Melbourne Lands (Yarra River North Bank) Act 1997

Aquarium site land. The central defined term. Originally only the hatched land on the plan in Schedule 1, but after the 2005 amendment the definition was changed to include both hatched and cross-hatched land (s 3; Sch 1 substituted by No. 67/2005, s 10). The plan itself is not reproduced in the text but is referenced. This is the land on which the lease can be granted and over which passage rights exist.

Stratum of land. The Act defines “stratum of land” broadly: “a part of land consisting of a space of any shape, below on or above the surface of the land, or partly below and partly above the surface of the land, all the dimensions of which are limited” (s 3). This definition allows leases to cover airspace or subsurface volumes, which is relevant for an aquarium development that may involve complex three-dimensional structures. The definition of “land” itself includes a stratum (s 3).

Committee of management. The body responsible for managing the Crown land. Under s 6(d), the Melbourne City Council is deemed the committee of management of the Schedule 2 land after divesting. For the aquarium site land, the council is already the manager under the existing reservations. The committee of management is the lessor and determines covenants, exceptions, reservations and conditions for any lease (s 4(5)(c)). It also determines the times and places for exercise of the right of passage (s 5(1)(b)).

Ministerial approval. A precondition for both the initial grant of a lease (s 4(2)) and any variation of a lease to include additional land (s 4A(2)(a)(i)). The Minister must personally be satisfied of the matters in s 4(3) before approving a new lease. There is no provision for delegation of this approval.

Lease term limits. The Act creates a two-tier limit: an initial term cap of 50 years, and an aggregate cap (initial plus extensions) of 99 years. Each extension cannot exceed 21 years. This is more generous than the default Crown land lease limit but still imposes a maximum that locks in the development’s commercial viability parameters. The Act also allows a holding-over period of up to three months at the lessor’s discretion after lease expiry (s 4(5)(b)).

Divesting. Section 6 divests the Schedule 2 land from the Melbourne City Council. This is a specific transfer of title from a statutory body back to the Crown. The land is then deemed unalienated Crown land, freed from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests. This is effectively a clean slate, after which the land is temporarily reserved for public purposes under the Crown Land (Reserves) Act 1978, with the council immediately appointed as committee of management.

Rights of passage. The leaseholder (and persons authorised by it) have a statutory right to pass and re-pass over the non-leased portion of the aquarium site land, with or without goods or vehicles, but only at times and places determined by the committee of management and only if related to the purposes of the lease (s 5(1)). The committee must be reasonably satisfied that its determination is necessary to give effect to the lease terms (s 5(2)). This right does not affect the public’s existing rights over the land (s 5(3)).

Variation power. Section 4A (added in 2005) allows a lease entered into under s 4 to be varied so that it applies to any part of the aquarium site land, regardless of whether that part was originally subject to the lease. This is a broad power: the lease can effectively be rewritten to encompass additional land within the defined aquarium site land. The variation requires both Minister approval (in writing) and the agreement of all parties to the lease. It operates in addition to any other variation powers.

Transitional provision. Section 8 (also added in 2005) specifically authorises variation of the 13 November 1997 lease between Melbourne City Council and Melbourne Underwater World Pty Ltd to include the cross-hatched land shown on the substituted Schedule 1. It also provides that nothing effected by this section is to be regarded as placing any person in breach of any lease provision, or as fulfilling a condition allowing a remedy or termination. This ensures the variation does not trigger contractual default provisions.

The Act primarily affects three groups: the Melbourne City Council, the State of Victoria (through the Minister and the Crown), and the leaseholder of the aquarium site. The council is the committee of management and the lessor; it must comply with Ministerial directions and preconditions before leasing, and it must make determinations about passage rights (s 5). The Act divests the council of ownership of the Schedule 2 land but then appoints it as committee of management, so the council retains a management role but loses beneficial or freehold interest. The Minister (unnamed in the Act, but likely the Minister for Lands or equivalent) holds a gatekeeping power: no lease or variation can be granted without the Minister’s written approval, and the Minister must be satisfied of specific conditions about the development’s nature, value and compatibility with the reservation (s 4(2)-(3)). This concentrates decision-making authority in the executive.

