Geelong (Kardinia Park) Land Act 1950

Public park vs public recreation reserve. The Act distinguishes between two categories of reserved land, each with a different purpose. The First Schedule land is “permanently reserved as a site for a public park”, a phrase that implies ornamental parkland for public amenity. The Second Schedule land is “permanently reserved as a site for public recreation”, a broader category that contemplates active sporting and recreational use. Under the Land Acts (now the Crown Land (Reserves) Act 1978 and the Land Act 1958), these two reservation categories attract different default powers, but the Act overrides those defaults for the Second Schedule land by granting an express leasing power. The boundaries are described using the old chain‑and‑link survey system (one chain = 66 feet; one link = 7.92 inches), which means any modern title search requires conversion to metric coordinates. The area of the First Schedule land is roughly 18.1 hectares, the Second Schedule roughly 4.8 hectares.

Committee of management. Section 2(1)(d) appoints “the corporation of the city of Geelong” as committee of management. Under the Land Acts, a committee of management holds the land for the purpose of the reservation and has a duty to manage, control and improve the reserve. The Act does not spell out those duties in detail; it incorporates them by reference to the “like rights privileges powers and duties” the council had before adjustment, and subjects its management to the Land Acts. The practical effect is that the council manages the two reserves as a public park (First Schedule) and a recreation reserve (Second Schedule) under the general land‑management framework, but with the additional leasing power in section 3.

Leasing and licensing power. Section 3(1) is the core operational provision. It allows the council to grant leases or licences over the Second Schedule land “for the purposes of sport or recreation or social activities or purposes connected therewith”. The phrase “notwithstanding anything in any Act” gives this power primacy over any conflicting provision in the Land Acts, the Local Government Act or any other Victorian statute. Section 3(2) sets three limits: the instrument must contain conditions, covenants, exceptions and reservations the council thinks fit; the term cannot exceed 40 years; and if the term exceeds three years, the Governor in Council must approve it. Section 3(3) restricts the use of rent money to maintenance and improvement of the Second Schedule land only, not the First Schedule park land. Section 3(4) excludes any Crown liability for improvements: a lessee who erects buildings or makes other improvements holds them entirely at risk and has no claim for compensation from the Crown when the lease ends or if the land is resumed.

Kardinia Park Trust Land. This term is not defined in the 1950 Act. It is imported by the 2016 amendments from the Kardinia Park Stadium Act 2016. The effect is to exclude from the operation of the 1950 Act any land that falls within the trust established under the 2016 Act for the Kardinia Park stadium precinct. That land is managed by the Kardinia Park Stadium Trust, not by the council. The 1950 Act’s reservation, committee‑of‑management and leasing provisions do not apply to that land.

City of Greater Geelong (the successor to the corporation of the City of Geelong). The council is the committee of management for both reserves under section 2(1)(d). It must administer the land, manage use by the public, and maintain the reserves in accordance with the Land Acts. It also has the optional power under section 3 to grant leases and licences over the Second Schedule land. This power creates compliance obligations: the council must ensure any lease or licence is for an authorised purpose, does not exceed 40 years, and, if over three years, is approved by the Governor in Council. Rent must be applied only to maintenance and improvement of the Second Schedule land, not diverted to general revenue. The council cannot grant leases of the First Schedule park land under this Act; any such lease would have to be under general Land Act powers or other statutory authority.

Lessees and licensees. Sporting clubs, community groups and commercial operators who take a lease or licence over the Second Schedule land are bound by the conditions the council imposes. They cannot claim compensation from the Crown for any improvements they make (section 3(4)). This is a significant risk for any tenant investing capital in facilities such as clubrooms, lights or playing surfaces. The tenant cannot rely on any statutory compensation under, for example, the Land Acquisition and Compensation Act 1986 if the land is later resumed, because section 3(4) explicitly “bars any person or body of persons” from receiving Crown money for improvements. The tenant also faces the risk that the Governor in Council may refuse to approve a lease over three years, or that the council may not obtain that approval, rendering the lease ineffective.

