, a purchaser who pays in the absence of lawful trustee authority may face risk, although the statute’s s 3 protection applies only to receipts by trustees properly exercising their powers; the robustness of purchaser protection in such a scenario would be a practical litigation question.

Limitations on state enforcement

No state agency oversight. The Act does not establish a public regulator or ministerial enforcement regime; enforcement is via private legal action and internal church governance.

In summary, enforcement is civil and ecclesiastical, not criminal. Remedies and consequences for misbehaviour by trustees will arise through general equitable processes or diocesan rules rather than by a statutory penalty regime embedded in the Act.

The Act operates in a legal context that includes general conveyancing law, trust and equity, diocesan Church Assembly rules and broader statutory interpretation rules. The text refers implicitly and explicitly to several intersections.

Conveyancing and property law

Statutory vesting replaces private conveyance. s 1 effects a statutory vesting of freehold estates in named trustees and their heirs. That interacts with the general law of land registration and conveyance: in modern practice a title search, registration and possibly a re‑conveyance would be necessary to give effect to transfers on the Torrens Register or equivalent modern systems. The Schedules provide metes and bounds which were appropriate in 1875; modern title identification may require a survey and comparison to registered parcels.
Purchaser protections and discharge. s 3 gives purchasers an effectual discharge for purchase money paid to the trustees; this interacts with purchasers’ duties under conveyancing law and reduces purchaser need to probe the beneficial application of funds. The purchaser’s title and ability to register may still be subject to existing statutory registration regimes.

Trust and equitable principles

The Act creates statutory trust obligations for particular objects. General equitable remedies (accounts, injunctions, removal of trustees, tracing of funds) remain available where trustees act contrary to ss 4-6. The statute does not oust equitable jurisdiction.

Ecclesiastical and diocesan law

s 7 makes trustee office subject to the laws of the Church Assembly of the Diocese of Melbourne in force for the time being. That imports a layer of internal regulation that may specify appointment, removal, duties, recordkeeping and discipline. Those diocesan rules are external instruments; their interaction with civil courts can create joint accountability: courts often take account of internal rules where relevant to trustee powers.

Statutory interpretation and modern reading

The Endnotes advise that the Interpretation of Legislation Act 1984 affects headings, examples, punctuation and provision numbering (Endnotes 1). That means modern interpretative defaults may apply when construing the Act today. The Endnotes also record that the Act was assented to and commenced on 19 October 1875 (Endnotes 1).

Planning, local government and development law

The Act does not displace planning controls. Sale of land by trustees may enable third party development, but any subsequent development will be regulated by planning and local government laws current at the time of development, and by any covenants or trust restrictions placed on title when land is sold or retained as church property.

Existing historic instruments and trusts

The preamble recites a chain of deeds and trusts dating from 1854, 1857, 1861, 1869 and earlier instruments. s 1 and s 5 effectively consolidate and simplify those arrangements by vesting the lands in the named trustees and discharging prior trusts insofar as the First Schedule land is concerned (s 5). The Act therefore operates to override or extinguish prior private trust arrangements to the extent stated.

No later amendments recorded

The Endnotes state there are no amendments to the Act (Endnotes 2-3). In other words, interaction with subsequent statutory change is limited to general statutory interpretation rules rather than specific amending provisions.

In sum, the Act operates alongside general conveyancing, trust and ecclesiastical law. It does not create bespoke regulatory interaction with planning regimes or public enforcement bodies, and relies on general legal processes and diocesan rules for governance and enforcement.

The Act’s text and the Endnotes together provide a concise amendment history for this statute as at the version date.

Assent and commencement

The Endnotes record that the Church of England Act 1875 was assented to and came into operation on 19 October 1875 (Endnotes 1). The Act’s operative provisions therefore date from that day.

No recorded amendments

The Endnotes include a Table of Amendments section which states “There are no amendments made to the Church of England Act 1875 by Acts and subordinate instruments” (Endnotes 2). The subsequent section “Amendments Not in Operation” also records “There are no amendments which were Not in Operation at the date of this publication” (Endnotes 3). The Explanatory details section contains no entries (Endnotes 4). The Version information at the head of the printed Act states “Version as at 1 June 2019”, implying that the consolidated text as of that date incorporates no later changes.

