West Melbourne Lands Act 1968

The Act relies on a small set of statutory definitions. “Board” means the Melbourne and Metropolitan Tramways Board, a statutory authority that held the original Crown grant. “City of Melbourne” means the corporation sole of the Lord Mayor, Councillors and Citizens. “Commissioners” means the Melbourne Harbor Trust Commissioners, the port authority that had vested ownership of the Second Schedule lands under the Melbourne Harbor Trust Act 1958 (s 2). The central legal mechanism is the statutory revocation and divesting of Crown grants and statutory vestings. Section 3(1) uses the words “notwithstanding anything in any Act or law” to override any prior legislative or common law restrictions that might otherwise protect the Board’s existing grant. The revocation renders the First Schedule lands “unalienated lands of the Crown” free from “all trusts encumbrances reservations limitations and restrictions whatsoever and from every estate or interest therein.” The same language appears in s 4(1) for the divesting of the Second Schedule lands from the Commissioners. These are extraordinary powers: they extinguish any third party rights, easements, leases or mortgages that might have attached to those lands, without any compensation mechanism provided in the Act (other than the agreed lump sums). The new grants are subject to conditions determined by the Governor in Council. For the City’s grant in the First Schedule, the Act specifies a particular condition: “that the said land shall at all times be used as and for a site for a market and for other municipal purposes” (s 3(2)). This is a perpetual use restriction running with the fee simple. The grant to the Board under s 4(2) is more general: the Governor in Council may impose “such covenants conditions reservations restrictions and exceptions as the Governor in Council thinks fit.” However, the Act also imposes a statutory right in favour of the Melbourne and Metropolitan Board of Works (or other authorised authority) to “enter upon and use” the Fifth Schedule land for the construction, maintenance and use of the Dynon-Footscray road. This is not a formal easement but a statutory licence that burdens the Board’s fee simple. The dedication of the Fourth Schedule under s 5 creates a public highway under the care and management of the City, with no machinery for compensation to the Commissioners for the loss of the land. The Act’s overall structure is that of a political agreement enacted as law: the preamble recites agreements between the Treasurer, the City, the Board and the Commissioners, and the operative sections give those agreements statutory force.

The Act directly affects five distinct parties, each with different stakes. The City of Melbourne is the primary beneficiary: it receives a 15 acre parcel for a market and municipal purposes, but must pay $200,000 into Consolidated Revenue and then bear the ongoing cost of maintaining the new public highway dedicated under s 5. The condition that the land be used as a market and for municipal purposes binds the City in perpetuity; any attempt to sell or develop the land for other uses would likely be void or lead to forfeiture of the grant. The Melbourne and Metropolitan Tramways Board is a net loser in land area but a net monetary gainer: it surrenders its original 15 acre 7 perch grant (First Schedule) but receives a slightly larger parcel of about 16 acres 3 roods 39 perches (Third Schedule), plus $190,000. However, the new land is burdened by the road authority’s right of entry over about 2 acres 3 roods 3 perches (Fifth Schedule), which could sterilise that portion for the Board’s own tramways purposes. The Board also must pay 50 per cent of the cost of relocating the Appleton Dock access road (s 6). The Melbourne Harbor Trust Commissioners lose approximately 18 acres 3 roods 9 perch (the Second Schedule), receive only $10,000 in compensation, and must pay the other 50 per cent of the relocation costs. No separate compensation is provided for the loss of the land dedicated as a highway. The Melbourne and Metropolitan Board of Works (or any other authority authorised by the Governor) gains a statutory right to enter and use the Fifth Schedule land for road construction, maintenance and use. This right is not limited in time and does not require payment of compensation to the Board. The public at large obtains a new public highway (the Fourth Schedule) maintained at City expense, and potentially a new market site. The Act also indirectly affects any entity that held interests in the original lands (such as lessees, licensees or mortgagees of the Board or the Commissioners) because the revocation and divesting provisions extinguish all prior estates and interests. However, the preamble suggests the parties had reached agreements in advance, so third party interests may have been cleared. The Act does not affect private individuals or businesses directly, but the market use condition may influence competition among wholesale or retail market operators in the West Melbourne area by reserving land for that purpose.

