Topic 1 Title to Land

The Meaning of Land

1. The soil and surface layer of the Earth and the physical things attached to the ground
(called corporeal hereditaments)
2. The intangible right which can be engaged over the land (called incorporeal
hereditaments)
Land includes including airspace, mineral rights, water rights, boundaries, fixtures.
Common Law
The common law does not recognise absolute ownership.
Nature of Real Property
Historical Origins of Real Property
The law developed from fuedal tenure. In those times, the economy was largely based on
land and agriculture.
The Property Law Act 1975 (PLA) was very advanced for its time. It commenced on the 1st
December 1975. It was consolidatory so it incorporated many principles from the Quia
Emptores statute and the states of Uses.
Additional Property Interests in Land
These include mortgages, easements and restrictive covenants.

Land is Permanent Property

The law can allows for concurrent and consecutive interests.
When we talk about an estate in fee simple:
Estate relates to duration. Means for lifetime (originally). If the owner dies with no
will or family, then the land goes back to the Crown (bona vacantia)
Fee Simple longest possible duration under the common law

University of Queensland

LAWS3111: Property Law A

www.law-student.org

A is the owner of a block of land.

If X gets an easement, then she has right of way/
access to As land, but no other rights.
Easement - A right over certain land (the servient
tenement for the benefit of certain other land.
A might choose to rent/lease out her land to B, in
which case B is the tenant or lessee, and A is the
lessor. B gains the right to exclusive possession and
the right to exclude others.
Lease - A transfer by the landlord of a lesser interest than his/her own estate, for a term of
years or other fixed period usually with a rent payable. Landlord - the owner of land (lessor)
who leases or lets it to the lessee (tenant).
If A gets a mortgage, then A is the mortgagor and the bank is the mortgagee. The property
(land) is the security for the loan.
Mortgage - The transfer of an interest in land by a mortgagor (borrower) to the mortgagee
as security for a loan advanced by the mortgagee (lender).

Characteristics of Land
Milirrpum v Nabalco Pty Ltd (1971)
Blackburn J: I think this problem has to be solved by considering the substance of proprietary
interests rather than their outward indicia. I think that property, in its many forms, generally implies:

the right to use or enjoy,

the right to exclude others, and

the right to alienate.

I do not say that all these rights must co-exist before there can be a proprietary interest or deny that
each of them may be subject to qualification.

Note: alientate means to transfer.

University of Queensland

LAWS3111: Property Law A

www.law-student.org

A chose is a possession like a car, book or chair. Choses in action include things like shares,
patents or copyrights.
Chattels real includes a lease, but the term is rather irrelevant now.
Hereditaments
Corporeal Hereditaments These are tangible real property; physical things over which
ownership is exercised (e.g. land, buildings, minerals, trees).
Incorporeal Hereditaments These are intangible real property; rights associated with use
of the land as opposed to physical things (e.g. easements, rights of way, profits prendre).
Note: profits prendre means you can take produce from the land like timber or wild game.

Title to Land
Physical Limits of Land
Under the Acts Interpretation Act 1954 (Qld) schedule 1:

There was a maxim: Who owns the land, theirs it is from the centre of the earth to the
heaven above. However, that was dismissed in Lord Bernstein v Skyviews & General (1978)
as a colourful phrase.
University of Queensland

LAWS3111: Property Law A

www.law-student.org

In Lord Berstein v Skyviews, it was held that the rights of a landholder in the airspace above
her land must be restricted to such height as is necessary for the ordinary use and
enjoyment of the land and the structures upon it. And above that height the landowner has
no greater rights in the airspace than any other member of the public.
A new maxim was given in Star Energy Weald Basin v Bacardo (2010) that land in a legal
sense includes the airspace above the surface and the subsoil below.
Trespass is a direct and intentional infringement of boundaries. There is no need to show
harm or damage. As for intention, it is assumed that they intended to trespass.
Relief for trespass to land damages and/or an injunction. Under the Damage by Aircraft
Act 1999 (Cth), there is strict liability for trespass but there is no parallel legislation in
Queensland.

Right to Airspace
The right to airspace is limited, and always has been.
Temporary Intrusions
Temporary intrusions include items that momentarily pass over land; rather than an object
that is permanently situated above land.
Griffiths J: I can find no support in authority for the view that a landowners rights in the air
space above his property extend to an unlimited height... Bowen LJ described the maxim,
usque ad coelum, as a fanciful phrase, to which I would add that if applied literally it is a
fanciful notion leading to the absurdity of a trespass at common law being committed by a
satellite every time it passes over a suburban garden. [Baron Bernstein of Leigh v Skyviews
and General]

Commonwealth legislation creates liability for any actual damage caused by an aircraft in
the Damage by Aircraft Act 1999 (Cth).
Where it is established that an owner has rights to the airspace, an action can be
brought in trespass to protect those rights.

