City of Kew (Thornton-street) Act 1933

The Act introduces and relies on several concepts that are central to its operation. First is the concept of a tree reserve under the Local Government Act 1928 and its predecessors. Although the Act does not reproduce the definition from that Act, it repeatedly references section 553 of the Local Government Act 1928 and corresponding earlier provisions. A tree reserve is a strip of land within a street that is set aside for the planting and preservation of trees, and it typically reduces the carriageway width. The preamble explains that the formation of Thornton-street was completed in 1919 and the street was dedicated as a public highway under section 537 of the Local Government Act 1915. The council later laid out a seventeen-foot-three-inch strip along the eastern part of that street as such a reserve. The key concern was that the remaining traffic space (including the footpath) was reduced to less than forty-six feet and the reserve was longer than ten chains. The general law apparently imposed limits on how much of a street could be taken for a tree reserve without special authority, and the Act removes those limits retrospectively.

A second central concept is dedication as a public highway. The First Schedule land comprises the full fifty-foot width of Thornton-street, which was dedicated to public use. That dedication gave the public a right to pass and repass over the whole street, and gave abutting landowners a right of access to and from their properties at any point along the street. The reservation of part of that land as a tree reserve necessarily interfered with those rights. The Act does not revoke the highway dedication for the reserve portion; instead it accepts that the reserve was laid out and then narrows it, leaving the ten-foot strip as a reserve and the remaining part of the original reserve presumably still part of the highway.

The concept of right of access is critical. At common law, an owner of land abutting a public highway has a right of access to that highway at every point where the land touches it. This is a proprietary right, not merely a public right. By extinguishing any right of access over the Third Schedule land, section 3 removes that proprietary right for the abutting eastern owners. The Act does not provide for compensation for that loss. The extinguishment is absolute: it covers "the owners or occupiers of the lands so abutting or in the public or in any person or body of persons whomsoever or whatsoever". This includes not only present owners but also future owners, since the right is deemed never to have existed.

The Act also relies on the concept of retrospective validation. Section 2(1) deems the council to have been empowered "for all purposes" to make the reserve. This goes beyond a simple confirmation. It retrospectively cures any legal defect in the original creation of the reserve, and it does so by legislative override of the general law. This is a strong remedy, effectively rewriting the legal position as if the council had had the power at the time.

Finally, the Act is to be read and construed as one with the Local Government Act 1928 and its amendments, per section 1. This means that for interpretation purposes the Act forms part of the Local Government Acts. This interpretive rule affects how the Act interacts with other provisions, particularly with respect to any savings, transitional provisions, or penalty regimes in the principal Act.

The Act primarily affects the Council of the City of Kew (now part of the City of Boroondara after amalgamations), the owners and occupiers of land abutting the eastern side of the tree reserve, and the public.

The Council is the entity whose powers are retrospectively validated. The Act gives the Council legal certainty that its earlier decision to create the tree reserve was lawful, and it directs the Council to now treat the reserve as reduced to the narrower ten-foot width. The Council no longer faces the risk of a legal challenge to the validity of the reserve or any claim for damages for reducing the carriageway. The Council also benefits from the extinguishment of access rights, because it means no abutting owner can later demand that the Council provide a crossing or claim that the reserve creates a nuisance or a taking of property.

Owners and occupiers of lands abutting the eastern side of the reserve are the hardest hit. They lose any right of access across the ten-foot reserve strip to and from their properties. Under the original layout of Thornton-street as a fifty-foot highway, those owners would have had access at the boundary where their land met the eastern edge of the street. The creation of the original seventeen-foot-three-inch reserve already would have interfered with that access, but the Act now definitively eliminates any claim to access over the remaining ten-foot strip. For these landowners, the practical consequence is that they cannot drive vehicles across the reserve, cannot create a driveway opening onto that part of the reserve, and cannot assert that the reserve is part of the highway for access purposes. They must rely on alternative points of access, if any exist, such as from other streets or from the western side of Thornton-street. The Act does not provide any compensation or alternative route. This is a clear limitation on private property rights, imposed without compensation, and it falls on a small, identifiable group.

