possession of land: conceptual creep as an aspect of ... › 129571 › 9 ›...

Possession of Land: Conceptual Creep as an Aspect of Modern Perspectives of the Relative

Enjoyment of Land

Chris Boge LLB, LLM(Hons)

Student no. n0759368

Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy

Queensland University of Technology Faculty of Law

2019

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Abstract

In Queensland v Congoo (2015) 256 CLR 239, [11], French CJ and Keane J remarked that

possession is a term for which "English law has never worked out a completely logical and

exhaustive definition". However, in Hunter v Canary Wharf Ltd [1997] 2 WLR 684, 706, Lord

Hoffmann had said that "[e]xclusive possession de jure or de facto, now or in the future, is the

bedrock of … land law". For such a seemingly important term, it may strike as odd that it has, in

fact, proved impossible to define. Despite, in one of its applications, representing an appearance

of power over land, possession is an abstract legal concept and is an element in the law's

response to recognising and protecting the enjoyment of land. It is, then, like ownership, part of

an objective or argument of the law. And, in working out that role or function, it is better to try

to understand possession's applications.

In its orthodox or technical sense, possession is a relationship with an estate in land and is

property. Like ownership, it represents priority to and exclusivity of land, as represented by an

estate. Unfortunately, and perhaps because of the fragmentation of property into a bundle of

rights, possession has apparently come to represent varying rights of enjoyment in respect of

land. Such applications of the concept – which have taken place in various contexts, but

particularly in respect of statutory interests in land – may have had the effect of causing

possession to conceptually creep in its representation of particular characteristics.

This research identifies circumstances in which possession of land, according to its orthodox

conceptualisation in law, has been in recent times, or may be, the subject of a reshaping

(including modification) in law by adjudicative methods. In so doing, the research shows that,

while there are several cohering links as between various applications of the possession concept

outside its application in an orthodox sense, there is an absence of a logical organisation of those

links which can assist in our confidently identifying the stable characteristics which the

possession concept today represents in law.

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Contents

1. Chapter 1: Introduction ......................................................................................... 8

1.1 Introduction .................................................................................................................... 81.2 Objective of research and thesis .................................................................................... 91.3 Methodology ................................................................................................................... 91.4 Introductory ideas to possession of land ..................................................................... 141.5 Transforming ownership .............................................................................................. 33

2. Chapter 2: Literature review ................................................................................ 38

2.1 What is possession? The identity of possession and its role in real property law .................................................................................................................. 38

2.2 The meaning of possession .......................................................................................... 402.3 Possession and its historical links with other concepts ............................................. 422.4 Factual possession and the possessory title: their definition and

significance ................................................................................................................... 482.5 The policy of possession ................................................................................................ 512.6 A new or broader possession and the idea of property .............................................. 592.7 Possession and theories of property ............................................................................ 60

3. Chapter 3: Possession of land as a functional abstract concept in law .................. 71

3.1 Purpose of this chapter ................................................................................................. 713.2 Possession in the imagination of law: idea-building as an aspect of

abstraction ..................................................................................................................... 713.3 Possession and ownership as conceptual elements within the law's

response to an enjoyment of land argument................................................................763.4 Concepts in law and as 'propertising' things ............................................................... 833.5 Explaining priority, exclusivity, and thinghood: the compound and

representative characteristics of the orthodox I-Thing legal enjoyment of land ........................................................................................................................... 101

3.6 Possession's and ownership's essential characteristics as representations in themselves ................................................................................... 106

3.7 Land as a thing and the abstract thinghood source of ownership in possession ................................................................................................................... 109

3.8 How ownership functions as a legal construct .......................................................... 1223.9 Explaining possession of an estate as a legal concept in an orthodox or

technical sense ............................................................................................................. 1323.10 Ownership in possession: possession being of ownership and an

owner's acting as, and like, an owner ........................................................................ 1403.11 The lease: an abstract ownership in itself .................................................................. 1523.12 Seisin and possession .................................................................................................. 1593.13 Relative relationships with land and with third parties as aspects of

conceptualisation: relative 'rights' of possession .......................................................1683.14 Possession and occupation ......................................................................................... 1703.15 Conclusions .................................................................................................................. 172

4. Chapter 4: The framework for possession's developments and applications: an analysis of its susceptibility to reshaping ................................. 174

4.1 Purpose of chapter ....................................................................................................... 1744.2 Reshaping the content of possession beyond title: its susceptibility to

modification ................................................................................................................. 1744.3 Possession's modernism within ownership as a process of

fragmentation and as perception of changing needs and relationships ................... 1824.4 Conclusions .................................................................................................................. 213

5. Chapter 5: Adjudicative reshaping of the lawfulness of enjoyment and the weighing of relative interests and values ..................................................... 215

5.1 Purpose of chapter ....................................................................................................... 2155.2 Possession's and ownership's abstractions: summarising diffuse

material under a manageable heading? ..................................................................... 2155.3 An opening for reworking possession? ..................................................................... 224

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5.4 Adjudicative 'lawfulness' as an exercise in inner-systemic abstract justification: the horizontal extension of ownership in possession as conceptualised ............................................................................................................ 226

5.5 Conclusion .................................................................................................................. 240

6. Chapter 6: Possession as exclusion and the relativity of rights ......................... 243

6.1 Purpose of chapter ...................................................................................................... 2436.2 Trespass, ownership, possession, and excluding others .......................................... 2436.3 The action in trespass: of possession or the right to exclude? ................................. 2446.4 A right of possession against the whole world and a right of possession

not against the whole world?: a problem of 'relativity' ............................................. 2516.5 Trespass and relief as justice: the relative superior claim of 'right'

regardless of possession, access to justice, and 'unorthodox' possession ............... 2566.6 Conclusion .................................................................................................................. 269

7. Chapter 7: Of conceptual distinctions and ad hoc applications: conceptual creeping and anomalous 'possessory' interests ................................ 271

7.1 Purpose of chapter ....................................................................................................... 2717.2 Reshaping possession according to purpose: orthodoxy, the 'right of

(exclusive and non-exclusive) possession', and the rise of the new 'possessory' claimant ................................................................................................... 271

7.3 Statutory 'grant' of possession without a right: exclusivity without the benefits of having ownership and anomalous possessory interests ........................ 287

7.4 Adjudication and possession: the substantive law secreted in the interstices of procedure as the court weighs the relativity of parties' interests and values as a conceptualisation technique ............................................. 294

7.5 Discretionary remedialism and adjudicative limitations: another relativity challenge to possession?............................................................................. 302

7.6 Conclusions ................................................................................................................. 320

8. Chapter 8: Conclusion ....................................................................................... 324

8.1 Findings of research ................................................................................................... 3248.2 Possession's continued operation as a functional legal concept .............................. 326

Appendix A Primary case authorities ............................................................................... 330

Appendix B Primary legislation cited ............................................................................... 335

Appendix C Bibliography .................................................................................................. 337

Statement of Original Authorship

The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.

Signature:

Date: 8/1'i

Word count: 115,000 (not including quotes, footnotes and appendices)

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QUT Verified Signature

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Catchwords

Possession — Ownership — Estates — Title — Abstract concepts in law — Property —Propertising — Priority — Exclusivity — 'Thinghood' — Enjoyment 'of' land — Enjoyment 'in respect of' land — Reshaping of possession concept — Conceptual linkages — Legal and general conceptual schemes —Levels of legal abstraction

Relativity of title — Relativity of interests and values — Community — Negative view of community — Positive view of community — Adjudicative process — Conceptualism — Formalism — Human flourishing theory of property — Lawfulness — Justification

Right of possession — Right of 'exclusive' possession — Right of 'non-exclusive' possession —Actual possession — Legal possession — Occupation — Use — Possession 'of purpose' — Anomalous or ad hoc possession

Estates — Seisin — Lease — Crown and State lands interests — Right to exclude — Exclusionary v exclusory — Possessory remedies — Trespass — Nuisance — Ejectment —Recovery of possession — Real actions — Forms of action — Discretionary remedialism — Damages — Injunction

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Acknowledgements

I would like to thank my supervisors, Professor Sharon Christensen and Professor Bill Duncan,

for their thoughtful guidance and encouragement in undertaking research in an area that many

lawyers appear to treat as settled law. I would also like to thank the other members of the final

review panel, Professor Michael Weir and Dr Andrew McGee for their helpful comments, and

the anonymous examiners.

In particular I am grateful to my father, Neil Boge, who, over a number of years, read many

drafts of the thesis and patiently listened to my developing theory (and, at times, theories) of

what the law of possession has become.

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To my father Neil

A lawyer of great intellect and humility who taught me the significance of history, the importance of integrity in reasoning,

and to always play the long game. ___________

Chapter 1: Introduction Chris Boge

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1. Chapter 1: Introduction

1.1 Introduction

In R v Boyesen,1 Lord Scarman remarked that possession "is a deceptively simple concept. It

denotes a physical control or custody of the thing plus knowledge that you have it in your

custody or control".

Despite Lord Scarman's apparent comfort with the concept, possession, at least in so far as it

concerns land, has proven to be a difficult, and at times, controversial, legal concept. This is, in

no small part, because possession of land defies precise definition; its applications are context-

dependent; and, mostly, it has been subsumed, in conceptualisation and function, by ownership.

But, perhaps more strikingly, its controversy arises because of what it represents. Like

ownership (which this research contends possession has become part of), possession in its

orthodox or technical sense prioritises and, therefore, legitimises exclusive claims to the

enjoyment of land. It, therefore, orders relationships between persons and land which do not

admit of any other claims, except with the agreement of the possessor or if otherwise justified

by law. Possession performs a role in law, then, as property and, as such, is vindicated or

protected by 'possessory' remedies which mostly have exclusion or non-interference effects on

others.

At times, courts struggle with possession's application, but, equally, they have become quite

adaptive in its use, especially as part of the term, the 'right of (or to) possession'. As the object

of that right, possession's conceptualisation is highly dependent on the role or function it is

intended to perform in law and society. And while that role or function may be to permit a

possessor to exclude all others from 'possessed land' in the interests of protecting a possessor's

exclusive enjoyment, in some contexts such a consequence may appear to a court to be

unreasonable because it does not justly weigh the relative interests and values of non-

possessors.

Courts, as adjudicators of disputes, subtly but continually shift the emphasis in how they

administer the common law to balance proprietary and modern social interests. As a result, a

form of adjudicative reshaping of possession may have been occurring in recent years in

Australia and England so that the concept – and its abstract related idea such as the 'right of

possession' – can be functionally applied in particular contexts that are detached from its

conceptual linkage to the ownership of the thing that is land. Possession might, then, be able to

practically function as a type of relationship in respect of land that is relative to other claimed

interests or even values that concern the enjoyment of land. In distinct, but inter-connected,

ways this may be causing possession, and even how we understand ownership, to be

1 [1982] AC 768, 773.


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conceptually creeping in a horizontal or expansive manner, thus suggesting the creation of

relative or gradated forms of ownership or lesser 'purpose-exclusive' relative rights in respect of

land. The justifications for such developments are not entirely new, but they do not, as yet,

clearly represent an obvious or logical chain of legal reasoning. At best, adjudicative decisions

may be having a modifying effect on possession in particular contexts so that the concept is

relatively shaped according to the nature of the dispute and the relative interests and values of

the disputants. Such an effect is more noticeable where the content of an owner's or lessee's

interest in land is of peculiar statutory quality and has been created for a limited purpose, thus

positioning the interest somewhat removed from the English conceptualisation of ownership.

But, equally, perceived shortcomings in possession's orthodox applications have, in Australia

and, especially, in England, been justified as reasons to indirectly extend possession's ordinary

consequences to non-possessory or 'non-title' rights. Such developments may be signs of

possible future developments and of thoughts of an increasingly fluid conceptualisation of

possession as a functioning legal abstraction that is highly responsive to the relative interests

and values of people, especially as the enjoyment of land becomes subject to more claims of and

from the 'community' and its members to broader interests and values in the use and

exploitation of land.

1.2 Objective of research and thesis

The objective of this research is to identify whether, and if so, circumstances in which,

possession of land according to its orthodox conceptualisation in law has been in recent times,

or may be, the subject of any reshaping (including modification) in law. In so doing, the

research intends to identify recent unifying or cohering links, if any, in a chain of legal reasoning

according to any justifications for such a reshaping having regard to particular applications of

the possession concept.

It is the primary thesis of the research that, as an abstract legal concept, possession of land,

while maintaining a certain orthodoxy in particular contexts, may have, in other contexts,

assumed an extended (and, therefore, reshaped) conceptual legal meaning, but in such a way

that, when applied in adjudicative settings, its extended representative characteristics cannot

always be confidently determined.

1.3 Methodology

Consistent with Sir John Salmond's instruction,2 satisfying the objective in para 1.2 falls into

two parts:

1) an analysis of the concept of possession itself according to its orthodox

conceptualisation; and

2 Jurisprudence (1947, 10th edn), 287.


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2) an exposition of the way in which possession is recognised and applied in the Australian

legal system (and with reference to English developments) so that, if possible, a chain of

legal reasoning can be identified as justifying departures from possession's orthodox

conceptualisation.

The two parts cannot be completely separated. Explaining possession's recognition and recent

applications as part of a chain of legal reasoning3 is an element of its functional

conceptualisation and development in law. Indeed, a thought that a form of conceptual creep

may be occurring may be the result of a looping-type effect by which the applications of the

concept assume or inform the characteristics or content of the concept itself such that the

concept becomes reshaped (or 'propertised') as a differently formulated or especially abstract

concept. That is, possession may be what it is in law because of the way in which it is applied.

However, merely because it is a functional concept does not mean any application aligns with

the role possession is intended to perform in law.

Approach to the research

The research primarily is a doctrinal analysis. The research is not a statement of every possible

application of possession of land.4 Indeed, specific applications as referred to in the research

are used to answer the primary objective of the research, namely, whether contemporary

applications (as consequences of the analytical formulation) of the concept represent conceptual

orthodoxy or reshaping, including as a type of conceptual creep. Thus, the objective creates a

contextual framework elaborated by Salmond's two-step process which identifies in depth

possession's orthodox conceptualisation and selects facts of identified case authorities to

highlight them as legally relevant to the objective.

The research is, however, not of case authorities; it is of their meanings, or what they may mean,

having accepted and explained, including by reference to prior legal developments, an orthodox

concept of possession. The possibility of conceptual creep is not a complete conceptual

disconnect from orthodoxy: by implication, it involves a discernible shift in the concept from a

base, horizontally5 or vertically,6 or both. Indeed, the research posits that possession will

continue to be applied according to an orthodox conceptualisation where that is contextually

3 See fnn 341 and 524.

4 Refer to Mark Wonnacott's excellent monograph, Possession of Land (CUP, 2006), which although mainly for an English audience, is a classic piece of legal writing. It is lucid, authoritative, and insightful.

5 For example, as revealed in authorities such as Wik Peoples v The State of Queensland (1996) 187 CLR 1 and Manchester Airport plc v Dutton [2000] QB 133 where possession is not connected with ownership.

6 For example, as revealed in authorities such as Mayor of London v Hall [2011] 1 WLR 504 and Queensland v Congoo (2015) 256 CLR 239 where a party may be said to be in possession but without title.


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justifiable. Nevertheless, the research acknowledges that possession is not as significant as it

may once have been in English and Australian law and that it may become even less significant

over time. While, as suggested, the term is being applied outside its orthodox applications (thus

contributing to an idea of its reshaping as a legal concept), possession's relevance, or

expectations of its relevance, may end up diminishing in the future because, despite attempts to

reshape it beyond its orthodoxy, it may not be a concept sufficiently functional or adaptable,

particularly in the context of an adjudicative objective of balancing newly emerging and

competing interests and values of participants in a modern society in so far as those interests

and values concern land. Such a balancing often seems more amenable to a broader, but

potentially open-ended, legal process which simply determines the relative importance of

competing but highly abstract 'rights' and 'duties' of disputants (and decides the consequences

accordingly) without reference to 'possession', and the increasing legislative intrusion into, or

influence in, areas of land use and enjoyment which were once the domain of, or at least subject

to greater regulation under, the common law.

The research strives throughout to develop an understanding of relevant developments in the

law of possession of land by reference to particular evidence. This evidence consists of case

authorities and socio-economic developments. The research interprets that evidence within an

accepted idea that possession and ownership exist in law; but it is for the research to interpret

the characteristics of those concepts as it is those characteristics against which the research can

ask whether there is a discernible reshaping of the possession concept.

Assumptions

The research assumes:

1) the recognition of possession of land as a concept in the Australian legal system;7 and

2) that it is the aim of the law that possession, as such a concept, be stable, ordered, and

resilient.

Law and legislation referred to

The research generally refers to the status of the law in Australia. However, it draws on and

applies developments in the United Kingdom given the origins of the possession concept in

common law and that Australian courts will take notice of such developments. Generally,

Queensland legislation is, unless otherwise stated, cited throughout the research as an exemplar

of Australian legislation in relation to its subject matter because of the relative similarities

between such legislation for the purposes of this research. In particular, Torrens title legislation

in Australia (the Queensland model being the Land Title Act 1994 (Q)) uniformly adopts the

7 That is, the research does not query possession's existence as a concept. Rather, the research analyses how the concept is recognised and applied.


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concept of title by registration, that being highly significant to the contention made in the

research that, one, entry rules for an owner's enjoying land in possession are mostly subject to

formal requirements (of registration), and, two, that to which a registered owner has

indefeasibility (the registered owner's estate) represents particular characteristics which are

observed in the concept of possession.

Also, given the prevalence of statutory rights of occupation and use throughout Australia under

various Crown and State lands legislative schemes, the State lands legislative scheme in

Queensland (notably, as represented by the Land Act 1994 (Q)) is used as an exemplar model of

legislation authorising and regulating peculiar estates and interests in Crown or State land.

While there are differences in the respective legislative schemes of the various Australian

jurisdictions, the scheme under the Land Act 1994 (Q) can be used as an exemplar model

because, for the research, such a scheme must (as any scheme must) be interpreted in a

universally relevant manner in demonstrating how the common law concept of possession is

applied to, and functions in respect of, estates and interests under such schemes. In this regard,

there is a consistent approach adopted in the case authorities to determining the scope of rights

conferred under statutory rights of occupation and use under Crown and State lands (and

mining) legislation throughout Australia. This may be observed in the recent authority of Living

and Leisure Ltd v Commissioner of State Revenue.8 At first instance, Croft J, in considering

whether particular leases of Crown land under the Alpine Resorts Act 1983 (Vic) each conferred

a right of exclusive possession, said there is a:

distinction … between a statutory 'lease' which is indistinct from its legislative genesis, and a statutory power to grant a lease which will then be governed by the terms of the agreement and the common law ... This is consistent with the decision in Wik Peoples v Queensland [(1996) 187 CLR 1], in which each of the majority of judges emphasised that the pastoral tenures considered in that case were 'creatures of statute', that they were 'not the creations of the common law' but were 'entirely anchored in statute', that they were 'sui generis interests' created under statute, 'statutory devices' or a 'peculiar statutory interest'.9

On appeal, Niall J, although dissenting, approached the issue of whether the lessee had been

granted possession by asking who had "the legal right to control the land and, in particular, to

control who may come onto the land".10 His Honour reasoned that the answer to that problem

could in part be considered by examining various applications of the possession concept to

statutory rights under different legislation throughout Australia (and New Zealand).11 In

8 (2017) 106 ATR 910; on appeal, [2018] VSCA 37.

9 (2017) 106 ATR 910, [27]. See also Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 (Mahoney JA) which considers the interpretation of leases under the Crown Lands Consolidation Act 1913 (NSW) and adopts a distinction between the grant under such legislation of a pure statutory lease and a lease, although statutory, which is in the nature of a general law lease.

10 [2018] VSCA 37, [88].

11 For example, his Honour considered pastoral leases respectively granted under Queensland and Western legislation in Wik Peoples v Queensland (1996) 187 CLR 1 and Western Australia v Ward


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essence, Niall J thought (as did Croft J) that approaching the meaning of possession in the

context of the grant of a statutory lease under a Crown or State lands Act did not turn on the

particular legislation (even if there were distinctions between leases under the different Acts).

That is, the task was not to construe some statutory definition of possession: possession is, and

is notoriously applied as, a common law concept throughout the various jurisdictions.

Consistent with the approaches of their Honours, the research, therefore, uses the Land Act

1994 (Q) as an exemplar legislative model on the basis that, in applying the common law

possession concept to statutory interests under that Act, the same (or a relevantly similar)

reasoning would be adopted when applying the same concept to statutory interests under

comparable legislation in other Australian jurisdictions.

Outline of research development and chapters

In analysing the concept of possession, we must, as Tay12 encouraged, examine the way in which

possession entered the legal system. This is part of the framework for its understanding as a

legal concept and its analysis as to whether it is conceptually shifting. In that regard, the

research recognises that it is important to understand the relationship between ownership and

possession of land as they have emerged and stabilised themselves as concepts in English and

Australian law. This must necessarily explain why and how the ownership and possession

concepts exist. From this, the characteristics of possession can be identified so that we may say

we recognise a concept of possession. From there, the concept can be applied. Specifically, the

research then continues to examine the applications of possession according to the identified

characteristics of possession, including by reference to the specific issues which emerge from

those applications. The research also examines instances of where possession is applied in a

manner that is inconsistent with its characteristics (drawing on examples of various statutory

interests) recognising, however, that such applications may end up forcing a reconceptualisation

of possession itself. From there it is possible to make some conclusions about a general and

contemporary functional concept of possession of land and, specifically, whether as

conceptualised, it has shifted from its orthodox understanding.

This chapter 1 introduces ideas of possession as understood in law in relation to land and, in

particular, the notion that possession is a concept in law, and not merely a legal term. It also

introduces the idea that ownership in possession continues to undergo somewhat of a

(2002) 213 CLR 1; mining leases under Western Australian mining legislation in Western Australia v Ward and Western Australia v Brown (2014) 253 CLR 507; possession of land by the Commonwealth pursuant to Commonwealth national security regulations in Queensland v Congoo (2015) 256 CLR 239; and a statutory lease of the seabed in a harbour in Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1975) 132 CLR 463. In Niall J's view (at [97]), "[c]onsideration of those authorities reveal[s] that there is no bright line test that determines the circumstances in which reservations are such as to deny exclusive possession".

12 A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476, 479.


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transformation according to adjudicative ideas of lawfulness and relativity. Chapter 2 contains

a literature review. Chapter 3 analyses possession as an orthodox concept with reference to its

relationship with ownership (and seisin) and its development in law. Chapter 4 analyses how

possession as an abstract legal concept is susceptible to reshaping in the law. Chapter 5

develops chapter 4 further by considering the justifications that may be contributing to a

reshaping of possession in an adjudicative setting and with reference to the ideas of lawfulness

and relativity. Chapter 6 examines the exclusion from land in the context of relativity as it is in

that area where there is some developed reasoning as to how the applications of possession may

be causing a reshaping of the concept itself. In chapter 7 further analysis is undertaken by

considering whether other applications of the possession concept are causing the possession

concept to creep in its representative qualities, especially by reference to statutory possessions.

In essence, chapters 4 to 7 expose the way in which possession is recognised and applied in the

Australian legal system (with reference, where relevant, to English developments) so that, if

possible, a chain of legal reasoning can be identified as justifying departures from possession's

orthodox conceptualisation. Chapter 8 states conclusions for the research and contends that the

concept of possession is being reshaped in Australian law but such reshaping presently lacks

logical organisation.

1.4 Introductory ideas to possession of land

Possession is said to be contextual in the sense that it occurs in different contexts.13 While that

may suggest that what possession represents in a particular scenario depends on what it is that

is possessed, that, of itself, does not mean there are multiple meanings of the term in law. For

this research, possession's content (as a concept) depends on its contingent linkage to the land.

It is by and as a possession that a possessor, whether an individual, a distinctive group of

people, or a sovereign power, can be said to be able to enjoy time in land for his, her, their, or its

own benefit. However, it is clear that we are not always referring to the same legal concept.

Possession, while expressing itself in different ways depending on the context in which the term

is used, may capture a sense of a possessor's period of exclusive enjoyment of having the land

relative to his, her, their, or its status, powers, and source of claim.14 That is, any possession is

13 Living and Leisure Ltd v Commissioner of State Revenue (2017) 106 ATR 910, [32] ("The nature of possession arises in a variety of contexts."); [2018] VSCA 237; cf Ace Property Holdings Pty Ltd v Australian Postal Corporation [2011] 1 Qd R 504, [100] (Keane JA)); Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233, 257. What is contemplated by possession generally under a statute will depend on ordinary rules of statutory construction. See, for example, Mulholland v Winslow [2018] WASCA 19, where possession in the Criminal Property Confiscation Act 2000 (WA), s 73(1), was interpreted to mean physical possession and a right to possess against everyone except another person.

14 There is, however, often a distinction between sovereignty, which is a matter of public law, and property which is a matter of private law. Nevertheless, it is sovereignty which may permit, define, and enforce property; cf P Babie, "Sovereignty as Governance: An Organising Theme for Australian Property Law" (2013) 36 UNSWLJ 1075.


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an abstract legal concept, the content of which is highly contingent on what it is that the

possessor may, according to law, actually enjoy as or in respect of the thing that is land.

Possession, it is said, is a "concept which has long been familiar and of importance to English

lawyers".15 But, that does not mean all its possible meanings are readily understood. Like

property generally, possession may appear to be elusive.16

Recently, one scholar, not without some intrigue, described possession as "both mundane and

mysterious":17 he added, perhaps with a warning for those who try to capture a meaning of

possession in a neat semantic box, that possession "applies in a disparate set of circumstances

without a unifying thread".18

Judicial pronouncements hardly make the situation any clearer. In Western Australia v Ward19

(Ward) McHugh J remarked that "few terms in law are as difficult to define as 'possession'".

And in Queensland v Congoo20 (Congoo) French CJ and Keane J, citing Gleeson CJ in Tabe v

The Queen,21 expressed the view that the word possession "is one for which English law has

never worked out a completely logical and exhaustive definition".22 Also in Congoo, Gageler J23

thought that the word possession, standing alone, has never acquired a more definite

15 Powell v McFarlane [1977] 38 P & CR 452, 469. There Slade J was referring to possession of land.

16 Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592, [35]; H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3, 65 ("Modern legal systems assign an important role for possession, but the variety of manifestations of possession within and across legal systems makes it seem unpromising to search for a unified explanation of possession.").

17 The feudal condition of seisin has too been referred to as mysterious. See F W Maitland, "The Mystery of Seisin" (1885) 2 LQR 481; A W B Simpson, A History of the Land Law (Clarendon Press, 1986, 2nd edn), 40, 41.

18 H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession(Blackwell, 2015), ch 3, 65, 68. That said, Smith concludes that possession "is extremely basic and simple, and is part of the first cut at a legal ontology". Possessio in Roman law was a relatively weak idea: see generally C Baldus, 'Possession in Roman Law' in P du Plessis, C Ando, K Tuori (eds), The Oxford Handbook of Roman Law and Society (OUP, 2016), ch 41. Sir Frederick Pollock, A First Book of Jurisprudence (MacMillan and Co, 5th edn), 189, who confessed to loving Hobbes a little too well, recognised how possession came to be an abstract concept. He wrote: "The notion of possessing is really both much easier and much earlier than that of owning … English law cannot deny that an occupying farmer is in possession of the farmyard as well as of the pigs, ducks, and geese therein, but it asserts that the landlord is seised of the freehold; and seisin, as even our later books of authority will tell us, was originally nothing but possession ... We shook off the medieval bond of materialism as late as 1845 [8 & 9 Vict c 106], when Parliament had the courage to declare that corporeal hereditaments 'lie in grant as well as in livery' so as to enable the immediate freehold to be dealt with by simple deed." As to seisin, see chap 3, para 3.12.

19 (2002) 213 CLR 1, [478].

20 (2015) 256 CLR 239, [11].

21 (2005) 225 CLR 418, [7].

22 There Gleeson CJ was actually citing Earl Jowitt in United States of America and Republic of France v Dollfus Mieg et Cie SA & Bank of England [1952] AC 582, 605.

23 Congoo, [161].


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connotation in law or in ordinary speech than its referring to a high degree of intentional control

over the thing possessed.

Possession has, for instance, been categorised as having a primary meaning of physical control

and a secondary meaning of physical control by an agent or servant, or by relation back.24 In

some contexts, unless a person is in control of a thing, the person may not be able to be said to

be in possession of the thing.25 In other contexts, possession may be used with the term

enjoyment (as in, for example, 'entitled to possession and enjoyment').26 A statute may refer to

"possession, custody, and power";27 a person may retain 'possession' under an Act of property

stored with another person where that person only had a lien on the property and the owner

could withdraw the property on demand;28 and an employee of a company who has access to,

and use of, documents that are the property of the company may be 'in possession' of those

documents for the purposes of discovery.29 A drug may be in the possession of a person where

the person forgot that the drug was in his wallet.30 But, it has also been found that a person may

only be in possession of a thing where the person has real or effective control, and not merely

custody of a thing.31

For land, possession may include the receipt of, or the right to receive, rents and profits from the

land (for example, under a lease).32 In some contexts (for example, where a lessor re-enters

premises on the default of a lessee), a taking of possession refers to putting a person in

possession in the sense of having immediate enjoyment (and even if the putting in is fictional).33

And it is possible to be in possession of an estate for the law (for example, under a reversionary

interest) without having a right to the present enjoyment of land.34 Possession is, then, an

24 Jowitt's Dictionary of English Law (Sweet & Maxwell, 3rd ed, 2010). The following instances of possession in this paragraph are generally those referred to in Jowitt's.

25 Bellerby v Carle [1983] 2 WLR 687.

26 For example, Re Trevanion [1910] 2 Ch 538; cf Commissioner of Stamp Duties (NSW) v Perpetual Trustee Co [1943] AC 425.

27 See B v B [1979] 1 All ER 801 in respect of RSC, Ord 24 (UK).

28 Towers & Co v Gray [1961] 2 QB 351 in respect of the Merchandise Marks Act 1887 (UK).

29 Skoye v Bailey [1971] 1 WWR 144.

30 R v Martindale [1986] 1 WLR 1042; cf R v McNamara (1988) 87 Cr App R 246; R v Lewis (1988) 87 Cr App R 270.

31 R v Porter [2006] EWCA Crim 560.

32 Clarence House Ltd v National Westminster Bank Plc [2009] EWHC 77 (Ch); see also, for example, Land Title Act 1994 (Q), s 78(2)(b) (a mortgagee may enter into possession of a mortgaged lot by receiving rents and profits); Acts Interpretation Act 1954 (Q), s 36; sch 1 ("[In an Act] possession of land includes the receipt of income from the land.").

33 See chap 5, para 5.2 (the discussion concerning mesne profits).

34 On default under a mortgage, possession was, if demanded, said to be delivered up to a mortgagee, although any distinction between recovery and delivery of possession in Queensland is not maintained (Hubner v Australia and New Zealand Banking Group Ltd [1998] QCA 240, [7]).


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abstract concept, even though often it is associated with the having of physical custody and

control of land.35

An expectation that possession is or will be relevant in a particular circumstance or context will

generally arise in a setting of whether a person is in possession as a matter of observable fact

(actual possession) or as a matter of title (which, for an owner, is called legal possession);

whether a person is maintaining possession; or whether a person has a right of possession. At

this point of an enquiry, what possession represents as a legal concept is already known and it

functions as such. Accordingly, its conceptualisation, to be discussed in chap 3, informs the

expectation of its relevance to a particular circumstance or context, including in an adjudicative

setting.36 It is, therefore, necessary to make some distinctions between what possession often

represents in those instances and introduce some of the terminology used in this area. Three

different general applications or classifications of possession were once noted by Shartel:37 here

they are adapted specifically to land.

1) Possession as the appearance of power over land according to the facts. Often this is

referred to as de facto possession or factual possession,38 or possibly physical

possession.39

When it is asked whether a person has possession of land, usually that question is

answered in this sense because it is thought that concerns whether the person has actual

control of the land as a matter of fact.

2) Possession as the appearance of power over land according to facts which accompany a

continuing possession, for example, where a person claims to be in adverse possession.

Here, it is said the possessor is in possession or has possession for the law. The

distinction between (1) and (2) can seem quite technical, but can only be justified

because the legal consequences of each sense are intended to be different. Whereas (1) is

intended to refer to a purely factual circumstance that is acknowledged by the law, (2) is

intended to refer to a circumstance, although founded in a factual non-legal reality, that

has transformed into a continuing or maintained possession for the law and sometimes

35 JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221, 233 (Lord Browne-Wilkinson). As will be explained, an owner is in possession merely by reason of his or her title. He or she need not do anything particular on the land to show his or her possession.

36 If it is apparent that a person is only physically occupying land, there may be an expectation of relevance of the possession concept, but only to the extent that it can be concluded that possession is, for example, not relevant to the resolution of a dispute or that the occupant cannot avail himself or herself of a possessory remedy.

37 B Shartel, "Meanings of Possession" (1931-32) 16 Minn L Rev 611, 612, fn 3. Shartel thought that most theorists who had written on the subject to that point were in general agreement as to the classifications.

38 See A W B Simpson, A History of the Land Law (Clarendon Press, 1986, 2nd edn), 37-40.

39 Cf Glenn v Federal Commissioner of Taxation (1915) 20 CLR 490, 498 (Griffiths CJ).


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creates what is called a possessory title. In JA Pye (Oxford) Ltd v Graham40 (JA Pye)

Lord Browne-Wilkinson said, in addition to factual possession, a necessary element of

possession was the alleged possessor's intention to possess. However, there may be

circumstances in which an authorised possession of land may be no more than an

authorised actual possession, and irrespective of the possessor's intention, may not

be(come) a possessory title41 (which, as will be explained, represents a threat of sorts to

an owner's right of possession).

3) Possession as a legal relationship with land. This usually is referred to legal

possession.42 It is said to presently entitle its holder to possession who, without anything

more, is taken to be in possession (if no one else is). So, when an estate is in possession

the owner of the estate has a present right to the enjoyment of the land (the estate) and

enjoys the estate.43 The present right is distinguished from a future interest such as a

reversion, remainder, or expectancy.

However, do such general classifications of possession – when not limited to land – help us

understand why, for example, a person who has a right to live in a particular house which he or

she does not own, may be found to possess the house?44 Or do they assist us when we try to

explain that we have possession of our own bodies?45 Can they explain when a possessor has a

right to bring an action in trespass and when he or she does not? They do, but only to a point.

And this is because, often, we shift our attention to the words used to explain the classifications

or the outcomes we want without realising that, underneath each of Shartel's classifications,

there is an ordinary or orthodox idea of possession, even if that ordinary possession concept can

lead to different consequences.

The apparent elusiveness of possession in its meaning – or at least in an exhaustive sense —

occurs because the apparent power status of a possessor has not, in the minds of those who

might assert possession's elusiveness, been conceptualised as being representative of anything

but power, or an appearance of power.46 As with asserting possession means power or is control,

what does it mean to have power or control? Must the power or control have a particular

source? What if reasonable minds differ as to what they perceive or observe as the requisite

40 [2002] 3 WLR 221, 233. See fn 76.

41 The uncommon circumstances would usually be an actual possession authorised by statute, as occurred in Congoo (according to French CJ and Keane J); see chap 7, para 7.3. Although, a person may part with possession in favour of another without creating a new estate in favour of that person.

42 But, sometimes (2) is called legal possession. See JA Pye, [233] (Lord Browne-Wilkinson).

43 Ren v Bulkeley 1 Doug 292.

44 For example, Kukalo v Russia, Application no. 63995/00 § 61, 3 November 2005.

45 R v Bentham [2004] 2 All ER 549, 552 (Kennedy LJ).

46 As noted above (fn 37), Shartel thought possession was the facts.


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power or control? Is that power or control always desirable? Are there exceptions? The

approach of this research is to focus on possession's conceptualisation within the legal system.

This relates more to an idea of possession's function or role in law and how it is applied to bring

about certain outcomes while maintaining necessary or contingent conceptual linkages with

other legal concepts. Differing consequences are permissible, providing those linkages are

maintained. For example, possession, if recognised in a purely contractual sense could be

something quite different to possession in a proprietary sense as, in the former, it only applies as

between the contracting parties.

Possession has characteristically been representative of a power relationship between a person

and a thing. But, of itself, that does not always help us to explain the concept or work out

whether there is or might be, for the law, possession in a given situation.

Conceptualising possession of land in its modern form is about understanding that it is an

abstract concept and what it is called on to do in the light of its historical and legal development.

And classifications of the types Shartel suggested can actually encourage a narrowness in that

sort of understanding. It is important to treat Shartel's (or other similar) classifications as

representing different functional occurrences (or even consequences) of a general concept of

possession and not classify them as distinct types of possession. If this is not kept in mind, such

classifications become circular as they are not mutually exclusive. And, they may encourage the

use of shorthand descriptions of a state of possession (such as actual possession) without fully

understanding the significance of adjectives. In this endeavour it is not clear, then, that such

descriptions overcome the apparent prevailing view that possession is impossible to define, at

least in an exhaustive way. That is, in a sense they just add words. Nevertheless, Shartel's

classifications reveal that, although possession is a legal concept, it can be said to have a general

or non-legal conceptual counterpart: indeed, a person's factually occupying land may raise a

presumption in law that the person is in possession. The person appears to have power over

land as a matter of fact; possession in law is intended to represent an equivalent idea but

according to its own arguments or objectives.

Long ago, in so far as it concerned land, possession was described as being confined to two

categories. According to John Rastell's Les Termes de la Ley, first translated into English in

1527 (Or, Certain Difficult and Obscure Words and Terms of the Common and Statute Laws of

England, Now in Use, Expounded and Explained):

Possession is said two waies, either actuall possession, or possession in law. Actuall possession is when a man entrenth in deed into lands or tenements to him descended, or otherwise. Possession in law is when lands or tenements are descended to a man, and hee hath not as yet really, actually, and in deed, entrenth into them: And it is called possession in law because that in eye and consideration of the law, he is deemed to be in possession, forasmuch as he is tenaunt to every mans action that will sue concerning the same lands or tenements.47

47 See also J Lightwood, A Treatise on Possession of Land (1894), 3.


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Actual possession, then, was said to occur when a person entered into land, whether or not he or

she was entitled to the land. Possession in law was said to occur when a person was entitled to

the land, but he had not actually entered onto it.48 Entry once was significant in the granting

and conveying of land. Estates today lie in grant and can be transferred or conveyed without

entry.49 And a person in possession, whether as a matter of fact or title, can bring a possessory

action (in trespass or private nuisance).50 As explained by Wonnacott in a reference to a land

registration system adaptable to Australia,

In the case of paper rights [of ownership under a land registration system51], neither the grant of the right [of possession under say, a deed of grant] nor the means of protecting it now depends upon proof of prior factual possession. The right to possess is enough, so there is no need to pretend that the person with the right has ever in fact been in possession. In the case of rights derived merely from the bare fact of possession alone [actual possession], there is no reason to extend the right, and the law does not extend the right, beyond those who really are, or who formerly were, in possession.52

Accordingly, distinctions between actual and legal possession can often have little, if any, legal

or practical significance to our understanding of the characteristics of possession. The owner

will be taken to be in possession unless someone else is in possession.53 But, regardless, and

whether a paper right or a right derived from the bare fact of possession, there is a right to

possess which is protected.54 Nevertheless, the High Court has made a distinction, especially in

the context of statutory leases, between a lessee's having actual possession to carry on a purpose

on leased land (and which may have a limited exclusory effect on third parties55) and enjoying a

right of (exclusive) possession which allows a lessee to exclude all others from the leased land

for any or no reason.56

48 This is similar to the law's invention of the seisin by deed and in law. As to seisin's significance in the development of possession see chap 3, para 3.12.

49 M Wonnacott, Possession of Land (CUP, 2006), 8-13. See, for example, Property Law Act 1974 (Q), s 8.

50 Although, in the first instance, the possessor cannot bring the possessory action against the true owner because he or she does not have title against the owner. See generally J Hill, "The Proprietary Character of Possession" in E Cooke (ed), Modern Studies in Property Law, Vol 1 (Hart Publishing, 2011), ch 2.

51 For example, the Land Title Act 1994 (Q), which is a Torrens title Act and, as such, confers an indefeasible title on a registered owner.

52 M Wonnacott, Possession of Land (CUP, 2006), 12.

53 See Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380, as discussed in chap 3, para 3.9.

54 As will become apparent, the right to possess which may be derived from the bare fact of possession is inferior to one derived from registration (a paper right): but, what each right is to is the same thing.

55 That is, it tends towards having an excluding effect in the sense that the circumstances when a right to exclude is exercisable are contingent on a certain precondition being satisfied, that being that an intruder interferes with, or threatens to interfere with, the carrying on of the purpose. Cf Congoo, [38], [39] (French CJ and Keane J).

56 See chap 7, para 7.2.


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In the end, the classifications of possession referred to above direct attention to the law's entry

rules for accepting that, in a particular circumstance or context, what has occurred or is

occurring is possession within possession's legal conceptualisation. Again, understanding

possession is more about what possession is called on to do within the legal system, and more

broadly, society generally. That is, what is possession's function? As such, and as alluded to, the

classifications do not, then, really explain the concept of possession or all of its legal

consequences. They merely hint at there being different legal consequences depending on the

classification and for the lawyer that is as far as he or she is ever likely to go.57 Whether legal

consequences do flow, and how, is part of the conceptualising of possession's function and a

consideration of whether possession can conceptually represent or contemplate something more

than it does in an orthodox sense.

Words do not always fully capture functional concepts

Possession, when taken out of the context of a pure understanding of its legal meaning, can

sometimes almost have a pejorative flavour. Its antonym, dispossession, can, at least in some

settings, be suggestive of the wholesale displacement of people(s).58

It should be apparent, then, that one reason for possession's lack of a precise definition in law is

language itself. This is not to say possession necessarily is ineffable. Possession is real and

significant and it has meaning even if that meaning can only be revealed as an abstract concept

through an understanding of its function in law rather than by an exhaustive description. As

will be explained, possession's meaning is revealed by its essential characteristics.

A fundamental purpose of defining a term is to eliminate vagueness and ambiguity in

communication and also (and relevantly) in conceptualisation.59 It is too simple a proposition

that, if it were susceptible to exhaustive definition, possession could be expected to have a single

or clear-cut meaning.60 Language, including legal language, rarely works that way. Meaning

always is affected by purpose and context,61 and even when the relevant word is a concept. And

words can be defined in ways that recognise there are objectives beyond merely fixing particular

57 See fn 655.

58 See Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 58 (Brennan J).

59 C Wallis, "Concepts, Meaning, and Definitions" <http://web.csulb.edu/~cwallis/170/text/concepts/concepts.pdf> (viewed 12 November 2018).

60 In Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] FCA 866, [119], Markovic J noted that in Stroud's Judicial Dictionary (Sweet & Maxwell, 4th ed, 1979) there are 57 different entries for possession and that in Black's Law Dictionary (West Group, 8th ed, 2004) there are 36 different types of possession listed.

61 Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444, [64] (Lord Hoffmann) ("No one has ever made an 'acontextual' statement. There is always some context to any utterance, however meagre."). It is well known that, when interpreting provisions of a statute, construing the text of the provision in its context is fundamental.


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meanings to them or avoiding vagueness or ambiguity.62 Pragmatics linguists will sometimes

contend that words are often encoded and that the real meaning of what is uttered will depend

on implications and inferences, and expectations of relevance.63 Possession appears to be no

different.64

That is, when it is said possession is a functional concept, or that it must be understood as a

functional concept, we refer to the concept's particular functionality in law, not simply that it

has a function per se. And, additionally, while words may be used to describe possession, an

understanding of that functionality may only be possible if it is known how possession is applied

and what inferences are to be drawn from those applications as part of its proper legal

conceptualisation. The mere employment of words to describe possession may not, then, always

reveal its functional applications or purpose in law.

This research does not suggest that possession as a concept does not have meaning, or that we

cannot discern meaning for it in the sense that it does not have clear implications. Mostly, the

difficulty in its understanding lies in not knowing (or in disagreements as to) the limits of

possession's implications, a situation which becomes apparent in its applications. It may be

possible – as this research explores – to question applications of possession in law because the

mental representation of possession as a concept applied in those circumstances actually

exhibits or contributes to the term's vagueness. That is, the very applications of possession can,

on the one hand, reinforce the argument that possession's role in law is to recognise particular

relationships between people and things, but, on the other, introduce their own vagueness into

the understanding of the concept. Applications can thus contribute to the contention that

possession cannot be logically and exhaustively defined because they refrain from drawing

stable and well-understood lines around the circumstances of those relationships (for example,

in characterising what is meant by the things that can be possessed or the scope of the

enjoyment of the alleged possessor of a thing). In other words, possession can extend itself such

that as a general concept it is thought of as being vague – the very antithesis of the most basic

objective of definition – when a court applies possession in a circumstance where another court

might not.65 As a result, it becomes more difficult to recognise an extant chain of reasoning

determining the concept's proper applications. It is a chain of reasoning over time which is the

common law's method for (continually) defining a term (and even if that chain should mean that

62 That is, they go beyond the fundamental premises of eliminating vagueness and ambiguity: C Wallis, "Concepts, Meaning, and Definitions" <http://web.csulb.edu/~cwallis/170/text/concepts/concepts.pdf> (viewed 12 November 2018).

63 See D Wilson and D Sperber, Meaning and Relevance (CUP, 2012), 5-6.

64 D Wilson and D Sperber, Meaning and Relevance (CUP, 2012), 32 ("[W]hether or not a word encodes a full concept, the concept it is used to convey in a given utterance has to be contextually worked out.").

65 Compare Manchester Airport plc v Dutton [2000] QB 133 with Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534; see chap 6, para 6.5.


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its applications remain narrow or do not address perceived gaps in the law).66 But, the very fact

that courts (and commentators) may disagree as to whether possession applies in a particular

scenario contributes to the suggestion that possession does not attract to itself a complete

definition.67

And while it may not be possible, or perhaps more to the point, useful, for present purposes, to

explain possession according to a particular or once and for all phrase which fixes the term with

a particular meaning or conventional connotation (a lexical definition), when we recognise

possession, or more particularly, possession of land, as a functional concept with representative

essential characteristics we can go some way to saying possession may have a précising

definition which recognises there are particular – and, therefore, limited – circumstances in

which the concept can be applied. This may come close to saying possession is a term of art.

Possession perhaps may even be better described as having a theoretical definition because, if

we say that possession is not merely the enjoyment of a thing as a form of legal relationship

(meaning it is the enjoyment of a thing recognised as possession in law), but rather, it is that

enjoyment as representing the characteristics of priority to and exclusivity of the thing (see chap

3, para 3.5), we gain a deeper understanding of the term and, importantly, its implications in

law. We may especially do so when the possession is of a particular thing such as land. This is

because within the term possession of land we create a conceptual linkage between a bare legal

concept (possession) and another legal concept (land) and connect them by the relative

preposition of. As such, for present purposes, possession cannot mean more than what it means

to possess land. As will be explained, in law this is an application of the law's objective or

argument for what the law permits as the enjoyment of land. By such an approach to meaning

we are not only trying to eliminate vagueness or ambiguity about the possession term, but we

are also setting or settling its applications (which, incidentally, may go to eliminating vagueness

or ambiguity).68 This can contribute to possession of land's better understanding as a functional

concept operating in the law. However, as mentioned, possession can, on occasions, acquire for

itself a persuasive definition because it can be used in an evaluative context (for example, in

reference to the displacement of people(s) by more powerful people(s)).69

It is not suggested that possession (or rather, to possess) could possibly have all sorts of

meanings depending on the particular objective for its being defined that is under consideration.

66 See A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476.

67 See H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession(Blackwell, 2015), ch 3.

68 That is, we are drawing stable and well-understood lines around, or for, its applications.

69 See generally C Wallis, "Concepts, Meaning, and Definitions" <http://web.csulb.edu/~cwallis/170/text/concepts/concepts.pdf> (viewed 12 November 2018).


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Equally, however, its implications for this research do, as suggested, depend on the role the

concept of possession of land fulfils in law. Possession, or the state of possessing, functions as a

form of property in law (that is, if recognised, it represents a legal relationship with a thing). Its

meaning is as such. The research avoids trying to define possession in any lexical sense because

its (orthodox) functional applications mean that there are no words or phrases that sufficiently

capture what possession is without still leaving room for vagueness or ambiguity. Ultimately, a

lexical definition is unacceptable because it cannot help but underperform when the objective is

to discern possession's role in law (that being a purpose for recognising a relationship as

property generally (see chap 3, para 3.4 and chap 4, para 4.3)). While legal terms, including

concepts, not uncommonly attract précising definitions, because possession has a factual

counterpart (that is, there is a non-legal reality of possession) and a role within the law, it can,

as suggested, be better expressed in a theoretical sense which has implications for its abstraction

and potential reshaping, including as a more abstract legal concept (see chap 4, para 4.2).

Possession's 'meaning', then, does not precisely align with particular words or phrases that are

intended to represent its definition; rather, possession's meaning is derived from words which

themselves represent characteristics that possession is said to represent. Possession is a legal

concept because it plays a role in allowing us to recognise relationships between people and

things (and specifically for this research, land) without the need to insist on knowing details

about the particular people who are said to be in possession and the things that are said to be

possessed (beyond their being physical things, or relevantly, its being land). If, in general,

particular entry rules for its recognition are satisfied, there is possession in law regardless of

who is the possessor. To put it another way, possession cannot be constructed out of or

represent simply any relationship a person has with a thing; the only way to recognise

possession is by its form serving a function made obvious by the need of the law and its

argument for the enjoyment of the land to recognise and protect a particular relationship with

land. By legal convention, that particular relationship is called possession. And this is what is

meant by, one, possession being part of a legal response to an argument or objective of the law,

and, two, possession's only being realisable as an abstraction. And as a legal concept we can

assess its function or its performance through its applications, and, in so doing, understand its

meaning as a type of mental representation. That may allow us to contemplate its reshaping.

More particularly, having a deeper understanding of how possession is mentally represented

according to its essential characteristics – as opposed to merely accepting words and a necessary

vagueness about what really is being contemplated as might occur with a lexical or perhaps even

précising definition – permits us to understand whether there is, when possession is applied in

different adjudicative settings as a conceptually relevant term, an evident chain of legal

reasoning itself being applied or developed, even as a reshaped possession idea. Relevantly, it is

with such understanding we can appreciate possession's conceptual function and


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contemplation. That is, as a theoretical idea developed by a chain of legal reasoning – that chain

giving possession its deeper meaning – we can determine whether applications of possession fall

within or outside a permissible or cohering conceptualisation. Interestingly, then, because

possession conceptualises itself and develops primarily through the adjudicative process – being

of the common law – it is possession's applications themselves that form possession's own

conceptualisation. If, however, the law admits that its argument or objective for the enjoyment

of land changes over time, it does not automatically follow that the term possession

correspondingly changes (so as to be a legal means for recognising and protecting any new type

of enjoyment). While a chain of legal reasoning may develop over time which holds that

possession represents new or different characteristics, it is by asking whether that chain has

logical organisation through an idea of there being cohering links in any reshaped possession

concept that we can assess whether particular applications come within possession's permissible

conceptualisation – including as an exercise in reshaping – or not.

A special problem is that, where words are used to explain, or are substitutes for possession,

those others words require explanations themselves. Additionally, they may end up raising their

own irrelevant or impermissible expectations of relevance. For example, if it is thought that the

plaintiff in a trespass action must establish that he or she was in actual possession at the time of

the alleged trespass, the focus of the enquiry turns to an expectation that it is actual possession

that is relevant. It may be the case that the plaintiff does not need to establish that at all. In

other words, nothing turns on the word actual.70 If possession is not interpreted and applied as

a functional concept, references to these other words may end up preventing our stating a

general concept of possession recognised and applied in the law. Also, they prevent our

focussing on how the concept has developed historically to stabilise itself with a particular

function in the law.

The legal historian S F C Milsom thought that possessive adjectives arising in references such as,

"my money in the bank" or "my home", are used indiscriminately and potentially confuse any

distinction made between the ownership and non-ownership of things. However, he pointed out

that when such characterisations occur because of statute – an outside governance source

consisting of a body of rules – relevantly, it ought not (in the absence of clear statutory

language) be seen as altering any legal principle; for example, a tenant does not become an

owner of a house merely because a statute might refer to the house as the tenant's house.71

Although by the statute's language the balance of ownership may be perceived to shift away

somewhat from a landlord because of special statutory protection of the tenant's interest and

thus even be perceived to create a new property interest in the tenant, such an interest

nevertheless does not alter the basic common law understanding that, if the issue of ownership

70 See Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380, [6] (Lord Hope).

71 S F C Milsom, A Natural History of the Common Law (Columbia University Press, 2003), 52.


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is in dispute, the landlord is the owner, not the tenant.72 But, as Milsom says, it does not follow

that, by describing an interest or thing the subject of the interest in the possessive, legal

principle has been changed such that what the law conceptualises as ownership of the thing no

longer is, for that reason alone, ownership.

Conceptually and historically, possession has functioned as a default idea.73 It is a means of

representing a priority of a person to a thing when there is no other explanation for that person's

claim to it.74 This puts possession within a property frame of reference. In doing so, it is easy to

use property (particularly proprietary) language, then, to go further in explaining what is meant

by a priority to a thing and what other explanations might exist. At a base level, possession

becomes suggestive of what Milsom impliedly cautions against – namely, a concept developed

around a 'mine-yours' type distinction in explaining priorities and property to or in things –, or

at least suggests that one must be careful to know what really is being discussed.

The 'mine-yours' explanation or conceptualisation of property generally has been criticised by

others75 and, while at times perhaps encoding an idea of apparent control or power over a thing

– or priority –, of itself such an explanation is not suitable as an explanation in circumstances

where the thing is the subject of a multitude of interests and claims. Once we introduce

proprietary language where there are multiple interests (for example, an estate or interest in

land), it is not necessarily the case that the situation gets any clearer as to who has what without

an understanding of what those interests respectively represent. And, if we persist in referring

to 'mine' and 'yours', what exactly is mine and what is yours? For possession, such an

explanation does not reveal possession's development or role in law, and as Milsom notes, to say

a thing is mine because I possess it plainly cannot always be true. That may be possible only

when we are referring to a situation where the law says that having possession has the

consequence that it is mine; that might be where there is no other explanation for why the thing

is mine. But, for land, that would not usually be the case because of ownership (the 'other

explanation'). We can, then, say that words such as mine may be useful in describing possession

only when the implications and inferences, and expectations of relevance, of such a description

align that description with the surrounding circumstances, including the law: for example, a

72 Even if it is said the landlord merely has the reversion expectant on the expiry of the tenant's lease, the ownership of the house remains in the landlord. Although see chap 3, para 3.11.

73 See H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3, 88 ("How … [possession] is expressed is not a matter simply of finding first principles – whether grounded in morals or efficiency – for defining 'possession' as a legal matter. Rather, possession is a formalized version of possessory custom, which is the ultimate default regime for assigning things to persons.").

74 H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession(Blackwell, 2015), ch 3, 65. F Pollock, A First Book of Jurisprudence (MacMillan and Co, 5th edn), 178 ("Possession was the root of title.").

75 R Palmer, "The Origins of Property in England" (1985) 3 Law and History Review 1, 7.


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thing that is referred to as mine is my possession only if those circumstances are such that the

law does not regard someone else as the thing's owner. It is, then, better to understand

possession's function – as being something it is called on to do by the law – rather than trying to

apply a word such as 'mine' to the thing allegedly possessed.

Possession can be seen then as presenting as a particularly abstract concept in law. It is an idea

from which the law builds and maintains relationships between persons and things. Not unlike

property at law in general, possession is said to have an 'orthodox' conceptualisation as derived

from case authorities.76 To interpret the reasoning of those authorities, we must try to

understand and interpret justifications for conclusions that a legal status of possession does or

does not exist in a particular circumstance as expressed through judicial reasoning and

method.77 'Public words' that are stated in adjudicative decisions of courts can be

misinterpreted if it is not understood that those words may not always fully express what it is

that is being communicated in the decisions themselves or perhaps what has even occurred as a

matter of fact. Thus, adjudicative reasoning can reveal encoded conceptual (and, therefore,

contextual) applications of possession, and may, on closer inspection, be extending the concept

itself.

In the end, possession is, as suggested, not susceptible to conveying a precise meaning merely by

reference to particular words, public or otherwise. Whether, for example, there is possession in

a particular instance (of a non-owner's having entered land) is, consistent with comments

already made, more likely to be ascertained by observing what the alleged possessor does or

does not do to enjoy the land said to be possessed.78 In this way, possession functionally

positions itself as part of a real property frame of reference because it is providing an outcome

(usually in a dispute) by reference to the individual, a thing, and the individual's relationship

with the thing.79 It has, in law, conceptualised a particular type of relationship. And it is the

76 See chap 3, para 3.9; JA Pye, 233 (Lord Browne-Wilkinson) ("To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ('factual possession'); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ('intention to possess'). What is crucial to understand is that, without the requisite intention, in law there can be no possession …"); cf Black's Legal Dictionary defines possession as "1. The fact of having or holding property in one's power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object."; Jowitt's Dictionary of English Law (3rd ed) defines possession as "(1) The visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons …; (3) In general legal contexts, the primary meaning is physical control. A secondary meaning is physical control by an agent or servant, or by relation back, eg, by the owner having entered without remaining in physical possession …"

77 For example, in R v Cavendish [1961] 1 WLR 1083 it was said that a person was not in possession, actual or constructive, of stolen goods merely because the goods were found on his or her premises.

78 See JA Pye; Powell v McFarlane [1977] 38 P & CR 452.

79 See Hung v Warner, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCAFC 48, [29].


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characteristics of that relationship (represented as possession) or the having the land and the

land's enjoyment which represent what people truly value as their relationship (or connection)

with the land, including as an estate in land, because of their historical, economic, social, and

often deeply personal, attachments to land and its enjoyment. As suggested further in this

research, these attachments are emblematic of a humanization of space. Partly for this reason,

possession at law is a basal or default concept as it functions as part of the law's response to the

recognition and protection of the enjoyment of things generally in a wider legal system.

Legal concepts such as property, ownership, and possession80 allow the law to build ideas

around (or address or respond to) the law's objectives or argument for the enjoyment of land

and, in doing so, allow them to functionally cohere with other related concepts (including by

recognising rights of action and remedies in tort where appropriate to vindicate or protect

property).81 The law's objectives in these areas have been developed over time and, as such, the

law's conceptualisation of these ideas is a product of their history. Nevertheless, as abstract

concepts in this area generally are expressions of what we might perceive to be a state of affairs

or a status having regard to a purpose or objective for their recognition,82 within certain

parameters or boundaries they may permit modification and adaptation in their further

development. That is not, however, a permission to reshape a concept at will; an abstract

concept merely allows the further building of a base idea according to a clear objective of what

the concept is being called on by the law to do. That is, the concept, as developed according to

that purpose, only allows a limited number of choices for its future development especially as

abstract concepts such as possession and ownership rely for their content on linkages with other

legal concepts (relevantly, and primarily, the lawful enjoyment of land).

