The Uniting Church in Australia Property Trust (Q) v Attorney-General for the State of Queensland
[2007] QSC 318
•20 December 2007
SUPREME COURT OF QUEENSLAND
CITATION:
The Uniting Church in Australia Property Trust (Q) v Attorney-General for the State of Queensland & Ors [2007] QSC 318
THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q)
(applicant)
v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(first respondent)
MARIE ANN BEATTIE
(second respondent)
LYNETTE SMITH
(third respondent)
LEITA MAUD BOSWELL
(fourth respondent)
MERLE ATKINSON
(fifth respondent)
WILMER (WILMA) LILLIAN ANDREASSEN
(sixth respondent)
ESTATE OF FLORENCE BEATRICE BEATTIE
(seventh respondent)FILE NO/S:
BS 2547 of 2007
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
20 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
22 June 2007
JUDGE:
Mackenzie J
ORDER:
It is declared:
that on its true construction, the trust created by the gift of land, located on Calico Creek, near Gympie, and more particularly described as lot 63 on Crown Plan LX2371, County of Lennox, Parish of Amamoor, title reference 15798060 (the “Property”) to the Uniting Church in Australia, under the Last Will and Testament of William James Beattie, deceased, dated 8 February 1980, (the “Trust”) for use as a camp for youth in the Uniting Church in Australia, discloses a general charitable intention; 1.
pursuant to s. 105(1)(a)(ii) and/or (iii) of the Trusts Act 1973 (Qld) (the “Trusts Act”) that the original purposes of the Trust, in part, if not in whole:2.
cannot be carried out; or(a)
cannot be carried out according to the directions given and to the spirit of the trust; (b)
It is ordered that Charge no. 602192835 with respect to the Property be removed from the title of the Property.3.
It is further ordered that the Property be applied cy-près, in accordance with the scheme annexed to this order, pursuant to sections 105(1)(a)(ii) or (iii) of the Trust Act.4.
It is ordered that the applicant’s costs of and incidental to the application be paid out of the proceeds of the Trust, on an indemnity basis.5.
CATCHWORDS:
CHARITIES – CHARITABLE GIFTS AND TRUSTS – WHEN APPLIED CY-PRES – IMPRACTICALITY OF OBJECT – WHERE GIFT APPLIED CY-PRES – where testator devised gift of property to the Uniting Church of Australia conditional on its use as a holiday camp for young people – where gift also conditional on an area of pine trees on the property being retained – where the use of the property as specified is impractical – where applicant seeks approval of a cy-près scheme – where applicant proposes property be sold and funds directed towards youth work by the Uniting Church and the upgrade of facilities for youth – where the second to sixth respondents made no appearance but have expressed differing views on the scheme – whether there is a charitable intent expressed by the testator – whether there is a charitable purpose in accordance with the established heads of charity
Trusts Act 1973 (Qld) s 103, s 104, s 105
Attorney-General v Cahill [1969] 1 NSWR 85, cited
Attorney-General v Wax Chandlers’ Co (1873) LR6HL1, cited
Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531, cited
Goodman v Mayor of Saltash (1882) 7 App Cas 633, cited
Guild v Internal Revenue Commissioners [1992] 2 AC 310, cited
Internal Revenue Commissioners v Baddeley [1955] AC 572, cited
Re Niyazi’s Will Trusts [1978] 1 WLR 910, cited
Re Richardson (1887) 56 LJ Ch 784, cited
Re Stewart’s Will Trusts; Pain v Presbyterian Church of Queensland [1962] QWN 24, citedRe Wilson’s Grant,Fidelity Trustee Co Ltd v Johnson [1960] VR 514, cited
COUNSEL:
P G Bickford for the applicant
L Evans for the first respondentNo appearance for the second, third, fourth, fifth and sixth respondents
SOLICITORS:
Blake Dawson Waldron for the applicant
Crown Law for the first respondent
No appearance for the second, third, fourth, fifth and sixth respondents
MACKENZIE J: This application is concerned with whether a cy-près scheme should be approved for the application, administration and regulation of the corpus of the property gifted by clause 9 of the will of William James Beattie, who died on 8 February 1980. A choice of schemes was offered as possible outcomes. In the original submissions on behalf of the Attorney-General the issue whether the trust discloses a general charitable intention was raised, and some doubt expressed as to whether it was for the advancement of religion. After some consideration of this and other issues concerning characterisation of the bequest, further submissions were invited from the parties.
