Scots' Church Properties Act 1891

The Act introduces several legal concepts that operate together to achieve a unified trust regime for the Scots’ Church properties.

Revocation of antecedent trusts - Section 2 annuls “all and singular the trusts purposes powers authorities and restrictions” contained in the Crown grants and in the two statements of trust that were approved under the State Aid Abolition Act. That Act had required religious denominations to lodge statements of trust with the government as a condition of retaining property after state aid was withdrawn. Those statements contained detailed provisions about the use of the land. By revoking them, the Act sweeps away the older layer of law and leaves only the trusts in the new deed.

Statutory vesting - Section 3 vests the described lands in the five named trustees as joint tenants for an estate in fee simple, without any conveyance or transfer. The vesting is immediate upon the passing of the Act, though it is subject to existing mortgages, charges, leases, easements and encumbrances. The Registrar of Titles is required to make any recordings in the Register that are necessary to give effect to that vesting, but only upon the written request of the trustees. This means the vesting does not automatically update the Register; the trustees must take the step of requesting the recording.

Trust deed governance - Section 4 provides that the lands are held on the trusts, powers, authorities, provisos, declarations and restrictions contained in the Scots’ Church trust deed. That deed is a separate document that was deposited in the Registrar‑General’s office and is to be enrolled under section 5. The Act itself does not reproduce the deed; it incorporates it by reference. Section 5 gives any person the right to inspect the enrolled deed and to make copies or extracts upon payment of the prescribed fees.

Variation by subsequent statute - Section 4A (inserted in 2003) modifies the trust deed by deeming that references in the deed to “the lands” mean the specific folios set out in subsection (1). It also deems that references to “the church site” mean a defined area (excluding the land coloured blue on the new plan and including the land coloured red). The subsection further provides that the powers of the trustees to demise lands and grant renewals of leases apply as if the words “not exceeding fifty years” and “not exceeding the period aforesaid” were omitted. This effectively removes any maximum lease term that the trust deed may have contained. The variation operates directly by force of the Act, without requiring any amendment to the deed itself.

Extinguishment of rights - Section 8 (also inserted in 2003) extinguishes any right of carriageway over the roads coloured brown on the plan in the trust deed and over the roads coloured brown or red on the new plan (defined as plan LEGL 03./107). It also provides that those roads cease to be roads and that “all rights, easements and privileges existing or claimed” in the roads, whether public or private, and whether arising from express grant, implied grant, dedication, user or operation of law, cease. This is a comprehensive statutory extinguishment that overrides any common law or Torrens system protections that might have attached to those rights.

Ratification - Section 7 validates every act, matter, thing, contract, agreement, instrument and exercise of power done by any trustee “at any time heretofore” in his capacity as trustee. The ratification extends to both actual and alleged powers. It also discharges each trustee, his heirs, executors, administrators, estates and effects from all liability “for or in respect of the same”. This clause operates retrospectively and is not limited by any limitation period. It means that if a past trustee exceeded his authority or acted without proper formality, the Act now confirms those actions and eliminates any claim that the congregation or others might have had.

Automatic vesting on new appointments - Section 6 provides that upon the appointment of any new trustee under the power in the trust deed, all the lands subject to the trusts vest “forthwith and without any conveyance or transfer” in the new trustee, either solely or jointly with the continuing trustees, for all the estate and interest of the previous trustees. The new trustee is entitled to be registered as proprietor under the Transfer of Land Act 1958 without any formal transfer, and to have any necessary recordings made on the relevant folio. This avoids the need for a separate transfer instrument each time a trustee changes.

The Act directly affects a narrow group, primarily the congregation of the Scots’ Church Melbourne (members and adherents for the time being of the Presbyterian Church of Victoria at that location). The lands are held on trust for this congregation, so any changes to the trust affect their beneficial interests. The Act does not create rights for any other church or denomination.

The trustees are the most directly affected persons. Initially, the Act names five trustees - Robert Simson, James Aitken, Archibald Fisken, William Taylor and Charles Guthrie - but the statutory scheme continues for their successors. Section 6 ensures that future trustees appointed under the trust deed are automatically vested with the property. They must comply with the trust deed as varied by the Act. The ratification in section 7 frees them (and past trustees) from liability for prior acts, which is a significant benefit.