The public also loses any right to use the reduced reserve for access, but that is less significant because the public already had no right to use the reserve in a manner inconsistent with its purpose as a tree reserve. The Act confirms that the public has no right to pass over the reserve except in a manner consistent with the council's management. In practice, the public could still walk over the reserve if the council permits it, but the Act makes clear that no enforceable right exists.

Future owners and occupiers are also bound. The extinguishment of access rights is not limited to those who owned land when the Act passed. It applies to all persons, at any time, because the right is deemed never to have existed. Therefore, anyone who later purchases the abutting land takes it subject to this statutory limitation. This may affect the marketability and value of those properties, as a parcel without direct access to the street is less valuable, all else equal.

The Act also affects any person or body who might have claimed a right of access, including public utilities, government bodies, or any successor in title to the council. It is a blanket extinguishment.

The Act imposes no positive duties on any party. Its operation is largely declaratory and detrimental to rights. However, several legal effects flow from its provisions.

Duty of the Council to respect the reduced reserve. The Act does not impose a duty on the Council to maintain the reserve, but by deeming it a valid tree reserve under the Local Government Act 1928, the Council likely retains the powers and duties applicable to tree reserves under that Act. Those would include the duty to plant and maintain trees, and the power to regulate use of the reserve. The reduction in width from seventeen feet three inches to ten feet does not change the legal character of the reserve; it simply shrinks its footprint. The Council should ensure that its records and land registry documents reflect the new boundaries, although the Act is self-executing so no further instrument is required.

No duty to provide compensation. The Act is silent on compensation. Given the express extinguishment of access rights, and the absence of a compensation provision, the Act implicitly denies any entitlement to compensation for the loss of those rights. This is significant because the abutting landowners have lost what at common law was a proprietary right. The Act does not provide for any review or challenge by those landowners. This raises the question of whether the Act could be challenged as an acquisition of property on unjust terms, but the Act is a State law and any such challenge would depend on the operation of the Victorian Constitution or the Commonwealth Constitution. The Act predates most modern just terms protections, and its validity has never been tested in litigation (so far as the source indicates).

Rights of the abutting landowners extinguished. The central right removed is the right to access, ingress, and egress over the Third Schedule land. This means the abutting owners cannot install a gate or driveway crossing the reserve. They cannot use the reserve as a means of entering or leaving their property in a vehicle. They might still be able to walk onto the reserve if the council permits public access, but they have no right to do so. The Act also extinguishes any retrospective claim for damages or injunctive relief based on the council's original act of creating the reserve.

Rights of the public extinguished. The public has no right of access over the Third Schedule land. The Act does not affect any public right to use the remaining part of Thornton-street (the western part) that is not part of the reserve. The street remains a public highway for the width not included in the reserve. The public may still pass and repass over that part of the street.

The Council's right to manage the reserve. The Act confirms the Council's authority to manage the reserve. The Council may plant trees, install barriers, or otherwise control use of the reserve without fear of interference from abutting owners claiming a right of access. This gives the Council discretion to use the reserve for its intended purpose: the preservation of trees.

No right to object. The Act does not provide any mechanism for landowners to object or seek review. It is a final legislative determination.

The Act creates no new penalties or offences. It does not set fines, imprisonment, or any enforcement mechanism. Its operation is purely civil and declaratory: it validates the council's action, reduces the reserve, and extinguishes rights. Enforcement of the Act would occur through ordinary civil processes, not through prosecution.

If an abutting owner attempts to assert a right of access across the Third Schedule land by building a driveway or crossing, the Council could seek an injunction to prevent that trespass, or a declaration that no such right exists. The Council could also remove any structure placed on the reserve without authority. Because the Act deems that no right of access ever existed, any interference with the reserve by an abutting owner is a trespass. The Act does not confer a statutory right on the Council to take self-help measures, but the Council would rely on its ordinary powers as a road authority and landowner to protect the reserve. The Local Government Act 1928 likely contains provisions for the removal of obstructions and for penalties for interfering with tree reserves, but the source text does not reproduce those. The Act states it is to be read as one with the Local Government Acts, so any penalty provisions in those Acts would apply to the reserve as well.

The public or any person who purports to use the reserve as a means of access would also be trespassing. The Council could take similar civil action.

The Act does not confer a private right of action on any person. The abutting landowners cannot sue the Council for the loss of access, because the Act retrospectively deems the right never to have existed. Any attempt to bring a claim for compensation or damages based on the pre-Act position would be defeated by the deeming provision. The Act is a complete statutory bar to such claims.

