Church of England Property Act of 1889 (NSW)

An Act to provide for the vesting of properties held on trust for the benefit of the Church of England, and to grant powers of dealing with the same discharged from trust or consecration in certain events. [21st May, 1889.]

of E n g l a n d , and in bodies of t rus tees corpora te and individual , upon WH E R E A S lauds in various par t s of t he Colony of New South Wales are vested or purpor t to he vested in Bishops of t he C h u r c h

express t rus t s t h a t t h e same should be used as sites for Churches , clergy­ men ' s dwell ings, or for o ther purposes , for t h e benefit of t h e said Church , and on some of such lands , churches , schools, c le rgymen ' s residences, or o ther bui ld ings have been erected, and cer ta in of t h e said lands and bui ld ings have been consecrated. A n d whereas by reason of change of c i rcumstances , unsui tab i l i ty of site, and o ther causes, i t is or m a y be impossible or undesi rable to carry out or con t inue to car ry out t h e t rus ts declared concerning some of t h e said lands or bui ldings, or of moneys held in t rus t for t he said Church ; and it is also desirable t h a t powers should be given for t h e beneficial use of o thers of t he said lands or bui ld ings u n t i l the same shall be requi red for t he purposes for which the same have been or may be g ran ted . A n d it is also desirable to set a t rest doubts t h a t m a y arise in consequence of the Crown hav ing ceased to g r a n t le t ters pa t en t cons t i tu t ing and appoin t ing Bishops of t h e C h u r c h of E n g l a n d for Dioceses wi th in t he said Colony respect ing t he r ights , powers, and privi leges of such Bishops and their successors unde r Imper i a l s ta tu tes in force in t he said Colony, Ac t s of Council ,

g ran ts , deeds, or o ther i n s t rumen t s , in which the said Bishops	and
the i r successors are ment ioned .	A n d i t is also desirable to provide for

t h e o ther cont ingencies hereinaf ter ment ioned. Be it therefore enacted

by the Queen ' s Mos t Exce l l en t Majesty, by a n d wi th t h e advice and

consent of t he Legis la t ive Council and Legis la t ive Assembly of N e w

South W a l e s in P a r l i a m e n t assembled, and by the au thor i ty of the

same, as follows :—

1. F r o m and after t he pass ing of th is A c t every Bishop of t he C h u r c h of E n g l a n d for t h e t ime being, ac t ing a n d recognised as being the Bishop of a n y Diocese now exis t ing or which m a y hereaf ter be created in t he said Colony, and h a v i n g been consecrated according to t h e m a n n e r and form prescribed and used by the Church of Eng l and ,

to all real and personal estate , w h e t h e r s i tua te wi th in t h e boundaries of his diocese or not, held upon t ru s t for t he benefit of t h e C h u r c h in his Diocese, wh ich is or shall hereafter be vested in any Bishop of the Church of E n g l a n d in t he said Colony, or which was vested at t he t ime of his death in any Bishop since deceased of the said Church , unless t he same shall have been subsequent ly vested in t he corporate body of t rus tees appointed for such Diocese, in accordance wi th t he provisions of t h e " C h u r c h of E n g l a n d T rus t P rope r ty Incorpora t ion Act , 1 8 8 1 , " where such corporate body exists , or o ther t rus tees or t rus tee , and such real and personal estate shall., by force of th is s t a tu t e , b u t subject to t h e t rus t s affecting t he same, respectively vest in such Bishop accord­ ingly, as if t he same had been originally g ran ted or conveyed to h i m and his successors as a body corporate . A n d every such Bishop shall m

no twi ths t and ing t h a t such Bishop m a y not have been appointed unde r

le t ters p a t e n t from t h e Crown, shall by force of th is s t a tu t e be ent i t led

in all respects, w i th in his Diocese, have and enjoy all and s ingular t h e same r ights , powers, and privileges, whether created by s t a tu te ,

act , g ran t , deed, or o ther i n s t rumen t whatsoever as were	enjoyed	or
possessed there in by t h e Bishops his predecessors.