Not understanding this conceptual paradigm for possession – that is, its objective – can lead to

an overuse of words. A perfect example is the Native Title Act 1993's (Cth) use of the bloated

phrase (or "portmanteau expression"83), "possession, occupation, use and enjoyment" of land or

waters.84 It might as well add dominion and control for good measure. While a concept of use is

different from enjoyment – enjoyment being concerned with, at its broadest, an idea of a

freedom to do something (rather than taking pleasure from it) for one's own benefit whereas use

80 And interests and rights in, and in respect of, land.

81 Powell v McFarlane [1977] 38 P & CR 452, 469 (Slade J) ("Possession of land … is a concept which has long been familiar and of importance to English lawyers, because (inter alia) it entitles the person in possession, whether rightfully or wrongfully, to maintain an action of trespass against any other person who enters the land without his consent, unless such other person has himself a better right to possession."). See also Buckinghamshire County Council v Moran [1990] Ch 623.

82 See Jones v Merton London Borough Council [2008] 4 All ER 287.

83 Ward, [94] (Gleeson CJ, Gaudron, Gummow, and Hayne JJ).

84 Native Title Act 1993 (Cth), s 225 ("determination of native title"). This is perhaps an example of a drafter's attempts to ensure that the field has been covered. But the field doesn't require numerous coverings. See further chap 7, para 7.2.


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involves an application of something whether or not for a particular purpose85 – enjoying land

must include using the land as that involves a decision to use it. That is, relevantly, to use or, for

that matter, to occupy, the land without enjoying it is possible; but to have a right of enjoyment

of land includes the right to use or occupy it because it acknowledges that such actions occur as

a result of decisions. If, in the phrase possession is to have the thing, it is unlikely the drafter

could have thought that meant no more than a bare possession without any entitlement to

otherwise enjoy, use, or occupy the land. Using too many words in this area invites distinctions

that are not real or which serve no useful purpose.86 Attention to case authority can, on

occasions, overcome such a problem. As noted by the Judicial Committee of the Privy Council

in Lam Kee Ying v Lam Shes Tong:87

A covenant [in a lease] which forbids a parting with possession is not broken by a lessee who in law retains possession even though he allows another to use and occupy the premises. It may be that the covenant, on this construction, will be of little value to a lessor in many cases and will admit of easy evasion by a lessee who is competently advised, but the words of the covenant must be strictly construed, since if the covenant is broken a forfeiture may result …

In other words, a lessee in possession has the freedom or liberty to use and occupy the leased

premises and, as such, to permit others to use and occupy.88 The lessee in possession may be

said to also have the freedom or liberty to enjoy, or rather is enjoying in the sense of his or her

freely deciding how to exploit, the premises, subject to the terms of the lease. But, a mere user

or occupier (including an exclusive user or occupier) of the premises is not necessarily in

possession, even though, at times, it may seem like the user or occupier is in possession and

even is, without evidence to the contrary, presumed to be in possession.89 As Lord Denning MR

said in Wallis's Clayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd,90 "[t]he line between

acts of user and acts of possession is too fine for words". Where the inquiry is not as to the

owner's possession, it is then, often more a case of inferring possession is occurring, rather than

85 See generally Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493, 507-508; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232. A use is different from a purpose (Inkerman Station Pty Ltd v Allan [2017] QSC 147, [8]).

86 Cf Ward, [89] (Gleeson CJ, Gaudron, Gummow, and Hayne JJ) ("The expression 'possession, occupation, use and enjoyment … to the exclusion of all others' is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of 'possession' of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.").

87 [1975] AC 247, 256 (PC).

88 Often, a lease will prohibit the lessee's licensing the premises as well. But, that is simply a type of governance rule (in the form of a contractual prohibition) operating as between the lessor and lessee and which may bind the lessee's successor.

89 See further chap 3, para 3.14.

90 [1975] QB 94, 103. See also Akici v LR Butlin Ltd [2006] 1 WLR 201.


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pointing to specific actions and saying "there it is". Occupation is not a term of art.91 Generally,

it refers to physical occupation (see chap 3, para 3.14).92 Possession is a different type of idea,

and deliberately so. Being of ownership, it is not intended merely to function as a means of

denoting physical presence on land; it represents the enjoyment of land as an owner, or as an

owner can. And, clearly, an owner may enjoy his or her ownership of land without physically

occupying the land.

Because an instance of possession must (in an orthodox sense) align with how ownership is

conceptualised, we must avoid, then, focusing too heavily on the meaning of words such as use

and occupation. Whether a user or occupier is also in possession (with or without consent) is a

matter of legal effect (and possibly presumption) having regard to the circumstances. We can

imagine that, as a matter of fact, a user or occupier may exploit the premises or may make

decisions about the premises (for example, to construct a building on the premises).

Nevertheless, the reality is that, if we do not understand what we are talking about we are only

distinguishing user and occupation from possession by reference to semantics. The limitations

of words in explaining what is contemplated should tell us to be very careful lest we end up

conflating concepts. To possess is to be in land as if the land were one's own or, in the case of a

lease, to be in the leased premises as the lessee would.93 It is possession's conceptualisation

according to ownership that rules out mere use or occupation as being possession. An

ownership characteristic is the quality of having the thing for one's self such that one has the

freedom to decide the thing's use and exploitation. Mere use or occupation does not, without

more, represent such exclusivity.94 Therefore, to use or occupy is not, by itself, to act like an

owner, even if an owner can (obviously) use or occupy.95 Merely being able to do something

(whether exclusively or otherwise) an owner can do does not equate the grantee of any such

right with the status of an owner (or, relevantly, a possessor). Again, an act, such as using or

91 See also Principal and Fellows of Newnham College in the University of Cambridge v Her Majesty's Revenue and Customs (2008) 1 WLR 888, [9] (Lord Hoffmann) ("[It has] often been remarked that … [occupation] is a word that can mean different things in different contexts"; Commissioners of Customs and Excise v Sinclair Collis Limited [2001] 3 CMLR 6, [73] (Lord Scott).

92 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, [88] (Gageler J).

93 But, it does not mean to become the owner or lessee.

94 A right of 'exclusive occupation' may simply mean that the grantee of such right is the only person who can physically occupy the land. That does not mean, by such right, the grantee acts like an owner. To say otherwise would mean that any right to do anything on land is 'acting like an owner'. Often the word mere is added to qualify a user or occupier as if to stress the user or occupier has something less than a possessor. However, a person in occupation is presumed to be in possession, unless there is evidence to the contrary. This is because, as mentioned, possession acts as a default idea. It is here acknowledging a factual or non-legal counterpart idea of having the land.

95 As will be explained, we often regard the owner as the person entitled to immediate possession. But, it is possible to own a future interest: an owner of such an interest is not entitled to use and occupation of the land until he or she is entitled to the estate in possession.


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occupying land, cannot, as a matter of words, be substituted for possession, particularly when

the act is not consistent with the characteristics which possession represents.

As a related point, and despite its obvious property quality, possession may sometimes be said

to be suffering from questionable adaptation and misuse, particularly in high stakes contexts

(that is, those contexts where the interests or values of disputing parties, or one of them, are, in

the circumstances, considered especially significant). This is a product of possession's purpose

which, as suggested, can, in part, go to settling contests between claimants to a 'thing'. It is

perhaps also a product of the tendency to explain property as consisting almost wholly of rights

and because concepts in property law are not susceptible to precise definition.96 For example, in

Congoo,97 Gageler J suggested, in part, that a reason why the Commonwealth's having actual

possession of land under the National Security (General) Regulations 1939 (Cth) was not

inconsistent with native title rights and interests was because that possession was not 'exclusive'

possession. With respect, such a conclusion has little to commend it – in JA Pye98 Lord

Browne-Wilkinson said possession was "single and exclusive", that being a product of

possession's 'thinghood' quality –, but in the context of the dispute in Congoo (which might be

called a high stakes context) it had the result of leaving open a rival claim to the land in

question. Despite possession's being representative of the exclusive enjoyment of land (which is

an ownership concept),99 such reasoning introduces language which suggests that possession

may encode limited characteristics of enjoyment or facts of enjoyment (whatever they may be)

and 'exclusive possession' encodes different characteristics of enjoyment or rights of enjoyment

(presumably of a more absolute quality and which, unlike 'non-exclusive possession', have an

unquestionable exclusionary effect). In time, such reasoning or language starts to stabilise itself

as describing characteristics that are representative of possession in different, perhaps gradated,

senses.100 This reasoning or new rhetoric – which puts great store in the use or non-use of the

word exclusive (and confuses it with exclusion) – may overtake a proper development of the

possession concept by a chain of reasoning that does not represent a clear guide as to the roles

the different senses are intended to perform. That is, it is not entirely clear what presently is

solved by drawing the distinction between 'exclusive possession' and 'possession' other than to

say that, without exclusive possession it is not possible to exclude all persons from the non-

exclusively possessed land or to enjoy the only interest on the land (even if, as discussed, it may

be possible to exclude those who interfere with the purpose of the non-exclusive possession101).

96 See fn 494.

97 Congoo, [161].

98 JA Pye, [38].

99 See Ward, [518] (McHugh J).

100 See chap 7, para 7.2; Wik Peoples v The State of Queensland (1996) 187 CLR 1 (especially Toohey J); Eckford v Stanbroke Pastoral Company Pty Ltd [2012] 2 Qd R 324.

101 Which sometimes is referred to as 'possession of the land' or 'exclusive possession of a purpose'.


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As will become apparent, an exclusion (as opposed to an exclusivity) focus in possession has the

potential to mislead, at least in possession's orthodox sense, as it fails to appreciate what

possession actually does in law. Gageler J's statement, then, appears unsatisfactory as it

seemingly was used (in a high stakes context) to counter a submission that the Commonwealth's

possession could have the effect of extinguishing native title rights and interests in the land.

While this discussion so far may suggest that for the sake of certainty and cohesion the law

ought to strive to adopt a complete definition of possession,102 the law should still resist because

experience does suggest that attempts to define possession in any complete way, rather than to

conceptualise it according to its characteristics (a theoretical meaning), notoriously introduce

questionable variants of that which possession is intended to represent. This reveals the

inherent limitation of words, but also, as seen, perhaps an eagerness to use too many words.103

Often attempts at definition simply use substitutable terms for the word possession – for

example, the already mentioned control, dominion, detention – or introduce qualifications – for

example, actual, physical, vacant,104 quiet, apparent105 – and can sometimes end up in the

concept's having a narrow, or, on occasions, even an extended, application that mostly is

designed to suit a particular scenario.106 For example, in Hinkley v Star City Pty Ltd,107 Ward J,

in accepting that a licensee of casino premises was in actual possession referred to the licensee

as "having no merely physical occupation but actual control or dominion over the area in

question".108 Thus, ascertaining a status of (actual) possession can seemingly become an

exercise in asking whether a particular person has reached or maintains a different state of

abstraction. While using other words can provide some assistance, as already alluded to, any

substitution or qualification for the term possession potentially becomes an obscurity109 or,

perhaps worse, a newly fixed idea of what we are trying to describe. Possession's content is

102 Cf Sir John Salmond (Jurisprudence (1947, 10th edn) who spoke of a theory of possession.

103 See generally Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (2017) 254 FCR 559 (which did not concern the possession of land).

104 See, for example, Norwich Union Life Insurance Society v Preston [1957] 1 WLR 813; Ibrend Estates BV v NYK Logistics (UK) Ltd [2011] 4 All ER 539, [44] (CA) (Rimmer LJ).

105 See, for example, Youngs v Youngs [1940] 1 KB 760.

106 See R (on the application of Best) v Chief Land Registrar (Secretary of State for Justice, interested party) [2016] QB 23, [35] (an 'unlawful possession').

107 (2010) 15 BPR 28,983, [5].

108 The licensee, then, apparently had 'actual' possession (not merely possession) because the licensee had 'actual' control or dominion over an area.

109 In Chaplin v Smith [1926] 1 KB 198, 205, Bankes LJ referred to a lessee's retaining "the power to exercise real and effective possession of the premises". Scrutton LJ (at 211) also thought exclusive occupation was the equivalent of exclusive possession. Further, for example, actual possession implies there is possession that is not actual. The qualifications may assist us in understanding a particular situation of possession, but, we must not to be too eager to search for distinguishing legal consequences. In some contexts, it may be possible to be in possession of a thing but not to have control of it and vice versa: see, for example, Hayes v Fries (1988) 49 SASR 184; Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499.


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determined because of its link to another concept, namely, land, not through its substitution by

another concept that nevertheless must maintain the same link. By a substitution process the

law can often look for meanings for the substitutable terms or qualifications and entrench a

perception that the term possession is one of adjustable semantic description or application

rather than one of fairly rigid functionality. For example, in JA Pye, Lord Browne-Wilkinson

dispelled the notion that there are an 'adverse possession' and a 'non-adverse possession'. His

Lordship said that, at least prior to the Real Property Limitation Acts of 1833 and 1874 (UK),

old notions of adverse possession should not have formed part of the law. He reasoned that they

once did because of a conscious or subconscious feeling that in order for a squatter to gain title

by lapse of title he needed to act adversely to the paper title owner (that is, without an 'implied

licence'). So to hold would, according to Lord Browne-Wilkinson, introduce a requirement that

did not appear from the Limitation Act 1980 (UK).110 Instead, the "question is simply whether

the defendant squatter has dispossessed the paper owner by going into ordinary possession of

the land for the requisite period without the consent of the owner".111 It follows that any

possession without the owner's consent is adverse to the owner:112 the word adverse does not

place an additional requirement on the person in possession to prove that his or her possession

is somehow more unfavourable to the paper owner than the possession of someone who might

be described as a mere possessor.113 Each person in without the paper owner's consent is in

possession according to the ordinary or orthodox understanding of the possession concept.

1.5 Transforming ownership

As a matter of history and custom, humans have humanized fixed spaces of land for their (and

their families') survival within their communities.114 For centuries, and certainly in modern

110 JA Pye, [33]-[35].

111 JA Pye, [36].

112 JA Pye, [38] ("The word 'ouster' is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession ... There will be a 'dispossession' of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumed possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter's subsequent occupation of it in law constitutes possession the squatter must have 'dispossessed' the true owner …").

113 See M Wonnacott, Possession of Land (CUP, 2006), 131.

114 D Miles, The Tale of the Axe: How the Neolithic Revolution Transformed Britain (Thames & Hudson, 2016), 263. This has often been associated with the agricultural development of society and the invention of new systems of farming land. See F Pryor, The Making of the British Landscape (Allen Lane, 2010), 378 and fn 952. See also A Linklater, Owning the Earth (Bloomsbury, 2013), 127-128, 175-176, 394-395. As to the concept of community in property law, see G Alexander, Property and Human Flourishing (OUP, 2018), 76-77 ("Community, as a concept, is used both in a social and a normative sense. In a social sense it refers, broadly speaking, to groups of people who have something in common, such as their place of residence, their race or ethnicity (communities of identity), or even an activity such as a sport (communities of interest) … Community is both a normative and a conceptual language to talk about who is within my sphere. In this regard, its


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times, the law has facilitated and sustained that humanization, so much so that it is said to be

common law policy that all physical things at least must be owned.115 But, beyond the simple

reality of people customarily humanizing space for their own survival, complexities of the

contemporary (especially commercial) world mean that the law recognises that the enjoyment of

land is not, for example, confined to flat land116 or that various people cannot have different and

co-existent relationships in respect of the same parcel of land (ius in re aliena),117 or that land

cannot variously have different qualities or attributes that are determinative of its relationships

of use and exploitation (as affected, especially in modern times, by planning law).118 Property's

authority and justice – as the legitimisation of claims to land – are, then, historical and

functionally far-reaching and universal.

Tuck contends, somewhat controversially, that the "extraordinary burst of moral and political

theorising in terms of natural rights which marks the seventeenth century, and which is

associated particularly with the names of Grotius, Hobbes, Pufendorf and Locke, was primarily

an attempt by European theorists to deal with the problem of deep cultural differences, both

within their own community (following the wars of religion119) and between Europe and the rest

of the world (particularly the world of the various pre-agricultural peoples encountered around

the globe)".120 Armitage too asserts that, in the following centuries, successors to these natural

rights theorists extended their claims to many corners of the world, including America and, to

some extent Australia, ostensibly through a private property 'right of agricultural labour'.121 In

meaning is more than the layperson's common usage referring to just those who are within my immediate circle. One can be a member of a community in different senses, some more closely fitting the more familiar usage of the term than others. I may be a member of the community of my family in a way that I am not the community of my town …").

115 See fn 391.

116 See, for example, in Queensland, the Land Title Act 1994 (Q), s 49C (Building format plan of subdivision); s 49D (Volumetric plan of subdivision).

117 Although ownership is exclusive. See generally Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151, 157 (Meagher JA). English law has long recognised prescriptive rights. See R v Oxfordshire County Council; ex parte Sunningwell [2000] 1 AC 335, 349 (Lord Hoffmann) ("Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment."); cf Property Law Act 1974 (Q), s 198A (Prescriptive right of way not acquired by user).

118 See, for example, Planning Act 2016 (Q). See also Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15 (land held in fee simple by council dedicated as reserve for public purpose).

119 Of the sixteenth and seventeenth centuries (for example, the Thirty Years War).

120 R Tuck, "Rights and Pluralism," in J Tully (ed), Philosophy in an Age of Pluralism: The Philosophy of Charles Taylor in Question (CUP, 1994), 163. See also B Arneil, John Locke and America: the Defence of English Colonialism (Oxford University Press, 1996), in particular, ch 6.

121 D Armitage, "John Locke, Carolina, and the Two Treatises of Government" (2004) 32 Political Theory 602, 603; cf P Corcoran, "John Locke on the Possession of Land: Native Title vs the 'Principle' of Vacuum domicilium" APSA 2007: Australasian Political Studies Association Annual Conference, 24th-26th September 2007, Monash University: www1-www21, who contends that "Locke's property theory and the related labour theory of value have elicited scathing criticism for


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simple terms for settler colonies such as those of Australia,122 the concept of private ownership –

although perhaps influenced loosely by theories of natural and moral claims to land, but also

broadly by the prevailing nature of ownership within the private law of England and the

imperatives of imperial economic demands and general British hegemony – was received to suit

the conditions of the colonies.123 And possession – as it were, a fact of occupancy – could not be

uncoupled from that ownership inheritance. Nevertheless, such concepts had to be adapted to

the complications of developing colonies, including the regulation of squatters and the need to

dampen speculation in land. The result was that the administration of land was very much

regulated by statute and executive act.124

While undoubtedly an ownership concept, as originally received in Australia, existed or

stabilised itself in ways that gave credibility to a notion that, although ownership represented

the idea that land belonged to someone (especially as land granted in fee simple by the Crown),

it was then, and is now, rarely absolute in the realisation of its enjoyment (even if owning land

may itself be absolute). Rather, ownership in its realisation – that is, as possessed – may be the

legal expression of a balance between private and public interests and values: land, as granted

by the Crown,125 is represented by an estate in fee simple or possibly, a lease, that marks the

quantity of the possible lawful enjoyment of particular space. But, it is the very abstract idea of

lawful enjoyment (or lawfulness) that instantly exposes the activities of the owner (including a

lessee) and of non-owners to the governance of the law in all its applications. It is, then, the law

which decides what it is intended by enjoyment. This notion emerges as a significant linkage

what is supposed to be Locke's influential justification for dispossessing indigenous peoples first in the Americans and eventually in the farther reaches of British imperialism and capitalism generally"); J Weaver, The Great Land Rush and the Making of the Modern World (MQUP, 2003), 81-82 ("Around the world, colonizers who pleaded for access to territory of enhanced property rights articulated common arguments …; they suggested that, if only they could have greater control of the land, then the territory in question would flourish."). See more broadly, P McMichael, Settlers and the Agrarian Question: Capitalism in Colonial Australia (CUP, 2004), who contends that the nineteenth-century Australian colonies, initially developed along the lines of a penal colony that supported grazing pivoted to a liberal agrarian capitalistic economy. McMichael sets this change in terms of the control of land; cf P Cochrane, Colonial Ambition: Foundations of Australian Democracy (Melbourne University Press, 2006), ch 3.

122 See Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 34-36 (Brennan J).

123 See generally Attorney-General v Brown (1847) 1 Legge 312; Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 47 (Brennan J).

124 J Weaver, The Great Land Rush and the Making of the Modern World, (MQUP, 2003), 64 ("Throughout the nineteenth century, the most complex legislation in settlement colonies concerned lands. In all jurisdictions, authorities responded to administrative problems, shifting ideals, pressure groups, bribery, new environments, and evolving modes of exploitation."). See also the discussion by Gageler J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, [96]–[139].

125 Which today, may only be granted in accordance with statute. See Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520; Ward, [166]-[167]; New South Wales v Scharer (2003) 131 LGERA 208; Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232, [10]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 303 FLR 87, [24]-[25] (Leeming JA).


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point in the conceptualisation of possession and, necessarily, of ownership as was recognised in

the early 1960s by Windeyer J in Gartner v Kidman:126 "[a] shifting of emphasis has been a

characteristic of the way in which Courts administering the common law have in recent times

accommodated proprietary rights and modern social interests". The relationship of ownership

as between an owner and the enjoyment of the physical land itself may continue to give way, at

least in certain contexts (notably, high stakes ones), to a need to weigh various competing

interests and values as affecting the use and exploitation of the land with the result that

ownership's orthodox characteristics assume additional content of imposing positive

community-minded obligations on owners to recognise and even transfer their surplus

requirements for the land's enjoyment to others.

The law may, thus, end up using a relativity idea as a form of justice in circumstances where the

interests of one person (for example, of an owner) may apply oppressively or unfairly relative to

the interests of someone else (for example, a non-owner or even another owner). This general

notion may, depending on the justification and the context (generally classified as a high stakes

or low stakes context127), be equally favourable and unfavourable to owners in possession of

land. For example, possession's function as a boundary-marker for land – and as a foundation

for an action in trespass128 – goes no further than its recognising the lawfulness of enjoyment of

the land by the possessor, that lawfulness inuring in the law's conceptualisation of ownership to

give effect to its objective or argument for recognising and protecting the enjoyment of land.

However, this can force a rethinking of what the boundary is of: the land or the purpose for

which the land is used? Lawfulness is an expression of the objective of land's enjoyment and it

weighs (to the extent relevant) the respective interests of owners and non-owners in respect of

owned land. It thus regulates an owner's decision-making liberty in respect of the land.

Relative to a possessor's liberty of enjoyment, a third party entrant to the land is a trespasser if

entry is without justification: that is, it is unlawful because relatively the third party's entry

could not be justified weighed against the possessor's liberty interest. But, equally, although

occurring less often, a third party's entry may be justified if the law (being a court in an

adjudicative setting) weighs the interest or value of that entry to be more important than the

possessor's interest or value in keeping the third party out.

While the weighing of relative interests and values of persons in society is not unfamiliar to the

law of private nuisance,129 our understanding of ownership in possession may transform itself if

126 (1962) 108 CLR 12, 47. See chap 5, para 5.4.

127 See para 1.4. The term 'high stakes' is used by H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3.

128 See B Depoorter, "Fair Trespass" (2011) 111 Columbia Law Review 1090. Although see chap 6.

129 Where a nuisance (for example, noise) emanates from the defendant's land, the unreasonable or actionable interference requirement acknowledges a significant point about the societal context and scope of the law's functional conceptualisation of possessing land (of both the plaintiff and


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it is that type of relativity idea (being somewhat removed from the notion of relative rights of

possession) which underpins the lawfulness of a possessor's enjoyment of land.130 This may

have, in particular, two distinct, but related, consequences:

1) Possession's remedial protection in the form of possessory remedies are used to

recognise new rights for the enjoyment of land where that enjoyment is detached from

the concept of ownership: this may, for example, arise in the context of a relative claim

involving someone else who has an adjudged inferior claim to land as it may, for

example, give a new form of possessor standing to bring an action in trespass.

2) A right of possession may be said to exist where the possession is only for a limited

purpose in respect of land so as to leave open the possibility of other claims of enjoyment

in respect of the land: recognising a limited 'possession of a purpose' may, for example,

suggest the possessor does not have a need for the enjoyment of the land (and as such

that surplus may be enjoyed by someone else).

To consider whether these consequences are possible, and whether they represent part of a

chain of legal reasoning with respect to the concept of 'possession of land', it is necessary first to

understand possession's status and role as a functional concept in law (see chap 3). Having

done that, we can then consider how the concept may be susceptible to reshaping in the law (see

chaps 4 and 5) and be able to give rise to particular consequences (see chaps 6 and 7) before

making conclusions as to possession's modern conceptual status in law (see chap 8). First,

however, a review of the literature relevant to the research is undertaken in chap 2.

defendant); Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287, [118] ("[The requirement] involves the weighing of respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable [or unlawful]."). See N McBride, "Tort Law and Human Flourishing" (University of Cambridge Faculty of Law Research Paper No 55/2014) and chap 5.

130 However, note the cautionary word of Lord Hoffmann in Hunter v Canary Wharf [1997] AC 655, 707 as to the development of the law of nuisance away from its conceptual foundations: "Once nuisance has escaped the bounds of being a tort against land, there seems no logic in compromise limitations … requiring the plaintiff to have been residing on land as his or her home … [T]he development of the common law should be rational and coherent. It should not distort its principles and create anomalies merely as an expedient to fill a gap."

Chapter 2: Literature review Chris Boge

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2. Chapter 2: Literature review

There is an extensive body of literature on the concept of possession in real property law.

Consistent with the stated methodology in chap 1, para 1.3, the literature review in this chapter

focusses primarily on secondary material that concerns the relationships between possession

and the idea of property and the availability of possessory remedies, those matters being of

particular significance to the notion that possession, as a concept, may be undergoing a

reshaping (see chap 1, para 1.2 (Objective of this research)).

2.1 What is possession? The identity of possession and its role in real property law

Possession of an estate in land has been one of the most important concepts in land law in

England131 and Australia. Originally, possession was an important idea in English law when it

was linked to establishing ownership: acquiring title by first possession was a socially accepted

practice.132 However, this has, despite the continuing application of the concept of relativity of

title, fallen away somewhat when land is administered under a system of registered titles.133

Possession, then, as a concept may have outlived some of its functional usefulness. While its

original link to seisin is unmistakeable,134 possession's seemingly entrenched link to trespass (in

its modern form135) may be based on historical, but spurious, grounds,136 particularly when the

action in trespass is based on a legal right which a person enjoys under the law free of charge.137

However, possession retains an important moral dimension: when property is seen as a fact, or

as the right to exclude, it rests on essentially intuitive perceptions of the degree to which a

claimant successfully asserts de facto possessory control over land.138

131 F Pollock and R Wright, An Essay on Possession in the Common Law (Clarendon Press, 1888); W Holdsworth, A History of English Law (1925), vol 7.

132 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv JL & Pub Pol'y 1.

133 S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569.

134 Although it is not the case seisin is interchangeable for possession: S F C Milsom, A Natural History of the Common Law (Columbia University Press, 2003); cf S Panesar "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569.

135 Trespass quare clausum fregit. Trespass was originally a description of all wrongs (torts).

136 T Street, Foundations of Legal Liability: A Presentation of the Theory and Development of the Law (1906), ch 17, 235-236.

137 N McBride, "Rights and the Basis of Tort Law" in in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.

138 K Gray and S Gray, "The Idea of Property in Land" in S Bridge and J Dewar (eds) Land Law: Themes and Perspectives (OUP, 1998), 15-51.


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That said, attributing possession to a particular state of affairs in some cases and not others

became "simply a question of policy".139 Indeed, it has been suggested that, in Roman law,

possessio "developed into a device of legal convenience to effectuate policy differently in

different branches".140 This apparently is the experience of English and Australian real property

law in recent times.141

When Lord Hoffmann described exclusive possession de iure or de facto now or in the future as

the bedrock of English land law142 and Lord Neuberger described relativity of title as that

bedrock,143 they were reflecting the position that English law does not embrace a concept of

ownership of the physical land itself: but, they were also highlighting the importance of factual

possession for the law. One consequence is that, although a titleholder may have a right to

possess an estate in land, another person who possesses that estate as a matter of observable

fact has a title (a possessory title) that the law protects against interference. And yet, despite its

apparent significance,144 possession remains one of the more confusing concepts in English and

Australian law. From an Australian perspective, there has, generally, been little to separate the

approach to the concept taken here and to that taken in England.145 That said, some

developments in Australia have taken place in the context of peculiar statutory grants of land.

Today, the concept of possession may be undergoing a transformation that, at first blush,

appears to be inconsequential. However, the effect of this change – which has arisen because of

an apparent need to explain the concept's meaning in various factual and modern contexts –

actually is quite dramatic.146 The confines of the estate in land lend themselves to making an

obvious connection between possessory remedies and the estate's apparent aggregation of rights

that can be possessed and, therefore, protected by those remedies.147 But even there an almost

irresistible urge of the law to modernise itself has diminished the significance of the estate as the

139 A Kocourek, Jural Relations (2nd edn), ch 20.

140 R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235, 239.

141 For example, W Swadling, "Opening the Numerus Clausus" (2000) 116 LQR 354.

142 Hunter v Canary Wharf Ltd [1997] AC 655, 703. O W Holmes, The Common Law (edn, M Howe, Little Brown & Co, 1963), 183, said that possession was a "conception … only less important than contract".

143 Mexfield Housing Ltd v Berrisford [2012] 1 AC 955, [65], referring to Bruton v London & Quadrant Housing Trust [2000] 1 AC 406.

144 Even if now muted to a degree by a land registration system. See S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569 who argues that it is questionable whether in the 21st century the concept of possession has survived the significance it once occupied in the early law.

145 Although note the effect of Articles 1 and 8 of the European Convention on Human Rights as discussed in Malik v Fassenfelt [2013] EWCA Civ 798. See also S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569, 578-581.

146 For example, P Birts, "Trespass and Possession: No Loosing of the Chains" (2000) 144 Sol J 316.

147 M Wonnacott, Possession of Land (CUP, 2006), ch 1; S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv JL & Pub Pol'y 1, particularly at 17-19.


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foundation of, or necessary link to, possession.148 Real property law may have been "infiltrated

by a variant mode of reasoning – a 'rhetoric' of persuasive logic based on conventional

understandings reached by the 'interpretive community' of land lawyers"149 – resulting in the

transformation of the idea of possession to one which now perhaps asserts that it is an

amorphous concept of effective control of land, or perhaps something less, which is sufficient for

vindicating a right of enjoyment or use of land through the possessory remedies, particularly for

trespass, or that it is possible for possession to be vindicated only against certain third parties.150

2.2 The meaning of possession

It has been noted, with a great deal of force,151 that any attempt to devise a complete theory of

possession has been affected by a smothering of analysis and the use of various conceptual

terms. This, in part, has been attributed to modern writers putting less weight on the

conception of law as a systematic development of principles striving toward the highest degree

of coherence and more emphasis on law as an instrument in the service of competing masters.152

There certainly is strong debate about what possession means.153 This is not a new

phenomenon.154 In 2002, McHugh J remarked that, "few terms in law are as difficult to define

as 'possession'".155 Writing much earlier in 1888 Sir Frederick Pollock said, "The whole

terminology of the subject … is still very loose and unsettled in the books, and the reader cannot

be too strongly warned that careful attention must in every case be paid to the context."156 In

1932, Shartel said that possession can only be usefully defined with reference to the purpose in

hand and that possession may have one meaning in one connection and another meaning in

148 Mayor of London v Hall [2011] 1 WLR 504.

149 K Gray and S Gray, "The Rhetoric of Realty" in Getzler J (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths, 2003), 204, 205.

150 L Crabb, "The Property Torts?" (2003) 11 Tort L Rev 1.

151 A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476.

152 An analogous problem may have befallen tort law: N McBride, "Rights and the Basis of Tort Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.

153 B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 611. See generally E Descheemaeker (ed), The Consequences of Possession (Edinburgh University Press, 2014).

154 F Pollock and R Wright, An Essay on Possession in the Common Law (Clarendon Press, 1888); H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3.

155 Ward, [478] (McHugh J). See A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476.

156 F Pollock and R Wright, An Essay on Possession in the Common Law (Clarendon Press, 1888), cited in Moors v Burke (1919) 26 CLR 265, 268-269. See also B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 611, 611 ("Possession is and always has been a vague concept despite the fact that almost every legal theorist who wrote in the last century essayed at some time in his career to rescue this lost concept from the mystery and confusion in which it was enveloped. As we look back over the results of all these efforts we do not find ourselves one whit closer to the clear-cut notion of possession which they were seeking than we were before their work began.").


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another.157 The central problem with such a statement is that it has the tendency to encourage

generalisations and false applications of the possession concept (or the smothering analysis to

which Tay, above, refers158) and, perhaps even a modern approach (as referred to below) to the

use of possessory remedies, in particular trespass, to address certain intrusions onto land in the

absence of an estate. In this vein, commentators have contended that there is no single decisive

factor in determining what is meant by possession.159 However, this may simply be the result of

courts using various factual scenarios that (at times can loosely) concern possession in different

ways to try to reallocate losses from plaintiffs to defendants if they think that it would be

reasonable to make those defendants bear those losses. Ultimately, in this area the notion of the

plaintiff's right and its relationship with a remedy may be lost.160

Wonnacott explains that possession usually has one of three meanings:

1) it may describe a relationship between a person and an estate (a fee simple, a lease or

(possibly) a profit à prendre): the person presently using and enjoying the estate is in

possession of it; the person who has a present right to use and enjoy an estate vested in

possession161 has a right to possess it;162

2) it may simply mean, in a common or vulgar sense, occupation of the physical land itself;

or

3) it may refer to a legal fiction of constructive possession, that is, where someone is

deemed to have been using and enjoying an estate, when (in fact) that person was not.163

However, as Wonnacott – who can be described as a traditionalist in this area – also points out,

if only to demonstrate the misuse of the concept of possession, it is, despite the consistent

application of the term possession to various circumstances, an error to assume that a person

who is in occupation of land is, even if that occupation is exclusive, necessarily in possession of

an estate. Equally, a person may be in possession of an estate without physically occupying

land. Often, when possession is referred to in the sense of occupation, it is mixed with the

157 B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 611, 612.

158 See fn 151.

159 D Harris, "The Concept of Possession in English Law" (Oxford Essays in Jurisprudence, 1966), 69-106.


161 As opposed to a present right to enjoy the estate in the future, namely, a right to possession vested 'in interest'.

162 S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569, 571 ("The idea of possession as involving detention is taken by lawyers to suggest that, unlike ownership, which is essentially a de jure relationship between a person and a thing, possession is a de facto relationship between a person and a thing.").

163 M Wonnacott, Possession of Land (CUP, 2006), 1-13.


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concept of control of the land. And sometimes control of land asserts itself as possession. This

would seem to fit comfortably with some earlier views as to the content of possession.164

2.3 Possession and its historical links with other concepts

It has been said that the concept of possession has changed over time: it is associated with

ownership, seisin and title. The origins of the significance of possession are confused, as it is

evident that Roman and Germanic law has influenced its development.165 Possession cannot be

understood without considering historical roots of the law and its relationship with seisin.166

And it has been reasoned167 that the role of human rights needs to be considered when

protecting the right of property, including a possessory right.

Possession and the estate

As stated, possession has been described as a relationship with an estate in land. A fundamental

and well-known premise of English and Australian real property law is that a person may not

own or possess the physical thing that is land; rather, he or she may hold an estate, or a lesser

interest, in respect of the land and enjoy use of the land to the extent of the estate or lesser

interest.168 The titleholder to an estate has a right to possession of that estate. However,

another person can possess an estate if he or she is, as a matter of observable fact, enjoying the

rights of the estate.169 That possession, and not ownership, is fundamental to English and

Australian real property law is demonstrated by the concept of relativity of title, at least in so far

as we are concerned with the right to bring a possessory action.170 In an action for recovery of

possession – the modern form of ejectment – the claimant need only, even in respect of

registered land, have a better right to the estate (or title) than the defendant possessor.

Similarly, in an action for trespass or nuisance, a claimant need only be in possession of, or have

a right to possess, an estate. In effect, the estate became the embodiment of the general right of

control, that is, the right to exclude.171

164 A Thayer, "Possession" (1905) 18 Har L Rev 196; F Pollock and R Wright, An Essay on Possession in the Common Law (Clarendon Press, 1888).

165 F Philbrick, "Seisin and Possession as the Basis of Legal Title" (1938-1939) 24 Iowa L Rev 268.

166 S Panesar, "Adverse Possession of Land" (2002) 24 Liverpool Law Rev 238.

167 J O'Regan, "Pye v Graham – The Irish Reaction" (2007) 15 ISLR 122.

168 S Bright, "Of Estates and Interests: A Tale of Ownership and Property Rights" in S Bright and J Dewar (eds) Land Law Themes and Perspectives (OUP, 1998), 529-546.

169 M Wonnacott, Possession of Law (CUP, 2006), 3.

170 Although J Gordley J & U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293, argue that relativity of title was an invention of Oliver Wendell Holmes and Sir Frederick Pollock. At 293 ("Because Anglo-Americans think that the possessor has a title, they often take the protection the law affords him for granted.").

171 K Gray and S Gray, Elements of Land Law (5th ed, OUP), [4.1.60].


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Kevin and Susan Gray state that the complex conceptualism of the estate has seemed to render it

unnecessary for the common law to develop any comprehensive or coherent theory of dominium

in relation to land.172 While, some say possession is highly contextual, the default idea of the

estate, and possession of an estate, remain apparent. The estate offers a "standardized package

of duties of abstention" by others from interfering.173 When Callinan J said in Wilson v

Anderson174 that the "reality that in modern times exclusive possession in absolute terms has

long since ceased to exist" his Honour was referring to the scope of the right to say who could

and who could not enter land. That is, a person with a right to possession (or a person in

possession) does not necessarily have a right to exclude all others: others may have limited

entitlements to enter for specific purposes while still leaving the titleholder or possessor with an

estate that gives a general right of general only.175 But, importantly, the possessor still has

possession even if others have rights of use or occupation of the land. Accordingly, possession,

via the estate (or some other lawful general right of control) is the core organising property idea

of exclusion or control of land or perhaps as an agenda-setting idea of property.176

Of course, a system of registered title may add to the appearance that a registered fee simple

estate is, for all intents and purposes, ownership of land. The conclusiveness of the register and

the related concept of Torrens indefeasibility of title reinforce an idea that title to the estate is

good against all others.177 Nevertheless, the registered estate remains an estate: its meaning and

consequences for its holder and others often fall to be considered outside a register. To be in

possession still raises issues as to what the possessor and others can and cannot do with respect

to the land. What a system of registered title does is remove the notion that one can go behind

the registered owner to find out who has a better right to possession.178

Possession and control of land

172 K Gray and S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46.

173 T Merrill, "Property and the Right to Exclude" (1998) 77 Neb L Rev 730.

174 (2002) 213 CLR 401, [194].

175 L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275.

176 L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275. The research avoids the overly simplistic argument, then, that, merely because the law occasionally permits entry onto land by others without the possessor's permission, possession is no longer what it once was. The research concerns itself more with characterising the exclusivity of the possessor's possession, noting that the possessor may not be able to exclude all others from the land.

177 S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569, 583 ("The very objective of making land titles indefeasible has the effect of moving the concept of ownership in English law towards the absolute concept of ownership recognised in Roman law"). See M Wonnacott, Possession of Land (CUP, 2006), 48-49.

178 S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569, 583.


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Possession often is linked to the idea of general control of land and, often, physical control of

land. The link, however, is explained in different ways. The traditional approach demands that

there be an estate: the estate must confer a general right of control of access to land.179 There is,

then, a distinction between generally controlling land, or enjoying an estate, as a matter of

observable fact (factual or de facto possession), and the general right to control land which is

found in an estate, or perhaps under some other legal authority (legal possession). The right to

generally control land may be another way of referring to a right to exclude: some theorists

opine that property is only the right to exclude.180

Possession of an estate avails the possessor of possessory remedies. The estate, which is

corporeal, is said be in rem because it is enforceable against third parties (by the possessory

remedies).181 As the possessory remedy of trespass, in essence, vindicates (or perhaps only

enforces) the right to exclude all others (or, at least, unlawful entrants), the notion that

possession is linked to control of land becomes quite apparent.182 While the rights of the estate

may, technically, precede the remedies, from a realist perspective, the substance of the rights,

and of the estate, exist only with the aid of the remedies and the law of obligations.183

One commentator184 is of the view that dividing "possession" (as a juridical concept) as physical

control on the one hand and the right to have physical control on the other was unnecessary. If

a person actually holds a thing, he or she either has a right to continue holding it or he or she

has no right; if he or she is not holding a thing, he or she either has or has not a right to hold it.

In all cases what matters is the right to have physical control. Thus, the right, and necessarily

any correlative duties of third parties not to interfere, are grounded in physical control.185

On the other hand,186 it has been said physical control simply is the starting point of possession.

It is a fact which ante-dates the law and it exists regardless of the law.187 Merrill and Smith, in

asserting that property is in rem, can see a moral foundation for property; the law merely

179 M Wonnacott, Possession of Land (CUP, 2006), 1; generally also K Gray and S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46.

180 T Merrill & H Smith, "The Morality of Property" (2007) 48 Wm & Mary L Rev 1849; T Merrill, "Property and the Right to Exclude" (1998) 77 Neb L Rev 730.

181 F Philbrick, "Seisin and Possession as the Basis of Legal Title" (1938-1939) 24 Iowa L Rev 268.

182 T Street, Foundations of Legal Liability: A Presentation of the Theory and Development of the Law (1906), ch 17.

183 C Sappideen and P Vines, Fleming's The Law of Torts (10th edn, Thomson Reuters), ch 3; D Mendelson, The New Law of Torts (2nd edn, Oxford), ch 5; K Llewellyn, The Bramble Bush: On Our Law and Its Study (1996), 83-84 ("[A] right is best measured by effects in life. Absence of remedy is absence of right. Defect of remedy is defect of right.").

184 A Kocourek, Jural Relations (2nd edn), ch 20.

185 A Thayer, "Possession and Ownership" (1907) 23 LQR 183.

186 R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235.

187 Cf J Bentham, "The Theory of Legislation" (Oceana Publications Inc, 1975) (1690).


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protects a claim to property. MacPherson holds that "property is not thought to be a right

because it is an enforceable claim; it is an enforceable claim because it is thought to be a human

right".188 And Panesar suggests that the "concept of possession exists before legal society and is

therefore independent of, and prior to, the law".189

The significance of factual possession is that it occurs regardless of the law: the law merely gives

it a legal signification once it is established.190 While some question the consequences of the

possessory title borne out of factual possession191 – ostensibly because those consequences are

policy decisions of the law – factual possession is significant as it reflects a moral dimension of

human relationships with land.192

In some respects, the law's struggle with the relationship between de facto possession and legal

possession is not a new phenomenon. Dias reasoned in respect of Roman law:

As long as possession meant physical control, the position was simple. The difficulty arose owing to the endeavours of the law to keep pace with the increasingly complex demands of everyday situations. It became necessary for various reasons to attribute to persons, who were not actually holding things, some or all the rights, powers and advantages normally attributed to persons who do not actually hold things, especially the protection of the interdicts. This seems to have occurred chiefly in cases where a person had been holding a thing and was temporarily parted from it, but the reasons why it was thought fit to attribute to such a person the advantages in law as if her was still holding it differed in different cases. The sphere of legal activity was widening: instead of recognising only the interests of person presently holding property, it now acknowledged similar interests in persons not actually doing so. At this stage technicality came into play. Tradition had fixed possessio as the juridical basis of these advantages. Whereas formerly they had attached to a man because he had physical control (synonymous with possessio), now in order to provide similar advantages to a man not in control possessio had to be ascribed to him without the need for physical control. It is scarcely surprising that reasoning then began to take the form that whenever a man has these advantages in law, it must be because he has possessio.193

As Dias suggests, while physical control (factual possession) gave its holder certain legal

advantages (as a possessor in law), including certain remedies, giving persons not in factual

possession those same advantages led to the conclusion that those persons had factual

possession. It is perhaps, then, not difficult to understand why factual occupation of land is

sometimes equated with possession194 or, that in the alternative, courts have adopted the view

that a trespass remedy ought to be available to enforce a right of occupation (as has occurred in

188 C MacPherson, Property: Mainstream and Critical Positions (Oxford, 1977), 11.


190 R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235; S Douglas, "Is Possession Factual or Legal?" in E Descheemaeker (ed), The Consequences of Possession (Edinburgh University Press, 2014), ch 3.

191 J Gordley and U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293.

192 C Rose, "Possession as the Origin of Property" (1985) 52 U Chi L Rev 73.

193 R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235, 238.



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some English authorities). That is, Dias rightly raises an issue that Lightwood alludes to in his

treatise on possession. Lightwood said that mere possession as fact:

… becomes the source of a right known as the right of possession (ius possessionis). The exact nature of this right depends on the remedies granted for violations of it, and can only be stated after examination of those remedies.195

Factual possession only had particular legal consequences – as a possessory title196 or, possibly

as legal possession – because of what factual possession was: the law essentially respected

factual possession. Those particular legal consequences – which were essentially reflected in

discrete legal remedies – thus vindicated, rather than enforced, a particular relationship with

land.197

Pollock and Wright defined possession in fact as the fact of control. He said possession in law

was the "fact of control coupled with a legal claim and the right to exercise it in one's own name

against the world at large, not as against all men without exception. We say as against the world

at large, not as against all men without exception. For a perfectly exclusive right to the control

of anything can belong only to the owner …"198 Therefore, possession is a relative ownership as

it is ownership against everyone but the true owner. Pollock and Wright regarded it as a "kind

of title" that "may have all or most of the advantages of ownership against every one but the true

owner, in other words, it may confer a relatively good title". Or, "we treat the actual possessor

not only as legal possessor but as owner, as against every one who cannot show a better right …"

It followed that a prior right must be the better right; possession conferred "a right in the nature

of property which is valid against every one who cannot show a prior and better right". And,

"every possession must create a title which, as against all subsequent intruders, has all the

incidents and advantages of a true title".

However, Thayer disconnected the idea of factual possession from legal possession (or the

consequences of factual possession). This may allow legal possession to develop, or, in the least,

the possessory remedies to be applied in aid of a right, without being tied to a notion of general

control. In this way, the remedies seemingly enforce a right: they do not vindicate property (at

least when seen in an exclusionary sense).

I have the right of possession, I say, because I possess, and while I possess. When I cease to possess I cease to have the right. I have possession of a thing because I have taken it. Taking makes me possess. Therefore the rule that I have the right of possession because I possess, involves another rule, the rule that taking gives the right of possession. Getting the right of possession depends only on my having taken the thing, although the continuance of the right of possession, as I have shown, without reference to possession. I have the right of

195 J Lightwood, A Treatise on Possession of Land (1894), 1.

196 Cf J Gordley and U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293.

197 See generally N McBride, "Rights and the Basis of Tort Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.

198 F Pollock and R Wright, An Essay on Possession in the Common Law (Clarendon Press, 1888).


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possession when I have [a] positive right to deal with the res as against everybody. Therefore we can consider the idea that taking gives the right of possession before taking up the idea that possession gives the right of possession ...

Acceptance of the idea that taking gives the right of possession has resulted in a habit of conformity to the idea, and this habit has created a natural disposition, a 'second nature', which serves to protect A's enjoyment. A's taking therefore not only creates a certain expectation of the continuance of his will to deal with the thing without molestation, but also a reasonable expectation that his dealings with the thing will not be hindered. Therefore after A has taken the res, the situation exhibits a probability of recurrent unhindered dealings on the part of A, which leads us to say he is dealing with it to the exclusion of everybody else.199

The general right of control

A right to control access to land as against the whole world is a general right of control of the

land. Such control primarily is about the ability to say, or perhaps assert, that others (who do

not have a right or liberty to access the land) cannot access the land. This accords with the lay

person view that possession implies some form of control or detention of a thing.200 It also

aligns with the view that a right to exclude is property, such a right also necessarily giving its

holder a right to use or apply the land as he or she sees fit.201 As a bare statement, if a right to

control access to land is not exercisable against the whole world, there cannot be possession of

anything. This is because possession must lie with a person (the possessor) who has control

over the lawfulness or otherwise of entry or interference by all others who cannot rely on some

right of entry or interference, including the ability to take action against such persons.202 But,

any approach which says that possession is, in substance, the possessory remedies may

inappropriately ignore possession's link to the estate as it focuses entirely on those remedies

without giving sufficient weight to the structural attributes characteristically associated with

ownership (or the estate).203 On the other hand, taken to its logical conclusion, this may assume

that ownership or title to an estate is the same as, or differs little from, a possessory title found

in factual possession (that is, the enjoyment of the estate).204 That is, the possessory remedies

may unwittingly and unnecessarily be linked to an ownership idea that reflects a particular

moral relationship with land: a type of inviolable ownership.205

199 A Thayer, "Possession and Ownership" (1907) 23 LQR 183, 181, 183.


201 T Merrill and H Smith, "The Morality of Property" (2007) 48 Wm & Mary L Rev 1849.

202 M Wonnacott, Possession of Land (CUP, 2006).

203 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv JL & Pub Pol'y 1, 14.

204 J Gordley and U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293; cf JA Pye.



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2.4 Factual possession and the possessory title: their definition and significance

The characteristic method of defining de facto possession has been to state certain essential

constituent elements thereof.206 However, as Shartel points out, it is a false assumption that it is

possible to discover certain universal and necessary elements of de facto possession and,

therefore, start with the assumption that it is possible to state these essential factual elements in

the form of a typical or necessary act.207 While this act is said to have two sides, namely, the

mental and the physical, it is often thought of as being a statement of general control or perhaps

detention. Kocourek says that the nature of detention of a thing, including land, involves: (1)

the human being; (2) a material thing or space which may be used by physical acting; (3) with

the requisite power for the act; (4) by repeated acts; (5) with contact, or with such

approximation of contact as to make the act immediately possible; and (6) without interference

of others to prevent the act of use.

Consistent with Shartel's view, it has been contended that there is no single decisive factor in

determining possession or how factual possession becomes, if at all, legal possession.208 This,

like the idea of property, perhaps influences the fluidity of the concept itself and encourages its,

and the possessory remedies', adaptation to various holdings of interests or rights in land. In

other words, despite apparent clear statements by writers such as Wonnacott209 as to the

meaning of possession, if there is an accepted imprecision in the law, it is difficult to argue

against a proposition that possession is, or more particularly, the possessory remedies are,

available to vindicate or enforce rights of occupation and lesser rights of control in the property

continuum.210 Perhaps as an example, at a base level, case authorities are sometimes criticised

for not explaining with precision the point at which a trespasser becomes a possessor: the point

is significant because, as mentioned, the possessor (even if unlawful) enjoys rights in respect of

land that the trespasser does not.211 In other words, the possessor must reach a particular

threshold of 'control' that the trespasser does not have before the law protects his or her rights

and not the trespasser: the possessor acquires rights and third parties have correlative duties;

the trespasser acquires no rights. Yet, more recent developments, particularly in England,

206 B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 611. "[P]ossession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world.": Moors v Burke (1919) 26 CLR 265, 271.

207 J A Pye, [40], [41].

208 D Harris, "The Concept of Possession in English Law" (Oxford Essays in Jurisprudence), 69-106.

209 M Wonnacott, Possession of Land (CUP, 2006), 1-13.


211 T Martin, "Possession as a Root of Title" (1912-1913) 61 U Pa L Rev 647.


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suggest the title-less lawful occupant may, more or less, be the equivalent of the possessor

(whether lawful or not) and may bring an action in trespass.212

While title and ownership are different from possession, it is almost impossible to understand

the modern law of title and ownership without understanding the nature and significance of

possession. As explained by Panesar:

It is frequently uncertain to whom the actual control of a thing is to be attributed, and, when this question is settled, the law may credit the advantages of possession to some person other than the apparent possessor. Or it may credit these advantages to a particular person, although the possession is disputed or vacant. Hence arises the distinction between actual and legal possession. Actual possession denotes the state of fact; but the person to whom are credited the advantages of possession has the legal possession, whether he is the actual possessor or not ... [Also] ordinarily, actual and legal possession coincide. An occupying tenant of a house has the actual possession of the house, and can maintain trespass against an intruder; in other words, he has the legal possession as well. But if the occupier is a servant of the owner, he has only the actual possession; the legal possession is in his master, in whose name an action of trespass must be brought. If two men are present on a field, each claiming the possession, until one has prevailed the actual possession is undecided; but if either of them is entitled to the possession, the legal possession follows the title.213

Nevertheless, as suggested, some recent English authorities seemingly lessen the requirement

that there be a title, including where borne out of factual possession: a possessory remedy may

be available to vindicate or enforce the rights of a title-less occupant.214 While the necessity for a

title may perhaps be the result of a false belief that a right may only be enforceable against the

world (that is, as a right in rem) if the holder has a proprietary title in land,215 again, possession

and relativity of title were bedrocks of English law.

Anglo-American law (and indeed European continental law) certainly equates title or ownership

with a right to possess: indeed, as Panesar makes clear, a right to possession is an incident of

title.216 However, it is because Anglo-Americans treat the possessor as having a title (a

possessory title) that they take the protection the law affords the possessor for granted.

According to Gordley and Mattei, it was Oliver Wendell Holmes and Sir Frederick Pollock who

invented the notion that, if possession is worth protecting, it must be a relative title that is good

against everyone except the owner.217 This – albeit that it enjoys an entrenched status in English

and Australian law (even if its significance has diminished somewhat by land registration

212 P Birts, "Trespass and Possession: No Loosing of the Chains" (2000) 144 Sol J 316.

213 S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569. Also, Encyclopaedia of the Laws of England (2nd ed, vol xi, p 319), cited by Rich J in Hill v O'Brien (1938) 61 CLR 96 at 107-108. Actual possession means possession in fact, as distinguished from possession in law: Murray v Thorniley (1846) 2 CB 217.




217 J Gordley and U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293. See also generally P Butt, "Possessory Title" (2000) 74 ALJ 733.


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systems) – had unintended consequences. The common law (and continental law) has accorded

the possessor a right like that of an owner: however, it cannot be ownership as the possessory

title necessarily is more fragile.218

If possessory remedies are to be available to enforce rights of effective control,219 or perhaps

lesser rights of control, of land, is there any utility in describing the nature of a title which is

held by a factual possessor? Indeed, if the apparent obstacle of title (with its ownership or

organising connotations) is taken away, it may become easier to consider what factual

possession (whatever that may constitute) is said to create in terms of protectable rights: that is,

the focus of the law is on the definition, nature and scope of coercive rights in respect of a

particular enjoyment of land. And in doing so, there will necessarily be policy reasons why

lesser rights of control of land ought also be capable of being protected by the traditional

possessory remedies. On one hand, this is consistent with a contextual or fluid possession view:

that is, possession is not a concept that is solely confined, through estates, by a general control

of land idea nor is it a threshold requirement for trespass.220 Equally, on the other hand, it

raises the obvious query whether possession has itself became an organising idea that has

outlived its usefulness or that possession unnecessarily constrains the proper development of

coercive rights in respect of the enjoyment of land. However, as Tay alludes, while possession

need not be saved at any cost, it is important to ensure that possession does not become a loose,

throwaway concept that is said to be capable of being applied to all manner of rights of

enjoyment of land.221 There must be a purpose to its application to a particular enjoyment222 –

that is, as perhaps encompassing a coercive right it gives its holder a remedy (something that

may be said to be missing from Australian authorities which refer to a statutory lessee's

possession223).

Gordley and Mattei224 were of the view that the creation of a possessory title went beyond

anything an English court would be likely to accept as, on Pollock's view, a possessor would have

218 The titleholder retains his or her right to possession, until statute-barred. Y Emerich, "Why Protect Possession?" in E Descheemaeker (ed), The Consequences of Possession (Edinburgh University Press, 2014), ch 2.

219 L Crabb, "The Property Torts?" (2003) 11 Tort L Rev 1; F Savigny, Das Recht des Besitzes (1803).

220 D Harris, "The Concept of Possession in English Law" (Oxford Essays in Jurisprudence), 69-106.


222 B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 612.

223 In finding that the statutory lessee does not have an estate in land, these authorities nevertheless proceed to state that the lessee has a possession to the extent of his or her rights. In this regard, there is an analogy with some English authorities. In a sense, although perhaps not deliberate, the Australian authorities have excluded the 'proprietary' requirement for a right to be in rem: however, in saying that there nevertheless is a possessory right, they proceed to state that such a right is exercisable against some but not others.

224 J Gordley and U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293.


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a title which, like an owner's, would not be extinguished when he or she abandoned the

property. Anyone who had been in possession, even for a day, could, until the statute of

limitation ran, claim the property from any current possessor who could not trace title flawlessly

from a prior possessor. According to Gordley and Mattei, there is no English case which has

allowed a prior possessor, on the strength of his prior possession alone, to recover against a later

possessor who neither dispossessed him nor claimed the land through someone who did.

Indeed, if the prior possessor has a title good against all the world except someone who can

show an earlier and hence a better right, then the prior possessor's title should not disappear if

he stops using the land himself. He should have the same rights as an owner. In Gordley and

Mattei's view, it would be more descriptive of the common law to say that a possessor has a right

to possession but one that is not as extensive as the right of the owner: in particular, it is much

more easily lost (that is, by no longer being in possession).225

Thus, a right to possession is not ownership.226 Even describing a right of possession held by a

factual possessor as a (type of) 'title' may be misleading. Ownership may be said to give an

owner agenda-setting rights that a possessor does not have, particularly as the possessor is

liable to be removed by the owner (unless statute-barred).227 Also, an owner does not lose

ownership by no longer exercising a right of possession (unless statute-barred); a factual

possessor does. That said, if de facto possession today may only be of an estate,228 then, it

becomes difficult to distinguish the possessor's 'title' or his or her enjoyment of the estate from

that of the registered owner's 'title', except to the extent of how the respective titles may end.

Indeed, while a possessor need not become the owner to enjoy a possessory title, the threshold

requirement of that title, namely, enjoying the fruits of the estate as a matter of observable fact

and the notion of relativity of title, effectively put the possessor in the shoes of the owner while

the possessory title continues.229

2.5 The policy of possession

As already noted, it has been suggested that, in Roman law, possessio "developed into a device

of legal convenience to effectuate policy differently in different branches".230 The same may be

225 This is consistent with J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 where it was said that an adverse possessor need not become the owner.

226 That is, when the right is borne purely out of factual possession. A right to possession is, however, an incident of ownership.


228 M Wonnacott, Possession of Land (CUP, 2006).

229 A Thayer, "Possession and Ownership" (1907) 23 LQR 181.

230 R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235, 239; A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476.


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true of the English and Australian experience, particularly in the light of recent developments.

Some evidence of this may be:

Ejectment as a possessory, not proprietary, remedy

1) Ejectment (and ultimately the action for recovery of possession), as a type of remedy,

became the prime means of protecting possession as a possessory title and eventually

title itself.231 As Mattei points out, the common law did not develop proprietary remedies

because, one, "possession is to be considered a property right" and, two, "possessory

remedies are perfectly functional substitutes for proprietary remedies".232

De facto possession and legal possession have different foundations

2) Necessarily, this led to a need to define what was meant by possession, or more

particularly, when a person was in or taken to be in possession. Here the law sometimes

confused the consequences of de facto possession and legal possession. "The conflict

[between whether possession is a right or fact] is not as obvious as it has sometimes been

presented".233 However, Salmond makes a telling point:234 although not limiting himself

to possession of land, in making the distinction between possession in fact and

possession at law, he says that not everything which is recognised as possession by the

law need be such in truth and in fact. There is, then, a certain artificiality about

possession as a legal concept.

3) Possession may be a matter of fact or fiction (for example, the idea that a person with a

right to possession is, subject to contrary evidence, taken to be in possession). Thus, a

possessor who is not the titleholder to an estate has, as a consequence of his or her

factual possession, a right to vindicate, or protect, that possession.235 In the absence of

contrary evidence, a titleholder to an estate will be deemed to be in possession of the

estate.236

231 Although today, the action for recovery of possession (the modern form of ejectment) can probably also be called a 'title' remedy. The old forms of writ which were about seisin have long disappeared.

