Reserves and Road Closure Act 1972

The Act operates on several recurring legal concepts drawn from the Crown land management framework.

Crown reserve: Land set apart under the Land Act (originally the Land Act 1898, later the Land Act 1933) for a specific public purpose, such as recreation, hall site, national park, or conservation. A reserve is not freehold; it is Crown land dedicated to a purpose, often with a trustee or vesting body.

Class A reserve: A category of reserve with the highest level of protection under the Land Act. Class A reserves cannot be cancelled or have their purpose changed except by an Act of Parliament. That is precisely why this Act exists - because ordinary executive action could not alter these reserves. Sections 2, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, and 17 all deal with Class A reserves.

Vesting: The process by which the Crown places a reserve under the control of a body (e.g., a local government, a board, the RSL). The body holds the reserve in trust for the stated purpose. Vesting can be with or without power to lease. For example, section 3 vests the new reserve in the Shire of Collie “for that purpose, with power to lease”.

Cancellation: The formal extinguishment of a reserve. When a reserve is cancelled, the land reverts to unallocated Crown land, subject to any further direction in the Act. Sections 2, 3, 4, and 17(1) and (3) effect cancellations. After cancellation, the Act often directs what happens next - sale, re-reservation, or inclusion in another reserve.

Amendment: The alteration of a reserve’s boundaries by excising a portion. The excised land is then dealt with separately - either sold, reserved for a new purpose, included in another reserve, or dedicated as a road. Sections 5, 6, 8, 9, 10, 11, 13, 14, 15, and 16 effect amendments by excision.

Purpose change: The alteration of the purpose for which a reserve is held, without cancelling the reserve. Sections 6, 7, and 17(4) change purposes.

Road closure: The legal extinguishment of a public or private road and the cessation of all rights of way. Section 12 closes a private road extension in Mt Hawthorn, vests the land in the Crown, and removes it from the Torrens system (Transfer of Land Act 1893). The Governor may then dispose of the land.

Fee simple sale: Section 2 authorises the RSL to sell the cancelled reserve land “for an estate in fee simple freed and discharged from all trusts”. This is unusual because it converts Crown land into freehold by private sale, with the proceeds directed to a specific purpose.

Crown lease cancellation: Section 3 cancels a 999-year Crown lease held by trustees and re-reserves the land. The Act does not compensate the trustees for the loss of the lease - it simply extinguishes it by operation of law.

Dedication: Section 4 dedicates land as State forest under the Forests Act 1918. Dedication is a statutory process that brings the land under the management regime of that Act.

Disposal: Sections 11 and 14 authorise the sale of excised land to the Commonwealth and to private individuals, respectively, at stated prices ($1,900 each for the two portions in section 14, totalling $3,800).

The Act directly affects specific entities and individuals holding rights or responsibilities over the 17 land parcels, as well as anyone who may have had an interest in the closed road.

Trustees and vestees: The Returned Services League of Australia, WA Branch Incorporated (section 2) is both the trustee being divested and the entity authorised to sell the land. The Friendly Societies Council of Collie through its trustees (section 3) loses its Crown lease. The Shire of Collie gains a new reserve with power to lease. The Minister for Mines (section 4) is the vestee of the cancelled reserve; the land becomes State forest under the Forests Act 1918, which likely transfers management to the Forest Department. The Shire of Harvey (section 6) loses its vesting of Reserve 26270 for a National Park; the reserve is now for Conservation of Flora and vested in whom? The Act cancels the Order in Council vesting in the Shire but does not re-vest it - it simply changes the purpose. The National Parks Board of Western Australia (section 7) has its vesting purpose changed from Conservation of Flora and Fauna to National Park. The Shire of Boulder (section 8) loses land excised from its Recreation reserve but gains a new reserve for Caravan Park with power to lease. The Shire of Goomalling (section 9) loses a portion of its recreation reserve but gains a Homes for the Aged reserve. The Shire of Mandurah (section 13) loses a small excision that becomes a Sewerage Pumping Station reserve. The Shire of Armadale-Kelmscott (section 14) loses a further excision from its Parklands reserve. The Shire of Murray (section 17) loses Reserve 2991 (Resting Place for Travellers) and Reserve 17037 (Camping) but gains a smaller Recreation reserve (about 20 ha) and sees the balance of those lands absorbed into Reserve 23756 for Conservation of Flora and Fauna (now under the vesting of that reserve - which is not stated).

Private individuals: Giuseppe Antonio Raschella and Nicola Vincenzo Raschella, orchardists of Bedfordale (section 14), are authorised to receive a Crown grant of the excised land for a total price of $3,800 (two $1,900 payments). The Commonwealth of Australia (section 11) purchases two small portions excised from Reserve 27632 near Cocklebiddy.