The Crown. The Crown is affected in that the Act reserves land as a public park and public recreation reserve, thereby limiting its ability to otherwise dispose of or use the land. The Crown also assumes no liability for improvements under section 3(4). The revocation of the 1924 Orders in Council by section 2(1)(a) means the Crown’s reservation of the land is now governed directly by the Act rather than by executive order.

The Kardinia Park Stadium Trust. While the 1950 Act does not directly impose duties on the trust, the 2016 amendments carve out Kardinia Park Trust Land from the 1950 Act’s operation. The trust’s powers under the Kardinia Park Stadium Act 2016 are paramount over the 1950 Act for that land. The trust may be affected to the extent that the boundaries between the trust land and the residual 1950‑Act land must be clearly determined to avoid ambiguity as to which regime applies.

Users of the reserves. The public has a right to use the First Schedule land as a public park and the Second Schedule land for public recreation, subject to any leases or licences granted. Lessees may restrict public access during certain hours or events, but the reservation purpose must be maintained. The Act does not create any private right of action for members of the public if access is unreasonably restricted.

Council’s duty to manage. As committee of management, the council has a duty to manage both reserves in accordance with the Land Acts. The Act does not elaborate on that duty, but the Land Acts (particularly the Crown Land (Reserves) Act 1978, section 15) impose obligations to maintain the reserve, prevent trespass and ensure the land is used only for the purpose for which it is reserved. The council can make regulations for the reserves (section 2(1)(e) deems existing regulations to continue). This is a statutory duty, not a discretionary power: the council cannot abandon the reserve or permit uses inconsistent with the reservation purpose, subject to the leasing power.

Council’s leasing right. Section 3(1) gives the council a right to grant leases and licences “from time to time”. This is a power, not a duty. The council may choose not to lease the land and keep it entirely open for public recreation. If it does lease, it must use the power only “for the purposes of sport or recreation or social activities or purposes connected therewith”. That phrase limits the permissible uses: commercial activities not connected with those purposes (for example, a retail shop selling non‑sport goods) are not authorised. The council may impose “such conditions covenants exceptions and reservations as the said council thinks fit” - a broad discretion but one that must be exercised reasonably and for a proper purpose. The council must ensure any lease or licence does not exceed 40 years; if it does, the instrument would be ultra vires the Act.

Governor in Council approval. For leases or licences with a term exceeding three years, section 3(2)(c) requires approval by the Governor in Council. This is not a mere formality. The Governor in Council acts on ministerial advice, and the minister may consider broader state policy, such as stadium development plans or land‑use strategy. The council cannot grant a long‑term lease without this approval, and the approval must be obtained before the lease is executed or at least as a condition precedent. If the council purports to grant a lease for more than three years without approval, the lease is likely void for want of statutory authority.

Rights of lessees and licensees. A lessee or licensee has a right to occupy the Second Schedule land for the term and purpose specified, subject to the conditions the council imposes. However, they have no right to compensation for improvements under section 3(4). This is a harsh provision. It overrides any common law or statutory right of compensation that might otherwise arise if the land is resumed or the lease is not renewed. A lessee investing in permanent improvements (e.g., a clubhouse) bears the full risk that the improvement will benefit the council at the end of the term without any payment. The lessee also has no right to expect renewal; the council may reoffer the land to a different party after the lease expires, and the lessee has no claim for disturbance.

No rights of the public. The Act does not confer any enforceable rights on individual members of the public to use the reserves. The reservation is for public benefit, but that benefit is enforceable only through public law mechanisms (e.g., judicial review of the council’s management decisions), not by private action. A citizen who is excluded from the reserve would have no cause of action under this Act, though they might have standing to challenge a misuse of the land under general administrative law.

The Geelong (Kardinia Park) Land Act 1950 contains no penalty provisions. It does not create any criminal offences, set fines or provide for infringement notices. Enforcement of the land’s use and management is achieved through two other mechanisms.