Probate of the will was granted by the Supreme Court of Queensland on 17 April 1986. It contained a gift of a 63 hectare freehold property at Calico Creek near Gympie to the applicant subject to conditions contained in clause 9(b) of the will. Clause 9 is as follows:
“9(a) Subject to the conditions imposed by Sub-Clause (b) of this Clause I GIVE DEVISE AND BEQUEATH free of all duties my Freehold property at Calico Creek being Subdivision 63 of Portion 1328 in the County of March Parish of Amamoor (hereinafter in this Clause called “the property”) to the Uniting Church in Australia Property Trust (Q.).
(b) The Gift made by Sub-Clause (a) of this Clause shall be conditional upon the donee using the property as a Holiday Camp for the use of the youth of the Uniting Church in Australia and also conditional upon the said Church agreeing to retain the area of standing scrub and further conditional upon the said Church agreeing that neither of the two areas of pine trees planted by me be felled, save such felling as may be necessary (if any) to ensure the proper and safe use of the property as a Holiday Camp and the continued growth of the said areas of pine trees.
(c) I desire the retention of the scrub to enable those young people using the camp to gain some idea of the conditions existing in the District prior to settlement by white men.
(d) I desire the two areas of planted pine trees to be retained as a memorial to the W.J. Beattie Family.”
The property has a memorial on the title to the effect that it is subject to the conditions created by the testator. The property has been managed and maintained by members of the Gympie Uniting Church Congregation since the deceased passed away. The applicant formed the opinion a number of years ago that the property was unsuitable for use as a holiday camp for youth for a number of reasons. Firstly, the geography and location of the property are not suitable for construction of camp and conference facilities. Secondly, there are a large number of existing competitor camp site locations in South East Queensland which significantly affect the financial viability of any new camp and conference facilities. Thirdly, the estimated construction cost for a camp and conference facilities is approximately $8.5 million due to a number of factors, including changes which have occurred in the last twenty years. Those include increased regulatory requirements for such sites, the increased expectation of users of camp facilities, and competition among other camps providing these facilities and decreased use of camp facilities by church and youth groups. The view of the applicant is that the original purposes have ceased to provide a suitable and effective method of using the property by virtue of the trust if regard is had to the spirit of the trust. That is not challenged, and may be accepted as a reasonable assessment of the situation.
The proposed cy-près scheme provides for the applicant to sell the property for a fair market price and to pay the first $90,000 of the net proceeds to the Gympie Uniting Church Congregation specifically for work with youth in the Gympie area. The next $50,000 would be used to upgrade facilities at the Uniting Church Youth and Conference Centre at Alexandra Headlands (Alex Park). The balance, if any, would be deposited into the Synod Reserve Fund to be drawn for the purpose of facilitating youth camping experiences in the Uniting Church.
The memorial on the title citing the wishes of the deceased would be removed. In one version of the scheme, not the applicant’s preferred one, the applicant would take such steps as it might be advising to place a restrictive covenant over the property requiring any future owners to preserve the two areas of pine trees planted by the testator. (In the preferred version, there would be no such covenant.) The covenant would be expressed to burden the property and would require the purchaser to covenant that any successor in title would not remove the stands of hoop pines located on the property save for any thinning of trees that may be required to maintain the health of the entire group of trees. (It may also be noted that further enquiry during the hearing suggests that they are subject to statutory vegetation protection and other restrictions as well, because of the varieties of trees involved.)