Government departments: The Main Roads Department (section 15) gains a vesting of a portion of the excised land for a Sandpit reserve, and also gets a separate portion for a Radio Transceiver Base Station under section 16 (though section 16 says “Radio Transceiver Base Station (Main Roads Department)” - the reserve is not vested in the Department but reserved for that purpose; it does not specify a vesting body). The Western Australian Wild Life Authority (section 11) loses a tiny excision from its very large reserve (616,941 ha) but retains the rest.

Road users and adjacent landowners: Section 12 closes the private road extension of Hawthorn Street in Mt Hawthorn. Anyone who had a right of way or easement over that road loses it. The City of Perth is affected because the road was within its district.

General public: Users of recreational reserves lose access to excised portions in some cases (e.g., the excision for a caravan park at Boulder, sewerage pumping station at Mandurah, sandpit at Wagerup, radio tower at Boyanup). However, in most cases the new uses are still public purposes.

The Act imposes few ongoing duties; it is largely self-executing. The main duties are:

• RSL’s duty to apply proceeds: Under section 2(2), the RSL may sell the land but must apply the whole of the proceeds to the War Veterans’ Home at Mt Lawley. This is a mandatory direction. If the RSL sold the land and used the money elsewhere, it would likely be in breach of a statutory trust, though the Act does not specify enforcement mechanisms.

• Governor’s authority to grant land: Section 14(2) authorises the Governor to grant the excised land to the Raschellas for a specified sum. This is a power, not a duty, but the language implies it must be done “as a Crown Grant in the form of the Third Schedule to the Land Act 1933”. The Governor could presumably refuse, but the Act’s intention is clear.

• Duty to dedicate roads: Sections 6(3)(a) and 15(3) require that certain excised portions be dedicated as public roads. This is a positive duty on the executive to take the necessary steps under the relevant legislation.

• Vesting and re-reservation: Sections that re-reserve excised land or cancel reserves and create new ones impose a duty on the relevant authorities to update the land registers and administer the new reserves. For example, section 8(2) says the excised land “shall be reserved again for the purpose of ‘Caravan Park’ and vested in the Shire of Boulder”. The Governor in Council must issue the necessary orders.

• Removal from Torrens system: Section 12(2)(a) vests the closed road land in the Crown “as of Her former estate and removed from the operation of the Transfer of Land Act 1893”. This means the land is no longer under Torrens title - it reverts to old system title, which can complicate future dealings. The Crown must manage this transition.

• Rights extinguished: The Act extinguishes the RSL’s trust over Reserve 18516 (section 2), the Crown lease of the Collie trustees (section 3), the vesting order of the Shire of Harvey for a national park (section 6), the National Parks Board’s vesting for conservation (section 7), and all rights of way over the closed road (section 12). No compensation is provided for these extinguishments - the Act simply abolishes them by force of law.

• Power to lease: Sections 3(2) and 8(2) give the respective shires power to lease the new reserves. This is a right, not a duty. It allows the shires to generate revenue from the land for the stated purpose.

• Right to sell: Section 2(2) gives the RSL the right to sell the land in fee simple - but only if it does so. The RSL is not compelled to sell; it may retain the land as freehold. But the Act does not specify what happens if the RSL does not sell; presumably the land remains Crown land (since the reserve is cancelled) but the RSL still holds the certificate of title? There is a gap: the cancellation of the reserve does not automatically transfer the land to the RSL freehold; it merely makes the land “available from the reserve” and says the RSL may sell it. The RSL may need to take steps to convert its interest into a freehold title before sale.

The Act contains no penalty provisions, no offence-creating clauses, and no enforcement mechanisms. It does not prescribe what happens if a trustee fails to apply proceeds as directed, if the Governor does not grant the land to the Raschellas, or if a shire does not lease a reserve. This is typical for a conveyancing Act of this era; it relies on the underlying land management laws and general legal principles such as the law of trusts.

• Breach of statutory direction: If the RSL sold the land and misapplied the proceeds, the War Veterans’ Home could potentially seek a remedy through the Supreme Court for breach of statutory trust. But the Act does not create a private right of action. The Attorney General could bring relator proceedings.

• Failure to execute grants or dedications: If the executive did not carry out the directions (e.g., to dedicate a road), a person with sufficient interest could seek mandamus to compel performance. But given the Act is over 50 years old, these actions would likely have been performed long ago.