Davies v Bennison (1927)

Kelsen v Imperial Tobacco Co Ltd (1957)

University of Queensland

LAWS3111: Property Law A

www.law-student.org

Rights of the Public vs. Rights of the Landowner

Griffiths J: The problem is to balance the rights of an owner to enjoy the use of his land
against the rights of the general public to take advantage of all that science now offers in
the use of the airspace. This balance is in my judgment best struck in our present society by
restricting the rights of an owner in the airspace above his land to such a height as is
necessary for the ordinary use and enjoyment of his land and the structures upon it, and
declaring that above that height he has no greater rights in the airspace than any other
member of the public.

[Baron Bernstein of Leigh v Skyviews and General]

The land includes the airspace capable of enjoyment. If it established that the plaintiff has a
right to the airspace intruded upon, it may be found that there has been a trespass.
Nicholls CJ: It seems an absurdity to say that if I fire at anothers animal on his land, hit
it, kill it, and so leave the bullet in it, I have committed no trespass, and yet, if I miss the
animal and so let the bullet fall into the ground, have committed a trespass. Such
distinctions have no place in the science of the Common Law If the hovering aeroplane
is perfected the logical outcome of Lord Ellenboroughs dictum would be that a man
might hover as long as he pleased at a yard, or foot, or an inch, above his neighbours
soil, and not be a trespasser, yet if he should touch it for one second he would be.
[Davies v Bennison]

In cases where a low-flying aircraft flies over ones land, the Court will be reluctant to hold
there is trespass if the aircraft operator has not violated height regulations. See Graham v
KD Morris & Sons Pty Ltd (1974).
Permanent Intrusions
Permanent intrusions are items that are permanently, or for an extended period of time,
situated above land (e.g. tree branch, advertising sign, crane jib, etc).
In Kelsen v Imperial Tobacco Co (1957), it was held that a lease of a building included the
lease of the airspace above. An overhanging sign from the next building amounted to
trespass. A mandatory injunction was issued for the removal of the sign.
In Woollerton & Wilson v Richard Costain (1970), it was held that an overhanging crane
amounted to trespass. An injunction was issued; however, the injunction was suspended

University of Queensland

LAWS3111: Property Law A

www.law-student.org

and the development was allowed to proceed on the basis that it would be too inconvenient
for the builders (on the balance of convenience).
Stamp J: I am conscious that by so doing I am giving with one hand and taking away
with the other. But by so doing I give effect to the process by which I have come to my
conclusion that in principle there ought to be an injunction but on the particular facts of
this case not until the defendants have had a proper opportunity of finishing the job.

In LJP Investments v Howard Chia Investments (1989), it was held that scaffolding which
extended 1.5m into the airspace amounted to a trespass.
Hodgson J: The relevant test is not whether the incursion actually interferes with
the occupiers actual use of land at the time, but rather whether it is of a nature and
at a height which may interfere with any ordinary uses of the land which the
occupier may see fit to undertake.

In Bendal v Mirvac Project (1991), it was held screens and a crane which encroached upon
the airspace amounted to trespass. It had been argued that removing the encroachments
would amount to undue hardship.
Bryson J: I do not see it as a hardship at all. It is all the defendants own doing and
the result of their using a construction method which would cause encroachment
and obviously involved them in the need to get permission, yet they did not obtain
permission. Their own evidence shows that by adopting the construction method
which they have used they made a saving now quantified at $239,000.00.

There are statutory rules in the Neighbourhood Disputes Resolution Act 2011 (Qld):

University of Queensland

LAWS3111: Property Law A

www.law-student.org

Statutory Right of User

In the Property Law Act 1974 (Qld):

Thus, under the Property Law Act 1974 (Qld), there is a statutory right of user for permission
to encroach upon the airspace, in exchange for compensation.
In Lang Parade v Peluso (2005), it was held that an overhanging crane amounted to trespass,
but a statutory right of user was granted and small damages (not $230, 000) were awarded
to the plaintiff. The Court allowed for an easement.
It may be argued that the decision in Lang Parade was influenced by the behaviour of the
parties. Peluso had offered money and tried to work with the plaintiff. The Court noted that
adequate compensation did not allow the plaintiff to hodl the builder to ransom.
University of Queensland

LAWS3111: Property Law A

www.law-student.org

Rights under Land

At common law the precise extent of the landowners rights to land below the surface is
uncertain. The landowner does have a right to use and enjoy the soil to the extent that this
is part of the reasonable use and enjoyment of the land.
There is an old assertion that ownership extends to the centre of the earth, but that is not
supported anymore. Instead, the landowner has the right to use the soil to such a depth as
is appropriate for the reasonable use and enjoyment of the land.
There is also a right to support structures so excavation of land is subject to the
neighbours right to lateral support of their land. See the Property Law Act 1974 (Qld):

See Di Napoli v New Beach Apartments (2004); Bocardo SA v Star Energy UK Onshore (2011).
In Bocardo SA v Star Energy UK Onshore (2011), it was held that petroleum pipes at a depth
of 900m amounted to trespass to land. The court applied the maxim.