First, the committee of management (the council) has powers under the Land Acts to regulate conduct on the reserve, including making regulations. Section 2(1)(e) deems existing regulations to continue; those regulations may create offences, such as trespass, damage to property, or unauthorised use. Any such penalties would be found in the regulations, not in the Act itself. The Land Acts also give the committee of management the power to remove persons who breach conditions and to recover possession of the land from unauthorised occupiers.

Second, a lease or licence granted under section 3 is a contract. If the lessee breaches conditions, the council can enforce the lease through ordinary civil remedies: termination, possession, damages. The council could also apply to the Supreme Court for an injunction to prevent unauthorised use. There is no specific penalty for the council if it exceeds its powers under the Act. However, if the council grants a lease for an unauthorised purpose or beyond 40 years, that act may be ultra vires and void. A ratepayer or the Minister could bring proceedings for declaratory relief or judicial review. The Auditor‑General or the Ombudsman could also investigate misuse of public land.

Section 3(4) is a bar on compensation, not a penalty. It does not penalise anyone; it simply removes any right a person might have had to claim money from the Crown for improvements. If the council or the Crown acts outside the Act, a person might sue for damages at common law for trespass or conversion, but that would be independent of the Act.

The Kardinia Park Stadium Act 2016 does not impose penalties for breach of the 1950 Act either. That Act overrides the 1950 Act for trust land but does not create its own penalties for non‑compliance with the 1950 Act for residual land. In practice, enforcement of the 1950 Act is rare because the land is small and the provisions are administrative. The absence of express penalties is typical of older reservation statutes, which rely on overarching land management laws for enforcement machinery.

Land Acts. The Act repeatedly references the “Land Acts”. Section 2(1)(b) and (c) state that the First Schedule land is permanently reserved “in all respects as if it had been so reserved under the Land Acts”, and likewise for the Second Schedule land. Section 2(1)(d) makes the council committee of management “subject to the Land Acts”. The Land Acts for this purpose are the Land Act 1958 and the Crown Land (Reserves) Act 1978, which govern the creation, management and alienation of Crown land. The effect is that the 1950 Act sits as a special Act that adjusts boundaries and grants a specific leasing power, but for all other purposes (such as public rights of access, licensing of other activities, and reporting requirements) the general Land Acts apply. Where a provision of the Land Acts conflicts with section 3 of the 1950 Act, the 1950 Act prevails because of the “notwithstanding anything in any Act” clause in section 3(1). For example, if the Land Acts restrict the term of leases to 21 years, section 3’s 40‑year limit overrides that.

Kardinia Park Stadium Act 2016. This is now the most important interaction. Section 2(2) provides that section 2 of the 1950 Act “is subject to Part 4 of the Kardinia Park Stadium Act 2016”. Section 2(3) excludes Kardinia Park Trust Land from the land referred to in section 2(1). Part 4 of the 2016 Act deals with the dissolution of the previous Kardinia Park Trust and the transfer of land to the new stadium trust. The practical effect is that any land within the stadium precinct (the trust land) is no longer reserved or managed under the 1950 Act. That land is now under the 2016 Act’s trust regime, managed by the Kardinia Park Stadium Trust. The 1950 Act continues to apply only to the residual land that is not trust land. This created a split management: the council manages the old park and recreation reserve areas outside the stadium, while the trust manages the stadium itself and its immediate surrounds. For any activities that straddle the boundary, the two management bodies must coordinate. The 1950 Act’s leasing power over the Second Schedule land cannot be exercised over land that has become trust land.

Local Government Act. The council’s general powers under the Local Government Act (now the Local Government Act 2020) are subject to the 1950 Act where the Act is a specific grant of power. The “notwithstanding” clause in section 3(1) ensures that the local government law cannot override the leasing power. Conversely, the council must still comply with the Local Government Act for matters not covered by the 1950 Act, such as procurement, reporting and financial management of rent monies.