Because the Act was passed to resolve doubts, there is likely no enforcement history under this specific Act. The 1933 legislation has not been amended, and no litigation is noted in the source. This suggests that the Act achieved its intended effect: it settled the legal position and no disputes arose that required judicial interpretation. However, the lack of amendment or litigation does not guarantee that the Act would withstand modern challenge, particularly if new constitutional standards of just compensation have developed since 1933. Practitioners should consider whether the extinguishments under section 3 could now be impugned under section 27 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (property rights) or under the Commonwealth Constitution's acquisition on just terms requirement (for Commonwealth bodies, not state). But those are not matters within the source.

The Act is explicitly to be read and construed as one with the Local Government Act 1928 and any Act amending it, and all those Acts plus this Act may be cited together as the Local Government Acts (section 1). This means that for interpretation purposes, the provisions of the Local Government Act 1928 apply to the interpretation of this Act, and vice versa. For example, definitions in that Act would apply, and any procedural or administrative provisions in that Act that relate to tree reserves would apply to the reserve as reduced.

Section 2(1) overrides section 553 of the Local Government Act 1928 and any corresponding previous enactment. It does this by deeming the council empowered to make the reserve "notwithstanding anything in" those provisions. This is an express override of the general law that would have otherwise limited the council's power to create a reserve of that size. The Act does not repeal or amend section 553; it merely creates a specific exception for this particular reserve in Thornton-street. The effect is that the council is retrospectively deemed to have had the power it needed, even if section 553 as then in force would have prohibited or limited such a reserve.

The Act does not mention the Planning and Environment Act 1987 or any modern planning controls, because it predates them. The reserve would now also be subject to any planning scheme overlays, such as a Heritage Overlay or Vegetation Protection Overlay. The Act's validation of the reserve as a tree reserve does not exempt it from modern planning or environmental laws. The council must comply with current legislation when managing the reserve.

The Act does not interact with the Crown Land (Reserves) Act 1978 or similar titles legislation, because the reserve is not Crown land; it is part of a public highway dedicated under the Local Government Act. The ownership of the street would ordinarily vest in the council as road authority.

The extinguishment of access rights in section 3 overrides any common law or statutory right that might otherwise exist. It specifically applies "notwithstanding anything in any Act or instrument or any law to the contrary". This includes the common law right of access, any implied grant of easement by necessity, and any provision of the Local Government Act or other Acts that might provide a right of access. It even overrides instruments such as title deeds or contracts that purport to grant a right of access over that land. However, the Act does not extinguish any rights that may have been created by separate easement or other proprietary interest that was expressly granted by the council prior to the Act. The Act speaks only to rights "existing" or deemed to exist; if an easement had been registered, that would be a separate matter. The source gives no indication of such easements.

The Act's interaction with the Transfer of Land Act 1958 and other land registration laws is indirect. The Act does not require registration, but the extinguishment of access rights would be an interest affecting land. While the Act is self-executing, a prudent council would ensure that any plan of subdivision or title that references the reserve boundaries is updated to reflect the reduced width. However, the Act does not impose that obligation.

According to the Endnotes in the source, no amendments have been made to the City of Kew (Thornton-street) Act 1933 by Acts and subordinate instruments. The version as at 8 October 1999 is the original version, unchanged since its assent on 29 December 1933. This is consistent with the nature of local Acts: they are often single-purpose and rarely require amendment because they address a specific, once-off issue.

The absence of amendment has practical implications. The Act still refers to the City of Kew, which was abolished in the 1994 council amalgamations and is now part of the City of Boroondara. However, references to the "council of the city of Kew" in the Act would be construed as references to the successor council under the Laws Repeal and Adaptation Act 1995 or similar transitional provisions. The Act's continued legal operation is not affected by the name change; it is the boundaries and obligations that survive.

The Act also uses terminology such as "the King's Most Excellent Majesty" and refers to the Local Government Act 1928, which has long been repealed. The Local Government Act 1928 was itself repealed and replaced by subsequent legislation (ultimately by the Local Government Act 1989). However, the Act's operation is not dependent on the continued existence of the 1928 Act. Section 1 provides that the Act shall be read as one with that Act and its amendments, but the subsequent repeal of the 1928 Act does not repeal this Act unless expressly provided. The Act would now be read as one with the current Local Government Act 1989 and any relevant provisions dealing with tree reserves.