232 U Mattei, Basic Principles of Property Law: A Comparative Legal and Economic Introduction (Greenwood Press, 2000), 172; P Walter & J Harris, Claims to the Possession of Land: The Law and Practice (looseleaf service, Tolley); J Hill, "The Proprietary Character of Possession" in E Cooke (ed) Modern Studies in Property (Hart Publishing, 2001), vol 1, 25.

233 Y Emerich, "Why Protect Possession?" in E Descheemaeker (ed), The Consequences of Possession(Edinburgh University Press, 2014), ch 2, 42.

234 J Salmond, Jurisprudence (7th edn, 1924), 293-308.

235 Any such possession necessarily is 'adverse' to the titleholder. A titleholder in possession obviously can protect his or her possession. The titleholder can also recover possession if not in possession (unless statute-barred).

236 M Wonnacott, Possession of Land (CUP, 2006), ch 1.


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4) As a result, possession became a matter of law because, (a) factual possession gave rise to

a title (a possessory title) that could be vindicated or enforced (it is the cause of legal

possession), and (b) possession may be held as a fiction.

Legal possession is a legal technicality

5) However, although factual possession gave a title – a legal possession – that is a legal

technicality and also a moral fiction ("I possess and therefore have the right of

possession" because everybody else says I am dealing with the land, even if I am not, to

the exclusion of all others237). Once a person was in possession, his or her continuing to

have possession depended on a legal right.238

6) Because de facto possession became, in essence, a matter of law, it was susceptible to

manipulation by courts. As Dias records (albeit in relation to Roman law), the

"extension of possessio to rights … makes it at once a matter of law, for it becomes a pure

technicality to enable the bringing of certain remedies".239 This, then, has the potential

to give rise to possession by analogy (something that the Romans struggled with240):

perhaps even, a possessio iuris241 or the enforcement of a legal right to act on or in

respect of a thing (including an intangible thing), as opposed to a legal right borne out of

a physical control of the thing. In this, it is not clear where, then, the legal right to act on

the thing comes from.

Legal possession's susceptibility to manipulation by other branches of the law

7) Possession is the basis for the property torts, namely, trespass and nuisance. Possession

is linked, then, and as a matter of legal history, to another area of law, namely, the law of

liability, and even once had criminal connotations.242 The foundation of the action in

237 A Thayer, "Possession and Ownership" (1907) 23 LQR 181, 184.

238 Cf J Gordley J & U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293 who explain that possession is not ownership. "The distinction between property and possession is the distinction between the legal right to act upon a thing and the physical power to do so": H Maine, Ancient Law(3rd ed), 281; A Thayer, "Possession and Ownership" (1907) 23 LQR 175, 188.

239 R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235, 246-247. Roman law distinguished between corporeal possession, that is, possessio coporis (possession of a material thing) and incorporeal possession, that is, possession iuris, (possession of a right). The Germans also distinguish corporeal possession, Sachenbesitz, and incorporeal possession, Rechtsbesitz.

240 J Salmond, Jurisprudence (7th edn, 1924), §95 ("The possession of a right of way is generically identical with the possession of the land itself, though specifically different from it").

241 "Possessing a right is a fact of legal significance, or what the Germans call a "juridical" or "juristic" fact, because of the moral and consequent legal effect of long submission to will": A Thayer, "Possession" (1905) 18 Har L Rev 196.

242 T Street, Foundations of Legal Liability: A Presentation of the Theory and Development of the Law(1906), ch 17. At 235: "The action of trespass was in its origin a criminal action, and hence it would not lie for an act which did not constitute a breach of the peace or manifestly tend to a breach of the peace. This was the very ground on which the King's Bench assumed jurisdiction over the wrong. In the light of this idea it is easy to see how the law arrived at the proposition that only those acts which


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trespass in the concept of a breach of the king's peace is well-established but necessarily

it became technical as an action in trespass came to be thought of as only vindicating

(not merely enforcing) immediate possession.243

8) The property torts have their own policy dimensions.244 Possession, as a matter of

policy, has its own property-title dimension.245 In other words, possession is used to

serve different purposes. Yet, both trespass and nuisance apparently rest on the notion

of general control of land (although that perhaps can be seen more in a property-title

sense). As the property torts are liability based wrongs, they are open to development

and alteration over time:246 for example, by only insisting that a person has effective

control of land, or something less, before being able to bring an action in trespass or

nuisance or because of notions of what constitutes a fair trespass to land.247 This may

have the effect of changing how possession is defined as the changing property torts may

affect how agenda-relationships in land are perceived248 and even how the law

determines whether a particular right is in rem or in personam.249 Accordingly, another

branch of the law may influence the fundamentally property notion of possession or

possession may conveniently be used in a way thought appropriate to support another

branch. In this regard, tort law struggles to know what it is about (that is, there is

conflict between a loss=compensation approach and a right for which there may be a

remedy approach).250 Possession, on the other hand, may have had its foundation in

exclusivity: it existed outside the law but it is now reflected in the estate. It is for this

reason possession is said to be a relationship with an estate251 and that de facto

involve a violation of possessory right are trespasses"; G Deiser, "The Development of Principle in Trespass" (1917) 27 Yale LJ 220, 221.

243 For this reason, a lessee, not the lessor, may bring an action in trespass against an intruder.

244 L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275, argues that property-related tort law protects an owner's exercise of authority by obliging others to act in a way that is consistent with the owner's actual or imputed agenda.

245 J Hill, "The Proprietary Character of Possession" in E Cooke (ed) Modern Studies in Property Vol 1(Hart Publishing, 2001), 25; S Douglas, "Is Possession Factual or Legal?" in E Descheemaeker (ed), The Consequences of Possession (Edinburgh University Press, 2014), ch 3.

246 L Crabb, "The Property Torts?" (2003) 11 Tort L Rev 1.

247 B Depoorter, "Fair Trespass" (2011) 111 Columbia Law Review 1090.

248 See L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275.

249 N McBride, "Rights and the Basis of Tort Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.

250 N McBride, "Rights and the Basis of Tort Law" in in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12. See also D Nolan and A Robertson, "Rights and Private Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 1; C Wellman, An Approach to Rights: Studies in the Philosophy of Law and Morals (Springer, 2013).


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possession is important and cannot be manipulated in a legal context, including by forms

of action.252

A legal possession not resting in factual possession may not respect possession's moral foundation as property

9) The changing nature of, and treatment of, interests and rights in land in property law

generally (including under statute) and how those interests and rights may be protected

or enforced, has led to a blurring of possession's traditional "bedrock" role in English and

Australian law.253

10) Unmistakeably, possession is consistent with the theory that property is the right to

exclude.254 If possession as a legal principle is altered it may end up being divorced from

the notion of 'property', and more importantly, the inviolability of property. Ultimately,

the policy of possession may be under attack and may, when settling disputes between

claimants (including trespassers) to land, ultimately lose out to ad hoc rules of rights and

remedies loosely based at times in the adage, ubi ius, ibi remedium.255 In this regard,

Merrill and Smith contend that the end result is that through governance strategies "the

simply robust morality supporting exclusion gives way to a more pragmatic situational

morality".256 Such developments are reflected, in different ways, in recent English and

Australian authorities which, when resolving conflicts between claims to land, have

disconnected possession from its foundation centred on the corporeal. In adopting (at

least in English authorities) a possession by analogy approach courts have not felt

constrained by any inherent limitations of ownership and possession in its orthodox

sense. Rather, non-possessory rights become baseline rights that simply are viewed as

superior to the claims of others257 or, others incur duties not to interfere with such rights,

thus creating ad hoc rights in rem.258

251 M Wonnacott, Possession of Land (CUP, 2006), ch 1; J Hill, "The Proprietary Character of Possession" in E Cooke (ed) Modern Studies in Property (Hart Publishing, 2001), vol 1, p 25; R Hickey, "Possession as a Source of Property at Common Law" in E Descheemaeker (ed), The Consequences of Possession (Edinburgh University Press, 2014), ch 4.

252 A Beever, "The Form of Liability in the Torts of Trespass" (2011) 40 Common Law World Review378.

253 The point here is not to say that possession's traditional role may not, as a consequence of other developments in the law, have become diminished. Rather, it is to query the direction of the law.

254 See T Merrill and H Smith, "The Morality of Property" (2007) 45 Wm and Mary L Rev 1849; T Merrill, "Property and the Right to Exclude" (1998) 77 Neb L Rev 730.

255 See generally N McBride, "Rights and the Basis of Tort Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.

256 T Merrill and H Smith, "The Morality of Property" (2007) 45 Wm and Mary L Rev 1849, 1852.

257 J Gordley J & U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293.



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Kevin and Susan Gray argue that the arbitrary exclusion rule of exclusion of strangers by the

owner of private land, rooted historically in the medieval action for trespass quare clausum

fregit, has doubtless served a noble purpose in times past: it has its foundation in the notion of a

breach of the king's peace. They state that the complex conceptualism of the estate in land has

seemed to render it unnecessary for the common law to develop any comprehensive or coherent

theory of dominium in relation to land. However, this default has inevitably disabled the

common law from arriving at any more subtle gradation of ownership.259 Others have made

more pointed statements in respect of particular rights in land.260

In essence, the role of possession may have, at least in its orthodox, form altered in English and

Australian real property law as a consequence of other developments (for example, the

introduction of land registration systems). However, it does not follow, as a matter of

development of legal principle, that the concept necessarily becomes adaptable for other

purposes (for example, by analogy to support a non-possessory right by a remedy that vindicates

possession).261

The policy of vindicating possession

Nineteenth century thought relating to possession was, in part, dominated by the philosophical

debate between Rudolf von Ihering and Friedrich Carl von Savigny. Ihering was of the view that

possession was protected because it indirectly protected ownership whereas Savigny thought

that possession was protected in order to secure public order (the absence of possessory

protection might encourage third parties to disrupt the possessor's possession). Both theories

may have merit.262

Posner says there is a distinction between explaining why there are possessory rights as

opposed to their contours.263 The legal historian, F W Maitland once said:

When … we see the possessor protected against one who admittedly is the owner, or against one who is ready and willing to prove his ownership, then we know for certain that possession itself is protected by law, and protected for its own sake. By this phrase, 'for its own sake', I mean not to stir any question about the ultimate reason for protecting possession, but only to point out that when we see an owner succumbing to a possessor, forced to deliver up what is his own, or forced to pay damages for having touched what is his own, then there can be no doubt that the law really does protect possession, and does not merely regard it as affording evidence of title, or as giving a title good against those who have

259 K Gray and S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46.

260 "Interference by Third Parties with the Privilege of a Licensee" (1924) 33 Yale LJ 642.

261 See generally, S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569.


263 R Posner, "Savigny, Holmes, and The Law and Economics of Possession" (2000) 86 Va L Rev 535.


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no better. Thus it becomes an important inquiry as regards any system of law, whether and how the rights of owners are limited by the rights of possessors.264

Although Maitland chose not to address the ultimate reason for protecting possession, he

nevertheless did consider it a fundamental inquiry of the legal system to explain why, as a

matter of policy,265 the fact of possession, as vindicated through possessory remedies, should

have a significant effect on the rights of those who have, and those who do not have, title to land.

Posner adopts the view that economics illuminates the law of possession by filling in the picture

as economics encourages the efficient use of a resource.266 Accordingly, there are significant

policy reasons associated with the recognition of the fact of a particular type of enjoyment of

land (for example, as general control) as being, in law, a particular type of right, including a

'title', that is subject to a correlative duty in a third party not to interfere with that right. This is,

in truth, an application of a property idea as it aligns the recognition of particular rights and

duties as achieving a desirable social and economic outcome.267

Possession as a conversation that expresses natural will

The fact of possession, or the legal right to possession, is, and remains, a conversation that a

possessor has with third parties. However, where the legal right to possession is an incident of a

registered title, the conversation may be had in a different way.268

The conversation, whether factual or legal, is for legal purposes, one of rights of the possessor

and correlative duties of third parties. However, while this conversation apparently only needs

to be confined to a consideration of when a person may absolutely exclude others from land, the

idea that any lesser type of control of land is a conversation with third parties would fit with any

type of (developed) coercive right.269

Rose270 posits that, for possession to be the origin of, and to be maintained as, property, the

'possessor' must provide notice to the world. That notice, or conversation, is a mix of two

theories, namely, one, that there must be notice to the world through a clear act (a weak form of

consent theory), and, two, property is a reward for useful labour. This fits the idea that

property, as a construct, is the product of a broader public conversation that the law recognises

264 F W Maitland, "The Beatitude of Seisin" (1888) 4 LQR 24, 24-25.

265 See Plenty v Dillon (1991) 171 CLR 635, 647 (Gaudron and McHugh JJ).

266 R Posner, "Savigny, Holmes, and The Law and Economics of Possession" (2000) 86 VA L Rev 535; T Merrill & H Smith, "What Happened to Property in Law and Economics?" (2001) 111 Yale LJ 357.


268 That is, the registered owner need not show he or she is in actual possession. See S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569; cf A Thayer, "Possession and Ownership" (1907) 23 LQR 183.


270 C Rose, "Possession as the Origin of Property" (1985) 52 U Chi L Rev 73.


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through the rewarding of rights and the imposition of obligations.271 According to the common

law, possession, then, is a statement, and is linked to the notion, of intention. Further, Rose

adopts the view that the law of first possession – the 'traditional' application of 'possession' –

reflects an attitude that human beings are outsiders to nature and that the common law

condones the taking, or transformation, of a thing, including land, into one's possession because

this articulates a specific conversation within a structure of symbols approved and understood

by commercial people. Others reluctantly support this view.272 Reluctance is, in part, based on

the fact that the rule's application must bind non-consenting individuals. However, this

highlights a significant point: the concept of first possession has been overtaken by property

systems that recognise rights in land based on entries in registers, and partly because the

concept does not necessarily promote the efficient use of land.273 It has been said that

possession is a word that deals with a connection between a person and a thing which, by law,

makes it wrong to deal with that thing. The law came to make a distinction between things

actually part of the person, things in law part of the person, and things in law part of the person

said to be possessed by the person. It has been said that possession becomes a moral fiction.274

But, as alluded to, the idea of possession is perhaps no longer tied to fact and has become a

concept of technicality and abstraction. It is, then, open to abuse and perhaps perverse

development.275 It has been observed in other jurisdictions276 that courts have become more,

rather than less, confusing in their approaches to problems of possession. Taking the notion of

adverse possession as an example, inconsistencies appear to have arisen through insufficient

attention to the historical foundations of the doctrine of possessory estates and the manner in

which limitation statues are intended to affect that doctrine.277

271 K Gray & S Gray, "The Idea of Property in Land", in S Bridge & J Dewar (eds) Land Law: Themes and Perspectives (OUP, 1998), 15-51.

272 For example, R Epstein, "Possession as the Root of Title" (1978-1979) 13 GA L Rev 1221; R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235, 237.


274 A Thayer, "Adverse Possession" (1914) 13 J Soc Comp Legis 572; see also S Panesar, "Adverse Possession of Land" (2002) 24 Liverpool L Rev 238; O Radley-Gardner, "Civilized Squatting" (2005) Oxford J Legal Stud 727; J Stake, "The Uneasy Case for Adverse Possession" (2001) 89 Geo LJ 2419; H Wade, "Landlord, Tenant and Squatter" (1962) 78 LQR 541; R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235.

275 R Dias and G Hughes, Jurisprudence (Butterworths, 2nd edn, 1964), 308.

276 B Bucknall, "Two Roads Diverged: Recent Decisions on Possessory Title" (1984) 22 Osgoode Hall LJ375; B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 612.

277 J O'Regan, "Pye v Graham—The Irish Reaction" (2007) 15 ISLR 122.


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2.6 A new or broader possession and the idea of property

When Oliver Wendell Holmes wrote about possession in the 1880s, he did so as part of a wider

commentary on common law method.278 The modernisation of the common law was part of that

method. However, Holmes insisted that core principles such as possession needed to maintain

their internal consistency.279 Others have argued that possession has a functional and relative

nature which can be used by courts to do justice as called for in the circumstances.280 Salmond281

(although not limiting himself to possession of land), in making the distinction between

possession in fact and possession at law, says that the law may be moved to exclude from the

limits of the concept facts which rightly fall within them. According to Salmond, there are,

however, not two ideas of possession, a legal and a natural. There is only one idea, to which the

actual rules of law do more or less imperfectly conform.

The future of possession, is, to some degree, intertwined with the future of the concept of

property. To view property on a thing-land level lends itself to being related to the idea that

possession is a relationship with the corporeal estate. Mere rights in land lack the connection

with the thing that is land.282 In that sense, the perception that land registration systems tend to

treat ownership in a similar way to ownership of chattels283 does not add anything. However, if

relationships with land are to reflect more inclusive, integrative visions of social relationships,

then, the definition of property as being of the thing that is land is likely to become a particularly

narrow definition.284 That is, if, in the interests of greater functional or more efficient uses of

land, more or diverse relationships of control are envisioned, property needs to adjust itself

further to the idea that it embraces a continuum of rights in respect of land and that there are

degrees of exclusion from land where exclusion, through remedial processes, is necessary to

protect or vindicate those relationships.285 This has an intuitive quality. The objection to this

outcome is that an alleged intruder on land – the defendant – does not, vis-à-vis the plaintiff

278 The Common Law (1881).

279 Holmes was critical of Friedrich Carl von Savigny who (in Das Recht des Besitzes (1803)) appeared to slavishly adopt a Roman perspective on possession.

280 D Harris, "The Concept of Possession in English Law", in Guest A (ed), Oxford Essays in Jurisprudence (OUP, 1961), 69-106.

281 J Salmond, Jurisprudence (7th edn), 293-308.



284 K Gray and S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46; K Gray and S Gray, "The Idea of Property in Land" in S Bridge and J Dewar (eds) Land Law: Themes and Perspectives (OUP, 1998), 15-51.

285 K Gray and S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46; T Merrill & H Smith, "The Morality of Property" (2007) 48 Wm & Mary L Rev 1849; G Alexander, "Ownership and Obligations: The Human Flourishing Theory of Property" (2013) Cornell Law Faculty Publications, Paper 653; G Alexander, E Penalver, J Singer & L Underkuffer, "A Statement of Progressive Property" (2009) 94 Cornell L Rev 959.


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with a mere right in land, actually have any physical contact with the thing that is land.286 The

defendant is said to interfere with the plaintiff's right in relation to land. But, at least in

orthodox law, the plaintiff's right in fact has no consequence for the defendant.287 This is

consistent with the exclusionary (or boundary) approach to ownership, the core element being

the right to exclude, and an agenda-setting approach to property, both of which hold that

ownership is exclusive, and that property should be viewed on a thing-land level. Why, then,

should a plaintiff, with a mere right to occupy the land under a licence, have the right to exclude

the defendant? The correlation of rights is important as a right need not be exercised through a

remedy.288

2.7 Possession and theories of property289

The term property has a certain conclusory nature about it.290 Yet, its meaning is said to be

elusive.291

Property as the right to exclude

It has been argued292 that an identifiable discourse of exclusion operates in real property law,

particularly in relation to the traditional common law concept of property in land. In some

foreign jurisdictions the right to exclude is considered a fundamental right.293 Indeed, its

primary support is found in the United States, although it is found in an English idea. However,

a certain degree of complexity surrounds the idea of exclusion and the common law conception.

In part, this is because of the common law's reliance on estates, interests and mere rights in

286 J Hill, "The Proprietary Character of Possession" in E Cooke (eds) Modern Studies in Property (Hart Publishing, 2001), vol 1, 25. Cf J Salmond, Jurisprudence (7th edn) who refers to the Roman concept of possessio juris (the possession of a right).



289 The bundle of rights approach to property, although sometimes referred to by Australian courts, is considered only in the context of the other theories mentioned. The bundle of rights approach only tends to explain examples of property rights and duties, and not how or why a person may use a thing or right. See J Harris, Property and Justice (Clarendon Press, 1996); J Penner, The Idea of Property in Law (New York: Oxford University Press, 1997).

290 A Weinrib, 'Property and Information' (1988) 38 UTLJ 117, 120.

291 Willmott Growers Group Inc v Willmott Forests Ltd (recs & mgrs. apptd) (in liq) (2013) 251 CLR 592.

292 A Grear, "A tale of the land, the insider, the outsider and human rights (an exploration of some problems and possibilities in the relationship between the English common law property concept, human rights law, and discourses of exclusion and inclusion)" (2003) 23 Legal Stud 33. See also K Gray and S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46.

293 D Callies & D Breemer, "The Right to Exclude Others from Private Property: A Fundamental Constitutional Right" (2000) 3 Wash J of Law and Policy 39.


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land, and their respective threshold requirements. As a related idea,294 it is said that

excludability is analytically foundational to private property or ownership. However, it has also

been said that, taken at one time as being axiomatic of what the idea of property meant, the idea

of the right to exclude has in more recent times receded into the background.295

The connection of the right to exclude to legal possession is unmistakeable. However, it is not

certain that a broad idea of excludability aligns with the exclusionary (or normative) view of

property.296 It has also been suggested297 that it may not be going too far to suggest that the

theme of exclusion will bulk large in social history in the coming years and that fairly important

outcomes will turn on whether we attribute continued vitality to the unqualified exclusory

function of property, in particular, possession, or choose instead to fashion our property

thinking to accord with more inclusive and integrative visions of social relationships. This may

have the potential to undermine possession as a relevant concept to, or even as, property, or, at

least, sideline its importance.298 In this regard, the notions of rights or liberties to use land,

rather than the right to exclude others from land may be central to our understanding of

property. Regardless, an issue that arises here – and which is fundamental to the modern place

of possession – is whether the focus of property is one which looks more closely at remedies

which protect the right to set agendas for land through the availability of particular remedies

rather than in a notion of exclusion.299 This, then, inevitably leads into a consideration of

whether legal possession really protects some sort of coercive right to exclude or use land.

Indeed, although a traditionalist, Wonnacott alludes to this very point when he explains that an

estate cannot be defined simply as the conferring of a right to possession as possession is a

relationship with an estate: instead, the estate must embody a right to do something, namely

generally control land, that is protected by remedy.300 While to generally control land may be an

agenda for the land as it implies untrammelled decision-making, a person who has a lesser

294 K Gray, 'Property in Thin Air' (1991) 50 CU 252.

295 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv JL & Pub Pol'y 1; C Rose, "Canons of Property Talk, Or, Blackstone's Anxiety" (1998) 108 Yale LJ 601.

296 T Merrill, "Property and the Right to Exclude" (1998) 77 Neb L Rev 730.

297 K Gray & S Gray, "Private Property and Public Property" in J McLean (ed) Property and the Constitution (Hart Publishing, 1999), 11-39.

298 That is, if possession is available for something less than an estate, we have, on the one hand, opened up remedies to something less; but we have given the excludability idea a wider application: that is, physical intrusion. This has the potential to refashion property rights. J Hill, "The Proprietary Character of Possession" in E Cooke (ed) Modern Studies in Property (Hart Publishing, 2001), vol 1, 25; R Hickey, "Possession as a Source of Property at Common Law" in E Descheemaeker (ed), The Consequences of Possession (Edinburgh University Press, 2014), ch 4.


300 M Wonnacott, Possession of Land (CUP, 2006); R Butler, "Remedies in Land Litigation: The Tail Still Wags the Dog" (2000) 9 Nottingham LJ 1; M Dixon, "The Non-Proprietary Lease: The Rise of the Feudal Phoenix" [2000] CLJ 25; A Dobbs, "Possession and Occupation: Two Sides of the Same Coin?" (1999) 10 KCLJ 226.


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degree of control may still be able to set an agenda for the land, even if not exclusively.

However, it is not clear how the right of the agenda-setter is matched by a correlative duty on

another not to interfere. The right does not appear to have any internal consistency as the duty

not to interfere has, in reality, been cast simply as a breach of an obligation not to interfere (that

is, it is a liability or tort issue).

Proponents of an exclusion-based, boundary or normative view of property – which has its basis

in Sir William Blackstone's Commentaries on the Laws of England301 – find that there is a

moral basis for property. They contend that a bundle of rights approach is malleable and

uncertain. It, from time to time, elevates any right to a status that it may not otherwise have

without the other rights. For example, a mere right of or to occupancy may, in effect become

possessory. Normative view supporters deliberately avoid the aggregation view and contend

that property simply is control (in an absolute sense).

In fact, the exclusion-based approach to property includes normative and methodological

approaches: "Whether one calls this the right to determine how the object shall be used and by

whom", or a "right to exclude others from things which is grounded by the interest we have in

the use of things" or the right of "direct trespassory protection" or the "gatekeeper" right, this

conclusion has been independently reached over and over again".302 Penner, a proponent of a

rights-based account of property, considers that the exclusion of others (the 'right of exclusion'

with its correlative duty of non-interference) is how the law protects the enduring interest in

determining the use of things; or, control over one's material environment is a component of an

autonomous life.303 On the other hand, Merrill and Smith304 adopt a cost-based account for the

exclusion approach305 and discount a modern utilitarian approach for a bundle of rights

approach. While exclusion rules sit at the heart of property, governance rules apply to regulate

the relationships between the owner and specific others: that is, they refine the core property

relationship.306 Katz provides a general statement of the exclusion-based accounts: "what we

301 Ownership is the sole and despotic dominion in total exclusion of the rights of others; R Burns, "Blackstone's Theory of 'Absolute' Rights of Property" (1985) 54 U Cin L Rev 67.

302 T Merrill, "The Landscape of Constitutional Property" (2000) 86 Va L Rev 885, 971; J Penner, The Idea of Property in Law (New York: Oxford University Press), 71; K Gray, "Property in Thin Air" 1991) 50 Camb LJ 252, 268, 306; T Merrill, "Property and the Right to Exclude" (1998) 77 Neb L Rev730, 748.

303 J Penner, The Idea of Property in Law (New York: Oxford University Press), 71.

304 T Merrill & H Smith, "What Happened to Property in Law and Economics?" (2001) 111 Yale LJ 257.

305 H Smith, "Property and Property Rules" (2004) 79 NYUL Rev 1719, 1753 ("[F]or reasons of information cost it is often advantageous and almost inevitable that rights will be delineated by… an 'exclusion strategy'.)" Defining property rights in terms of specific use rights presents greater information costs that typically outweigh the benefits of the greater precision governance rules provide. That is, through the exclusion of others, the law indirectly protects a wide swathe of activities, rather than engaging in the more costly strategy of directly protecting specific use interests.

306 H Smith, "Property and Property Rules" (2004) 79 NYUL Rev 1719.


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mean when we say that ownership is exclusive is that owners have a right to exclude and that the

right to exclude has a certain effect: the indirect creation of the space within which the owner's

liberty to pursue projects of her choosing [including the rights of use and disposal] is preserved.

Ownership, on an exclusion-based or boundary approach, is the product of a norm that protects

the boundaries around an object so as to exclude the whole world but the owner. The owner

controls access to the attributes of the resource within the boundaries, which are hers in virtue

of the exclusion of others. An owner has, in effect, a gatekeeping function."307 The effect is the

rights of use and disposal are not super-added powers or require any separate justification.308

Exclusion is a practical necessity with respect to a thing.309 Accordingly, the boundary approach

holds that easements do not imply exclusion, except in exceptional cases, such as rights of way

for railway tracks, when there is a high degree of physical occupation: in such a case there is a

perimeter protection (which is what proponents of a boundary approach mean by exclusion).

This does not seem all that far removed from an effective control approach to admitting tort-

based actions in trespass and nuisance. It should be noted the realist approach to exclusion

supports the idea that a person with an easement has a power of exclusion to the same extent as

a person with a fee simple. This could easily be extended to a contractual licence in appropriate

cases: a type of effective control.

The exclusion approach is, in the end, a basic approach to the explanation of the concept of

property or ownership. It is, within individual property systems, subject to refinements –

governance rules – that balance the interests of specific individuals in the use of land.310

However, Balganesh says that focusing on the right-component of the right to exclude is more

than just of theoretical value: it carries with it deep functional relevance, one that derives from

the interplay between the language of rights and remedies. That is, if property is no longer

(automatically) associated with exclusionary relief, is it meaningless to continue characterizing

the 'right to exclude' as its central attribute?311 Balganesh argues that the right to exclude is best

understood as a normative device, deriving from the norm of resource-inviolability. The right

operates as an analytical tool, seeking to transplant the norm of inviolability from morality to

law, but admitting of exceptions as circumstances require. That is, the right to exclude can have

307 L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275, 281. Land is easy to conceive of in these terms (C Rose, 'The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems' (1998) 83 Minn L Rev 129); K Gray, 'Property in Thin Air' (1991) 50 Camb LJ 252, 286: land is the most readily excludable resource; T Merrill and H Smith, 'The Morality of Property' (2007) 45 Wm and Mary L Rev 1849, 1891 note that an understanding of harm to a property right is conditioned in property law on spatial boundaries and things.

308 H Smith, "Property and Property Rules" (2004) 79 NYUL Rev 1719, 1753.

309 J Penner, The Idea of Property in Law (Oxford University Press, 1992), 71.

310 H Smith, "Exclusion versus Governance: Two Strategies for Delineating Property Rights" (2002) 21 J Legal Stud 453.

311 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv JL & Pub Pol'y 1, 3-5.


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independent normative traction regardless of whether it is actually enforced. Balganesh

explains that the idea of property most certainly consists of more than just exclusion: to be

meaningful it must contain at a minimum some element of exclusion. Evidently, this idea may

be transposed to that of factual possession (the morality) which becomes legal possession (the

law), even if, for example, exceptions, such as fair trespasses, are admitted.312

Property as authority or agenda-setting

Katz further posits an anti-bundle of rights approach to ownership, insisting that ownership is a

legal concept with a well-defined structure. However, Katz rejects an exclusion approach to

ownership (which Katz calls a boundary approach because an owner's right is the reflex of a

simple and general duty to keep off that is signalled by the boundaries of a thing, including

spatial boundaries for land and which requires neither a deep contextual knowledge of the

situation or the personal acquaintance of the owner;313 and, according to , Smith, "The right to

exclude is built around a signal – presence inside or outside a boundary – that is not directly

tied to use but that when invoked protects an owner's interest in use indirectly"314) – the idea

that ownership essentially is constituted by the exclusion of others from the object owned315 or

that ownership is indeed an exclusive right – as it does not adequately explain the numerous

subsidiary rights in things that co-exist with the rights of owners (that is, it does not explain

ownership's crucial features).316 On the exclusion-based approach, ownership is nothing more

than the space left for the use of the thing by the owner once others are kept out: the right to

exclude protects use indirectly.317 Rather, property's central concern should not be the exclusion

(or position) of all non-owners from the thing (which Katz says is the real focus of the boundary


313 L Katz, "Exclusion and Exclusivity in Property Law" (2008) UTLJ 275; cf T Merrill & H Smith, "The Property / Contract Interface" (2001) Colum L Rev 773: property simply specifies which person or who is the gatekeeper (of which there obviously can only be one in respect of one thing); J Penner,The Idea of Property in Law (New York: Oxford University Press), p 28; H Smith, 'Property and Property Rules' (2004) 79 NYUL Rev 1719.

314 H Smith, "Exclusion and Property Rules in the Law of Nuisance" (2004) 90 Va L Rev 965, 979. H Smith, "Property and Property Rules" (2004) 79 NYUL Rev 1719, 1759-1762, exclusion is the only means to secure to the owner an open-ended sphere of choice. That is, ownership on this approach protects an open-ended set of choices whereas a bundle of rights approach cannot. Ownership in the exclusory sense is impersonal.

315 H Dagan and M Heller, "Conflicts in Property" (2005) 6 Theor Inq L 40.

316 L Katz, "Exclusion and Exclusivity in Property Law" (2008) UTLJ 275, 289-290 ("Ownership, seen from a boundary approach, is a gatekeeping position. The essential feature of ownership, on this account, is the power to determine who can enter and who must keep out. A boundary approach assumes that the exclusivity of the owner's position depends on the exclusion of others from the object owned. The core insight that I defend here is that ownership is an exclusive right that does not always depend for its exclusivity on protecting the boundaries of the things.").

317 J Penner, The Idea of Property in Law (New York: Oxford University Press, 1997), 103 ("[T]he right to determine the use … of a thing in so far as that can be achieved by others excluding themselves from it.").


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approach (that is, do not cross the boundary without permission)318) but, instead, the

preservation of the owner's supreme or special position as the exclusive agenda-setter for the

owned thing. The object of any analysis ought to be that position independent of the right to

exclude. Further, according to Katz, the boundary approach misunderstands the role of

exclusion in producing an open-ended and impersonal right and, ultimately, it does not say

enough about the owner's position. The "law does not rely on exclusion to carve out the position

of owner and that it is not the thing but the agenda for the resource that mediates the

relationship between owners and others".319 If others (that is, subsidiary interest holders or

strangers) act in a way that is consistent with the owner's agenda, they pose no threat to the

owner's exclusive position as agenda-setter. Katz argues that the boundary approach wrongly

assumes that what it means for ownership to be exclusive is that others generally have a duty to

exclude themselves from the object owned.320 She contends that ownership (like sovereignty) is

an exclusive position that does not depend for its exclusivity on the right to exclude others from

the object of the right: instead, for ownership to be exclusive merely means that owners are in a

special position to set the agenda for the resource.321 Exclusivity rules can, however, preserve

the agenda-setting. In turn, this means that ownership requires not that others keep out so

much as that they fall in to line with the agenda the owner has set. In this way, interests in land

can be harmonized consistent with the owner's exclusive agenda-setting (for example, through

creating easements).

Merrill and Smith322 explain that limited entitlements of intrusion – or sanctioned trespasses323

– simply become ways in which courts and parliaments try to balance the interests of competing

users of land, rather than in crafting their responses around an owner's special moral position,

which may have once been encapsulated by the castle and fortress idea.324 Katz contends that

some variations on an owner's position must be treated as external limits on the core of

318 By default, after the exclusion of others, the owner is left at liberty to use the thing. T Merrill, "Property and the Right to Exclude" (1998) 77 Neb L Rev 730, 741 ("A's right to exclude with respect to Blackacre leads directly to A's right to dictate the uses of Blackacre, because no one else will be in a position to interfere with the particular uses designated by A.").

319 L Katz, "Exclusion and Exclusivity in Property Law" (2008) UTLJ 275, 284.

320 L Katz, "Exclusion and Exclusivity in Property Law" (2008) UTLJ 275, 277 ("In conflating the concept of an exclusive right with that of the right to exclude, proponents of a boundary approach trade on an ambiguity in the meaning of 'exclusive'. There is a distinction between a right that is exclusive in the sense that it has the function of excluding others from the object of the right and one that is exclusive in the sense that its holder occupies a special position that others do not share.").

321 L Katz, "Exclusion and Exclusivity in Property Law" (2008) UTLJ 275, 278 ("Ownership's exclusivity is simply an aspect of its nature as a position of agenda-setting authority, rather than, in itself, the essence of ownership."). That is, the agenda-setter owns the object which must, by necessity, be exclusive.

322 T Merrill and H Smith, "The Morality of Property" (2007) 45 Wm and Mary L Rev 1849.


324 K Gray and S Gray, "The Idea of Property in Land" in S Bridge and J Dewar (eds) Land Law: Themes and Perspectives (OUP, 1998), 15-51.


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ownership: that is, some limits on what an owner can do with his or her property do not bear on

the structure of ownership itself and, as a result, it is not appropriate to account for them in

describing the position the owner occupies.325 Therefore, there needs to be a distinction

between duties that are freestanding and external to ownership, and internal or structural

variations in the scope and kind of agenda-setting authority that an owner has. In other words,

a right to exclude in the hands of anyone else makes no sense: there is no point in going any

further. As an example, a restrictive covenant is not an ad hoc external modification: a

restrictive covenant is enforceable in equity because it is a structural feature of the servient

tenement owner's right. It is not an independent obligation; it inures in the tenement itself. If

possession is to break away from its estate foundation, this type of thinking highlights again

whether a third party's duty is relative to a particular threshold right of property.

Further, Katz says that rights or privileges to use or access a resource present no threat to the

owner's supreme authority, so long as those interests are clearly organised around and not

inconsistent with the retained authority of the owner. Merrill and Smith note that ownership

theory may cast the owner as the residual claimant after all other rights to the thing from

contract or property law are accounted for.326 Katz considers that these other rights are not only

basic to any system of property but also perfectly consistent with the idea of property as an

exclusive right.

As Katz notes, property law aims to render the property interests of others in an owner's

resource as consistent with the owner's position. Property law preserves ownership not through

the exclusion of others but through rules and principles that harmonize the interests of others

with the owner's supreme position of agenda-setting authority. Other users have a subservient,

rather than a competitive, relationship with the owner, who is left in charge of the resource.

However, if a possessory remedy such as trespass is available to a mere licensee of land, does

not the licensee assume some sort of agenda-setting authority in respect of the land? And, how

does the law prevent the intruder from being sued twice, once by the owner and once by the

licensee, for the same wrong?

According to Katz, agenda-setting has an important role in mediating relations between owner

and non-owner. An exclusion-based approach is particularly plausible where the owner does

not make his or her agenda for the land explicit and where the appropriate way for most non-

owners to fall into line with the owner's agenda is simply to exclude themselves from the land.

This may neatly sit with the Hohfeldian idea of rights and correlative duties. Excluding one's

self from say, the inside of someone else's house or a backyard, is not because owners always

have a general right to exclude others from the object owned, protected by a duty of exclusion.


326 T Merrill and H Smith, 'The Morality of Property' (2007) 45 Wm and Mary L Rev 1849.


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Rather, it is because the law imputes an agenda to the owner that will tend to be satisfied only by

limiting the access that others have to the land in that context. Katz cites numerous North

American authorities in support of this position.327

Gordley and Mattei328 acknowledge that, under a system of ownership, the decision of how a

land resource will be used is left to an owner. However,

if we regard ownership functionally … we will not conclude that only the owner can have a right to use property. We will merely conclude that the owner will prevail in a conflict with somebody else about how and for whose benefit the property may be used. There may be other conflicts to which the owner is not a party: between a possessor and a non-possessor, a former and a subsequent possessor, a party dispossessed and the party who dispossessed him. The owner may have an interest in how such conflicts are resolved. But none of them is a conflict between the owner and a non-owner about the use of the property. The principle that the owner would win if there were such a conflict does not tell us who should win if there were not.

There is nothing contradictory, then, about recognizing a right in the possessor, good against anyone else, to use the property until the owner appears and asserts his own rights. Indeed, if we imagine the non-owner can use the property without hurting the owner, it would be strange not to recognize such a right. At least the property will have been put to some use. Hugo Grotius, the 17th century founder of the northern natural law school, argued that non-owners should have a "right of innocent use", a right to use another's property provided they could do so without injuring the owner. This conclusion followed from the functional or teleological approach Grotius took to rights of ownership. Private property exists to avoid the disadvantages that would arise if everything were owned in common: people would not work and they would quarrel over how things were to be divided. But rights of ownership should extend no further than necessary to serve this purpose. Therefore, non-owners have a "right of innocent use".

Gordley and Mattei opine that one would want to recognise a right in the possessor for 2

different reasons. One, that the possessor's use may be the best use of the property. Two, that

even if the possessor's use may harm the owner, it may cause less harm if the possessor's right is

protected against non-possessors than if it is not protected at all. In both cases, the law is not

simply protecting the possessor against dispossession. It is protecting him or her so that he or

she can benefit from his or her possession. Nevertheless, there is a difference. In the first case,

the possessor obtains the benefit without hurting the owner. His or her possession is protected

because it is better that someone should benefit than that no one should. In the second case the

possessor is hurting the owner. He or she is protected only because otherwise the harm to the

owner would be greater. His or her possession is protected to give him or her an incentive to

protect the property from others and so minimise the harm the owner may suffer.

Property as trespassory rules on a continuum

Harris329 points out that—

327 See also B Depoorter, "Fair Trespass" (2011) 111 Columbia Law Review 1090.

328 J Gordley J & U Mattei, "Protecting Possession" (1996) 44 Am J Comp L 293, 331-332.

329 J Harris, Property and Justice (Clarendon Press, 1996), 119. However, Harris did not directly deal with the morality of property, although Lametti suggests Harris's overall theory of property exhibits


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[c]ontemporary property theorists in the English-speaking world commonly pose a contrast between the lay and the legal view of property. The layman, it is said, conceives of ownership as a relationship of a person to a thing, whilst the lawyer knows that proprietary interests are always concerned with relationships between persons as to the use or exploitation of things (objects, resources, items of wealth).

The contrast is a false one. Of course, property, as a social and legal institution, controls relations between persons [eg claiming property says as much about my relationship with a thing as it does with everyone else's] …

Harris continues that the social concept of property embraces, simultaneously, some idea of

trespassory rules – 'thou shalt not steal!' – and some version of the idea that a person may do

what he or she likes with that which is his or hers: 'is it not lawful for me to do what I will with

mine own?' "To mankind, possession of things is an important aspect of life. Without any

possession of things in the world it is questionable whether a person has any liberty or

security".330 In Harris's view, legal property institutions build on the twin foundations of

trespassory rules and the ownership spectrum in various ways. The lawyer is professionally

aware of the details of trespassory rules and of relevant property-limitations, expropriation and

appropriation rules; of the title conditions peculiar to his or her jurisdiction; of the multifarious

instrumentalities for detaching the wealth-allocation function of property from its use-control

function; of the historical and doctrinal elements entering into the numerus clausus of non-

ownership proprietary interests and of the technical formality rules in which all these matters

are shrouded. All these rules and juristic superstructures both yield relations between persons

and presuppose relations between persons and things (tangible or ideational).

Thus, Harris says,331 unpacking, on demand, of these variable elements of property is inevitable

including because, for example, of quasi-ownership interests which are comprised of assorted

mixes of privileges and powers derived from their analogy to ordinary ownership interests and

the particular social functions they serve. Could one posit some global unpacking of all these

items such that person-thing conceptions could be made to disappear?

Harris opines that "should we not, in the last resort, drop any enquiry into who is the owner of

any particular thing and instead concentrate on the variable complex of relations established

between persons as to the use and control of resources?".

The degree of control and propertiness332 of a particular relationship in respect of land – and,

therefore, the classification of a particular arrangement as an estate, other interest or right –

may relatively depend on, or is relatively shaped by, the extent to which the controller's right

an internal morality: D Lametti, "The Morality of James Harris's Theory of Property" in T Endicott, J Getzler, E Peel (eds), The Properties of Law: Essays in Honour of James Harris (OUP, 2006), 138-165.


331 J Harris, Property and Justice (Clarendon Press, 1996), 120.

332 K Gray, "Property in Thin Air" (1991) 50 Camb LR 252, 292.


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over access is afforded protection by a remedy. In effect, the right and remedy work to vindicate

or protect access of a particular kind or which meets threshold requirements at law.333

However, there is perhaps a more fundamental basis for property in this context: as already

noted, when property is seen as a fact it rests on essentially intuitive perceptions of the degree to

which a claimant successfully asserts de facto possessory control over land.334 This may give

possession its coherence.

Harris argues that, at law, ownership must still have meaning, and continues, consistent with

Kevin and Susan Gray's "gradations of ownership":335

It is suggested here that the work actually done by ownership conceptions is better brought to light if we speak in terms of an ownership spectrum, from mere property to full-blooded ownership. Modern property institutions protect ownership interests well down the spectrum over some resources. Ancient and primitive societies recognise something approaching full-blooded ownership over some things. There is, as we have seen, a plurality of mutable ownership interests and moving up the spectrum is not to be identified with any unilinear historical process.

We can adopt a spectrum rather than a unitary concept of ownership. Nothing unites the ownership interests on this spectrum except their open-ended character, the self-seekingness which they license, and the fact that they are person-thing relations.336

Thus, we need to ask, relevantly, how far down the control spectrum can we make the

possessory remedies available? The answer may lie in our attitudes towards efficient uses of

resources or our perspectives on ownership or property,337 the relationship between property

and an idea of human flourishing,338 or even in a theory of justice.339

If, as we must, accept that the law does not assign to any single person the right to use anything

in absolutely any way he pleases, can we discard ownership's and possession's exclusive link to

trespassory rules? That is, might there be a trespassory rule that protects lesser rights from

interference as a result of physical intrusion?

The issue here, then, may ultimately be whether recognising a new form of property (or rather,

an existing form of property with a different substance) comes at the expense of social wealth as

333 The law's further classification of property in land into estates, other interests (including security interests and servitudes) and personal rights is important as only estates and interests can affect third parties.

334 K Gray & S Gray, "The Idea of Property in Land" in S Bridge and J Dewar (eds) Land Law: Themes and Perspectives (OUP, 1998), 15-51.

335 K Gray & S Gray, "The Idea of Property in Land" in S Bridge and J Dewar (eds) Land Law: Themes and Perspectives (OUP, 1998), 15-51.


337 Cf R Posner, "Savigny, Holmes, and The Law and Economics of Possession" (2000) 86 Va L Rev 535.

338 G Alexander, Property and Human Flourishing (OUP, 2018), 75-76; N McBride, "Tort Law and Human Flourishing" (University of Cambridge Faculty of Law Research Paper No 55/2014).

339 J Harris, Property and Justice (Clarendon Press, 1996), 124; G Alexander, Property and Human Flourishing (OUP, 2018), 154; G Alexander, E Penalver, J Singer & L Underkuffer, "A Statement of Progressive Property" (2009) 94 Cornell L Rev 959.


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it imposes new obligations or duties on third parties, that is, not to interfere with the right of a

person to, for example, merely occupy land. That is, in essence, does a possessory remedy

become available to a person against a third party because the third party has interfered with the

right of another to do that which someone else has permitted him or her to do on the land?

Every property institution discharges the duel functions of controlling use and allocating social wealth. When it delegates control over competing uses of a scarce resource, R, to X by recognizing an ownership interest, OI, in X over R, it simultaneously accords to X an item of private wealth associated with the exploitation of the privileges and powers inherent in OI. Suppose that, to further some public goal, an amalgam of privileges and powers, P, is abstracted from OI. The compensation principle is implicated if and only if the mix of property-specific justice reasons which supports X being vested OI also requires that OI contain P. Compensation preserves X's allocated share of social wealth even though P has been taken from him.340


Chapter 3: Possession of land as a functional abstract concept in law Chris Boge

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3. Chapter 3: Possession of land as a functional abstract concept in law

3.1 Purpose of this chapter

The purpose of this chapter is to explain possession of land as a functional abstract concept in

law. The purpose of doing so is so that its applications, as considered in subsequent chapters

and possibly as expressions of a reshaped possession, can be understood as legal consequences

within an identified objective or argument for recognising and protecting the enjoyment of land.

3.2 Possession in the imagination of law: idea-building as an aspect of abstraction

In 1964, Tay wrote that, to "understand possession, we must look, not at the word, but at the

way in which possession entered our legal system, the parts it was called upon to play in it, the

character and problems of its development". If we do this, then, according to Tay, "we do

emerge with a general concept of possession recognized and applied in our law". This general

conceptualisation allows us, in Tay's opinion, to "understand the special problems that have

arisen in specific fields"341 and, it is suggested, to ensure its stability within the law.

If, on the other hand, we reduce possession – and whether applying to land or to things

generally – to a concept without a stable understanding or application, there is a risk that it may

end up bearing the status of an occasional and useful tool of legal analysis that is engaged, as

circumstances suit, to describe particular situations without reference to unifying or cohering

characteristics in the law or a central objective. As will be explained, possession's "arc of

coherence"342 turns on a conceptualisation developed and maintained by its primary link with

the abstract concept of land: that is, the content of possession is contingent on the maintenance

of that link because conceptualisation is a representation of characteristics intended to fulfil an

argument or objective of the law.

As seen in chap 1, para 1.4, possession, like ownership, cannot, and does not need to, be defined

in an exhaustive lexical sense.343 Words are simply conventions, even in law.344 The view of

341 A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476, 479-480.

342 E Weinrib, The Idea of Private Law (OUP, 1995), 33-34.

343 There are numerous concepts in law that are not capable of being defined. Consider, for example, the fiduciary. Cf A Kocourek, Jural Relations (2nd edn, 1928), 37 ("[The] pursuit [of trying to define either factual or legal possession] is a vain one so long as the two ideas of physical possession and legal possession are deemed to be two species of one underlying concept.").

344 Cf Brown v Tasmania (2017) 91 ALJR 1089, [506] (Edelman J) ("[L]anguage generally … is often unclear"). See also The Economist, "Deep impact" (16 July, 2015) ("In English, something “makes sense”. For Germans, though, “es hat Sinn” (it has sense) or “es ist sinnvoll” (it’s sensible). The German is actually more logical. How, as in English, is something sensible actually making sense? The question is unanswerable; language is weird, and idioms especially."); L Kähler, "The Influence


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French CJ and Keane J in Congoo345 that English law has never logically and exhaustively

defined possession ought not be interpreted as encouraging the idea that possession's meaning

can be continually stretched until the law one day reaches a point of its logical and exhaustive

meaning.346

Pollock thought though that, unlike possession, title was a "matter of law, not only defined but

created by law".347 And he considered ownership could be described "as the entirety of the

powers of use and disposal allowed by law".348

We can, and we need – because of their law-stating functions – to, conclude that, in particular

instances, a person is a possessor or is an owner because that signifies a particular status and

allows us to then work out relevant legal consequences.349 However, we must be careful saying

possession or ownership is this or is that. How someone comes to possess or own land depends

on compliance with legal entry rules. Such rules are the means for arriving at the conclusion

that someone possesses or owns land.350 But, what possession or ownership of land represents

is a concept of the law.

The absence of an exhaustive definition of possession or ownership should not of itself, however,

justify exploring possible new applications for either of them, especially where any such

applications cause a reshaping of them as concepts and that reshaping is not part of a coherent

"chain of legal reasoning extending over time" (see generally chaps 5 to 7).351

of Normative Reasons on the Formation of Legal Concepts" in J Hage and D von de Pfordten (eds), Concepts in Law (Springer, 2009), 81-98, 91 ("Legal concepts must be expressed in words because they could otherwise not play a role in law or, arguably, even exist.").

345 At [11].

346 H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession(Blackwell, 2015), ch 3, thought that the American realist movement had introduced uncertainty into the term possession thus allowing its applications to be stretched. See also generally A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476.

347 F Pollock, First Book of Jurisprudence (MacMillan and Co, 5th edn), 177.


349 For Torrens title land, it is, of course, a simple proposition to conclude that someone is the owner of a fee simple estate in land: one only needs to look at the freehold land register and no further; eg, Land Title Act 1994 (Q), s 35 (Entitlement to search register); sch 2, definition of 'registered owner'. As such 'prior possession' cannot be asserted against the registered owner's title.

350 Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 212 (Toohey J) ("Possession is a conclusion of English law."). Cf, for example, Wik Peoples v The State of Queensland (1996) 187 CLR 1 and Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233 where the right of possession's orthodox entry rules are not satisfied.

351 See fn 524. The suggestion is that any reshaping (ostensibly through a relativity of 'rights' idea) should not occur outside an ownership of land frame of reference that holds that the characteristics of ownership in law are those considered in detail in this chapter. Recently, Douglas J of the Supreme Court of Queensland, speaking extra-judicially, ("Avocats Sans Frontieres or Lawyers Without Borders", Speech for the closing ceremony of the 69th Queensland Bar Practice Court, Inns of Court, 12 October 2017) reflected on his own legal studies in the late 1960s and remarked, "[t]here has always been a tension in the common law between ensuring that the expression and development of


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For English law a concept of ownership (even if not a pure one) had its origins in possession:

they are entangled.352 Yet, possession in its application to things as a separate but related

concept generally has always been a "highly abstract idea never perfectly realized except in

imagination".353 Certainly, in the hundred or so years since that statement was made, nothing

much has changed.354 The law simply arrived at a concept of possession by heuristic technique

so that it could perform a role in law.355 Possession in law – perhaps "the most protean of

concepts"356 – addresses a point of deciding who has the priority and exclusivity of a thing –

generally manifested in the thing's enjoyment – where there is no other explanation (which

today for land at least can almost always be satisfied by reference to ownership).357 This gives

possession a law-stating function – a role in law – to be explained in para 3.3. It is, especially

because of its familiarity and heritage, an abstract concept from which we may, or like to, build

legal principle remains coherent and the tendency to lose sight of overarching principle among the wilderness of single instance decisions created by the common law." Lamenting that so much research today seems to be "based on the use of case citators", his Honour referred to the classic texts of his day (which closely linked the study of Australian law to its English origins) and observed that the "approach of such works to the statement of principle developed by editors with deep common experience of the academic and practical approach to the law provided not only a useful starting point, but an overall framework of norms within which a legal problem could be conceptualised and, very frequently, readily answered." Douglas J makes a significant point: "The absence of such books until recently from the legal research facilities available on line may be one of the factors leading to an overemphasis in practice on the analysis of individual decisions at some remove from the basic principles from which they are derived". That is, individual decisions often must be cautiously reviewed to ensure they represent links in a chain of legal principle. Statute too can also cause us to question whether principles are being respected. See fn 407.

352 R Megarry and H Wade, The Law of Real Property (Stevens & Sons Limited, 5th edn, 1984), 104 ("[English law] never really disentangled [ownership] from that of possession."); cf Land Registration Act 2002 (UK); fn 361.

353 A Thayer, "Possession" (1905) 18 Har L Rev 196, 196 ("[T]he idea of possession is the intoxicating one of absolute and unlimited dominion. It is a simple idea."); Lyell v Kennedy (1887) 18 QBD 796, 813 (Fry LJ) ("[Possession is] open to a variety of meanings."); F Pollock and R Wright, An Essay on Possession in the Common Law (1888), 28 ("The whole terminology of the subject … is still very loose and unsettled in the books, and the reader cannot be too strongly warned that careful attention must in every case be paid to the context."); B Shartel, "Meanings of Possession" (1931-1932) 16 Minn L Rev 611, 611-612 ("Possession is and always has been a vague concept despite the fact that almost every legal theorist who wrote in the last century essayed at some time in his career to rescue this lost concept from the mystery and confusion in which it was enveloped. As we look back over the results of all these efforts we do not find ourselves one whit closer to the clear-cut notion of possession which they were seeking than we were before their work began.");; see also Moors v Burke (1919) 26 CLR 265, 268-269; Hill v O'Brien (1938) 61 CLR 96, 111 (Dixon J) ("[Possession] is a word used in more than one sense.").


355 See J Krier and C Serkin, "The possession heuristic" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 6.

356 L Aitken, "Recovery of Chattels in the Common and Civil Law: Possession, Bailment, and Spoiliation Suites" (2008) 82 ALJ 379, 381.

357 H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession(Blackwell, 2015), ch 3. For this reason it may represent de facto or quasi-ownership. See para 3.13.


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ideas so as to solve problems surrounding claims to the priority of things generally, if

necessary.358

For the English, possession was, even if it was wrongful,359 evidence of a claim to enjoyment of

an estate; if a possessor was challenged as to who was entitled to enjoy the estate, all that needed

to be determined was the better claim to the estate's possession.360 Accordingly, it was

unnecessary to identify an owner of the estate. But, perhaps with some irony, possession today

is essentially an ownership concept (see para 3.9):361 what and how we do things in, on or over

land assumes there is a source of right or title for doing so,362 and that, although once found in a

better right of possession, that right or title is said to be of ownership363 (which often is a

registered ownership). A better right of possession is, like ownership, a form of legal status of

authority in, on, or over land.364 When recognised in law, such right exists to order priorities to

a type of enjoyment of land.365

358 In Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400, [36], Young CJ in Eq described the law of possession as ancient and fairly complicated; cf Manchester Airport plc v Dutton [2000] QB 133, 147 (Laws LJ).

359 See Buckinghamshire County Council v Moran [1990] Ch 623, 644 ("The essential difference between prescription and limitation is that in the former case title can be acquired only by possession as of right. That is the antithesis of what is required for limitation, which perhaps can be described as possession as of wrong.").

360 Asher v Whitlock (1865) LR 1 QB 1.

361 See, for example, Land Title Act 1994 (Q), s 184(1) (The benefits of registration). See also S Panesar, "The Importance of Possession of Land" (2003) 33 Hong Kong LJ 569 who considers the state of possession in the light of the Land Regulation Act 2002 (UK) and argues that it is questionable whether in the 21st century the concept of possession has the significance it once occupied in the early law. And at 583 ("The very objective of making land titles indefeasible has the effect of moving the concept of ownership in English law towards the absolute concept of ownership recognised in Roman law."). Undoubtedly, possession does not have the same significance it once did.

362 Generally originating in some form of grant by the Crown under a Crown (or State) lands statute. See, for example, Land Act 1994 (Q), ss, 14, 15. Native title rights and interests, although recognised by the common law, are sourced in the traditional laws and customs of their holders.

363 DFS Australia Pty Limited v The Comptroller-General of Customs [2017] FCA 547, [42]. That is, ownership (or title) gives its owner a right of possession. However, a non-owner can also have a right of possession (but not, at least in an orthodox sense, when it is not linked to ownership of an estate).

364 Compare O W Holmes, The Common Law (1882) ("The owner is allowed to exclude all, and is accountable to no one. The possessor is allowed to exclude all but one, and is accountable to no one but him.") with F Pollock and R Wright, An Essay on Possession in the Common Law (1888), 19 ("[Possession] is a kind of title.") and F Pollock, A First Book of Jurisprudence (MacMillan and Co, 5th edn), 178 ("[Possession] may have all or most of the advantages of ownership against every one but the true owner, in other words, it may confer a relatively good title."). See also fn 709.

365 Cf J D Story, The Miscellaneous Writings, Literary, Critical, Juridical and Political (1835), 75 ("The truth is (though it is a truth rarely brought into discussion among civilized nations), that exclusive sovereignty or ownership of the soil is a derivative right, resting upon municipal regulations and the public law of society; and obtaining its whole validity from the recognitions of the communities, which it binds, and the arm of power, which encircles and protects it. It is a right founded upon the soundest policy; and has conduced, more than almost any human achievement, to create the virtues which strengthen, and the refinements which grace civilized life. But if general consent should abolish it tomorrow, it would be difficult to say, that a return to the patriarchal or pastoral state of nations, and the community of property, would be any departure from natural right.").


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It will be noted that, in law, there are limits to the understanding and recognition of the

enjoyment of land and, therefore, possession. As to the abstract property relationship between

an individual and the thing's enjoyment, we often think of ownership and possession along the

lines of (especially from an I-Thing relational perspective), "because I own or possess land, I can

do this or that as I like". Such thinking or perception almost turns them into rule-like

propositions: the substance or purpose of my owning or possessing is what I can do (my

personal enjoyment) or, it is my status as owner or possessor which has given me something.

And, indeed that is true: frequently, land is thought of as a spatial area in respect of which we

factually do things and also (perhaps more importantly) may freely exercise some sort of right of

use and exploitation, often for a particular purpose.366 Land is, then, a thing which humans

'humanize'.367

But, imagining that ownership, when possessed, will always permit an owner to do the same

thing over and over can assume too much and lead to error.368 Perhaps too often for an owner

we look at his or her indefeasible status as a registered owner under a Torrens title Act and

imagine more than what might actually be there: for example, "the words ‘fee simple’ serve only

to denote the quantity of the estate in point of duration."369 As Campbell J370 once remarked

(when considering the effect of title by registration on a mortgage), "indefeasibility for what?"

