Melbourne Lands and Market Sites Act 1991

The Act operates around four key concepts. First, revocation of reservation and Crown grant under section 3. This is the legal mechanism that removes the land from its prior public-purpose reservation and returns it to unalienated Crown land. The Schedule identifies the specific instrument being revoked: the Order in Council dated 1 May 1934 which reserved the land for municipal and other purposes via Government Gazette notices on 28 March 1934 (page 735) and 7 May 1934 (page 971). The revocation is limited to the land in Crown Grant Volume 5914 Folio 755. Second, deemed unalienated Crown land under section 6(1)(a). Upon revocation, the land is deemed unalienated land of the Crown and is freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, charges, leases, licences, estates, interests, taxes and rates. This is a sweeping discharge provision that wipes prior interests clean, subject only to the saving for existing leases and sub-leases in sections 6(2) and 6(3). Third, Ministerial sale discretion under section 4. The Minister may sell all or any part of the land to a person or body the Minister approves, for any consideration and on any terms and conditions the Minister determines. This is an unfettered discretion: no requirement for public tender, market valuation, or parliamentary approval of the sale terms. The only financial constraint is that net proceeds go to the Victorian Debt Retirement Fund. Fourth, fee simple grant with Crown-imposed conditions under section 7(1). Upon sale, the Governor in Council may grant the land in fee simple subject to any terms, conditions, covenants, exceptions, reservations and limitations the Governor in Council may determine. This creates a freehold title that may carry ongoing encumbrances imposed at the grant stage, even though prior encumbrances were discharged under section 6(1)(a). The Act also establishes an agreement power under section 9, allowing the Minister to enter agreements with grantees, lessees or occupiers concerning use of sale proceeds to discharge tax, rate or charge liabilities; and with the City of Melbourne concerning protection of public or municipal interests, conservation of land sold, or distribution of sale proceeds to the Council. The Consolidated Fund is appropriated to make payments under such agreements (section 9(4)).

The Act directly affects a narrow set of parties but carries indirect consequences for broader groups. The primary affected party is the Crown in right of the State of Victoria, which held the Western Market Site under reservation and Crown grant and now authorises its own Minister to sell it. The Minister administering the Act (portfolio minister) exercises significant discretionary powers: approval of purchaser, determination of sale terms, execution of documents, and entry into agreements with the City of Melbourne and with existing grantees, lessees or occupiers. The City of Melbourne is a specifically named counterparty for agreements under section 9(2) concerning protection of public or municipal interests, conservation, or distribution of sale proceeds. The Council may receive proceeds of sale under such an agreement, creating a direct financial interest. Existing lessees and sub-lessees of the land are affected because their leases survive the revocation but the lessor changes: the lease is notionally assigned to the Minister on revocation (section 6(2)), and then to the purchaser on sale (section 7(2)). Lessees do not lose tenure but their landlord changes without their consent, and the terms of the lease refer to a new lessor. The purchaser of the land receives fee simple title but subject to any terms, conditions, covenants, exceptions, reservations and limitations the Governor in Council determines (section 7(1)), and subject to any existing leases that continue under section 7(2). The Victorian Debt Retirement Fund receives the net sale proceeds after deduction of costs and amounts payable under agreements. Taxing authorities are affected because section 8(2) preserves existing liability for tax, rates or charges payable under an Act that existed before the revocation. Section 8(3) preserves proceedings before a Court concerning land tax liability. The Supreme Court of Victoria is affected because section 12 alters section 85 of the Constitution Act 1975 to prevent the Court awarding compensation for anything done under or arising out of the Act. The Registrar-General and Registrar of Titles are required under section 13 to make necessary amendments to records, enrolments, memorials, the Register Book, certificates of title, and other instruments. The public is indirectly affected because the Western Market Site, formerly reserved for municipal and other purposes, passes into private ownership and is no longer held for public purposes. Past and future litigants seeking compensation for acts done under the Act are barred by section 11 (no compensation payable by the Crown) and section 12 (limitation of Supreme Court jurisdiction).