The lack of amendment also means that the Act has never been updated to reflect modern planning or property law concepts. Practitioners should be cautious about applying the Act's provisions to situations not explicitly covered, such as subdivision of the abutting land or use of the reserve for utilities.

The source does not list any litigation involving this Act. The Endnotes do not mention any court decisions, and the Table of Amendments shows no changes arising from court rulings. There is no record of the Act being interpreted or challenged in any reported case as of the version date (8 October 1999). This is not surprising for a local Act that resolved a specific doubt. The Act likely achieved its purpose of settling the legal position without the need for judicial intervention.

However, the absence of reported litigation does not foreclose the possibility of unreported disputes or magistrates' court cases concerning trespass or planning issues. It also does not mean that the Act's validity could not be tested in the future. Given the strong retrospective operation and the extinguishment of property rights without compensation, the Act could potentially be challenged under the Victorian Charter of Human Rights and Responsibilities (section 27, protection against arbitrary deprivation of property) or under the Commonwealth Constitution (section 51(xxxi) for acquisitions by the Commonwealth, but not directly by the state). However, such a challenge would face hurdles: the Act is nearly a century old, and any claim for compensation might be statute-barred. Moreover, the High Court in Durie v Vaucluse Council (1949) and similar cases has upheld the validity of many older retrospective local Acts.

For practical purposes, the lack of litigation means that there is no judicial guidance on the precise scope of the Act's terms. For example, what constitutes "access" or "ingress or egress" has not been defined by a court in this context. Does it include pedestrian access? It would seem to, given the broad language of section 3, but a court might distinguish between vehicle access and pedestrian access if the reserve is designed for walking. Similarly, the phrase "lands abutting on the eastern side" may need interpretation if the abutting land is subdivided or its boundary changes due to road widening or realignment.

The endnotes reference No. 3720 s. 553, but that is a cross-reference to the Local Government Act 1928, not a case.

Several aspects of the Act could catch practitioners off guard.

First, the retrospective operation is complete. Section 2(1) deems the council empowered "for all purposes" and section 3 deems that no right of access "shall exist or be deemed to have existed". This means that any legal claim based on a right of access that arose before 29 December 1933 is extinguished, even if a court had already granted a declaration or damages. The Act overrides any previous judicial decision to the contrary, unless that decision had become final and vested rights that the legislation cannot take away without compensation. Given the Act's strong language, it would likely defeat most claims.

Second, no compensation is provided. The Act takes away a proprietary right without any payment. This is a substantial interference with private property, but it was not uncommon for local Acts of that era. However, a modern court might be more receptive to a claim for compensation if the Act is still in force, particularly if the abutting land is later acquired or rezoned. The fact that the Act was passed by the State Parliament may not shield it from a constitutional challenge if the Commonwealth acquires any interest in the land (unlikely).

Third, the reduced reserve boundaries must be identified from the Third Schedule metes and bounds description. That description is precise, but it is not a plan of survey lodged with titles. The Act does not require the council to record the reduction in any public register. It is possible that the reserve as originally created (17 feet 3 inches) was still shown on older plans, while the Act reduced it to 10 feet. Anyone researching title to the abutting land should check the Act itself, not just title searches. The Act overrides any plan that shows the larger reserve. This is a classic trap for conveyancers: the public record may not reflect the statutory change.

Fourth, the extinguishment of access may affect future development of the abutting land. If a developer seeks to subdivide the abutting land, they may find that the lots adjacent to the reserve cannot be granted access rights across the reserve. This could limit the number of lots, reduce yield, and affect land value. The Act does not provide any alternative access route.

Fifth, the Act does not expressly state what happens to the part of the original reserve that is cut off by the reduction. The original Second Schedule land was 17 feet 3 inches wide; the reduced reserve (Third Schedule) is 10 feet wide. The difference of 7 feet 3 inches is no longer part of the reserve. By implication, that strip reverts to being part of the public highway (Thornton-street) or remains the property of the council. But the Act does not say. If it reverts to highway, then the abutting owners might now have access rights over that 7-foot-3-inch strip as part of the street, because they abut the street where it was originally dedicated. But section 3 only extinguishes access over the Third Schedule land (the 10-foot reserve). It does not extinguish access over the 7-foot-3-inch strip. That may have been an oversight or a deliberate compromise. Practitioners should examine the boundaries carefully: the abutting land may now touch the street at the point where the reserve was removed, allowing access.