We need to keep an eye on, or have a better understanding of, the 'what' so that we can

understand what it is someone can factually possess or what he or she may freely use and exploit

by a right of possession.371 In an orthodox sense, we need to appreciate that the 'what' is of or to

a thing.372

366 See, for example, Lewis v Bell (1985) 1 NSWLR 731, 734-735, where Mahoney JA, in considering whether a particular arrangement was a lease or licence at law, highlights this point: "[A] grant may not be in terms of 'possession' but of something else. It may be the grant of a right to occupy premises; the right to 'carry on a business on' the premises; or, … the right 'to use' the premises either generally or in a particular way". See also S Douglas, "The Content of a Freehold: A 'Right to Use' Land?" in N Hopkins (ed), Modern Studies in Property Law Vol 7 (Bloomsbury, 2014), ch 16. As to the distinction between a 'use' and a 'purpose' see Inkerman Station Pty Ltd as trustee v Allan [2017] QSC 147, [8].

367 See para 3.7.

368 See Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15.

369 Sydney City Council v The Valuer-General (1956) 1 LGRA 229, 233.

370 Small v Tomassetti (2002) NSW ConvR 56-011, [9]; see also PT Ltd v Maradona (1992) 25 NSWLR 643, 679. There it was said that registration of a mortgage validates those terms of the mortgage which delimit or qualify the estate or interest of the mortgagee or are otherwise necessary to assure that estate or interest to the registered proprietor.

371 Esposito v Commonwealth (2015) 235 FCR 1, [54] (Allsop CJ, Flick and Perram JJ) ("Despite the Real Property Act 1900 (NSW) creating a statutory system of title by registration it is apparent that it did not disturb the underlying common law nature of the fee simple. As such it is, as a matter of formality, an estate in land that is held as a tenant from the Crown."); Bone v Mothershaw [2003] 2 Qd R 600.

372 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1, 17 (Barwick CJ) ("Though as a term 'indefeasibility' is convenient enough, it must always be remembered that it is the title to and


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This emphasises that, even if we understand that possession, being of ownership, must be of the

land and it often realises itself in the land's actual enjoyment, we can stop there only if it is

accepted that the way in which ownership is enjoyed remains constant. This research contends

that possession's applications in recent times suggest that possession's understanding does not

remain constant. The research also adopts a position that it is too simple a proposition to justify

that contention simply by saying that possession's meaning is contextual or that there are

different forms of possession. The shift in possession's understanding evidences forms of

conceptual creep through different applications of, in particular, a right of possession and an

idea of possession of a purpose (sometimes called simply, possession of the land for a purpose)

(see chap 7, para 7.2). To understand how this may be occurring, we must, however, understand

the role and construct of ownership of land as the creep mostly refers to a horizontal reshaping

of possession beyond the ownership frame of reference within which possession in its orthodox

sense sits.

3.3 Possession and ownership as conceptual elements within the law's response to an enjoyment of land argument

In real property law, the terms possession and ownership are used often. However, as they do

not bear precise meanings373 they generally are best thought of as abstract concepts that are

representative of particular characteristics. As such, we are on firmer ground when we

understand their functions or roles in law.374

Not infrequently, however, an understanding of their respective functions tends to be reduced to

a discussion about relative rights and obligations375 (including in the context of contractual

arrangements and peculiar statutory interests). Ownership often is thought of in a sense of

being the right or title to or of a thing (which may be conveyed) and is said to confer a right of

(exclusive) possession which, itself, is a right of exclusion, whereas possession, as some

apparent distinction, often is thought of as representing, and may on occasions itself also secure

the right to, the actual enjoyment or control of the thing.376 Thus, a distinction is made between

possession of the land or of the interest in the land of which there is a registered proprietor which is rendered secure by registration [emphasis added]."). See para 3.7, where the characteristic of 'thinghood' is discussed.

373 DFS Australia Pty Limited v The Comptroller-General of Customs [2017] FCA 547, [42].

374 See generally A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476; F Maher, "The Kinds of Legal Rights" (1965) 5 Melbourne U L Rev 48, 48 ("[O]ne asks what the legal system has done with them (rather than treating them as absolute concepts from which flow inevitable and complete conclusions).").

375 Perhaps in part because the practice of real property law mostly is transactional or administrative. See further chap 5, para 5.2.

376 F Pollock and R Wright, An Essay on Possession in the Common Law (1888), 12-13. Cf O W Holmes, The Common Law (edn, M Howe, Little Brown & Co, 1963), 169 ("A legal right is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution or compensation by aid of the public force … Just so far as possession is protected, it is as


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rights flowing from the possession of land (often referred to as actual possession) and a right of

(exclusive) possession, the latter being said to have an unqualified exclusionary character. As a

result of the way in which English and Australian real property have respectively developed,

ownership and possession are kindred concepts377 because, in their applications, they bring

things, including land (as the objects of each), within the legal idea of property.378

As forms of property in respect of land, ownership and possession cannot, however, be

understood or applied in ways that are divorced from intertwining considerations relating to the

nature of land itself and its lawful enjoyment, legal methods for the allocation of property in

land, and rights of action and remedies for protecting the enjoyment of land.379 Ownership and

possession are means to an end of recognising and protecting that enjoyment.380

However, how the law itself or those who apply it interpret and respond to an objective or

argument for the enjoyment of land, and consequentially, what freedoms of society's members

concerned with land (including of owners and possessors) ought to be recognised, restrained, or

not recognised at all, involves numerous considerations and values and, in a broad sense, may

be said to be captured by the value-laden idea of the public interest (see chap 4).381

much a source of legal rights as ownership is when it secures the same protection."); There is, of course, a distinction between a right to enjoy and the enjoyment itself. The performance of a right is not the right itself. The inconsistency of incidents test which features prominently in considerations as to whether a native title right or interest has been extinguished by an executive act such as the grant of an interest or right in land focuses on whether rights put up against one another are inconsistent, not whether the exercise of any right under a grant is inconsistent with the native title right or interest. See Ward; Akiba v Commonwealth (2013) 250 CLR 209.

377 In Roman law, a clear distinction could be drawn between possessio (a 'mere possession') and proprietas (a 'proprietary right'). See J Getzler, "Roman Ideas of Land Ownership" in S Bright and J Dewar (ed), Land Law Themes and Perspectives (OUP, 1998), 93-123; A Kocourek, Jural Relations (2nd edn, 1928), 365. Roman law distinguished 'possessio naturalis', 'possessio civilis', and 'possessio ad interdicta'. Accordingly, possession could mean detention, or usucapio possession, or the fact which gave rise to the right of using the interdicts, or the fact which had certain prætorian consequences.

378 That is, ownership and possession are means of 'propertising' things in law. See K Gray, 'Property in Thin Air' (1991) 50 Cambridge Law Journal, 252, 256-257; para 3.4.

379 See generally, A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476, 479-480 ("[To] understand possession [generally], we must look, not at the word, but at the way in which possession entered our legal system, the parts it was called upon to play in it, the character and problems of its development"). If we do this, then, as Tay says, "we do emerge with a general concept of possession recognized and applied in our law". This general conceptualisation allows us, as Tay concludes, to "understand the special problems that have arisen in specific fields". See further chap 4, para 4.3.

380 S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 289-291.

381 See A Linklater, Owning the Earth (Bloomsbury, 2013), 397. A right of ownership, or of private property generally, often is characterised as a fundamental (or even quasi-constitutional) right at common law and within the legal system generally. See generally, C Rotherham, "Property and Power: The Judicial Redistribution of Proprietary Rights" in in K Barker, S Degeling, K Fairweather and R Grantham (eds), Private Law and Power (Hart Publishing, 2017), ch 5, 109. Because of this, statutes may, for example, be construed according to a so-called legality principle that is said to hedge around private property in such a manner that, when faced with an interpretative choice about


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Each of ownership and possession of land (when considered separately) do represent, in

different, but sometimes coinciding, ways, a priority to and exclusivity of the enjoyment of the

thing that is land (see para 3.5) within broader societal and more particular property and

statutory frames of reference. Indeed, possession, in its law-stating status, is ownership in a

default or relative sense: to possess is to own like, but not as, an owner.382 The law legitimises a

claim to enjoyment by recognising a status of possession. The priority and exclusivity of

ownership – and whether enjoyed as quasi-ownership as a non-owner possessor may383 –

manifests itself as a legal form of abstract managerial authority over or of the land.384 And to

most real property lawyers, the priority of ownership also reveals itself in, or is at least

consistent with the use of, legal terms or concepts – often used in transactional settings – such

as vest, assignment, transfer, and indefeasibility of title, the foundation of the Torrens system of

the meaning of a statutory provision that affects such property, a construction which preserves the right of property is more likely to be the correct one. See Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1, [55] (Kirby J); see also Lansen v Northern Territory of Australia (2004) 138 FCR 563, [34]; Gumana v Northern Territory of Australia (2007) 158 FCR 34, [97]-[99]; New South Wales Crime Commission v Kelaita (2008) 75 NSWLR 564, [15]-[16]; generally Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ) ("[C]ourts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and ambiguous language."); Lee v New South Wales Crime Commission (2013) 251 CLR 196, [29] (French CJ); [171]-[173] (Kiefel J); [307]-[312] (Gageler and Keane JJ); Gumana v Northern Territory of Australia (2007) 158 FCR 34, [97]; R v Secretary of State for Home Department; Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffmann) ("[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."); D Meagher, "Legality" in C Saunders and A Stone (eds), The Oxford Handbook of The Australian Constitution (OUP, 2018), ch 44, 1069. See also R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603, [40], [42] (French CJ); Clissold v Perry (1904) 1 CLR 363, 373; Chilton v Telford Development Corporation [1987] 1 WLR 872, 878; Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232, [109]-[134] (Kirby J); [163] (Kiefel J); Wade v New South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177, 182 (Menzies J); American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, 682-683; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [15]; Monis v The Queen (2013) 249 CLR 92, [331]; Police v Dafov (2008) 102 SASR 8, [16]; Wheeler v Leicester City Council [1985] AC 1054, 1065 (Lord Browne-Wilkinson); see also Baker v Campbell (1983) 153 CLR 52; Industrial Equity Ltd v Deputy Commissioner of Taxation (1989) 89 ATC 4864; Studman v Director of Public Prosecutions (Cth) (2007) 177 A Crim R 34, [35]; cf H Wilberg, 'Common Law Rights have Justified Limits: Refining the 'Principle of Legality', in D Meagher and M Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017), ch 8, 151. See also, for eg, Legislative Standards Act 1992 (Q), s 4 (fundamental legislative principles).

382 Hunter v Canary Wharf Ltd [1997] AC 655, 703 (Lord Hoffmann) ("[E]ven a possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else: Asher v Whitlock (1865) LR 1 QB 1."); C Rose, "The Law is Nine-Tenths of Possession: An Adage Turned on Its Head" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 2.

383 Often referred to as a possessory title.

384 'Managerial authority' was a term used by S F C Milsom: see fn 790. Native title, as recognised by the common law of Australia, can be a legal form of managerial authority over or of land as it too can represent priority and exclusivity. When extinguished, native title no longer represents that priority and exclusivity at common law; however, it may still represent such according to the traditional laws and customs of its holders.


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title.385 But, often, it is the deeper idea – the 'end' – that is enjoyment of land (the what

ownership allows to occur) that represents that real purpose of ownership and possession. It is

how we understand their characterisation and context, and necessarily, their conceptual

linkages in law.

Ownership and possession have, as will be further explained in this research, developed

according to a chain of reasoning386 in legal history so that they function as abstract elements387

within the law's response to an enjoyment of land objective or argument (a type of policy) and

work hand-in-hand with other elements constructed to fulfil that objective.388 More

simplistically, ownership and possession are the terms we conventionally use to describe

particular functional characteristics (the subject of further analysis in this chapter) so that the

law can respond to that objective.389

The coherence of ownership and possession within a legal response

Ownership and possession, as forms of property, are intermediate elements in the described

response as the law recognises that there are entry rules for their recognition and consequences

for their law-stating functions (see chap 6). So, in essence, they functionally sit in the middle of

the response. As such, elements, including ownership and possession, within the law's response

cohere: there is a unity of the elements. These elements:

are intelligible only through the integrated whole that they form as an ensemble [that is, as 'the response']. Every … [element] contributes to the meaning of the whole, and the whole gives meaning to its constituent … [elements]. Since the whole is greater than the sum of its parts, each of the parts can be grasped only through comprehending its interconnection with the others and, thus, the relative position of each part in the whole that all the parts together constitute. Every … [element] conditions and is simultaneously conditioned by the others, so

385 Bahr v Nicolay [No 2] (1988) 164 CLR 604, 613 (Mason CJ and Brennan J). The terms or concepts referred to connote an idea that some power resides, or may reside, in someone exclusively. And the priority also plays itself out in contests relating to whether a particular arrangement is a lease or licence (see, for example, Living and Leisure Australia Ltd v Commissioner of State Revenue (2017) 106 ATR 910; [2018] VSCA 237) or even an easement (see, for example, Stolyar v Towers (2018) 19 BPR 38,287; Twelve Walker Street Pty Ltd v Lee [2017] NSWSC 1807; Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2017] QCA 202).

386 See A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476, 480.

387 See generally Western Australia v Ward (2000) 170 ALR 159, [105] (Beaumont and von Doussa JJ); [791] (North J).

388 According to Sir John Salmond (Jurisprudence (1947, 10th edn), 287), a complete theory of possession fell into two parts: one, an analysis of the concept of possession itself, and two, an exposition of the way in which possession is recognised and applied in the legal system.

389 Property, including ownership and possession, may, in the end, be illusory. See K Gray, 'Property in Thin Air' (1991) 50 Cambridge Law Journal 252. It is not the purpose of this research to agree or disagree with such an assertion; rather, in acknowledging that the concepts of ownership and possession exist in law, it is to consider their functional applications within their continuing conceptualisations.


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that to refer to one is to presuppose the relevance of the rest. The … [elements] belong together and are unintelligible in isolation. Their unity is intrinsic to them.390

In so far as concerns land, the ownership and possession of an estate, as explained in paras 3.3

to 3.10 are, then, inter-dependent conceptual elements within the law's stated response within

society. It is a policy or principle of the common law that things, including land (a legal concept

itself), are owned by someone (a policy which does have a loose analogy with seisin).391 And how

the law regulates the enjoyment of land also is a matter of 'state' policy: while ownership may

represent an exclusive claim to a thing, the precise manner in which a thing can actually be

enjoyed – particularly when the thing is land – depends on other factors, including sometimes,

others' potential claims to the thing.392 The potential to enjoy, and actual enjoyment, are

matters of what may generally be a matter of lawfulness.393 Within the law's response we find all

sorts of linkages (including entry rules and consequences); but, within the concepts themselves

of ownership and possession there is a primary linkage to land, an essentially empirical concept

but, more abstractly, one which has an idea in law of that which has the capacity to be

appropriated for lawful enjoyment and to be represented by an estate.394 A significant

consideration in conceptualising possession (at least in an orthodox sense) and recognising that

it and, necessarily, ownership have general or non-legal counterparts, is, then, the maintenance

of those linkages to the concept of land.

The other essential and cohering elements in the law's 'enjoyment' response consist of a person's

personal enjoyment of ownership of the estate (whether as an owner or possessor) and certain

rights (and remedies) that arise from ownership: that is, the personal power represented by

owning comes from the legal and proprietary qualities of ownership. While in a category of

governance rules,395 they necessarily represent how the law's response is, in itself, a governance

390 E Weinrib, The Idea of Private Law (OUP, 1995), 33-34; J Lightwood, A Treatise on Possession of Land (1894), 1 who refers to possession's link to possessory remedies.

391 Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380; J Angell, A Treatise on the Law of Watercourses (Wells and Lilly, 1824), ch 1. According to Justinian's Institutes it was by natural law that running water, the sea, and the air were common to all. Cf, for example, Water Act 2000 (Q), s 26 ("All rights to the use, flow and control of all water in Queensland are vested in the State."). See also Bl Comm vol I 135; para 3.7.

392 See generally, A Kocourek, Jural Relations (2nd edn, 1928), ch 20; cf R Dias, "A Reconsideration of Possessio" [1956] Cambridge LJ 235, 239 ("[In Roman law, possessio] developed into a device of legal convenience to effectuate policy differently in different branches.").

393 See chap 5.

394 This is the characteristic of 'thinghood' as discussed in more detail in para 3.7.

395 See T Merrill, "Property and the Right to Exclude" (1998) 77 Neb L Rev 730 who positions the right to exclude (at least from an American perspective) as property (or as its primary right) and thus (rightly) rejects a bundle of rights analysis of property; D Callies and D Breemer, "The Right to Exclude Others from Private Property: A Fundamental Constitutional Right" (2000) 3 Wash J of Law and Policy 39. However, the right to exclude as an analytical tool may have receded into the background in recent times. See S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv J Law & Policy 593; C Rose, "Canons of Property Talk, Or, Blackstone's Anxiety (1998) 108 Yale LJ 601; A Mossoff, "The False Promise of the


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rule of society and how society, including through its laws, decides what is meant by the

enjoyment of land.396 Again, this is the idea of lawfulness (see chap 5).

Each other element will generally also have its own entry rules for its recognition or

application.397 Thus, ownership and possession of an estate and their regulation must be

conceptualised according to the cohering elements and not in isolation.398 Nevertheless, it must

be kept in mind that other elements (for example, a right of action in trespass against an

intruder) which may protect an owner's or possessor's enjoyment of land are not so much

characteristics of ownership or possession and, therefore, are not part of property itself. They

may be protections implemented as other elements of private law and, therefore, partake of

ownership or possession – in the sense of their being necessary consequences – because they

are borne of the policy of the law to protect the enjoyment of land which, in itself, is an everyday

experience of members of society.399 (This, as will be discussed, may allow the protections

themselves to operate independently of possession.400) Ownership and, the possession, of an

estate, in law legitimise claims to land as a form of justice (at least when seen as concepts

providing for, more or less, predictable consequences).401 Other elements may function in more

Right to Exclude" (2011) 8 Econ Journal Watch 255, 257 ("[P]roperty doctrines are more varied and complex than merely securing assets through bright-line rules of exclusion."); J Harris, Property and Justice (Oxford Scholarship Online, 2010); see also generally, S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 57. Rules of a legal system that limit the right to exclude, for example, in statute, contract, or tort, are, as suggested by Merrill, governance rules and will be called as such here. See also T Merrill and H Smith, "The Morality of Property" (2007) 45 Wm and Mary L Rev 1849; H Smith, "Exclusion Versus Governance: Two Strategies for Delineating Property Rights" (2002) 31 J Legal Stud S 453; H Smith, "Exclusion and Property Rules in the Law of Nuisance" (2004) 90 Va L Rev 965.

396 For example, the law will generally hold a person liable if he or she does not prevent a known hazard on his or her land from causing a nuisance to his or her neighbour. See Hargrave v Goldman (1963) 110 CLR 40; cf Gartner v Kidman (1962) 108 CLR 12; Orion Consulting Engineers Pty Ltd v Blacktown City Council [2017] NSWLEC 1017, in relation to the flow of surface waters across land.

397 For example, a remedy is awarded at the discretion of a court. See, for example, Civil Proceedings Act 2011 (Q), s 8, and chap 7, para 7.4. It is not the purpose here to explain legal and equitable ownership of land (see generally DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431); cf W M C Gummow, "The In Personam Exception to Torrens Indefeasibility" (2017) 91 ALJ 549, 556. In so far as ownership is a registered ownership under a Torrens title Act, we can call the requirement for registration a formal entry rule for that sort of ownership.

398 See fn 408.

399 See, for example, Plenty v Dillon (1991) 171 CLR 635 (Gaudron and McHugh JJ); W Roberts, "A Possessor's Right to Damages for Permanent Injury to Realty" (1933-1934) 28 Ill L Rev 919; K Barker, "The Dynamics of Private Law and Power" in K Barker, S Degeling, K Fairweather, and R Grantham (eds), Private Law and Power (Hart Publishing, 2017), ch 1, 3 ("Private law's power-conferring and protective rules are close to the everyday experience of individuals in ways that constitutional, administrative and criminal law doctrines are (perhaps thankfully) generally not.").

400 See, in particular, chap 6, para 6.3.



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indirect ways and include, for example, a legality principle which may affect the interpretation

of a statute that purports to infringe on the 'fundamental right' of owning land.402

Owning land is a way in which people participate in society; more particularly, the enjoyment of

land requires participation in society according to the legal response to the objective of

recognising and protecting such enjoyment. Private property has been justified in "social

convention and group experience".403 At least on one view, though, and consistent with a

community-dependent (or what might be called an I-Others relational) view of ownership,404

the exclusive enjoyment of land by an individual may not necessarily be the "inevitable and

complete conclusion"405 of the application of ownership as a concept especially given there has

been recognised for some time a "shifting of emphasis … as a characteristic of the way in which

Courts administering the common law have … accommodated proprietary rights and modern

social interests".406

That said, the law strives, especially here, to operate in a cohesive manner.407 There is a danger,

then, in conceptualising ownership and, by inference, possession, outside that constraint and

without regard to the workings of the other elements of the law's response to the enjoyment of

land.408 For example, and as will be seen, an element of the law's response such as a right of an

owner to exclude others – which often is said to be what the right of possession confers – is a

functional consequence of ownership.409 And while ownership makes no functional sense in

402 See fn 381 and accompanying text. See also, for example, Criminal Code 1899 (Q), ss 277 (Defence of premises against trespassers – removal of disorderly persons); 278 (Defence of possession of real property or vessel with claim of right); Land Act 1994 (Q), ch 7, pt 2 (Unlawful occupation of non-freehold and trust land).

403 See fn 884.


405 See fn 374.

406 Gartner v Kidman (1962) 108 CLR 12, 47 (Windeyer J). See chap 5, para 5.4.

407 See generally Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, [143] (Keane J); R Grantham and D Jensen, "Coherence in the Age of Statutes" (2016) 42 MULR 360, 362-370, 382 ("In the face of the enormous proliferation of legislation in recent years, and the greater inroads legislation is making into areas that were hitherto the sole domain of the common law, we are left with the pressing question of how we deal with the inconsistencies between common law rules and statutory rules."). Consider, for example, the policy of the action for trespass. See fn 1164 and accompanying text. Cf B Depoorter, "Fair Trespass" (2011) 111 Columbia L Rev 1090; J Finnis, Natural Law and Natural Rights (OUP, 2nd edn, 2011), 270 ("A legal system exemplifies the Rule of Law to the extent … that … its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules …").

408 Each of ownership and possession, in respectively representing the characteristics which each represents, does "not function in isolation but as [a] component … of legal argumentation, and … [its] meaning must always be determined according to … [its] function in such argumentation": A Frändberg, "An Essay on Legal Concept Formation" in J Hage and D von der Pfordten (eds), Concepts in Law (Springer, 2009), ch 1, 15.

409 As will be explained, ownership and possession refer to a proprietary interest. Although their personal enjoyment and remedies which protect that enjoyment may be thought to be dimensions of


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itself unless an owner can enjoy ownership – and, for that reason, the right of the owner to

exclude may sometimes be characterised as a "fundamental common law right"410 –, care needs

to be taken should the law confer a right of exclusion on someone outside ownership, lest that

leave unanswered questions about what ownership, and by inference, possession, actually

represent in real property law. This is because the possibility of the enjoyment of ownership and

possession, and the protection of that possibility through a right of exclusion, tend to be

inherent factors in each of their respective and stable conceptualisations as opposed to how the

law conceptualises other interests and rights that may relate to land (for example, easements

and contractual licences411). In other words, the law cannot conceptualise ownership or

possession on the one hand, or lesser interests in land, without taking into account the

consequences of exclusion or non-exclusion, as the case may be (see chap 6). In this way those

consequences partake of what we conceptualise as ownership or possession.

3.4 Concepts in law and as 'propertising' things

When we conceptualise generally we can forgive ourselves for letting our imaginations run wild

as often no harm is done. Conceptualising can assist in our development of new ideas and in

resolving problems. In the realm of real property law, however, we need to be somewhat more

restrained or less forgiving of ourselves. We need its concepts to be stable and ordered, and,

unless there are dramatic shifts in our socio-economic development, to have a lasting

understanding.412 We must avoid entropy as we can assume that society does not seek out

disorder or a lack of predictability.413

Because societies have long divided things among their respective members414 and they and

those members have claimed things for themselves and necessarily against or relative to

others,415 dividing and claiming things, including land, necessarily have created, whether by

design or implication, priorities and authorities (some exclusive and others limited) over

things.416 Depending on the particular society (and certainly within the respective developments

the ownership interest, they are not. They are consequences, but assist in our conceptualisation of ownership and possession.

410 Coco v The Queen (1994) 179 CLR 427, 435; New South Wales v Ibbett (2006) 229 CLR 638, 646.

411 That is, at least in orthodox law, the grantee of an easement and a licensee do not have a right of exclusion as that right does not protect a liberty to enjoy the land in a relevant sense. See fn 511.

412 However, the more abstract the concept, the greater susceptibility it has to reshaping, including modification. See chap 4, para 4.2.

413 S Pinker, Enlightenment Now (Allen Lane, 2018), 16-17.

414 D Miles, The Tale of the Axe: How the Neolithic Revolution Transformed Britain (Thames & Hudson, 2016), 121. Natural theorists have tried to justify why divisions have occurred: see, for example, Samuel von Pufendorf, On the Duty of Man and Citizen (1673). See further fn 901 and accompanying text.

415 See fn 881.

416 See further fn 718.


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of England and Australia), domestic laws have been invented or have intervened to recognise

and protect the enjoyment of things generally by a concept of private property.417

In general terms, the legal concept of private property is applied to separate a thing (the subject

of property) from 'the common'418 and to recognise an individual's relationship with a thing.419

In this way, the law propertises the thing and the individual's relationship.420 Property

dominates the regulation of people's claims to things when the claims are not regulated in

contract (which only binds parties to the contract)421 or by statute. Hence, property can function

as a default rule for recognising relationships between individuals and things relative to the

world422 and although for land those relationships are often only secured by formal means (such

as registration), for other things such formality usually is not required.423 However, we may

417 A Linklater, Owning the Earth (Bloomsbury, 2013), 397; A W B Simpson, A History of the Land Law (Clarendon Press, 1986, 2nd edn), 1. Other variances on property may be seen in the notion of sovereignty of territory. Note, however, in Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, the majority drew a distinction between the effect of the Crown's acquisition of sovereignty over a territory and its radical title – they being essentially political concepts according to international law – and the Crown's acquisition of a proprietary title as an exercise of its sovereign power as a matter of domestic law. See, for example, at 57 (Brennan J).

418 See generally G Alexander and E Penalver, An Introduction to Property Theory (CUP, 2012), ch 1. The objective of private property's doing so has been discussed for thousands of years. Aristotle, who was an advocate of private property, wrote (The Politics (translated by T Sinclair, revised and re-presented by T Saunders), Penguin Classics, 1992), 114-115): "Responsibility for looking after property, if distributed over many individuals, will not lead to mutual recriminations; on the contrary, with every man busy with his own, there will be increased effort all round. 'All things in common among friends' the saying goes, and it is the personal virtue of individuals that ensure their common use. And such an arrangement is by no means impossible: it exists, even if only in outline, in some states already, and in well-run ones particularly, where to a certain degree it is in actual operation and could be extended. Each man has his own possessions, part of which he makes available for his friends' use, part he uses in common with others … Clearly … it is better for property to remain in private hands; but we should make the use of it communal. It is a particular duty of a lawgiver to see that citizens are disposed to do this." See also (the well-known) G Hardin, "The Tragedy of the Commons" (1968) 162 Science 1243.

419 Although not all things are susceptible to ownership (for example, running water and air and land below low-water mark has a peculiar status in the law). See para 3.7. This is relevant to our understanding of 'thinghood' as a conceptual characteristic of ownership. Also, as will be explained, the purpose of the exclusivity characteristic is to focus on the owner's relationship with the land, rather than the owner's relationship with others.

420 See K Gray, 'Property in Thin Air' (1991) 50 Cambridge Law Journal 252, 256-257; Federal Commissioner of Taxation v American Express Wholesale Currency Services Pty Ltd (2010) 187 FCR 398, [26]-[30] (Dowsett J). See fn 616.

421 According to Oliver Wendell Holmes, The Common Law (edn, M Howe, Little Brown & Co, 1963), possession was a "conception … only less important than contract". Note, for example, the law of fixtures. While parties may contractually agree that an item annexed to land is not a fixture, the presumption that the item is a fixture at law because of its annexation is not rebutted simply because of such an agreement, especially as the agreement may amount to no more than the subjective intentions of the parties to it. See Melluish v BMI (No 3) [1996] AC 454.

422 See generally, A Bell, "A Theory of Property" (2005) 90 Cornell Law Review 531, 533; H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3.

423 See, for example, Re Jigrose Pty Ltd [1993] 1 Qd R 382, 386 (Kiefel J) ("[I]t seems to me that if I do not wish to retain the possession or property in goods (perhaps most clearly shown by throwing them away), there is no reason in principle why the common law would require me to remain owner.").


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notice a conceptual shift in possession becomes, for example, a contractual and, therefore, non-

proprietary, idea.

An atomic or molecular version of property?

Gray has posed in the context of property 'takings' jurisprudence:

whether the deep structure of ‘property’ is, so to speak, atomic or molecular. If ‘ownership’ of land is acknowledged to comprise a ‘bundle of rights’, can it truly be said that by virtue of some process of ‘conceptual severance’, every interference with any individual right within the bundle constitutes a deprivation of ‘property’? Even if this ‘atomic’ analysis is tempered by some version of a de minimis rule, every non-trivial derogation from the overall bundle of a landowner’s user rights would necessarily constitute a compensable taking of ‘property’. Or does the term ‘property’ refer instead only to certain ‘molecular’ combinations of rights, with the result that the regulatory subtraction of a single user right from the bundle triggers no claim to compensation?

It must be said that, for present purposes, the common law tradition has always inclined towards a ‘molecular’ (rather than ‘atomic’) analysis of the phenomenon of ‘property’ ...424

This research adopts a perspective of ownership, as property, more consistent with an atomic

analysis, but not in the way Gray might suggest. It rejects the notion that, in its

conceptualisation, ownership is, or even represents, a bundle of separate rights that combine

together to create ownership, whether that bundle is static or changing (and which, if disturbed,

means that ownership has, at least to the extent of the disturbance, been acquired or even

taken). Rather, it adopts a view that, as an abstract concept in law,425 ownership (in possession)

represents certain essential characteristics and that, as land must always be owned, ownership

will persist one, as a legal concept contingent on there being a concept of land, and two (and

further to one), always attach to each parcel of land (and will be recognised as doing so through

the idea of title). Because ownership must represent its essential characteristics there are not

different types of ownership, even if the way in which ownership is enjoyed in law can differ

(say, when the land is represented by a fee simple estate as opposed to a lease, or from parcel to

parcel). Ownership is (in an orthodox sense) its own independent atom. If what is called

ownership can represent characteristics that differ from those identified as its orthodox

essential characteristics, then, there is no ownership as an independent concept, at least in the

orthodox sense. (An atom by its nature cannot be broken down further.) It follows on that view

that ownership is not made up of or represents a particular molecular combination of rights.

Ownership simply represents particular essential characteristics regardless of its different

applications.426

424 K Gray, "Can Environmental Regulation Constitute a Taking of Property at Common Law? (2007) 24 Environmental and Planning Law Journal 161, 168-169.

425 Which admittedly, when looked at one way, could be seen as contrary to an atomic view of property.

426 No attempt is made here to answer Gray's chief concern, namely, how the treatment of property affects 'takings' jurisprudence.


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A difficulty with a rights characterisation of what ownership in possession represents is that it

usually assumes a non-owner has some sort of correlative duty to any ownership right or rights

(essentially of non-interference). As discussed in para 3.5, ownership's essential negative

community view (at least in an orthodox sense) holds that ownership's essential characteristics

(or properties) represent for any owner a lawfulness of activity relative to the land. These are

not discrete rights: the owner, because of his or her title, may, if the estate is in possession, do as

he or she pleases if it is lawful to do so.427 The law thus preserves as ownership a priority to and

exclusivity of such enjoyment of land (described as thinghood) which is suggestive of a legal

power, authority, or order for the land. Such a relationship with the land remains constant; and,

of course, owners may come and go. If an owner can no longer do something on the land, to say

he or she has now been deprived of a right confuses the matter. The owner did not previously

have an enforceable claim against anyone to do something; he or she could simply lawfully do it

until he or she could not (as an I-Thing relational view). If someone else can do that thing on

the land, it does not necessarily follow that the owner no longer is an owner or that there is no

longer ownership. If we assume that ownership consists of every possible right (whether or not

arranged in a static way), that might be the case. But, if ownership is conceptualised as the

priority to and exclusivity of lawfulness of ownership – a highly abstract concept – it follows

that ownership may exist (no doubt, some would say, only in the imagination, and then only in

some imaginations) because the law says it does, including where someone else can now lawfully

do something on an owner's land that the owner cannot. This is the nature of a legal concept at

this level of abstraction (see chap 4, para 4.2). Lawfulness is about whether an activity is

permitted by the law. There is no minimum level of lawfulness of ownership. Because

ownership makes no sense without there being an owner, if a person is recognised as having title

(as will be recognised under land registration systems, for example), there must be ownership.

That is, we must take it to exist. What an owner can and cannot do, and what someone else can

and cannot do, on the land is a related, but distinct issue. Of course, a purely hollow title may

mean nothing to an owner, but there still is ownership. In Bone v Mothershaw – which

concerned whether ordinances made by a local government prohibiting the clearing of

427 Even when it is said an owner may control access to a physical thing on the land such as free flowing water, it does not mean he or she necessarily owns the thing (Gumana v Northern Territory of Australia (2005) 141 FCR 457, [70]). (Those things that are, at law, fixtures are, of course, treated differently.) The right to control access, or the right to exclude, is an analytical tool that can help us explain what an owner may enjoy (and what others cannot). But, especially from a negative view, if the owner can exclude then his or her control over access merely is that: it does not necessarily follow that that to which he or she can regulate access belongs to him or her. It may merely mean that no one else can have access to it. However, if no one else does, as a matter of law, own it, it may be able to be presumed that he or she owns it. This is why the right to exclude may be an analytical tool; however, it always assumes that the right to exclude has the correlative result that the holder of the right must be able to freely do as he or she pleases with that to which he or she can control access (for example, to transfer it). See fn 395 and compare with L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275 whose view the writer favours. See fn 1179.


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vegetation on land had the effect of acquiring an interest of a registered owner of a fee simple

estate granted by statute – McPherson JA (with whom Byrne J agreed) said:

The Council has not taken any interest of Mr Bone's, so as to attract the operation of the Acquisition of Land Act 1967 or otherwise. He retains unimpaired, for what it is worth, his estate in fee simple absolute in the land. He has been stripped of virtually all the powers which make ownership of land of any practical utility or value. There is, as is attested by an affidavit from the valuer provided at the hearing, no doubt that the value of the land has been greatly reduced. But the law provides no remedy for this action or its consequences when it is the result of legislation validly passed under law-making authority that by its terms of nature authorises or permits such an outcome …

[I]t in no sense involves acquisition of Mr Bone's property in the land. Both in purpose and effect, ch 22 resembles the legislation in the Tasmanian Dam Case, from which it may have taken some of its inspiration, in prohibiting damage to and use of the subject land, without amounting to an 'acquisition', by the Commonwealth or anyone else, within the terms of s 51(xxxi) of the Constitution. Legislation enacted by or under Parliamentary authority may, without providing compensation, prohibit and deprive or expropriate without involving acquisition …428

In recognising that Mr Bone still had the privilege of paying rates on the land to the Council,429

McPherson JA recognised that ownership persisted because the legal system in which

ownership functions "by its terms of nature authorises or permits such an outcome". What Mr

Bone, as owner in possession, could lawfully do in respect of his land as a result of the Council

ordinance was virtually non-existent (except perhaps to dispose of the land). Yet, in law, he

continued to have title to the priority to and exclusivity of lawfully enjoying that ownership. The

land still belonged to him and was capable of being enjoyed by him to the extent permitted by

law. Bone v Mothershaw was a case about a prohibition on an owner's use of his land: this

might be called a taking rather than an acquisition as it was a prohibition on the owner's

otherwise freely deciding how to use and exploit the land.430

[W]hilst a regulatory interference with single incidents of land ownership does not normally or intrinsically merit classification as a deprivation or taking of ‘property’, it remains feasible that the abstraction or destruction of a strategic combination of a landowner’s user rights and privileges may bring about precisely this kind of impact.431

However, such an issue mostly is one of statutory construction432 (and possibly legislative

power)433 and whether the owner is entitled to be compensated.434 That is somewhat of a

428 [2003] 2 Qd R 600, [25]-[26].

429 [2003] 2 Qd R 600, [23].

430 JT International SA v Commonwealth (2012) 250 CLR 1, [42]. See also at [153]-[154] (Gummow J), [169]-[173] (Hayne and Bell JJ), [277]-[281], [303]-[305] (Crennan J), [365]-[367] (Kiefel J); ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140, [132], [147] (Hayne, Kiefel and Bell JJ); Spencer v Commonwealth [2018] FCAFC 17, [335]-[340] (Perry J). Cf S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 63.

431 K Gray, "Can Environmental Regulation Constitute a Taking of Property at Common Law? (2007) 24 Environmental and Planning Law Journal 161, 170.

432 See generally fn 381.

433 Cf Commonwealth of Australia Constitution Act, s 51(xxxi) ("The [Commonwealth] Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of


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different issue as to whether the owner still owns the land. Bearing in mind that, even if the

'whole of the land' is taken by compulsory acquisition of the resuming authority (for example,

under an Act such as the Acquisition of Land Act 1967 (Q)) there is, in effect, an involuntary

transfer of the former owner's (personal) ownership to the authority; if the resuming authority

were merely to acquire for itself the power to do some thing on the land that the owner may have

previously lawfully been able to do, there can still be ownership in the hands of 'its' owner

because the acquiring legislation would not (subject to its provisions) have the effect of

depriving the owner of his or her title to ownership. If the land were land granted in fee simple,

the owner would remain registered as such. The registered owner retains title to the priority

and exclusivity of the lawful enjoyment of the thing because he or she has title to it and,

the Commonwealth with respect to … the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."); Sargent v Scriven [2015] 2 Qd R 140; Spencer v Commonwealth [2018] FCAFC 17; Newcrest (WA) Limited v Commonwealth (1997) 190 CLR 513; The Commonwealth v Tasmania (1983) 158 CLR 1, 145; Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, 408 (Gibbs J) ("[N]ot every compulsory divesting of property is an acquisition within s 51(xxxi).").

434 Private property certainly does not, in Australia, enjoy the same claim to universal protection (perceived or otherwise) as it does in the United States ostensibly because of the due process and takings clauses within the Fifth Amendment, and the due process clause in the Fourteenth Amendment, to the United States Constitution: "No person shall ... be deprived of life, liberty, or property, without due process of law …" and "private property [shall not] be taken for public use, without just compensation" (due process and takings clauses in the Fifth Amendment); "[N]or shall any State deprive any person of life, liberty, or property, without due process of law ..." (due process clause in the Fourteenth Amendment); see Stop the Beach Renourishment v Florida Department of Environmental Protection 130 S Ct 2592 (2010); E Peñalver and L Strahilevitz, "Judicial Takings or Due Process?" (John M Olin Program in Law and Economics Working Paper No 549, 2011) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1791849; cf S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 267-275. At 271 ("In the early twenty-first century, controversy over the constitutional protection of property rights shifted from the economic effects of government action to its underlying purposes."); D Callies and D Breemer, "The Right to Exclude Others from Private Property: A Fundamental Constitutional Right" (2000) 3 Wash J of Law and Policy 39. See Kelo v City of New London 545 US 469 (2005). Although, as noted, see the Constitution of Australia, s 51(xxxi). Nor does private property have the same claim of being of natural right (see T West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (CUP, 2017), ch 14. Magna Carta had relevantly provided that "[n]o free man shall be … stripped of his rights or possessions … except by the lawful judgment of his equals or by the law of the land" (cl 39 (1215)); in later statutory form, 28 Edw 3, c 3 ("No man of what state or condition he be, shall be put out of his lands or tenements nor taken (taken to mean arrested or deprived of liberty by the state), nor disinherited, nor put to death, without he be brought to answer by due process of law."). Thus, it is an aspect of the rule of law that those who have property naturally are of a class of persons to which the law must apply equally. It cannot be, for example, that one owner can be deprived of property and another owner cannot where the circumstances are relevantly identical. In Australia, the High Court has found no limit on the exercise of the States' powers to acquire property without paying the former property owner compensation (Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382, 397-8 (Latham CJ); cf fn 433).Nevertheless, "a clear and plain purpose is required for a statute to extinguish property rights, particularly where the legislation purports to do so without compensation" (Ward, [567] (Callinan J)): this tends to militate against a notion of property "rights [being] deeply rooted in our democratic system of government and the common law" such that they transcend "the general good of the whole community"; cf Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10: Submission of Professor D Farrier (Submission 126) to Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, 2016).


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therefore, the ability to make decisions in respect of the land that otherwise are lawful.435 It is

here we understand why possession is important. Possession captures the lawful enjoyment of

ownership in that it contemplates all such possible lawful activities. Even if the resuming

authority is now the only entity which may lawfully undertake a particular action on the land

(for example, and hypothetically, to cut and remove timber on the land), the owner in

possession still has the freedom to lawfully dispose of his or her ownership:436 that is enough.

That is, title to ownership represents an important element of our conceptualisation of

ownership as it captures an abstract quality of priority to and exclusivity of the land, namely, a

disposable quality.

As mentioned (and further discussed in para 3.11), a lease is a form of ownership.437 However,

obviously, the lease while in possession itself represents the priority to and exclusivity of the

leased land in the sense that it is all that the owner (lessor) could ordinarily enjoy except for the

lease: the owner's interest (often called a reversion) is of different priority to and exclusivity.438

And a profit à prendre is sufficiently corporeal at law (it being a grant of the enjoyment of

removing a natural product on the land), meaning that the estate in the natural product is with

the grantee. But, where an ownership interest of the quantity of a lease or a profit à prendre is

not granted, and while we have identified that the owner still has ownership (by title), is it

correct to say that the owner still really has ownership (or can enjoy it in possession) when

someone else has the right? From the argument above, yes, even if, from one perspective, the

owner may have been deprived of a reality of ownership.439 The law often, in a hierarchical

sense, says that ownership merely is subject to the right (much like a ius in re aliena is). While

the enjoyment of land conceptually represents the freedom of lawful decision-making (a not

admitting anyone else aspect of exclusivity), it is a contingent element of that abstraction that it

must be of the land (the 'thinghood'). Ownership is not deconstructed because someone who is

not the owner may, in respect of the land, do something simply because the owner cannot.

Here, we must look at what the someone else can do, not what the owner may not: the someone

else has not acquired for himself or herself the priority to and exclusivity of the land (as he or

she might under a lease or profit à prendre). Rather, he or she has the limited right to do

something on, over or in the land. That is not how we conceptualise ownership, nor is it proper

435 See the discussion in para 3.9 about Moncrieff v Jameson [2007] 1 WLR 2620.

436 In a system of registered title such as occurs under the Land Title Act 1994 (Q), only the registeredowner may execute a transfer of his or her ownership of the fee simple estate in respect of a lot.

437 Although, note the discussion in para 3.11 about the contractualisation of a lease. In accounting terms, a financing lease is one where the asset being leased is treated as having been transferred to the lessee whereas under an operating lease the asset is not treated as having been transferred.

438 K Gray and S Gray, Elements of Land Law (OUP, 5th edn), 93 ("[The respective claims of the lessor and lessee] are "mediated through the language of different estates in the land.").

439 Cf JT International SA v Commonwealth (2012) 250 CLR 1 [193] (Heydon J); Newcrest (WA) Limited v Commonwealth (1997) 190 CLR 513, 633 (Gummow J).


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to say the someone else has a right of ownership (as ownership conceptually represents an

atomic idea).440

This may suggest that ownership (in possession) need not be more than a disposable title to the

land. And, in a sense, that is not incorrect.441 But, title and ownership are different. Title

conceptually represents the ultimate authority of the land of the owner; if a non-titleholder may

lawfully do everything else in relation to the land (for example, develop it), that does not make

him or her an owner in a title sense,442 but it may put him or her in possession of the ownership

interest in the land.443 But, the ownership interest has not changed as it does not matter who

enjoys or possesses it (whether the registered owner or a possessor). In this regard, the law

developed adverse possession around limitation periods,444 recognising that while a non-owner

may be in possession and, as such, have a possessory title, the owner does not lose his or her

right to recover possession unless statute-barred.445 That is, the owner's title does not disappear

simply because someone else is in possession. However, when we say the other person may do

everything else by right then he or she has title: that title may be of a lease (a form of ownership

interest) or it may be a possessory title (even if the possession is adverse to the title of the

owner). Regardless, each title conceptually represents the immediate ultimate authority of the

land of an owner (even if not the formal owner).

It can be seen then that the concept of ownership in possession is concerned with time in land:

the law needs to order exclusive enjoyment of the land according to periods (so as there are not

disputes as to who may enjoy it). It signifies this by the idea of ownership of the estate being in

possession meaning it is immediately enjoyable by the person who is in possession of the estate,

whether the owner or a possessor. And it recognises the enforceable claim or entitlement to that

immediate enjoyment in a person by title (whether a registered title or a relative possessory

title).

Propertising in the abstract as justice in society

440 See Fejo v Northern Territory of Australia (1998) 195 CLR 96, [43] ("[The fee simple estate] simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute , by the owner of the fee simple or by a predecessor in title.").

441 See para 3.9 and the discussion of Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380.

442 Consider, for example, a beneficial interest held under a trust.

443 Cf Congoo (French CJ and Keane J). There their Honours found, in effect, that, while the Commonwealth had actual possession by legislative authority, it was not, or could not be, admitted to ownership by title. See chap 7, para 7.3.

444 See JA Pye; Buckinghamshire County Council v Moran [1990] Ch 623, 644; chap 1, para 1.4.

445 See, for example, Limitation of Actions Act 1974 (Q), ss 13, 19.


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Recognising private property in things as well-defined rights is a way of giving effect to or

encouraging social order and economic growth in the public interest.446 Certainty is important

in property law447 as it is a form of justice. How ownership in possession functions in society

and the legal system generally are aspects of how we conceptualise and interpret it. That is, our

meanings and consequences of and for such ownership are an application of justice in society.

Ownership and possession as concepts need, therefore, to work or function in ways that provide

public benefits. Recognising, as seen, title to or of ownership, and associated rules,448 are means

by which the law gives effect to an argument or objective it has for ownership.

Of the notion of prior possession,449 Alexander says:

… [T]he apparent consequence of Prior Possession does not favour … dispossessed claimants. Prior Possession does not question their assertions that injustices were committed when they were dispossessed, but its concern is not with correcting that injustice. Its concerns are with protecting a stable order …

Prior Possession is concerned with a form of justice, but the justice of order, stability, and security, rather than restorative justice. It opposes upsetting regimes, however they came about … It is with the peace, stability, and security of the existing order that the Prior Possession principle is concerned … It favors the currently existing order, at least prima facie

…450

Of the Torrens title system, a system too of creating justice – and, therefore, part of the law's

(modern) conceptualisation of ownership –, and not by "registration of title but … [through]

title by registration",451 Callinan J said in Black v Garnock:452

446 A Linklater, Owning the Earth (Bloomsbury, 2013), 397; J Mokyr, A Culture of Growth: The Origins of the Modern Economy (Princeton University Press, 2017), 122. Saying that property is in a thing can be confusing. Property may be an interest in land because it has a particular law-stating function relative to land and, as such, relates to and reacts with ownership of an estate in a different way to a personal right that the owner gave to someone, albeit also exercisable in respect of the land. It is easier to understand if we say ownership is of land and every lesser interest or right is in respect ofland. Some such interest or right might be classified as an interest in land because of what it is (for example, an easement, a mortgage). But, it does not have any greater connection to the land itself than the personal right in terms of the freedom of its holder to enjoy it. For sure, however, it binds ownership (regardless of the owner) in a way the personal right does not. Regardless, it is not of the land; only ownership is.

447 Ward, [969] (Callinan J).

448 For example, of present and future interests.

449 See fn 529.

450 G Alexander, Property and Human Flourishing (OUP, 2018), 154.

451 Breskvar v Wall (1971) 126 CLR 376, 385 (Barwick CJ); K Low, "The Nature of Torrens Indefeasibility: Understanding the Limits of Personal Equities" (2009) 33 Melbourne Uni L Rev 205, 206 ("By overturning the common law rule of nemo dat quod non habet [that is, one cannot give what one does not have], it also significantly reduced the risk to a purchaser of any conveyance which was duly registered under such a system, since the purchaser's title upon registration would be 'indefeasible' and free from defects affecting the vendor's title."). See also J McKay, "Indefeasibility" (2017) 26 APLJ 207.

452 (2007) 230 CLR 438, [72].


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The purposes and objects of the Torrens system of title were to simplify conveyancing, to introduce a greater assurance, indeed certainty, of title and in consequence to reduce the expense of establishing and protecting title under the old land titles system.453

Whether a thing is, as a form of justice, the subject of property because of a claim to its

possession454 or because it is the subject of a registered title of ownership, we are identifying an

especially abstract conceptual idea that the thing is not of property unless it is at all times

'legally' held. For land, this is the proprietary notion of ownership of an estate. An owner as

titleholder, however, strictly enjoys ownership of the estate, not the estate (see para 3.9).

Authority (or control-power) relationships with or of things mean that people in society

understand how they can behave relative to things and their enjoyment, and importantly,

relative to others to the extent those relationships concern things.455 Such a relationship of

authority is, then, a form of justice. Property, as a legal sanction of a claim to or of a thing,

markedly diminishes the possibility of disputes about the enjoyment of things through a

hierarchical ordering of authority relationships (a type of relativity) in respect of – or rather,

which affect – the thing and, therefore, property reduces costs associated with enjoying things of

property-holders. This is because, where there are recognised or specific instances of when a

person may and may not interfere with the property-holder's enjoyment of the thing (as often

associated with a right to exclude theory of property), the property-holder need not, on each

occasion of interference, personally incur costs in evaluating each occasion as a justified or

unjustified interference with his or her enjoyment of the thing.456 Property represents, then, its

own interest or value in the hands of the property-holder and in society (for example, property

also is an institution of society as it constrains, although does not prevent, its arbitrary

expropriation by government) (see chap 4).457

A fundamental idea of property obviously, then, is that the property relationship with the thing

must be a relationship capable of being recognised in law: it must be apparent that the

relationship can be regulated within the law (or what we would say for present purposes,

capable of functioning as part of a response to an objective or argument for recognising and

453 See also Gibbs v Messer [1891] AC 248, 254. The Torrens system cannot recognise a prior possession. W M C Gummow, "The In Personam Exception to Torrens Indefeasibility" (2017) 91 ALJ 549, 556 ("The essence of the Torrens system was the replacement of two estates, legal and equitable with one estate – the registered interest, with title by registration not antecedent to it."); cf M Wonnacott, Possession of Land (CUP, 2006), 46-49.

454 See para 3.2.

455 However, it is suggested a 'mine-yours' view of property is too limiting. See fn 933.

456 G Alexander and E Penalver, An Introduction to Property Theory (CUP, 2012), 136.

457 See also chap 7.


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protecting the enjoyment of land).458 In this respect the relationship must be able to attach to or

affix itself to the thing, even if (as is the case) the relationship is one conceived of in the abstract.

While property is conceptualised as an individual's relationship with the thing, it is necessary

that the thing itself be something which makes the relationship of authority possible (see para

3.7). In law, this reveals itself in the very object of propertisation: the enjoyment of the thing

according to the authority of a relationship.

Sometimes the thing itself is referred to as property.459 But, that can be misleading because the

real query is whether the law can recognise a relationship of authority with the thing as property

so that it can be enjoyed. This is an inquiry into whether a particular type of relationship

according to a conceptual scope of authority – for example, a relationship of priority and

exclusivity – is capable of being had and enjoyed with respect to a particular thing. In a very

simple manner it may, on occasions, even be understood in the adage, "where there is a right,

there must be a remedy".460 The thing itself (whether tangible or intangible461), then, must be

able to represent, through its own features, that such a relationship is possible and desirable

having regard to the public interest of social order. For ownership (as property), its inherent

quality (and quantity) must be that it commands the authority of the thing; or, to put it the other

way around, the thing must be the subject of ownership's command.

Propertising land (consistent with the law's objective) extends to land's being of or subject to an

exclusive authority (a managerial authority) or a limited one. An exclusive authority is, as

suggested, associated with what the law constructs as ownership or possession of an estate in

land (the corporeal) (see, in particular, para 3.9), whereas a limited authority is associated with

lesser interests or mere rights in, or in respect of, land. In either case, the propertising of a thing

creates for the law the characteristics of the thing as now being subject to an enjoyment

according to the legal relationship represented by the particular authority. There is, in other

words, a legal agenda for or of the land because property is the condition of the land's use or

458 See Dorman v Rodgers (1982) 148 CLR 365, 372 (Murphy J). See also Yanner v Eaton (1999) 201 CLR 351. Native title rights and interests, although found in the traditional laws and customs of their holders, are property as recognised by the common law. See also Cf Banjima People v State of Western Australia (2015) 231 FCR 456, [104]; Moses v State of Western Australia (2007) 160 FCR 148, [210]. See also Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, [47]; Akiba v Commonwealth (2013) 250 CLR 209.

459 Yanner v Eaton (1999) 201 CLR 351, [18] (Gleeson CJ, Gaudron, Kirby and Hayne JJ); Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246, 257 (McPherson JA) ("The word 'property' is plainly capable of meaning either or both of the thing owned or ownership of the thing; as when one says of something 'that property is my property' …").

460 See Manchester Airport plc v Dutton [2000] QB 133; Secretary of State for Environment, Food and Rural Affairs v Meier [2009] 1 WLR 828, [25] (Lady Hale). See chap 5, para 5.2.

461 Or corporeal or incorporeal.


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exploitation.462 Propertisation brings land within, or invents interests and rights so they are

subject to, peculiar legal ideas and regulation for their enjoyment.463 However, when land is

propertised by ownership (as it must always be as land is legally capable of being owned), the

(subsequent) granting of a limited authority does not (further) propertise the land (except in a

derivative sense) as that would have the consequence that ownership now is not the exclusive

authority of the land. (Thinghood cannot, in respect of the one thing, be a characteristic of

property enjoyed in possession in the hands of more than one.464) Nevertheless, as will be

explained (see chap 7), a right of possession – where not enjoyed by an owner and not as a

relative title to an owner's (or another's) right of possession to the same estate – may have

developed as its own non-derivative465 and, therefore, anomalous propertisation of land and in

such a way that it may not always represent possession's orthodox thinghood characteristic.

(That is, the right of possession may represent a characteristic of property enjoyed 'in

possession' in the hands of more than one or be in respect of land, not of land.)

Because property exists on a continuum,466 how a thing is said to be propertised – the degree of

authority of a thing relative to a property-holder – depends on the particular relationship of

property with the thing said to be the subject of property and the various elements within the

law's response to recognising and protecting the enjoyment of that thing.467 For example,

property may exist in equity in respect of a thing and property that is a proprietary interest in

land is of a different quality (and quantity468) to a mere personal right – which still is property469

– in respect of land. But, the thing itself may be more abstract than this suggests as clearly

many rights at law may qualify as property, the rights themselves being the subject matter of the

relationship with the property-holder. That is, the right, albeit as an abstraction, is the thing

462 Cf F Vaki, "Adam Smith and Immanuel Kant as critics of empire: International trade companies and global commerce versus jus commercii" in F Forman (ed) The Adam Smith Review Vol 9 (Routledge, 2017), 14, in comparing Immanuel Kant's theory of property with that of John Locke's; L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275.

463 Dorman v Rodgers (1982) 148 CLR 365, 372 (Murphy J) ("[Including] to secure them by bringing them within the scope of legal remedies.").

464 See para 3.7. More than one person may have, in respect of an estate, a right of possession at the same time. But, only one person can enjoy the estate in possession at a given time.

465 Non-derivative because it is not derivative of ownership. Possession, as a legal concept, is of ownership. See para 3.10.

466 K Gray & S Gray, "The Idea of Property in Land" in S Bright & J Dewar (eds), Land Law: Themes and Perspectives (OUP, 1998), 15.

467 As already said, title by registration under the Torrens title system applying throughout Australia (see, for example, Land Title Act 1994 (Q)) means that it is not appropriate to refer to an unregistered 'title' to ownership. See fn 522.

468 For example, the words 'fee simple' denote the quantity of the estate granted (Stephen v Federal Commissioner of Land Tax (1930) 45 CLR 122, 134 (Isaacs CJ); see also Commonwealth v New South Wales (1923) 33 CLR 1, 42; Commonwealth v Anderson (1960) 105 CLR 303. See fn 609.

469 Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373,[25] (Holmes JA); cf [45] (Chesterman J).


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that is of property and only exists in the imagination of the law.470 Accordingly, property of a

grantee of an easement is in the subject matter of the grantee's relationship with the easement –

that which is represented by the grant of easement (including any ancillary rights) – which is an

interest in land, not the land (see para 3.5). However, as will be explained, when we talk of

ownership in possession being of the empirical concept of land, that may be too limiting: rather,

such ownership has a conceptual linkage to the lawfulness of land's enjoyment, a highly abstract

concept in itself.

The significance of conceptualising

Although they are legal concepts, possession and ownership can, as recurring phenomena,

functionally and reliably capture – although in imperfect ways – mental representations or

perceptions of what actually goes on in society as they are (or possession especially is) reflective

of observable phenomena (as internal or external properties or entities).471 So, their cerebral

conceptualisation in law as property (and as a form of justice) is not ignorant of how people are

observed in participating in and ordering their enjoyment of things in society.472 However, any

conceptualising of possession and ownership is not moral philosophising; possession and

ownership simply represent in law a relationship that exists with land.473

470 See, for eg, Dorman v Rodgers (1982) 148 CLR 365, 373-374 (Murphy J) ("In modern legal systems, 'property' embraces every possible interest recognized by law which a person can have in anything and includes practically all valuable rights … When used in legislation it should be given its 'ordinary' or 'natural' comprehensive meaning unless the context or history of the legislation suggests otherwise … Numerous text-books and learned articles analyze the right to work or the right to paid employment as a property right or closely akin to a property right … Elsewhere property has been held to include a calling, business, or profession chosen and followed … The right to practise as a priest has been held to be property …; also the right to practise law …; the business of an attorney …; the right to practise medicine, surgery, dentistry and other forms of healing … Property has been held to include a variety of rights to pursue a vocation such as a seat on a grain exchange … [citations omitted]."). Cf Jack v Smail (1905) 2 CLR 684, 705 (Griffiths CJ) ("[A grocer's licence under licensing legislation] is not property; it is a personal right of the insolvent to carry on business in a particular place under conditions prescribed by law."); Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235, 242 (Knox CJ, Gavan Duffy, Rich and Dixon JJ); 246 (Isaacs J).

471 See generally C Rose, "The Law is Nine-Tenths of Possession: An Adage Turned on Its Head" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 2, 77; D von der Pfordten, "About Concepts in Law" in J Hage and D von der Pfordten (eds), Concepts in Law (Springer, 2009), 17-34, 20 ("[I]n the history of ideas to determine what concepts are … conceptualism [provides that] concepts are mental representations in individual humans … of internal or external properties or entities (Ockham, Descartes, Locke, Leibniz, Hume, Kant, Fodor, Margolis/Laurence, Prinz) (which does not mean that they are pictures of those properties or entities) …").