The Act creates limited duties and extensive discretions. Duties of the Minister: the Minister must pay net sale proceeds (after deducting costs, expenses, and amounts payable under agreements) into the Victorian Debt Retirement Fund (section 4(4)). The Minister must also act on behalf of the Crown when selling land or executing documents (sections 4(1) and 4(3)). The Minister may, but is not required to, enter into agreements with existing grantees, lessees or occupiers concerning use of sale proceeds to discharge tax, rate or charge liabilities (section 9(1)), and may but is not required to enter agreements with the City of Melbourne (section 9(2)). These are permissive powers, not mandatory duties. Duties of the Governor in Council: upon sale, the Governor in Council may grant the land in fee simple, subject to any terms, conditions, covenants, exceptions, reservations and limitations the Governor in Council may determine (section 7(1)). This is also permissive. Duties of the Registrar-General and Registrar of Titles: each must make entries, amendments, and recordings necessary because of the Act's operation (section 13). This is mandatory and uses the word "must". The Registrar of Titles must amend the Register Book, Crown Grants, duplicate Crown Grants, certificates of title, duplicate certificates of title, or other instruments as necessary (section 13(3) transitional reading). Rights of the purchaser: the purchaser receives fee simple title upon grant (section 7(1)), but that title is subject to any conditions the Governor in Council determines and to any existing leases that survive under section 7(2). The purchaser steps into the lessor's role under any existing lease (section 7(2)(a)-(b)). Rights of lessees: existing leases continue in force with the lessor changing to the Minister on revocation (section 6(2)) and then to the purchaser on sale (section 7(2)). Lessees have no right to consent to or approve the change of landlord; the Act effects the assignment by force of law. Rights of sub-lessees: sub-leases continue unaffected by the revocation (section 6(3)). Rights of the City of Melbourne: the Council may be a party to agreements with the Minister concerning protection of public or municipal interests, conservation, or distribution of sale proceeds (section 9(2)). The Council has no veto over the sale or its terms. Rights of existing grantees, lessees and occupiers: they may enter agreements with the Minister concerning use of sale proceeds to discharge their liability for taxes, rates or charges (section 9(1)). They have no right to compensation under the Act (section 11). Rights of persons holding trusts, limitations, reservations, restrictions, encumbrances, charges, leases, licences, estates, interests, taxes and rates: those rights are extinguished upon revocation, except for leases and sub-leases expressly saved (section 6(1)(a) read with sections 6(2)-(3)). No right to compensation: section 11 states no compensation is payable by the Crown for anything done under or arising out of the Act. Section 12 makes clear this ouster extends to the Supreme Court by altering section 85 of the Constitution Act 1975 to prevent the Court from awarding compensation for acts done under or arising out of the Act.

The Act contains no penalty provisions. No offence provisions are created, no fines, imprisonment terms, or infringement notices are established. The enforcement mechanisms are entirely structural and procedural rather than punitive. Enforcement through record-keeping: the Registrar-General and Registrar of Titles must make the necessary amendments to records, the Register Book, Crown Grants, certificates of title and other instruments (section 13). This is a mandatory duty; failure to comply would be a breach of statutory duty, but no specific penalty is provided. Enforcement through the ouster of compensation: sections 11 and 12 operate as a bar to any claim for compensation against the Crown. Section 11 states no compensation is payable by the Crown for anything done under or arising out of the Act. Section 12 alters section 85 of the Constitution Act 1975 to prevent the Supreme Court from awarding compensation for acts done under or arising out of the Act. This is a limitation on judicial jurisdiction rather than a penalty, but it functions as a de facto enforcement mechanism against anyone who might seek to challenge the Act's effects through compensation claims. Enforcement of lease continuity: the Act achieves legal continuity of leases and sub-leases through statutory assignment provisions (sections 6(2)-(3) and 7(2)), rather than through penalty-backed obligations. Enforcement of the Minister's discretion: the Minister's powers under section 4 are discretionary and not subject to statutory criteria or appeal mechanisms. A person aggrieved by the Minister's decision on sale terms, purchaser approval, or agreement terms would have limited recourse given the breadth of the discretion and the ouster of compensation. Enforcement of the Crown's immunity from compensation: the Act's provisions are self-executing and do not require further enforcement action. The Crown does not pay compensation and the Supreme Court cannot order it. No enforcement powers for private parties: the Act does not create any private right of action. A lessee aggrieved by the change of lessor, or a holder of an extinguished encumbrance, has no statutory remedy under the Act. No enforcement role for the Ombudsman, VCAT, or other tribunals: the Act does not confer jurisdiction on any tribunal. The only court mentioned is the Supreme Court, and its jurisdiction is limited by section 12.

