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Bayside City Council's Freehold Title to the Brighton Foreshore from
South Road up to and including the Royal Brighton Yacht Club Lease


THE BRIGHTON SPECIAL SURVEY: An excerpt appears below from the second edition of the book, A History of Brighton (ISBN 0 522 84270 4), by Professor Weston Bate OAM, about the origin of Bayside City Council's freehold title to the above part of the foreshore area of the 'Brighton Special Survey' land first granted by the Crown to Henry Dendy, on the northern end of which are the Middle Brighton Sea Baths, which are classified by the National Trust of Australia (Victoria). A second excerpt describes early reaction to the Baths' decline.

At the time Henry Dendy purchased the freehold title of the land - subject to an annual payment of one peppercorn if demanded - it was still part of New South Wales (See New South Wales Government Gazette 8th June 1841, Page 784). He paid the price of 5,120 sterling (one pound sterling per acre), for the 8 square miles (2072 hectares) of land bounded by North Road, East Boundary Road, South Road and the high water mark of Port Phillip. Jonathan Binns Were soon became involved in the management of, and came to own much of, the Dendy estate. Nicholas Were, J.B. Were's eldest brother, also gained a substantial interest in the estate. J.B.Were went on to found a major Melbourne stockbroking firm, J.B. Were and Son.

These excerpts below are reproduced from the book, whose copyright was held by the late Professor Bate, with his written permission. Professor Bate was the Guest Speaker at the 2000 Annual General Meeting of PPCC Inc.

The unusual freehold title held by Bayside City Council to a section of Port Phillip foreshore land derives from that council's being the present legal successor of the former Brighton Borough Council, which was granted the foreshore land by an Act of the Victorian Parliament that received royal assent on 31 October 1877.

That council had 7 councillors, who elected Thomas Warner as the first Mayor of the new Municipal District of Brighton, which had come to meet a minimum requirement of the enabling Act that specified that such districts must have a population of at least 300 householders. It was created by an Order-in-Council, which appears on Page 85 of the Victoria Government Gazette of 18th January 1859. Bayside City Council, which was created by an Order-in-Council that appears on Page 1 of the Victoria Government Gazette S97 of 15th December 1994, subsumed Brighton City Council, which derived from the Brighton Municipal Council. Bayside City Council also has 7 councillors, but it covers a much larger area, with a population some 300 times that minimum.

Professor Bate's book explains, in Chapter 10, pp.345-347:

COUNCIL CONTROL OF THE FORESHORE: "... In fact, 'preserving public decency' gave the [Brighton] council few headaches to compare with those occasioned by its stewardship of bathing boxes and of the beach frontage in general. Not only did the government exercise an overriding control but also the foreshore was covered with title-deeds which were shot through with uncertainty because of their descent from the Dendy-Were proprietorship. A number of quite spectacular incidents occurred, not the least of which was Nicholas Were's attempted piracy of the most prized jewel in Brighton's crown.

The beautiful [foreshore] terrace, so rightly proclaimed a feature of the Brighton Estate in the early [eighteen] forties, was nearly lost to the public in the mid-[eighteen] seventies - or so it seemed. Had Nicholas Were been allowed to do as he wished it would have passed into private hands in the same way as the ill-fated 'Town Reserve' had done in the [eighteen] forties. The tea-tree might have been torn up by the roots, the fishermen evicted, picnicking spoilt, the carnival stilled and dozens of bathing boxes scattered as if by a hurricane.

The attempt was a bold one, although perhaps not entirely unexpected. A select committee of the council had gone into the matter in 1859 with J.B. Were, who denied that there was any public reserve along the beach. And the Weres had maintained that attitude, although the council, strengthened it seems by Dendy's opinion, had assumed full control. The taking of rent from tent and hut dwellers, the granting of licences to remove material such as sand and stone, and the punishment of vandals was in public and not private hands. And a strip a chain [20 metres] wide immediately above high-water mark had been set aside by the government as a public thoroughfare, apparently without protest from or payment to the presumptive owner. Nothing, however, was clear. The council's assumption of control could not be maintained in the face of a legal title; and the government had stated plainly in 1860 that it had no power to transfer the reserve to the council. But the issue was allowed to slumber as long as Brighton slept.

The formation of Beach Road (the Esplanade) in 1873, and the rising value of Brighton land, seems to have brought on the crisis. It came without warning, disguised as an ordinary land advertisement, in January 1876.

'Monday 6th March 1876

at 2 p.m.

at the Auction Rooms, 59 Queen Street, Sale of Brighton Beach Lands

By order of Nicholas Were, Esq.

G.Walstab has received instructions to sell by public auction in his rooms
on Monday 6th March All those Valuable Beach Lands lying between the
Esplanade Road and the shores of Port Phillip being the remainder of the
Beach frontages of the Brighton Estate.'

And Walstab went on to stress the advantages of a site that needed no further recommendation. This advertisement tempted landowners already ensconced on the Esplanade to extend their properties right down to the beach. And it envisaged at Green Point itself 'one or more gentlemen's residences which would command a view not to be surpassed in any other part of the whole bay'. There was no need to indulge in hyperbole. For once an auctioneer could let the facts speak for themselves.