472 Cf K Gray & S Gray, "The Idea of Property in Land" in S Bright & J Dewar (eds), Land Law: Themes and Perspectives (OUP, 1998), 15-51; L Kähler, "The Influence of Normative Reasons on the Formation of Legal Concepts" in J Hage and D von de Pfordten (eds), Concepts in Law (Springer, 2009), 81-98, 102 ("[T]o function well, the law cannot be altogether out of step with the knowledge in the society it is supposed to govern.").

473 While this research would likely sit closer to recognising ownership and possession in law as based in a positivist theory of law, the theory is not pursued, not does it need to be having regard to the objectives of the research.


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Ownership and possession do not define or perhaps even describe different relationships with

land; each is a concept of relationship with land (put into effect by the law through different

rules such as entry rules and other concepts). We need to understand what their characteristics

are in the context of their roles and why, as highly abstract legal concepts, they are susceptible to

being modified.

Concepts in law, unlike rules and principles, characteristically can be just beyond our thinking.

They often are fuzzy.474 However, that is not an obstacle to their application. Lawyers often

limit their thinking to rules and principles: if event A happens, legal consequence B will follow (a

rule), or it is an accepted proposition that a person such as A may owe a duty of care to a person

such as B but only where it is reasonably foreseeable that A's conduct may cause loss or damage

to a person such as B (a principle). Concepts are different; they are the law's representational

understandings of things as represented by particular essential characteristics.

Being (relevantly) abstractive in nature475 legal concepts can, and invariably do, encourage idea-

building, but, at the same time, their natures and development usually are stable as they are

contingent on their connections or linkages with other concepts (for example, possession's

content, at least for this research, is contingent on its connection with land): representative

characteristics that make a connection with a concept that has a non-legal counterpart (such as

land) can thus have a visceral quality and may, to some degree, act as a constraint on the (first)

legal concept's reshaping (at least in any sudden way).476 However, the abstractive nature of a

legal concept (such as possession or ownership) tends to "open up the possibility for the legal

system to modify … [the concept, including a contingent concept] and shape … [it] according to

its own purposes and values to a great extent."477

When we speak of a concept in law, what we are judging to be consistent with or not consistent

with, or a consequence of, a concept is something relative to the concept's characteristics, not a

(lexical) meaning of a word.478 Further to the discussion in chap 1, para 1.4, a word, or even a

connection of words, can be distracting and uninformative. Those who are required to make

474 We are not here concerned with the concept of law.

475 There are levels of abstraction. See chap 4, para 4.2.

476 The connection ought not merely be a restraint in, say, a court's adjudicative processing of which way to go, as a restraint (rather than a constraint) suggests that the court had a choice as to which version of possession it might adopt. The constraint here is one of the law in the sense that possession is a legal concept with particular essential characteristics.

477 D von der Pfordten, "About Concepts in Law" in J Hage and D von der Pfordten (eds), Concepts in Law (Springer, 2009), 17-34, 29. See, in more detail, chap 4, para 4.2.

478 Cf D von der Pfordten, "About Concepts in Law" in J Hage and D von der Pfordten (eds), Concepts in Law (Springer, 2009), 17-34, 24 ("The classical model of conceptual definition is an outcome of the classical doctrine that concepts are epistemologically dominant in comparison to linguistic phenomena like words and sentences. The reductionist positivist model of conceptual explication is a natural and historical, although not necessary, outcome of either the realist or the nominalist view that concepts are qualities or linguistic entities like words or connections of words.").


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their own mental representations of possession and ownership – for example, judges and

lawyers – do so by focusing on those terms as public representations of particular characteristics

in their contextual surroundings and because of their conceptual linkages to land.479 Possession

and ownership, without anything further, imply some sort of content, and obviously in a more

than rudimentary way. In dealing with an issue at hand each judge and lawyer undertakes a

rehearsed or learned process of considering and applying 'the law' essentially as a collection of

public representations that bear on the particular transaction or issue at hand and often on a

case by case basis, that being a "way familiar to the common law".480 But, they invariably will,

although each applying 'the law' (say, a precedent), form different perspectives on the

representational content of possession or ownership and their consequences depending on what

is in issue in an adjudicative setting or a particular enquiry. For example, and as will be shown,

when we conceptualise ownership we understand that a legal consequence is a right of exclusion

and non-interference as that right becomes necessary to protect an owner's enjoyment of

ownership in possession. It is a natural consequence of how we represent such enjoyment: that

is, we do not admit anyone else. However, from one perspective, the exclusivity may, in the

circumstances of a particular dispute (for example, where the subject land has a public quality),

appear to contemplate (as a consequence) an arbitrary exercise of the right of exclusion against

someone who, in the interests of justice, ought to have freedom from such exclusion. Thus,

exclusivity has not been relevantly affected and, conceptually, neither has ownership (or

possession); it simply has not led to a consequence that might arise were the factual

circumstances different, including perhaps where there is, as said by Windeyer J in Gartner v

Kidman, a "shifting of emphasis … [in the] way in which Courts administering the common law

… accommodate proprietary rights and modern social interests".

In a different, but related, way, a court may interpret a statutory interest in land that bears the

same label as an interest in land under the general law as having different conceptual

characteristics. For example, a lease for pastoral purposes under a Crown or State lands Act in

Australia may, like a general law lease, represent the characteristics of priority and exclusivity in

the sense that the lease is, and can be, the only lease in respect of a particular parcel of land.481

However, conceptually that priority and exclusivity might be said to represent something

different because it is of the thing (or resource) that is the use of the land for pastoral purposes,

479 See Aftermarket Network Australia Pty Ltd v Certain Underwriters at Lloyd's Subscribing to Policy No 6482/13(C)-13087, [2016] FCA 1402, [55] (Allsop CJ), as cited in para 3.8, where his Honour describes ownership.

480 Lawrence v Fen Tigers Ltd [2014] AC 822, [132] (Lord Neuberger).

481 See generally Wik Peoples v The State of Queensland (1996) 187 CLR 1, which considered pastoral leases under the Land Act 1910 (Q) and Land Act 1962 (Q). Note also, Land Act 1994 (Q), s 15(2)(a) ("The Minister may … lease unallocated State land for either a term of years or in perpetuity"); sch 6, definition of 'unallocated State land'. Once a lease has been granted, the Minister does not have the power to grant another lease under s 15(2)(a) as the land no longer is unallocated State land.


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not the thing (or resource) that is the land itself.482 But, what affects such a conceptualisation is

context and, often, the point in time when an adjudication of an interest-holder's rights are in

issue. Of the decisions of majorities of the High Court in Wik Peoples v The State of

Queensland483 (Wik), Ward, and Wilson v Anderson484 – all of which concerned the nature of

lessees' interests under leases granted under various Crown or State lands Acts in the context of

claims (or possible claims) for the determination of native title rights and interests over the

same lands – Simon France J in New Zealand Fish and Game Council v Her Majesty's

Attorney-General485 said:

It is possible to focus within those decisions on the factors in the specific legislation or lease that lead the majority to conclude that the leases did not confer legal possession (the outcome of Wik and Ward) or did (the outcome of Wilson). It is impossible to do so, however, without acknowledging that the analysis is affected by the context in which the decisions arose.

Specifically, in reviewing Wik, his Honour made the significant observation that:486

[the] context of whether a pastoral lease ends native title influenced the starting point, and the focus, of the majority judgments. Clear legislative words are needed to extinguish native title. Since exclusive possession would exclude native title, clear words were therefore needed before it could be said that exclusive possession was being conveyed to the lessee. The exercise was therefore … a specific inquiry to discern if a specific consequence was

intended.487

Consider also that the conceptualisation of ownership and possession is affected by how their

purposes are perceived. In Queensland, for example, in his Report on Progressive Land

Settlement in Queensland (1959), Sir William Payne, as chair of the Land Settlement Advisory

Commission, wrote:

The State is wedded to a policy of leasehold tenure of large areas for the protection and benefit of future generations. Nevertheless, we must inculcate something akin to a sense of ownership in those who are using the land. The homesteading instinct must be encouraged. It is all to the good if Crown tenants on terminable leaseholds use and consider the land as

their very own. That is the way the utmost development can be fostered.488

482 This is the concept of 'possession of a purpose' discussed in chap 7, para 7.3.

483 (1996) 187 CLR 1.

484 (2002) 213 CLR 401.

485 (2009) 10 NZCPR 351, [34]. There, the New Zealand Fish and Game Council, a body representing hunters and people who fished, sought a declaration that pastoral leases granted under the Land Act 1948 (NZ) did not confer 'rights to exclusive possession'. The Council was unsuccessful.

486 (2009) 10 NZCPR 351, [37].

487 However, his Honour added (at [40]) that, despite their context, the decisions in the Australian authorities were relevant to the resolution of the dispute before him ("I do not consider the defendants correct in their submission that this context means the Australian decisions are of little relevance. The statutory factors that influenced the majority in Wik and Ward to conclude exclusive possession was not given remain arguments that are available to, and made by, the plaintiff. They are not explained away solely by context.").

488 Page 7; cf P Babie, "Three tales of property, or one? (2016) 25 Griffith Law Review 600.


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The main thrust of Sir William’s report was that Queensland, a State in respect of which the

majority of its land is non-freehold, needed to adopt a ‘populate or perish’ land strategy. This

was intended to encourage the intensive use of land as more of it became settled and developed.

The Land Act 1962 (Q), the product of Sir William's report, reflected this through the release of

numerous new types of leasehold tenures encouraging improvement and development (and the

freeholding of closely settled areas of Queensland).

In 1992, the Department of Lands (Q), White Paper – Crown Land Management Reform in

Queensland adopted somewhat of a different perspective.

In dealing with individual parcels of land, “Crown land management” is seen as stewardship of the land which is held in trust for future generations. This is a combination of Crown and lessee responsibilities. For the Crown such management includes decisions on: ensuring sustainable use of the land; the most appropriate use or purpose for a particular parcel of land; the form in which the land should be held; the rights and obligations that should attach to that holding; and the allocation of land. For the lessee such management includes responsibility for those decisions directly relating to the use of the land, business decisions

and land condition decisions.489

Although the White Paper acknowledged, as did Sir William’s report of 1959, a need to protect

leasehold land for future generations, there was, in the Paper, a perceptible change in how the

State saw the respective roles or authorities of the State and lessees in terms of the use and

exploitation of land. There was the clear recognition of the relationship between the lessee’s use

of the land for a particular purpose and the sustainable use of land as a resource in general.

However, more recently, the Queensland parliament adjusted the State's continuing statutory

tenurial authority in respect of leases of unallocated State land under the Land Act 1994 (Q) for

rural and tourism purposes when it created rolling term leases – a form of perpetually

renewable lease – in the expectation that this would encourage greater investment in the land,

associated communities, and the Queensland economy generally.490 However, while a rolling

term lease is, in a sense, not inconsistent with the perpetual nature of the ownership of an estate

in fee simple,491 nevertheless, it remains a peculiar form of lease essentially of or for a purpose

and, construed in the light of the leasehold land regime of the Land Act 1994 (Q), it is perhaps

489 Para A1.

490 See Land and Other Legislation Amendment Act 2014 (Q). This was Stage 1 of a proposed State land tenure reform in Queensland. With the change in government in 2015, Stage 2 did not materialise. The amending Act also removed the need for leases over rural leasehold land to be subject to land management agreements (except in limited cases) and for such leases to be assessed as being in 'good condition' as relevant to their terms (although see now Land Act 1994 (Q), chap 4, pt 3, div 1B (Extension of particular term leases)); removed former corporation and aggregation restrictions (see former chap 4, pt 2, div 2; s 174); allowed lessees of term leases for pastoral purposes to apply to convert their leases directly to freehold land (rather than first, as perpetual leases) (see now s 166); and removed the restrictions on lessees selling subdivided leases within 5 years after the subdivision (see former s 176H).

491 Cf Bowyer Group Pty Ltd v Cook Shire Council [2018] QCA 319 which considered whether a lessee of a rolling term lease under the Land Act 1994 (Q) was an owner under the Sustainable Planning Act 2009 (Q) (rep).


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the priority to and exclusivity of the purpose rather than the lease land, that determines the

scope of the lessee's ownership or possession in respect of that land.492

Certainly, however, any shaping or reshaping (including by modification) of the possession and

ownership concepts generally cannot occur merely because they are abstract concepts;493 that

would suggest they are structurally weak (which clearly they are not). As said, it is their

abstractive qualities that exposes them to reshaping if the law, for example, should shift its

argument "according to its own purposes and values" as to their applications or the law's

argument of what is intended by the enjoyment of land (a contingent abstraction). In this

regard, unduly focussing on rights and obligations of someone who has a relationship with land

(such as a right of exclusion) and remedies for intrusion onto or interference with land, rather

than concepts and their characteristics, can be distracting and contribute to a false rhetoric or

understanding about possession and ownership and their applications.494 That type of focus,

while concerning the justification for possession and ownership – a legal concept itself that is

especially susceptible to reshaping in an adjudicative setting – can tend to confuse itself with

'exclusivity' and lead to the invention of new concepts such as a 'right of non-exclusive

possession' that, at times, appear ad hoc and justifiable only to according to specific

outcomes.495

492 See para 3.7; cf, for example, Land Act 1994 (Q), s 154 (Minister may approve additional purposes); Inkerman Station Pty Ltd as trustee v Allan [2017] QSC 147; Inkerman Station Pty Ltd v Allan [No 2] [2017] QSC 243, [49], where Henry J found that the Minister could not approve an additional purpose for a lease as one which (according to s 154(2)(a) was a jurisdictional fact) was "complementary to, and does not interfere with, the purpose for which the lease was originally issued" unless the additional purpose had a "positive material effect upon the original purpose and not materially impair or detract from it".

493 Although, of course, statute may strictly shape such terms as it pleases. That said, as the terms are derived from the general law, statute, as a method of creating or building law, should not, except by clearly expressed terms, wholly adopt meanings that are quite different to the concepts of ownership and possession under the general law; R Grantham and D Jensen, "Coherence in the Age of Statutes" (2016) 42 MULR 360, 382 ("In the face of the enormous proliferation of legislation in recent years, and the greater inroads legislation is making into areas that were hitherto the sole domain of the common law, we are left with the pressing question of how we deal with the inconsistencies between common law rules and statutory rules."). Cf Wik; Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (2017) 254 FCR 559; fn 845.

494 See K Gray and S Gray, "The Rhetoric of Realty" in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths, 2003), 205 ("[The law, although outwardly striving for developmental coherence, may have been] "infiltrated by a variant mode of reasoning—a 'rhetoric' of persuasive logic based on conventional understandings reached by the 'interpretive community' of land lawyers."). See also C Rotherham, "Property and Power: The Judicial Redistribution of Proprietary Rights" in K Barker, S Degeling, K Fairweather, and R Grantham (eds), Private Law and Power (Hart Publishing, 2017), ch 5, who, in considering the decision of the United Kingdom Supreme Court in Lawrence v Fens Tigers Ltd [2014] AC 822, which concerned private nuisance, suggests that courts are open to undertaking a more redistributive role in the context of private property rights. See also P Birks, "The Roman Law Concept of Dominium and the Idea of Absolute Ownership" (1985) 2 Acta Juridica 1, 2-3.

495 See chap 4, para 4.2. Cf E Weinrib, The Idea of Private Law (OUP, 1995), 30, 38 ("[C]oherence is a presupposition both of the justificatory nature and of the intelligibility of private law.").


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3.5 Explaining priority, exclusivity, and thinghood: the compound and representative characteristics of the orthodox I-Thing legal enjoyment of land

The orthodox conceptual characteristics of ownership in possession (or of ownership and

possession when necessary to consider them as separate concepts) are compound

characteristics. The characteristics are what the law represents as the content of ownership and

possession (but adapted to the context in which those terms are in issue). They are, therefore,

essential characteristics.

Further, these characteristics are representations in themselves,496 and, as such, they may – in

their own abstract senses – be expressed as follows (bearing in mind the purpose of

understanding their representations is to understand the content of ownership and possession).

• Priority represents a sense of there being (as possession or ownership) a superior claim

of authority relative to any other claim.

• Exclusivity represents a sense of (possession or ownership being) the only state of legal

regulation as to a thing's authority (that is, it does not admit of the same state of

regulation of, or decision-making in respect of, the thing by another claim (and

necessarily does not admit any lesser claim)497); and

• Thinghood represents a sense of (possession or ownership) being of the thing itself, not

simply in respect of the thing, in terms of the thing's lawful enjoyment (see para 3.7): it

is the command of the thing.498

By conceptualising them as law-stating according to their essential characteristics, possession

and ownership function so that they can facilitate the fulfilment of an objective or argument of

the enjoyment of land, as recognised by law.499 That is, possession and ownership, as

proprietary property in law, are not ends in themselves; they as conceptually (or contingently)

linked to land for present purposes relationally recognise and conceptually contemplate that

enjoyment (as the legal means to the enjoyment) because, as intermediate legal concepts, they

have particular applications and consequences.500

Ownership in possession as a negative community view

496 See para 3.6

497 See generally Fejo v Northern Territory of Australia (1998) 195 CLR 96, [43], in respect of ownership of a fee simple estate.

498 As to the use of the term 'thinghood' see para 3.7.

499 See chap 4, para 4.3, in particular, Dorman v Rodgers (1982) 148 CLR 365, 372 (Murphy J).

500 See fn 867.


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However, it is apparent that, conceptualised as stated, ownership and possession relevantly

function in a negative sense (despite seeming to positively allow an owner or possessor to do

things with the land). As relationships with land (or estates representing land, including a lease

(see para 3.11)), they appear as types of power over land. (This should not be confused with

title: title is the claim to or of ownership or possession.501) But, while some prefer to explain

ownership as a bundle of rights (which mostly imply positive rights),502 ownership as a

proprietary relationship with an estate represents more of what enters into the imagination as

an abstract conceptual idea of having and enjoying land as allowed by law rather than a

collection of specific or defined rights.503 Thus, until an action of an owner in possession is the

subject of a dispute and it is decided he or she may or may not take that action, or a law (such as

a statute) regulates such action, the concept of ownership in possession (or enjoyment) mostly

persists and functions according to the representations of its essential characteristics (see para

3.6). If an action is not prohibited by law, for example, and it is within the contemplation of the

priority to and exclusivity of the land, then, it is allowed in law. Thus, ownership in possession

on this view relevantly functions in a negative sense as we have not there needed to identify a

positive authority or claim to undertake the action or benefit anyone else even if it is perceived

in the positive sense of an owner's being able to do something. Instead, an ownership in

possession's abstract representative quality as a type of authority or agenda for land whereby the

possessor may entirely favour his or her interests emerges and persists because of the operation

and effects of legal and social structures or frames of reference. As a result, and in the absence

of a positive explanation of ownership, ownership in possession embraces a negative community

view in that (subject to any contrary law), an owner generally is taken to be able to do as he or

she pleases with his or her land providing he or she does not cause harm to others.504 But,

evidently, ownership's very existence as an abstract legal concept means that socio-economic

developments and legal developments (including statute) may cause its reshaping over time.

Such conceptual reshaping often is gradual, even if we can identify broad developmental

impacts or influences (for example, and as will be discussed, particular historical developments

relating to the doctrine of tenure and seisin, and the role of statutory regulation of property (see

para 3.12)).

As will be explained in chap 4, one such outcome may be that ownership in possession will move

in a direction which recognises a relationship of enjoyment of land according to a broader and

501 See fn 347.

502 See fn 594.

503 See para 3.8, in particular the cases cited at fn 588. Cf A Thayer, "Possession and Ownership" (1907) 23 LQR 175, 175 ("The right of possession is [a] positive right to deal with a thing as against everybody. If I have this right everybody else is under duty to me to leave the thing alone.").

504 The law of nuisance developed from the maxim, sic utere tuo ut alienum non laedes ("use your land in such a way as not to injure the land of others").


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more fluid idea of 'lawfulness', that concept (also abstract) adapting itself to weighing the

relative interests and values of those in possession and others in relation to the use and

exploitation of land. One result may be that, because of ownership's and possession's own

highly abstract contents, they are susceptible to being reshaped (including modified) in law in

particular contexts to represent a more positive community view whereby owners in possession

owe others positive obligations relating to the use and exploitation of their land. Another result

as a type of new conceptual contemplation of the term may be that possession's contingent

relationship with land through 'thinghood' also becomes more fluid when considered as the

object of a 'right of possession'.

The effect of the characteristics being compound characteristics

As the essential characteristics of possession and ownership are compound characteristics, they

may separately bleed into each other; for example, priority and exclusivity can represent similar

ideas because exclusively having or enjoying a thing suggests that no one else could possibly

have the same thing. However, the word priority captures a legal dimension of the claim to the

thing that exclusivity may not as priority focuses on possession's and ownership's order of

having whereas exclusivity focuses on the state of having.

The characteristics of priority and exclusivity can further be understood (but do not need to be)

by reference to the notion of relativity of title which was once fundamental to English real

property law. Today, it plays somewhat of an understudy role in English, and certainly,

Australian, law, to systems of land registration.505

Where ownership arises under a Torrens title Act – meaning that the registered owner enjoys an

indefeasible interest506 – the priority characteristic of that ownership needs adjustment in its

evaluation and interpretation, but there are limits because registration under a Torrens title Act

has its own law-stating effect. While registered ownership can represent the idea of relative

superiority, it is not itself relatively superior to any other person's having of the same parcel of

land. Because a registered owner's ownership is only subject to registered interests (not

themselves being ownership interests507) and is free of all other interests, it is not entirely apt to

refer to that ownership in terms of its priority.508 Instead, the owner's registered interest of

ownership (title) represents a priority in the broader sense that, relative to everything else in the

world, it is, according to an Act, the only recognised (title to) ownership of the land.509 Similarly

505 And, as a result, possession of land might be thought to be not an especially important concept. See fn 361.

506 For example, under the Land Title Act 1994 (Q), ss 38, 184(1).

507 Cf, for example, Land Title Act 1994 (Q), s 185(1)(e).

508 Land Title Act 1994 (Q), s 184(1).

509 Putting aside any exceptions to the indefeasible nature of the registered owner's title. See, for example, Land Title Act 1994 (Q), s 185.


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with exclusivity. In a Torrens setting (and even a non-Torrens setting), exclusivity represents

the idea of not admitting anything else.510 These evaluated consequences must, of course, be

accepted to the extent of what they represent as a matter of law. The conclusiveness of 'title by

registration' is not open to question in so far as it represents simply that: a complete legal

statement of title.

The significance of thinghood is this. The priority and exclusivity of the thing represent the idea

that the thing itself is subject to enjoyment in priority and exclusively. Indeed, thinghood only

makes sense if it is enjoyed exclusively as the thing itself informs what it means to be the only

enjoyment of it. To own the thing (via the legal construct of ownership of an estate) is to be able

to make all the ownership decisions that, according to its nature, the thing allows to be made as

ownership decisions. For example, land is owned by Bob when Bob has the priority to and

exclusive enjoyment of it. Bob has, at a personal level, a freedom to enjoy the authority of

ownership. Ownership in any owner's hands – ownership necessarily being where an owner's

freedom to make ownership decisions originates from – represents the priority and exclusivity

of the land. This is the proprietary relationship level of priority to and exclusivity of the land.

Strictly, Bob enjoys (through his ownership interest) a fee simple estate which represents the

land and, in law, informs Bob (and everyone else) of the extent to which Bob can make decisions

about the land through ownership of the estate (see para 3.9). Sara, as a grantee of an easement

over Bob's land for a right of way is not an owner of the land because Sara's priority to and

exclusivity of the easement is not of the land (the soil): there is no thinghood quality to Sara's

having the easement or its enjoyment for the reason that, by its construct, the easement does not

represent all the decisions which can be made in respect of the land through ownership of the

thing representing the land, namely, the fee simple estate.511

What is contemplated by 'thinghood' is (when compounded with priority and exclusivity)

fundamental to the concepts of possession and ownership. It is also essential to understanding

Bob's (or any owner's) liberty to enjoy the land – the lawfulness of his decision-making – and

how he may, by coercive right, exclude others (including Sara if she does not remain within the

510 Exclusivity here should not be thought of in terms of an owner's right to exclude others. That is, as will be explained (chap 6, para 6.2), a consequence of ownership. We are here referring to ownership's exclusivity characteristic.

511 See Saggars v Brown (1981) 2 BPR 9329, 9331 (Rath J) ("[A]t the outset it is to be observed that there is a distinction between ownership of land giving rights to the soil and to every inch of the soil and the rights of enjoyment conferred by the grant of a right of way."). Incorporeal rights are just an idea and exist in the abstract “though their effects and profits may frequently be objects of our bodily senses” (Cruise, A Digest of The Laws of England (1835), v 7, pp 1-2). While Sara has, by the property in the easement (the thing), a freedom of enjoyment over the physical thing that is land (within the scope of the grant) that simply is because Bob's ownership of the land (as represented by an estate) is burdened by the easement as an interest in land which is property in the hands of Sara. But, Sara's property is only in or of the thing that is the easement, not the land as that is represented by the grantor's exclusive relationship of ownership of the estate. See also Moncrieff v Jameson [2007] 1 WLR 2620, as considered in para 3.9.


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bounds of her liberty of enjoying the easement). If we are to maintain orthodoxy in

conceptualising possession and ownership, we need to ensure that the 'thing' itself remains the

true source of Bob's lawful decision-making and his consequential right of exclusion. However,

the characteristic of thinghood is more than an acknowledgement that ownership is of the

physical thing itself (see para 3.7).

Concepts are not represented by rights

Also, we must not lose sight of the fact that a concept is not a right nor is it represented by or as

a right. As Evans rightly explains, "[r]ights are nothings. They can only 'exist' in a metaphysical

sense. Rather, rights are (or include) enforceable claims."512 Possession and ownership are

recognised in law as being proprietary relationships with land, but to achieve that status they

need, according to the law, to build entry rules (including title) and consequences around them.

They give rise to enforceable claims which are products of or incidental to possession and

ownership as concepts, each representing the identified essential characteristics. An

'enforceable claim' of an owner (as a matter of title) is the freedom to enjoy ownership because

he or she is the owner; he or she often is said, however, to have a right to that enjoyment, but

that is in the sense that the freedom of enjoyment is, if it needs to be, enforceable relative to

others. By his or her being owner, he or she must have that freedom because an ownership does

not represent anything less: he or she does not have the freedom by enforcing a claim to it. In

other words, the freedom precedes any enforcement claim. If ownership, and possession, are

deconstructed so that we say they are or consist of rights (including of possession) in respect of

land we begin to change what they represent because:

1) the land (the thing) and its enjoyment (thinghood) is not the source of the freedom of

enjoyment, the right is; and

2) further to (1), the right becomes a more specific identification of an enforceable claim to

do something in respect of the land (perhaps as part of a bundle of rights and then say,

to use the land only for a particular purpose or as one which supports, despite its quality

as being a mere right, a right of exclusion exercisable against others with no right to be

on the land).

To reshape ownership, and possession, in a coherent and stable way it may be that the objective

or argument of the law as to what is understood by the lawful enjoyment of land must force the

reshaping.513 But, rather than saying ownership and possession (as reshaped) represent various

claim-relationships with land (and being representative of characteristics that do not necessarily

include thinghood) – for example, a right to carry on a limited use of land –, it may be possible

512 S Evans, "Property, Proprietary Remedies and Insolvency: Conceptualism or Candour?" (2000) 5 Deakin Law Review 31, 35.

513 That is, as some redistributive justice.


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to understand that, as ownership and possession, they can still represent the already stated

essential characteristics of priority, exclusivity, and thinghood but as an idea of the freedom of

lawfully enjoying land. Or, in other words, what is understood as lawfully enjoying land

(re)shapes the representations of those characteristics (but not necessarily to the point that they

can now lead to our saying that ownership and possession themselves conceptually represent

limited claim rights in respect of land). This is an idea of lawfulness as the argument of the law

(see chap 5).

3.6 Possession's and ownership's essential characteristics as representations in themselves

The law responds to the objective or argument of recognising and protecting the enjoyment of

land (in a whole of land (the soil) or exclusive sense) and provides social order and stability as a

form of justice514 by constructing ownership and possession as concepts.515

Ownership and possession are components or elements of a legal method which watches,

surmises, and reacts to what goes on around it in the public interest and, then, on occasions,

improvises.516 To reshape a concept, or to resist any reshaping, we need to understand why the

concept's characteristics exist.

The essential characteristics of ownership and possession which were explained in para 3.5 are,

themselves, representations. As briefly mentioned in para 3.4, concepts are ideas that are

perceptually understood and applied according to that understanding even if, in the law (or a

lawyer's mind), they appear to be functioning according to a type of ordered and readily

apparent rhetoric.517 To understand ownership and possession – and their susceptibility to

conceptual reshaping – we must interpret representations behind representations (sometimes

referred to as metarepresentations)518 because the representations are public representations

operating within a legal system that itself may affect the interpretation of a particular

characteristic.519 The implications of a characteristic may be encoded because what is not always

apparent is that we often try to incorporate the consequences or applications of the

514 G Alexander, Property and Human Flourishing (OUP, 2018), 154.

515 For example, by recognising a possessor may have a possessory title but the registered owner has, unless statute-barred, a right of possession in respect of which he or she may bring an action to recover possession. See fn 710.

516 For example, by creating (as the law is prone to do) legal fictions. See fn 1071 and accompanying text.

517 See fn 494.

518 D Sperber (ed), Metarepresentations: A Multidisciplinary Perspective (Oxford University Press, 2000), 3.

519 See fn 1030 and accompanying text.


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characteristic into the understanding of the characteristic itself.520 This occurs because the

implications are evaluated according to the interests or values which the consequences or

applications affect (for example, whether the exclusion of a particular person from land is

desirable). In the context of the subject matter of this research, the notion that each of

ownership and possession is an intermediate element in the law's response to the enjoyment of

land leads to our asking whether ownership and possession, at least as conceptualised according

to their (orthodox or perceptually understood) essential characteristics, always lead to desirable

outcomes in what we desire as the enjoyment of land. If the result is undesirable (because, for

example, it offends an interest or value which the law wishes to protect), we may look to reshape

the concepts by reinterpreting our perceptions of their characteristics, including their

applications.521 This is a concept of justification, something itself which may be reshaped (or

invented) in an adjudicative process for the settling of a dispute about the consequences of

ownership or possession (see chap 7). Our primary concern is how, by that process, ownership

and possession are then legally conceptualised.

However, it must be noted that the functional operation of each concept, and any reshaping,

may be constrained by other elements within the law's response to the recognition and

protection of enjoyment of land, especially because they may have a predictable consequence.

520 Perhaps the value we place on a particular parcel of land is some evidence of this. That is, what we can sell the parcel for may be more than what the priority of our entitlement may actually allow us to do with the land.

521 D Sperber, Explaining Culture: A Naturalistic Approach (Blackwell Publishing, 1996), 72-73 ("Humans have … a disposition to use their meta-representational [that is, internal representations of other representations] abilities to expand their knowledge and their conceptual repertoire. Meta-representational abilities, however, also create remarkable susceptibilities. The obvious function served by the ability to entertain half-understood concepts and ideas is to provide intermediate steps towards their full understanding. But it also creates the possibility of conceptual mysteries, which no amount of processing could ever clarify, invading human minds.

Rational constraints on half-understood ideas are not very stringent: the internal consistency of a half-understood idea and its consistency with other beliefs and assumptions cannot be properly tested: if any inconsistency appears, it may be due to a mistaken interpretation of the belief. To the child, the very idea of death and, therefore, the claim that someone is dead may seem self-contradictory; yet she may nevertheless, and without irrationality, accept them on the assumption that the fault is with her understanding rather than with the concept or the claim. With half-understood ideas, what is known as the 'argument of authority' carries full weight.

The fact that mysterious ideas and concepts can easily meet criteria of rationality is not sufficient to guarantee their cultural success. There are infinitely many mysteries competing for mental space, and hence for cultural space. What advantage do the winning mysteries possess? They are, I want to suggest, more evocative and, as a result, more memorable.

Evocation can be seen as a form of problem solving: the problem is to provide a more precise interpretation for some half-understood idea. This is done by searching encyclopaedic memory for assumptions and beliefs in the context of which the half-understood idea makes sense. Sometimes the problem raised by a half-understood idea … is easily solved with a short evocation. In other cases the idea is so poorly understood, and so unrelated to the subject's other mental representations, that there is nowhere for the evocation to start. The most evocative representations are those which, on the one hand, are closely related to the subject's other mental representations, and, on the other hand, can never be given a final interpretation. It is these relevant mysteries, as they could be described, which are culturally successful.").


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For example, and as seen, a legal system may, as occurs in Australia, order itself so as to

formulate its response to an objective of recognising and protecting an enjoyment of land by

providing that ownership is recognised in respect of registered land only as a title by

registration.522 As such, the existence of an ownership (as opposed to some of its consequences)

cannot be called into question if it is registered.

Accordingly, ownership's and possession's characteristics must be evaluated according to their

contextual and perceptual understandings (including as represented by other elements within

the law's response) as the strength and purpose of a concept in law are how those essential

characteristics function within a legal system generally (see further para 3.7). The law does not,

for example, variously allow non-owners, whatever their perceptions, to choose what version of

an owner's ownership suits those non-owners best any more than it allows owners – whether

registered under a Torrens title Act or not – to decide what version of the owner's ownership

suits an owner best. It is not being suggested that an owner's or a non-owner's perception of

ownership constructs ownership; rather, ownership's construct and its functioning become or

are an active statement of a representation (as a communicative abstraction523) of how the law –

through statute and the general law – understands its objective of recognising and protecting

the enjoyment of land, including by interpreting and weighing the relative interests and values

of those in society subject to it. That is, ownership – and possession – become, at least in

theory, objective representations of their essential characteristics as interpreted and developed

by legal method (especially in adjudicative settings). However, for that to successfully occur,

their law-stating functions must be the culmination of "a sequence of sacred and immutable

fiats" expressed through a "chain of legal reasoning extending over time" where cases are "links

in that chain".524

The law of ownership intends to give – including by its representations – an owner a managerial

authority of land consistent with the characteristics ownership conceptually represents in a

'common' law.525 Whereas once a person's factual possession of land may have been a not

uncommon representation (as a form of communication) to others for the law of a claim to

exclusive enjoyment of land (through prior possession),526 today, the law, in a more modern and

522 Of course, it sometimes is said there is ownership in equity. See, however, W M C Gummow, "The In Personam Exception to Torrens Indefeasibility" (2017) 91 ALJ 549, 556. The point for present purposes is that registration is a particular legal condition for recognising ownership of land.

523 C Rose, "The Law is Nine-Tenths of Possession: An Adage Turned on Its Head" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 2.


525 But, to ensure that authority is recognised and protected, it may need to be supported by, for example, registration of the owner's title.

526 C Rose, "The Law is Nine-Tenths of Possession: An Adage Turned on Its Head" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 2, 77.


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sophisticated, albeit abstract, way (including by systems of registered title to estates), has taken

the legal consequences of factual possession – namely, the lawful exclusive enjoyment of land

and its being recognised as a relative right of claim to that enjoyment – as, one, objectives that

are worth recognising and protecting, and two, legitimises and justifies them in the form of

ownership in possession. Nevertheless, while such ownership represents a priority for an

owner's freely deciding and maintaining a legally-sanctioned managerial authority or agenda for

the land527 according to, not merely having an estate (in a bare sense), but also enjoying the

estate, the freedom of the owner to make decisions about the land is (like any freedom)

generally always at risk of curtailment: that is what inherently makes it a freedom in society.

3.7 Land as a thing and the abstract thinghood source of ownership in possession

It is trite that the very fact of physically possessing or enjoying land – sometimes referred to as

occupancy528 – does not have an ownership consequence for the law unless that fact is

recognised by the law. That is, the law must recognise the fact as the basis for an idea in law

(including an occupancy of first possession or prior possession529). It is the fact that people

physically occupy land and make decisions about its use and exploitation (and were legally put

in the position of their being able to do so) that built an abstract legal idea of possession, and

ultimately, ownership as an appropriation of the land (see chap 4, para 4.3). For example:

The principle of First Occupancy [or possession] provides that the first person (or people) to take possession of some resource or land acquires property rights in the thing or land possessed. The principle has a long history and is recognized by many legal systems. In the Anglo-American tradition it is perhaps most intimately identified with Locke, who used a version of it as the basis for the original acquisition of individual property rights in his famous theory of property. As applied to peoples, First Occupancy is not simply a matter of property rights but sovereignty: The first people who take possession of land thereby gain sovereignty over it. So close is the relationship between property and sovereignty that, in fact, the two concepts are conflated.

The principle of Prior Occupancy [or possession] has an equally ancient and established pedigree. It holds that as between two claimants to a resource or land, the one who was the earlier possessor acquires rights superior to the other claimant …530

We may, to assist in our understanding, call a legally recognised possession or enjoyment a type

of conclusive possession because it could under the common law come to represent a right of

527 See L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275.

528 Occupancy and possession should not be confused, however. See para 3.14. While occupation is often used to refer to physical possession, occupation as a fact only established occupation. At best, it may be able to be presumed that an occupier is in possession, but that is all. See fn 845. Also, a particular occupation may not be a beneficial occupation in the sense that the occupier is able to do anything other than that which the occupier is authorised to do under an Act (see generally Lambeth Overseers v London County Council [1897] AC 625, 630-631 (Lord Halsbury)).

529 G Alexander, Property and Human Flourishing (OUP, 2018), 152-156.

530 G Alexander, Property and Human Flourishing (OUP, 2018), 153. See also P Babie, "Sovereignty as Governance: An Organising Theme for Australian Property Law" (2013) 36 UNSWLJ 1075, 1075-1076; Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 (Toohey J).


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possession which was good against the world (except a superior right of possession).531 If the

law's entry rules for recognising possession are satisfied, possession thus had a conclusive legal

status (whether the legal possession of the owner or actual possession of someone else), the

consequences of which are further shaped in the law. Possession, like ownership, has a law-

stating function as we expect (in the sense that is what the law represents to us) those legal

consequences to flow from it (for example, its vindication by action and remedy). This

functionality all occurs within the unity or coherence of the legal response to recognising and

protecting the enjoyment of land as thinghood.532

It follows that land is a legal concept in itself. While an essentially empirical idea (as a corporeal

thing), its significance for present purposes is that it may be owned or possessed (via the legal

construct of the estate). Indeed, the common law recognises that it must be owned and, as such,

be capable of being enjoyed. Therefore, when the law conceptualises ownership or possession of

land (or of an estate in land), land too is conceptualised for that purpose and is a contingency of

ownership and possession. That is, the content of ownership and possession as concepts make

no sense unless land, as conceptualised, always is there. The concepts are, then, 'ownership or

possession of (an estate in) land'.533

Thinghood as a representative characteristic of ownership in possession is an abstract

conceptualised idea about the lawfulness of enjoyment, including the use, of the thing that is

land.534 The law recognises and protects the lawful enjoyment of land. An understanding of

whether the enjoyment of land is lawful or otherwise – and thus whether title to ownership can

command authority of the thing (and whether someone may assert a right to possession of land)

– refers not only to land's physical capabilities (the soil or corporeal) but whether ownership's

531 That is, to loosely borrow from Immanuel Kant. In his Groundwork of The Metaphysics of Morals (1785), Kant thought that possession in a state of nature was only a natural or sensible possession and, as such, provisionally rightful possession. Conclusive possession was only possible as a lawful condition, as governed by public law. To Kant, property was not merely a right to a thing, but also a right to the private use of the thing. It was the latter right which excluded others who may possess the thing in common from use of the thing (F Vaki, "Adam Smith and Immanuel Kant as critics of empire" in F Forman (ed), The Adam Smith Review Vol 9 (Routledge, 2017), 14).


533 What the law may, then, conceptualise as ownership or possession of something that is not land may be different. See further chap 4, para 4.2.

534 'Thinghood' (or sometimes 'thingness') is a term used by H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3, 82 ("Thinghood makes the persistence of possession easier, also allowing more specialization. The thing makes processing by duty bearers less costly: it is easier for others to know what is off limits even when the possessor is absent if they can rely on the boundaries of the thing to tell them the content of their duty."). See also J Penner, The Idea of Property in Law (Clarendon Press, 1997); M Heller, "The Boundaries of Private Property" (1999) 108 Yale LJ 1163, 1191-1194; J Harris, "Reason or Mumbo-Jumbo: The Common Law's Approach to Property" (2001) 117 Proceedings of the British Academy 445, 463-468; J Penner, "The Bundle of Rights Picture of Property" (1996) 43 UCLA L Rev 711. 'Thinghood' is used in a broader sense in this research as it is intended to represent the lawful enjoyment of land as the thing.


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relational enjoyment when in possession is allowed at law or is required to apply in a particular

way at law. Thus, for present purposes, thinghood represents the notion of a parcel of land's

entire capacity to be enjoyed (including used or applied) according to law. Ownership and

possession are represented by a characteristic of thinghood because they represent that capacity.

By implication, there is no other capacity in the land. Ownership and possession are not

properly explained as mere rights in respect of the land because they exhaust the lawful capacity

of the thing that is land to be enjoyed. The suffix 'hood' in thinghood recognises the abstract

nature of that capacity characteristic (in contradistinction to the thing itself (land) which has an

obvious empirical character) because the freedom of the land's enjoyment is a matter of legal

recognition and protection. Thinghood represents a state of being of a parcel of land in the

sense that it identifies that which is, or can be, the subject of ownership or possession (which is

all land that can be lawfully enjoyed, and to the extent of its lawful capacity to be enjoyed).

The legal authority capabilities of the corporeal thing

According to Justinian's Institutes, by natural law, the air, running water, the sea – and

consequently, the seashore – are common to all.

No one therefore is forbidden access to the sea-shore, provided he abstains from injury to houses, monuments, and buildings generally; if these are not, like the sea itself, subject to the law of nations. On the other hand, all rivers and harbours are public, so that all persons have a right to fish therein. The sea-shore extends to the limit of the highest tide in time of storm or winter. Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently everyone is entitled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting-place for the cargo, as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining land, and consequently so too is the ownership of the trees which grow upon it. Again, the public use of the sea-shore, as of the sea itself, is part of the law of nations; consequently every one is free to build a cottage upon it for purposes of retreat, as well as to dry his nets and haul them up from the sea.535

Of the three propositions revealed by this passage – namely, the seashore extends to the limit of

the highest tide in time of storm or winter; the right to navigate a river and to discharge cargo

was part of the natural law; and the seashore was common property – the English common law

accepted the second, but only to a limited extent. The first and third propositions were not

accepted.536 The seashore, the land between the ordinary high- and low-water marks, was not

common to all in any legal sense; it, and the beds of navigable rivers, were the property of the

Crown. But, the seashore (or foreshore) and the beds of navigable rivers were also held by the

Crown for the exercise of the public rights of navigation and fishing.537 Thus, the common law

could recognise a private ownership of land (or any thing) in someone, whether the Crown or a

subject of the Crown; and, at the same time, that someone can be under a duty to hold the land

535 Book II, Of Things, I Divisions of Things.

536 Svendsen v State of Queensland [2002] 1 Qd R 216, [13].

537 Although the public right of navigation was only exercisable in respect of navigable waters, not the seashore when not covered by the reach of the ordinary tides.


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for the benefit of the public (a vertical division of property) where the public has a correlative

right or liberty to use the land for particular purposes.538 In other words, someone may have or

own the land (that is, have title to it), but the land's enjoyment by that someone may be limited,

or its enjoyment may, for all intents and purposes, be in the hands of someone else.539 However,

for the common law, it is not possible for someone not to have nor own the land regardless of

who, as a matter of fact or by right enjoys the land: the land must belong to someone.540 This

translates to the idea that someone must always possess land because it must be capable of

being enjoyed in a sense of being appropriated.541 That is, although we can observe and even

perhaps accept a person's having land for themselves simply as a matter of fact, that which is

owned is only that which, at law, can be appropriated. Appropriation was an understanding that

land could be enjoyed as possessed (occupied) in law. We can accept, however, that as a law-

stating idea because we can accept it has a general or non-legal conceptual counterpart (that is,

of physically occupying land) as a matter of fact.

We gain further insight into the common law's conceptualisation of (private) ownership and

possession of land – and especially as the (legal) humanization of space – by the common law

rule that, where land is bounded in whole or in part by tidal water, that boundary at common

538 However, this is not a trust. The Crown was said to have a prima facie title in a seashore ius privatum (that is, as a matter of private law) and that title was subject to a ius publicum (that is, the public rights were matters of public law). See Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153, 169 (Viscount Haldane). See also, in different contexts, R (on the application of Barkas) v North Yorkshire County Council [2014] 2 WLR 1360, [26] (Lord Neuberger); Lambeth Overseers v London County Council [1897] AC 625, 630-631 (Lord Halsbury); Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151, 153 (Mason P) (referring to the public trust doctrine that operates in several states in the United States and which had its foundation in the public right of navigation); J Sax, “The Public Trust in Natural Resource Law: Effective Judicial Intervention” (1970) 68 Michigan LR 471; Hinkley v Star City Pty Ltd (2011) 284 ALR 154, [155]-[179] (Tobias JA) (referring to the common law doctrine of prime necessity in respect of land that has an obvious 'public' quality; cf Forbes v New South Wales Trotting Club Limited (1978) 143 CLR 242 (Murphy J, in obiter), as rejected in Hinkley v Star City Pty Ltd (2011) 284 ALR 154 on the ground it was not binding on the court). In Forbes Murphy J, in considering the exclusion of a person from a public racecourse, thought that the respondent, although not granted statutory powers, had rights in respect of the racecourse the exercise of which affected members of the public to a significant degree such that they could be described as public rights and their exercise as that of public power. In those circumstances, where the respondent admitted members of the public to the racecourse on payment of a fee, it exercised public power and, therefore, could not arbitrarily exclude or remove such a person from its land during a race meeting. See further chap 6, para 6.2.

539 There is no necessary inconsistency between a trustee's holding a fee simple estate and being required to devote the subject land to a stated purpose and no other purpose (Ward, [241] (Gleeson CJ, Gaudron, Gummow and Hayne JJ)). Also, at common law, land held in fee simple may be dedicated as a highway (road) thus giving the public a liberty to pass and repass, interference with which may be an actionable public nuisance. Despite the dedication, the fee simple estate may be the subject of an adverse possession, but subject always to the dedication and the public's liberty of passage (that being consistent with the common law adage, "once a highway, always a highway") (R (on the Application of Smith) v Land Registry (Peterborough Office) [2011] QB 413).

540 See fn 391.

541 In a not dissimilar, but by no means identical, way, a freehold estate held on feudal tenure could never be in abeyance as it needed to be seised by a tenant. See para 3.12.


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law is the mean high water mark542 and by the related doctrine of alluvio. In Gifford v Lord

Yarborough543 Best CJ, a judge "unfortunately far from being free of bias or temper",544 said:

When the authorities relative to these subjects are considered, this difference will be found to make a material distinction in the law that applies to derelict lands, and to such as are formed by alluvion. Unless trodden by cattle, many years must pass away before lands formed by alluvion would be hard enough or sufficiently wide to be used beneficially by any one but the owner of the lands adjoining. As soon as alluvion lands rise above the water, the cattle from the adjoining lands will give them consistency by treading on them; and prepare them for grass or agriculture by the manure which they will drop on them. When they are but a yard wide the owner of the adjoining lands may render them productive. Thus lands which are of no use to the King will be useful to the owner of the adjoining lands, and he will acquire a title to them on the same principle that all titles to lands have been acquired by individuals, viz. by occupation and improvement.

Locke in a passage in his Treatise on Government, in which he describes the grounds of the exclusive right of property, says: “God and man’s reason commanded him to subdue the earth; that is, improve it for the benefit of life, and therein lay out something upon it that was his own, his labour. He that in obedience to that command subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property which another had no title to, nor could without injury take from him.”

This passage proves the reasonableness of the custom that assigns lands gained by alluvion to the owner of the lands adjoining.

The reasonableness is further proved by this, that the land so gained is a compensation for the expense of embankment, and for losses which frequently happen from inundation to the owners of lands near the sea.

This custom is beneficial to the public. Much land which would remain for years, perhaps for ever, barren, is in consequence of this custom rendered productive as soon as it is formed. Although the sea is gradually and imperceptibly forced back, the land formed by alluvion will become of a size proper for cultivation and use; but in the mean time the owner of the adjoining lands will have acquired a title to it by improving it.

The original deposit constitutes not a tenth part of its value, the other nine tenths are created by the labour of the person who has occupied it; and, in the words of Locke, the fruits of his labour cannot, without injury, be taken from him.

While the doctrine of alluvio at common law545 may be said to be justified on grounds of fairness

and convenience,546 or, more simply, be recognised so as to ensure riparian landowners can

continue to enjoy access to a natural waterway,547 to Best CJ, alluvio had an inherent and

customary public benefit: accretions added gradually and imperceptibly to a landowner's land

could be improved and, as such, be of benefit to humankind.548 The true value of the added

542 Gumana v Northern Territory of Australia (2007) 158 FCR 34, [85], citing Attorney-General v Chambers (1854) 4 De G M & G 206.

543 (1828) 5 Bing 163, 165-166 [130 ER 1023, 1025].

544 G Baxter, Dictionary of National Biography, v 4, [421].

545 Alluvio grants title to a landowner of accretions (or alluvion) gradually and imperceptibly added to his or her land by the actions of a river, lake or the sea: P Jackson, “Alluvio and the Common Law” (1983) 99 LQR 412, 412; McDougall v McDougall (1915) 49 NSR 101.

546 Southern Centre of Theosophy Inc v South Australia [1982] AC 706.

547 R Powell, The Law of Real Property (Lexis Nexis, 1976) ¶ 983; see also Hughes v Washington 389 US 290, 293 (1967). See also Jennings v Sylvania Waters Pty Ltd [1972] 2 NSWLR 4.

548 Best CJ appeared to suggest that this process would naturally follow, initially, by the landowner's cattle treading on the alluvion and preparing it for cultivation. Land gained by alluvion is useful to


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alluvion, now subdued by the labour of its occupant, inured in the exertion of that labour. In his

De Iure Maris, Sir Matthew Hale, who was a student of Roman law, had written that there were

three sorts of shores, of which the second was the (ordinary) spring tides, it happening twice

every month immediately after full and new moons.549 The lands "overflowed with these fluxes

ordinarily belong to the … [adjoining landowner] prima facie, unless the king hath a

prescription to the contrary. And the reason seems to be, because for the most part the lands

covered with these fluxes [the ebbs] are dry and maniorable; for at other tides the sea doth not

cover them …"550 In Attorney-General v Chambers,551 Lord Cranworth LC thought that the

principle of the rule which gives the Crown prima facie ownership of the seashore (to high-

water mark at ordinary tides552) "to be that it is land not capable of ordinary cultivation or

occupation, and so is in the nature of unappropriated soil".553

While there are differences in the respective approaches of Best CJ and Lord Cranworth LC –

Best CJ, inspired by the writings of John Locke (see chap 4, para 4.3), gives the justification of

ownership according to a nine points value of labour –, each rests his theory of private

ownership of land above the shore (that is, beyond the private property of the Crown)554 as a

type of humanization or appropriation of space in the occupancy of cultivable land. The

the owner of the adjoining land who will be the only person to occupy and improve the land. Until improved by that owner, such gained land would not be of any use to another person. Land gained by alluvion, consistent with its addition by gradual and imperceptible degrees, is slowly improved by the adjoining landowner. He or she ought, then, to have the exclusive claim to that land, that being consistent with the basis on which title to all land is given.

549 See Svendsen v State of Queensland [2002] 1 Qd R 216, [17].

550 Chapter VI, (2d). See Attorney-General v Chambers (1854) 4 De GM & G 206, 215 [43 ER 486, 489] (Alderson B and Maule J). Marshes, which were only reached by the high spring tides (the first sort of shore) were maniorable. According to Hall's Essay on The Rights of the Crown and the Privileges of the Subject in the Sea-Shores of the Realm (reproduced in S Moore, A History of the Foreshore (The Lawbook Exchange, 1888), [10] ("In the marshy districts and fens along the coasts of the sea, creeks, and tide-rivers, the lands which are subject to the action of the spring tides, are of considerable extent and value, and by no means so barren and unprofitable as the ordinary sea-shore or strand. These marshes, indeed, are in many places 'maniorable', as Lord Hale expresses it, – and the right to embank and enclose them against the effects of the high spring and spring tides, and reduce them to a completely cultivable state, is of no small importance to the lords of adjacent manors, and the owners of the adjacent terra firma.").

551 (1854) 4 De GM & G 206, 218 [43 ER 486, 490].

552 Lord Cranworth LC, with the assistance of Alderson B and Maule J, found that such a mark was the line of the medium high tide between the springs and the neaps (that is, the average over the year of the heights of the (higher of the) high tides on the fourth day of each quarter of the lunar cycle). In Queensland, for example, see, however, Survey and Mapping Infrastructure Act 2003 (Q), pt 7, div 2 (Tidal boundaries) and, in particular, s 72 (Tidal boundary location criteria). (Part 7, div 4 is about non-tidal boundaries.) See also Land Act 1994, ch 1, pt 4, div 2 (The tidal environment).

553 Accordingly, the converse is, “the land which has been added ... takes the character of the land to which it has been added ...” (Mercer v Denne [1904] 2 Ch 534, 560). Lord Cranworth LC thought that Lord Hale was the only authority on the point and "the reasonable conclusion is, that the Crown’s right is limited to land which is for the most part not dry or maniorable".

554 Noting there was never a Roman idea of common ownership in the common law: land either belonged the Crown (as its waste or demesne) or was granted. However, the rule is somewhat more complex. See fn 553.


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common law (at least on this theory) distributes ownership of land as between the Crown and its

subjects, in part, because of how subjects may exploit the land or appropriate it to themselves;555

Hale's theory was that such distribution occurred because of occupancy. As explained by

Angell:556

the Roman law has been very much surpassed, by the common law of England. For although … the sea et cetera according to the provisions of the common law, are as public and common, as they were among the Romans; yet it is not only the policy of the common law to assign to every thing capable of occupancy and susceptible of ownership a legal and certain proprietor – but also to make those things which from their nature cannot be exclusively occupied and enjoyed, the property of the sovereign.

However, as Selway J said in Gumana v Northern Territory of Australia:557

In the ordinary course, a grant (including a statutory grant) over an area of land includes the right to the exclusive use of the airspace above it and the land below it: see Thomas J in Schleter t/as Cape Crawford Tourism v Brazakka Pty Ltd (2002) 12 NTLR 76 … But this does not mean that the owner of the land 'owns' everything physically on it. In the normal course, a person cannot sensibly be said to 'own' free flowing water. What the owner has is a right to control access to that water and to use it for his or her own purposes. Similarly in relation to fish and other ferae naturae: see Goodman v Mayor of Saltash (1882) 7 AC 633 at 646.

The susceptibility of land to the exercise of freedom of decision-making: thinghood recognises appropriation so that the land is subject to a lawfulness of enjoyment

In respect of land, ownership's and possession's compound representative characteristics of

priority and exclusivity are bound up, from a 'thinghood' perspective, in the spatial authority of

individuals which manifests itself as a (legal) freedom to make decisions about the land's

management. That is, the currency of ownership and possession is thinghood in an enjoyment

sense of managerial authority. Ownership in possession of land thus reflects a discrete instance

of the humanization or appropriation of space and permits personal relationships of enjoyment

with land. These ideas are extremely important in society558 and interact with the more

555 That is, the issue here is where the boundary of the subject's land lies. It is ambulatory according to the location of high-water mark at the ordinary tides. That mark, and the boundary, may shift by gradual and imperceptible degrees. The policy of that rule lies in recognising that land above that mark is likely to be cultivable or maniorable land and, therefore, is or remains subject to the landowner's fee simple estate. See, however, Survey and Mapping Infrastructure Act 2003 (Q), pt 7, div 2, which states rules for the location of tidal boundaries. A tidal boundary may not necessarily be high-water mark at the ordinary tides. But, according to s 72(2), the "second criterion [of the tidal boundary location criteria] is that the tidal boundary must be on the landward side of any sandy beaches, foredunes, mangroves, sea grasses, salt grasses, salt marshes, saltpans, intertidal flats, tidal sand banks and other similar features."

556 J Angell, A Treatise on the Right of Property in Tide Waters (1824), 17. Angell was writing before R v Keyn (1876) 2 Ex D 63 which rejected the notion that the Crown's sovereignty and proprietorship extended beyond low-water mark of the seashores. See also Commonwealth v Yarmirr (2001) 208 CLR 1.

557 (2005) 141 FCR 457, [70].

558 See generally G Alexander & E Penalver, An Introduction to Property Theory (OUP, 2012), ch 1. See also D Acemoglu and S Johnson, "Unbundling Institutions" (2005) 113 Journal of Political Economy 949.


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generalised humanization of communities by their members.559 Remembering that the essential

characteristics of ownership are compound characteristics, what is capable of being thinghood

or that which thinghood represents is that which a domestic common law can recognise as a

legal freedom of enjoyment according to the priority of and exclusivity of the thing. Land has

this particular thinghood quality and, therefore, can be assigned as capable of being possessed

(occupied in Angell's language) and "susceptible of ownership [by] a legal and certain

proprietor". That is borne out in statements such as the following.

[I]t is well accepted, though often hyperbolically expressed, that an estate in fee simple is for almost all practical purposes the equivalent of full ownership of the land and confers the lawful right to exercise over, upon, and in respect to, the land all rights of ownership save to the extent that any such right has been abrogated, qualified or varied by statute, by the owner of the fee simple or by a predecessor in title (whether or not for the benefit of a third person): see Fejo v Northern Territory (1998) 195 CLR 96, [44] …560

While such a statement emphasises an I-Thing relational characterisation of ownership

generally – it refers to the exercise of authority "over, upon, and in respect to, the land" (the

benefit of ownership's right of possession) – there are, however, legal limits to land's always

qualifying as thinghood susceptible of ownership (and, necessarily, a right of possession).

Recognising, as discussed above, that land in a foreshore or seashore, although taken to be

owned by the Crown, could still be granted to a subject, authority in the same ownership sense

may not, as a conclusion at common law, be capable of existing over, on, or in respect of land

below low-water mark and within territorial waters. That is, it could not be appropriated and be

the subject of an estate, unless appropriated or granted as an exercise of legislative

jurisdiction.561 Ownership as a law-stating concept does not, therefore, always create an

authority of lawfulness (see below) in respect of the physical thing that is land (and which,

necessarily, an owner can command by his or her right of possession).562 For the common law,

land in the seashore or foreshore could be denied thinghood (a susceptibility to appropriation)

and, therefore, a private ownership quality (via a privately owned estate), to suit the Crown's

559 Cf G Alexander, Property and Human Flourishing (OUP, 2018), 75-76 ("[C]ommunity and communities play a key role in the human flourishing theory of property. Community defines the parameters of the obligations that property owners owe.").

560 Gumana v Northern Territory of Australia (2007) 158 FCR 34, [83].

561 Prior to federation, the colonies, and later, the States, subject to constitutional limitations, certainly did not lack legislative power to make laws that applied in territorial waters (and beyond) – which commenced at low-water mark – where the colonial legislature possessed the power to make laws for the peace, order and good government of the colony. According to Mason J in New South Wales v The Commonwealth (The Seas and Submerged Lands Act Case) (1975) 135 CLR 337, 469, "[t]his power was large enough to enable the colonial legislatures to authorise the grant of leases and other estates or interests and the construction and maintenance of works in the sea-bed below low-water mark. No doubt a colony could, if it were so minded, legislate so as to vest in the Crown or an instrumentality of the Crown proprietary interests in the sea-bed." See further fn 564.