The Act imposes a series of specific duties and grants corresponding rights. The City of Melbourne has the duty to pay $200,000 into the Consolidated Revenue (s 3(2)). This is a condition precedent: the Governor in Council must grant the land only upon payment. The Act makes no provision for non-payment; presumably the grant would not issue and the land would remain unalienated Crown land. Once payment is made, the City has a right to receive a fee simple grant, but subject to the condition that the land be used for a market and municipal purposes. The City also has a duty to maintain the Fourth Schedule highway (s 5). The Treasurer of Victoria is obliged, upon the City’s payment, to pay $190,000 to the Board and $10,000 to the Commissioners (s 3(3)). The money is appropriated from the Consolidated Revenue for that purpose. The Board has the right to that payment and to receive a fee simple grant of the Third Schedule land (s 4(2)). The Board does not have to pay for that grant, but must accept it subject to the conditions the Governor imposes, including the statutory right of entry over the Fifth Schedule. The Commissioners have the right to receive $10,000 from the Treasurer, but must share equally the costs “necessarily incurred” in relocating the Appleton Dock access road and port services (s 6). The duty to defray those costs is joint; the Act does not specify a mechanism for determining what costs are necessary, nor does it provide for arbitration or court determination in the event of disagreement. The Melbourne and Metropolitan Board of Works (or other authorised authority) has the right to “enter upon and use” the Fifth Schedule land “so far as is necessary for or in connexion with the construction maintenance and use as a highway of a road and elevated roadway linking Dynon-road and Footscray-road” (s 4(2)). This right is not stated to be exclusive, but it is a statutory right that overrides the Board’s ownership. The words “enter upon and use” are broad; they could encompass occupation, excavation, temporary structures, and permanent works. No compensation, notice period, or limitation on duration is expressed. The Act does not create any private right of action for breach of these duties. Enforcement would fall to the Crown (for conditions in Crown grants), to the parties themselves via debt or injunction, or through judicial review of the Governor’s actions.

The West Melbourne Lands Act 1968 contains no penalty provisions whatsoever. There are no fines, criminal offences, or civil penalties for non-compliance. Enforcement depends instead on general legal principles and the specific mechanisms built into the grants. If the City fails to pay the $200,000, the condition precedent in s 3(2) is not satisfied, so no grant issues. The City simply does not get the land. If the City pays but then uses the land for a purpose other than a market or municipal purposes, it could be in breach of the condition in the Crown grant. The Crown could potentially seek forfeiture or re-entry, though the Act does not specify a re-entry clause. The Governor in Council, under s 3(2), has power to impose “such covenants conditions reservations restrictions and exceptions as the Governor in Council thinks fit.” That power could include a right of re-entry for breach. If the Board or the Commissioners fail to pay their share of the relocation costs under s 6, the other party could sue for a debt. The Act makes the duty to defray costs equal, but it does not create a statutory debt; it would likely be enforced as a contractual obligation (the preamble recites an agreement) or as a statutory duty sounding in damages. The right of entry for the road authority is enforceable by the authority against the Board; if the Board obstructs entry, the authority could seek an injunction or an order for specific performance. The Board might have a claim for compensation if the use of the Fifth Schedule land exceeds what is “necessary”, but the Act is silent on that. There is no provision for a dispute resolution mechanism. Judicial review could be used to challenge conditions imposed by the Governor in Council if they were beyond power or procedurally improper. The Act’s overriding language (“notwithstanding anything in any Act or law”) means that any prior restrictions on the land (e.g., under the Transfer of Land Act, the Property Law Act, or planning laws) are displaced for the specific purposes of the revocation and divesting. But once the new grants are issued, the general law revives. The lack of express penalties gives the Act a transactional rather than regulatory character; it is a mechanism for executing a one-off land swap, not a continuing regulatory scheme.