COUNCIL BUYS THE FORESHORE FROM J B & N WERE: But what was the legal position? Had there been no dedication to the public, either actual or implied? There was a rush to consult titles, and as a result, at a public meeting on 17 February [1876], Brighton's counter-measures were planned. Several ratepayers who had frontages to the Esplanade held the opinion that their titles gave them access to a road or reserve which extended to high-water mark. Both J.M. Smith, who owned the Terminus Hotel, and Charles Webb, the architect, at the other end of the disputed ground, produced plans with their deeds. Smith also spoke of a letter from Henry Dendy to a friend in Brighton in which the founder stated the the terrace had always been intended as a public reserve. Faces brightened. On the other hand what use had Dendy's opinion been in the case of the Church of England grant, when the Weres had even walked off with a building? And what had 'dedication' accomplished in the case of the Town Reserve, lying off from the crescents of Foot's plan, which had been cut to pieces and sold before the public had any joy of it.

Feeling against the Weres was once again sharply critical. A further edge was given to the antipathy towards them which has become part of a local historical tradition. With true colonial vehemence the action was described as a rascally one, legal or not. The architect of it was labelled 'a miserable English lawyer' and 'man who has no interest in Brighton'. A 'Committee of Defence' was formed, consisting of J.P. Bear, J. McClure, G.A. Mouritz, J.M. Smith, J.G. Tanner and C. Webb, with power to add to their number. They all owned properties along the terrace except Tanner (who was Mayor) and they were wealthy and influential men. Their plan was simply to obtain legal advice and to take whatever proceedings were necessary to prevent the sale.

A writ of injunction to restrain Walstab was brought before Mr Justice Molesworth in the Supreme Court by J.M. Smith. It was urged that the land had been dedicated to the public either as a reserve or as a road. And His Honour ruled on 21 April [1876] that although the first alternative was not distinctly stated in the deeds, the second certainly was. He directed Were to answer within two months the statements made by the plaintiff.

This led to an agreement out of court. Neither side seemed keen to fight the case in equity, so full of thickets were the Brighton documents. Nicholas Were was prepared to accept some 700 pounds for his doubtful right and the council, with the help of the government and a few residents, was willing to pay. A public meeting on 30 March 1876 had fully approved of such an expenditure. ..."

[Nicholas Were had sold nearly all of the land he owned from the original Dendy Special Survey (about one eighth of the area of the municipality) in 1873 to Thomas Bent, who had been MLA for Brighton since he defeated George Higinbotham in the 1871 polls. The electorate of Brighton covered most of the Borough of Brighton and the Shire of Moorabbin. Thomas Bent was the largest owner of land in Brighton, where he was a councillor from 1874 till his death in 1909 at the age of seventy, and close to being the largest land owner in Moorabbin Shire, where he was also a long term councillor until his death.]

Early reaction to the Baths' decline is described in Chapter 12, p. 433:

"... Both Brighton Beach and Middle Brighton Baths were falling down and losing customers at an alarming rate. In the face of Bay pollution and private pools, they should logically have been scrapped. But to Brighton patriots they were so symbolic that even Councillors [Wallace] Landells and [Aubrey] Sidaway put away their financial secateurs and donned their historical society hats. They were outpointed, however, by Cr [Christopher] Strong, the prime mover for demolition of the Brighton Beach Baths. He promoted a users' co-operative simply to demonstrate that there was a limited practical support for their retention. During 1976 Council asked for reports on the conservation and use of most of the foreshore, including sand for the Dendy Street and Bay Street beaches, better landscaping, better parking, remodelling of the Middle Brighton Baths and the construction of the North Road boat ramp. The budget of $480,000 was to be shared dollar for dollar with the Ministry of Youth, Sport and Recreation. And when the Ministry of Tourism offered a $4 to $1 subsidy for the $140,000 works connected with the launching ramp, the council's total share fell to less than $200,000, although the fact that Tourism expected eighty car spaces against the council's thirty-five negated the fuss that had been made in 1975 when the Minister of Lands, as arbitrator, had ruled for sixty ..."

Henry Dendy eventually lost the ownership of his Brighton Special Survey Land and later, with little capital left, moved to the gold mining town of Walhalla in Gippsland. His grave plot there, which also includes the body of his only child, is in the Walhalla Cemetery, about 45 metres south-east of the large spruce tree next to the Sexton's Building in the centre of the cemetery, and is at about the same level as it.

The old headstone, by means of a new metal plaque cemented into it, marks the grave, which is surrounded by an old cast iron ornamental railing. It displays Dendy's crest, and motto, "Hey Hey The White Swan". Under the crest appears the inscription:

Born Surrey, England, 24 May 1800
Died Walhalla, 11 February 1881
Original owner and founder of Brighton, Victoria, 1841.
Impoverished by adversity but ever kindly and honourable,
and his only child

Born Surrey, 27 October 1835
Died Walhalla 16 September 1905

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