562 In Risk v Northern Territory of Australia (2002) 210 CLR 392, [119], Callinan J cited Ball, “The Jural Nature of Land” (1928) 23 Illinois Law Review 45, 62, 67, which described land as a defined three-dimensional space, identified by natural or imaginary points located by reference to the earth’s surface. This refers to land's physical quality not its (legal) thinghood quality.


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claim to such land;563 but, land beyond low-water mark could never have had such a thinghood

quality at all (and not merely on the reasoning it was, like land in the inter-tidal zone, generally

taken not to be cultivable):564 when it is said such land does not qualify as 'land' it is meant that

it does not have the quality of thinghood in an ownership sense for the law (again, because it

could not be appropriated under the common law).565 That is, it may be recognised in law as

being susceptible to some legal order, but, not necessarily ownership to which land above low-

water mark may. However, by statute enacted consistent with international law, land within the

territorial waters of a coastal state can have a deemed thinghood quality such that it may be

owned.566 And so too can land in strata.567

Legal and non-legal history tells us that individuals' legal authorities over, on, or in land – called

ownership and possession – have emerged from a sequence of events and a chain of legal

563 While the seashore or foreshore may be the subject of private ownership (Gumana v Northern Territory of Australia (2007) 158 FCR 34, [85]), perhaps as indicative of the abstract nature of ownership, the very notion that the Crown owned all land below high-water mark was, according to Stuart Moore, contrary to fact: it was an "ownership in theory", not concerned with beneficial cultivation of the land, but one designed to give the Crown a proprietary claim to everything that might be on or attach to the foreshore (including potentially valuable wreckage) (S Moore, Notes on Hall’s Essay on the Rights of the Crown to the Seashore (1880), 680, note (j)). See also The Melbourne Harbour Trust Commissioners v The Colonial Sugar Refining Co Limited (1925) 36 CLR 230, 271 (Isaacs J). According to S Moore, A History of the Foreshore and the Law Relating Thereto (1888),183, most lands in the foreshores and the beds of tidal rivers in England had been granted away by the Crown to private subjects (including as manors). However, the authorities (for example, R v Smith (1780) 99 ER 283, 285) and writers (for example, Woolrych, Woolrych on Waters (1851), 40) adopted the position, traceable to a treatise of Thomas Digges of 1568 (Proofs of the Queen’s Interest in Lands left by the Sea and the Salt Shores thereof), that the foreshores and beds of tidal rivers (as arms of the sea) were the property of the Crown by prerogative right and could not be claimed except by way of grant (that is, they could not be claimed by long user or possession). See also H Farnham, Water and Water Rights (1904), 1452.

564 As seen, the seashore or foreshore could be the subject of private ownership. At common law, tidal waters are subject to public rights of fishing and navigation. As a matter of domestic common law, the Crown’s title and jurisdiction ended at low-water mark of the coastal foreshore: the territorial sea in respect of the colonies of Australia was, as a matter of international law, originally vested in the Imperial Crown and, on federation, in the Commonwealth (New South Wales v The Commonwealth(1975) 135 CLR 337). See the Seas and Submerged Lands Act 1973 (Cth), but note the comments at 561. However, as a result of the Coastal Waters (State Title) Act 1980 (Cth) and Coastal Waters (State Powers) Act 1980 (Cth), the Crown in right of each State and Territory has the same title and jurisdiction over the land in the territorial sea (to 3 nautical miles from the territorial sea baseline) as it does in respect of land above low-water mark.

565 See Risk v Northern Territory of Australia (2002) 210 CLR 392, [26] (Gleeson CJ, Gaudron, Kirby and Hayne JJ). It could, however, be the subject of a grant made in the exercise of a colony's or State's legislative jurisdiction.

566 See The United Nations Convention on the Law of the Sea (1982); fn 561; Seas and Submerged Lands Act 1973 (Cth). While public rights of navigation and fishing (which extend to high-water mark) can be abrogated by statute, they may even be capable of being extinguished by an 'exclusive' grant. See Harper v Minister for Sea Fisheries (1989) 168 CLR 314, 330; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138, [88]; Gumana v Northern Territory of Australia (2007) 158 FCR 34, [86]; cf Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24. See also Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199, 211.

567 See fn 116.


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reasoning (see chap 4, para 4.3). Ownership of land, as a legal construct of thinghood, emerged

as a governance statement of what factual possession (and, to an extent, seisin) represented in

law; that is, as a legal construct of thinghood (but as a (relative) right of possession) (see para

3.9).568 That possession could be ownership in respect of chattels was never a particularly

difficult proposition: the thing was tangible and wasting and, as such, could often quite easily be

reduced to physical control.569 The idea of land being a thing the subject of ownership and

which could be possessed in law evolved into a highly abstract idea through the invention of the

estate (see para 3.9) and raised different considerations to ownership of a chattel (including

because in using the land harm could be caused to others, and the fact that land obviously could

not be destroyed).570 Therefore, only land that could be the subject of an estate could be owned

in possession. Possession of an estate has its foundation in the notion of factually having and

lawfully enjoying the advantages of the land (and aligns in that respect with possession of a

chattel), but 'title' to the land – ownership of the abstract estate (and especially once it was no

longer necessary to enter into land to take possession571) – meant that, even if physical

possession was evidence of (a) title, the thinghood of ownership had become wholly rooted in

the abstract idea of what was lawfully capable of being done over, on, or in the land (and the title

to ownership was, for example, capable of being the subject of succession). What always is in

issue as ownership, then, is: what does it mean to be able to lawfully enjoy the physical thing –

the empirical concept – that is capable of being appropriated as land and which is represented

by the abstraction that is an estate, the only (legal) thing that can be owned and possessed?

Accordingly, a notion of humanizing space and its adaptation in the form of legal concepts of

ownership and possession are more than simply an idea or rule that land belongs to someone or

that the physical thing that is land which is occupied is owned or possessed in law. Land (when

568 That is, possession could be evidence of a relative right to possession. At common law, the superior right of possession was (at least until a better right was shown to exist) 'ownership'.

569 C Rose, "The Law is Nine-Tenths of Possession: An Adage Turned on Its Head" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 2; Strange Investments (WA) Pty Ltd v Coretrack Ltd (2014) 107 IR 102, [76] (Pritchard J) ("Possession of a chattel is evidence of ownership of that chattel – so much so that possession of a chattel is regarded as generating a rebuttable presumption of ownership. Consequently, it is generally accepted that possession is the most important of the incidents of ownership of a chattel. The law of possession "is ancient and fairly complicated", and the meaning of possession varies in different areas of the law. In the case of tangible chattels, possession (which is sometimes called actual or de facto possession) usually requires physical possession of the good, plus the intention to possess that good (that is, to exclude others from the exercise of control over it). However, a person who does not actually have physical possession of a good may nevertheless be held to be in possession of the good if he or she has control over that good, together with the requisite intention. This is sometimes referred to as legal possession or constructive possession. Alternatively, a party may not have actual possession but may have a right to immediately acquire physical possession, which is referred to as a right to possession"); cf L Aitken, "Recovery of Chattels in the Common and Civil Law: Possession, Bailment, and Spoiliation Suites (2008) 82 ALJ 379.

570 See C Rose, "Possession as the Origin of Property" (1985) 52 U Chi L Rev 73.

571 See now, for example, Property Law Act 1974 (Q), s 102(1).


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capable of being represented by an estate) which belongs to someone must, at least in a legal

sense, be enjoyable (although merely having it can be its legal enjoyment as ownership and

possession can be assigned).572 Land then shifts from its empirical state to what may be

described as a second level legal abstract concept as the contingency of 'ownership' (see chap 4,

para 4.2). That is an aspect of a concept of lawfulness (or otherwise) of what may be done over,

on, or in the land. That may have once been described as land that was maniorable or

cultivable, or rather, land which could be lawfully (appropriated or) occupied by a subject – and

thus be the subject of lawful occupation activity and occupation theory (see chap 4, para 4.3) –

as it represented to humans the capacity for it to be applied to their own advantage.

The abstractive quality of land: lawfulness of enjoyment

Of course, some land may be capable of being enjoyed more than other land. Often that simply

is a situation to situation proposition: while owners may not, as a general limitation of

ownership, use land to cause a nuisance (as that is unlawful), whether a particular activity of an

owner is a nuisance (and, therefore, unlawful) may depend on the degree of harm caused to the

complaining plaintiff (see further chap 5, para 5.4). Thus, while assessing the lawfulness or

otherwise of an owner's activity may seem merely to be the regulation of the owner's freedom to

decide how to use or exploit his or her land (that is, a restraint on the exercise of his or her

personal ownership), lawfulness actually inures in ownership itself, even from an I-Thing

relational perspective: ownership is the priority to and exclusivity of the land as a thing

understood as only embodying lawful enjoyment. The contingency of ownership is, as

suggested, a second level abstraction of lawfulness (see chap 4, para 4.2).

Pollock thought that the idea of pleasing oneself only ever meant pleasing oneself so far as that

was known to the law.573 Lawful enjoyment is an aspect of the rule of law that, when adapted to

ownership, all owners alike can, in enjoying ownership, only do that which is lawful and must

not do that which is unlawful. We may call that proprietary enjoyment (that is, the common

idea of ownership as a relationship with land) as ownership is an institutional or universal

concept which recognises and secures for anyone the same relationship of enjoyment of land.

(This gives ownership its certainty.) For land, sometimes lawfulness is embodied in the notion

of reasonable user.574 If the owner's activity is unlawful, it is a wrong at law (and is not

572 Although, as will be explained, enjoyment of land does not mean an owner must be able to derive pleasure from his or her use of the land, or indeed, be able to enjoy the land in any particular way. In law, enjoyment of land refers to a benefit or advantage; a benefit may, in some cases, be no more than owning (that is, having) the land itself as the land can be appropriated to oneself. In law's eyes, owning say, a fee simple estate is significant and disturbance of the ownership is serious; however, the land may otherwise be valueless.

573 F Pollock, A First Book of Jurisprudence (MacMillan and Co, 5th edn), 177 ("… [T]he powers of use and disposal, such as they are, which are incident to an estate in fee simple are, as regards whatever can be the subject of freehold tenure, the highest known to the law").

574 See Gartner v Kidman (1962) 108 CLR 12, as considered in chap 5, para 5.4.


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reasonable) and a person who suffers harm may have an action against the owner.575 Indeed, it

may be more correct to say in such circumstances that the enjoyment is unlawful because "as

against" another person, that person's interests outweighed the owner's such that the owner's

otherwise lawful enjoyment now is unlawful or unreasonable (see in more detail chap 5, para

5.4).576

Also, an owner may be able lawfully to use his or her land only for a particular purpose because

of the limitation of a governance rule such as a planning instrument or decision, regardless of

the land's physical capabilities of accommodating uses for other purposes: in such instances the

limitation on an owner's freedom of (lawful) use may not be relative to the (direct) interests of

anyone else, but, nevertheless, may, in the public interest, inure in the ownership because the

limitation runs with the land (see para 3.10).577

But, as already suggested, the land's physical capabilities or some special attribute of the land

(such as its being below low-water mark) may work to narrow the lawfulness of enjoyment that

is the subject of thinghood (or its susceptibility to appropriation and representation by an

estate) by confining the enjoyment to a purpose for which land may be used. This is an instance

of reinventing 'thinghood' as a characteristic of ownership in possession. That is, the purpose

itself becomes, in its own abstract way, a resource capable of being enjoyed. Peculiar ownership

(ownership-type) interests in the forms of leases granted under Crown or State lands legislation

in Australia have, for example, been created for limited purposes such as pastoral and grazing

because the leased land has not been suitable for any other purpose.578 Rather than merely

limiting the use or exploitation of the land itself to a specific purpose, in those instances, the

lessee may be said to have an interest in (or a right to) the purpose of the lease in so far as it may

apply to the land, rather than in the land itself. This appears to be one effect of the majority's

reasoning in relation to the concept of possession in Wik (see chap 5, para 5.2). The 'lease for

(or of) a purpose' itself may be the 'thing of lawful enjoyment' in an abstract ownership sense as

it is the lease of that quality as a type of resource which can be enjoyed in priority and exclusivity

(thus possibly leaving a residual capacity of the land's enjoyment in the State or someone

575 Hunter v Canary Wharf Ltd [1997] AC 655, 688 Lord Goff) ("[The] term 'nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.").

576 Cf Lawrence v Fen Tigers Ltd [2014] 1 AC 822, [48] (Lord Neuberger).

577 Cf Lawrence v Fen Tigers Ltd [2014] 1 AC 822, [79] (Lord Neuberger) ("The fact that a planning permission for a particular use is personal does not alter the fact that it removes the bar which would otherwise exist on that use, and that the use is acceptable in planning terms at least if carried on by, or on behalf of, the very person who is carrying it on."). See further fn 920 and accompanying text.

578 See Wik Peoples v The State of Queensland (1996) 187 CLR 1. See also, for example, Land Act 1994 (Q), s 16 ("Before land is allocated under this Act, the chief executive must evaluate the land to assess the most appropriate tenure and use for the land."). While the Act contemplates the conversion of the lease to freehold land, an evaluation of the land under s 16 must be undertaken before any conversion can be effected (see s 167(1)(k), (6)).


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else579): the purpose is, in itself, an abstract thing as a resource which, like land, can be enjoyed

(or used or exploited).580 The lease for the purpose, then, represents the extent to which the

land can be appropriated. Abstraction is not unfamiliar to the law when it refers to possession

of a thing. As suggested, thinghood is itself an abstraction: an estate is a legal abstraction that

represents land that is capable of being lawfully and privately enjoyed. As a further example,

the Crown's ownership of minerals is an abstract ownership in the sense that the Crown may not

physically possess the minerals while they remain in soil that is subject to a grant in favour of

someone else. However, the Crown could bring an action in trespass against a person who

unlawfully interferes with the minerals.581

We may be able to conceive of a purpose as a resource because we put a value on it, a key

consideration as to why we tend to recognise it as property.582 And a lease for a purpose may be

said to be capable of being possessed so that it is enjoyed (for that purpose). The leased land is

not enjoyed for a purpose (as may occur under a general law lease); rather, the purpose is

enjoyed as that which is legally understood as the 'thing'. Such a lease may be another form of

thinghood – and subject to an I-Thing relationship – in an (albeit highly) abstract sense.

Nevertheless, it rests on the same premise as thinghood as already explained; namely, that the

lawfulness of (or as) the enjoyment – the freedom of decision-making – is no more or less than

the entirety of the thing's capacity to be lawfully enjoyed. If land is not capable of being lawfully

used or exploited (at a point in time) for anything more than a particular purpose, then the land

is no more than its enjoyment for that purpose.583 A native title right or interest can exist on the

same land because its enjoyment is not found in the same legal source of enjoyment.584

579 Including, a native title holder. The State may not, however, be able to allocate the residue without statutory authority. Cf, for example, Land Act 1994 (Q), s 154; Inkerman Station Pty Ltd v Allan [No 2] [2017] QSC 243; C Boge, "Regulating land 'tenure': some recent developments", Paper presented at Television Education Network Pty Ltd, First Annual Farming and Rural Law Conference, Sheraton Mirage, Gold Coast, 30 August 2018.

580 Consider a profit á prendre at law. It is sufficiently corporeal as it is a grant to take a natural product from land (but not the land itself). Native title can have a thinghood quality to it, but it does not conceptualise land as a thing or resource in the same way as non-indigenous property law does.

581 See, for example, Mineral Resources Act 1989 (Q), s 8; Attorney-General v Brown (1847) 1 Legge 312 where the court found that a reservation of coal to the Crown in a grant in fee simple was an exception to the grant as it was severable from the land. It remained a corporeal hereditament in the Crown and could be the subject of an information of intrusion. As to an information of intrusion see fn 1072. An information of intrusion assumed a possession in the Crown despite its not being in possession. See further fn 492.

582 See Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373, [37], [63] (Chesterman J).

583 It is not to the point that an owner (or non-owner) may use or exploit the land for some other purpose. Such use or exploitation simply is unlawful.

584 Although the native title right or interest is recognised by the common law, being sourced in the traditional laws and customs of its holder, its lawfulness is determined by those laws and customs (but only to the extent it is not inconsistent with the common law).


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As explained in chap 7, para 7.2, the High Court has not directly explained leases under Crown

or State lands legislation in this fashion, preferring instead at times to use an I-Others relational

analysis and, thus, focusing on a right of possession as a right to exclude all others from the land

as the determinant of whether the grant of a lease for pastoral or similar purposes is

inconsistent with a claimed native title interest or right. Regrettably, this has, at times, forced

the court into making a somewhat awkward distinction between a 'right of possession' and a

'right of exclusive possession'.

3.8 How ownership functions as a legal construct

English law has never really recognised or even bothered with an idea of private ownership of

land.585 But, we can at least accuse it of imagining one, even if it consistently speaks of interests

in land.586 For the English, priority and exclusivity to or of land was, for centuries, expressed in

the relative idea of a better right to seisin or possession of an estate as its own form of justice.

According to Holdsworth, the word 'owner' was first used in 1340 and the word 'ownership' first

appeared in 1583.587 But, neither term acquired a specific meaning. In more recent times, the

fee simple estate, or rather its ownership, has been described as (at least today) the "local

equivalent of full ownership".588 Indeed, owning land as a fee simple estate essentially is the

equivalent of owning a chattel, something recognised by Coke and the writings attributed to

Bracton.589 In many respects, the apparent distinction between ownership of land and

585 See M Harwood, Modern English Land Law (Sweet & Maxwell, 1982), 503. In one sense, the concept of ownership of land represents a status of legal claim to the land relative to the Crown. If the land is not owned by a subject of the Crown, it must, as a legal fiction, at least be owned by the Crown. See fnn 612 and 654.

586 Characteristically, the (exclusive) enjoyment of land has organised itself around ideas of priority and exclusivity to the thing that is land.

587 W Holdsworth, A History of English Law, Vol II, 78; A W B Simpson, A History of the Land Law(Clarendon Press, 1986, 2nd edn), 47; cf Union Trustee Co of Aust Ltd v Federal Commissioner of Land Tax (1915) 20 CLR 526.

588 Wik, 250 (Kirby J); Commonwealth v New South Wales (1923) 33 CLR 1, 42 (Isaacs J); Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610, 623; Gollan v Randwick Municipal Council [1961] AC 82, 101 (Lord Radcliffe); Brisbane City Council v Valuer-General (1978) 140 CLR 41, 48 (Gibbs J); Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184, [59], [63], [69] (Croft J); Obeid v Victorian Urban Development Authority [2012] VSC 251, [79]. Today, an estate in fee simple granted by the Crown on tenure exists in free and common socage without any incident or tenure for the benefit of the Crown: for example, Property Law Act 1974 (Q), s 20(1).

589 F W Maitland, Select Essays Vol 3, 591, 592; see also A Buck, The Making of Australian Property Law (Federation Press, 2006); Sydney City Council v The Valuer-General (1956) 1 LGRA 229, 233.


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ownership of an estate hardly matters.590 It is recognised though that, whatever one owns, or

whatever ownership represents, it is susceptible to variation by statute.591

Ownership in law generally can be somewhat of a mystery592 and especially so if one does not

know what it is meant to do in its application.593 As a result, there can, for example, be a

tendency to query what ownership as a form of property represents, especially when it can swing

from being characterised as the largest bundle of rights594 to dominion or control,595 or a right to

exclude.596 These characterisations tend to be used on occasions to justify an outcome that is

sought to be achieved and demonstrate that we perhaps have not retained, or do not simply

have, the ability to conceptualise. They do also sometimes ignore a basic conundrum: does

ownership exist despite the desired outcome, or does it exist because of the desired outcome?

590 P Sparkes, A New Land Law (Bloomsbury, 1999) 49 ("[E]state ownership is absolute ownership … [T]o deny that is to know some, but too little, Roman law."). However, it can be important to distinguish between a fee simple estate and a lease.

591 Esposito v Commonwealth (2015) 235 FCR 1, [54] (Allsop CJ, Flick and Perram JJ).

592 See T Merrill, "Ownership and possession" in Y Cheng (ed), Law and Economics of Possession(Blackwell, 2015), 9 ("One of the enduring mysteries about property is why the law protects both ownership and possession. In a pre-modern world, with low rates of literacy and no formal method of registering titles, one can understand why the law would protect possession. In such a world, there may be no concept of property beyond the understanding that persons should respect possessory rights established by others. It is less clear why possession should be protected once property comes to be understood as ownership."). Merrill argues that information costs explain why possession persists as a distinct subject of legal protection. Possession has, relatively speaking, relatively low information costs.

593 Property itself has, in recent times, been described as elusive (Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592, [35]; White v Director of Public Prosecutions (WA) (2011) 243 CLR 478, [10]-[11]) and illusory (K Gray, "Property in Thin Air' (1991) 50 CU 252). The nature of property is the subject of much debate and consideration. See, for example, Health Insurance Commission v Peverill (1994) 179 CLR 226, [243]-[244] (Brennan J); ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; S Panesar, "Theories of Private Property In Modern Property Law" (2000) 15 Denning LJ 113. The classification of property as proprietary or non-proprietary raises its own particular issues. See, for example, Sorrento Medical Services Pty Ltd v Chief Executive, Department of Transport and Main Roads [2007] 2 Qd R 373; Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825, [990] (application of doctrine of relief from forfeiture to non-proprietary rights); Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55, [42] (FFC); Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230, [211]-[212].

594 See J Penner, "The 'Bundle of Rights' Picture of Property" (1996) 43 UCLA L Rev 711; J Baron, "Rescuing the Bundle-of-Rights Metaphor in Property Law" (2014) 82 U Cin L Rev 57; A Honoré, "Ownership" in A Guest (ed), Oxford Essays in Jurisprudence, First Series (Oxford, 1961); H Dagan, "The Craft of Property" (2003) 91 California Law Review 1517; see Yanner v Eaton (1999) 201 CLR 351, [17] (Gleeson CJ, Gaudron, Kirby and Hayne JJ); Minister for State for the Army v Dalziel (1944) 68 CLR 262, 285 (Rich J) ("[The] tenant of an unencumbered estate in fee simple in possession has the largest possible bundle [of rights]."); Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592, [40] (French CJ, Hayne and Kiefel JJ); Gnych v Polish Club Limited (2015) 255 CLR 414, [41] (Gageler J); F Pollock and F W Maitland, History of the English Law (CUP, 2nd edn, 1911), vol 2, 10 ("[An] estate in fee simple in ... land ... is ... a congeries of the most ample proprietary rights recognized by law 'projected along the plane of time'); Harry v Valuer-General (1975) 12 SASR 446, 454 (Wells J).

595 See para 3.9.

596 See fn 395.


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The abstraction of ownership in law

Although referring to provisions of a share sale agreement, in Aftermarket Network Australia

Pty Ltd v Certain Underwriters at Lloyd's Subscribing to Policy No 6482/13(C)-13087,597

Allsop CJ observed:

The word 'owner' and the abstract noun 'ownership' are not without their subtleties of meaning and are not amenable to crisp, comprehensive definition in the abstract … That said, in a practical business-like sense, it means the right to exercise all such rights of dominion and to dispose of the dominion in respect of the property concerned. It is greater than a beneficial interest.598

In Gatward v Alley,599 Jordan CJ said in relation to ownership and possession of a vehicle:

A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons, as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner …600

At law, and as mentioned, all land belongs to someone.601 And at law, an estate602 represents the

land.603 Accordingly, an estate must always be owned by someone604 in succession605 and, as

597 [2016] FCA 1402, [55].

598 See also Kent v SS 'Maria Luisa' (No 2) (2003) 130 FCR 12, [62] (Tamberlin and Hely JJ); cf Leiah v Tasmania [2013] TASSC 8, [50] ("While … ['owner'] cannot be readily defined in the abstract it can be said to have an ordinary meaning: 'The notion of ownership … carries a connotation of dominance, ultimate control and of ultimate title against the world': Kent v SS "Maria Luisa" (No 2) (2003) 130 FCR 12 at [61]–[62], referring to O W Holmes, The Common Law (1882) 242 - 246; Blackstone’s Commentaries (18th ed, 1829) Vol 2, 389; and Holdsworth, A History of English Law (1925) Vol VII 449. See also Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654 at [63]–[67]: 'Ownership, usually involves something greater than beneficial interest' ...").

599 (1940) 40 SR (NSW) 174, 178. See DFS Australia Pty Limited v The Comptroller-General of Customs [2017] FCA 547, [42] (Burley J) ("… [W]hilst there is no universal meaning of the word 'ownership' itself, the legal conception of 'ownership' – also known as 'title' – is the right recognised by the law in respect of a particular piece of property to exercise with respect to that property all such rights as by law are capable of being exercised with respect to that type of property against all persons and the 'owner' is the person 'in whom the ownership of property is vested' …").

600 See Minister of State for the Army v Dalziel (1944) 68 CLR 261, 285 (Rich J) ("possession vaut titrein more senses than one"). That is, possession is as good as title. O W Holmes, The Common Law (edn, M Howe, Little Brown & Co, 1963), 169 ("A legal right is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution or compensation by aid of the public force … Just so far as possession is protected, it is as much a source of legal rights as ownership is when it secures the same protection.").

601 Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380, [14] (Lord Hope) ("As a general rule anything that can be touched or worked must be taken to belong to someone."); see also generally Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 47 (Brennan J) ("It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodialor other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed."). At law, there is a distinction between land and land of the sea. Subject to statute, the word 'land' would not ordinarily include the land of the sea: Risk v Northern Territory of Australia (2002) 210 CLR 392, [26] (Gleeson CJ, Gaudron, Kirby and Hayne JJ); Coverdale v West Coast Council (2016) 259 CLR 164, [21] (French CJ, Kiefel, Keane, Nettle and Gordon JJ). Land of the sea may be made the


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such, it is appropriate to ask what an owner, whether presently or in the future, may or may not

do with respect to land according to a concept of his or her ownership of the estate rather than

merely by reference to a bundle or aggregation of rights of an estate.606 Ownership and the

estate are correlative, or conceptually, ownership is linked to the concept of the estate which

itself represents the land. The fee simple estate, for example, tells us how an owner can own as

the estate conceptually represents the quantity of the possible lawful enjoyment of the land.607

However, when we refer to ownership we must, at least for some purposes, distinguish between

what an owner personally enjoys or is entitled to (personally owning) and the ownership interest

of any owner (proprietary ownership), even if the former does not arise without the latter (see

para 3.10).608

The estate and how it represents the land's thinghood

Being corporeal (that is, relating to the physical), an estate is different from other interests in

land.609 In Walsingham's Case610 it was said an estate is time in land without end, or land for a

subject to ownership according to the exercise of sovereign power. See Seas and Submerged Lands Act 1973 (Cth); New South Wales v The Commonwealth (Seas and Submerged Lands Act Case) (1975) 135 CLR 337; Coastal Waters (State Title) Act 1980 (Cth); Coastal Waters (State Powers) Act 1980 (Cth); see further, for example, Acts Interpretation Act 1954 (Q), pt 12 (Application of particular State laws to coastal waters).

602 Cf fn 590.

603 P Bordwell, "The Common Law Scheme of Estates" (1933) 18 Iowa L Rev 425, 427. Land may, under a statute, include an estate in the land. See, for example, Planning Act 2016 (Q), sch 2, definition of 'land'; Commonwealth v Maddalozzo (1980) 42 LGRA 168, 169 (Barwick CJ) ("In my opinion, land as the subject-matter of acquisition is indistinguishable from an estate in fee simple in the described land. That estate is the largest estate which can be held in land and thus, in my opinion, is synonymous with land as the subject of acquisition. If an estate is acquired within that description, the land is acquired."). Where land is subject to a 'possessory' native title – that is, it is the exclusive title in respect of the land – that native title is, in effect, the equivalent of the estate: the native title holders effectively own the land.

604 See Stow v Mineral Holdings (Aust) Pty Ltd (1977) 51 ALJR 672, 679 (Aickin J).

605 Wik, [70] (Brennan J) ("The doctrine of tenure creates a single devolving chain of title and the doctrine of estates provides for the enjoyment of land during successive periods."); cf Succession Act 1981 (Q), sch 2, pt 2, item 4 (see fn 612). The idea of succession is not, however, particularly apt in a Torrens title setting.

606 We cannot draw sharp lines – and we do not need to – between an abstract idea of ownership of an estate and the estate's corporeal nature. While ownership as a conceptual entitlement may seem at odds with a notion of corporeal property, concepts merely are representative of essential characteristics.

607 That is, ownership is only according to or of that estate. See Sydney City Council v The Valuer-General (1956) 1 LGRA 229, 233.

608 For example, riparian rights and obligations arise because of ownership (or possession) of land adjoining the bank of a natural stream of water. See Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, [133] (Emmett JA).

609 Minister for the Army v Dalziel (1944) 68 CLR 261, 298 (Williams J) ("The word 'estate' … is especially used to denote the extent of the interest that the subject has in his land."). At law, a distinction is made between corporeal and incorporeal interests. As to the origins of the estate, see Fairbairn v Varvaressos (2010) 78 NSWLR 577, [89] (Campbell JA); P Bordwell, "The Common Law Scheme of Estates" (1933) 18 Iowa L Rev 425; P Bordwell, "Seisin and Disseisin" (1920-1921) 34


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time: the fee simple (absolute)611 lasted so long as the owner and his or her heirs survived,612 and

the life estate lasted for a life or lives.613 That is, all freehold estates (the fee simple and the life

estate) are for an uncertain duration.614 In a property relationship sense,615 the estate, as

representing land, or time in land, is the 'thing'.616 By his or her having (by title) an ownership

interest (the property relationship) in the estate,617 the owner may enjoy what it means to own an

Harv L Rev 592, 607 ("… [T]here could be no real possession of interests that lay in grant, such as rents and reversions and remainders [which were incorporeal], and therefore there was no real possession to be separated from the right. But … a certain kind of seisin was ascribed to them …"). As to possession of particular incorporeal hereditaments which are 'corporeal enough' see M Wonnacott, Possession of Land (CUP, 2006), 142-144; cf Saskatchewan Minerals v Keyes (1972) 23 DLR (3d) 573, 586 (Laskin J) ("[A]ll legal interests are incorporeal."). In Road Australia Pty Ltd v Commissioner of Stamp Duties [2001] 1 Qd R 327, [8], it was said, "… The word “estate” has two meanings in law, one narrow and the other broad. The narrow meaning is: the fee simple of land and any of the various interests into which it could formerly be divided at law, whether for life, or for a term of years or otherwise”; and the broad meaning is: any property whatever: see Halsbury’s Laws of England, 4th ed., vol 39(2), para 2. Under the narrow meaning, the only interests caught are the fee simple — ie, full ownership and divisions, by reference to time, of that concept. For example, under the narrow meaning a leasehold interest would be an estate but a charge on land would not be. Under the broad meaning, any proprietary interest in land would be treated as an estate …". We are, on this analysis, concerned with an estate under its narrow meaning (that is, it being of the corporeal).

610 (1573) 2 Plowd 547, 555 [75 ER 805, 816-817].

611 At common law, a fee simple estate was absolute, conditional, or determinable. The latter two are hardly relevant anymore. But, each describes the proprietary nature of the estate.

612 Commonwealth v New South Wales (1923) 33 CLR 1, 42 (Isaacs J); cf Succession Act 1981 (Q), sch 2, pt 2, item 4. Where an intestate is not survived by issue, by a parent, or by next of kin, the residuary estate is deemed to be bona vacantia (that is, ownerless) and the Crown is entitled to it.

613 At common law, a fee tail descended to lineal heirs. It may no longer be created: cf Property Law Act 1974 (Q), s 19. In respect of the circumstances in England, according to K Gray and S Gray, "The Rhetoric of Realty" in J Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths, 2003), 204, "The propositional dogmas of land law control relationships amongst a set of estates and interests whose taxomony was meticulously enshrined in codified form in the property legislation of 1925 and is left virtually untouched by the Land Registration Act 2002 (UK)." In an Act in Queensland, but subject to the relevant context, an 'estate' includes an easement, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity: Acts Interpretation Act 1954 (Q), ss 32A, 36, sch 1. See generally Stow v Mineral Holdings (Australia) Pty Ltd (1979) 180 CLR 295, 311 (Aickin J); R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 342, 351.

614 C Runnington (ed), Sir Matthew Hale's The History of the Common Law of England (6th ed, 1820), 202 ("The idea which modern times annex to freehold or freeholder, is taken merely from the duration of the estate.").

615 See generally Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592, [35] (French CJ, Hayne and Kiefel JJ).

616 To have property in a thing is to have a legally-sanctioned control over access to the thing: Ward, [95] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Federal Commissioner of Taxation v American Express Wholesale Currency Services Pty Ltd (2010) 187 FCR 398, [26]-[30] (Dowsett J) ("Clearly, the notion of property contains three elements: [1] The subject matter; [2] The property holder; and [3] The relationship between them."). Property in a thing may, depending on the context, be general or special: Xu v Council of the Law Society of New South Wales (2009) 236 FLR 480. It is not the purpose of this essay to consider what the broader legal idea of property is. See fn 593.

617 For present purposes, and as will be explained, 'ownership' can be divided into present and future ownership interests.


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estate. The owner has, then, a liberty interest or right in the ownership of the estate and the

advantages that are of and incidental to that ownership: he or she may, in his or her own

interests, decide how to lawfully enjoy those advantages.618 Often that interest is called a right of

enjoyment or right of possession (possession being a metonym for enjoyment).619 But, the

owner's enjoyment of the advantages of ownership (for example, to access an adjoining road

(highway)) is regulated because the concept of ownership functions within the law's enjoyment

response. The advantages attach to ownership (the proprietary) of the particular estate620 but

their actual enjoyment is personal to the owner.621 There is, then, a link between the person

called the owner (or the title of the owner) and the actual enjoyment of the land through a right

of enjoyment of ownership of the thing that represents the land, namely, the estate.622 It will

often be said, in short, that the owner simply owns (or has title to) the land (or 'the freehold'623

or a fee simple estate). But, understanding the formulated elements of the law's response to an

objective of recognising and protecting the enjoyment of land (as explained in para 3.3) allows

us to know, if the law chooses to alter that objective, which element (or elements), including, for

example, a remedy, can and needs (or need) to be changed.624

Statements of ownership and possession of an estate

A number of important propositions follow from this and should be stated at this point in the

research in respect of ownership and possession of an estate.

(1) Ownership is an abstract legal concept, and while abstract concepts can continually

develop in law as representing particular characteristics, ownership's 'legal' status as

618 And disadvantages. For example, a riparian owner of land abutting a watercourse has the right to the flow of water past his or her land. But, he or she must also accept that flow.

619 See generally Congoo.

620 Accordingly, it is said the advantages (or incidents) run with the land. An owner from time to time may be able to protect his or her enjoyment of his or her proprietary interest, including, where the interest is an estate, by a right to exclude. But, that does not mean the advantages (or incidents) of the estate are enforceable against third parties; they simply can be enjoyed by an owner who may have a coercive right of exclusion. See further below.

621 See Stow v Mineral Holdings (Aust) Pty Ltd (1977) 51 ALJR 672, 679 (Aickin J) ("[L]egal and equitable estates and interests, for example, a freehold or a leasehold estate … [are] interests being held by persons in their individual capacity.").

622 Cf statutory definitions of 'land', eg, Planning Act 2016 (Q), sch 2, "land includes: (a) an estate in, on, over or under land; and (b) the airspace above the land and any estate in the airspace; and (c) the subsoil of land and any estate in the subsoil." See Trust Company Ltd v Chief Commissioner of State Revenue [2007] NSWCA 255, [49] (Giles JA). See also Acts Interpretation Act 1954 (Q), s 36, sch 1; Alcan (NT) & Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27, [7] (French CJ).

623 See Glasgow v Hall [2007] QCA 19. Under the Land Act 1994 (Q), sch 6, 'freehold land' is defined as land recorded in the freehold land register under the Land Title Act 1994 (Q) and land that has been granted or vested in fee simple.

624 See further chap 7, para 7.4.


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connected to land (a conceptual linkage) acts as a limit on how far that development

can go.625

(2) Ownership is proprietary and may only ever be of an estate (or land that may be

represented by an estate);626 being the holder of a lesser (even proprietary) interest in

land is not ownership (of land).627

(3) An owner's ownership – his or her freedom or liberty of enjoyment of an ownership

interest and his or her protection of that freedom or liberty – is personal to that owner

in the sense that the owner enjoys the estate in possession via, through, or according to,

the ownership interest to which he or she has title; another (perhaps simpler) way of

saying this is that the owner has ownership of, or owns (or has title to), the estate

according to an ownership interest (see (7)).

(4) Although often it is said an owner disposes of the estate (or 'freehold land' or a lease),

he or she disposes of his or her personal ownership of the estate: nevertheless, the

owner has the proprietary interest of ownership in the land and usually is said to hold a

proprietary interest.628

(5) Ownership is according to an ownership interest which gives the owner the priority

(recognised by title) to enjoying ownership (often referred to as legal possession);629 but

the extent to which the owner may freely enjoy ownership depends on the notion of

lawfulness and the vindication by and protection of the law of the owner's freedom of

enjoyment.

(6) Further to (5), the law vindicates the owner's ownership by the right of the owner to

recover possession, such action putting the owner in possession;630 the law protects the

625 As mentioned, legal concepts should exhibit stability and can only be developed in accordance with sound legal method. See chap 4, para 4.2.

626 Cf Mayor of London v Hall [2011] 1 WLR 504; chap 7, para 7.2. Land that may be represented by an estate is, in effect, always represented by an estate or its equivalent.

627 Reference might be made to ownership or possession of an interest or right in land. However, that is merely using ownership or possession in a 'my' or having sense. We are referring here to ownership of an estate.

628 Any disposal simply is part of the chain of succession to ownership of an estate. Of course, when a transfer is registered under the Torrens title system, the nature of what was transferred is no longer relevant. The only relevant consideration is what the registered owner has according to the register.

629 Here, it may be said that ownership and possession are co-existent. See fn 688.

630 A 'wrongful' possessor does not owe the owner a duty not to intrude, as once in possession, the possessor is in. The law vindicates the owner's ownership by the right to recover possession which, if successful, will put the owner in possession and indirectly put the possessor out. Where a non-owner is not in possession, he or she simply has a duty not to intrude without justification (and, therefore, become a trespasser). The law thus protects the owner's ownership – his or her liberty or freedom of enjoying his or her ownership – by a right to exclude.


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owner's possession (enjoyment) – a liberty interest – by a coercive right to exclude all

others who have a correlative duty not to intrude or interfere.

(7) Ownership interests in or of an estate explain how the land can and will be owned by an

owner or possessed by a possessor for the entire, albeit uncertain, duration of the

(freehold) estate: ownership interests are either present or future interests.631

(8) Enjoyment of an estate – that is, possession – must be of ownership:632 possessing

itself, then, being a freedom or liberty of enjoyment (whether of the owner or a

possessor in the sense of to possess is like to own), has a 'thinghood' quality because

possession can also be used to represent a proprietary interest.633

(9) Further to (8), a possession recognised in law is, itself, its own de facto or quasi-

ownership (of the relevant ownership interest): that is, a 'wrongful'634 possessor will

have a possessory title that functions as ownership,635 but which is not good against the

owner's right to enjoy (possess) the ownership interest (unless statute-barred).636

(10) When it is said possession, as a concept, is of an estate, the reference to the estate, as

representing land, is intended to refer to land in the sense that it may be represented by

an estate in law. Possession is of that which is corporeal in law: that merely indicates

that the land itself, as a thing, can be represented by an estate or owned, not that that

which may be possessed must always be characterised by the law as an estate (for

example, a profit à prendre is sufficiently corporeal and a person's possession according

to a statute may be corporeal). The estate merely is the way in which the law

conceptualises the land as a thing and it is through title to ownership of the estate that

we can recognise an owner. References to ownership and possession of an estate in this

631 As explained below, a lease estate is treated somewhat differently. However, note, the discussion here does not distinguish between legal estates and equitable interests.

632 See para 3.10.

633 It relates to the physical. However, possession of a future ownership interest only entitles the possessor to that which the owner of the future ownership interest has, namely, a present right to the future physical enjoyment of the estate (the land). The owner of the future ownership interest has a relationship with the estate (the thing). We can, therefore, still say possession of that future ownership interest has a 'thinghood' quality.

634 As mentioned below, 'wrongful' does not mean criminal or anything of that nature. It simply means without right, licence, or consent of the owner. That is, the possessor is, until removed by process, not a mere tenant at will.

635 R Epstein, "Possession as the Root of Title" (1978-1979) 13 GA L Rev 1221; C Rose, "Possession as the Origin of Property" (1985) 52 U Chi L Rev 73; F Philbrick, "Seisin and Possession as the Basis of Legal Title" (1938-1939) 24 Iowa L Rev 268; T Martin, "Possession as a Root of Title" (1912-1913) 61 U Pa L Rev 647.

636 The possessor's possessory title is a priority and exclusive, but is not good against the owner's right of possession. It has been said that, according to the doctrine of adverse possession, an adverse possessor's possession was "weak at first, but progressively [became] stronger as time passed and left as the only title in the field after limitation had removed the paper title": S Martin Santisteban and P Sparkes (eds), Protection of Immovables in European Legal Systems (Cambridge, 2015), 331.


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research must be read in the sense that that which is capable of being possessed is of

land which may be owned, whether by the Crown or by the owner of an estate, or that

which could be represented by an estate (which itself must be owned).

For (7), ownership interests are, according to the doctrine of estates, either vested in interest or

in possession. This makes ownership especially abstract.637 Owning an ownership interest that

is vested in possession means that the ownership may be enjoyed immediately.638 More

particularly, this means the land may be physically enjoyed. An ownership interest that is

vested in interest such as a reversion or remainder is a present entitlement to the future

enjoyment of the land.639 Accordingly, when possession of an estate (as representing the land) is

in issue, possession is of the ownership interest of the estate that is vested in possession or in

interest. If the possessor has physical enjoyment of the land itself, the possessor is in possession

of an ownership interest vested in possession.

Today, however, most law concerning estates generally is about legal and equitable rights in

land (especially under a trust)640 but, more particularly, registered and unregistered interests

and claims in respect of Torrens title land.641 There are few attempts to settle ownership of an

estate according to present and future interests. Where a fee simple estate has been granted,642

it more or less is, because its ownership can be transferred, certain to be owned in perpetuity (by

a multitude of people)643 and, if there really is any division at all, time in the land can be said to

be split between a registered (and indefeasible and legal) ownership and a beneficial ownership

in equity.644 That is, ownership divides vertically rather than along a plane of time.645 This, at

637 Lowe v J W Ashmore Ltd [1971] Ch 545, 554 (Megarry J); Co Litt 65a.

638 The estate in possession is a "present right of present enjoyment": Pearson v IRC [1981] AC 753, 772 (Viscount Dilhorne); Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490, 498 (Griffith CJ).

639 A future interest is only denied immediate enjoyment because a prior interest is, or prior interests are, vested in someone else, or others (Bl Comm, Vol II 164).

640 This, in turn, often becomes the field of practice of the succession and estate planning lawyer.

641 According to the Property Law Act 1974 (Q), s 19, only the estate in fee simple and the estate for life or lives may be created (as legal estates).

642 See today, for example, Land Act 1994 (Q), ss 14, 17, 358; Land Title Act 1994 (Q), s 47.

643 No longer, at least in the case of an individual owner, does ownership escheat as a matter of tenure to the Crown. Once it became accepted that a fee simple could, on its alienation, descend to the heirs of the remainder (and was not limited to the heirs of the grantor), the estate virtually became perpetual.

644 In the context of Torrens title land we should, however, be careful using the terms legal interests and equitable interests. See W M C Gummow, "The In Personam Exception to Torrens Indefeasibility" (2017) 91 ALJ 549, 556 ("The essence of the Torrens system was the replacement of two estates, legal and equitable with one estate – the registered interest, with title by registration not antecedent to it. In his treatise The Australian Torrens System published in London in 1905 [Clowes, 772], James Edward Hogg of the New South Wales Bar made the point that what was formerly an equitable estate became “for the most part” an “equitable right” rather than “part of the ownership of the land".”); Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 229 CLR 545, [35]. The time in land idea of Walsingham's Case (1573) 2 Plowd 547, 555 [75 ER 805, 816-817] focuses on


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least on one view, suggests an owner's ownership of an estate in modern theory always has

elements to it that are representative of one, a having of the estate,646 and, two, an enjoyment of

the estate. How an estate may be enjoyed is an aspect of having the estate in the sense that

enjoyment is of ownership. But to enjoy is how a person in possession actually enjoys

ownership.647

Though, merely characterising ownership as representing the priority of the estate – title to

which entitles the owner to (legal) possession – does not mean the law does not recognise that

other claims in respect of the land may nevertheless play out despite ownership. An owner will,

relative to a possession claim, prevail when his or her ownership is in issue.648 This is an aspect

of title. And it is because of ownership that others may or may not have a right to use land: the

owner may decide, at his or her will, to grant or not grant a derivative interest. Again, that is a

result of the owner's superior title. But, some claims in respect of an owner's land (they not

being relative to the owner's title or right of possession) will be resolved according to various

non-ownership legal principles and rules (for example, in equity). Accordingly, ownership is

relevant when it is ownership's characteristics, including of title, that are relevant to a dispute.

Ownership is not directly relevant if the owner's freedom of enjoyment of ownership and its

advantages are not affected. This is a consequence of ownership being of the land. Accordingly,

if the law otherwise decides someone else may enter or use the land (for example, according to

statutory right or some justification under the common law), ownership is not generally relevant

(except in the indirect sense that ownership cannot be used against that other person).649 This is

the estate itself: that is, the fee simple estate lasted as long as it could be owned, which was until the last of the heirs of the grantee died; cf fn 612.

645 See Commissioner of Stamp Duties (Qld) v Livingston [1964] AC 694; cf J Tarrant, "Equitable Ownership after the Judicature Act" (2007) 15 APLJ 26, 28-31. In Queensland, for example, a future ownership interest that is a remainder or legal executory interest may only take effect as an equitable interest (Property Law Act 1974 (Q), s 30). A life estate is trust property under the Trusts Act 1973 (Q). For land registered under the Land Title Act 1994 (Q), the indefeasible and legal title will, during a life estate created under a will, remain vested in the personal representative (Land Title Practice Manual (Queensland), [5-2163]). Where a life estate is created otherwise, it is trust property under the Trusts Act 1973 (Q) and the life estate is recorded by way of a transfer to the life tenant. The land remains in the name of the registered owner and reference to the life estate will appear in the Easements, Encumbrances, and Interests section of the title (Land Title Practice Manual (Queensland), [1-2440]).

646 Which often is presently enjoyed as the ownership interest is of the estate in possession.

647 Actual enjoyment may rest with someone who has, for example, a right to enjoyment in equity in the sense that equity operates simply as an obligation against the legal owner. That is, the equitable enjoyment is not of ownership. See generally J Tarrant, "Equitable Ownership after the Judicature Act" (2007) 15 APLJ 26, 28-31 and fn 644. An owner may, of course, grant a right of enjoyment in the form of a lease to someone else or simply part with possession.

648 That is, when someone else – a possessor – makes a claim, by his or her possession, to that which the owner is entitled, namely, the right to possession.

649 The owner still has his or her title of ownership.


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also apparent in an understanding of how relativity of title operates.650 It further highlights that

the law of real property is far more involved than an understanding that its primary concepts are

of ownership and, certainly, possession: today, often it functionally concerns itself with claims to

the use of land characterised as rights, whatever their sources.651 Those rights, however, may be

especially protean in their qualities and consequences, adapting to changing contexts and the

relative interests and values of owners and non-owners in respect of the enjoyment of land. A

special concern of this research is that a right of possession – which, in its orthodox sense, is an

incident of the title of ownership or a possessory title – is not necessarily applied according to

possession's conceptual linkage to land, a key element of the right's claim to be relative to a title

of ownership of an estate.

3.9 Explaining possession of an estate as a legal concept in an orthodox or technical sense

Lord Hoffmann thought that possession de iure or de facto was the bedrock of English land

law.652 Lord Neuberger thought relativity of title was that bedrock.653 Neither mention

ownership of land, undoubtedly because, as Megarry J once noted (uncontroversially) and as

already noted, there is ownership of land, and then there is ownership of an artificial iural

construct in land.

650 Ezekiel v Fraser [2002] EWHC 2066 (Ch). See also M Wonnacott, Possession of Land (CUP, 2006), 150 ("[T]here is nothing wrong, in principle, in having two inconsistent [possession] judgments, between different people, for possession of the same thing. The court, in an action between 'A' and 'B', might decide that the freehold in a property belongs to 'A'. In another action, between 'B' and 'C', it might decide that the freehold belongs to 'C'. But, as between 'A' and 'C', neither can rely upon the judgment which has already been obtained against 'B', except where the other is a privy of 'B'. Otherwise, as between 'A' and 'C', the ownership of the freehold simply has not been decided. This should not be surprising, for it is simply an aspect of the rule in Asher v Whitlock [(1865) LR 1 QB 1] that all titles are relative.").

651 J Gordley and U Mattei, "Protecting Possession" (1996) 44 AMJCL 293, 331 ("If we regard ownership functionally … we will not conclude that only the owner can have a right to use property. We will merely conclude that the owner will prevail in a conflict with somebody else about how and for whose benefit the property may be used. There may be other conflicts to which the owner is not a party; between a possessor and a non-possessor, a former and a subsequent possessor, a party dispossessed and the party who dispossessed him. The owner may have an interest in how such conflicts are resolved. But none of them is a conflict between the owner and a non-owner about the use of the property. The principle that the owner would win if there were such a conflict does not tell us who should win if there were not.").

652 Hunter v Canary Wharf Ltd [1997] AC 655, 703. Legal possession generally is said to be the possession of a person with title; factual or actual possession is the possession of a person without title (other than a possessory title). Accordingly, it would be said today that, in the absence of any other person being in (actual) possession, a registered owner is entitled to and has legal possession of the estate.

653 Berrisford v Mexfield Housing Co-operative Limited [2012] 1 AC 955, [65], referring to Bruton v London and Quadrant Housing Trust [2000] 1 AC 406. That is, his Lordship was recognising that possession itself was not relative; rather, claims to possession were. See K Gray and S Gray, Elements of Land Law (OUP, 5th ed, 2009), [2.1.38].


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[I]t is fundamental to English land law that nobody save the Crown owns any land: for all others, the subject-matter of ownership is not the land itself but the estates or interests artificially created in that land.654

Sir Frederick Pollock thought that the interest of English lawyers in possession was "only so far

as legal results and incidents may attach to it".655 That seems true of lawyers generally.

Wonnacott explains that, in English real property law, possession is used in three distinct and

separate senses:

1) in its proper, technical (or orthodox) sense, as a description of the relationship between a

person and an estate in land;

2) in its vulgar sense of describing or referring to physical occupation of tangible land; and

3) to refer to fictional 'constructive' possession (which mostly is only of historical

interest).656

Possession orthodoxy and the enjoyment key: Bocardo SA v Star Energy UK Onshore Ltd

A classic application of possession in its technical, or orthodox (or ordinary), sense is the United

Kingdom Supreme Court's decision in the unusual case of Bocardo SA v Star Energy UK

Onshore Ltd657 (Bocardo). There, a predecessor of the defendants, a licensee of a petroleum

production licence under the Petroleum (Production) Act 1934 (UK), had bored three pipelines

between 800 and 2,800 feet beneath the claimant's freehold land to enable oil to be extracted

from a reservoir and collected from wellheads on neighbouring land. By s 1 of the Act, property

in petroleum in strata was vested in the Crown. The claimant had not agreed to the laying of the

pipes, nor had the defendants acquired from the court any ancillary right to do so under the

Mines (Working Facilities and Support) Act 1966 (UK). The claimant sued the defendants in

trespass. The defendants argued that, for the claimant to bring an action in trespass,

possession, not ownership, was essential (see chap 6, para 6.3) and that the claim should have

failed because the claimant was not in possession of the substrata where the wells entered the

substrata at least 800 feet below the surface of the claimant's land.

654 Lowe v J W Ashmore Ltd [1971] Ch 545, 554; see also Minister for the Army v Dalziel (1944) 68 CLR 261, 298 (Williams J); Dorman v Rodgers (1982) 148 CLR 365, 372 (Murphy J). Creating this artificial separation between the physical land and an estate or interest in land is useful in many situations. For example, a chattel annexed to land may or may not be a fixture at law. If it is a fixture, it is subject to the fee simple estate which represents the land; it is not a fixture, it is not the subject of the estate despite its annexation.


656 M Wonnacott, Possession of Land (CUP, 2006), chap 1, 1; cf Mayor of London v Hall [2011] 1 WLR 504, [27] (Lord Neuberger MR).

657 [2011] 1 AC 380.


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The court found that the claimant, as the owner of the surface of land, owned the strata beneath

it. And, although the petroleum was the property of the Crown, the claimant remained the

owner of the subsurface which surrounded it. It was not so absurd that the claimant's title to the

land extended down to the strata through which the defendants' pipelines passed. According to

Lord Hope, noting that it was common ground between the parties that a trespass occurs when

there is an unjustified intrusion by one party on the land which is in the possession of

another:658

… [The claimant] has the prima facie right to possession of those strata so as to be deemed to be in factual possession of them … As the paper title carries with it title to the strata below the surface, … [the claimant] must be deemed to be in possession of the subsurface too. There is no one else who is claiming to be in possession of those strata through … [the claimant] as the paper owner.659

Accordingly, the defendants were liable in trespass to the claimant. In the Court of Appeal,660

Aikens LJ had, however, described the defendants' trespass as technical.

Their only wrongful act was in committing a technical trespass within Bocardo's land which caused it no loss or damage at all. Therefore, there is an attraction in concluding that Bocardo should be entitled only to nominal damages.

However, I have concluded that this would not be right, because if it were, it would mean … that Star would be in a better position by committing the technical trespass that it has, rather than obtaining Bocardo's agreement or the ancillary right to bore the pipelines that I have concluded that it should have done. It cannot be correct, in principle, that a tortfeasor should be liable for a smaller sum in damages than it would have had to pay the claimant if it had followed the law ...661

While an action in trespass is said to vindicate a plaintiff's possession,662 that possession does

not, of itself, necessarily represent substantial value in the hands of a possessor.663 The

defendants operations did not "interfere 'one iota' with Bocardo's enjoyment of its land"

assuming enjoyment had a general connotation of usefulness or useability relative to Bocardo.664

In Bocardo, a majority of the court held that the scheme under the Petroleum (Production) Act

1934 (UK) and the Mines (Working Facilities and Support) Act 1966 (UK) by which the

defendants may have acquired an order granting them an ancillary right to lay pipelines under

the claimant's land was a power of compulsory acquisition. As a result, principles for the

assessment of compensation on the compulsory acquisition of land applied to assessing

damages for trespass. One such principle, commonly referred to as the Pointe Gourde

658 Bocardo, [6], citing Bl Comm, Vol III, 209.

659 Bocardo, [31].

660 Bocardo SA v Star Energy UK Onshore Ltd [2010] Ch 100 (CA).

661 [2010] Ch 100 (CA), [91]-[92].

662 Plenty v Dillon (1991) 171 CLR 635, 654-655 (Gaudron and McHugh JJ). See chap 6, para 6.2.

663 See generally the discussion in chap 5.

664 Bocardo, [54] (Lord Walker); see Bocardo SA v Star Energy UK Onshore Ltd [2010] Ch 100 (CA), [199] (Aikens LJ).


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principle,665 is that compensation does not include an amount attributable to an increase in the

value of the land occasioned by the scheme underlying the acquisition. Further, it was apparent

that Parliament did not intend for the claimant, as an owner of land, but who did not have a

petroleum production licence, to share in the value of the petroleum. As noted by Lord Walker:

It is true that the natural petroleum was pre-existent. It had been there, no doubt, for tens of thousands of years. But the petroleum did not belong to Bocardo. It is true that Bocardo held a key (not, I think, the only possible key) to the most efficient exploitation of the petroleum by diagonal drilling to the apex of the oilfield. But the key's value depended entirely on the scheme, unlike a ransom strip for which there might have been a variety of possibilities of profitable realisation …666

As to the scheme, Lord Brown said:667

… [T]here can be no doubt as to what constitutes the scheme in the present case … 'The exploitation of the petroleum licence in the specified area.' Nor can there be any doubt that, whatever particular value existed in the ancillary right here required to facilitate that exploitation (any 'premium' or 'key' or 'ransom' value), it existed exclusively ('entirely' or 'solely' are other words used in this context) because of the scheme. But for the scheme, there was no potential use or value whatever in the right being granted. It thus fell to be disregarded under the Pointe Gourde principle … the purpose served by the suitability of such land for providing access could only have been achieved in pursuance of statutory powers, there being no market for such right of access apart from the requirements of the statutorily empowered licence-holder.668

In essence, the ancillary right, which was the key to the exploitation of the licence, was its own

form of priority to and exclusivity of the land (see para 3.5): that is, as representing an authority

of the licence-holder found in the scheme. Bocardo's 'key' – its ownership and (legal)

possession of the substrata – could not be separated out from the scheme so that it was pre-

existent to the statutory scheme.669

In noting that, by statute, the petroleum was vested in the Crown; the Crown had the exclusive

right of searching and boring for and getting such petroleum; and that a licensee could

compulsorily obtain any necessary ancillary right to access the petroleum in the claimant's land,

Lord Brown continued:

[B]y these provisions Parliament was at one and the same time extinguishing whatever pre-existing key value Bocardo's land might be thought to have had in the open market and creating a new world in which only the Crown and its licensees had any interest in accessing the oilfield and in which they had been empowered to do so (to turn the key if one wants to persist in the metaphor) compulsorily and thus on terms subject to the Pointe Gourde approach to compensation.670

665 Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565.

666 Bocardo, [55]. See also, [78] (Lord Brown).

667 Lords Walker and Collins agreeing.

668 Bocardo, [82]. See also, [77].

669 That is, if it had been pre-existent, the Pointe Gourde principle could not apply and the key would have value.

670 Bocardo, [90].


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In agreeing with the Court of Appeal, damages were assessed at a relatively negligible amount.

As the action in trespass, and the remedy for proven trespass, are elements in the law's response

to recognising and protecting the enjoyment of land, finding that compensation for the trespass

was to be assessed according to principles for the compulsory acquisition of land draws

attention to how ownership and necessarily, possession, are conceptualised according to their

representative essential characteristics.

Ownership in law does not guarantee anything in particular beyond its being a priority to and

exclusivity of thinghood, that thinghood being the lawfulness of enjoyment of the thing itself

(see para 3.7).671 This type of having (a type of key or form of authority and secured by title)

does not necessarily have any special or minimum content or value to it beyond its recognition

as a legal relationship with the thing (and undoubtedly its capacity to be disposed of672). While,

as a matter of law, that is significant, in Bocardo Parliament had essentially extinguished the

key-value or authority-value in Bocardo of possessing and vested that value in a statutory

scheme relating to the exploitation of the petroleum.673 The incidental intrusion onto Bocardo's

sub-stratum land could not realise itself in substantial compensation to Bocardo because there

could not be any intrusion but for the key which was now controlled by the statutory scheme.

The intrusion onto Bocardo's land was a trespass, but its injury to Bocardo's lawful enjoyment

of that land was technical at best.

This simply demonstrates the realisation of the enjoyment of ownership in possession is an

aspect of its conceptualisation because its content is contingently linked to the concept of land.