Right to Minerals
At common law, the landowner had right to all minerals (except for gold and silver) found
below the surface of their land. Gold and silver are considered the prerogative of the Crown,
see Wooley v Attorney-General (Vic) (1877).
Statute law has now vested ownership of all minerals in the Crown: Mineral Resources Act
1989 (Qld), including coal. The Crown also has be exclusive right to grant mining leases.
Under the Petroleum Act 1923 (Qld), petroleum oil is also the property of the Crown. See
also: Atomic Energy Act 1953 (Cth) the Crown has the rights to uranium.

University of Queensland

LAWS3111: Property Law A

www.law-student.org

Water Rights (Riparian Rights)

Riparian means bounded by rivers. At common law, there can be no ownership of water
itself.
Under the statute, the Water Act 2000 (Qld), all rights to the use, flow and control of all
water in Queensland are vested in the State. Water includes water in a watercourse, lake
or spring; underground water; overland flow water; water that has been collected in a dam;
and, in some instance, recycles and desalinated water.

Water Boundaries
Water boundaries are ambulatory: where are body of water (sea, river or lake) defines the
boundary of land. These boundaries shift with ordinary movement of the body of water. At
common law, where land is bounded by a non-tidal river, there was a presumption that the
owner of contiguous land owns to the mid-line of watercourse (the ad medium filum rule).
However, this rule has been abolished in Queensland.
General Water Rights
Despite s 19 Water Act 2000, an owner of land adjoining a watercourse , lake or spring may
take water for domestic purposes or for watering stock:

University of Queensland

LAWS3111: Property Law A

www.law-student.org

An owner rights of access over the banks of the watercourse and access over the bed and
banks for the purpose of grazing stock. Land Act: s 13A(4). Such owner has a right of action
against a trespasser on the bed and banks of the watercourse.
The Land Act 1994 (Qld) s 13A also sets out other rights:

Right Line Boundary

A right line boundary is a boundary of the land to which all of the following apply:
o The boundary is represented, or having regard to the source material for the land,
would be represented on a land of survey for the land as a straight line or series of
straight lines,
o The boundarys location is fixed,
o The boundarys location is marked on the ground, or having regard to the source
material for the land, would be marked on the ground by the placement of survey
marks that:
Delineate the boundary, or
Allow the location of the boundary to be worked out by reference to them, or
Are a combination of the above.

University of Queensland

LAWS3111: Property Law A

www.law-student.org

Restriction on Land Use

There are very few restrictions on landowners in relation to the right to use their land, as far
as the common law is concerned.
However, there are several statutes which regulate the activities and uses of privately
owned land.
Sustainable Planning Act 2009 (Qld)
The act is mainly focused on ecological sustainability. It requires State and local
governments to develop planning schemes which identify and facilitate desired
environmental outcomes as well as dealing with core matters such as land use and
development, infrastructure and areas of ecological and cultural significance.
Environmental Protection Act 1994 (Qld)
The Act controls and prohibits unlawful environmental harm and imposes a duty on a
person not to carry out any activity that causes or is likely to cause environmental harm
unless the person takes all reasonable and practicable measures to prevent such harm.
Queensland Heritage Act 1992 (Qld)
The Act establishes the Heritage Register for recording places of significance to
Queenslands cultural heritage.
Aboriginal Cultural Heritage Act 2003 (Qld)
Torres Strait Islander Cultural Heritage Act 2003 (Qld)
The Acts afford Indigenous cultural heritage blanket protection throughout Queensland
regardless of whether the sites or objects of cultural heritage have been registered or even
identified. A general duty of care requires a person to take reasonable and practical
measures to avoid damaging or destroying Indigenous cultural heritage.
Nature Conservation Act 1992 (Qld)
Under this Act the Minister can stop a landowner from using his or her land in a way that
could threaten protected wildlife or wildlife habitat. The Minister also has power to declare
private land to be a protected area.

University of Queensland

LAWS3111: Property Law A

www.law-student.org