LAWS20009 Lecture Notes - Lecture 3: Terra Nullius, Star Energy, Property Law
LECTURE 3: PROPERTY RIGHTS & DUTIES OF LAND
MANAGEMENT
Property Rights & Public Rights
• Historically, individual property rights & exploitation of land was a public benefit
• Therefore, laws, public discourses & understandings of property law see property
rights as untouchable
• But: property rights are now seen as exclusively individual rights
• Environmental interests, that constrain property use, are viewed as public rights
– laws that prioritise env interests now viewed as legitimate
ORIGINS OF PROPERTY LAW IN AUSTRALIA
• Terra Nullius – land belonging to no one, could impose English laws onto Aus
• Effect of doctrine of tenure – impossible to get an interest in the land because
you are merely there – must get it given to you by the government (Crown)
British Property Law in Australia
• Williams v Attorney-General (NSW) (1913) 16 CLR 404
o Whole lands of Australia already property of King of England
o All land belonged to the Crown, until the Crown chose to grant it
• Development/use as a condition as grant
o Property law developed to facilitate economic growth
o Often there were requirements made in a grant to use & develop land
o Also associated with political rights
PROPERTY RIGHTS: KEY SUSTAINABLE CONCEPTS
Grants of Property Rights
Leasehold
Freehold
• Exclusive possession
• Use and enjoyment – granted for particular use
• Exclusive possession
• Use and enjoyment
• Limited term
• Conditional (often on unsustainable land management practices) –
good for env often (must be cleared from invasive species & weeds)
• Crown resumes the land at end of lease period
• Licence
• Unlimited term
• Unconditional (but not absolute – some
rights reserved)
• Alienable & marketable
• Most urban land in Aus = freehold
• Most of Australia is leasehold land – most common form of tenure given by governments
• Property as a ‘bundle’ of rights, you don’t own land, you own rights which allow you to control the land
• Land always remains property of the Crown
Protecting Property Rights: Trespass
Elements of trespass to land;
1. Direct interference by a defendant
2. That was intentional
3. Without consent or excuse
4. With the plaintiff’s exclusive possession of land
Property in Minerals and Sub-Surface
• Ownership of land - depth
o Crown grants issued prior to 1891 were
unlimited in depth
o Crown grants issued after 1891: limited in
depth, usually to 50 feet below surface
o Exception: leases or licences to extract
minerals
▪ Land Act 1958 (Vic) s. 339
• Ownership of minerals
o Minerals Resources (Sustainable Development) Act 1990 (Vic) s. 9: the Crown owns all minerals
Lecture Overview
• Historical origins of law & property
law in Aus
• Property rights – key sustainability
concepts
o Leasehold v freehold
property
o Protecting rights of
property owners
o Extent of property
• Environmental controls on the use
of property & their limits
o Tort of nuisance –
controls to protect private
interests
o Land use regulations
o Land clearing &
vegetation protection
o Imposing duties of care on
land owners
Bocardo SA v Star Energy UK Onshore LTD [2011] 1
AC 380 (SC)
• Star Energy had licence (no rights over land) to drill for gas
next to land owned by Bocardo (freehold tenure – rights
over land)
• Star drilled under land owned by Bocardo – not allowed by
licence or no permission
• Issues: is this a trespass? Do you think this interference
with land should be protected?
Judgement
• Court decision shows their opinion on whether property is
in the individual interest or the public interest
• Ruling: was an interference – direct, intentional, no consent
Document Summary
Lecture 3: property rights & duties of land. Property rights & public rights: historically, individual property rights & exploitation of land was a public benefit. Therefore, laws, public discourses & understandings of property law see property rights as untouchable: but: property rights are now seen as exclusively individual rights. Environmental interests, that constrain property use, are viewed as public rights. Laws that prioritise env interests now viewed as legitimate. Terra nullius land belonging to no one, could impose english laws onto aus. Effect of doctrine of tenure impossible to get an interest in the land because you are merely there must get it given to you by the government (crown) Lecture overview: historical origins of law & property law in aus. Leasehold v freehold property: protecting rights of property owners, extent of property. Environmental controls on the use of property & their limits: tort of nuisance controls to protect private interests. Leasehold: use and enjoyment granted for particular use.