The Registrar of Titles is required to act under sections 3, 6 and 9. Upon the trustees’ written request, the Registrar must make recordings to give effect to the vesting. Upon production of the relevant certificates of title, the Registrar must also make recordings to give effect to the extinguishment of the carriageways under section 8. The Registrar also has a duty to enrol the trust deed under section 5 when lodged.

Mortgagees, lessees and other encumbrancers are affected only to the extent that their existing interests are expressly preserved. Section 3 states that the vesting is “subject nevertheless to the various mortgages charges leases easements and encumbrances” affecting the lands at the date of the Act. Section 6 similarly preserves subsisting encumbrances when new trustees are registered. The extinguishment of carriageways under section 8, however, may affect persons who previously held rights of carriageway over the roads in question. Those rights are extinguished without compensation, and the roads cease to be roads. This could affect neighbouring landowners, the local council, or any member of the public who used those roads.

The public at large has a right to inspect the enrolled trust deed at the Registrar’s office upon payment of the relevant fees (section 5). That right is limited to the trust deed itself; the Act does not give any general right to inspect other documents.

The Crown is affected because the Act revokes trusts contained in earlier Crown grants. Those grants may have contained reservations or conditions that are now annulled. However, the Act does not restore any Crown interest; the land vests in the trustees free of the old grant conditions, subject only to existing encumbrances.

Lawyers, accountants and compliance professionals dealing with the Scots’ Church properties need to be aware of the Act’s overriding effect. It displaces general property law for these specific lands in several respects: automatic vesting without transfer, statutory variation of a trust deed, and extinguishment of rights without compensation. Anyone conducting due diligence on these titles must examine the Act and the trust deed together.

The Act imposes specific duties on the Registrar of Titles and confers rights and powers on the trustees and the congregation.

Registrar’s duties - Under section 3, the Registrar “must make any recordings in the Register kept under the Transfer of Land Act 1958 that are necessary to give effect to the transfer of the said lands” to the named trustees, but only upon their written request. This is a mandatory duty once the request is made. Under section 9, the Registrar must make recordings necessary to give effect to section 8 (the carriageway extinguishment) on production of the relevant certificates of title. Under section 5, when the trustees lodge the trust deed for enrolment, the Registrar “shall thereupon enrol the same with all convenient speed and shall thereafter retain the said deed in his office”. The Registrar must also permit any person to inspect the deed at all reasonable hours and to make copies or extracts upon payment of the fees prescribed under the Property Law Act 1958.

Trustees’ rights and powers - The trustees hold the lands on the trusts set out in the trust deed (section 4). The deed itself is not reproduced but the Act incorporates it. After the 2003 variation (section 4A), the trustees have the power to demise lands and grant renewals of leases without any maximum term; the former 50‑year limit is removed. The trustees are entitled to be registered as proprietors without any formal transfer upon their appointment (section 6). They also have the right to request the Registrar to make recordings under section 3. The ratification in section 7 gives them a statutory discharge from liability for all prior acts, which is a right to be free from legal claims based on past conduct.

Congregation’s rights - The congregation is the beneficial owner of the lands under the trusts. The Act does not specify enforcement rights, but as beneficiaries they can hold the trustees to the terms of the trust deed in equity. They also have a right to inspect the enrolled trust deed (section 5), which allows them to monitor compliance.

Rights of the public - Any person may inspect the trust deed and make copies upon payment of the relevant fees (section 5). This ensures transparency, though the fee may be a barrier.

Rights extinguished - Section 8 extinguishes all rights of carriageway over the specified roads, whether public or private, and whether arising from grant, dedication, user or operation of law. The people who held those rights lose them without compensation. The section also provides that those roads “cease to be roads”, which may affect any public right of way. No alternative access is provided by the Act.

No new private rights - The Act does not create any new private rights of action. It does not impose any obligations on the congregation to act or refrain from acting. Its duties fall almost entirely on the Registrar.