The applicant would also place on the property a commemorative plaque explaining the history of the deceased and the property. It would designate a camping area among the trees at Alex Park in memory of the deceased and name a bungalow there in honour of the deceased. It would give the Gympie Uniting Church Congregation the use of the Beattie bungalow for four weeks of each year in perpetuity at no cost. It would place pictures of the pine trees and the free standing scrub currently on the property and a description of their history in the Beattie Bungalow. If any part of the net sale proceeds was used to upgrade the playing field facilities at Alex Park, any such playing field would be named in honour of the deceased.
Procedural matters
When the future of the land was under active consideration by the applicant, contact was made, on the applicant’s behalf, with each of the testator’s daughters who subsequently became the second to sixth respondents. That contact occurred in early 2005. There is an email that shows that the person writing the email assessed the situation as being that two of them were non-committal when approached, one was happy for the applicant to do whatever it wished, and the other two were far from happy at the prospect of the land being sold, for reasons that may have slightly different emphases.
Then, in January 2007, letters were sent to each of the daughters foreshadowing the application and summarising its intent. The application was filed on 22 March 2007, initially with the Attorney-General as the only respondent. Copies were served on each of the daughters. On 27 April 2007 Byrne J ordered that they be joined and the seventh respondent as well. He gave directions with regard to further steps to be taken if they wished to take an active part in the proceedings. There has been some difficulty with respect to the seventh respondent since such enquiries as are appropriate have failed to discover any will of the testator’s deceased widow. However, in practical terms, those entitled to benefit from her estate in the event that there is no will are aware of the application.
None of the second to seventh respondents filed any material in the application or sought to participate in the hearing. Only the first respondent, the Attorney-General, appeared, in his traditional role.
Construction of clause 9
The combined effect of clause 9(a) and (b) is that the property was given devised and bequeathed to the applicant subject to the following three conditions:
(i) that the donee use the property as a holiday camp for the use of the youth of the Uniting Church in Australia;
(ii) that the Church agreed to retain the area of standing scrub; and
(iii) that it agree that neither of the two areas of planted pine trees be felled except if necessary for the proper and safe use of the holiday camp and the continued growth of the areas of pine trees;
Clause 9(c), while expressed in a precatory way, is, in context, only an explanation why the condition in (ii) above was imposed. Clause 9(d) is in its terms concerned with the retention of the trees as a memorial to the Beattie family. It did not require any specific physical recognition of the fact that they were a memorial to them. If the provision was to serve a purpose other than explaining why the condition in (iii) was imposed, it could have been made part of it. Even if that were to be an erroneous view of its function, provision in the cy-près scheme of a covenant burdening the land to preserve the trees and the placing plaques on the land itself and in the Beattie Bungalow at Alex Park together with a photo of the trees, would substantially effect recognition of the family.
General charitable intent
On behalf of the Attorney-General it was submitted that several issues had to be considered. The first was that the will expressed the gift as being conditional upon the applicant using it as a holiday camp, agreeing to retain an area of standing scrub and not felling two areas of trees planted by the testator except to protect the safety of the camp and the continued growth of the trees. However, the fact that it is expressed as being conditional in that way, it was submitted, is not of decisive significance. Attorney-General v Wax Chandlers’ Co (1873) LR6HL1 was cited as an example of a case where the word “condition” was considered, in the context in which it was used, to be equivalent to “intent and purpose”, and apt to create a trust. InRe Niyazi’s Will Trusts [1978] 1 WLR 910 was also cited, although it appears that the issue was not in dispute in that case.
The tendency was well established that if a gift of property is given on condition that it be applied to charitable purposes, it will, if the fulfilment of the condition would result in the whole of the property being applied for charitable purposes, generally be construed as imposing an obligation on the donee (Goodman v Mayor of Saltash (1882) 7 App Cas 633, 642; Re Richardson (1887) 56 LJ Ch 784).