• Interaction with other Acts: The Act does not repeal penalties under the Land Act or Forests Act. A person who interferes with a reserve that has been re-reserved (e.g., the new Caravan Park reserve at Boulder) would be subject to the usual penalties under the Land Act. Similarly, the Forests Act 1918 contains offences for unauthorised activity in State forest, which would now apply to the land under section 4.

• No private enforcement rights: The Act is a public Act that benefits specific parties (e.g., the Raschellas, the RSL). But it does not explicitly confer a right to sue. The Raschellas could enforce their right to a Crown grant by seeking an order for specific performance against the Crown, but this is speculative.

• Effect of road closure: Section 12 says rights of way “cease on and from the date of coming into operation of this Act”. That is immediate and self-executing. No enforcement needed; any continued use of the road after closure would be trespass, actionable by the Crown or any new owner.

• No monetary penalties: The Act imposes no fines. Its only “penalty” is the loss of existing rights without compensation - a feature of legislative extinguishment. The Collie trustees lose their 999-year lease; the Minister for Mines loses a reserve; the Shire of Harvey loses its vesting; road users lose access. This is a form of uncompensated expropriation, but one that is legally valid because Parliament can override property rights by statute (subject to any constitutional limits, which are not relevant here given the Act predates certain protections).

The Act explicitly interacts with several Western Australian statutes, either by overriding them, invoking them, or cross-referencing them.

• Land Act 1933 (and predecessor Land Act 1898): This is the foundational Act for Crown land administration in Western Australia. The Reserves and Road Closure Act 1972 uses concepts from the Land Act: reserves, Class A classification, vesting, Crown leases, and Crown grants. Section 11 authorises a sale under section 7 of the Land Act 1933. Section 14(2) directs the Governor to grant land in the form of the Third Schedule to the Land Act 1933. Importantly, because the reserves altered are Class A, they could only be changed by an Act of Parliament - hence this Act overrides the Land Act’s ordinary administrative procedures. The Act does not repeal sections of the Land Act but creates exceptions for these specific parcels.

• Forests Act 1918: Section 4(2) directs that the cancelled reserve land “shall be dedicated as State forest under the provisions of the Forests Act 1918”. This brings the land under the management of the Forests Act and its regulatory regime for logging, fire management, and public access. The Forests Act would govern any future changes to that land.

• Transfer of Land Act 1893: Section 12(2)(a) removes the closed road land from the operation of the Transfer of Land Act. This means the land ceases to be under the Torrens system of registered title. Any existing certificates of title for the road or adjoining lots may need to be amended. The land reverts to old system title, which may complicate future dealings. The Act also uses Land Titles Office Plan references (section 12) and Lands and Surveys diagrams.

• Reserves Act 1970: Section 14 explicitly references the Reserves Act 1970, which had previously excised a portion of Reserve 4561 and sold it to the Raschellas for $1,900. The 1972 Act makes a further excision from the same reserve, again to the Raschellas, for another $1,900. The two Acts together result in the Raschellas acquiring 2.7166 hectares (1.3583 ha in 1970 plus 1.3583 ha in 1972) for a total price of $3,800. This shows how this Act supplements a prior Act.

• Land Information Authority Act 2006: The Notes to the compilation mention that Lands and Surveys and Lands Titles Office plans and diagrams are now held by the Western Australian Land Information Authority (Landgate). This is a procedural update that does not affect the substance of the Act.

• Local Government Act (implied): The Act vests reserves in shires (Collie, Harvey, Boulder, Goomalling, Mandurah, Armadale-Kelmscott, Murray). These shires hold the land in trust for the stated purpose. The management of those reserves would be subject to the Local Government Act’s requirements for dealing with property. However, the Act gives some shires “power to lease”, which may override any restrictions in the Local Government Act.

• Native Title: The Act predates the Native Title Act 1993 (Cth). It does not mention or address native title. The lands affected may have been subject to native title claims. However, because the Act was passed before the Racial Discrimination Act 1975 (Cth) and before Mabo, its extinguishment of native title (if any) would need to be assessed under the Native Title Act’s validation provisions. That is beyond the source, but relevant to contemporary title issues.

• Commonwealth acquisition: Section 11 sells land to the Commonwealth. The terms of that sale are governed by the Land Act 1933 section 7. The Commonwealth acquires the land as freehold or leasehold as determined under that section.