The Act does not create any criminal offences or civil penalties. It is a property management statute, not a regulatory enforcement law. There are no fines, imprisonment terms or infringement notices for non‑compliance with its provisions.

Enforcement of the trusts falls to the equitable jurisdiction of the Supreme Court. The congregation, as beneficiaries, can bring proceedings against the trustees for breach of trust if the trustees act contrary to the trust deed (as varied by the Act). The Act does not alter the usual remedies of account, injunction or removal of trustees. However, the ratification clause (section 7) may preclude actions based on pre‑1891 conduct because it retrospectively validates all prior trustee acts and discharges trustees from liability. A beneficiary seeking to challenge a pre‑1891 transaction would likely find that claim barred by the Act itself.

The duties imposed on the Registrar of Titles are mandatory but the Act does not specify what happens if the Registrar fails to act. In practice, a party aggrieved by delay or refusal could seek mandamus from the Supreme Court to compel performance of the statutory duty. The Registrar’s obligations under sections 3 and 9 arise only upon a written request (s 3) or production of certificates (s 9). If the trustees do not take those steps, the Registrar has no duty to act.

The extinguishment of carriageway rights under section 8 is self‑executing: on the commencement date (11 November 2003), the rights ceased by operation of law. No enforcement action is needed. However, if a person continues to assert a right of way after that date, the trustees or the registered proprietors could seek an injunction or declaratory order to enforce the statutory extinguishment. The Act does not provide a mechanism to register the extinguishment on title; instead, section 9 requires the Registrar to make the necessary recordings on production of the certificates of title. If the certificates are not produced, the Register may not reflect the extinguishment, which could create a misleading appearance. That is a gap in enforcement.

The ratification provision (section 7) also has an enforcement dimension: it bars any claim for breach of trust or other liability against trustees for pre‑1891 conduct. This operates as a statutory defence. If a plaintiff attempts to bring such a claim, the trustee can plead section 7 as an absolute bar.

Overall, the Act relies heavily on the existing legal framework for trust enforcement. It does not establish any administrative body, inspectorate or compliance regime. The only official with duties under the Act is the Registrar of Titles, and those duties are limited to specific recording actions. The Act’s effectiveness depends on trustees voluntarily complying with the trust deed and on beneficiaries monitoring them.

The Act sits alongside several Victorian statutes and overrides them in its specific sphere.

Transfer of Land Act 1958 - This is the most frequently cross‑referenced law. Sections 3, 6 and 9 require the Registrar of Titles to make recordings “in the Register kept under the Transfer of Land Act 1958”. Section 6 allows new trustees to be registered as proprietors “under the provisions of the Transfer of Land Act 1958 without any formal transfer”. This overrides the normal requirement for a transfer instrument under that Act. The Registrar must accept a statutory entitlement rather than a signed transfer. However, the Act does not remove the need for the Registrar to verify the identity of the new trustee or the validity of the appointment; those matters are presumably left to the Registrar’s usual practices under the Transfer of Land Act.

Property Law Act 1958 - Section 5(2) of the Act provides that the “relevant fees” for inspecting the trust deed are the fees for the time being payable under section 16 of the Property Law Act 1958 for inspecting deeds deposited under section 15 of that Act. This incorporates the fee‑setting mechanism from the general law. The Act does not create a separate fee schedule.

Survey Co‑ordination Act 1958 - Sections 4A(3) and 8(4) of the Act refer to the plan numbered LEGL 03./107 “lodged in the Central Plan Office maintained under the Survey Co‑ordination Act 1958”. That Act governs the lodgement and maintenance of survey plans. The 2003 amendments rely on that plan to define the boundaries of the church site and the roads whose carriageway rights are extinguished. Any dispute about those boundaries would require reference to the plan as defined under the Survey Co‑ordination Act.

Act No. 391 to Abolish State Aid to Religion - That Act (long since repealed) required religious denominations to submit statements of trust to the government as a condition of retaining property after the cessation of state aid. Section 2 of the present Act specifically revokes the trusts “contained in the several Crown grants” and in the statements of trust approved under that Act. The effect is to sever any remaining link to the 1870s regime. The present Act does not revive any provisions of Act No. 391; it nullifies them for these lands.

