Richmond and Hawthorn Lands Act 1970

The central concept is “reserved land”, defined in section 2 as the land reserved by the 1873 Order in Council and comprised in the Crown grant volume 1902 folio 326, plus any land to which that Order in Council and Crown grant are deemed to relate by virtue of the Richmond (South‑Eastern Freeway) Lands Act 1967. This definition is the jurisdictional anchor for all excisions under sections 3, 4 and 5. The Act does not create new freehold rights except the fee simple grant under section 6(2).

The excision mechanism is uniform across sections 3 to 5. It requires a plan of survey signed by the Surveyor‑General. For sections 4 and 5, the Minister must be satisfied that the land described in the plan corresponds as nearly as practicable with the indicated areas on the schedules. The Minister then may recommend to the Governor in Council that the land be excised from the reservation. The Governor in Council may (not must) issue a proclamation published in the Government Gazette revoking the 1873 Order in Council and 1886 Crown grant insofar as they relate to that land. On the date of publication, any other Order in Council or proclamation reserving or affecting that land is also revoked. The land then becomes “unalienated land of the Crown” (s 3(3)(a), s 4(3)(a), s 5(3)(a)) , a specific statutory status meaning the land is held by the Crown free of all prior interests.

Another key concept is the statutory consequence of the excision. For section 3, the land is deemed a road under section 25 of the Land Act 1958, which is the standard mechanism for declaring Crown land as a road. For section 4, the land may be leased under section 134 of the Land Act 1958. That section generally empowers leasing of Crown land for specific purposes; here it is constrained to a lease to the Trustees of the Christian Brothers for a boathouse and dressing rooms for St. Kevin’s College. For section 5, the land is deemed permanently reserved as an addition to the existing high school reservation under the Richmond High School Land Act 1967, effectively expanding the reserved area.

The road closure in section 6 introduces the concept of cessation of all rights, easements and privileges incidental to past dedication or use. The land becomes unalienated Crown land, and then the Governor in Council may grant it to the Presbyterian Church Trusts Corporation on payment of $28,800. The grant is in fee simple but subject to any conditions the Governor in Council thinks fit. The cross‑hatched portion is dedicated as a public highway. The Registrar of Titles must make necessary entries on certificates of title.

A critical concept is section 7’s bar on compensation. This is not a standard Crown immunity provision; it expressly extinguishes any entitlement to receive money, consideration or compensation from the Crown in respect of any act under the Act. This includes potential claims by the Board of Land and Works, the City of Richmond, or any other body that might have had a beneficial interest in the reserved land or the closed road.

Finally, the preamble records that the Yarra Boulevard sections were constructed and maintained by the Public Works Department, now to be maintained by the Country Roads Board, and that the excisions are expedient because of the South‑Eastern Freeway extension and the diversion of the Yarra River. These factual recitals are not operative but explain the context.

The Act directly affects the Crown (the State of Victoria) as the landholder, and the entities with interests in the land that are extinguished, created or modified. The original grantees under the 1873 Order in Council and 1886 Crown grant , the Board of Land and Works and the Mayor, Councillors and Citizens of the City of Richmond , lose their interest in the excised parcels. The City of Richmond loses control over portions of Richmond Park, though the excision is limited to a total of about 21 acres plus the smaller parcels. The City of Hawthorn is affected by the closure of a portion of Morrison Street and the dedication of a new highway.

St. Kevin’s College benefits directly: section 4 allows a lease of up to 3 roods and 10 perches for a boathouse and dressing rooms. The lessee is specifically the Trustees of the Christian Brothers (a body corporate under New South Wales law, the Roman Catholic Church Communities’ Lands Act 1942). The preamble notes that St. Kevin’s College and Scotch College were adversely affected in their sporting facilities by the South‑Eastern Freeway works, and the Act is meant to mitigate that loss.

Scotch College, through The Presbyterian Church of Victoria Trusts Corporation (incorporated under the Presbyterian Trusts Act 1890), receives the fee simple grant of the closed Morrison Street land upon payment of $28,800. That land abuts Scotch College’s existing holding. The Act also gives Scotch College a new public highway (the cross‑hatched land) which presumably provides road access.

The Richmond High School (a state school) gains an addition to its reserved land , up to 2 roods and 35 perches , for a boathouse site, which is permanently reserved for the school under the Richmond High School Land Act 1967.

The Melbourne and Metropolitan Board of Works is mentioned in the preamble as the entity that carried out the Yarra River diversion works and as the registered proprietor of title volume 8740 folio 170 (part of Crown portion 11 in Hawthorn). That title is directly affected by the road closure and the new highway dedication.

The general public loses a segment of Morrison Street as a road, but gains a new public highway (the cross‑hatched land) and the Yarra Boulevard road (the 21‑acre excision). The public also loses access to the excised parkland, though the park itself remains for the most part.