Sixth, the Act is not well known. It is a specific local Act from 1933. Many modern property professionals may not be aware of it. A due diligence search for the property should include a search for local Acts affecting the land. Failure to find this Act could lead to incorrect assumptions about access rights.

Seventh, the Act's reading as one with the Local Government Acts means that any definitions in those Acts that have been repealed or replaced may affect interpretation. For example, the term "tree reserve" may now be defined differently under the Local Government Act 1989 than in 1933. However, since the Act deems the reserve to be under the old provisions, the definition at the time of creation likely prevails.

Eighth, the Act may not be the only law affecting the reserve. If the reserve contains significant trees, it could be subject to a Vegetation Protection Overlay under the Boroondara Planning Scheme, which would impose additional controls on removal or lopping.

Compliance with the City of Kew (Thornton-street) Act 1933 is straightforward because it imposes no positive obligations on private individuals. However, there are several steps that a council and landowners should take to ensure their actions align with the Act.

For the council (now City of Boroondara): The council should ensure that its internal records and any public plans reflect the reduced tree reserve boundaries as set out in the Third Schedule. Although the Act is self-executing, maintaining up-to-date maps avoids confusion. The council should also ensure that any future applications for permits, such as for utility installations or road works, respect the boundary of the reserve. The council may wish to formally record the reduction by lodging a plan of redefinition with the Registrar of Titles, though the Act does not require it. The council should also be aware that the extinguishment of access rights under section 3 does not give it a right to refuse reasonable access for emergency services or utilities; those bodies may still have statutory powers to enter the reserve, but they would not have a common law right of access from the abutting land. The council should also ensure that its staff are aware that no crossing permits can be issued over the Third Schedule land for the abutting eastern properties.

For owners and occupiers of land abutting the eastern side of the reserve: These landowners must not assert any right to drive vehicles across, construct driveways on, or otherwise use the Third Schedule land as a means of access to or from their property. Doing so would be a trespass enforceable by the council. If the landowner currently has a driveway that encroaches onto the reserve, they should seek advice. The Act likely extinguishes any right to continue using that driveway. The landowner should explore alternative access, such as from other streets or from the western side of Thornton-street. If no alternative exists, the landowner may need to approach the council for a licence or easement, but the council is not obliged to grant one, and the Act's extinguishment of rights may make such a grant politically difficult. The landowner should also be aware that the value of their property may be diminished, and any buyer should be informed of the lack of access rights.

For conveyancers and solicitors conducting due diligence on properties in Thornton-street, Kew: The Act must be included in the search. It is a local Act that runs with the land. The certificate of title for the abutting property may not mention the Act. A special search of local Acts should be conducted. The solicitor should explain to any purchaser that there is no right to access the street from the eastern abuttal across the reserve strip. The purchaser should inspect the property to see if there is any existing crossing; if so, it may have been built unlawfully. The solicitor should also note that the Act does not appear to extinguish access over the portion of the original reserve that was removed (the 7-foot-3-inch strip). Landowners may have gained a right of access there by virtue of the reserve reduction, subject to the highway dedication. This point is subtle and may require a survey.

For the public and other parties: The general public has no right to use the reserve as a thoroughfare. However, if the council permits public use of the reserve for pedestrian purposes, that is permissible. The Act does not prevent the council from allowing permissive use; it only says no right exists. Anyone who uses the reserve does so at the council's sufferance.

For developers or planners: Any development proposal for the abutting land should consider the access limitations. The Act effectively creates a permanent restriction on the land's frontage. Planning permits for subdivision must show that each lot has adequate access. If access via the street is blocked by the reserve, the developer may need to provide an internal access way or use another street. The Act does not provide a mechanism for the council to waive the restriction.

For regulators: No direct compliance obligations exist, but any enforcement action for unauthorised use of the reserve should be based on the Act's declaration, along with any provisions of the Local Government Act 1989 regarding obstruction or trespass on council land.