As previously mentioned, the issue of whether there is a charitable purpose is raised in the original submissions on behalf of the Attorney-General. Tentatively, it was submitted that the trust may not be charitable. However, it was conceded that it was not beyond doubt because it fell within the necessary criteria to be a gift made for a charitable purpose. Possible bases which might come into play were the advancement of religion, the promotion of public health, the promotion of public recreation, advancement of education and preservation of the environment. There may be some overlapping within those categories, the first of which and the last of which were specifically referred to on behalf of the Attorney-General in the original submissions.
(a) Advancement of Religion
The situation prior to enactment of s 104 of the Trusts Act 1973 (Qld) was that in order to be charitable, a trust must have objectives which were exclusively charitable. In this case, cl 9(b) of the will clouded what might otherwise have been clear from cl 9(a). However, if the main purpose is charitable, it will not be fatal if any non-charitable purpose is merely incidental to or supplementary to the charitable activity. On behalf of the Attorney-General, Re Stewart’s Will Trusts; Pain v Presbyterian Church of Queensland [1962] QWN 24 was cited as an example of a case where advancement of religion was the charitable purpose relied on. The devise required the land “to be used for the celebration of divine service therein…or any other object in or purpose having in view the spiritual intellectual moral or bodily welfare of members of the particular congregation.” It is immediately apparent from reading Hanger J’s reasons for judgment that advancement of religion was considered to be at the core of the devise under consideration, and the existence of the tennis courts purely incidental to it. The evidence that the recreational facilities situated on the same premises were used by members of the congregation in ways that had “come to be a common feature of work of the church” and which were “regarded as very important aspects of the work of a church” was treated as decisive. The focus on advancement of religion is much stronger in that case than in the present.
There is also less connection with the advancement of religion than the gift considered in Re Wilson’s Grant,Fidelity Trustee Co Ltd v Johnson [1960] VR 514. There the issue was whether a gift to the “Girls’ Friendly Society at Ballarat” was charitable as being for the advancement of religion or, alternatively, for a purpose beneficial to the community. Hudson J held that the society’s direct objectives and immediate activities went a great deal further than the teaching and application of Christian principles. Therefore the gift could not be supported as one for the advancement of religion.
In Attorney-General v Cahill [1969] 1 NSWR 85, Wallace ACJ held that a gift to nominees of the Roman Catholic Archbishop of Sydney for the purpose of forming or advancing a Catholic Boys’ Club in the city of Sydney was not a charitable purpose within the meaning and intention of the preamble to the Charitable Uses Act 1601 or one which fell within any of the four classes described by Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (“Pemsel’s Case”). Wallace ACJ went on to say that the phrase “Boys’ Club” without qualification would not import or suggest elements such an underprivileged or age, illness, poverty, being orphaned and so on. The word “Club” conveyed mainly an association of persons for the purposes of social intercourse or for some form of sport or for entertainment or the like.
In this case the gift is to the property trust of a religious organisation for the particular purpose of a holiday camp for the youth of a particular religious persuasion. While there is no reference to any emphasis on religious or spiritual activities to be carried on at the camp, it is difficult to think that there would not have been some content of religious observance involved. The reference to the area of bush in its natural state is expressed in terms related more to an historical context than a religious or spiritual one. The reference to the pine trees being preserved has no religious content at all. It is referred to in the content of a memorial to the testator’s family.
The question now has to be viewed in light of s 104 of the Trusts Act which relevantly provides as follows:
“104 Inclusion of non-charitable purpose not to invalidate trust
(1)No trust shall be held to be invalid by reason that some non-charitable and invalid as well as some charitable purpose or purposes is or are or could be deemed to be included in any of the purposes to or for which an application of the trust property or funds or any part thereof is by such trust directed or allowed.
(2)Any such trust shall be construed and given effect in the same manner in all respects as if no application of the trust property or funds or of any part thereof to or for any such non-charitable and invalid purpose had been or should be deemed to have been so directed or allowed.”