2. I n any case in which Diocesan or o ther moneys , lands,

churches , schools, or o ther bui ld ings and he red i t aments belonging to

a n d s i tua te wi th in t h e l imits of any Diocese in th i s Colony now exis t ing, or w h i c h m a y hereafter be created, a re now, or m a y hereaf ter be vested in t he Bishop of any such Diocese, or other t rus tee or t rustees ( including corporate t rustees appointed by or unde r t he " C h u r c h of E n g l a n d Trus t P r o p e r t y Incorpora t ion A c t of 1881" ) , a n d are held upon any express t rus t (whether by consecrat ion or otherwise) for t he use and benefit of the C h u r c h of Eng l and , and by reason of c i rcumstances which have occurred since such consecrat ion or t h e creat ion of other such express t rus t , i t has, in t h e opinion of t h e Synod of any such Diocese, become impossible or inexpedien t to car ry out or observe t h e pa r t i cu la r purpose or purposes to wh ich such Diocesan or o ther moneys , lands, bui ldings, and hered i taments , or a n y of t h e m , are, by such consecrat ion or o ther t rus t , devoted, i t shal l be lawful for a n y such Synod, from t ime to t ime, by ru le or ordinance (passed on t h e t h i r d reading thereof by a major i ty of t he said Synod according to t h e regula t ions of t he said Synod), to declare such the i r opinion, and by t h e same or any subsequent ru le or ordinance to direct t h a t any such lands, bui ld ings , or he red i t amen t s shall be sold, demised, mor tgaged, or let on min ing , bui ld ing , or occupat ion leases, inc lud ing the laying ou t and dedicat ing of streets , or otherwise dealt wi th , and t h a t such Diocesan and other moneys be appl ied in m a n n e r in such ru le or ordinance to be specified freed from such consecration or t r u s t as t he case m a y be, and such consecrat ion or t r u s t shall the reupon , by force of t h e said ru le or ordinance , cease and determine . Provided always, and i t is hereby enacted t h a t it shal l no t be lawful for t h e Synod to pass any such ru le or ordinance in respect of ex t r a parochial lands and Diocesan moneys w i thou t t h e consent in wr i t ing of t h e Bishop of a n y such Diocese, or of his Commissary duly appointed u n d e r his Episcopal seal, a n d in t he case of other lands and moneys , bui ldings or heredi taments , wi thou t t he l ike consent of t he I n c u m b e n t and a major i ty of t he Churchwardens and Parochia l Council if any for t h e t ime being of t h e par i sh or ecclesiastical distr ict for t he benefit of which such lands , bui ld ings , or he red i t aments m a y be or m a y have been held in t rus t , and in t he case of lands, bui ldings, or heredi taments , or of proceeds, ren ts , or moneys

ar is ing from lands, bui ldings, or he red i t aments which have	been
gra tu i tous ly g ran ted or assured upon t r u s t for or for t h e use and	benefit

of t he C h u r c h of E n g l a n d by any p r iva te donor, wi thou t t h e consent previously h a d and obtained of such donor, if l iv ing, or w i thou t t he l ike consent of his lawful personal representa t ives , if he be dead, and if his g ra tu i tous g ran t or assurance upon t r u s t shall have been made

wi th in t w e n t y years .

3. "Whenever i t shall appear to t h e Synod of any such Diocese,
and the Synod shall so declare, tha t i t is expedient to let on bui lding,

min ing , or occupat ion leases any such lands, bui ld ings , and heredi ta­

m e n t s as hereinbefore ment ioned for t h e purpose of obta in ing income

therefrom in fu r therance or aid of t he t rus t s a t tached to t he same, or

in fu r therance or aid of some subs t i tu ted purposes to wh ich t h e said Synod shall have determined to app ly t h e same in cases where in i t shall in t he declared opinion of t he said Synod be or have become impossible or inexpedient to carry out t he par t icu la r purpose or purposes to which the said lands, bui ldings, and hered i taments were devoted by consecration or o ther t rus t , it shall be lawful for t h e said

b Synod

Synod from t ime to t ime , b y ru le or ordinance passed in l ike m a n n e r as hereinbefore ment ioned, to direct t h a t t he said lands , bui ldings , a n d he red i t aments shall be le t on m i n i n g , bu i ld ing , or occupat ion leases, inc lud ing t h e laying-out and dedicat ing of streets and pub l i c places, or be otherwise dealt wi th for p rocu r ing income therefrom as aforesaid, a n d t h a t t h e income to be derived theref rom shal l be applied in fu r the rance or aid of t h e said t r u s t or subs t i tu ted purposes in such m a n n e r as shal l in such ru le or o rd inance be specified, freed f rom such consecrat ion or t rus t s , as t he case m a y be, if t h e said Synod shal l have so requi red ; and in t h a t case such consecrat ion or t r u s t shall by force of such ru le or ordinance cease and de te rmine .