For example, although Bocardo could not realise the enjoyment of its sub-stratum land in an

especially beneficial way, nevertheless, it is an owner in possession (or perhaps a lessee) who is

entitled to monetise the land, not someone who has a lesser interest in the land. That is, the

value of the enjoyment of the land (however it may be lawfully realised and even if an aspect of

enjoyment cannot be legally protected674) is represented by the concept of ownership in

possession.

Bocardo makes it clear that we cannot confuse the notion that something is mine (owned) with

the idea that, merely because someone else uses it without my permission, vindication of my

possession of it through an action in trespass must always represent something especially

substantial.675 That is not a concern of the law's enjoyment idea. There is, however, a relativity

idea here found in a notion of lawfulness of enjoyment. This is not to say people may, without

671 It is, then, still enjoyment in law. And, it is significant, as it is property.

672 Although disposal is strictly a consequence, not a necessary element, of the relationship.

673 This draws attention to the distinction between ownership and the realities of owning.

674 For example, a right to a view.

675 It may be my 'castle and fortress', but, it may be a ramshackle.


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justification, intrude at will and not be compelled to compensate an owner providing they do not

cause any appreciable damage: that is not the law nor is it the point.676 Relevantly, we are here

highlighting that a significant consideration in the conceptualisation of possession and

ownership is the characteristic of thinghood, a representation in itself of what the law provides

as the abstract enjoyment of land: it is to the extent of the intrusion relative to such enjoyment

that an owner has his or her action in trespass and right to compensation. And this is consistent

with a negative view of ownership: it does not represent a positive claim to an enjoyment,

regardless of how it is perceived. Perception may influence ownership's content, but within the

boundaries of its characteristics.

The action in trespass enforces a boundary rule: the injury to possession which may incur by the

minutest of intrusions past a boundary adopts an efficiency idea as it obviates the need for the

possessor to incur time and cost in assessing whether intrusions on the whole are justifiable.

But, my relative superior claim to the thing (as an ownership claim of exclusivity or even

exclusion) may, despite that superiority, represent in reality little in terms of its actual

enjoyment, especially when put up against the relative interests of someone else as derived via a

statutory scheme for the exploitation of the thing. Thus, the action in trespass, as an element in

the law's response to recognising and securing the enjoyment of land does not necessarily

provide the priority to and exclusivity of the claim to everything within a boundary any special

value. The interest of an owner in ownership, while (as a matter of justice) not outweighed by

another's interest in the unlawful use of the land and its enjoyment (and, as such, inherently

significant as a matter of law), can be of a limited value despite its being a control relationship

of priority and exclusivity. The value of land as the thing owned to an owner extends to no more

than the value of the advantage of its lawful enjoyment to the owner. But, the law can provide

its own relative values, depending on what it is that is in issue. In many cases (which may be

called low stakes contexts), the value of that advantage to the owner will be quite significant;677

in other cases (which may be called high stakes contexts), the value of the advantage may be

somewhat, or even significantly, less.678 But, while, in either case, the owner may still have

ownership, the value of the advantage, even in law, may be reshaped according to what its value

is in possession. As will be explored (see chap 5, para 5.4), the lawfulness of ownership's

enjoyment – its possession – is a relative concept in itself, one that incorporates an idea of

weighing the respective interests and values of owners and others to the enjoyment of (owned)

land.679

676 See Plenty v Dillon (1991) 171 CLR 635, 647 (Gaudron and McHugh JJ).

677 For example, where the subject land is the owner's home.

678 For example, where the subject land is a vast pastoral lease or is land with a public quality.

679 Another example of the limits of ownership in possession, although in a somewhat different setting, may be a provision such as the Acquisition of Land Act 1967 (Q), s 13(1). That provision says, "If—(a)


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Consider also the ouster principle that applies in respect of easements.680 In Moncrieff v

Jameson,681 a case concerning whether an express grant of a right of way included, as an

ancillary right, the right to park on the way,682 Lord Scott said:

[47] … To the extent … that the 'ouster' principle is asserting that a servitude must not be inconsistent with the continued beneficial ownership of the servient land by the servient owner, I would unreservedly accept it. If, for example, the nature of the purported servitude were to place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land I would find it very difficult to accept that the right could constitute a servitude. An express grant of such a right might be construed as a grant of the fee simple (see Lopes LJ in Reilly v Booth (1890) 44 Ch D 12, 26) or might be construed as the grant of a contractual licence, but I do not as at present advised see how it could be the grant of a servitude ...

[54] … Every servitude or easement will bar some ordinary use of the servient land. For example, a right of way prevents all manner of ordinary uses of the land over which the road passes. The servient owner cannot plough up the road. He cannot grow cabbages on it or use it for basketball practice. A viaduct carrying water across the servient land to the dominant land will prevent the same things. Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude. There will always be some such use that is prevented. [55] … Sole user, as a

a constructing authority proposes to take, or has taken, part of any land; and (b) the taking of the part (the primary part) will leave, or has left, a parcel of land (the additional land) that the constructing authority and the owner of the land required to be taken or that was taken agree in writing is of no practical use or value to the owner; the constructing authority also must take the additional land." The command of s 13(1) – namely, that the constructing authority must (compulsorily) take the additional land – is not engaged unless the constructing authority and the owner first agree that the additional land is of no practical use or value to the owner. While the constructing authority should not simply be able to take the additional land in circumstances where the authority alone determines the additional land is of no practical use or value to the owner, a concern from an ownership perspective may be that the constructing authority cannot, in the absence of an agreement, be compelled to take the additional land even if, on an objective assessment, the additional land has no practical use or value to the (or any) owner (and the owner wishes for the land to be taken). Looked at this way, ownership does not, consistent with Bocardo, actually fulfil any special objective beyond a policy that the land must be owned by someone. Even if on that basis ownership still is said to have 'meaning', it potentially has no reality beyond the mere fact of a legally recognised relationship between an owner and a thing: an owner can be compelled to continue to 'own' land where, although compensated for the taking of the 'primary part' (including for any injurious affection to the retained additional land (Marshall v Director-General, Department of Transport (2001) 205 CLR 603)), he or she did not cause the circumstance by which he or she would now wish to divest himself or herself of that ownership. Ownership, then, can be a means of maintaining priority and exclusivity of a thing in the hands of an owner, whether or not the owner likes it. The law's argument for or objective of the enjoyment of land – which the law recognises and protects through ownership – may be seen as one of priority and exclusivity per se. Ownership in possession (regardless of any actual enjoyment) functions, at its very minimum, in a default way as the content of its argument (and, therefore, abstraction) is that enables us to identify an owner forthe land.

680 However, care must be applied when using the term ouster. See JA Pye, [33], [35]-[36] (Lord Browne-Wilkinson).

681 [2007] 1 WLR 2620. See also Weigall v Toman [2008] 1 Qd R 192; Stolyar v Towers (2018) 19 BPR 38,287; Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202. In the last case (at [29]) Morrison JA said, "[A]uthority has moved to the point where a distinction is drawn between a right that confers sole use and occupation, and one which confers possession in law …" With respect, a distinction has always been drawn between, on the one hand, sole use and occupation and, on the other, possession. That some courts have misunderstood the distinction does not mean the distinction is new.

682 Strictly, the case was about the law of servitudes in Scotland. See, however, [2007] 1 WLR 2620, [111] (Lord Neuberger).


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concept, is quite different from, and fundamentally inferior to, exclusive possession. Sole use of a coal shed for the storage of coal does not prevent the servient owner from using the shed for any purposes of his own that do not interfere with the dominant owner’s reasonable use for the storage of coal. The dominant owner entitled to a servitude of way or for the passage of water along a viaduct does not have possession of the land over which the road or the viaduct passes. If the coal shed door had been locked with only the dominant owner possessing a key and entry by the servient owner barred, so that the dominant owner would have been in possession and control of the shed, I would have regarded it as arguable that the right granted was inconsistent with the servient owner’s ownership and inconsistent with the nature of a servitude or an easement. But sole use for a limited purpose is not, in my opinion, inconsistent with the servient owner’s retention of possession and control or inconsistent with the nature of an easement. This conclusion is supported by Lord Evershed MR’s remarks in In re Ellenborough Park [1956] Ch 131, 176 where the issue was whether the right to use a communal garden could take effect as an easement. He said that:

… the right conferred no more amounts to a joint occupation of the park with its owners, no more excludes the proprietorship or possession of the latter, than a right of way granted through a passage, or than the use by the public of the gardens of Lincoln’s Inn Fields … amount to joint occupation of that garden with the London County Council, or involve an inconsistency with the possession or proprietorship of the council as lessees.

…

[59] I would, for my part, reject the test that asks whether the servient owner is left with any reasonable use of his land, and substitute for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land.683

Evidently, again, ownership in possession is not about being able to enjoy land in any especially

practical way. As Lord Scott recognises, a grant of a right of possession (which cannot otherwise

be characterised as a lease684) cannot be the grant of an easement and may be able to be

construed as the transfer of ownership of a fee simple estate. But, sole use and occupation of an

owner's land – a practical but not a legal exclusivity – under an easement does not deny an

owner the freedom to make decisions about the land in a relevant sense: only the grant of the

right of possession will do that (and even then there may be exceptions685). Accordingly, an

owner can be excluded such that he or she cannot do anything in any practical way on the

burdened land, yet still be in (legal) possession, and necessarily retain the right of possession.686

683 Cf, [2007] 1 WLR 2620, [143], [144] (Lord Neuberger).

684 That is, because it is not for a term. Lord Scott suggests it could possibly be characterised as a contractual licence. This is because, while giving the grantee some right of use or occupation, if it cannot be classified as a recognised estate (including some form of tenancy) or interest at law (according to the numerus clausus principle), it will be enforceable, at most, as a contractual licence. Nevertheless, it is possible for a grantee to enjoy possession even if the grantee has not been granted an estate or interest in land. For a lease, the rule is that it must be capable of being possessed; the rule is not that everything which can be possessed must be a lease. This research is not directly concerned with confining possession to particular estates (or interests) in land. Rather, its concern is with the conceptualisation of possession whenever it is applied. As to the numerus clausus principle see, for example, B Edgeworth, "The Numerus Clausus Principle in Contemporary Australian Property Law" (2006) 32 Monash U L Rev 387; S Gardner, "'Persistent Rights' Appraised" in N Hopkins (ed), Modern Studies in Property Law Volume 7 (Hart Publishing, 2013), ch 15; Hill v Tupper (1863) 2 H & C 121, 127-128 (Pollock CB).

685 For example, under statute.

686 [2007] 1 WLR 2620, [140] (Lord Neuberger) ("I am not satisfied that a right is prevented from being a servitude or an easement simply because the right granted would involve the servient owner being


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The owner never loses his or her title. This highlights a distinction between possession and use

(or between possession and occupation).

In recalling that ownership and possession both are abstract concepts, we can, then, through

decisions such as Moncrieff v Jameson, see that those concepts stabilise an enjoyment of land

primarily in a holding or having sense, but, in the end, in a default way. In the absence of a

transfer away (including by acquisition) of the land, ownership in possession can, and need

only, represent an idea of priority and exclusivity in the sense that there is no other possible

holding or having of the land. This is extremely significant in law as a legal concept as it is a key

to enjoyment: but, should the owner in possession enjoy the land to an extent beyond its lawful

enjoyment that is the product of non-legal factors (and possibly, his or her good fortune).

Whether an owner in possession can personally derive much or any real enjoyment of the land

through any practical decision-making is a distinct matter that concerns the quality of his or her

priority and exclusivity, not their representative characteristics of an ownership in possession in

law. The law will still recognise the owner as having ownership and any possessor (whether or

not the owner) as having possession for the reason that, for the law, enjoying land can include

simply having the land.687

3.10 Ownership in possession: possession being of ownership and an owner's acting as, and like, an owner

From the discussion so far, in essence, when ownership as property is broken down, it can be

discerned as having three functioning aspects.

1) A proprietary element: ownership of an estate (the recognition of the relationship in law

which is recognised as a legitimised claim by title).

2) A personal element: the freedom or liberty of enjoying ownership and the right to protect

that freedom or liberty (the enforceable claim).

3) A remedial element: the availability of rights of action and remedies in aid of enjoyment

(and the securing of the claim consequent on its recognition).

Possession mostly represents the actual enjoyment of ownership, whether that enjoyment,

although a conclusion of law, occurs as a matter of fact or as a matter of law.688 That is apparent

effectively excluded from the property."). Although, his Lordship does appear to use exclude and exclusive as interchangeable terms. The qualifying word 'effectively' would appear to suggest Lord Neuberger was simply saying that the grant may still be an easement providing the grantee is not given the right of possession. Rather, his Lordship was referring to the effective right of exclusive enjoyment. See also Mercantile General Life Reinsurance Co v Permanent Trustee Co Ltd (1988) 4 BPR 9534; Wilcox v Richardson (1997) 8 BPR 97652.

687 Consider the distinction between a defect in title and a defect in the quality of title. See generally S Christensen, W Dixon, W Duncan, and S Jones, Land Contracts in Queensland (Federation Press, 4th edn, 2016), 3.2.1 to 3.2.3.

688 Cf R von Ihering, Ueber den Grund des Besitzschutzes (1867), 179, as cited by A Tay, 'The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 MULR 476, 481


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from authorities such as Bocardo. And this makes possession exclusive and also a default

explanation of ownership when there is no other explanation.689

Ownership is the source of the right of enjoyment or right of possession. "[P]ossession in law

follows the right to possess."690 While possession is of ownership, of does not mean it is identical

to ownership: possession only exists as a legal concept if there is ownership, and it may be

evidence of ownership. Thus, it follows ownership can perform a type of default role in

recognising an order for the enjoyment of land. And ownership can be in possession, but

possession need not supplant ownership. However, as possession is of ownership, it too can be

represented by title (when it is not of an owner of an estate).

Accordingly, to be in possession (when not the owner) can represent (and constitutes as a

relative right of possession itself) a priority to enjoyment of the land subject to a better right to

possession. This sort of possession is a relative priority to and exclusivity of the land. However,

the possession of a possessor in this sense is only like an owner's ownership; remembering that

the possession is of the ownership interest itself (at least in an orthodox sense), it is not in all

respects like (or as) the owner's ownership of that interest.691 Thus, the owner's enjoyment of his

or her ownership – a legal possession – is different from the possessor's (actual) possession

(because in the case of the owner his or her ownership necessarily co-exists with his or her

possession).692 Nevertheless, the respective possessions are conceptually identical.693 As such,

each of an owner's and a possessor's right of possession is a right to the same thing and, if

("Possession is the objective realization of ownership. It is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the State as expressed in the law; it is possessed by me, when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms of security if possible; and indeed they normally co-exist.").

689 See T Merrill, "Ownership and possession" in Y Chang (ed), Law and Economics of Possession(Blackwell, 2015), ch 1.

690 Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94, 114 (Ormrod LJ).

691 J Gordley and U Mattei, "Protecting Possession" (1996) 44 AMJCL 293.

692 Although an owner will have a right of possession (providing he or she has not granted such a right away say, under a lease), having a right of possession does not always mean the holder of that right is the owner or has legal possession. A person may have acquired a right of possession through actual possession which is good against another possessor, but which is not good against an owner. For example, assume A is the registered owner of land and, as such, has a right of possession. A has legal possession when there is no one else in possession. But, if B entered into possession (without A's consent), B has a right of possession good against the world, except A. If C enters into possession, C's possession may be good against the world, except B (and A), as B has a superior right of possession because of B's earlier possession. See Ezekiel v Fraser [2002] EWHC 2066 (Ch).

693 Cf A Kocourek, Jural Relations (2nd edn, 1928), 39 ("There are logically separable and distinct ideas presented in the phenomenon of possession. One is the physical situation; the other is the legal situation … The fact that both of these situations [namely, that the physical situation is called de facto possession and the legal situation is simply possession or legal possession] have the same name, even when an attempt is made to differentiate them by a qualifying adjective, has contributed very powerfully to obscure the nature of possession.").


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relevant in a dispute as to who should be in possession, must necessarily be relative to one

another. For the same reason, possession when not of an owner can be explained as the default

explanation for the priority to and exclusivity of the land.

Acting as, and like, an owner

Possession as a legal concept usually is thought of in terms of a person's (the possessor's) having

a high degree of intentional control of land,694 especially when that person is not the owner of

the estate.695 That, however, can focus too much on a possessor's control over access to the land

and an idea that possession (including where it is said to function as a relative possessory title),

or even a right of possession, is a right to exclude others from the land (thus characterising the

right to possession from an I-Others relational perspective).696 Nevertheless, it does allow us to

better conceptualise possession in its orthodox sense because it forces us to maintain the

conceptual linkage with land.

As possession is the enjoyment of the estate as an owner may (and can only) enjoy the estate,

when the ownership interest is of an estate in possession the possessor acts like an owner

because an ownership interest, being of the 'thing' that is land (as represented by the estate),

gives the owner the freedom to decide if and how to lawfully use and exploit the land.697 This

involves intention. Thus, possession – or rather, the state of possession – is a proprietary

relationship with an estate (because it is functioning via 'ownership of the estate').698 It is not

694 Cf, A Tay, 'The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 MULR 476, 494 (an intention to exercise control may be an aspect of factual control (that is, control is self-conscious and willed)).

695 Intention "is highly relevant if the law is to attribute possession of land to a person who cannot establish a paper title to possession" (Bocardo, [30] (Lord Hope)). See Congoo, [161] (Gageler J); "Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another, for by possession is meant possession of that character of which the thing is capable" (Clarke and Lindsell on Torts (16th ed, 1989), cited in MacIntosh v Lobel (1993) 30 NSWLR 441, 454 (Kirby P); cf F Pollock and R Wright, An Essay on Possession in the Common Law (1888), 78; A Thayer, "Possession" (1905) 18 Harvard Law Review 196, 199 ("To gain possession by occupation or exercise of right of entry involves sometimes not much more than a mere manifestation of will to exclude.").

696 A right of (exclusive) possession has been described as or at least involving the right to exclude any and every one from the land for any or no reason (Brown, [36], [52]; Congoo, [8]). See also Mayor of London v Hall [2011] 1 WLR 504. A 'control over access' perspective can, on occasions, be a one-dimensional view of property (Fejo v Northern Territory of Australia (1998) 195 CLR 96, [47].

697 Gatward v Alley (1940) 40 SR (NSW) 174, 187 (Jordan CJ); JA Pye; Powell v McFarlane (1977) 38 P & CR 452, 470-471 ("[Possession is an expression of how] an occupying owner might … [be] expected to deal with" [land]."). If the possession is of a future ownership interest, the possessor cannot immediately use and exploit the land. Nevertheless, the possession still is of enjoyment of that future interest.

698 M Wonnacott, Possession of Land (CUP, 2006), ch 1; J Hill, "The Proprietary Character of Possession" in E Cooke (ed), Modern Studies in Property Law, Vol 1 (Hart Publishing, 2011), ch 2. See generally Hung v Warner, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] FCAFC 48, [29]. The owner's proprietary relationship with the estate – although usually referred to as ownership – can, for present purposes, be called legal


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conferred by the estate as if possession describes the quantity of (rather than a relationship

with) the estate (or rights enjoyed as the estate).699 Importantly, possession, as an abstract legal

concept, does not supplant the estate as if possession as a high degree of intentional control is

an independent source of right in respect of land. This is because the concept of ownership in

possession is conceptually or contingently linked to the thing that can be owned (and enjoyed),

namely, land capable of being represented by an estate.

To possess as a possessor, then, is to freely exercise a private will through decision-making

about the land (the estate) as the relevant ownership interest permits. Possession (as stating

what the possessor has) mostly channels itself through the ownership interest when that interest

is the legal priority of authority over land, as is the case for Torrens title land.700 Accordingly, for

a non-owner possessor to be in possession at law the possessor must, as a matter of observable

fact, be acting like an enjoying owner could according to the owner's ownership interest.701 This

possession. The non-owner's proprietary relationship with the estate (acting through the ownership interest) can, for present purposes, be called actual possession.

699 Confusion does arise in a lease context when the issue is whether a particular arrangement confers a "right of exclusive possession". What really is being asked is whether the arrangement represents the characteristics of priority to and exclusivity of land (for a term). To (then) ask whether the arrangement confers a right of (exclusive) possession is somewhat awkward because if the arrangement represents the stated characteristics it is a lease and the answer must be, 'of course' (or even, 'do you really need to ask?').

700 While the Crown retains a sovereign power to make laws about land (see Bone v Mothershaw [2003] 2 Qd R 600), as Brennan J said in Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, [74], the "courts cannot refuse to give effect to a Crown grant 'except perhaps in a proceeding by scire facias or otherwise, on the prosecution of the Crown itself' … Therefore an interest validly granted by the Crown, or a right or interest dependent on an interest validly granted by the Crown cannot be extinguished by the Crown without statutory authority". The power of the Crown to compulsorily acquire land is a statutory power (see, for example, Acquisition of Land Act 1967 (Q)); it is not an incident of any tenurial relationship between the Crown and an owner of an estate held of the Crown. In any event, when the Crown acquires land, it really only acquires the owner's ownership of the estate: simply, it is an involuntary transfer of that ownership and has the effect of extinguishing the owner's personal ownership. When acquiring land, and compelling a transfer, the Crown is not exercising an authority of a paramount owner of land: it is exercising a sovereign power. The suggestion that the Crown retains a radical title which is some form of property in land granted in fee simple – that is, as sitting between the physical land and the estate – is meaningless; cf Nullagine Investments Pty Limited v The Western Australian Club Incorporated (1993) 177 CLR 635; Perilya Broken Hill Ltd v Valuer-General (2015) 10 ARLR 235, [31], [37] (Leeming JA).

701 This does not mean, as is often debated, that possession in that case somehow remains factual and is not legal. See, for example, F Pollock and R Wright, An Essay on Possession in the Common Law(1888), 26 ("[Possession can refer to] "an actual relation between a person and a thing" [and] "the state of being possessor in the eyes of the law"); cf S Douglas, "Is Possession Factual or Legal?" in E Descheemaeker (ed), The Consequences of Possession (OUP, 2014), ch 3; B Nicholas, An Introduction to Roman Law (OUP, 1962), 115 ("[P]ossession was not a fact if by that one means that it was unregulated by law. In the case, for example, of my taking possession of a farm, whether I have entered on the land is indeed a question of fact, but whether such an entry, assuming it to have occurred, amounts to a taking of possession is a matter governed by legal rules."). Factual evidence of a non-legal reality of possession may go to establishing whether, in a particular instance, a person is in possession for the law. J Salmond (Jurisprudence (1947, 10th edn), 293-308), though not limiting himself to possession of land, made the distinction between possession in fact and possession at law and said that not everything which is recognised as possession by the law need be such in truth and in fact. And conversely, the law may be moved to exclude from the limits of the concept facts which rightly fall within them. According to Salmond, there are not two ideas of


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is where, to effectively supplant the owner, the possessor will need to show, by legally accepted

evidence (an entry rule), that he or she actually is enjoying the owner's ownership interest in the

estate: often, this factual evidence is said to consist of doing things in respect of land to show the

alleged possessor is exhibiting, as suggested, a high degree of intentional control (that control

being the consequence of the facts to be proved).702 But, in the end, it is only necessary to act (or

rather, to have a tribunal of fact feel an actual persuasion that the relevant facts occurred or

existed to show that the alleged possessor has acted) like an owner of the ownership interest

would (that is, as the liberty interest of an owner of the relevant ownership contemplates).703

That is, possession's entry rule704 concerns, not particular threshold acts of possession (for

example, fencing the land) or behaving as if one had the free will to decide how the ownership of

the land is to be enjoyed (as that pushes the enquiry towards establishing that the possessor is

exercising the free will of the owner), but behaving with free will as to how the ownership of the

land is to be enjoyed. (It is irrelevant that the alleged possessor knows that he or she is not the

'rightful' owner as, otherwise, such knowledge inevitably would lead to a query as to whether a

particular consequence flowed from that knowledge: it does not.705) However, inferences as to

whether someone is in possession – the status-consequence of proved facts – cannot be drawn

purely in the abstract.706 As a finding of possession is to put the alleged (non-owner) possessor

possession: a legal and a natural. There is only one idea, to which the actual rules of law do more or less imperfectly conform. K Gray and S Gray, "The Idea of Property in Land" in S Bridge and J Dewar (eds) Land Law: Themes and Perspectives (OUP, 1998), 15-51, contend that when 'property' is seen as a fact it rests on essentially intuitive perceptions of the degree to which a claimant successfully asserts de facto possessory control over land. A Kocourek, Jural Relations (2nd edn, 1928), ch 20, was of the view that dividing 'possession' (as a juridical concept) as physical control on the one hand and the right to have physical control on the other was unnecessary. If a person actually holds a thing, he or she either has a right to continue holding it or he or she has no right; if he or she is not holding a thing, he or she either has or has not a right to hold it. In all cases what matters is the right to have physical control. On the other hand, R Dias, "A Reconsideration of Possession" (1956) Cambridge LJ 235, thought that physical control simply was the starting point of possession. It is a fact which ante-dates the law and it exists regardless of the law. When law came into being it took account of this fact of physical control which technically came to be called possession. The idea of possession is, then, rooted in actual control. The law of possession became technical once the law tried to keep pace with the increasing demands of everyday situations. Tradition had fixed possession as the juridical basis of the advantages of physical control.

702 Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J) ("The truth is that, when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.").

703 See JA Pye; Perry v Clissold (1906) 4 CLR 375, 377 (PC), and fn 697.

704 See A Kocourek, Jural Relations (2nd edn, 1928), ch 20.

705 Of course, knowledge that one is not the owner may mean that the alleged possessor only then acts as if he or she were the owner. However, such a characterisation may put a gloss on what needs to be demonstrated, namely, an alleged possessor's behaving in the same way an owner can.

706 To adopt and adapt Lord Carnwath in R (on the application of Barkas) v North Yorkshire County Council [2014] 2 WLR 1360, [61] ("[T]he test cannot be applied in the abstract. It needs to be seen in the … factual context of the particular case. It is not a distinct test, but rather a means to arrive at the


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in the position of a person who is enjoying (and can claim a title of sorts to) an estate, the facts

said to cause that consequence must, in effect, speak, or are only relevant, to that consequence

and must be interpreted accordingly. As such, there must be more than the fact of the alleged

possessor's state of mind (which, arguably, would require a tribunal of fact to speculate as to

what may amount to no more than possible imaginary behaviour707): rather, they are facts, as

proved, that have been done consistently with a state of mind of a person who, all things

considered, acted like an owner.

In this way, to explain possession as being of ownership, owning an ownership interest can be

seen again as dividing itself according to the characteristics of having the estate (for example,

formal title to the land) and of the enjoyment of or freedom to enjoy the land. The non-owner

possessor acquires for himself or herself a continuing right of possession – often referred to as a

possessory (proprietary) title – that is said to be good against the world except a superior

titleholder (which the registered (or paper) titleholder will always be).708 As such, possession

that creates its own title by reason only of the possession itself is a relative title:709 it is, although

of the same ownership interest in the estate, relatively inferior to the owner's ownership of that

interest.710 It is the exclusive title, except if someone has a superior title. In this way, possession

functions as a type of default explanation – a possessory title711 – for the enjoyment of an estate

is susceptible to being lost.712 For the law, ownership and possession can, then, be seen in a

appropriate inference to be drawn from the circumstances of the case as a whole"); F Pollock and R Wright, An Essay on Possession in the Common Law (1888), 15, who explained that the law takes notice of certain kinds of facts and then ascertains what those facts are.

707 Cf Murray v Murray (1960) 33 ALJR 521, 524.

708 See Kennedy v Council of the City of Sydney [2010] NSWSC 1402, [12]; MacIntosh v Lobel (1993) 30 NSWLR 441.

709 Although see J Gordley and U Mattei, "Protecting Possession" (1996) 44 MAJCL 293, especially at 319-329, who question the notion that English law developed such that any possession itself created a title. In their view, "English courts … decided cases pragmatically without benefit of the doctrine of relative title or any other theory of what the relationship might be between ownership and possession. It first appeared in the writings of Sir Frederick Pollock although he may have borrowed a suggestion of Oliver Wendell Holmes. Holmes and Pollock were familiar with the German debate and were trying to respond to it. While they both thought their theories would explain English law, their theories had little to do with any feature of the law that was distinctively English."). See fn 364.

710 Possessory titles are "relatively good or relatively bad" (Shaw v Garbutt (1996) 7 BPR 14816, 14832 (Young J); St Marylebone Property Co Ltd v Fairweather [1962] 1 QB 498, 513 (Holroyd Pearce LJ) ("Title to land is pragmatic. It is true if and so long as it works. It works if it only comes up against a weaker title. But if it is challenged by a stronger title, it ceases to be a true title, and must give way."). See P Birks, "The Roman Law Concept of Dominium and the Idea of Absolute Ownership" (1985) 2 Acta Juridica 1, 24.

711 M Wonnacott, Possession of Land (CUP, 2006), 44; see also Baker v The Official Trustee in Bankruptcy [1990] FCA 565. However, the idea of possession's being a default explanation admittedly is probably more apt for a prior possession than an adverse possession. Prior possession is not especially relevant where all land in fee simple is granted by the Crown and is registered under the Torrens system of title. Nevertheless, prior possession (unlike first possession) can be relevant where the relative claims to a right of possession do not include a claimant who is a registered owner.

712 Perry v Clissold (1906) 4 CLR 375, 377 (PC) (Lord Macnaghten) ("It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the


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sense of being "two aspects of a single situation".713 But, today, only in the rarest of cases will

possession be the necessary explanation for the enjoyment of land without reference to an

owner's ownership.714 A registered ownership functions as the explanation for having the estate

and nine times out of ten will explain the entitlement to enjoyment.715

Ownership and owning in possession: the impersonal and the personal, and sticky obligations

Priority and exclusivity generally represent the proprietary characteristics of ownership and

possession as part of the law's response to an enjoyment of land objective (albeit that a

possession when enjoyed by a non-owner is inferior to the owner's title).716 The freedom of

enjoying ownership generally represents the personal liberty of an owner or a possessor.717 From

here, the law builds (or maintains) its response by introducing (and enforcing) protections for

the proprietary and personal features of ownership and possession of an estate. In so doing, the

law is devising and securing a relationship of priority and exclusivity with land (through an

estate) as an extension of the static autonomy of all individuals as free-thinking decision-makers

in society. An individual, as a social being, acts or expresses himself or herself through his or

her own legal relationship of priority and exclusivity with a parcel of land (his or her personal

ownership of title) and, in so doing, may be forced to adjust his or her relationships with all

others as non-owning individuals who also are autonomous, free-thinking decision-makers in

society.718 The extent to which an owner may be compelled to adjust his or her relationships

ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title."). See H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3.


714 Including that of a lessee under a lease.

715 That said, the interest of a person who, on application, would be entitled to be registered as owner of a lot because the person is in adverse possession may be an exception to the registered owner's title. See, for example, Land Title Act 1994 (Q), ss 184, 185(1)(d); Newington v Windeyer (1985) 3 NSWLR 555, 563 (McHugh JA) ("A person who is in possession of land adverse to the true owner has a legal interest in the land.").

716 Mullane v Mullane (1983) 158 CLR 436, 445 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ) ("An interest in property is a right of a proprietary nature, not a mere personal right …").

717 Possession is only ever of an ownership interest. See para 3.10.

718 In explaining how a thing became 'mine', Immanuel Kant in his The Metaphysics of Morals (1797) thought that possession in a state of nature was only a natural or sensible possession (an empirical relation) and, as such, provisionally rightful possession. Conclusive possession was only possible as a lawful condition, as governed by public law. To Kant, property was not merely a right to a thing, but also a right to the private use of the thing. It was the latter right which excluded others who may possess the thing in common from use of the thing: F Vaki, "Adam Smith and Immanuel Kant as critics of empire: International trade companies and global commerce versus jus commercii" in F Forman (ed) The Adam Smith Review Vol 9 (Routledge, 2017), 14; R Scruton, Kant: A Very Short Introduction (Oxford University Press, 2001), 124 ("All general propositions about rights, … [Kant] argued, are a priori, since they are laws of reason: hence their reference to the intelligible or


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with others is an aspect of the lawfulness of his or her enjoyment of ownership, and possibly, of

ownership (in its proprietary conception) as well.

Because an owner's personal ownership may be divided vertically (for example, where it is held

on trust for someone else), in English and Australian law reference is made to the estate, as

representing the land (see para 3.9). Ownership of an estate and an owner's interest in that

estate – his or her personal ownership – are related, but different, concepts. An estate must

always be the subject of ownership;719 an owner's (personal) ownership – his or her interest –

may be called an ownership of the estate as that interest will eventually pass to another owner.

That is, ownership of an estate always exists in law: it does not go away. However, owners come

and go. As Deane, Dawson, and Gaudron JJ explained in Nullagine Investments Pty Limited v

The Western Australian Club Incorporated720 which concerned a claim for partition of a

freehold estate:

As a matter of both law and language, there is a clear distinction between the individual "interest or share" owned by one of two or more tenants in common of a freehold estate in land and the freehold estate itself. While the theory of our land law is that the radical title of the Crown lies between the physical land and a freehold estate in it, the ownership of the freehold estate has long been, for almost all practical purposes, the equivalent of full ownership of the land. As a result, the freehold estate is, as a matter of legal and popular language, commonly treated as the land itself (See, eg, Williams, Principles of the Law of Real Property, 23rd ed (1920), pp 6-7; Megarry and Wade, The Law of Real Property, 5th ed (1984), p 13; Gray, Elements of Land Law, (1987), p 58.). On the other hand, the distinct "interest or share" of one of two or more tenants in common of a freehold estate cannot, on any approach, be equated with the land itself. Indeed, an essential feature of the "interest or share" of a tenant in common, and a condition precedent of its existence or survival, is that the tenant in common does not own the freehold estate and is unable alone to deal with "the land" (Gray, op cit, pp 303-304.). It is that very distinction between the "interest or share" of a joint tenant or tenant in common and the freehold estate which underlies the enactment of the long series of partition statutes directed towards facilitating or enabling a joint tenant or tenant in common to obtain an effective order for the partition or sale of the land itself. For more than four centuries, the words of such statutes have consistently observed the distinction between the "part", "portion", "share" or "interest" of the joint tenant or the tenant in common and the "land" itself in the sense of the estate in fee in it (See, eg, Partition Act 1539 (31 Henry VIII c 1), Recitals 1 and 2; Property Law Act 1969(WA), s 126(1), (2), (3), (6)). Indeed, the common law writ of partition (Abolished in 1834 by The Real Property Limitation Act 1833 (UK) (3 and 4 Will IV c 27), s 36), which underlay proceedings for partition, "operated by the judgment of a Court of Law, and delivering up possession in pursuance of it; which concluded all the parties to it" (Walker, The Partition Acts 1868 and 1876, 2nd ed (1882), p 15; see also Seton, Forms of Judgments and Orders, 7th ed (1912), vol 2, p 1820.). The writ itself effected partition of the freehold without any need for the parties to execute a conveyance of their share or interest in the land. A consequence of the abolition of the writ of partition and equity's acquisition of exclusive jurisdiction in partition proceedings was that orders for partition necessarily acquired an in personam character: the decree for partition itself only vested equitable rights and directed "the execution of mutual conveyances by the parties to effect a transfer of the legal estate" (Seton, op cit; see also Walker, op cit; Halsbury's Laws of England, 1st

noumenal realm, of which, from the point of view of practical reason, I myself am a part."). See also G W F Hegel, The Phenomenology of Spirit (1807); Science of Logic (1816); cf O W Holmes, The Common Law (edn, M Howe, Little Brown & Co, 1963), who was most critical of Kant.

719 See fn 391.

720 (1993) 177 CLR 635, 656-658.


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ed. (1912), par 1566 n(v); Miller v Warmington (1820) 1 Jac and W 484, at p 493 (37 ER 452, at p 456).). Nonetheless, the individual conveyances executed pursuant to such an order are properly to be seen as no more than the means adopted by equity to carry into effect its decree that the freehold itself be partitioned. And that is also the case where, in a partition suit, equity decrees sale as an alternative to partition. Where sale is decreed, the single conveyance in fee simple (See, eg, Walker, op cit, p.87; Prideaux's Precedents in Conveyancing, 17th ed (1899), vol 1, pp 325-326. Note also the power of the court to make a vesting order directly effecting a conveyance of the land: Trustees Act 1962 (WA), ss 78(2)(l), 85(2)) by the tenants in common or joint tenants pursuant to a court order does not involve the sale or disposition of the individual share or interest of the individual tenant. The court order directing the sale of "the land" is an order for the sale of the fee simple in the whole of the land (See, eg, In Re Dodson; Yates v Morton (1908) 2 Ch 638, at p 641; Prideaux's Precedents in Conveyancing, op cit; The Partition Act 1868 (UK), s 3; Property Law Act 1969 (WA), s 126(1)). It follows that the conveyance in such a case extinguishes the share or interest of the individual tenant and effects the sale or disposition of the freehold itself. Indeed, there is strong support for the view that the making of the order for sale extinguishes the equitable interests of the co-tenants in the land itself even before a sale is effected (See, eg, Steed v Preece (1874) LR 18 Eq. 192; Arnold v Dixon(1874) LR 19 Eq 113; In Re Dodson; Yates v Morton (1908) 2 Ch 638; Burgess v Booth(1908) 2 Ch 648; In Re Walker; Mackintosh-Walker v Walker (1908) 2 Ch 705; Stevens v Hutchinson (1953) Ch 299; Abbott v Pegler (1980) 1 B PR 97025; Re Della-Franca's Caveat [1993] 1 Qd R 382.

Thus, in general terms, an owner's (disposable) title resides in his or her having ownership of

the estate for himself or herself and, thus, represents the proprietary element of ownership or

proprietary enjoyment – the basis of an I-Thing relationship between the owner and the land –

because it means that no one else can have ownership of the same estate (and, by extension, the

same thing (the land)). Possession (when not referring to the owner's legal possession) can, as

seen, conceptually function at this level and be proprietary when possession represents a de

facto or quasi-ownership, often referred to as a possessory title. It too represents the I-Thing

relationship (between the possessor and the land) because possession is of ownership.

However, claims to enjoyment of the estate can potentially be explained by one, two, or more

potential titles as each is a right of possession to the same thing. Or, to explain it another way,

the estate (the thing) can be the subject of more than one right of possession (only one of which

will, as already suggested, be of the superior registered or, what we might call, conclusive,

ownership which no other right of possession, including of a de facto or quasi-ownership, can

defeat721). Each has a relative status as the justice of property requires it to order the claims to

determine which one commands the authority of the land: each right is good against the world

except he or she who has a superior right.722

And this result occurs because an incident or consequence of ownership, including an

inconclusive or quasi-ownership, is the freedom of enjoyment of the estate. Ownership's

enjoyment includes the authority to enjoy the thing the subject of ownership: the possession.

Thus, this is where possession generally or practically functions because it usually is thought of

721 That is, it assumes the conclusive ownership is not statute-barred. Other rights to possession may, however, be relative among themselves. See fn 650.

722 Asher v Whitlock (1865) LR 1 QB 1; fn 650.


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as an enjoyment relative to a point in time (as in an estate in possession as opposed to an estate

in interest) or to a person who is enjoying the authority of the thing. But each such enjoyment

of the authority over the land is personal to the owner or the possessor (as the case may be): the

owner or possessor freely – but not at the same time – exercises his or her will to enjoy the

(proprietary) ownership (or, when it is simply possessory, ownership in its default mode as

quasi-ownership) at his or her personal level of authority.723 And each may assert a claim to its

enjoyment as the right of possession, one of which is relatively superior and the other of which is

relatively inferior.

Thus, if, as it may be, it is said ownership of an estate is impersonal it is meant that the

ownership, being proprietary, is the same, or functions the same way, for any owner. To say an

owner has proprietary rights in respect of land can be misleading (and jarring). The owner, as a

person, obviously has the personal freedom to enjoy a proprietary interest, because the interest

partakes of the land. And that personal authority is a legal authority of freedom.724 But,

ownership itself is not a right; it simply is a proprietary interest. Because it is proprietary, the

owner's liberty interest of its enjoyment creates a right of exclusion which is correlative to the

duty not to interfere imposed on all others.

Ownership, as capable of being assumed by a third party in succession, recognises that the

advantages and disadvantages of the particular estate (its 'lawfulness') will remain constant and

is blind to how a particular owner chooses to enjoy his or her time as owner. Land, being fixed,

is, then, impersonal to its owner. The 'thinghood' of the estate – which is the only thing that can

be owned – reflects this. Whatever sticks to the land or the estate (as time in land), whether an

advantage or disadvantage, runs with the land.725 As explained elsewhere, the action of

ejectment (which had its origins in the trespass action) or its modern equivalent, an order for

recovery of possession, although a true judgment in personam, operates to put the claimant in

possession of the land and "looks like a judgment in rem, for when a bailiff or sheriff enforces an

order for possession by writ or warrant for possession, everyone in occupation is evicted, and

723 The owner really enjoys 'ownership of the estate'. Legal possession of the owner and a right of possession are not the same. As legal possession is the possession of an owner, the owner will be taken to be in possession if no one else is in possession. It is called legal possession because the owner need not do anything special to be in (actual) possession: his or her ownership is enough. An owner has a right of possession as an incident of his or her title; but, it is only useful referring to such a right when the owner is not in possession and someone else is in possession without the owner's consent. Someone else who is in possession will, as an incident of his or her possessory title, also have a right of possession. But, that right is not good against the owner (unless the owner's right to recover possession is statute-barred).

724 That is in the sense that the owner, as titleholder, has the freedom for himself or herself to decide how to use and exploit the land.

725 Cf Cambridge Acceptance Ltd v Fetherston [1965] NSWR 1513, 1515; R v Kontos [1966] 2 NSWR 38, 45. A transferee of a registered owner's interest does not necessarily become a successor in title to the registered owner if, on registration, the purchaser has a title that is different from the registered owner's title (for example, where the purchaser takes free of an unregistered interest to which the registered owner was subject).


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not merely the unsuccessful party to the litigation".726 The order also binds successors in title.727

(The real actions were actions in rem.728) Thus, it is the state of ownership which permits

enjoyment of the land by entitled owners or possessors and that enjoyment is whatever the land

can accommodate in law. This is apparent if we consider, as discussed in para 3.7, what it is as

land (even if represented by an estate) that may be owned at law. According to Blackstone:

It is observable that water is ... [mentioned by Coke] as a species of land, which may seem a kind of solecism; but such is the language of the law: and I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; ... but I must bring my action for the land that lies at the bottom, and must call it 20 acres covered with water.729

726 See M Wonnacott, Possession of Land (CUP, 2006), 146-152, and earlier, 20-22 ("The name [ejectment] was changed in 1875, with some lack of imagination, to 'an action for recovery of land' but no change was made to the substance of the action … [F]or all practical purposes, an action for recovery of land today is substantively the same as the action of ejectment at the time of the restoration of Charles II. The sole question is whether the person claiming possession of an estate has a better right to possess it than the person defending the claim … [I]t is never an action in which the claimant is simply asking to be put into physical occupation of tangible land, albeit that the judgment may often be enforced in that way."); Spark v Meers [1971] 2 NSWLR 1, 13; Secretary of State for Environment, Food and Rural Affairs v Meier [2009] 1 WLR 828, [6] (Lord Rodger) ("Most basically, an action for recovery of land presupposes that the claimant is not in possession of the relevant land: the defendant is in possession without the claimant’s permission ... To use the old terminology, the defendant has ejected the claimant from the land; the claimant says that he has a better right to possess it, and he wants to recover possession. That is reflected in the form of the order which the court grants: “that the claimant do forthwith recover” the land – or, more fully, “that the said AB do recover against the said CD possession” of the land. See Cole, The Law and Practice in Ejectment (1857), p 786, Form 262. The fuller version has the advantage of showing that the court’s order is not in rem; it is in personam, directed against, and binding only, the defendant."). See Bank of Queensland v Blackwell [2013] QSC 5, [9] ("The standard form of enforcement warrant for possession of land [under the Uniform Civil Procedure Rules (Q), r 915] is Form 85. It records the entitlement of the person applying for the warrant to recover possession of the land; and directs the enforcement officer “to enter upon that land, and deliver possession of the land and appurtenances to …” the person entitled to possession of the land. At least in the United Kingdom, a warrant in that form requires the enforcement officer to evict any person found on the premises, whether a party to the judgment or not [R v Wandsworth County Court [1975] 1 WLR 1314]."); eg, Uniform Civil Procedure Rules (Q), rr 143(1) ("A person who is not named in a claim as a defendant in a proceeding for the possession of land may file a notice of intention to defend if the person files an affidavit showing the person is in possession of the land either directly or by a tenant."); 286(1), (2)(a) ("(1) This rule applies if the plaintiff’s claim for relief against a defendant in default is for the recovery of possession of land only. (2)(a) The plaintiff may file a request for a judgment for recovery of possession of the land as against the defendant …"); 896 ("An order for the possession of land may be enforced by either or both of the following—(a) an enforcement warrant under rule 915; (b) for an order to which rule 898 applies, and subject to rule 904—(i) punishment for contempt of the person liable under the order; or (ii) seizing property of the person liable under the order under rule 917.").

727 M Wonnacott, Possession of Land (CUP, 2006), 146; cf, for example, Land Title Act 1994 (Q), s 184(1); White v Tomasel [2004] 2 Qd R 438; Manchester Corporation v Connolly [1970] Ch 420, 428-429; Manchester Airport plc v Dutton [2000] 1 QB 133, 140 (Chadwick LJ).

728 See generally P Bordwell, "Ejectment Takes Over" (1970) 55 Iowa L Rev 1089; F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, (CUP, 1910), Lecture VII) ("[A]n action is real if it gives the person the very thing that he wants.").

729 Bl Comm, Vol II, 17. Note, however, "unlike flowing water, captured water is property and capable of being owned" (Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275, [36]).


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That is, it is only possible at law to recover possession of land, or the thing that represents land,

the estate (as owned). The only things that can be recovered are things that are capable of being

possessed. And it is only possible to possess a thing that can be owned.

As mentioned, each successive owner personally enjoys the advantages and is subject to the

disadvantages of ownership.730 This is his or her liberty interest of ownership. That which each

owner enjoys as ownership conceptually is the same, but it is personal to him or her. However,

as owner, he or she binds himself or herself personally to obligations in respect of the land and

which burden, or alter, his or her personal enjoyment of ownership but which do not bind

ownership as such. For example, a licence suspends an entrant's liability in trespass and the

owner's personal right of exclusion and the action in trespass against the licensee. The licence

does not burden ownership; it merely affects the owner's personal enjoyment of ownership.731

Where, however, the owner creates a proprietary interest in a third party (for example, an

easement for a right of way that burdens the land in favour of adjoining land), the owner has

burdened ownership because proprietary interests operate to bind the world (contract does not).

Accordingly, a possessor of the ownership interest in the land will take subject to the proprietary

interest, but may exclude the licensee.732

From this we can understand the idea of covenants that touch and concern, or run with, the land

at common law. Generally, it is said that a covenant that affects the nature, quality, or value of

the land itself, or the mode of using or enjoying the land, runs with the land.733 Such matters

730 However, subject to comments below, each successive owner here is being referred to in the sense of being a successor in title to an owner of the same ownership. When the Crown, as the owner of its land, grants an estate in fee simple to a grantee, the grantee is not a successor in title to the Crown because the ownership that Crown had, although conceptually similar, was of a different character to that of the grantee's (to the extent of its being peculiar to the Crown). The Crown also enjoyed special privileges in relation to its land and the disposal of it (for eg, see New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 (the exercise of a non-statutory executive power (prerogative) to occupy and use its land); Johnson v Kent (1972) 132 CLR 164 (the prerogative power of the Crown to build on its land); Brantag Pty Ltd v Minister for Mines (1994) 6 BPR 97499, 13,699 (if there is an ambiguity in a Crown grant, the interpretation most favourable to the Crown is to be adopted)). The registered owner of an estate in fee simple is not the successor in title to a lessee of a lease under the Land Act 1994 (Q), ch 4, pt 3, div 3, for example, where the lease has been 'converted' to the fee simple estate. The extent to which an ownership of the fee simple is affected by an interest, claim, or impost that affected the lease is a matter of statute. This research is concerned with the concept of ownership in possession in the sense of its being linked to a thing, namely, land, that can be owned in such a way. That the law may construct different types of ownership which are conceptually identical is simply the law's responding to an argument of the law about how to recognise and protect the enjoyment of that thing. For example, the Crown's radical title to land was described in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 as a pure legal estate to which beneficial rights may or may not be attached. Such a statement merely recognises that land, as a thing, was capable, in law, of being the subject of an estate.

731 Hence, why there is confusion about what a contractual licence is at law.

732 As discussed in para 3.11, a lease is somewhat different to other proprietary interests. As the lease entitles the lessee to possession, the lease does not burden the owner's ownership. In effect, the owner transfers an ownership interest as a lease for a term.

733 Horsey Estate Ltd v Steiger [1899] 2 QB 79, 89 (Lord Russell CJ).


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concern ownership, not the personal position of a particular owner, except that the owner will

personally be subject to any covenant that runs with the land.

Similarly, when an Act provides that an obligation binds an owner and the owner's successors in

title, it is (putting any other considerations aside) generally meant to indicate that the obligation

attaches or sticks to ownership such that an owner from time to time will personally be obliged

to comply with it. The obligation is of the estate's time in land, not merely of an owner's own

time in ownership. While a statute may, of course, attach a personal obligation to anyone who

has a relationship with land (that is, whether or not an owner), invariably the idea is that the

obligation arises from ownership and the recognition that it survives despite its falling into the

hands of successors and the land's being occupied by others.734

3.11 The lease: an abstract ownership in itself

While the lease and the concept of possession are understood to be intimately connected in law,

that connection often is misstated, especially when the lease is a statutory lease. This usually

concerns the right of possession (or what often is inappropriately referred to as the right of

exclusive possession). For the present, the lease (at least as understood under the general law)

is conceptually almost identical to the ownership of a fee simple estate.

Today, the general law lease is regarded as an estate.735 The lease, or term of years, once was

often referred to as a chattel real or chattel interest, so called because it supposedly straddled

the divide between real and personal property. The lessee (termor) could not be seised – the

lessee not being a freeholder – and, therefore, could not use the real actions.736 And before

ejectment was made available to the lessee, he or she only had a personal claim in damages for

interference with his or her possession.737 The lease was, after all, a species of contract:738 if the

734 A mere occupant of land would not be regarded as a successor in title under the common law. Cf Pike v Tighe (2018) 92 ALJR 355, where the court unanimously held that, by reason of the Sustainable Planning Act 2009 (Q) (rep), s 245(1), the respondents as the subsequent owners of a lot were bound to comply with a condition of a development approval requiring the grant of an easement in the terms stated in the condition. See also Trevorrow v Council of the City of the Gold Coast[2018] 3 Qd R 407 where the court held that a development approval does not attach to an applicant for the approval personally: rather, it attaches to the land. In effect, these decisions mean that the approval attaches to ownership of the land.

735 R Megarry and H Wade, The Law of Real Property (Stevens and Sons Limited, 5th edn, 1984), 40-41 ("At first the three estates of freehold were the sole estates recognised by law; the only other lawful right to the possession of land was known as a tenancy at will, under which the tenant could be ejected at any time, and which therefore gave him no estate at all ... When … [leases] became fully protected by the law of property they became estates (Litt 58), but it was too late for them to be classified with the others.").

736 For example, the writ of right or the action of novel disseisin. As to seisin and possession see para 3.12. The lease for life was different and was subject to feudal tenure. Cf fn 742.

737 See F Pollock and F W Maitland, The History of English Law Before the Time of Edward I (2nd edn, 1898), Vol 2, 106-107.


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lease contract goes, the "estate in land falls with it".739 From what has already been said, it can

be concluded that, as the right to (the exclusive) enjoyment of land is represented by a right of

possession, a lease, as an estate, does not burden an ownership interest in a fee simple estate.740

Rather, the lease represents time in land (but, unlike other estates, a lease must be for a certain

term741). That is, the owner of the fee simple estate transfers (by grant) for a term the right of

enjoyment by the granting of a lease estate.742

A lease strictly means a species of conveyance, the grant of a right to the exclusive possession of land for a term less than that which the grantor has. But by a usage that is apparently metonymical in origin the word 'lease' can describe not only the grant but that which is granted, namely the term.743

The root of the lessee's title lies in the demise, that is, the grant.744 The owner of the fee simple

estate does not transfer his or her own ownership interest in that estate to the lessee; rather, he

738 Willmott Growers Inc v Willmott Forests Ltd (Receivers and Managers appointed) (In liq) (2013) 251 CLR 592, [39] (French CJ, Hayne and Kiefel JJ)). See also Wash Investments Pty Ltd v SCK Properties Pty Ltd [2016] QCA 258.

739 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, 54 (Deane J) ("A lease for a term of years ordinarily possesses a duality of character which can give rise to conceptual difficulties. It is both an executory contract and an executed demise. Its origins lie in contract rather than in real property in that the lessee's remedies were restricted to a personal action against the lessor on his covenant to give enjoyment of the land … In time however, it became accepted that a lessee for a term, although denied 'seisin' in the strict sense, had a right to 'possession' which was an interest in the land that he was entitled to protect against third parties; initially by a limited writ in ejectment (quare eiecit infra terminum) framed in terms which restricted it to an action against a purchaser from the lessor and subsequently by the remedies afforded under the Statute of Gloucester and by a specialised action of trespass (de ejection firmae) which, by the end of the middle ages, gave recovery, not merely of damages, but of possession of the land … Notwithstanding this legal protection of the lessee's interest in the land, chattels real were never incorporated into the strict system of feudal tenements. The interest of the lessee in the land was however accepted as analogous to a form of feudal tenure to the extent that some authorities expressed the view that the lessee was required to do fealty …"). See also Willmott Growers Inc v Willmott Forests Ltd (Receivers and Managers appointed) (In liq) (2013) 251 CLR 592, [61] (Gageler J).

740 See State of New South Wales v Koumdjiev (2005) 63 NSWLR 353, [41] (Hodgson JA); Hinkley v Star City Pty Ltd [2010] NSWSC 1389, [249].

741 See Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 (2017) 51 WAR 304, [87] (Murphy JA) ("[The] technical legal meaning of [a lease is] … the grant of the right to the exclusive possession of land for a term less than that of the grantor. A lease may be granted for a determinate period (less than the grantor has), however short."); Sawn v Uecker [2016] VSC 313, [42]; Genco v Salter [2013] VSCA 365, [29]. Cf M Wonnacott, The History of the Law of Landlord and Tenant in England and Wales (The Lawbook Exchange Ltd, 2012); Mexfield Housing Co-operative Ltd v Berrisford [2012] 1 AC 955.

742 Note, however, the owner can grant a life interest or a lease for life. See Sotirianakos v Commissioner of Highways [2018] SASC 16, [63] ("A lease for life is a leasehold interest at common law. Like other leasehold interests, historically it was regarded as a chattel (a chattel real) but the important historical distinctions between freehold and leasehold interests have now been eliminated. A lease for life is contractual in nature; whereas a life estate may be created by a unilateral disposition (such as a will or a disposition inter vivos). While a lease for life is usually for the life of the tenant, there appears to be no reason in principle why it could not be a lease for the life of another.").

743 Chelsea Investments Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 1, 8 (Windeyer J).

744 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, 53 (Deane J).


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or she creates by conveyance a new ownership interest (a lease or term) that conceptually

represents the same characteristics as any ownership of (an estate representing) the land. While

the lease, a proprietary interest, is said to be "extracted out of the real",745 because the lease

represents characteristics of priority, exclusivity, and thinghood (see para 3.5), a lessor cannot

enjoy his or her ownership interest in possession of the same thing during the term of the lease.

The law, at least in a modern sense, gets around this by saying that the lessor and the lessee do

not own (or possess) the same thing, although each owned (or possessed) thing – an estate –

represents the same land.746

The owner of the fee simple estate is said to have a reversion expectant on expiry of the lease.

This is not a true reversion though as a reversion is a future (ownership) interest and, originally,

was a present right to future seisin. Nevertheless, according to Gageler J in Willmott Growers

Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in liq)747 (Willmott),

"[i]f and when the leasehold estate or interest ceases to exist as a consequence of the lessee's

right to the exclusive possession of land ceasing to exist, the lessor's estate itself reverts to an

estate in possession". Explained this way, the conveyance by the lessor's grant of a term (the

lease) has the effect of putting the lessee's right of enjoyment in place of the lessor's right of

enjoyment of the land, for the term. However, "a lease cannot be equated to an interest in

property which has already been transferred. The critical reason … is that the continuation of

the leasehold estate or interest conveyed by the lease is necessarily contingent on the ongoing

enjoyment of rights conferred by the lease and on the ongoing performance of obligations

imposed by the lease".748 On this view, the very nature of a lease means that, not being like other

conveyances, it ought only be construed as representing a present right of enjoyment for the

lessee for so long as the lease continues and the lessor's interest in the land during the term of

the lease ought to be construed as representing a present right to the benefit of the lease. But, as

explained by Brereton J:

The rationale for the different position in respect of a licence and a lease is that the lease … effectively substitutes the lessee's rights for those of the lessor, so that the burden is not increased, and the lessee has a right of possession to the exclusion of the lessor … whereas in

745 Ridout v Pain (1747) 3 Atk 486, 492 (Lord Hardwicke CJ).

746 See Lam Kee Ying v Lam Shes Tong [1975] AC 247 (PC). This is why it is better to say possession is of an estate, rather than of land. But, as will be seen, each of the lessor and the lessee has a claim to 'lawful enjoyment' of land as an abstract idea: the lessor's lawful enjoyment is a type of reversion. Because the lessor granted the lease, the lawfulness of the lessor's enjoyment of the land is limited accordingly. In other words, in the hands of the lessor the reversion represents the land, even though the land also is represented (but quite differently) by the lease. The point is not to say the physical thing that is land is represented by different abstractions; rather, abstractions are said to represent thinghood for the purposes of the law.

747 (2013) 251 CLR 592, [64].

748 Willmott, [72] (Gageler J).


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the case of a licence the licensee's right of occupation is not exclusive of that of the licensor and does not carry a right of possession, so that the total burden is increased …749

In feudal terms, when a freeholder granted a lease the freeholder retained a present seisin. Today, it is sometimes said (somewhat awkwardly) that the owner of the fee simple (the lessor), being entitled to receive the rent under the lease,750 is the owner of the fee simple estate in possession.751 An ownership interest in possession is, as seen, considered a present interest: it can be enjoyed immediately. But, given the origins of the lease lie in contract and the lease always is "partly executory [as] rights and obligations remain outstanding on both sides throughout its currency",752 it has been said that "[w]hen a company is the landlord, the rights and duties which that company has in respect of the lease are properly described as 'property of the company that consists of … a contract'. The landlord's rights and duties are a form of property; those rights and duties 'consist of', in the sense of derive from, the contract of lease".753 Thus, the lease is, on its creation and although a conveyance, new property and, as such, may be disclaimed by a liquidator without disclaiming the corporate lessor's ownership of the land itself.754The now classic description by Deane J in … [Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17] of a lease as "both an executory contract and an executed demise" reflects not a temporal dichotomy in the contractual and proprietary operation of a lease but rather the 'duality' of the character of a lease throughout its terms as both a contract and a demise. The critical point for present purposes is that, during the term of the lease, the contract and the demise are one and the same: executed as to the past, and executory as to the future. The continuity of the leasehold estate or interest conveyed by the lease depends on the continuity of the lease.755

While a lessee's right to possession turns on the lease's continuing, there was a hint in Gageler

J's reasoning in Willmott that the right itself is of contract. When his Honour had earlier said

(as cited above) that the leasehold estate or interest ceases to exist as a consequence of the

lessee's right to the exclusive possession of land ceasing to exist, he was suggesting that the lease

depends on a (continuing) contractual right of such possession. That is taking the right to a new

level of abstraction (but, admittedly, is consistent with the view that the right of (exclusive)

possession is a conferred right). A lessee's right of possession arises because the lessee is the

749 White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd (2007) 13 BPR 24385, [25]; cf Urban Renewal Authority Victoria v Obeid (2013) LGERA 220, [18] (Maxwell P, Tate JA, Dixon AJA) ("[A] lease is a proprietary interest which qualifies the lessor's title."). While, undoubtedly, the registered owner of a fee simple estate retains title to that estate when the land is subject to a lease, that is because of the system of registered title (that is, the registered owner holds his or her title subject tothe interest of the lessee). And although, on that basis, the lease may be said to qualify the owner's title, as suggested by Brereton J, at law, the grant of a lease represents more than that, even in the context of assessing the relative positions of the owner and the lessee.