The Act interacts with at least four other pieces of legislation, and with general land law. First, it directly overrides the Land (Special Grants) Act 1959, under which the original Crown grant of the First Schedule land was made to the Board. The s 3(1) revocation annuls that grant, regardless of any protections in the 1959 Act. Second, it amends the Melbourne Harbor Trust Act 1958 by inserting at the end of Part II of the Second Schedule a reference to “the lands described in the Second Schedule to the West Melbourne Lands Act 1968” (s 7). This formally removes those lands from the statutory vesting in the Commissioners. The effect is that the Commissioners no longer hold those lands under their constituting Act; the lands become Crown lands. Third, the preamble references the Coal Canal Bridge Act 1960, noting that the dedicated highway (Fourth Schedule) is to be used “in connexion with the works authorized” under that Act. The highway presumably serves as an approach to the bridge or related infrastructure. The Act thus supports the bridge project, though it does not amend that Act. Fourth, the Act implicitly interacts with the Transfer of Land Act 1958 and the Property Law Act 1958. The revocation and divesting operate by force of statute, not by deed, so the normal conveyancing requirements for transferring or extinguishing title are dispensed with. The Crown lands office would have to record the changes in the register, but the Act itself effects the legal change. The conditions in the new grants (especially the perpetual market condition on the City’s land) would likely be recorded as encumbrances on title. The statutory right of entry over the Fifth Schedule may also need to be recorded to bind successors, though the Act does not expressly require registration. The Act also has implications for the Public Works Act 1958 and local government legislation. Because the Fourth Schedule land is dedicated as a public highway, the City becomes responsible for its maintenance under s 5. This overrides any general rule that the Crown or the original owner maintains highways; the City assumes that burden. The cost sharing arrangement under s 6 (50 per cent each) may interact with the Commissioners’ obligations under the Melbourne Harbor Trust Act 1958, which likely requires them to carry out port-related works. The Act does not amend any planning laws, but the perpetual market use condition on the City’s land effectively zones it as a market site. Any subsequent rezoning or development contrary to that condition would be a breach. The Act has not been amended since its enactment; the Table of Amendments confirms no changes have been made (Endnote 2). It remains on the Victorian statute book in its original form.

The Table of Amendments to the Act states unequivocally: “There are no amendments made to the West Melbourne Lands Act 1968 by Acts and subordinate instruments.” This means the Act has remained exactly as enacted on 22 October 1968 (the date of royal assent). The version as at 24 February 2003 (the version provided) is the original. The only changes over time have been the commencement dates of the provisions: all except sections 4, 5 and 7 commenced on 5 February 1969 (Government Gazette 5 February 1969 page 238); sections 4, 5 and 7 commenced on 17 March 1971 (Government Gazette 17 March 1971 page 634). This staggering was deliberate, presumably to allow the City to pay the $200,000 and receive its grant before the divesting and dedication occurred. The fact that sections 4 and 5 (divesting from Commissioners and dedication as highway) commenced nearly two and a half years later suggests that the relocation of the Appleton Dock road may have taken time, or that the parties needed to finalise boundary definitions. The Act has not been repealed, so it remains in force, though most of its operative provisions (the transfers and payments) are likely spent. The perpetual condition on the City’s land continues to bind the title. The right of entry for the road authority also persists, though if the road has been built and is being maintained, the right may be exercised only as necessary. The absence of amendment history means that the Act has never been updated to reflect changes in the names or structures of the public bodies involved. The Melbourne and Metropolitan Tramways Board was later reconstituted, and the Melbourne Harbor Trust Commissioners have been replaced by the Port of Melbourne Corporation. Those successors in interest would be bound by the Act by virtue of the general law of statutory succession. The Act is a static record of a 1968 political agreement, frozen in time.

The Act itself contains no reference to any court proceedings, and the user instructs that only cases named in the source may be cited. No cases are mentioned. The nature of the Act as a one-off land swap between government entities makes litigation unlikely, but not impossible. Potential areas of dispute could include: the scope of the “other municipal purposes” condition on the City’s land (e.g., could the City build a multi-storey car park with a market on the ground floor?); the necessity of the costs incurred for relocating the Appleton Dock road (s 6); whether the road authority’s use of the Fifth Schedule land exceeds what is “necessary”; or whether the Board has breached the conditions in its grant. However, there is no public record of any such litigation, and the Act’s wording suggests the parties intended a negotiated settlement rather than a litigated outcome. The preamble recites agreements, so the transfer was likely consensual. Given the Act’s age, any disputes would have arisen decades ago and would likely have been resolved privately. The existence of the Act on the statute book does not itself generate ongoing litigation; it simply provides the legal basis for the land titles. As a matter of practical legal research, there are no reported cases citing the West Melbourne Lands Act 1968 in the Victorian Supreme Court or the High Court of Australia. Its litigious significance is nil.