4. I f i t shall a t any t ime appea r to t h e Synod of a n y such Diocese, and the Synod shal l so declare, t h a t it is expedient to obta in a n advance of money upon t h e securi ty of any such lands , bu i ld ings , a n d he red i t aments (other t h a n consecrated churches and t h e lands on which t h e same shal l have been erected or which shall be immedia t e ly appu r t enan t the re to) , for t he purpose of car ry ing out and g iv ing effect to t he t rus t s or subs t i tu ted purposes a t t ached to t h e same, i t shall be lawful for t h e said Synod, by ordinance or ru le as aforesaid, to direct t h a t such lands, bui ld ings , or hered i taments shall or m a y be mor tgaged for such a m o u n t as it shall the reby author ize to be obta ined b y way of advance on t h e securi ty of t h e same, and t h a t t h e a m o u n t to be raised shal l be applied for or towards t h e purposes in th i s

section ment ioned .
5. Provided t h a t t h e powers given in and by the last two pre­

ceding sections shall be subject to t h e proviso conta ined in t h e second
section of th is Ac t .

6. "Whenever any such direction as aforesaid shall have been given, t h e Bishop for the t ime be ing of t h e Diocese or his Commissary du ly appointed u n d e r his episcopal seal, where such Bishop is sole t rus tee , or where t h e said lands a n d bui ld ings are no t vested in t he corporate; body of t rus tees appointed for t h e same Diocese in accordance wi th t h e provisions of t he " C h u r c h of E n g l a n d Trus t P roper ty Incorpora t ion Act , 1 8 8 1 , " and in al l o ther cases t he corporate body of t rus tees appointed for such Diocese in accordance wi th t he provisions of t h e said A c t shall fo r thwi th carry ou t such direct ion, a n d in his own name , and as his ac t and deed, or in t he n a m e of such corporate body of t rus tees , and as i ts own act and deed, execute and do all necessary deeds, conveyances , assurances, mor tgages , leases, or o ther i n s t rumen t s , acts and th ings for

giving full and complete effect to such direction in accordance w i t h

t h e t r u e i n t en t a n d m e a n i n g of t h e act , resolut ion, or ordinance b y

wh ich such direct ion shall have been given. A n d every such deed,

conveyance, assurance, mor tgage , lease, and o ther i n s t rumen t , ac t or t h i n g so executed or done by the said Bishop or his Commissary du ly appointed as aforesaid, or corporate body of t rus tees in exercise of t he au thor i ty of th i s section conferred upon h i m or t h e said body shall fully and effectually vest such real and personal proper ty , b o t h a t law and in equi ty , for t he es ta te and interes t men t ioned in and pu rpo r t i ng to be gran ted and assured by such deed, conveyance, assurance, mor tgage , lease or o ther i n s t rumen t , act , or th ing , in and upon t h e person or persons accept ing t h e same, to all i n t en t s and purposes whatsoever . A n d t h a t freed and absolutely discharged from

t h e t rus t s upon which such real and personal proper ty h a d	theretofore
been held, and if consecrated, free from all consecration.

7. N o purchaser , mor tgagee , lessee, or o ther person, u p o n a n y

sale, mor tgage , demise, or other proceeding pu rpor t ing to be m a d e u n d e r t h e powers g ran ted by this Act shall be concerned to see or enquire into t h e necessi ty or propr ie ty thereof, or t h e mode of exercis ing the same, or be affected by not ice t h a t t h e exercise of t h e power is

unauthor ized ,

unauthor ized , i r regular , or improper , nor to see to the applicat ion or disposition of any purchase , mor tgage , or other money or r en t paid by h im.

8. The moneys ar is ing from any such sale, mor tgage , lease, or o ther deal ing as aforesaid, and all money ment ioned in such direction, shall be paid to t he said Bishop or his Commissary du ly appointed as aforesaid, or to t h e corporate body of t rus tees appointed for such Diocese in accordance wi th t h e provisions of the " Church of E n g l a n d T rus t P rope r ty Incorpora t ion Act , 1 8 8 1 , " where such body exists, or to such o ther person or persons as t h e act , resolution, or ordinance by wh ich such sale, mor tgage , lease, or o ther deal ing m a y have been author ized m a y direct . A n d the receipt of the said Bishop or his Com­ missary, duly appointed as aforesaid, or corporate body of t rustees or other person or persons, as the case may be, shall be an effectual