The applicant submitted that the old cases dealing with the mixing of charitable and non-charitable purposes invalidating a charitable trust must be viewed in the context of s 104 and would, or at least might, be decided differently today in light of its operation. The use of the property as a holiday camp for the use of the youth of the Uniting Church in Australia would involve purposes which advance religion and purposes which may not. However, by reason of s 104 the mixture of purposes would not invalidate the trust. The trust should be construed and given effect to as if no application of the trust property or funds or any part thereof could be made to any non-charitable and invalid purpose and the trust should be construed so as not to direct or allow any such application of the trust property.
In the Attorney-General’s further submissions it was submitted that the better view is that the first condition created a charitable trust for the advancement of religion. The deceased gave property to an organ of the church, specified that the property was to be used by the youth of the church and referred to a holiday camp. That accumulation of factors indicated that the testator had a specific kind of camp in mind. It was difficult to escape the conclusion that at least one of the purposes would have been religious. It would be more than a secular activity motivated by religion. It was submitted that the deceased intended that secular activities be carried out at the property in addition to religious activities, but the cases recognised that secular activities might be ancillary or incidental to religious purposes.
It was further submitted that while it may be arguable that the secular activities were not merely incidental and that the trust included multiple purposes some of which were secular and some of which were religious, s 104(2) of the Trusts Act provided that no trust is to be held invalid because its purposes include some non-charitable purposes in addition to charitable purposes. Accordingly, even if the secular purposes were not ancillary or incidental to the religious purposes, the trust may be valid and construed as if no application of the trust may be made to the non-charitable purposes.
In my view, the bequest should be regarded as a charitable trust for the advancement of religion.
(b) Other Charitable Purposes
If that is correct, it is strictly unnecessary to consider whether it falls within the fourth category in Pemsel’s Case as well. The applicant relied specifically on the promotion of public recreation with a fall back position of educational purposes. The Attorney-General’s submissions nominated the promotion of sport and recreation as the category apparently relied on.
Section 103 of the Trusts Act relevantly provides as follows:
“…
(2)Notwithstanding any rule of law to the contrary, it shall be and be deemed always to have been charitable to provide, or to assist in the provision of, facilities for recreation or other leisuretime occupation, if the facilities are provided in the interests of social welfare.
(3)The requirement of subsection (2) that the facilities are provided in the interests of social welfare shall not be satisfied unless –
(a)the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and
(b)either –
(i)those persons have need of such facilities by reason of their youth, age, infirmity or disablement, poverty or social and economic circumstances; or
(ii)the facilities are to be available to the members or to the male members or to the female members of the public at large.
(4)Nothing in this section shall be taken to derogate from the principle that, in order to be charitable, a gift, trust or institution must be for the public benefit.”
With respect to the definition of “social welfare”, the criterion in s 103(2) is satisfied, subject to one or both of the alternative criteria in s 103(3) being satisfied; there is no reason to suppose that the purpose does not have a sufficient element of public benefit, in the sense of it not being of “an undesirable nature” Guild v Internal Revenue Commissioners [1992] 2 AC 310, 322.
In terms of s 103(1)(b) the alternative criteria are a need for the facility by reason of, amongst other things, the beneficiaries’ youth. In this area, the concept of “need” would probably not be restrictively construed. On the assumption that the bequest qualifies under this head, the restriction in s 103(b)(ii) which may reflect the restriction proposed by Viscount Simonds in Internal Revenue Commissioners v Baddeley [1955] AC 572, to the effect that a gift defined by reference to a segment of the community, defined by factors such as ethnic origin or religion, did not have sufficient “public” benefit, would not influence the outcome. It is not necessary to express a concluded view on the compliance of the gift under the “fourth head” of Pemsel’s Case in light of the characterisation of it as one for the advancement of religion.