Implications of no amendment

The absence of later amending Acts means the statutory mechanics and the named trustees remain as recorded, subject only to the natural progression of successions, deaths and diocesan successor appointment mechanisms recognised under s 7. It also means that any modern administrative or regulatory frameworks affecting trusteeship have not been grafted directly into the Act; rather, the Act stands as a self‑contained vesting and power provision dating from 1875.

Interpretation Act effects

While the Church of England Act 1875 has not been amended, the Endnotes advise that the Interpretation of Legislation Act 1984 affects how the Act should be read in modern form. For instance, headings, examples, punctuation and provision numbers are treated as part of an Act where the ILA provisions apply (Endnotes 1). These are interpretative adjustments rather than amendments to substantive content.

Practical consequences for modern practitioners

The named trustees in s 1 have long since died or been succeeded. The Act contemplates successors and assigns and secures that trustees’ office is governed by diocesan rules (s 7); but the lack of statutory amendment leaves practical succession and administrative updates to non‑statutory instruments and to current diocesan governance processes, and to necessary modern conveyancing to reflect current title holders.

If future change were required

Any alteration of trustees, widening or narrowing of purposes, or change to the consent or sale requirements would require a new statute or an amending Act. Absent that, parties must work with the 1875 text together with diocesan rules and contemporary property law practices.

The printed version and Endnotes of the Act do not record any litigation history. The Endnotes provide legislative metadata (assent date, interpretation act effects, and lack of amendments) but do not identify cases, reported disputes or judicial consideration of the Act. The Act itself names no cases and the text contains no references to judicial interpretation.

Recorded absence of cases

The versioned Act as at 1 June 2019 contains no table or note of cases, and the Endnotes do not list any judicial decisions dealing with the Church of England Act 1875. The Section “Table of Amendments” and “Amendments Not in Operation” are empty as to amendments (Endnotes 2-3), and “Explanatory details” contains nothing (Endnotes 4). Hence there is no recorded litigation history within the source material.

Possible categories of litigation that the Act’s provisions could provoke Although no cases are recorded in the source, the Act’s mechanics make certain types of dispute plausible in principle. The following notes are explanatory and identify the legal faultlines the Act itself creates; they do not assert that litigation occurred, only that these are the faultlines where disputes may arise if parties litigate:

Challenge to a sale for lack of episcopal consent. s 2 requires written consent of the Bishop (or the diocesan administrator). A sale carried out without that consent could be claimed to be ultra vires the trustees’ statutory authority and possibly vulnerable to challenge by beneficiaries seeking to set it aside or obtain compensation.
Allegations of breach of trust in application of proceeds. Because s 4 prescribes limited objects for net sale proceeds, beneficiaries could in theory pursue equitable remedies if trustees expended funds on unauthorised objects or failed to apply funds promptly and for the stated purposes.
Accounting and tracing disputes. Where sale proceeds and the historic cash fund are alleged to have been misapplied, equitable claims for an account or tracing might arise against trustees or successors.
Disputes over identity of successors and trustee appointment. s 7 subjects trustees to Church Assembly rules; disputes about who is properly a trustee, who may exercise the power to sell, or whether diocesan rules were followed could produce litigation seeking directions or declarations.
Disputes involving purchasers who rely on s 3 protections. Although s 3 protects purchasers who pay trustees’ receipts, questions may arise where the trustee’s authority to sell was defective, or where titles have defects. Litigation could involve competing equitable claims and statutory defences.

Practical note on absence of recorded litigation

The absence of recorded litigation in the source may reflect the local and discrete nature of the Act, the willingness of parties to resolve matters informally under diocesan governance, historical settlement of disputes, or the lack of high‑profile disputes that reached reported courts. It also means that modern practitioners cannot rely on judicial gloss from the Act itself and must instead analyse potential disputes against general trust and property law.

For contemporary risk assessment, practitioners should assume that any enforcement or dispute over the Act’s operation would proceed under general court jurisdiction for trusts, property and equitable relief, and would engage diocesan rules where trustee appointment or discipline is in question.

The Act contains several technical features and potential pitfalls that practitioners, trustees, purchasers and parish officers should notice. These are concrete legal mechanics and practical consequences rooted in specific sections.