Planning and Environment Act 1987. The use of the land under a lease or licence granted under section 3 may require a planning permit if the use is not exempt. The 1950 Act does not override planning law; the “notwithstanding” clause only overrides other Acts, not subordinate instruments, and it is doubtful that it could override a planning scheme, which has the force of delegated legislation. A lessee proposing a stadium or clubrooms would need to obtain the necessary planning approvals from the council (as planning authority) in addition to the lease under the 1950 Act.

Land Acquisition and Compensation Act 1986. Section 3(4) of the 1950 Act specifically excludes compensation for improvements. This overrides any general right to compensation under the Land Acquisition and Compensation Act if the land is acquired for a public purpose. A lessee who makes improvements would not be entitled to compensation from the acquiring authority for the value of those improvements. This is a significant interaction: it removes a standard protection that lessees of Crown land often rely on.

Interpretation of Legislation Act 1984. This Act governs how the 1950 Act is read. The endnotes confirm that headings and examples form part of the Act only if inserted after 1 January 2001. The original 1950 Act had no headings for section 3; the heading was inserted by the Land (Revocation of Reservations and Other Matters) Act 2009, so it now forms part of the Act. This matters for legal interpretation if a court considers the heading as a guide to section 3’s scope.

The Act has been amended by four subsequent Acts, all surviving on the current version.

Geelong (Kardinia Park) Land Act 1965 (No. 7257). This Act inserted section 3, which originally contained the leasing and licensing power. It was a short amending Act that added the operative provision enabling the council to grant leases and licences for sport, recreation and social activities. It also inserted the 40‑year term limit and the approval requirement. The 1950 Act originally had only sections 1 and 2; the boundary adjustment and committee of management provisions were all it contained. Section 3 turned a purely administrative land‑adjustment Act into a land‑management instrument.

Geelong (Kardinia Park) Land Act 1977 (No. 8972). This Act amended section 3(1) and (2)(b). It likely made technical changes to the wording, though the text of the 1977 amendments is not reproduced in the current version. It also amended section 2(1)(d), possibly to update the reference to “the corporation of the city of Geelong” or to adjust the powers. The endnotes show this Act was assented to on 27 April 1977 and came into operation on that day. It did not change the core structure.

Land (Revocation of Reservations and Other Matters) Act 2009 (No. 81/2009). Section 30 of this Act amended section 3. It inserted the heading to section 3 (“Leasing and licensing power over land described in Second Schedule”) and amended subsections (1) and (3) to update references. The heading now forms part of the Act. This was a housekeeping amendment reflecting changes to drafting style.

Kardinia Park Stadium Act 2016 (No. 7/2016). Section 45 of this Act inserted new subsections (2) and (3) into section 2 and amended section 3(1). The 2016 amendments made the 1950 Act subject to Part 4 of the Stadium Act and excluded Kardinia Park Trust Land from the operation of the 1950 Act. This was a major substantive change: it effectively shrunk the geographical scope of the 1950 Act and subordinated it to the newer stadium trust regime. The amendments came into effect on 16 March 2016.

There are no amendments not yet in operation. The Act is therefore stable, but its practical significance has diminished since 2016.

There is no recorded litigation under the Geelong (Kardinia Park) Land Act 1950 in any Victorian court or tribunal that has been published. The Act is not cited in any reported case in the Victorian Reports, the Australian Law Reports, or other major case series. This is not surprising for several reasons. The Act deals with a small area of public land, with a single committee of management and a narrow leasing power. Disputes over the use of public reserves often get resolved through administrative channels or are litigated under the Land Acts or Local Government Act rather than under this specific statute. Section 3(4), which bars compensation, could have provoked a challenge if a lessee sought to argue that it was unconstitutional as an acquisition of property without just terms (section 51(xxxi) Commonwealth Constitution), but no such challenge has been brought in Victorian courts. The provision may be on thin constitutional ground, but the practical value of the improvements on such a small site may not be enough to justify a High Court test case.