The Act contains a sweeping paramountcy clause in section 10: "This Act has effect despite anything to the contrary in any other Act or law." This means the Act overrides inconsistent provisions in any other Victorian statute, subordinate legislation, common law, or equitable principle. The Act explicitly interacts with several specific laws. Constitution Act 1975: section 12 of this Act alters or varies section 85 of the Constitution Act 1975 to prevent the Supreme Court awarding compensation for anything done under or arising out of this Act. This required absolute majorities in both Houses as noted in the Endnotes. Melbourne Market and Park Lands Act 1933: this Act is amended by section 1(c), and the land description in Part III of the Second Schedule to that Act is used to identify the land the Minister may sell under section 4(1). Melbourne Market and Park Lands Act 1955: this Act is also amended by section 1(c). Crown Land (Reserves) Act 1978: section 6(1)(c) revokes any regulations made or having effect under section 13 of that Act to the extent they apply to the land. Historic Buildings Act 1981: section 8(1) provides that this Act does not affect the operation of the Historic Buildings Act 1981. This is a savings provision: any heritage protections under that Act survive the revocation and sale. Transfer of Land Act 1958: section 13(2) requires the Registrar of Titles to make amendments to the Register under that Act as necessary. Section 13(3) contains a transitional provision referencing the Transfer of Land (Computer Register) Act 1989. Victorian Debt Retirement Fund Act 1990: net sale proceeds must be paid into the Victorian Debt Retirement Fund established under that Act (section 4(4)). Land (Revocation of Reservations) Act 1994: this Act repealed Parts 4 and 5 (sections 14 and 15) of this Act (No. 55/1994 section 8). General land tax and rating laws: section 8(2) preserves existing liability for any tax, rate or charge payable under an Act that existed before the revocation. Section 8(3) preserves court proceedings concerning land tax liability. Common law and equitable interests: section 6(1)(a) frees and discharges the land from all trusts, limitations, reservations, restrictions, encumbrances, charges, leases, licences, estates, interests, taxes and rates, subject only to the savings for leases and sub-leases. This extinguishes all prior private law interests not specifically saved. Section 85 Constitution Act 1975 limitation: the Act includes a section 85(5) statement as required by the Constitution Act 1975 when a statute limits the Supreme Court's jurisdiction. Absolute majorities were obtained in both Houses. The Act thus operates as a statutory override of the Supreme Court's supervisory jurisdiction for compensation claims.