The leaseholder is the intended commercial beneficiary. Initially Melbourne Underwater World Pty Ltd, the Act’s provisions are tailored to that entity’s lease. The leaseholder gains the right to a long-term lease (up to 99 years) and statutory rights of passage over adjacent Crown land (s 5), which reduces the risk that the council or public could block access. The leaseholder also benefits from the variation power (s 4A, s 8) to expand the leased area to include cross-hatched land added in 2005. The holder of the Flinders Street Viaduct Railway rights under the Transport Act 1983 is also affected: those rights are expressly preserved (s 7). The public is affected in that the Act removes certain public rights by allowing long-term private occupation and restricting passage over the non-leased part to times and places determined by the council, but s 5(3) clarifies that the public’s existing rights are not affected. However, over time the practical effect may be to reduce public access. Other landholders near the site are affected by the requirement in s 4(3)(c) that a stratum lease not interfere with their rights, and that provision be made for support and services. Approval authorities under other laws (planning, environment, building) are implicitly preserved but the Act overrides only the Land Act 1958 and Crown Land (Reserves) Act 1978 for lease term purposes. The Act also affects the Crown as reversioner: after divesting, the Crown holds the Schedule 2 land temporarily reserved, with the council as manager. The compliance burden falls most heavily on the council, which must ensure all Ministerial conditions are met, and on the leaseholder, which must comply with lease covenants and the council’s determinations on passage rights. The Act creates a bespoke regime that sidesteps general Crown land law, concentrating benefits on a single private development while the diffuse costs (loss of public access, potential crowding out of other uses) are borne by taxpayers and the public. There is no competitive tender requirement in the Act; the lease was granted directly to Melbourne Underwater World Pty Ltd.

Duty of committee of management to obtain Ministerial approval. The committee of management (Melbourne City Council) must not grant a lease under s 4(1) unless the Minister has approved it in writing (s 4(2)). This is a condition precedent; any lease granted without approval would likely be void or unenforceable. The same applies to variations under s 4A: the council must obtain Minister approval before varying a lease to include additional land (s 4A(2)(a)(i)).

Minister’s duty to satisfy conditions before approving a lease. Before approving a lease, the Minister must satisfy himself or herself of the matters in s 4(3). These are not mere recommendations: they are mandatory preconditions. For a lease granted before buildings are built, the lease must contain a covenant requiring construction of an aquarium and substantial related works, and those works must be of such nature and value as to justify a lease longer than 21 years. The Minister must make a qualitative judgment about value. If the lease is for a purpose other than the reservation purpose, it must not be detrimental to that purpose. For stratum leases, the Minister must be satisfied about reasonable access, non-interference with other landholders’ rights, provision for support rights, and provision for services (drainage, sewerage, water, gas, electricity, communications). These duties impose a real gatekeeping function, but the Act does not specify what happens if the Minister fails to satisfy these conditions; presumably the approval would be invalid.

Duty of committee of management when making passage determination. When setting times and places for the exercise of the right of passage under s 5(1)(b), the committee must be “reasonably satisfied” that the determination is necessary to give effect to the terms of the lease (s 5(2)). This imposes a standard of reasonableness; the determination can be challenged on judicial review grounds if it is arbitrary or not reasonably necessary.

Right of leaseholder to long-term lease. The leaseholder has a right to a lease with an initial term of up to 50 years and the possibility of extensions up to a total of 99 years, subject to the Minister’s approval and the lease containing the required covenants. This is a valuable right: it provides certainty for a capital-intensive development that would not be achievable under standard 21-year Crown leases.

Right of passage over non-leased land. The leaseholder and persons authorised by it have a right to pass and re-pass over the part of the aquarium site land not subject to the lease, with or without goods or vehicles, subject to the committee’s determinations (s 5(1)). This right is ancillary to the lease and is enforceable against the council, but it does not affect the public’s rights (s 5(3)). The leaseholder cannot exercise the right except at times and places determined by the council, and only for purposes related to the lease.

Right to vary lease to include additional aquarium site land. The leaseholder and the council have the right to vary an existing lease to add any part of the aquarium site land (including the cross-hatched land added in 2005), provided all parties agree and the Minister approves (s 4A). This is a bilateral right: either party could refuse to consent, preventing the variation.

Right to holding over. The leaseholder may remain in occupation for up to three months after lease expiry under the same terms and conditions, but only at the discretion of the lessor (s 4(5)(b)). This is not a tenant’s right; it is a permission that the lessor may grant or withhold.

Rights under Transport Act 1983 preserved. The rights over the Flinders Street Viaduct Railway under the Transport Act 1983 are unaffected by the Act (s 7). This is a duty on anyone acting under the Act not to interfere with those rights. It also means that if the lease or passage rights conflict, the rail rights prevail.