The Surveyor‑General must sign plans; the Minister of Lands must consider recommendations; and the Governor in Council must issue proclamations. The Registrar of Titles is directed to make entries. These officials are affected only in their official capacity.

Section 7’s no‑compensation clause affects any person or body who might have had a claim for loss of land or extinguishment of rights. It eliminates any legal entitlement to compensation from the Crown, regardless of the value of the land taken.

The Act imposes duties on public officials and confers specific rights on private entities. The Surveyor‑General must sign plans of survey (ss 3(1), 4(1), 5(1)). The Minister of Lands must receive the plan and, in the cases of sections 4(1) and 5(1), must be satisfied that the described land corresponds as nearly as practicable with the scheduled plans before recommending to the Governor in Council. The Minister has a duty not merely to receive but to make that assessment; however, the section uses “may recommend”, so the recommendation is discretionary. The Governor in Council has the power (not duty) to issue a proclamation revoking the 1873 Order in Council and Crown grant. There is no obligation to do so.

Upon proclamation, the land becomes unalienated Crown land by operation of law, and the duties of the Governor in Council cease regarding that excision. For section 4, the Crown has the right to lease the land under section 134 of the Land Act 1958, but only to the Trustees of the Christian Brothers and only for the specified purposes. The Trustees of the Christian Brothers have the right to seek a lease, but no guarantee of one exists; the lease is at the discretion of the Crown under the Land Act.

For section 6, the Presbyterian Church of Victoria Trusts Corporation has the right to receive the closed road land in fee simple upon payment of $28,800 to the Treasurer. The right is contingent on payment and on the Governor in Council exercising the power to grant. The Governor in Council may impose conditions on the grant; it is not an unconditional right. The Corporation also has the duty, if it wishes to take the grant, to pay the sum. The Registrar of Titles is obliged to make all entries or endorsements on the certificate of title and duplicate, and the holder of the duplicate must produce it for that purpose (s 6(4)).

The public has no right to claim compensation (s 7). Conversely, the public gains a right to use the Yarra Boulevard road and the new highway (the cross‑hatched land) once dedicated.

The Act does not create any private right of action or mandatory timeframes. The discretions are broad. The no‑compensation clause operates as a complete bar, extinguishing any right to sue for land taken.

The Richmond and Hawthorn Lands Act 1970 contains no criminal penalties, fines, or offences. Enforcement is solely through the administrative machinery of government. The Act directs that certain legal consequences follow from proclamations and that the Registrar of Titles must take specific actions. Non‑compliance by the Registrar could be compelled by mandamus if necessary, but the Act itself does not provide a penalty for failure. There are no penalties for any private party , the only duty on a private party is the Presbyterian Church Trusts Corporation’s obligation to pay $28,800 (or forfeit the grant), and the holder of the duplicate certificate of title must produce it to the Registrar (s 6(4)). Failure to produce could be addressed under general property law or under the Transfer of Land Act, but not under this Act.

Section 7 effectively precludes any enforcement of compensation claims against the Crown. This is a substantive bar: any attempt to recover compensation in respect of any act, matter or thing under the Act would be struck out because the Act expressly says no person is entitled to receive it. This statutory bar is enforceable by the Crown as a defence.

The excisions and road closure are self‑executing upon proclamation in the Government Gazette. There is no need for further enforcement. The Governor in Council’s power to grant the closed land to the Presbyterian Trusts Corporation is permissive: if the Corporation pays the money and the Governor in Council decides not to grant, there is no enforcement mechanism to compel the grant. Conversely, if the grant is made subject to conditions, breach of those conditions could be enforced as contractual or property covenants, though the Act allows the Governor in Council to impose any conditions thought fit, which may include forfeiture or reverter.

The only potential “enforcement” is by the Crown: it can revoke the 1873 Order in Council and Crown grant by proclamation and thereby extinguish all prior interests. No court order is required. The Act provides no appeal or review mechanism for persons aggrieved , the only remedy would be judicial review of the Minister’s recommendation or the Governor in Council’s decision on administrative law grounds, but section 7’s bar on compensation would likely limit any damages remedy.

The Act explicitly references several other Victorian and New South Wales statutes and relies on them to give effect to its provisions. The definition of “reserved land” in section 2 incorporates the Richmond (South‑Eastern Freeway) Lands Act 1967, which deemed the 1873 Order in Council and 1886 Crown grant to relate to additional land. That Act is therefore part of the legal matrix governing the land that may be excised.

Sections 3(3)(b), 4(3)(b) and 5(3)(b) operate by reference to the Land Act 1958. Section 25 of that Act provides for Crown land to be proclaimed as a road; section 134 governs leasing of Crown land. These sections are not amended but are triggered by the excision mechanism. The interaction means that the Crown’s powers under the Land Act are extended: the Governor in Council can unilaterally declare Crown land a road without the usual procedures, simply by virtue of the excision proclamation. Similarly, the lease under section 4 is to be “pursuant to section 134” of the Land Act, but the usual conditions for leasing Crown land under that section apply unless overridden.

Section 5(3)(b) provides that the excised land is deemed permanently reserved as an addition to the land reserved under the Richmond High School Land Act 1967. That Act already reserved land for a state high school; this Act expands that reservation. The interaction is additive.

Section 6 interacts with the Transfer of Land Act 1958 (impliedly) by directing the Registrar of Titles to make entries on certificates of title. It also interacts with any general law on road closure: normally road closure requires separate procedures under the Local Government Act or the Road Management Act, but this Act directly effects the closure without those steps. The authority of the Governor in Council to close a road is expressly given, overriding any inconsistent procedural requirements.

The Act also references the Presbyterian Trusts Act 1890 (which incorporated The Presbyterian Church of Victoria Trusts Corporation) and the Roman Catholic Church Communities’ Lands Act 1942 (New South Wales) (which incorporated the Trustees of the Christian Brothers). These are not Victorian Acts but are given effect in Victoria for the purposes of the lease and grant.

The preamble notes that the Yarra Boulevard sections were constructed by the Public Works Department and are to be maintained by the Country Roads Board. That suggests interaction with the Country Roads Act 1958 or similar.

Section 7 prevails over any general law or other statute that might otherwise entitle a person to compensation for the taking of property or extinguishment of interests. It creates a specific statutory ouster of compensation rights. This overrides any implied compensation provisions in the Land Act or other Acts.

No amendment has been made to this Act since its commencement, so its interaction with later laws is unaffected by amendment but may be affected by implied repeal or inconsistency. For example, later land management or planning laws would need to be considered if any further changes were proposed.

The endnotes to the version as at 3 March 2003 state that no amendments have been made to the Richmond and Hawthorn Lands Act 1970 by Acts and subordinate instruments. The Act was assented to on 7 April 1970 and came into operation on the same day. It has remained in its original form for over thirty years and likely continues unchanged. The absence of amendments is consistent with its character as a targeted, one‑off land adjustment: once the proclamations under sections 3, 4, 5 and 6 are issued and the land grants and leases effected, the Act’s work is done. There is no ongoing regulatory function that would require updating.

The table of amendments in the endnotes is empty. This means that any subsequent land transactions involving the excised parcels or the closed road would be governed by the instruments (proclamations, grants, leases) created under the Act, not by amendments to the Act itself. The Act’s provisions dealing with the excisions and road closure are spent once the relevant proclamations are gazetted, although the legal status of the land continues (e.g., the permanent reservation for the high school under s 5(3)(b) remains unless later varied by another Act). If further changes were needed, new legislation would be required.

The Act itself does not record any litigation history, and no cases are cited in its text. Given that the Act precludes compensation claims and involves discretionary executive decisions, it was likely designed to minimise the risk of legal challenge. The narrow scope of the Act , specific land adjustments with identifiable beneficiaries , and the excision of compensation rights under section 7 may have deterred litigation. However, the Act is not immune from judicial review on administrative law grounds: for example, if the Minister recommended an excision without the required plan of survey, or if the Governor in Council acted beyond the statutory maxima (21 acres, 3 roods 10 perches, 2 roods 35 perches). A challenge could also arise if the land granted under section 6 was not in fact hatched on the Third Schedule plan.

Because the Act does not provide a merits review mechanism, any dispute would need to be brought in the Supreme Court of Victoria. The no‑compensation clause would prevent an award of damages for the value of the land, but it might not bar an injunction or declaration if the statutory procedures were not followed. The fact that the land becomes “unalienated land of the Crown freed and discharged from all trusts” means that any prior equitable interests are extinguished by operation of statute, which could be open to challenge if the excision exceeded the area limits.

There is no known public record of litigation arising from this Act, but as an analyst I can only note that the source is silent. The careful enumeration of maximum areas and the requirement for survey plans suggest an effort to avoid ambiguity and thereby litigation. The payment of $28,800 for the Morrison Street grant was likely determined by valuation and accepted by the Presbyterian Church, reducing the likelihood of dispute.

Several traps are embedded in the Act that could catch unwary practitioners or parties assuming the Act confers unconditional rights. First, the excision and grant powers are discretionary: the Minister may recommend, the Governor in Council may proclaim. No party can compel the issue of a proclamation. The Act does not impose a time limit for the proclamations, so the land could remain reserved indefinitely if the executive chooses not to act.

Second, the limits on excised areas are strict: section 3: not more than 21 acres; section 4: not more than 3 roods and 10 perches; section 5: not more than 2 roods and 35 perches. A plan exceeding these maxima would be invalid ab initio. The Minister must be satisfied as to correspondence with the scheduled plans under sections 4 and 5; if the plan does not correspond, no valid recommendation can be made.