A trust for the advancement of education, if it is to be charitable, must be for an educational purpose which the law regards as charitable and also be within the letter or spirit and intendment of the preamble to the statute of Elizabeth I. The education must be of educational value to the community and the benefits available to the public or a sufficiently important section of the public. The term “education” can have a wide meaning. However, the purpose must have real educational value.
While it is not necessary to reach a concluded view, the element of educational value provided by merely preserving trees in their natural state, however laudable that may be, without a more structured educational regime than the terms of the will contemplates seems a slight basis for a trust for the advancement of education.
The scheme
Alternative forms of cy-près schemes were presented by the applicant. The principal issue is whether the scheme approved should require the applicant to include a restrictive covenant requiring the preservation of the pine trees and standing scrub on the property. This outcome is not favoured by the applicant because of the probable depressing influence that it would have on the sale price. The alternative propositions were the inclusion of a provision allowing the applicant to dispose of the pine trees prior to the sale of the property, or for the scheme to be silent on the subject of the trees. Inconvenient as it is no doubt seen to be by the applicant, I am not prepared to sanction a scheme which will permit the trees to be dealt with without restriction. To do so would subvert the conditions of the will to which the applicant agreed when it took the gift. In taking this view, I have not lost sight of the fact that it was discovered during the course of the hearing that there are likely to be restrictions on destroying them in any event because of the type of trees that are there, and legislative requirements.
In my view the covenant should cover not only the planted pine trees but also the “standing scrub” referred to in cl 9(b) of the will. That would be accommodated by amending the form of the draft requiring the trees to be protected by covenant, by inserting the words “and the standing scrub referred to in cl 9(b) of the will” after the word “trees” in paragraph 9(c) of the scheme, and also after the word “pines” in paragraph 9(d)(ii) of the scheme. Subject to that, I am satisfied that the cy-près scheme should be approved. The final form of the scheme is annexed to these reasons.
Orders
It is declared:
1. that on its true construction, the trust created by the gift of land, located on Calico Creek, near Gympie, and more particularly described as lot 63 on Crown Plan LX2371, County of Lennox, Parish of Amamoor, title reference 15798060 (the “Property”) to the Uniting Church in Australia, under the Last Will and Testament of William James Beattie, deceased, dated 8 February 1980, (the “Trust”) for use as a camp for youth in the Uniting Church in Australia, discloses a general charitable intention;
2. pursuant to s. 105(1)(a)(ii) and/or (iii) of the Trusts Act 1973 (Qld) (the “Trusts Act”) that the original purposes of the Trust, in part, if not in whole:
(a) cannot be carried out; or
(b) cannot be carried out according to the directions given and to the spirit of the trust;
3. It is ordered that Charge no. 602192835 with respect to the Property be removed from the title of the Property.
4. It is further ordered that the Property be applied cy-près, in accordance with the scheme annexed to this order, pursuant to sections 105(1)(a)(ii) or (iii) of the Trust Act.
5. It is ordered that the applicant’s costs of and incidental to the application be paid out of the proceeds of the Trust, on an indemnity basis.
Annexure
1. William James Beattie (the “Deceased”) died on 11 December 1986 aged 77.
2. At his death, the Deceased left a Will made on 8 February 1980 (the “Will”). Probate of the Will was granted by the Supreme Court of Queensland on 17 April 1986.
3. The Will contained a gift, in clause 9(a) thereof, of the Deceased’s 63 hectare freehold property at Calico Creek, near Gympie in the State of Queensland, more particularly described as Lot 63 on Crown Plan LX2371, County of Lennox, Parish of Amamoor, title reference 15798060 (the “Property”) to the Applicant, subject to the conditions contained in clause 9(b) of the Will, which provides that:
“The Gift made by Sub-Clause (a) of this Clause shall be conditioned upon the donee using the property as a Holiday Camp for the use of the youth of the Uniting Church in Australia and also conditional upon the said Church agreeing to retain the area of standing scrub and further conditional upon the said Church agreeing that neither of the two areas of pine trees planted by me be felled, save such felling as may be necessary (if any) to ensure the proper and safe use of the property as a Holiday Camp and the continued growth of the said areas of pine trees.”