Right of the public. The public’s right to use the aquarium site land is expressly preserved (s 5(3)). However, this right may be limited in practice if the council’s passage determination restricts times and places, or if the lease itself grants exclusive possession of part of the land. The public’s rights are only over the land not subject to the lease; once the lease is granted, the public has no right to enter the leased area.

The Act itself does not create any specific criminal or civil penalties for breach of its provisions. Enforcement relies on general law mechanisms and the terms of the lease. If a lease is granted without Ministerial approval, it would be void or voidable for non-compliance with a statutory condition precedent. The committee of management and its officers could face personal liability for acting without authority, but the Act does not impose a penalty. Similarly, if the Minister approves a lease without having satisfied the s 4(3) conditions, the approval might be challengeable by judicial review, but the Act does not visit any direct penalty on the Minister.

Breach of a covenant in the lease (e.g. failure to construct the aquarium) would be enforceable as a matter of contract law. The lessor (council) could seek damages, specific performance, or termination of the lease. The lease may contain its own penalties or liquidated damages, but these are not specified in the Act. The holding-over period is at the lessor’s discretion; if the lessee remains beyond three months without consent, the lessor could bring a possession action, though the Act does not create a statutory tenancy.

A person who exercises the right of passage outside the times and places determined by the committee, or for purposes unrelated to the lease, would be trespassing. The committee could exclude such persons, and the leaseholder could be liable for breach of lease if it authorises improper use.

The Act does not provide for any statutory enforcement agency. The Crown could rely on its general powers as landowner. The lease is subject to any covenants, exceptions, reservations and conditions determined by the committee and approved by the Minister (s 4(5)(c)), which could include enforcement mechanisms such as re-entry rights.

The preservation of Transport Act 1983 rights (s 7) means that if the lease or passage rights interfere with the Flinders Street Viaduct Railway, the rail authority could seek an injunction or exercise its own statutory powers. The Act does not create a penalty for such interference; it merely states that nothing in the Act affects those rights.

Overall, the Act is an enabling statute that creates no penalty regime of its own. Enforcement is left to the lease instrument and to general property and contract law. This is a typical approach for a project-specific piece of legislation, but it means that compliance relies largely on the diligence of the parties and the willingness of the council to enforce lease terms. There is no independent oversight mechanism beyond the initial Ministerial approval.

The Act explicitly overrides the Land Act 1958, the Crown Land (Reserves) Act 1978, and regulations made under the Crown Land (Reserves) Act 1978, but only to the extent that section 4 has effect despite anything to the contrary in those Acts (s 4(6)). This is a limited override: it applies only to the leasing power under s 4, not to other provisions of the Act or to other laws. For example, the divesting provision in s 6 does not override any other Act; it simply deems the land unalienated and then applies the Crown Land (Reserves) Act 1978. Similarly, the variation power in s 4A operates “despite any law to the contrary”, giving it broad immunity from other laws that might restrict variation of Crown leases, such as the Crown Land (Reserves) Act 1978 or the Land Act 1958.

The Act preserves rights under the Transport Act 1983 in two specific ways: s 7(1) preserves rights over the hatched land in Schedule 1 that apply to the Flinders Street Viaduct Railway, and s 7(2) preserves rights over the cross-hatched land (added in 2005). This means that neither the lease nor the right of passage nor any other provision of the Act can interfere with the rail authority’s rights. In the event of a conflict, the Transport Act 1983 rights prevail.

The Act does not override planning and environment laws, such as the Planning and Environment Act 1987. A lease granted under s 4 does not automatically confer planning permission. The developer would still need to obtain any required planning permits, building approvals, and environmental assessments from the relevant authorities. Similarly, the Heritage Act 1995, the Environment Protection Act 1970, and other laws may apply. The Act’s preamble notes that the land is reserved and vested under other Acts, but the Act does not grant an exemption from those Acts beyond the lease term limit.

The interim occupation period (holding-over) under s 4(5)(b) may interact with the Retail Leases Act 2003 or other tenancy legislation, though the lease is likely a Crown lease and may be exempt.

The divesting of the Schedule 2 land from the Melbourne City Council under s 6 has implications for the Local Government Act 1989: the council loses ownership but gains management. The council’s statutory powers over its own land no longer apply; instead, it acts under the Crown Land (Reserves) Act 1978 as manager. This may affect the council’s ability to sell or otherwise deal with the land.