Bishop’s written consent is mandatory for sales (s 2)

The trustees’ statutory power to sell is expressly subject to the “consent in writing of the Bishop for the time being of the Diocese of Melbourne or of the person administering” the Diocese. A sale executed without that consent risks being ultra vires the trustees’ power and therefore challengeable. The statute does not specify formality requirements for the consent beyond being “in writing” and does not prescribe timing or consultation obligations.

Purchaser protection may reduce purchaser due diligence (s 3)

s 3 states that trustees’ receipts discharge purchasers and that purchasers are “in no manner concerned to see to the application” of purchase money. That reduces purchaser exposure but can lead to misaligned incentives: purchasers may focus solely on title and not on whether funds were lawfully applied or whether the trustee had authority to sell. If a purchaser later faces competing equitable claims, practical complexity may arise even though the statute seeks to protect purchasers.

Trustees can vary or rescind contracts “without being responsible for any consequent loss” (s 2)

That clause limits trustees’ liability for commercial sale management decisions. It may, however, create third‑party risk in transactions where counterparties expect standard vendor warranty and liability positions. Vendors’ ability to rescind without liability may make sales riskier for contracting purchasers or intermediaries and could affect market valuation.

The First Schedule land is “discharged of all other trusts” until sale (s 5)

s 5 declares the First Schedule land held until sale “in trust for the purpose of providing a church and Sunday‑school … and discharged of all other trusts.” Careful attention is required to identify whether other equitable interests, easements, covenants, mortgages or statutory instruments survive; the statute addresses trust rights but does not expressly extinguish third‑party proprietary encumbrances, which may still affect title and the ability to sell.

Schedules use historical metes and bounds,modern title complexity

The Schedules describe land in pre‑modern terms. Modern title registration systems (such as Torrens title) will require reconciling those descriptions to registered parcels, surveys and possible boundary adjustments. Practitioners should check current title and local government records before marketing or building.

No express administrative or accounting procedure in the Act

The Act prescribes purposes (ss 4-6) but contains no explicit obligations as to accounting, timing of expenditure, custody of sale proceeds, investment of funds pending expenditure, or reporting to beneficiaries. Trustees should consult diocesan rules under s 7 and general trust law to avoid exposure for failure of prudence or lack of oversight.

Diocesan Church Assembly laws govern trusteeship (s 7)

The Act submits trustees to the Church Assembly laws then in force. Those external rules may impose appointment, removal, reporting or conduct obligations. A practical “gotcha” is assuming that statutory vesting removes need to consult diocesan process for successor appointment or removal.

The Act contains no penalty or criminal enforcement provisions

Enforcement is civil and ecclesiastical. There are no statutory fines or criminal sanctions for breach of the Act. Beneficiaries must rely on equitable relief or diocesan disciplinary mechanisms.

The historic cash sum is denominated in pre‑decimal currency (s 6, preamble)

s 6 vests £552 9s 4d plus accrued interest. The contemporary equivalent, accounting treatment and management of that fund will require reconciliation with modern financial systems. That historic currency figure is an identifiable trust fund but how interest has been calculated over time and whether funds remain or were expended will need factual investigation.

Absence of amendment history in the source

The Endnotes state there are no amendments. That means contemporary practice must work with the 1875 text. Practitioners should not assume modern statutory trustee procedural rules have been imported into the Act; instead, they must apply current trust law and diocesan rules alongside the original text.

These points are practical, statutory and conveyancing pitfalls directly traceable to the Act’s wording and schedules. They should guide initial due diligence and risk allocation in any transaction or trustee decision.

This section sets out practical steps that trustees, diocesan officers, purchasers and legal advisers should follow to implement the Act’s mechanics and to reduce legal and practical risk. Each step is grounded in the Act’s text.

Verify title and current holdings

Conduct a modern title search and land registry check for the parcels described in the First and Second Schedules. Because the Schedules use historical metes and bounds, instruct a licensed surveyor or land registry professional to reconcile the 1875 descriptions with current registered parcels. Confirm whether any mortgages, easements, covenants, or statutory encumbrances affect marketability despite the statutory vesting (s 1; s 5).

Confirm trustee identities and authority

Determine who are the current trustees, their legal capacity to act and whether any diocesan appointment process is required under Church Assembly laws referenced in s 7. The Act vests land in named persons and their heirs; in practice successor trustees may be those recognised under diocesan rules.