4. The Property has:
(a) a memorial on the title citing the wishes of the Deceased; and
(b) been managed and maintained by members of the Gympie Uniting Church congregation since the Deceased passed away.
5. The trust established in the Will evinces a general charitable intention to benefit and educate the youth of the Uniting Church.
6. The Applicant has formed the opinion that the Property is unsuitable for use as a holiday camp for youth, for the following reasons:
(a) the geography and location of the Property are not suitable for the construction of camp and conference facilities;
(b) there are a large number of existing competitor campsite locations in South East Queensland, which significantly affect the financial viability of any new camp and conference facilities;
(c) the estimated construction cost for a camp and conference facilities is approximately $8.5 million, owing in part to the following changes which have occurred in the last 20 years:
(i) increased regulatory requirements for such sites;
(ii) the increased expectations of users of camp facilities, and competition among other camps providing these facilities; and
(iii) decreased use of camp facilities by church and youth groups.
7. The original purposes, in part, if not in whole, have, since they were laid down in the Will, ceased to provide a suitable and effective method of using the Property by virtue of the Trust, regard being had to the spirit of the Trust.
The Cy-près scheme
8. That the Will Trust be applied cy-près.
9. That the following scheme be approved:
(a) That the Applicant sell the Property for a fair market price, and apply the net proceeds of the sale in the manner referred to in subparagraphs 9(d) and (e) hereof;
(b) That the memorial be removed from the title of the Property;
(c) That the Applicant will take such steps as it may be advised to take to place a restrictive covenant over the Property that will require any future owners of the Property to preserve the two areas of planted pine trees, and the “standing scrub” referred to in cl 9(b) of the will on the Property;
(d) That the said covenant will contain the following provisions:
(i) the restrictions proposed in this covenant burden the Property;
(ii) the Purchaser agrees and covenants with the Vendor that the Purchaser, and any successor in title of the Purchaser, will not remove, save for any thinning of trees that may be required to maintain the health of the entire group of trees, the stands of hoop pines and the “standing scrub” referred to in cl 9(b) of the will located on the Property or any part thereof;
(e) That the first $90,000 of the net sale proceeds of the Property, after payment of all expenses related thereto, including commission, be paid to the Gympie Congregation specifically for work with youth in the Gympie area;
(f) That the balance of the net sale proceeds be distributed, as follows:
(i) The next $50,000 of the net sale proceeds be used to upgrade facilities at the Uniting Church in Australia Youth and Conference Centre at Alexandra Headlands (Alex Park); and
(ii) The balance of the net sale proceeds, if any, be deposited into the Synod Reserve Fund to be drawn for the purpose of facilitating youth camping experiences in the Uniting Church;
(g) That the Applicant will also take the following steps:
(ii)prior to sale of the Property, place on the Property a commemorative plaque, explaining the history of the Deceased and the Property;
(iii)designate a camping area amongst the trees at Alex Park in memory of the Deceased;
(iv)name a bungalow at Alex Park in honour of the Deceased;
(v)give the Gympie Uniting Church congregation the use of the Beattie Bungalow for four weeks each year in perpetuity, at no cost;
(vi)place pictures of the pine trees and the free standing scrub currently on the Property, and a description of their history in the Beattie Bungalow at Alex Park;
(vii)if any part of the net sale proceeds of the Property are used to upgrade the playing field facilities at Alex Park, any such playing field will be named in honour of the Deceased.
10. This scheme shall operate and take effect by way only of addition or supplement to trusts and provisions of the Will and not by way of general revocation of, or substitution for, such trusts and provisions and, accordingly, all such trusts and provisions shall remain and be of full force and affect, save insofar as the same are expressly or impliedly varied, added to, or supplemented by the terms hereof.
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