The Act is made under the Victorian Constitution and prevails over inconsistent State Acts (subject to the Transport Act 1983 preservation). It does not purport to affect Commonwealth laws, native title, or the Torres Strait Islander land rights.

The 2005 amendment (s 8) also provides that the variation of the lease to include cross-hatched land does not trigger any breach of default provisions (s 8(2)). This is a carve-out: it prevents the council or others from using the variation as a basis to penalise the lessee or terminate the lease. But it does not affect any other rights or remedies that may exist independently.

The Act was originally passed in 1997 as Act No. 28/1997, assented to on 27 May 1997. Sections 1 and 2 commenced on that date; the rest commenced on 19 June 1997 by Government Gazette. The Act was amended once, by the Melbourne Lands (Yarra River North Bank) (Amendment) Act 2005 (No. 67/2005), assented to on 11 October 2005 and commencing the next day. The 2005 amendment made several changes. It substituted the definition of “aquarium site land” in s 3 (by inserting the reference to cross-hatched land and repealing the former definition) and added the definition of “stratum of land” (though that was already present; the section notes indicate the definition of “reserved land” was repealed). It inserted a new heading for s 4. It amended s 4(1) to refer to “committee of management of any aquarium site land” (rather than just the land) and to add “related retail, tourism or commercial purposes”. It inserted new s 4A, which provides a power to vary a lease to include any part of the aquarium site land, regardless of original scope, with Minister approval and all parties’ consent. It amended s 5(1) to update references to the new definition of aquarium site land and added s 5(3) to clarify that the passage right does not affect the public’s rights (this was likely already implied but now explicit). It inserted s 7(2) to preserve Transport Act rights over the cross-hatched land. It inserted s 8, a transitional provision allowing the 1997 lease to be varied under s 4A to include the cross-hatched land, and providing that such variation does not constitute a breach of any lease provision. It substituted Schedule 1 with a new plan showing both hatched and cross-hatched land. The information in the Version (12 October 2005) incorporates these amendments. The Endnotes indicate no other amendments.

The published source text does not refer to any cases decided under this Act. A search of Australian legal databases suggests that the Act has not generated any reported litigation. This is unsurprising for a narrow, project-specific statute. The Act grants a single lease to a single lessee, and disputes would likely be resolved privately through contractual mechanisms or through alternative dispute resolution without reaching a reported decision. The Ministerial approval process could be subject to judicial review if a party alleged failure to comply with s 4(3) conditions, but no such challenge appears to have been brought. The variation under s 8 (2005) was effected without litigation. The existence of the Act may have resulted in some planning or environment tribunal cases concerning the development, but those would have been brought under other laws, not under this Act. The lack of litigation is itself notable: it suggests that the bespoke regime was effective in avoiding legal challenges, perhaps because the interests of all affected parties (the council, the developer, the State) were aligned, and the Act provided sufficient legal certainty. However, the absence of litigation also means there is no judicial interpretation of key provisions such as “substantial buildings” or “such a nature and value as to justify a lease of longer than 21 years”. These terms remain untested.

Several features of the Act could catch out practitioners or parties unfamiliar with its provisions. First, the lease term limits are easy to misapply. The initial term cannot exceed 50 years, but the aggregate of the initial term and any extensions cannot exceed 99 years, and each extension must not exceed 21 years. If a 50-year lease is granted, the maximum aggregate via extensions is 49 years, but because each extension is capped at 21, you could have two extensions of 21 and 21 (totalling 92) but then cannot add a third extension of 21 because that would take the aggregate to 113, exceeding 99. So you could do 50 + 21 + 21 = 92, then one more extension of 7 (to reach 99) if allowed. But the lessor must approve each extension. The holding-over period of only three months (s 4(5)(b)) is at the lessor’s discretion, not a right of the lessee. If the lessor refuses, the lessee must vacate immediately after the lease expires.

Second, the variation power under s 4A is broad but requires the consent of all parties. This includes not only the council and the current lessee but also any mortgagees, guarantors, or sublessees who are parties to the lease. The Minister must also approve in writing. No variation can be made without these consents. Practitioners should ensure that the original lease defines “parties” clearly.

Third, the right of passage (s 5) is not a free right. The committee of management determines times and places, and the determination must be reasonably necessary to give effect to the lease. The committee could, for example, limit passage to certain hours, or require the leaseholder to give notice. If the committee’s determination is challenged, it must show a reasonable basis. Also, the right is only over the part of the aquarium site land not subject to the lease; it does not create a right to use other Crown land.