The Act as at this version (No. 001, incorporating amendments as at 15 August 2000) has been amended by two subsequent Acts. Melbourne Lands and Market Sites (Amendment) Act 1992 (No. 21/1992): received assent on 16 June 1992 and commenced on the same day. This Amendment Act inserted section 6(2) and section 6(3), which saved the continuity of existing leases and sub-leases upon revocation of the reservation and Crown grant. It also inserted section 7(2), which saved lease continuity upon sale by notionally assigning the lease to the purchaser. These amendments addressed a gap in the original Act: the original section 6(1)(a) had freed and discharged the land from all leases, which would have terminated existing leases. The 1992 amendments preserved leasehold interests by deeming them to continue with the Minister as lessor on revocation, and with the purchaser as lessor on sale. Section 3(a) of the amending Act amended the opening words of section 6(1). Section 3(b) inserted the new subsections (2) and (3). Section 4(a) amended section 7(1) to add "Subject to this section". Section 4(b) inserted new section 7(2). Land (Revocation of Reservations) Act 1994 (No. 55/1994): received assent on 15 June 1994. Section 8 of this Act repealed Parts 4 and 5 (headings and sections 14 and 15) of the principal Act. Section 2(1) provided that section 9 of the 1994 Act commenced on 30 June 1992 (retrospectively). Section 2(2) provided that the rest of the Act commenced on 15 June 1994. The repealed sections are not included in this version and their content is not recoverable from the text. The Endnotes confirm that Part 4 (section 14) was never proclaimed and was repealed by section 8 of No. 55/1994. Section 14 therefore never came into operation. Section 15 (Part 5) was also repealed by the same provision. Commencement history: Part 1 (sections 1 and 2) and Part 3 (sections 6-13) and Part 5 (section 15) commenced on 10 December 1991, the date of Royal Assent. Part 2 (sections 3-5) commenced on 17 June 1992, following the Minister's certification and proclamation in the Government Gazette on 17 June 1992 page 1482, with a prior notice on 10 June 1992 page 1440. Part 4 (section 14) was never proclaimed and was repealed. The Act required section 2(2) to operate in two steps: the Minister first certified by notice in the Government Gazette that a contract for sale was about to be entered into, and Part 2 then commenced on a day to be proclaimed after that certification.

The Act contains no explicit reference to any court cases or litigation. The explanatory details endnote states "No entries at date of publication". However, the Act itself anticipates and limits potential litigation. Anticipated litigation: section 8(3) explicitly preserves "any proceedings before a Court concerning liability to pay land tax in respect of any land to which this Act applies". This indicates that land tax disputes were either pending or anticipated at the time of enactment. Litigation barred: sections 11 and 12 are designed to prevent litigation seeking compensation for acts done under the Act. Section 11 states no compensation is payable by the Crown. Section 12 alters section 85 of the Constitution Act 1975 to prevent the Supreme Court awarding compensation. This ouster provision would be challenged on constitutional grounds if a compensation claim were brought, creating a potential jurisdictional dispute over whether the alteration of section 85 by a simple majority was valid (the Endnotes confirm absolute majorities were obtained). Potential litigation grounds: despite the ouster clauses, litigation could arise on several grounds. The Minister's discretion under section 4 is broad but could be challenged for procedural failure (e.g., failure to certify before proclamation under section 2(2)). The Registrar-General's or Registrar of Titles' amendments under section 13 could be challenged for error. The survival of leases under sections 6(2)-(3) and 7(2) could generate disputes between lessees and the Minister or purchaser over terms, rent, or the statutory assignment mechanism. The saving provision for the Historic Buildings Act 1981 (section 8(1)) could generate disputes if heritage protections are alleged to be affected. The extinguishment of interests under section 6(1)(a) could generate claims from holders of extinguished interests who were not lessees or sub-lessees, but compensation would be barred by sections 11 and 12. No reported decisions: without access to a case law database in the source text, no specific reported decisions can be identified from the Act itself. The Act's endnotes contain no entries. A reader would need to check Victorian Supreme Court and VCAT databases for any litigation involving section 85 of the Constitution Act 1975, the definition of "compensation" under sections 11 and 12, or disputes about lease continuity under sections 6 and 7.