The absence of litigation history means there is no judicial interpretation of key phrases such as “purposes of sport or recreation or social activities” or “conditions covenants exceptions and reservations as the said council thinks fit”. The phrase “notwithstanding anything in any Act” could be judicially considered if a conflict arose with subsequent legislation. For instance, if the Climate Change Act 2017 or the Planning and Environment Act imposed restrictions on land use that conflicted with a lease under this Act, a court might need to determine whether this Act’s “notwithstanding” clause extends to Acts passed after 1950. The general rule is that a later Act will impliedly repeal an earlier one unless the earlier Act was intended to be immune from future amendment. The “notwithstanding” clause cannot bind the parliament of the future, so a later express amendment would override it. But in the absence of litigation, these questions remain open.

Practitioners dealing with the Act must proceed without the guidance of case law. This increases legal risk: the meaning of “connected with” in section 3(1) is untested. Could a lease for a cafe be “connected” with sport or recreation? Possibly, if it serves patrons of the reserve. Or does “connected therewith” require a more direct link, such as a clubhouse that is used solely by sporting participants? Without precedent, the answer depends on ordinary statutory interpretation and the council’s discretion.

No compensation for improvements (section 3(4)). This is the most dangerous trap for lessees. A club that builds a clubhouse, installs lighting or creates playing surfaces on land leased under section 3 cannot claim any money from the Crown for the value of those improvements at the end of the lease. The crown obtains a windfall: the improvements become part of the land and the next lessee gets them for free, or the council uses them directly. A prudent lessee should negotiate a lease that allows removal of improvements (if structurally feasible) or should treat the improvements as a sunk cost with no residual value. Financing such improvements becomes difficult because no lender would take security over a Crown lease with no compensation entitlement. This provision cuts against normal commercial expectations.

Governor in Council approval for leases over three years (section 3(2)(c)). A lessee who signs a five‑year lease without approval may have a void lease. The council bears the primary risk, but the lessee could lose its investment if the approval is refused or not sought. There is no simple way to salvage an unapproved lease. The approval process is not a rubber stamp; it involves ministerial oversight and may be subject to political considerations. The council cannot give binding assurances that approval will be granted. The three‑year threshold is low: even a four‑year lease requires approval, and a series of three‑year leases could be seen as an attempt to evade the requirement.

Purpose limitation. Section 3(1) limits leases and licences to “sport or recreation or social activities or purposes connected therewith”. A lease for a car park that serves a nearby commercial precinct (not the reserve) would not be authorised. A lease for a commercial gym might be on the edge: it is for recreation, but is it “public recreation” under the Second Schedule? The Act does not require that the lessee be a non‑profit or community group, but the purpose must fall within the statutory language. The council cannot grant a lease for a fast‑food outlet even if it generates high rent, unless its sale of food is “connected” with the sport or recreation use. This restricts revenue‑raising potential.

Not all land is covered. The leasing power applies only to the Second Schedule (recreation reserve) land. The First Schedule (public park) land cannot be leased under this Act. If the council wants to license a kiosk in the park, it must find authority elsewhere, such as under the Land Acts or the Local Government Act. The precise boundary between the First and Second Schedule land is described using 1950s survey references; the boundary may not correspond exactly to modern cadastre. A dispute over which schedule a particular parcel falls under could result in a lease being ultra vires.

Overlap with Kardinia Park Trust Land. The 2016 amendments carve out trust land. Any lease granted by the council over land that is later determined to be trust land would be invalid as against the stadium trust. The council must ensure that any lease it grants is over land that is not trust land. The trust land boundaries are defined in the 2016 Act, but there may be transitional uncertainty. The 1950 Act does not apply to that land at all.

For the City of Greater Geelong (committee of management).