Fourth, the Minister’s duty under s 4(3)(a) requires the Minister to be satisfied that the buildings or works are “of such a nature and value as to justify a lease of longer than 21 years”. This is a subjective test but one that could be judicially reviewed if no reasonable Minister could have been so satisfied. The Act does not specify a minimum value or provide guidelines. The Minister’s decision could be scrutinised for procedural fairness.

Fifth, the divesting under s 6 is absolute: the land is divested from the council “freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests”. This could extinguish existing easements, restrictive covenants, or other third-party rights that are not otherwise preserved by the Act (e.g. under the Transport Act 1983). Parties with interests in the Schedule 2 land should check whether they are protected.

Sixth, the public’s rights under s 5(3) are preserved only over the aquarium site land, not over the Schedule 2 land. The Schedule 2 land is temporarily reserved for public purposes and the council is committee of management, so public access may be maintained, but there is no statutory guarantee.

Seventh, the Act does not deal with assignment or subletting. The lease may contain provisions, but the Act is silent. Therefore, general Crown land law may regulate assignments, or the lease must be drafted carefully.

Eighth, the 2005 amendment added s 7(2) to protect Transport Act rights over cross-hatched land, but it is possible that other rail corridors or infrastructure exist that are not covered. The Act only protects the Flinders Street Viaduct Railway rights.

Ninth, transitional provision s 8(2) only prevents the variation from breaching “a provision of a lease” or “any condition which allows a person to exercise a right or remedy”. It does not prevent other legal consequences, such as stamp duty, GST, or land tax implications. Practitioners should check whether the variation triggers duty.

Tenth, the Act uses the terms “hatched” and “cross-hatched” in Schedule 1, but the plan itself is not reproduced in the text. The boundaries of the aquarium site land depend on the plan, which must be obtained from the relevant government land registry or the council.

Compliance with the Act depends on the role of the entity. For a party seeking to lease aquarium site land (or to vary an existing lease), the following steps are necessary. First, approach the committee of management (Melbourne City Council) with a detailed proposal for the construction or occupation of an aquarium and substantial buildings or works for related retail, tourism or commercial purposes (s 4(1)). The proposal should demonstrate that the works are of such nature and value as to justify a lease exceeding 21 years, as the Minister will need to be satisfied of this (s 4(3)(a)). The lease must include a covenant requiring construction if the buildings are not yet built. Second, the council must apply to the Minister for written approval, providing evidence that the preconditions in s 4(3) are met. If the lease involves a stratum, the council must ensure that access, non-interference with other landholders, support, and services are addressed either in the lease or in separate agreements (s 4(3)(c)). Third, the lease must be drafted to comply with the term limits: initial term not exceeding 50 years, aggregate not exceeding 99 years, each extension not exceeding 21 years, and holding-over not exceeding 3 months (s 4(4)-(5)). The lease should include any covenants, exceptions, reservations and conditions determined by the council and approved by the Minister (s 4(5)(c)). Fourth, the leaseholder must comply with the right of passage restrictions: it may only use the non-leased area at times and places determined by the council, and only for purposes related to the lease (s 5). The council should make a written determination specifying the times and places, ensuring it is reasonably necessary to give effect to the lease (s 5(2)). The council should also maintain the public’s rights over that area (s 5(3)). Fifth, if a variation is sought to add land (e.g. cross-hatched land under the 2005 amendment), all parties to the lease must agree in writing, and the council must again obtain Minister approval (s 4A(2)). The variation should be documented by deed or agreement, and the transitional provision (s 8) provides that the variation does not trigger default. For the Schedule 2 land, the council’s role after divesting is as committee of management under the Crown Land (Reserves) Act 1978. The council should ensure it continues to manage that land for public purposes, subject to that Act. The council should also respect the preserved Transport Act 1983 rights: it should not grant any lease, right of passage, or other interest that interferes with the Flinders Street Viaduct Railway. Any development on the aquarium site land should also comply with all other applicable laws, including planning and environment approvals, building permits, and heritage considerations. The lease should be registered if possible to provide notice to third parties. The council should keep records of all Ministerial approvals and determinations. For the leaseholder, the key compliance obligation is to honour the covenants, especially the construction covenant, and to use the passage rights only as permitted. Non-compliance could lead to enforcement by the council, including termination of the lease. There is no specific regulator under the Act; the council as lessor is the primary enforcer. Given the Act’s narrow scope, a prudent developer would also seek legal advice on the impact of other legislation not overridden by the Act.