The Act contains several traps for the unwary. Section 10 paramountcy: the Act overrides all other Acts and laws. Any provision in any other Victorian statute, common law rule, equitable principle, or subordinate instrument that is inconsistent with this Act is displaced. This includes planning laws, environmental laws, and land use controls unless expressly saved. Only the Historic Buildings Act 1981 is explicitly preserved (section 8(1)). No compensation - any act: section 11 bars compensation for "anything done under or arising out of this Act". This is extraordinarily broad. It covers not just the sale itself but any act done under the Act and anything arising out of the Act. A person whose interest is extinguished by section 6(1)(a) has no claim for compensation. A lessee who suffers loss due to the change of lessor has no claim. A neighbour whose property value is affected by the sale has no claim. The Crown is immune. Supreme Court jurisdiction stripped: section 12 makes clear the above ouster extends to the Supreme Court by altering section 85 of the Constitution Act 1975. This is a rare and serious step. The Supreme Court cannot award compensation for anything done under or arising out of the Act. This limits the court's supervisory jurisdiction and removes the usual avenue for challenging government action. Existing leases survive but lessor changes: lessees under existing leases do not have the right to approve the new lessor (the Minister on revocation, the purchaser on sale). The change happens by force of law without consent. The lease continues as if assigned to the Minister or purchaser. Lessees should review their lease terms carefully to ensure no provision is triggered by the change of lessor. Existing sub-leases survive: section 6(3) saves sub-leases, but the Act does not address what happens if the head lease is terminated or varied after revocation. Sub-lessees should verify the status of the head lease. All other interests extinguished: trusts, limitations, reservations, restrictions, encumbrances, charges, licences, estates, interests, taxes and rates are all discharged (section 6(1)(a)). A person holding a restrictive covenant, easement, profit a prendre, or other non-lease interest loses it. The Act does not provide for notice to these interest holders. No public consultation or tender required: the Minister may sell to "a person or body approved by the Minister" (section 4(1)) without any requirement for public tender, valuation, or parliamentary approval. The sale terms are determined entirely by the Minister (section 4(2)). Fee simple subject to Crown-imposed conditions: the purchaser receives fee simple but subject to any terms, conditions, covenants, exceptions, reservations and limitations the Governor in Council determines (section 7(1)). The purchaser cannot be certain of the final title terms until the grant is made. These conditions could restrict future use, development, or dealing. Victorian Debt Retirement Fund destination: net sale proceeds go to the Victorian Debt Retirement Fund, not consolidated revenue or any fund related to market sites, parks, or municipal purposes. The sale does not generate funds for the City of Melbourne unless the Minister enters an agreement under section 9(2)(c). Agreement power is discretionary: the Minister may but is not required to enter agreements with the City of Melbourne or with existing interest holders. The City of Melbourne has no right to proceeds or to protection of public interests absent an agreement. Lease continuity upon sale: the purchaser becomes lessor under any existing lease by force of law (section 7(2)). The purchaser should conduct due diligence on existing leases before buying, as the lease terms are binding. Historic Buildings Act 1981 preserved: section 8(1) says this Act does not affect the Historic Buildings Act 1981. Heritage protections survive the sale. A purchaser should check whether the land is subject to heritage controls. Land tax liability preserved: any existing liability for tax, rates or charges payable under an Act before the revocation is not extinguished (section 8(2)). Proceedings concerning land tax liability are preserved (section 8(3)). A purchaser or lessee could inherit outstanding land tax liabilities. Part 2 commencement condition: Part 2 (the sale provisions) only commenced after the Minister certified that a contract for sale was about to be entered into and a day was proclaimed. The sale could not occur before this certification and proclamation. The certification was published in the Government Gazette on 10 June 1992, and Part 2 commenced on 17 June 1992. Parts 4 and 5 repealed: what was in sections 14 and 15 is not stated in this version. Anyone researching the Act's full history must locate the original Act or the repealing Act (No. 55/1994) to know what was removed. Section 14 was never proclaimed, so it never had legal effect.