Obtain the Bishop’s written consent before any sale

s 2 mandates written consent from the Bishop of Melbourne or the diocesan administrator for each sale. Obtain and retain the bishop’s written consent, specifying the scope (which lands, lotting, sale method), to ensure the sale is within statutory authority and to reduce risk of an ultra vires challenge.

Decide sale method and terms within statutory scope

Under s 2 trustees may sell by private sale or public auction, in one lot or in lots, and on terms as to title and credit as they see fit. Develop a sale strategy (valuation, marketing, competitive process as appropriate) consistent with fiduciary duties under general law and diocesan rules. Although the Act permits wide discretion, trustees remain subject to equitable duties to act prudently and for beneficiaries’ benefit.

Document sale contracts and potential variations carefully

The Act allows trustees to buy in, rescind or vary contracts without responsibility for consequent loss (s 2). However, prudent contracting requires careful drafting to manage counterparties’ expectations, to include warranties and conditions appropriate to vendor status, and to make express the trustees’ statutory powers to vary to avoid later disputes.

Secure purchaser receipts and follow s 3 protections

Accept receipts for purchase money in the trustees’ name or by the survivor trustees, and ensure the receipt is properly recorded. s 3 provides that purchasers are discharged by such receipts and need not see to the application of funds. Nonetheless, trustees should maintain transparent records demonstrating receipt and application of funds to the statutory objects.

Apply sale proceeds only to the statutory objects

s 4 restricts application to purchase of a convenient site for a church and Sunday‑school in Prahran and/or erection of a church and Sunday‑school on that site or on part of the Schedules’ lands. Trustees must keep detailed accounting records demonstrating that net proceeds and the dedicated cash sum (s 6) have been applied to those objects. If funds are invested temporarily pending expenditure, trustees should invest prudently and in accordance with diocesan rules and general trust law.

Convey any purchased land into the specified trust form

s 5 requires that any land purchased with the moneys be conveyed to the trustees as a site for church and Sunday‑school. Ensure conveyances and title instruments record the purpose and relevant restrictive terms to preserve the trust object.

Follow diocesan Church Assembly laws for trustee governance

s 7 subjects trustees to the laws of the Church Assembly of the Diocese of Melbourne. Consult those rules to confirm procedures for succession, removal, reporting, meeting frequency and any diocesan approvals required for contracts or building works. Align trustee decisions with both the Act and diocesan governance.

Maintain transparent records and make available accounting to beneficiaries where appropriate

Although the Act does not mandate public reporting, good practice and equitable prudence require trustees to keep and be able to produce accounts of sale proceeds, the use of vested funds, building contracts and conveyancing documentation. This reduces risk of litigation and ensures diocesan compliance.

Check planning, building and local approvals for erection of church and Sunday‑school

s 4 and s 6 authorise erection of buildings but do not relieve trustees from obtaining necessary planning and building approvals from local government and relevant statutory authorities. Obtain required permits before committing funds to construction.

Consider insurance and security for construction

When expending funds on building, ensure suitable contracts, insurance, warranties and performance securities are in place to protect the trust assets during construction.

Seek legal advice before disposing of any part of the estates

Because the Act is a 19th century statute operating alongside modern property and trust law, seek experienced conveyancing and trust counsel to plan sales, covenant wording, closure of accounts and transfer of title.

Reconcile the historic trust fund

Investigate the status of the £552 9s 4d fund mentioned in the preamble and s 6. Determine whether the sum remains, how interest has been handled, and whether additional parish contributions or diocesan funds are needed to complete building works.

Where doubt exists, seek court directions

If trustees are uncertain about the correct application of proceeds, the validity of consent, or competing claims, apply to a court for directions. Courts can grant relief under equitable jurisdiction to authorise sale, amend administrative procedures or resolve disputes over trustee conduct.

Following these steps aligns trustees’ actions with the Act’s text (ss 1-7), with diocesan governance (s 7), and with general conveyancing and trust law processes. Documentation of the Bishop’s written consent and of the application of sale proceeds will materially reduce legal and reputational risk.

Church of England Act 1875

Plain English Summary

Deep Dive

What it does

Current sections

Church of England Act 1875

Source text: opening excerpt

1 Church of England Act 1875

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply