Australian water legislation

• Property law principles encompass terminology, concepts of property, and ownership/title to real property.
• The right to use something should be fully vested in its exclusive owner. Extension of the property's interest to others can be in full, equal, lesser, or temporary capacities.
• The right to property is a bundle of rights that relates to a person's ability to limit or exclude their interest in an item.
• Property constitutes the rights that can be exercised in relation to an object or thing, rather than the object or thing itself.
• Property rights can be enforced against the State, holders of interest, and third parties.
• Property rights are created with the law, without which there is no property, only things.
• Property rights are not created equally, the collection of specific rights one has is described as "a bundle".

Rights In Rem vs. Rights In Personam

• In rem is enforceable against everyone.
• Rights in personam is enforceable against the parties of the contract.
• Proprietary rights involve the relationship between individuals and goods. Contractual rights encompass all considerations of a contract.
• Proprietary rights can overlap with contractual rights, which can delegate certain proprietary rights in relationships like leases though proprietary rights can exist individually of a contract.
• Consider the differences between private and non-private property rights, property rights as compared to other rights, and classifications of property interests.
• "Ownership" constitutes having a bundle of rights in relation to a thing; "possession" or "title" entail different proprietary rights and interests, each with different limits to a person's proprietary rights and interests.

Terminology

• Estate (in Fee simple) is concerning the extent, duration of, and an interest in land.
• Fee Simple is the most complete or greatest ownership in land, and is effectively total ownership.
• Lease is the landlord's transfer of a lesser interest to a tenant.
• Mortgage is the borrower's transfer of interest in land as security for a loan advanced by the lender.
• Easement: A right over a certain land (the servient tenement) for the benefit of certain other land (the dominant tenement) enabling access/use of the owner's land by someone else.
• Common easements include the right to walk across land or for the supply of utilities.

Hereditaments

• There are two types: corporeal and incorporeal.
• Corporeal Hereditaments can be inherited and concern tangible real property over which ownership is exercised, such as land, buildings, minerals, and trees.
• Incorporeal Hereditaments cannot be inherited and concern intangible real property, such as easements, rights of way, and profits a prendre.
• Proprietary rights are the rights of property/rights of ownership. The holder generally has the free disposition of his/her property.
• Title to land refers to ownership, where title is the right to ownership (the best right to possession).
• Good title is the ability to resist any claim for possession and recover property from a dispossessor.
• Possession means visible power or control over something, as distinct from lawful ownership.
• Possession is generally good against all the world except the true owner.

Concepts of Property

• Property involves the notion of excludability and is a legal, political, and social institution.
• What constitutes a property right is subject to continuous change.
• Real property includes land, airspace, mineral resources, encumbrances, and rights attached to land like native title rights.
• Personal property includes goods, shares, and intellectual property.

Meaning of Property

• Property is referred to as a “Bundle of rights”, with the largest of which being fee simple ownership of an estate.
• Property law is the law relating to things such as the rights that entitle people to them.
• Property constitutes a relationship between a person and a thing.
• The concept of property is said to refer to a bundle of rights exercised with respect to an object.
• Property includes any legal or equitable estate or interest in real or personal property, tangible or intangible, and includes things in action.
• Property includes every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value.
• Property is not the object or thing itself, but rather the rights that can be exercised in relation to the object or thing.
• Property is the legal relationship and not things.
• Property is a person's right to a thing (legal relationship) not the thing itself.
• "Property" does not refer to a thing but describes a legal relationship with a thing and refers to a degree of power recognised in law as permissibly exercised over the thing, consisting primarily in control over access.
• Property is the legally endorsed concentration of power over things and resources that an individual can exercise.
• Law is necessary for the recognition of private property.

Property as an Enforceable Relationship

• The State recognises the holder of the specified property right and suppresses third parties rights to the recognised holder of property.
• Third parties are anyone not recognised as holding the specified form of property.
• Property in a thing constitutes the rights, privileges, and powers that a person has in the thing.
• Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141: Property implies the right to use or enjoy, the right to exclude others, and the right to alienate.
• Property can be the subject of multiple interests, where fragmentation of proprietary interests essentially divides rights amongst a number of users.

Fragmented Interests in Land Examples

• A owns land in fee simple.
• B leases A's house, meaning B is a leaseholder in possession.
• C holds a security interest over A's land due to a mortgage.
• D uses part of A's land to access her property (easement).
• E enters A's property to take the timber growing there (profit a prendre).
• Ownership is the highest form of property.
• Is property ownership a perpetual right? Yes, with the exception of leases, and is perpetual through transmitting ownership via succession.

Enforceability of Proprietary Interests

• Rights in Rem: Proprietary rights are rights of property in the thing (the land) itself and are enforceable against third parties.
• Rights in Personam: Personal obligations or contracts between the parties, enforceable against the person who granted the right (privity of contract) but not enforceable against third parties.

Creation of Property Rights

• Transfer of Ownership through Consensual Transfer (Voluntary):
  • Sale
  • Gift
  • Creation of express trust
  • Succession on death (will)
• Transfer of Ownership through Non-Consensual Transfer (Involuntary):
  • Bankruptcy
  • Compulsory acquisition
  • Intestacy
• Ownership by Original Acquisition:
  • Creation
  • Taking possession
  • Conquest (land)
  • Constructive trusts
  • Estoppel
  • Fixtures
• Property rights only may include ownership, examples are: leaseholder, licence holder, easement and mortgagee.
• The distinction comes from certain rights held by an owner that do not belong to a person with a right to possession, or full ownership.
• "Full" ownership involves eleven elements or legal incidents.
• These incidents include the right to possess the thing physically or metaphorically, the right to use it, manage how it will be used, the right to the income from the property, power to alienate, consume, waste, modify, or destroy, the right to security from interference, power to transmit, devise, or bequeath, absence of a term to one's ownership rights, responsibility for harmful use, liability to execution, and rules governing the reversion of lapsed ownership rights.

Property Dispute Case List

• King v David Allen [1916] 2 AC 54.
• Victoria Park Racing v Taylor (1937) 58 CLR 479.
• Yanner v Eaton (1999) 166 ALR 258.
• Moore v Regents of the University of California (1990) 793 P 2nd 479
• National Provincial Bank v Ainsworth [1965] AC 1175.

Property Rights from Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

• Property rights are definable, identifiable by 3rd parties, assignable (can be transferred to 3rd parties) and durable (some degree of permanence).

Classification of Property

• Property is classified into two types, Realty and Personalty.
• Realty: Corporeal Hereditaments and Incorporeal Hereditaments.
• Personalty: Chattels Real and Chattels in Personam.
• Chattels in Personam: Choses in Possession, and Choses in Action.

Corporeal and Incorporeal Forms

• Real Property:
  • Corporeal Forms: Land and fixtures
  • Incorporeal Forms: Easements, Profits a prendre, and Mortgage
• Personal Property:
  • Corporeal Forms: Chattels/goods (also described as choses in possession).
  • Incorporeal Forms: Documentary choses/choses in action, are enforceable legal rights that do not confer possession over any tangible objects, like debts, shares, the right to sue under a contract, copyright and insurance policies.

Ownership and Title to Real Property

• Title to Land: What is land, Fixtures, Mistake of title and Encroachments.

Statutory Definition of Land

• Interpretation Act 1984 (WA): Land includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land.
• Land as a legal concept: “Cuius est solum eius est usque ad coelum et ad inferos”, meaning to whomsoever it belongs, it is his all the way to the heavens (and all the way to hell).
• Land extends below and above its surface area to a point.
• The rights of a landholder in the airspace above his/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. Above that height, the landowner has no greater rights in the airspace than any other member of the public (Damage By Aircraft Act 1999 (Cth)).

Case List for Aerial Trespass/Nuisance:

• Davies v Bennison; Kelson v Imperial Tobacco; Wollerton & Wilson v Richard Costain; Jaggard v Sawyer [1995] 1 WLR 269@278; Graham v KD Morris; LJP Investments Pty Ltd v Howard Chia (1989) 24 NSWLR 490; Bendal Pty Ltd v Mirvac Projects (1991) 23 NSWLR 464.
• The landowner has a right to use and enjoy the soil to the extent that this is part of the reasonable use and enjoyment of the land (Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 A.C. 380).

Common Law & Land Ownership

• Common law allows for ownership to include minerals found in soil.
• Mining Act 1978 (WA), Petroleum and Geothermal Energy Resources Act 1969 (WA), and Atomic Energy Act 1953 (Cth) further support this.
• The Crown owns all royal minerals like silver and gold (Mining Act 1978 (WA)).

Waters

• A landowner's rights in relation to waters are riparian rights, meaning "bounded by rivers".
• Riparian rights include water usage and water boundaries, are largely state-based.
• No ownership of the water itself, however legislation replaced common law ruling with statutory rights, thus all water is generally vested in the crown's rights of the state.
• 1994 COAG (Council of Australian Governments) agreed on a water reform framework. The 2004 National Water Initiative (NWI) provided high-level policy on water management but relies on States to legislatively implement these policies.

Legislation

• In WA, the Rights in Water and Irrigation Act 1914 gives all rights to the use, flow and control of the water in any watercourse, wetland or underground water source are vested in the Crown State.
• At common law, no private riparian rights existed in relation to tidal waters.
• Water boundaries are ambulatory boundaries where a body of water (sea or river or lake) defines the boundary of land. An ambulatory boundary shifts with the ordinary movement of the sea or river through gradual change. Both tidal and non-tidal water boundaries can be ambulatory.
• Water boundaries are subject to the ad medium filum common law rule, where contiguous land is bounded by a non-tidal river, there is a presumption that the owner owns to the mid-line of the watercourse.
• Rights in Water and Irrigation Act 1914 (WA) concerns water boundaries under statutory law.
• Under the Rights in Water and Irrigation Act 1914 (WA): The State owns the land that is on the lake or watercourse side of the relevant boundary..
• Tidal water boundaries are relevant for land bounded by the sea, tidal lakes and tidal rivers. The tidal boundary is the "high water mark".
• There is a common law doctrine of accretion and erosion where a gradual and imperceptible natural shift of river/shorelines causes a corresponding shift to be made with the boundary of the land.

Accretion Case List

• AG of Southern Nigeria v John Holt
• The Southern Centre of Theosophy v SA.
• Verrall v Nott (1939) 39 SR (NSW) 89.

Land Use Restrictions

• Few restrictions were imposed by the common law on a landowner.
• Laws regulate activities and uses on privately owned land and impact on the rights of a private landowner in Queensland.
• These laws include Planning Laws, Environmental Protection Laws, Heritage Laws and Aboriginal Cultural Heritage Laws.

Explore the relationship between the National Water Initiative (NWI) and Australian water legislation. Understand riparian rights in tidal and non-tidal waters under common law. Learn about legal doctrines related to land changes due to sediment deposition.