The Reserves and Road Closure Act 1972 has never been amended. The compilation table in the official text shows only the original Act: Act No. 95 of 1972, assented to and commencing on 4 December 1972. There are no amending Acts listed. This is unusual for a piece of legislation over 50 years old, but not surprising given its nature: it is a one-off conveyancing Act that performed specific transactions and then became spent. Most of its operative provisions (cancellations, excisions, sales) would have been executed shortly after commencement. However, the Act remains on the statute book and is not repealed. Some provisions may still have residual effect: for example, the duty on the RSL to apply proceeds (if the sale had not yet occurred) or the continued existence of the new reserves (e.g., the Caravan Park reserve at Boulder still exists as a reserve under this Act). The Act’s ongoing relevance is largely as a source of title for the parcels it affected. If any of those parcels are now being dealt with, conveyancers and title searchers must refer to this Act to understand how the land came to be freehold or reserve. The Note 2 records that Lands and Surveys diagrams are now held by Landgate, indicating a practical update to the references but no change to the text.

The absence of amendment history means the Act is a snapshot of the land management decisions of the early 1970s. It reflects the priorities of the time: creation of caravan parks, homes for the aged, sewerage pumping stations, sandpits, and radio base stations; conversion of national park land to conservation purposes; and private sales to individuals for smallholder agriculture.

The official text of the Act does not mention any cases, and no litigation is recorded in the compilation table. This is typical for Acts of this kind. Because the Act is a series of parliamentary conveyances, it is generally immune from challenge on its validity (subject to constitutional limits). The only potential litigation would relate to:

• Failure to execute the Act’s directions: If the RSL did not sell the land or misapplied proceeds, a beneficiary of the War Veterans’ Home could have sued. There is no reported case in the source. Given the small size of the land (1,543 sq m) and the time elapsed, it is likely the sale was completed.

• Title disputes: The road closure in Mt Hawthorn (section 12) could have led to disputes with adjoining owners over the extent of the closed road or the rights of way being extinguished. No cases are recorded.

• Compensation: The Act does not provide compensation for the extinguishment of the Collie trustees’ Crown lease (section 3) or the Shire of Harvey’s vesting (section 6). If the trustees or shire had argued that the Act amounted to an acquisition of property without just terms (under the Commonwealth Constitution section 51(xxxi)), they might have litigated. However, the Constitution only constrains Commonwealth laws, not State laws (though some implied limits may apply). No such challenge is recorded. The State Parliament is sovereign in this area, and uncompensated extinguishment of property rights by State law is generally valid.

• Native title: If native title existed over the lands, the Act would have extinguished it. The Native Title Act 1993 now provides a mechanism for claims and compensation. Past State laws that extinguished native title are generally valid, but the question of compensation arises. No litigation specifically under this Act is known.

In summary, the litigation history appears to be nil. The Act operated quietly and without judicial challenge.

Several provisions contain traps for the unwary, especially for conveyancers, land managers, and anyone dealing with the affected parcels today.

• Crown lease cancellation without compensation: Section 3 cancels a 999-year Crown lease held by trustees of the Friendly Societies Council of Collie. The Act does not provide any compensation, nor does it require the Shire of Collie to grant a new lease to the former trustees. The trustees simply lose their interest. Anyone now dealing with that land must check whether the lease was ever registered or whether the trustees retain any residual claim. The Act says the lease is “cancelled with the intention that the land … shall be set apart as a reserve”. This is a complete extinguishment.

• Dual excision and price ambiguity in section 14: The Act excises 1.3583 hectares from Reserve 4561 and authorises the Governor to grant it to the Raschellas for “one thousand nine hundred dollars such sum being additional to the purchase price of one thousand nine hundred dollars fixed by subsection (2) of section 18 of the Reserves Act 1970”. This suggests the Raschellas paid $1,900 in 1970 for a previous excision and now pay another $1,900 for the new excision - a total of $3,800 for a combined 2.7166 hectares. However, the wording could be read as the single sum of $1,900 covering both excisions. The phrase “additional to” clarifies that it is a separate payment. But the section is poorly drafted; it says “the sum of one thousand nine hundred dollars such sum being additional to the purchase price of one thousand nine hundred dollars”. The repetition of “one thousand nine hundred dollars” is clumsy but unambiguous if read carefully.

• Road closure removing land from Torrens system: Section 12(2)(a) vests the closed road land in the Crown “as of Her former estate and removed from the operation of the Transfer of Land Act 1893”. This means the land reverts to old system title. Any certificate of title that previously included the road will need to be updated. But because the land is removed from the Torrens system, there is no registered proprietor. This can create title difficulties for adjoining owners who may have relied on the road for access or who now wish to purchase the land. The Governor may dispose of the land, but under old system rules.

• Class A reserve status: Several reserves are Class A, meaning they previously could only be altered by Parliament. The Act overrides that protection. But after the Act’s amendments, the new reserves may or may not be Class A. For example, section 17(2) re-reserves about 20 hectares as Class A Recreation. But the excised portions sold or re-reserved for other purposes lose Class A protection unless expressly stated. This matters because Class A reserves have stronger legal protection against future administrative changes.