Third, the lease under section 4 is restricted to the Trustees of the Christian Brothers for a boathouse and dressing rooms for St. Kevin’s College. No other entity may lease the land, and the purposes are limited. Any later variation of use may require further legislative change or an amendment to the lease, but the Act does not permit alternative uses. The lease is also subject to section 134 of the Land Act 1958, which may impose additional conditions, rental, and terms.

Fourth, the grant under section 6(2) requires payment of $28,800, a sum fixed in 1970 dollars. The payment is a condition precedent; if the Presbyterian Church Trusts Corporation did not pay, the grant cannot be made. The Governor in Council may also impose covenants, conditions, reservations, exceptions and restrictions on the grant, which could include building restrictions, public access, or reverter clauses. These are not specified in the Act, so the grant could contain onerous terms.

Fifth, the road closure under section 6(1) extinguishes all rights, easements and privileges, including those of utility services or adjoining owners. No compensation is payable. Any person who had a private right of way over that portion of Morrison Street loses it. The Act does not provide for alternative access.

Sixth, section 7 is absolute: no person shall receive any compensation from the Crown in respect of any act under the Act. This includes any indirect or consequential loss. It overrides any common law or statutory entitlement. This could be a trap for anyone assuming that the taking of public parkland or a road would normally attract compensation.

Seventh, the Registrar of Titles is authorised and directed to make entries on certificates of title (s 6(4)). The duplicate must be produced. Failure to produce could delay the registration; the Act does not specify a penalty, but the Registrar could refuse to proceed.

Eighth, the definition of “reserved land” in section 2 is not just the original Richmond Park but also includes land deemed to relate under the Richmond (South‑Eastern Freeway) Lands Act 1967. That means the excision powers extend beyond the original park boundaries to include land added under that earlier Act. Practitioners need to locate that additional land, which is not described in this Act.

Ninth, the schedules (First, Second and Third) contain plans that are incorporated by reference but are not reproduced in the text of this version. The actual boundaries depend on those plans. Any challenge to an excision would require reference to the original schedules as published in 1970.

Tenth, the Act does not provide for any residual management of the excised land after the proclamations; the Yarra Boulevard road would be managed by the Country Roads Board (now VicRoads), the leased land by the Crown lessor, and the high school addition by the Department of Education. The grant to the Presbyterian Church becomes ordinary freehold.

Compliance under this Act is largely a one‑off administrative process for the relevant government bodies. For the Crown (the Department of Environment, Land, Water and Planning or its predecessor), the steps are as follows: (1) The Surveyor‑General must prepare a plan of survey of the land proposed for excision, identifying it in relation to the reserved land and ensuring it does not exceed the maximum area for each section. (2) The Minister of Lands must receive the plan. For sections 4 and 5, the Minister must be satisfied that the land described corresponds as nearly as practicable with the hatched or cross‑hatched areas on the First and Second Schedule plans. (3) The Minister then may recommend to the Governor in Council that a proclamation be made revoking the 1873 Order in Council and 1886 Crown grant as they relate to that land. (4) The Governor in Council must issue a proclamation published in the Government Gazette. On publication, the land becomes unalienated Crown land and other orders in council are revoked.

For the Trustees of the Christian Brothers (St. Kevin’s College), compliance is not required but they may take steps to secure the lease under section 4. They need to ensure that the survey plan submitted to the Minister covers the land they wish to lease (up to 3 roods 10 perches) and that the Minister and Governor in Council proceed. They must then apply for a lease under section 134 of the Land Act 1958, which will set rental and terms. They cannot use the land for any purpose other than a boathouse and dressing rooms for St. Kevin’s College.

For the Presbyterian Church of Victoria Trusts Corporation, compliance involves payment of $28,800 to the Treasurer of Victoria. That sum must be paid before the Governor in Council will grant the fee simple. The Corporation should also ensure that it is prepared to accept any conditions the Governor in Council imposes. It must also produce the duplicate certificate of title for the land affected (volume 8740 folio 170) to the Registrar of Titles so that entries can be made regarding the road closure and new highway (s 6(4)). The Corporation should check that the hatched land on the Third Schedule plan is clearly identified.

The Registrar of Titles must make all necessary entries or endorsements on the certificate of title and duplicate, and on any other document, to give effect to the road closure and grant. This is not discretionary.

For all parties, compliance requires careful attention to the statutory maxima and the matching of survey plans to the scheduled plans. Since the Act is now over 50 years old and no proclamations may have been issued (or they were issued long ago), current practitioners need to verify whether the proclamations were made. If not, the Act remains available as a power. If proclamations were made, compliance has already been achieved.

The no‑compensation clause (s 7) does not require any action; it operates automatically as a shield for the Crown against claims.