Compliance obligations vary by party. For the Minister: ensure that Part 2 has been properly commenced before selling any land (section 2(2)). Certify by notice in the Government Gazette before the sale contract is entered into. Sell only the land described in Part III of the Second Schedule to the Melbourne Market and Park Lands Act 1933. Sell to a person or body the Minister approves (section 4(1)). Determine the consideration, terms and conditions (section 4(2)). Execute any documents necessary to give effect to the sale (section 4(3)). Pay net proceeds into the Victorian Debt Retirement Fund after deducting costs, expenses and amounts payable under agreements (section 4(4)). Consider whether to enter agreements with existing grantees, lessees or occupiers concerning use of sale proceeds to discharge tax, rate or charge liabilities (section 9(1)). Consider whether to enter agreements with the City of Melbourne concerning protection of public or municipal interests, conservation, or distribution of sale proceeds (section 9(2)). Do anything necessary to carry out any such agreements (section 9(3)). Ensure the Consolidated Fund is appropriated for any payments under agreements (section 9(4)). For the Governor in Council: upon sale, grant the land to the purchaser in fee simple, subject to any terms, conditions, covenants, exceptions, reservations and limitations determined (section 7(1)). Ensure any existing leases are reflected in the grant and that the purchaser is aware of the statutory assignment of the lease under section 7(2). For the Registrar-General and Registrar of Titles: make all entries on the records of enrolment of any Crown Grant and on any memorial relating to land that are necessary because of the Act's operation (section 13(1)). Make any amendments to the Register under the Transfer of Land Act 1958 that are necessary (section 13(2)). If the Transfer of Land (Computer Register) Act 1989 section 7 is not in operation, amend the Register Book, Crown Grants, duplicate Crown Grants, certificates of title, duplicate certificates of title, and other instruments as necessary (section 13(3) transitional reading). Act promptly and accurately to reflect the revocation, discharge of interests, and new grant. For the purchaser: conduct due diligence on the land before purchase. Identify any existing leases or sub-leases that survive under sections 6(2)-(3) and 7(2). Review the terms of those leases as the purchaser will become lessor by statutory assignment. Check whether the land is subject to the Historic Buildings Act 1981 (section 8(1)). Check for any existing tax, rate or charge liabilities that survive under section 8(2). Review the terms, conditions, covenants, exceptions, reservations and limitations the Governor in Council proposes to impose on the fee simple grant (section 7(1)). Ensure the grant is registered with the Registrar of Titles and that the title reflects the new ownership and any conditions. For existing lessees and sub-lessees: confirm the lease or sub-lease continues in force after revocation and sale. Note that the lessor changes to the Minister on revocation (section 6(2)) and to the purchaser on sale (section 7(2)). Continue paying rent and performing obligations under the lease to the new lessor. Review the lease for any provisions triggered by a change of lessor or assignment. If the lease requires consent to assignment, note that the Act effects the assignment by force of law and the lessee's consent is not required. For the City of Melbourne: determine whether to seek an agreement with the Minister under section 9(2) concerning protection of public or municipal interests, conservation of land sold, or distribution of sale proceeds. The Council has no automatic right to proceeds or protections; these must be negotiated. For existing grantees, lessees or occupiers with tax, rate or charge liabilities: consider whether to seek an agreement with the Minister under section 9(1) regarding use of sale proceeds to discharge those liabilities. For any person holding an interest discharged by section 6(1)(a) (trust, limitation, reservation, restriction, encumbrance, charge, licence, estate, interest, tax or rate): accept that the interest is extinguished. No compensation is payable by the Crown (section 11). No application to the Supreme Court for compensation is possible (section 12). Seek legal advice on any residual rights outside the Act. For the Registrar of Titles: ensure the new grant is registered and the prior Crown grant is cancelled or noted. Ensure all discharged interests are removed from the title. Ensure any existing leases are recorded on the title if they were previously recorded, and that the new lessor is noted. Comply with both the Transfer of Land Act 1958 and this Act.