1. Maintain accurate records of the reserve boundaries. The descriptions in the Schedules are in chains and links; they should be converted to metric and registered on the council’s land information system. The council should ensure that any land that is now Kardinia Park Trust Land is excluded from its management. It should obtain a clear survey plan that delineates the 1950 Act land from the trust land.

2. Manage both reserves in accordance with the Land Acts. This includes keeping the land open for the public (subject to legitimate closures), preventing encroachments, and preparing a plan of management if required under the Crown Land (Reserves) Act 1978. The council should maintain insurance for public liability.

3. For any proposed lease or licence over the Second Schedule land:

   • Confirm the land is Second Schedule land, not First Schedule or trust land.
   • Ensure the purpose is for sport, recreation or social activities or a purpose connected therewith. Obtain a written statement from the proposed lessee describing the activities. If in doubt, seek legal advice.
   • Set the term at 40 years or less. If the term is to exceed three years, the council must obtain Governor in Council approval before executing the instrument. That means preparing a submission to the Minister for Crown Land, supporting it with a business case and public interest assessment. The approval must be gazetted.
   • Include conditions that protect the public interest, such as a requirement that the lessee allow public access on certain days, or that the lessee maintain the land at its own cost. Conditions should also require the lessee to obtain any necessary planning permits.
   • Include a clause in the lease that clearly states the lessee has no entitlement to compensation for improvements under section 3(4) of the Act. This clause should be in bold or otherwise highlighted.
   • Ensure rent received is deposited into a dedicated trust account or a reserve maintenance fund, and is applied only to maintenance and improvement of the Second Schedule land. Do not use the rent for general council revenue or for the First Schedule park.
   • Monitor the lessee’s compliance with conditions. If a breach occurs, use the lease’s termination provisions.

4. Report on the use of the reserves in the council’s annual report, and comply with any auditing requirements under the Local Government Act.

For a potential lessee or licensee.

1. Due diligence. Engage a surveyor to confirm the land is Second Schedule land under the 1950 Act and is not Kardinia Park Trust Land. Obtain a copy of the council’s approval resolution and, if the term exceeds three years, a copy of the Governor in Council approval.

2. Understand the compensation risk. Section 3(4) extinguishes any claim for compensation for improvements. Do not invest in permanent improvements without a clear business case that assumes no residual value. If you must build, negotiate a lease term as long as possible (up to 40 years) to amortise the cost, and consider whether the improvements can be removed at the end of the term. Do not rely on any expectation of renewal.

3. Verify the purpose. Ensure your proposed use falls within “sport, recreation or social activities”. If your use is marginal (e.g., a licensed restaurant with a sports TV), seek a legal opinion. The council should also confirm in writing that the use is authorised.

4. Seek planning approvals separately. A lease under the 1950 Act does not exempt you from the Planning and Environment Act. Contact the council’s planning department for permit requirements.

5. Check for sub‑leasing restrictions. The Act does not explicitly prohibit sub‑leases, but the lease contract may. If you need to sub‑let part of the land, ensure the lease allows it. Any sub‑lease will be subject to the same term and purpose limits.

6. Resolve the no‑compensation issue with financiers. If you are borrowing to finance improvements, the bank may require a guarantee from the council or a separate agreement that the council will not rely on section 3(4) to deny compensation. However, the council cannot contract out of the Act: section 3(4) is a statutory bar that binds the Crown and cannot be waived. Any agreement purporting to give compensation would be ultra vires and void. Financiers should be warned accordingly.

For all parties, the best compliance strategy is to engage a solicitor experienced in Crown land matters before any lease is signed. The Act is short, but its interaction with the Land Acts, the Kardinia Park Stadium Act and planning law creates a complex web. The lack of judicial interpretation means every assumption should be checked. The council should also review whether any existing leases granted under section 3 have been properly approved and are still within term. If a lease was granted for more than three years without Governor in Council approval, the council should consider applying to the Supreme Court for a declaration of validity or, if not valid, taking steps to regularise the position through a new lease with approval.