• Missing vesting bodies: Some sections re-reserve land but do not specify a vesting body. For example, section 16 re-reserves the excised land for a “Radio Transceiver Base Station (Main Roads Department)” but does not say it is vested in the Main Roads Department. Section 6 changes the purpose of Reserve 26270 to Conservation of Flora but cancels the vesting order without re-vesting it in anyone. This creates an orphan reserve - land set apart for a purpose but not held by any trustee. Under the Land Act, such reserves would be administered by the relevant Minister. But this is ambiguous.

• No requirement for minister’s consent to lease: Where the Act gives a shire “power to lease” (sections 3(2), 8(2)), it does not require the consent of any minister. This is an unusual delegation of control over Crown land. Lessees should be aware that the shire can lease without ministerial approval.

• Potential stamp duty or taxes: The Act does not address stamp duty or GST on the sales authorised (sections 2, 11, 14). At the time, these may not have applied. But if a sale under section 2 occurs today, modern taxes may apply. The Act does not grant any exemption.

• RSL’s title: Section 2 says Reserve 18516 was held under Certificate of Title Volume 1293 Folio 499 by the RSL. The cancellation of the reserve does not automatically transfer the land to the RSL freehold; it only makes the land “available” and gives the RSL the right to sell. The RSL presumably needs to apply for a new certificate of title in its own name before it can sell. The Act is silent on this. If the RSL never did so, the land may still be Crown land in practice.

Because the Reserves and Road Closure Act 1972 is largely self-executing, compliance is minimal for most parties. However, specific steps should be taken by those affected.

For the RSL (section 2): If the land was not already sold, the RSL should obtain a new certificate of title for the land, sell it at market value (or as directed by the Act - no price is specified), and apply the whole proceeds to the War Veterans’ Home at Mt Lawley. The RSL should keep records of the sale and the application of funds, and be prepared to account to the Home or the Attorney General if challenged. If the land has already been sold and the proceeds applied, no further action is needed.

For the Shire of Collie (section 3): The shire should ensure that the land is recorded as Reserve No. 7914 (new) for Hall Site, vested in the shire with power to lease. The shire should update its asset register and consider whether to lease the hall site. The shire must also ensure that the previous trustees’ lease has been formally cancelled on the title.

For the Minister for Mines and the Forests Department (section 4): The land must be dedicated as State forest under the Forests Act 1918. The responsible department should issue a dedication order and update records. If not yet done, this should be completed to bring the land under the proper management regime.

For the Shire of Harvey and relevant agencies (section 6): The shire should note that its vesting for National Park is cancelled. Reserve 26270 now has the purpose “Conservation of Flora” but has no stated vesting body. The Shire or the Department of Biodiversity, Conservation and Attractions should clarify who manages the reserve. The excised portions must be dedicated as road (brown portion) and included in Reserve 26271 (red portion). Road dedication should be recorded with Landgate.

For the National Parks Board (section 7): The board should update its records to show that Reserve 22057 is now a National Park, not Conservation of Flora and Fauna. Management plans may need revision.

For the Shires of Boulder, Goomalling, Mandurah, and Armadale-Kelmscott (sections 8, 9, 13, 14): Each shire should ensure the excisions are formally registered and that new reserves are created as directed (Caravan Park, Homes for the Aged, Sewerage Pumping Station, and the grant to the Raschellas respectively). The shires should also manage the new reserves in accordance with their purposes.

For the Governor and the Department of Lands (sections 11, 14, and general disposals): The Governor must execute Crown grants as directed. The Department of Lands should process the sale to the Commonwealth (section 11) and the grant to the Raschellas (section 14). The purchase price should be collected and accounted for.

For the City of Perth and Landgate (section 12): The closed road must be removed from the Torrens register. Landgate should update the relevant certificates of title to show the road as Crown land not under the Transfer of Land Act. The City of Perth should remove any council records of the road as a public way. Adjoining landowners should check their titles for any easements or rights of way that may have been extinguished.

For any party relying on the Act for title: Conveyancers should obtain a copy of the Act and the relevant Lands and Surveys diagrams referenced (now held by Landgate). The diagrams are essential to identify exact land parcels. Searches of the Register should confirm that the Act’s directions have been carried out. If not, the titles may be defective and need to be regularised.

For all: No ongoing reporting or compliance is required. The Act does not create a continuing obligation to maintain reserves for the stated purpose beyond the general law. However, if a reserve is not used for its designated purpose, the Crown may take action under the Land Act.