Common law and equity - The Act does not codify the law of trusts. It merely provides a statutory framework for these specific properties. The trust deed itself remains subject to equitable principles. The Act does not displace the general law of trusts except where it expressly provides otherwise (e.g., automatic vesting under section 6, removal of lease term limits under section 4A). The ratification clause (section 7) operates as a statutory override of any common law claims for breach of trust that might otherwise have existed.

Constitutional law - The extinguishment of carriageway rights without compensation under section 8 could raise issues under the Commonwealth Constitution (section 51(xxxi) - acquisition of property on just terms) if the Commonwealth were involved, and under the Victorian Constitution (section 28 of the Constitution Act 1975 provides for just terms for acquisition under Victorian law). The Act does not address compensation. The property rights extinguished are not acquired by the Crown; they simply cease. Whether this amounts to an acquisition may be arguable, but the Act provides no remedy.

Other private Acts - The Act is a standalone private Act for a single church. It does not interact with other private Acts such as those for St Paul’s Cathedral or other denominations. Each private Act is specific to its own trust.

The Scots’ Church Properties Act 1891 received royal assent on 2 November 1891 and commenced on that date. It remained unamended for nearly a century.

The first amendment was made by the Transfer of Land (Computer Register) Act 1989 (No. 18/1989). That Act was a machinery amendment that updated references in the principal Act to reflect the computerisation of the Torrens Register. Specifically, it amended section 3 to replace references to “the Register kept under the Transfer of Land Act 1958” and to require recordings to be made upon the trustees’ written request. It also amended section 6 to refer to “the relevant folio of the Register” and to remove outdated language about “the office of titles”. The Schedule was amended to update the description of the lands, replacing the earlier Crown allotment descriptions with references to the folios of the Register (Volume 1529 Folio 305649 and Volume 1521 Folio 304137). The 1989 amendment commenced on 3 February 1992.

The more significant amendments were made by the Scots’ Church Properties (Amendment) Act 2003 (No. 87/2003), which received assent on 11 November 2003. This Act inserted four new sections: section 4A (variations to the trust deed), section 8 (right of carriageway extinguished), and section 9 (duties of Registrar). It also amended section 5 to add subsection (2) defining “relevant fees” by reference to the Property Law Act 1958. The 2003 Act had a split commencement: sections 5 and 6 (which inserted sections 8 and 9) commenced on 11 November 2003, while section 4 (which inserted section 4A) commenced on 12 November 2003. The reason for the one‑day gap is not stated in the Act.

The 2003 amendments were substantial. Section 4A updated the land descriptions to new folios (Volume 3166 Folios 093 and 094, and Volume 5294 Folios 656 and 657) and redefined the church site using a plan. It also removed the 50‑year limit on leases, giving the trustees greater flexibility. Section 8 extinguished all carriageway rights over certain roads on the trust deed plan and the new plan, and declared those roads to have ceased. Section 9 imposed a duty on the Registrar to make recordings to effect the extinguishment upon production of the relevant certificates of title.

The endnotes show no further amendments after 2003. The current version is Version 003, incorporating all amendments as at 12 November 2003.

No explanatory details have been published for the Act; the endnotes indicate “No entries at date of publication” for the Explanatory Details. This means there is no official exposition of the Act’s provisions beyond the text itself.

The Act does not refer to any litigation, and the endnotes contain no entries under Explanatory Details that might mention cases. The absence of a litigation history in the source material suggests that the Act has either not been the subject of reported judicial consideration or that any challenges have not been significant enough to record in the legislative endnotes. Given the nature of the Act - a private, consent‑based consolidation of property trusts for a single congregation - this is unsurprising. Private Acts of this kind are rarely litigated because they typically reflect an agreed position among the parties (the congregation and trustees) and are passed by Parliament to give legal effect to that agreement.