Several features of the Act may trap the unwary. The staggered commencement dates are a prime example: sections 4, 5 and 7 did not commence until 17 March 1971, almost two and a half years after the rest of the Act. This means that between 5 February 1969 and 17 March 1971, the divesting of the Second Schedule lands from the Commissioners and the dedication of the highway had not yet taken effect, even though the City’s grant had likely issued. Any dealings with those lands during that interval would have been governed by the pre-existing vesting in the Commissioners, despite the overall scheme of the Act. The perpetual market condition on the City’s land (s 3(2)) is both specific and vague. It requires that the land “shall at all times be used as and for a site for a market and for other municipal purposes.” The term “other municipal purposes” is open-ended; the City could argue it includes any function the City performs, from council offices to public libraries. However, a court might read it ejusdem generis with “market”, limiting it to purposes akin to a market (e.g., wholesale or retail trading, public gatherings). The City cannot simply sell the land or lease it for non-municipal commercial development without risking the grant. The right of entry over the Fifth Schedule land (s 4(2)) imposes a substantial burden on the Board’s fee simple without compensation. The right is “to enter upon and use” for construction, maintenance and use of the road. “Use” is particularly broad; it could mean the road authority could permanently occupy the land for the road, effectively taking it without a formal acquisition. The Act does not require the road authority to pay rent or compensation. The cost-sharing provision in s 6 is ambiguous: the “cost necessarily incurred of the relocation” is to be defrayed equally. There is no mechanism for determining what is necessary, and no arbitration clause. If the Commissioners and the Board disagree, the only resort is litigation. The Act also fails to specify what happens if one party does not pay its share. The lack of any penalty for non-compliance with the use condition on the City’s land is another gotcha. The Act does not say who may enforce the condition (presumably the Crown, as grantor), but it does not give standing to private competitors or neighbours who might object to a non-market use. Finally, the Act uses Crown land surveying units (links, roods, perches) and references to arcs and chords. Modern boundaries may have shifted, and title searches should rely on current registered plans rather than the Schedule descriptions alone.

Compliance with the Act is largely historical, but the perpetual conditions require ongoing attention. For the City of Melbourne, the primary duty is to ensure that the First Schedule land (the 15 acre 7 perch parcel) continues to be used as a site for a market and for other municipal purposes. Any proposed change of use should be assessed against that condition. If the City wishes to use the land for a purely commercial purpose (e.g., a private office tower), it may need to seek surrender of the grant or a private Act to remove the condition. The City should also maintain the Fourth Schedule highway (s 5) to a standard appropriate for a public road. The City should keep records of its $200,000 payment, though this is likely decades past. For the Board (or its successor entity), compliance involves checking that the Third Schedule grant is correctly recorded in the land titles office, and that the burden of the right of entry over the Fifth Schedule is noted. The Board must allow the road authority (or its successor) to enter and use the Fifth Schedule land for the purposes specified. If the road authority proposes actions beyond the scope of the road linking Dynon and Footscray, the Board may object, but the Act gives no express remedy. The Board should also ensure that its 50 per cent share of the Appleton Dock road relocation costs has been paid; if not, it may be liable for that sum. For the Commissioners (now the Port of Melbourne Corporation), compliance requires ensuring that the divesting of the Second Schedule lands has been recorded and that the necessary $10,000 payment was received. They must also pay their 50 per cent share of the relocation costs, if not already done. The Melbourne and Metropolitan Board of Works (or current road authority) should ensure that its right of entry over the Fifth Schedule is exercised reasonably and only for the road purposes stated. It may wish to have the right registered as an easement on title for clarity, though the Act does not require this. For any party dealing with these lands in the future (e.g., a purchaser of neighbouring land or a developer), title searches should reveal whether the conditions and rights have been properly noted. The Act itself remains on the statute book, so it is still effective law, but the practical steps of payment and grant issuance were likely completed in 1969-1971. The ongoing compliance burden is therefore minimal: it consists mainly of honouring the use restriction on the City’s land and not interfering with the road right.