d ischarge	therefor.
9. I t shal l be lawful for t h e Synod of any such Diocese, by a n y such ru le or ordinance as aforesaid, or by any subsequen t ru le or ordi­ nance passed in l ike manner , a n d from t ime to t ime , b u t subject to t h e proviso conta ined in t h e second section of t he Act , to direct how and in w h a t m a n n e r any Diocesan moneys and any proceeds, rents , and other moneys arising from any such sale, demise, or deal ing as afore­ said, shall be deal t "with and applied, and the same shall be deal t wi th and appl ied accordingly. Provided t h a t such Diocesan moneys , proceeds, ren ts , and o ther moneys, shall (after p a y m e n t t he reou t of all proper expenses) be deal t w i th and applied for t h e use and benefit of t he Church of E n g l a n d in t he par ish or ecclesiastical dis tr ict for t he benefit of which the land, bui ld ings , or hered i taments from which such proceeds, rents , or other moneys shall have arisen, m a y be or m a y have been held in t rus t , or for which such Diocesan and other moneys are held in t rus t , and for t h e same purposes as near ly as m a y be for which t he said lands , hered i taments , and moneys h a d been previously held, unless the Synod shall, by a n y such ru le or ordinance as aforesaid, or by any subsequen t ru le or ordinance passed in l ike manne r , declare t ha t , by reason of c i rcumstances which have occurred since t h e creat ion of t he express t r u s t (whether by consecration or otherwise) upon which t he said lands , bui ldings, he red i taments or Diocesan and other moneys are held, i t is, in t h e opinion of t h e Synod, impossible or inexpedient to app ly t he said proceeds, rents , Diocesan or o ther moneys in such par ish or ecclesiastical district for t h e same or l ike purposes, in which case t he said proceeds, ren ts , Diocesan or o ther	moneys m a y (after paymen t thereout of all proper expenses) be dealt
w i t h and appl ied for t he use and benefit of t he C h u r c h of E n g l a n d for
some other purpose t h a n as beforement ioned, and in any o the r par ish or ecclesiastical distr ict in any such Diocese.

10.    Pend ing t he appl ica t ion of a n y moneys to arise as aforesaid,

t h e same m a y be invested by t h e said Bishop, or his Commissa iy duly- appointed as aforesaid, or corporate body of t rus tees , or such other person or persons author ized to receive the same as aforesaid, as t h e case may be, in Government or real securit ies in t he said Colony, or on fixed deposit in any bank .
1 1 . W h e r e any real or personal p roper ty shall have been or shall hereafter be vested in a n y person or persons other t h a n a corporate body of t rustees appoin ted for t he Diocese where in such real or personal es ta te shall be si tuate, or for t he benefit of wh ich t he same m a y be held in accordance wi th t he provisions of t h e " Church of E n g l a n d Trus t P rope r ty Incorpora t ion Act , 1 8 8 1 , " upon t rus t for t h e benefit of t he Church of E n g l a n d in t h e said Colony, and no sufficient provision shal l have been m a d e for filling u p vacancies in t he t r u s t occasioned by death, res ignat ion, or any o ther cause, it shal l be

lawful

l awful for t he Synod of t he Diocese in which such proper ty shall be s i tuate , or for t h e benefit of which t h e same m a y be held, to declare b y resolut ion t h a t a vacancy or vacancies exist in t h e t ru s t by reason of one or more of t h e t rus tees hav ing died, resigned office, refused, or neglected, or hav ing become incapable to act in t he said t rus t , or hav ing for t h e space of six mon ths ceased to reside wi th in t h e same Diocese, a n d t h e Synod shall t he reupon , or a t any t ime thereafter , proceed to

elect a new t rus tee or t rus tees as t h e case m a y requi re , and the fill ing

u p of such vacancy shall be for thwi th notified in t h e Gazette,	under
t h e h a n d of t he Pres ident of t h e said Synod, and t h e said	t rus t

p roper ty shal l t he r eupon , w i t h o u t fu r ther assurance, vest in t h e said

t rus t ee or t rus tees so appointed as aforesaid, e i ther solely or jo in t ly

wi th t h e surviv ing or con t inu ing t rus tee or t rus tees as t h e case m a y be .

12. A copy of every act, ru le , resolution, or ordinance of t h e Synod passed in pur suance of this Act , certified by the Pres ident or A c t i n g Pres ident of t h e said Synod shall w i th in th ree m o n t h s f rom the passing thereof be recorded in t he office of t h e Mas t e r in E q u i t y , and such copy, or a certified or office copy thereof -shall, in favour of all persons purchas ing , leasing, advanc ing moneys on, or otherwise acqu i r ing or possessing any esta te , or in te res t in t h e lands or bui ldings the re in ment ioned, be deemed conclusive evidence t h a t a rule , act , resolution, or ordinance in t e rms of such recorded copy h a d been du ly passed, and t h a t al l necessary consents or direct ions had been given, and t h a t all proceedings in connect ion the rewi th were regu la r and in due form.

13 . This A c t shall no t repeal , or in any way cu t down or

abr idge, t h e provisions of t he " Sydney Bishopric and C h u r c h P r o p e r t y

A c t of 1887 ," and shall be read as s u p p l e m e n t a r y to and en la rg ing the

provisions of t he said Act .

14. This A c t m a y be cited for all purposes as t h e " C h u r c h of

E n g l a n d P rope r ty A c t of 1889 . "

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