However, several provisions could have given rise to litigation. The ratification clause (section 7) is broad enough to potentially prejudice the rights of beneficiaries if past trustee actions were seriously improper. If any beneficiary had wished to challenge a pre‑1891 transaction, section 7 would have been a bar. No reported case testing the limits of that ratification is known from this source.

The 2003 extinguishment of carriageway rights could also have prompted litigation from neighbouring landowners or the local council if they held registered easements or public rights over the roads. The Act provides no compensation and the extinguishment is absolute. A party affected might have challenged the extinguishment on constitutional grounds (just terms) or on the basis that the Act did not validly extinguish rights that had been registered under the Transfer of Land Act. The absence of any mention of such litigation in the endnotes or elsewhere in the source may indicate that either the rights were not exercised or that any challenge was unsuccessful or unreported. It may also indicate that the affected parties consented to the extinguishment as part of the private bill process.

Section 4A’s variation of the trust deed by statute, removing the lease term limit, could theoretically be challenged as an impairment of the equitable interests of the congregation, but again no litigation is referenced.

The transfer of land provisions (sections 3 and 6) are straightforward and rarely contentious in practice, especially when all parties are in agreement.

Practitioners should note that the absence of reported litigation does not mean the Act is immune from future challenges. Any dispute about the scope of the ratification, the validity of a trustee appointment under the trust deed, or the precise boundaries of the land described in the 2003 plan could still arise. The plan (LEGL 03./107) is defined by reference to the Survey Co‑ordination Act 1958, so any survey dispute would involve that Act as well.

Several features of the Act could catch out unwary practitioners or trustees.

Broad ratification with no sunset - Section 7 ratifies “every act matter and thing done … at any time heretofore” by any trustee, including exercises of “actual or alleged power or authority”. It then absolutely frees each trustee and his estate from all liability. This goes beyond a simple validation of technical defects. It could validate actions that were in fact beyond the trustees’ powers, such as unauthorised sales or leases, and any resulting loss falls on the congregation without remedy. The congregation’s only protection is the trust deed’s rules for appointing future trustees and the equitable jurisdiction to remove a trustee for future breaches. Past breaches are immunised.

Carriageway extinguishment without compensation - Section 8 extinguishes all rights, easements and privileges in the roads, whether public or private, and says those rights “cease”. No compensation is provided. A person who held a registered right of carriageway over the land after 2003 has lost that property right. The Act does not require notice to affected parties. Anyone relying on those rights for access to their own land may now find they have no legal way to cross the former road. The Registrar must make recordings to reflect the extinguishment on the certificates of title, but if the certificates are not produced, the Register may still show an easement that no longer exists in law. This presents a trap for title searchers.

Lease powers expanded by statute - Section 4A(c) provides that the trustees’ powers to demise lands and grant renewals “apply as if the words ‘not exceeding fifty years’ and ‘not exceeding the period aforesaid’ were omitted.” This removes a cap that was likely in the trust deed. Trustees may now grant leases for terms exceeding 50 years, which could bind the congregation for generations. There is no requirement in the Act for the trustees to obtain the congregation’s consent for such long leases. The only limit is the general equitable duty to act in the best interests of the beneficiaries.

Automatic vesting may cause title uncertainty - Section 6 provides that upon appointment of a new trustee, the lands vest “forthwith and without any conveyance or transfer”. The trustee is entitled to be registered as proprietor, but that registration is not automatic; the trustee must apply to the Registrar. In the gap between appointment and registration, the legal title is held by the new trustee but the Register still shows the old trustee. This could cause confusion if the old trustee deals with the land in the interim, though such a dealing after vesting may be ineffective.

Trust deed not set out in the Act - The Act incorporates the trust deed by reference but does not reproduce it. To understand the full extent of the trustees’ powers and duties, one must inspect the enrolled deed at the Registrar’s office (section 5). The Act also varies the deed (section 4A) but without quoting the original text. This means anyone researching the property must review multiple documents to get the complete picture.

Plan dependency - The 2003 amendments rely on a plan (LEGL 03./107) lodged in the Central Plan Office. If that plan is lost or becomes illegible, the description of the church site and the extinguished roads becomes uncertain. The Act does not provide an alternative method of definition.

No transitional provisions - The Act does not specify what happens if a lease was granted before 2003 for a term that exceeded the then‑applicable 50‑year limit, but the ratification may cover it. However, the 2003 variation does not retrospectively validate pre‑2003 breaches; it only removes the limit going forward.

Registrar’s duties are conditional - Under section 3, the Registrar must make recordings only “upon their requiring the same by writing under their hands”. Under section 9, the duty arises only “on production of the relevant certificates of title”. If the trustees lose the certificates or delay their request, the Register will not be updated. Third parties searching the title may be misled.

Private Act, limited public knowledge - Because the Act is private and old, it may not be indexed in the same way as public general acts. Title searches on the relevant folios may not automatically flag the Act’s provisions. Practitioners dealing with these properties specifically must search for private legislation.

Compliance obligations under the Act fall primarily on the trustees of the Scots’ Church and on the Registrar of Titles. There are no ongoing reporting or filing requirements.

For the trustees - The first step is to ensure that the trust deed, as varied by section 4A, is properly understood and followed. Because the Act does not reproduce the deed, the trustees should obtain a certified copy of the enrolled trust deed from the Registrar of Titles (under section 5) and keep it with the congregation’s records. They must then comply with the trusts declared in that deed, as varied by the Act. The key variations are: (a) the land references in the deed are deemed to refer to the folios listed in section 4A(1)(a) (Volume 3166 Folios 093 and 094, and Volume 5294 Folios 656 and 657); (b) the church site is defined by reference to the new plan (LEGL 03./107) excluding the blue area and including the red area; and (c) the trustees may grant leases for terms longer than 50 years.

When appointing a new trustee under the power in the trust deed, the trustees (or the appointor) should ensure the appointment complies with the deed’s procedures. Once appointed, the new trustee is automatically vested with the land by force of section 6, but the trustees should then apply to the Registrar of Titles to have the new trustee registered as proprietor. Section 6 says the Registrar must make the necessary recordings, but the trustees must instigate that process. The application should be accompanied by evidence of the appointment and a request in writing (similar to the process under section 3).

The trustees should also review the Register for the relevant folios to ensure that the extinguishment of carriageways under section 8 has been recorded. Section 9 requires the Registrar to make those recordings upon production of the certificates of title. If the recordings have not been made, the trustees should produce the certificates to the Registrar and request the recordings. If the certificates are lost, the trustees will need to follow the lost certificate procedure under the Transfer of Land Act to obtain replacements.

The ratification clause (section 7) requires no action; it operates automatically. However, the trustees should be aware that it validates all past acts, including those that may have been improper. If there are any ongoing disputes about pre‑1891 conduct, the trustees can rely on section 7 as a complete defence.

For the Registrar of Titles - The Registrar must comply with sections 3, 5, 6 and 9. Upon receiving a written request from the trustees under section 3, the Registrar must make recordings to give effect to the vesting in the named trustees or their successors. Upon lodgement of the trust deed under section 5, the Registrar must enrol it with all convenient speed and retain it. Upon production of the relevant certificates of title under section 9, the Registrar must make recordings to give effect to the extinguishment of carriageways under section 8. The Registrar is also responsible for allowing inspection and providing copies under section 5.

For the congregation - Beneficiaries should monitor that the trustees are acting within the trust deed. They can inspect the trust deed at the Registrar’s office upon payment of fees (section 5). If they believe the trustees are breaching the trusts, they have standing to bring proceedings in equity. The Act does not provide any additional enforcement mechanism.

For legal practitioners - When conducting due diligence on the Scots’ Church properties, check the Act and the trust deed together. Obtain the current certificates of title and verify that the Register reflects the land descriptions in section 4A. Confirm that any carriageway rights have been extinguished and recorded. When advising the church on a lease transaction, note that the 50‑year limit no longer applies. When advising a third party considering a transaction with the church (e.g., purchase, lease or easement), review the trust deed to confirm the trustees have power to enter the transaction, and ensure compliance with the Act’s provisions.