750 Which was said to be an incident of the lessor's reversion. See also in relation to a mortgagee's entering into possession by receiving the rents and profits of the mortgaged land, Land Title Act 1994(Q), s 78(2)(b).

751 In the Property Law Act 1974 (Q), sch 6, for example, 'possession', when used with reference to land, includes the receipt of income from land.

752 National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675, 705, cited in Willmott, [66] (Gageler J).

753 Willmott, [40] (French CJ, Hayne and Kiefel JJ).

754 Corporations Act 2001 (Cth), s 568(1)(f); Willmott (French CJ, Hayne and Kiefel JJ; Gageler J agreeing; Keane J dissenting).

755 Willmott, [67] (Gageler J).


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owner of a lease estate. The lease may not exist if there is no contract; but, once the estate is

created the lessee has a right of possession because he or she has title. That right is a

proprietary matter, not a contractual one. If we say the right of (exclusive) possession is

granted in contract, we leave open the idea that there is a 'contractual possession', the meaning

of which potentially is removed from its proprietary base. This is because possession (at least in

its orthodox sense) is a relationship in law with an estate. To ask whether an owner of land has

granted a right of (exclusive) possession asks the wrong question. Whether the parties have

granted a lease depends on whether what has been granted meets threshold requirements for its

status as an estate in law. If an owner does grant 'possession' to someone, the owner may or

may not have granted a lease (see chap 7, para 7.2). And, while a grantor may "grant to the

grantee possession of a legal estate" the possession, to state the obvious, is only of a lease if the

estate is a lease.756 It is necessary to first establish there is a lease estate: possession must

follow. The difficulty in treating possession as the subject of a conferred right by contract, then,

is that it is not linked to an estate in the right order:757 it could mean something else especially

when, as suggested by Gageler J, is it treated as something conferred as a contractual right.758

Also, fairly recently, it was explained, and not unlike as suggested earlier, the ownership interest

of the owner in fee simple divides itself when that owner grants a lease.759 But, it does so here

(and can only do so) in a special way. This is because a new estate that represents the (leased)

land – the lease – is apparently created while the grantor (lessor) retains an ownership interest

in possession at the same time the lessee has an ownership interest of the lease, it also being in

possession. That is, we have two parties presently in possession, but not in the same way.760

756 See M Wonnacott, Possession of Land (CUP, 2006), 68, 69 ("If, by exclusive possession, what is meant is possession of a legal estate … then this statement is certainly true, but it does not provide any assistance in distinguishing a lease from a licence. All it does is restate the problem in a tautologous way. It is tautologous because possession of an estate is necessarily exclude and indivisible. It restates the problem, rather than solving it, because it does not provide any information about what ingredients a contract must contain if it is to create such an estate … [The] crucial ingredient is the extent to which the parties intend that control of the property should pass from the grantor to the grantee. In particular, if the substance of the transaction is that the grantee shall have a general right to permit some strangers to enter upon the property, and to exclude others, then what has been create is a tenancy, rather than a licence …").

757 Merely because possession is a highly abstract concept does not mean it can easily be detached from its conceptual linkages. See chap 4, para 4.2.

758 See, for example, Hounslow London Borough Council v Twickenham Garden Developments Ltd[1971] Ch 233, 257. This point is developed further in chap 7, para 7.2.

759 Trust Company of Australia Ltd v Valuer-General (2008) 101 SASR 110, [59] (Bleby J).

760 M Wonnacott, Possession of Land (CUP, 2006), 45 ("An occupier was presumed to have seisin, and therefore (in modern terms) a fee simple absolute in possession; that is, the greatest possible estate. Likewise, a person found to be receiving rent from land was presumed to have seisin, and hence to have a fee simple, subject to the lease in favour of the tenant who was paying the rent."). However, as Wonnacott explains, the occupier was only presumed to be seised of a fee simple absolute in possession. Evidence was admissible to show that the possessor did acts inconsistent with possession of such an estate (or any estate). If the person in possession paid rent to someone else, that is consistent with possession of a lease.


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Each represents ownership characteristics but not of the same thing. There is nothing wrong

with that, providing we do not say both ownership interests are in possession such that each

owner is entitled to the same thing. That is, they are not relative interests.

Again, and so that possession retains its stability as a concept in law, possession is of the

relevant ownership interest. The lessor may be said to be in possession of his or her ownership

interest in the sense of having the estate: he or she has, in effect, transferred away (for a term)

the right of enjoyment through the creation of a new estate, the lease.761 But, his or her having

the estate, in essence, represents during the term of the lease, the present right to the enjoyment

of that estate. The lessee owns the lease in the sense that his or her ownership interest consists

of having the lease estate and that estate's enjoyment. The only relevant and significant

distinction between this situation and the situation where there is a settlement of a life estate

followed by a reversion is that the reversioner's ownership interest, unlike that of the lessor's, is

of a future interest vested in interest. The lessor's reversion sounds like something akin to a

future interest, but it has never been treated as such.762 If we adopt Gageler J's reasoning above,

the continuation of a lease almost is a day to day proposition, the lease being "necessarily

contingent on the ongoing enjoyment of rights conferred by the lease and on the ongoing

performance of obligations imposed by the lease".763 The language of future interests seems

inappropriate to describe what the lessor has as, in ordinary terms, a reversioner does not have

any relevant obligation to the person whose interest is in possession. It may, then, seem more

appropriate to look at the lessor's interest during the term as the enjoyment of a present right in

the lease itself which correlatively includes the obligation not to derogate from his or her grant

(expressed slightly differently by Gageler J in Willmott as the central "obligation … to continue

to give exclusive possession"764). To consider it the other way around, on that view, contract puts

more than a gloss on the lessor's interest: it reshapes it as the presence of the lease, albeit

substituting the lessee's rights for those of the lessor, places a correlative obligation on the lessor

to perform its obligations under the lease. This gives the lessor's interest more of a flavour of

being one in possession as it connotes an idea of being immediately (or continually) enjoyable

(even if it is also attended by obligation). Regardless, adopting a dominant contractual focus

with respect to the relationship between a lessor and lessee tends, as referred to earlier, to mask

761 The lessor does not retain a right of possession of the leased premises against all except the lessee, including the right to bring an action against all trespassers apart from the lessee (Bride v Shire of Katanning [2013] WASCA 154, [83]).

762 We have here tried to mix the language of estates with the situation of the lease and come up with somewhat of a muddle. But, that is how the law works.

763 See fn 748.

764 Willmott, [74]. See also at [55] (French CJ, Hayne and Kiefel JJ) ("As the liquidators correctly submitted, the liabilities of … [the lessor company] that would be terminated by disclaimer of the leases include its obligations to provide quiet enjoyment and not derogate from the grant of exclusive possession of the land."). Cf, [149]-[160] (Keane J, in dissent).


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the relevance of possession as a concept related to an estate. There is nothing especially wrong

with accepting a lease has a duality of character, but that ought not to be done at the expense of

recognising that possession has a law-stating function; it is not simply a matter of agreement.765

Recognising that a lease is an estate means that it can be possessed by someone who is not the

lessee (it is why possession is a proprietary relationship in law) and, as such, will not be a

contractual successor to the lessee.766

In a different setting, the peculiar status of the lease and the notion of relativity is demonstrated

by Lord Hoffmann in Bruton v London and Quadrant Housing Trust.767 There a licensee

granted a lease. The lease was effective. The immediate reaction may be that the licensee did

not have a sufficient ownership interest to be able to do that. But, looking at things that way

focuses on what the licensee has relative to the licensor. The contractual licensee simply has

some sort of right to use or occupy the land, but use and occupation obviously does not put the

licensee in the position of having, as a matter of right, an ownership interest in an estate. (He or

she, of course, may as a matter of observable fact act like the owner and be taken to be in

possession, but that is not directly relevant here.) That is, as against the licensor the licensee

does not have an ownership interest. But, relative to the licensee's lessee all the licensee has

done is grant an estate that is effective as between them and against the world, except someone

with a superior title. So, against the licensee's licensor the lease could not somehow be binding

as a lease or, rather, a right of possession. But, against others it was. As Lord Neuberger said of

Bruton's case in Berrisford v Mexfield Housing Co-operative Limited,768 it was simply a case of

765 As highlighted by Keane J (in dissent) in Willmott, [149]-[160], it is somewhat misleading to focus almost entirely on the contractual dimension of a lease; cf Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, 53 (Deane J) ("[T]he further one moves away from the case where the rights of the parties are, as a matter of substance, essentially defined by executory covenant or contractual promise to the case where the tenant's rights are, as a matter of substance, more properly to be viewed by reference to their character as an estate (albeit a chattel one) in land with a root of title in the executed demise, the more difficult it will be to establish that the lease has been avoided or terminated pursuant to the operation of the ordinary principles of frustration or fundamental breach. Indeed, one may reach the case where it would be quite artificial to regard the tenant's rights as anything other than an estate or interest in land (eg, a ninety-nine year lease of unimproved land on payment of a premium and with no rent, or only a nominal rent, reserved).").

766 M Wonnacott, Possession of Land (CUP, 2006), 56 ("So the landlord cannot evict the squatter simply on the ground that he or she is squatting on the lease, for the landlord has no title at all to the lease. In order to evict the squatter, the landlord must first do whatever might be necessary to determine the lease; for otherwise only the current tenant, as the person presently entitled to possess the estate in the lease, has a right to evict the squatter. Nor is the squatter at risk of being evicted by someone who is simply liable on the tenant covenant, for a mere contractual liability on the tenant covenant gives no right to possess the lease against third parties.").

767 [2000] 1 AC 406.

768 [2012] 1 AC 955, [65].


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relativity of title.769 As such, the possession, as the subject of a right, retained its conceptual

linkage to an estate.

3.12 Seisin and possession

In the earlier times of feudal England, when a tenant held of a lord (or rather, was seised of a

lord), the lord had the fee which the tenant was obliged to defend. While the introduction of the

action of novel disseisin caused somewhat of a shift in the lord's authority over his tenants to the

royal courts – the lord and his courts no longer retained an absolute discretion over who could

be seised770 – tenure (the holding of the tenant to his or her lord) did not suddenly disappear

such that the tenant now had authority over land. The action of novel disseisin was merely a

step in the development of a common law of land administered by the king's courts which

ultimately had an effect of limiting the lords' lordship and the benefits of that.771

Seisin certainly was an "obscure and inconvenient doctrine".772 But, while we may struggle to

understand its meaning and inner workings, undoubtedly seisin would have been sensible and

comprehensible to the medieval lawyer who knew of feudalism, not as a system of real property

law, but of service and obligation.773 Context is everything to comprehension.774 Seisin certainly

lost a lot, and ultimately all, of its relevance with the demise of feudalism,775 the creation of the

769 A result of which would be that if say, a third party, without justification, entered the premises, the lessee would be able to exclude that person. The trespasser cannot raise the title of the licensor as some defence to his or her own unjustified entry. As far as the trespasser and the law are concerned, the lessee has possession (or a right of possession) from which a coercive right to exclude may arise. If there was a contest between the licensor and the lessee as to who had a better right to possession (remembering that, in granting the licence, the licensor had not given up its right of possession), the licensor would prevail because the lessee's right of possession was only conferred by a licensee who had no right of possession. Nevertheless, the decision in Bruton v London and Quadrant Housing Trust has been criticised. See M Wonnacott, Possession of Land (CUP, 2006), 16-17.


771 According to S F C Milsom, The Legal Framework of English Feudalism (CUP, 1976), 36, "we have assumed that the growth of royal jurisdiction over land was a process of transfer, analogous to the transfer of personal actions from local to royal courts. Whether the desire was that of royal officials or of litigants, what happened was that claims formerly made in lords' courts came to be made in the king's; and though they might there receive more sophisticated treatment, especially in the matter of proof, the same justice would be done and the same result reached. The new jurisdiction was set up alongside the old, its superiority important only for the political reason that lords could not stop it."; U Mattei, Basic Principles of Property Law: A Comparative Legal and Economic Introduction (Greenwood Press, 2000), 172 ("[The common law did not develop proprietary remedies because, one] possession is to be considered a property right [and, two] possessory remedies are perfectly functional substitutes for proprietary remedies.").

772 C Sweet, "Seisin" (1896) 12 LQR 239, 251. See also F W Maitland, "The Beatitude of Seisin, Part I" (1888) 4 LQR 24; "Part II" (1888) 4 LQR 286.

773 See generally S F C Milsom, The Legal Framework of English Feudalism (CUP, 1976); S Thorne, "English Feudalism and Estates in Land" (1959) Cambridge LJ 193, 197; Wik, 186-187 (Gummow J).

774 See H Mercier and D Sperber, The Enigma of Reason (Harvard University Press, 2017), 24.

775 See generally D Carpenter, "The Second Century of English Feudalism" (2000) 168 Past & Present30.


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use, and, later, with reforms of English property law in the 1830s.776 Seisin is, however,

historically important to understanding estates, and possession and ownership of an estate, and

especially the idea that the characteristics of possession and ownership represent a form of

managerial or exclusive authority.777 It was once said (albeit well after the demise of feudalism)

that "de facto possession is prima facie evidence of seisin in fee and a right to possession"778 and

only the person seised could convey a freehold estate.779

Relevantly, the best we can say is that seisin was a technical term of feudal England and to be

seised meant that a tenant was admitted to freehold tenure of the lord.780 Importantly, someone

always needed to be seised: seisin could not be held in abeyance.781 Originally, seisin had

nothing to do with estates. A lessee (or termor), not being a freeholder,782 could never be

seised783 and, therefore, could not avail himself or herself of the real actions (for example, the

writ of right and novel disseisin).784 As a lessee never held of a lord on freehold tenure, when a

776 See Real Property Limitation Act 1833 (UK) which abolished the real and mixed forms of action. See P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 602-603.

777 P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 596 ("The complicated structure of the land law was possible only because the ascending series of rights of the feudal hierarchy could be realized in a seisin. Without seisin there would have been no law of estates or it would have been very different. The feudal incidents, the actions for their enforcement, the power to distrain, all depended on seisin.").

778 Doe d Hall v Penfold (1838) 8 C & P 536, 538 (Patteson J). See generally R v McKiernan [2003] 2 Qd R 424, [17] ("[Although referring to a chattel, possession] is not only evidence of ownership; it is effective ownership against the whole world except someone who can prove a better title …").

779 Speaking of early conveyancing, C Sweet, "Seisin" (1896) 12 LQR 239, 241 ("The feoffor [that is, a person granting a feoffment which was, in effect, a conveyance of a freehold estate] must have possession of the land. If any person claiming an estate in it is present when livery [that is, delivery of seisin] is to be made, he must join in the livery or be removed from the land, unless he is a lessee for years, in which case his assent is sufficient."); P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 593 ("Livery of seisin, therefore, meant delivery of possession. It was the operative fact of the feoffment 'and the feoffment dominated the transfer of land'."). Cf S Christensen, W Dixon, W Duncan, and S Jones, Land Contracts in Queensland (Federation Press, 4th edn, 2016), 7.4.2.

780 Seisin had no relevance to a tenant who held of copyhold tenure. Copyhold never applied in Australia.

781 An escheat, an incident of feudal tenure (and in the case of the Crown as paramount lord, an important source of the ordinary and inherent revenue (Chitty on Prerogatives (Joseph Butterworth and Son, 1820)), occurred where there was no tenant. Escheat could occur propter defectum sanuinis (for want of heirs) or propter delictum tenentis (on conviction of a felony). See Re Bonner (deceased) [1963] Qd R 488.

782 A freeholder being a freeman who was seised as tenant of a lord on freehold tenure.

783 P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 595.

784 Novel essentially meant that there had been a new or recent disseisin. W Holdsworth, A History of English Law (1903), 34 ("There was … no reason why the real actions should be extended to the lessee for years … If there had been a substantial reason why they should have been extended to him no doubt they would have been so extended"); P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 595 ("As early as the 1100s the courts denied the ejected tenant for years the assize of novel disseisin on the ground that he was not seised of a freehold, … and though for a time it was not incorrect to speak of him as seised of the term, it became so in the latter half of the 1400s when,


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term of years was granted by a freeholder, the freeholder (tenant) remained seised of his or her

lord: he or she had only granted a right of possession. Once estates came to be recognised and

could be disposed of by a freeholder, it was appropriate to refer to the freeholder as being, for

example, seised of an estate in fee simple of freehold tenure. The person seised was what we

might today regard as the owner785 and an ownership interest could be of a present or future

right to seisin.786

Initially, seisin was protected by the (cumbersome and solemn) writ of right (præcipe in capite)

which commanded a lord "to do full right" to a plaintiff.787 The writ was, for all intents and

purposes, overtaken by the (simpler) action of novel disseisin,788 a reform of Henry II's in the

twelfth century which, although mostly designed to discourage disseisin, had, according to

Warren, a choking effect on feudalism. By the action, a jury of free and lawful men was

appointed to answer two questions (hence why it was known as the assize of novel disseisin):

one, had the plaintiff who purchased his returnable writ of novel disseisin from the royal

chancery been disseised of the freehold, unjustly and without judgement within a set time

limit?, and, two, did the person alleged to have disseised the plaintiff in fact do so? The loser

was "at the king's mercy" and royal justices decided what monetary penalty, if any, was

appropriate.789 In simple terms, the justice of the royal courts had the effect of taking away the

apparently, the growing importance of his remedy, the action of ejectment, resulted in the bestowal on him of a word of his own. Henceforth he was possessed and not seised. Seisin and seisin of freeholders thus became identical and 'seisin of chattels' an anachronism.").

785 Even though English law developed along the lines, as already discussed, of a better right to seisin (or what became, a better right to possession).

786 For example, a remainder. See Fairbairn v Varvaressos (2010) 78 NSWLR 577, [89] (Campbell JA).

787 W Warren, Henry II (University of California Press, 1973), 334; F W Maitland, The Forms of Action at Common Law (1909), Lecture III which includes samples of select writs from Fitzherbert's Natura Brevium (1553), including the writ of right ("The King to the sheriff greeting. Command X that justly and without delay he render to A one messuage with the appurtenances in Trumpington which he claims to be his right and inheritance, and to hold Of us in chief and whereof he complains that the aforesaid X unjustly deforceth him. And unless he will do this, and (if) the aforesaid A shall give you security to prosecute his claim, then summon by good summoners the aforesaid X that he be before our justices at Westminster [on such a day] to show wherefore he hath not done it. And have there the summoners and this writ").

788 Fitzherbert's Natura Brevium (1553), reproduced in F W Maitland, The Forms of Action at Common Law ("The King to the sheriff greeting. A hath complained unto us that X unjustly and without judgment hath disseised him of his freehold in Trumpington after the last return of our lord the king from Brittany into England. And therefore we command you that, if the aforesd A shall make you secure to prosecute his claim, then cause that tenement to be reseised and the chattels which were taken in it and the same tenement with the chattels to be in peace until the first assize when our justices shall come into those parts. And in the mean time you shall cause twelve free and lawful men of that venue to view that tenement and their names to be put into the writ. And summon them by good summoners that they be before the justices aforesd at the assize aforesd, ready to make recognizance thereupon. And put by gages and safe pledges the aforesaid X or, if he shall not be found, his bailiff, that he be then there to hear that recognizance. And have there the (names of the) summoners, the pledges, and this writ.").

789 W Warren, Henry II (University of California Press, 1973), 337. See generally also The Hon T Bathurst, "The History of Equity" (speech delivered at the Francis Forbes Society Australian Legal History Tutorials, 27 October 2015), 3-5.


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lord's discretion to decide who was to be admitted to tenure by seisin: a common law of land

was, albeit unintentionally, being created and shifting the managerial authority of land away

from lords to tenants.790

Rights of property were not the concern of English feudalism; the central idea of feudalism was

reciprocal obligations and these were personal.791 (The tenant's 'title' was in a sense homage to

his lord.) It was a political system and power that divided authority according to lordship.792 A

seised tenant (a freeholder) represented the lord's whole fee, did duty to the lord, and was

obliged to defend the whole fee against strangers.793 In contrast, under a common law of land,

lords and tenants could, independently of each other, have rights in relation to property that

were good against the world.794 This view, though, is hardly distinguishable from one which

holds that the rise of the common law, as functioning through the early real actions of, and

modelled on, novel disseisin,795 effected a transfer of entitlements from lords to tenants: the

lord's fief (or fee) became the tenant's land over which the lord retained only residual, and

increasingly, archaic, rights.796 In short, the common law of land was inimical to feudalism in its

pure form.797 The freeholder or tenant now represented the fee in the sense that there was now a

790 S F C Milsom, Historical Foundations of the Common Law (OUP, 2nd ed, 1981), 65-66; W Holdsworth, A History of the English Law (1903), Bk 7, 4 ("[D]uring the Middle Ages the real actions, and the learning which centred round them, were the fullest and the most important part of the common law.").

791 The lord was prevented from acting in ignorance of his tenant because the tenant had paid homage to his lord. Homage was, in essence, the tenant's (or vassal's) 'title'. And the lord secured feudal services from his tenant through tenure. See S Thorne, English Feudalism and Estates in Land(1959) Cambridge LJ 193, 196-197; Co Litt, 64a, 65a, 67a; S F C Milsom, Historical Foundations of the Common Law (OUP, 2nd ed, 1981), 37 ("Bracton and the copious records of royal courts in the thirteenth century have familiarised us with seisin and right as abstract concepts, untidy versions of possession and ownership; and so we have imagined seignorial courts in the twelfth century as dealing in rights in rem, rights good against the world. But rights cannot be good against a seigniorial world, only a Roman or a modern world; and it is this assumption that has misled us most, and perhaps created most of our difficulties."). See also Wik, 186-187 (Gummow J); The Commonwealth v New South Wales (1923) 33 CLR 1, 42 (Isaacs J).

792 None was higher than the paramount lord, the king.

793 C Runnington (ed), Sir Matthew Hale's The History of the Common Law of England (6th ed, 1820), 202.

794 S F C Milsom, Historical Foundations of the Common Law (OUP, 2nd ed, 1981), 65-66. Land had turned from an idea of "getting somebody fit to doing the lord's service" (in the form of a single heir) through a governance system of customs and discretion to abstract property of owner's rights according fixed governance rules.

795 For example, the mort d'ancestor.

796 The tenurial incidents. See AWB Simpson, A History of the Land Law (Clarendon Press, 1986, 2nd edn), 36-37; R Palmer, "The Origins of Property in England", (1985) 3 Law and History Review 1.

797 B McPherson, Reception of English Law Abroad (Supreme Court of Queensland Library, 2007), 58 ("[Although referring to periods long after the intervention of the royal courts because] land was the principal source of wealth in pre-industrial times, and jurisdiction over it belonged to the king's courts, rules of real property tended to permeate the whole of English law. Not only the right to vote in Parliamentary elections but even matters like the guardianship of children, which in other legal systems forms part of the law of persons, had their source in the law of real property. In this sense, it is right to say that in England the law of land was the law of the land.").


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relationship between a person and the land. Status as a freeholder, which was fundamental to

enjoying a relationship with a lord, had been overtaken by an idea of interest in the land.

Whereas once each such interest – an estate – was of freehold tenure, today, we not

uncommonly employ the term 'freehold' to describe the interest of an owner. Nevertheless, the

law has always maintained a position that the land, being an immoveable element of nature, sits

slightly removed from its owner.798 The land itself can, however, in an abstract way, be an

extension of its owner according to society's laws which recognise (and entrench) the notion that

land can be, and was always capable within society of being, reduced from the 'common' to the

'individual' (that is, effectively appropriated). And, to give effect to that individualistic view of

ownership, the law has variously contributed to how land acquires and maintains its value (for

example, through exchange, inheritance, and registration).

But, where does possession fit in? Often it is said seisin was possession (albeit an "untidy one"

at that).799 It certainly is not true that the two are identical, if only for the reason, as said, that

seisin was about being admitted to tenure, tenure being in feudalism the central idea of political

authority.800 "[U]surping … a tenure is a different fact from the naked possession or occupation

of the land".801 Nevertheless, seisin might, in one sense, be thought of as abstract possession:802

from the perspective of modern eyes, it can look as though seisin was about legal right to the

land which allowed, and in the absence of contrary evidence was, the land's enjoyment. As

mentioned, "de facto possession [came to be said to be] prima facie evidence of seisin in fee and

798 See fn 654.

799 S F C Milsom, Historical Foundations of the Common Law (OUP, 2nd ed, 1981), 37.

800 Cf F W Maitland, History of the English Law (CUP, 2nd edn, 1911), vol 2, 23-24 (["English feudalism existed] as a state of society in which all of a great part of public rights and duties are inextricably linked with the tenure of land, in which the whole governmental system – financial, military, judicial – is part of the law of private property."). It is not necessary for a third party to expressly recognise a possessor's possession. The situation was different for disseisin. "In a case of disseisin it is no doubt material whether the lord has or has not recognized the disseisor as tenant. The reason is plain. The disseisor, by wrongfully getting possession of the land, has become wrongfully entitled to an estate in fee simple and to no less estate. If the lord recognizes him as tenant, the lord is affirming that the squatter's wrongful title is rightful.": Copestake v Hoper [1908] 2 Ch 10, 18-19 (Buckley LJ).

801 C Runnington (ed), Sir Matthew Hale's The History of the Common Law of England (6th ed, 1820), 202.

802 Cf P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 593 ("But if seisin meant possession, it meant much more than what we ordinarily think of as possession, the power to control a physical thing. It was closely connected with the idea of enjoyment, and might be predicated of things that one could enjoy but could not touch or grasp, such as services and advowsons and freedom from toll. The number and importance of these intangible things to which seisin was attributed in the Middle Ages was great."); F Philbrick, "Seisin and Possession as the Basis of Legal Title" (1938-1939) 24 Iowa L Rev 268; J Lightwood, A Treatise on Possession of Land (1894), 6 ("Like the possession of the Roman law, seisin is ascribed only to a person who possesses as owner – in the language of the English law, as freeholder … [Seisin] touches not only the possession, but the title. Under the old law the owner who was not seised, in addition to losing the beneficial enjoyment of the land, lost also many important incidents of his right of property.").


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a right to possession".803 This would generally be referred to today as legal possession, a

relationship of ownership or right, thus meaning that the owner need only point to his or her

title to show he or she is in a relationship of possession with the estate.804 But, this is one of

those instances where the temptation to make anything more than a fairly indirect analogy

needs to be resisted because, if we are not careful, we end up taking seisin out of its primary

feudal context and giving it a proprietary connotation that it simply did not have.805 Not unlike

seisin, having legal possession does not mean the owner must be doing anything to physically

enjoy the land: the owner is taken to be enjoying a relationship of possession with the estate.

But, equally, someone could be found to be seised without 'right' in much the same way as today

someone can be found to be in possession without 'right'.806 When seisin and possession are

thought of in the fairly indirect analogous sense, each can potentially represent an exclusive

claim to that which could be seised or possessed,807 as the case may be,808 and to this extent we

can perhaps conceive of the development (or glimpses) of a modern substantive law out of the

forms of action for which seisin was fundamental.809 It is, then, from seisin we can further

perhaps gain some understanding of the common law policy that all land must be owned by

someone and how enjoyment of the land is, although a 'right' of owning the land, capable of

being exercised, if not by the owner, then, by someone else by a 'right' of enjoyment (say, under

a lease or by the owner's licence) or by mere de facto enjoyment (which generally is adverse to

803 Doe d Hall v Penfold (1838) 8 C & P 536, 538 (Patteson J). That is, possession was prima facieevidence of title. See also Newington v Windeyer (1985) 3 NSWLR 555, 563 (McHugh JA).

804 As land is conveyed by grant, the owner need not physically enter the land (nor engage in anything as bizarre as livery of seisin): M Wonnacott, Possession of Land (CUP, 2006), 11. Equally, a lessee need not physically enter the leased premises. See Property Law Act 1974 (Q), ss 8 (Lands lie in grant only) and 102(1) (Abolition of interesse termini as to reversionary leases and leases for lives).

805 F W Maitland, "The Mystery of Seisin" (1886) 2 LQR 481, who thought that seisin looked like ownership, yet believed it was possession.

806 P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 605 ("Seisin and right of property were the two primary elements that went to make up the perfect title, and the conjunction of these two in their various degrees is constantly emphasized in the authorities. These might be separated in many ways, as by death, disseisin, a tortious feoffment, and until they were reunited the legal powers of the one who had the right of property but not the seisin were very limited. Yet the right of property was something more than a right to recover the property by entry or action, for it did not cease with the recovery. It might and normally would coexist with the seisin. When the right of property and seisin were separated the phrase ran, in later years at any rate, that the estate was turned to a right.").

807 A freehold estate, which is a corporeal hereditament, could be seised in demesne. An incorporeal hereditament (such as an easement) could be seised in fee, but not in demesne. Demesne denoted full use and enjoyment of land.

808 AWB Simpson, A History of the Land Law (Clarendon Press, 1986, 2nd edn), 40 ("[There is not] any great difference between this conception of seisin and the conception of actual (or de facto) possession, and in the twelfth century there was not; the person seised of land was simply the person in obvious occupation, the person 'sitting' on the land."). See also Wheeler v Baldwin (1934) 52 CLR 609, 632-633 (Dixon J).



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the owner).810 In 1820, Charles Runnington, serjeant-at-law, in editing Sir Matthew Hale's The

History of the Common Law of England succinctly stated the position.811

The freehold never could be in abeyance, because the lord could never be at a loss to know, upon whom to call as his tenant; nor a stranger to know against whom to bring his præcipe. From the necessity of there being always a visible tenant of the freehold, and the notoriety who acted, and did suit and service as such, many privileges were allocated to innocent persons, deriving title from the freeholder de facto.812

But, we can only truly gain an insight into the common law's policy that land must belong to

someone in a meaningful way if we understand that feudalism and the common law stand apart

when respectively recognising and protecting authority over land. For feudalism, tenure was a

tool of authority of the lords (and the Crown, as paramount lord) and the idea of land belonging

to someone had no meaning for a seised tenant (freeholder).813 Rather, the tenant secured

himself or herself to a lord through homage814 and the lord secured performance of feudal

services by a tenant through tenure. Until Henry II's reforms of the twelfth century which gave

jurisdiction to the royal courts to settle matters of seisin, lords and their courts could, by

absolute discretion, control whether an heir of the tenant could, despite custom, be seised on the

death of the tenant.815 Such authority was significant: it, in effect, put tenants in an especially

weak position, personally and politically. Seisin relevantly points us only to an idea of

exclusivity; but, exclusivity of a freeholder under feudalism was a relationship of exclusive

obligation or service to someone higher in standing, not authority over land. As Milsom says,

there was nothing going on in a seigniorial court that was resolving 'rights' to land or against the

810 Describing adverse possession as 'wrongful' though is misleading. Although that possession is without licence of the owner and is usually attached to a 'squatter', it is not wrongful in law. The adverse possessor effectively creates a presumptive title. Cf JA Pye, [2] (Lord Bingham) ("[W]here land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it."). See also L Griggs, "Possession, Indefeasibility and Human Rights" (2008) 8 Queensland University of Technology Law Journal286; B Edgeworth, "Adverse Possession, Prescription and Their Reform in Australian Law" (2007) 15 Australian Property Law Journal 1; L Katz, "The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law" (2010) 55 McGill LJ 47; M Goodman, "Adverse Possession of Land – Morality and Motive" (1970) 33 Mod L Rev 279.

811 As to the status of serjeants-at-law see F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, (CUP, 1910), Lecture VII) ("The serjeants were created by royal writ – a man was appointed to the 'state and degree' of serjeant-at-law, an honour entailing, at least until the days of George III, an expensive banquet upon his creation. He became a member of the 'Order of the Coif'. Until the passing of the Judicature Act [1873 (UK)] by custom all judges appointed must first be admitted serjeants-at-law, a custom which is believed to have had its origin in the terms of an Edwardian statute [14 Edw III 16] … After the Judicature Act they disappeared.").

812 At 202.

813 M Tauger, Agriculture in World History (Routledge, 2011), 12 ("Governments and other authorities, such as noble landlords, maintained farmers in a low, subordinate status, as peasants, serfs, or slaves, keeping farmers politically weak to make sure that they work and pay their taxes and dues.").

814 Co Litt, 64a.

815 In a sense, the royal courts simply out manoeuvred the lords' courts.


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world.816 The common law of land came to be different. The freeholder (although still holding

on tenure) now had a relationship with the land itself through an idea of ownership of an estate

(but expressed as better claim to possession of the estate). The freeholder was, by his or her (or

a predecessor's) possession said, prima facie, to be seised of the estate. But, being seised (while

the term continued to be used) could be seen now in a rather imprecise way as not simply a

matter of status within a hierarchical tenure structure; it referred to holding an interest in the

land itself. Land belonged to the freeholder (the seised tenant) because there was a common

proprietary ownership concept. The freeholder's exclusive authority over the land was:

1) evidenced by his or her possession (or a predecessor's possession);

2) recognised by or as his or her better claim to possession; and

3) conceptualised as an ownership interest in the estate that, being proprietary, was

personally enjoyable only by him or her and any subsequent owner.

However, recalling that the ownership concept was only a relative one, the authority of the

owner was only about enjoyment of the land. How was enjoyment really protected in law?

Seisin and possession were certainly treated differently in the actions. Until the invention of the

action of ejectment (the equivalent of the modern action for recovery of possession) at the end of

Edward IV's reign in the late fifteenth century, interference with possession sounded in damages

only: it was a personal action. The action of ejectment developed from the (personal) writ of

trespass817 and was initially available only to the termor (lessee) who had a right of possession.

The action did not deal with seisin, meaning a disseised freeholder was left to the real actions.818

816 S F C Milsom, A Natural History of the Common Law (Columbia University Press, 2003), 37.

817 Secretary of State for Environment, Food and Rural Affairs v Meier [2009] 1 WLR 828; F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, (CUP, 1910), Lecture VI) ("[T]respass quare clausum fregit sends out the action for ejectment as a branch."). The action of trespass de ejection firmae became the action of ejectment. See also Lecture VII ("[A]n action is real if it gives the person the very thing that he wants. Now the action of ejectment did this from Henry VII's day onwards but it did not receive the name of a real action, or of a mixed action for a very long while – it had been developed out of a purely personal action, the action for trespass, and if you will look at Blackstone's definitions you will see that they are carefully framed so as to keep ejectment out of the 'real' class [Bl Comm III, 117].)". According to J Chitty, A Treatise on Pleading, and Parties to Actions (1844), 97 ("Actions are, from their subject-matter, distinguished into real, personal, and mixed. Real actions are for the specific recovery of real property only, and in which the plaintiff, then called the demandant, claims title to lands, tenements, or hereditaments, in fee-simple, fee-tail, or for term of life, such as writs or right, formedon, dower, &c. Personal actions are for the recovery of a debt or damages for the breach of a contract or a specific personal chattel, or a satisfaction in damages for some injury to the person, personal, or real property. In mixed actions, which partake of the nature of the other two, the plaintiff proceeds for the specific recovery of some real property, and also for damages for an injury thereto, as in the instance of an action of ejectment or of waste, or quare impedit.").

818 F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, CUP, 1910), Lecture V) ("[I]f you are a freeholder claiming land you should bring a writ of entry, or a writ of right. If you, being freeholder, have been ejected, that is a disseisin, you should bring the assize of novel disseisin. The law has provided you with abundant remedies, both proprietary and possessory – you


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Eventually though the freeholder came to be able to bring an ejectment action (but, initially,

only after fictitiously alleging that a lease had been granted) and it was certainly preferred to the

old real actions which essentially became obsolete.819 Although originally a remedial action for

the recovery of damages, ejectment was effectively procedural: the person in possession was

entitled to remain in possession and try the plaintiff's title. A "plaintiff in ejectment must

recover on the strength of his title, not the weakness of the defendant's."820 While ejectment had

become the method for determining title to land for freeholders and lessees, it was not a

comprehensive action in the sense that the action necessarily represented the final say as to who

owned the land or was entitled to the lease.821 That was never the concern of the law or the

action. Nevertheless, ejectment vindicated a priority to and exclusivity of land, even if the

priority and exclusivity in issue were only relative.822 As already mentioned, ejectment put the

person with a right of possession in;823 it did not, despite its name, eject a possessor824 (even if it

also had that effect). Indeed, to be in, and to be able to be put in, possession against another

claimant was all that mattered as, in effect, the only challenger to enjoyment was someone with

a superior right of possession, providing his or her right to bring ejectment was not statute-

must use them"). The real actions were abolished, if not by the Real Property Limitation Act 1833 (UK), then (finally) by the Judicature Act 1873 (UK). See JA Pye, chap 1, para 1.4.

819 See A W B Simpson, A History of the Land Law (Clarendon Press, 1986, 2nd edn), 37-40; P Bordwell, "Seisin and Disseisin" (1920-1921) 34 Harv L Rev 592, 600 ("It was perhaps poetic justice that ejectment, the action of the humble termor, should take the place not only of the assize of novel disseisin which he had been denied, but of the rest of the 'hierarchy' of real actions as well, and that his 'possession' should be the means of freeing the law of actions from many of the 'sophistications' which had come to be inseparable from seisin. The supersession of seisin by possession, in the law of actions, was even more thoroughgoing than the supersession of seisin by the use, in the law of property. The former had the advantage of a change in terminology, while the latter was obscured by the use of 'seisin' to indicate the old seisin and the new statutory seisin as well. Instead of the multitude of forms and pleadings in real actions which varied according to the source and quality of the demandant's title or the nature of the alleged disseisin, deforcement or other injury, in ejectment the form of the action was always the same, without regard to the source or nature of the lessor's title, or the character of the disseisin, deforcement, or ouster.").

820 Ezekiel v Fraser [2002] EWHC 2066 (Ch), citing Emmerson v Maddison [1906] AC 569, 575.

821 Under the old real actions, a determination was, more or less, final as to seisin.

822 Ejectment was, at least before the Common Law Procedure Act 1852 (UK), a fiction, that is, so the plaintiff could have his title or right of possession. Cf Cole on Ejectment (H Sweet, 1857), 1-2 ("[However,] it was objectionable, on the ground that fictions and unintelligible forms should not be used in courts of justice; especially when the necessity for them might be avoided by a simple writ so framed as to raise precisely the same question in a true, concise, and intelligible form. This has been attempted with considerable success in the Common Law Procedure Act 1852.").

823 Radaich v Smith (1959) 101 CLR 209, 222 (Windeyer J).

824 Commonwealth v Anderson (1960) 105 CLR 85. Rather, it complained that the plaintiff had been wrongly ejected. Cf Manchester Corp v Connolly [1970] 1 All ER 961, 966 (Lord Diplock) ("The writ of possession was originally a common law writ … under which it was ordered the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who were there and to deliver possession of the land to the plaintiff.").


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barred.825 As such, there were, as we have seen, only relative rights or claims, initially, of seisin,

and then, of possession. It was a rule of priority to exclusive enjoyment or authority. The action

for recovery of land operates in the same way,826 but as a registered titleholder of an estate will

always have the superior title, the action, at least when that person's title is in issue, can be said

to vindicate a priority and exclusivity of land that is ownership.

3.13 Relative relationships with land and with third parties as aspects of conceptualisation: relative 'rights' of possession

A significant consideration in the conceptualisation of ownership and possession as property in

law is how each functions or applies relative to third parties (non-owners). Of special

significance is the concept of the 'right of possession', it being generally an incidental right of an

owner's title and a possessor's title. As seen in para 3.12, the law recognised relative rights to

seisin. While seisin and possession are not interchangeable concepts, in their ordinary

understandings each respectively could, when there were rival claims to their respective objects,

be the subject of a right in the sense of being an enforceable claim to that object. But, that object

(whether the status of tenant holding of a lord or of an estate) determined that the right was

only significant if there was a rival claim (of seisin or possession) to the same object. That is, a

determination as who had a better right to seisin or possession (which could judge whether a

claimed seisin or possession was 'rightful' or 'wrongful') only mattered if the rights were

relatively good or bad to one another. This is fundamental to the orthodox conceptualisation of

ownership in possession. A right to say, enter land which was not a claim to seisin or possession

was not relative to a right of seisin or possession. (Other interferences with seisin or possession

which founded claims in trespass or a nuisance depended on the plaintiff's being seised or in

possession.)

What is commonly referred to as the 'right of possession' might be seen, then, to capture the

source of an owner's or possessor's liberty to enjoy what is represented by ownership of the

estate and the right to exclude others who may interfere with that liberty.827 When ownership

and possession are considered in their orthodox senses, the right may be said to be attached to

them because the exercise of the right is to command the authority of the land as the thing.

However, a right of possession (or a right to possess), can be, or has been characterised as being:

1) as explained, of (or attaching to) ownership as a right relative only to other rights of

possession of the same thing, namely, the estate in land: that is, each right of possession

825 Danford v McAnulty (1883) 8 App Cas 456, 462 (Lord Blackburn) ("[I]n ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against one, and those who sought to turn the man in possession out must shew a superior legal title to his.").

826 Cf Secretary of State for Environment, Food and Rural Affairs v Meier [2009] 1 WLR 828.



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(including as arising from a quasi-ownership, as explained, found in actual possession)

represents a claim to possession of the ownership interest of the estate;

2) an anomalous right that, characteristically, is similar to the right of possession of

ownership, but does not function as a default way of explaining that which the ownership

of the estate represents and, therefore, is not relative to a right of possession in the way

required in (1) (that is, it cannot arise from a quasi-ownership even if it is an authority to

factually possess land);828 or

3) an anomalous right that is characterised as being inferior to a right of exclusive

possession, it not apparently having a land-thinghood characteristic.829

A right of possession referred to in (1) is consistent with possession's orthodox conceptualisation

(see para 3.9): it is a claim arising from ownership in possession and, necessarily, is a claim to

that which possession represents. (It is also the foundation of ejectment.) The characterisations

in (2) and (3) may be causing a reshaping of that conceptualisation (by horizontal extension)

because (as governance rules) they represent rights to a possession that is not itself of or

attached to ownership (and, would not, therefore, be amenable to ejectment). They are

anomalous or new rights, apparently of enjoyment. As will become apparent, and significantly,

a right of possession of the type referred to in (2) or (3) is not, in a true sense, relative to a right

of possession that is of ownership, even though the right gives its holder a claim to enjoyment in

respect of the land. Relativity implies all things being equal, namely, that each asserted right of

possession is to enjoyment of the same thing. This is inherent to the justice of the right because

relativity determines the order of (or command of) authority to the land as between those who

may be asserting the same authority: describing the right of possession as the right to exclude

(as discussed in chap 6) obscures the right's orthodox I-Thing significance as, although it is

applied to sort out relative claims of authority, the fundamental claim of each claimant is, as

suggested, to thinghood (or to its priority), not exclusion of others. (This is what ejectment is

about. Although originating in the writ of trespass, ejectment puts the plaintiff in by strength of

his or her title to the 'thing'; it does not operate merely to exclude.) Having priority to and

exclusivity of thinghood (at least in its orthodox conceptualisation) does not admit others to

thinghood. The rights in (2) and (3) cannot function as ownership of the estate in a default

sense as being in possession under the right is not being in possession of an estate. This

immediately characterises them as being claims to something (perhaps a reconceptualised

'thinghood' or 'non-land thinghood') different to that which is claimed by the right under (1).

828 See Congoo (French CJ and Keane J); chap 5, para 5.2.

829 See Eckford v Stanbroke Pastoral Company Pty Ltd [2012] 2 Qd R 324; Lewis v Bell (1985) 1 NSWLR 731. See also Manchester Airport plc v Dutton [2000] QB 133; chap 5, para 5.2.


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When a right of possession is detached from ownership, it lacks the visceral quality of thinghood

because that to which the right is directed is not of the soil (the corporeal) and its lawful

enjoyment (see para 3.7). This has occurred because of an I-Others relational approach to

relative enjoyments of land such that considerations as to the content of any right of possession

– even when describing the right of possession in respect of (1) – focus on the scope of the right

holder's relative right to exclude third parties from land or to prevent interference with his or

her relative enjoyment of the land.

3.14 Possession and occupation

In law, possession of land is not the same as occupation.830 However, the distinction is not

especially well understood.831 As Wonnacott puts it, possession sometimes is used in a vulgar

sense to refer to occupation.832

Possession's law-stating function has the significance that has been described: it represents,

because of its place within the law's response to the recognition and protection of the enjoyment

of land, particular characteristics that it shares with ownership.833 It works, in so far as it gives

rise to a right of enjoyment of land, in a relativity sense (as being of ownership). Necessarily,

then, and given ownership is a legal concept, such characteristics import abstract notions of

claims to decision-making in respect of land.834 Possession, like ownership, and generally being

of an estate, authorises the exercise of a will to make something happen in respect of the land as

represented by the estate: this is the liberty interest of the possessor. On the other hand,

occupation is a question of fact.835 To occupy land is to be physically present on land otherwise

830 See generally C Boge, "Possession of Land: Missteps in the Control Analysis – Part I" (2015) 89 ALJ 49, 55-57.

831 Akici v LR Butlin Ltd [2006] 1 WLR 201; M Wonnacott, Possession of Land (CUP, 2006), 8 ("[O]ccupation is neither necessary nor sufficient to be in possession of an estate."), 25 ("This is not merely an academic point. The distinction between possession and mere occupation is a matter of some importance to the common law, because the common law provides no remedy against third party interference with a mere right of occupation."); A Dobbs, "Possession and Occupation – Two Sides of the Same Coin?" (1999) 10 KCLJ 226; M Dixon, "The Non-Proprietary Lease: The Rise of the Feudal Phoenix" [2000] CLJ 25; Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 212 (Toohey J) ("Possession is a conclusion of English law … Occupation on the other hand is a question of fact."). See also New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232. Although, as Toohey J in Mabo [No 2] notes, it will be presumed that, in the absence of evidence that possession is with someone else, the occupier of land will also be in possession. Occupation does not, in any relevant sense, necessarily exclude others. See Hume v Auckland Regional Council [2002] 3 NZLR 364, [27] ("[The] activity of construction of a jetty must by necessary implication exclude others to the necessary extent. The activity of occupying and using the jetty does not do so, except to a very limited spatial and temporal extent.").

832 See fn 656.

833 But, it is not ownership except in a quasi-ownership sense.


835 Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1, 4.


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than in a transitory or temporal sense.836 A person in occupation may, in the absence of

evidence to the contrary, be presumed to be in possession of land.

Interestingly, few would likely contend that a mere occupier owns land (even if the occupier can,

by his or her occupation, be presumed to be the owner837). Yet, occupation is, as suggested,

often (vulgarly) used interchangeably with possession. On such reasoning, as possession is of

ownership, an occupier should, as a matter of law, be presumed to be enjoying the relevant

ownership interest and, as such, also be presumed to be in possession.838 However, such

reasoning ignores possession's true (albeit abstract) nature.839 The presumption actually

assumes occupation and possession are distinct concepts, as the fact of occupation only gives

rise to that presumption if possession itself contemplates that a person in occupation may be in

possession.

836 Cf New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act(2016) 260 CLR 232, [88] (Gageler J) ("Occupation of land can be occupation for a purpose, and the purpose for which physical acts are undertaken can inform whether those acts amount to occupation in fact. Unlike the concept of use, however, purpose is not intrinsic to the concept of occupation. Physical acts can be sufficient to amount to occupation in fact irrespective of the purpose for which they are undertaken … [A] farmer might remain in occupation of his farm by staying in his farmhouse and maintaining his fences despite having chosen to cease farming and despite not yet having chosen what else he might do with the farmland.").

837 An appearance of power.

838 See chap 6, para 6.3 in relation to the discussion of Manchester Airport plc v Dutton [2000] QB 133.

839 The point can be demonstrated by a statutory provision such as the Acquisition of Land Act 1967 (Q), s 37(1). That provision says: "The constructing authority [being an authority with power under the Act to compulsorily acquire land] may temporarily occupy and use any land for the purpose of constructing, maintaining or repairing any works, and may exercise any of the following powers—(a) take therefrom stone, gravel, earth, and other material; (b) deposit thereon any material; (c) form and use temporary roads thereon; (d) manufacture bricks or other materials thereon; (e) erect workshops, sheds, and other buildings of a temporary nature thereon." A constructing authority may wish to engage a contractor to construct, maintain or repair works on land. However, s 37(1) only authorises the constructing authority to occupy and use land for such a purpose. Section 37(2) says that the "constructing authority or the person having the charge of the works" must give the occupier, or if there is no occupier, the owner a notice of intended occupation and use. The reference to "the person having the charge of the works" cannot be construed as suggesting that such a person is given, under s 37(1), a right to occupy and use the land, especially in the light of the legality principle. Whether the authority (or someone else) actually occupies or uses land is a question of fact. Putting aside any interpretation that might imply the power under s 37(1) allows the constructing authority to authorise others such as its contractors to occupy and use land for a stated purpose, if the provision instead authorised the constructing authority to possess the land for such a purpose, there likely would be a whole lot less doubt as to whether the authority could authorise its contractor to undertake works on the land. If the constructing authority were able go into possession (even temporarily) it would be able to make decisions about the land for the purpose of the works that go beyond its merely factually being present on the land to carry out the works. Possession's priority, exclusivity, and thinghood connote an idea of the free exercise of will over or of the thing that is land, even if the exercise of that will is limited to a particular purpose. That is, the constructing authority may, because it has priority to and exclusivity of the thing, freely decide how to achieve its purpose of having the land. A power to occupy and use land merely means the authority may physically be present on the land to carry out the purpose of its occupation and use. In common parlance, possession would suggest the authority has control of the land; occupation and use does not.


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Possession has an abstractive quality; its function and use within the law's response to the

objective of recognising and protecting the enjoyment of land tell us that. It is, therefore,

relative to ownership. Occupation is not.840

3.15 Conclusions

From this chap 3, the following arguments are to be carried forward into subsequent chapters.

1) Possession of land is a significant, although perhaps diminishing, concept in real

property law.

2) Possession (including of a lease) in its orthodox sense is of ownership in the sense that to

possess is to possess that which can be owned, namely, an estate as representing the

land. Each of possession and ownership conceptually represent the same characteristics

but, as titles, are relatively hierarchical.

3) Possession is, then, proprietary: it creates, because of title, for its holder (the possessor)

a claim to enjoyment of the estate in the same way ownership gives an owner a claim to

that enjoyment. But, possession itself, like ownership, is the enjoyment of the estate, as

representing land, as realised in a freedom of decision-making in respect of land. The

claim to enjoyment (often called a right of possession) of a possessing non-owner is

relatively inferior to the right of possession of a person with a superior right of

possession (especially the registered owner of an estate).

4) The real actions, concerned as they were with seisin, and ejectment, in effect, recognised

a conceptual idea of priority and exclusivity of a relationship between a grantor and

grantee, and allowed the conceptual idea of ownership in possession as priority to and

exclusivity of the land (as the thing). The substantive law which emerged from, and

flourished after, the abolition of the real actions, established and continued this

orthodox conceptualisation.

5) If possession, as an abstract concept, is detached from its ownership frame of reference,

conceptually it may end up representing different characteristics. This may be occurring

because possession and ownership are applied contextually according to an idea that the

enjoyment of land is one of lawfulness which may, depending on the context, be quite

limiting or imply that the interests or values of non-owners ought to have some

relevance to an owner's otherwise priority to and exclusivity of decision-making in

respect of land. The result may be that possession represents a form of enjoyment of

land that is not always representative of thinghood in the pure ownership sense. A right

of (or to) that possession, then, may exist to function as a right of relativity, but in a

different way to a right of possession of an estate in land (or, previously, as a better right

840 Except, of course, an ownership may connote a priority to and exclusivity of occupation.


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to seisin). That is, a right is relatively superior or inferior to other rights that may exist

in respect of the same land, but which are not necessarily of ownership of an estate

which represents the priority to and exclusivity of the land's enjoyment. Such new

(relative) rights of possession may extend to using a possession concept because of the

potential availability of possessory remedies for their protection. However, if the remedy

which is made available is the action for recovery of possession (ejectment), and the

plaintiff's action is founded on the strength of his or her title, that title is not strong

relative to the defendant's title in a proper sense: their respective titles needed to be of or

to the same thing.841

841 That said, the modern possession order may be made available to remove an occupier. However, the issue remains whether the plaintiff must have a right to possession in its orthodox sense. See chap 6, para 6.5.

Chapter 4: The framework for possession's developments and applications: an Chris Boge analysis of its susceptibility to reshaping

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4. Chapter 4: The framework for possession's developments and applications: an analysis of its susceptibility to reshaping

4.1 Purpose of chapter

Having considered possession's general conceptual and orthodox function in real property law

in chap 3 as being of ownership, this chapter analyses how possession may be susceptible to

reshaping with reference to its development and representative characteristics (which were

identified in chap 3).

4.2 Reshaping the content of possession beyond title: its susceptibility to modification

Possession can only be conceptualised in the way the law intends and that is as a relevant,

stable, and functional concept within the broader legal system.842

Possession and ownership of land are conceptually identical843 and function within a relativity

framework that recognises them as hierarchical in the ordering of claims to things (and the

abstract idea of thinghood). As such, they are necessarily – but not in a directly relative sense –

superior to claims that do not conceptually match their characteristics. Possession and

ownership cohere uniformly under title to an estate as possession is the expression of

ownership's enjoyment (the notion of 'ownership in possession'). If the characteristics of one

should change, however, or they do not each share a conceptual linkage to a conceptual

understanding of land they are no longer relative to each other.

Yet, equally, their abstract natures may allow them to deviate in application in ad hoc or

anomalous (or particularly) 'high stakes' contexts844 (for example, where someone is found to be

in a possession that is not exclusive so as to admit a claim by someone else to the same land).845

842 See chap 3, para 3.6; A Tay, 'The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 MULR 476, 480 ("In a society in which no one had or claimed the control of anything to the exclusion of others, the terms 'ownership' and 'possession' would not be part of the language.").

843 That is, by reference to their representative characteristics (and their obvious conceptual linkage to land). They are not, however, identical in all respects because, for example, the ownership under Torrens title can represent a priority that possession cannot.

844 See H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession(Blackwell, 2015), ch 3.

845 Possession as understood by the common law, whether or not relating to land, generally may be modified by a statute. See Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (2017) 254 FCR 559, [127] ("[T]he word possession in the [Personal Property Securities Act 2009 (Cth)] has its common law meaning, modified to the extent provided for in s 24 of the PPS Act.").


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This research is not directed at whether any such extended applications are wholly justified in

any theoretical sense or as objectives of property; rather, it is concerned with the identification

of such applications in the light of possession's conceptual foundations as stated in chap 3 and

the effects of those applications on the concepts themselves.

Identifying such applications and their effects requires an understanding of why a concept in

law such as possession can be reshaped and of ownership's justification in law.846

Reshaping of a concept in law

According to von der Pfordten, there is a connection between what he calls a 'legal conceptual

scheme' and a 'general (non-legal) conceptual scheme'.

[T]he most abstract concepts of the legal system do not reach the abstractness of the most abstract concepts of the general conceptual system. But they fulfil the same function of systematisation. Such concepts are: obligation, permission, lawful, unlawful, right, norm, power, immunity, privilege, ownership, human being, person, human dignity, life, liberty, action, punishment. Important is the fact that these concepts are mostly taken from the second level of abstraction of the general conceptual scheme, that is, the level where the content of concepts is quite contingent. This opens up the possibility for the legal system to modify these concepts and shape them according to its own purposes and values to a great extent.

Underneath this first level of highly abstract legal concepts, there is, like in the general conceptual scheme, a second level of (in comparison to the first level) more concrete (but within the legal system still rather abstract) concepts like contract, crime, negligence, tort, breach of contract, guilt and justification. The concepts of this level are either heavily modified non-legal concepts or are even produced entirely by the legal system. Like the ones in the general case, on the second level they are, in the context of the legal system, much less necessary. The consequence is: They are much more open for inner-systemic determination and interpretation in the process of adjudication. That means: The structural vagueness and contingency of these concepts open up the possibility to determine these concepts by legal rules up to the extreme of total invention which is not possible for the most abstract concepts of the legal system on the first level because these most abstract concepts have to keep up the connection to our general conceptual scheme, that is to the non-legal world. Otherwise there would be no connection between the general and the legal conceptual scheme.

We then have a third level of concepts in the law which are similar to the general scheme close to empirical sensations, eg, concepts like car, tree, vine, house, street, city, body, banana, apple, tomato, blue, red, loud, heavy. The internal determination of these concepts by the norms of the legal system is, like in the general conceptual scheme, rather limited, but not totally impossible.

846 B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 611, 623-624 ("When we speak of a jurisprudence of conceptions we really mean to refer to legal reasoning which is carried on with antiquated or maladjusted concepts. Like so many other things of which we are hardly aware until they get out of order, we scarcely appreciate the function which our concepts are serving until they become maladjusted to our needs. But what is necessary is not to disparage out concepts or their use; rather, it is necessary to appreciate most clearly, then of all times, that they are the tools of our thinking and are governed by the purposes which govern us in our thinking; that they need to be reshaped from time to time to suit our needs … [O]ur legal measures, concepts, meanings must be shaped to fit their uses in legal thinking … What we need is concepts framed with reference for use in legal discussion. What we need is concepts framed with reference to the purposes of our legal order. Our legal material must have logical organization, but the organization must be built with reference to legal purposes if it is to serve us adequately in our thinking.").


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Finally, in law we also have a fourth level of very concrete concepts. These concepts are used very often in quite technical norms like norms of environmental, medical or economic law, eg, the concepts of special chemical substances, of medical drugs, of investment market instruments. These concepts are quite open for legal determination. They can be determined either by experts in special sciences (eg, in chemistry for chemical substances) or by the law itself, eg, the determination of concepts like driving license, identity card, constituency etc.847

Ownership, as identified by von der Pfordten, sits on the level of the most abstract concepts in

law (the first level of legal abstraction). In noting that, as such, it is taken from the second level

of abstraction of a general (non-legal) conceptual scheme,848 its content is, then, in law:

1) contingent; and

2) susceptible to reshaping (modification) "according to its own purposes and values to a

great extent".

In respect of (1), the contingency of ownership's content – and, by extension, possession – is a

recognition that concepts are related to other concepts. For ownership, there is a relation of

relative necessity and contingency between it and the object of ownership, relevantly here, land

(or an estate in land). For this reason, possession (being of ownership) is a relationship with

land and its enjoyment, not with non-possessors.849 That is, as developed in law as an abstract

legal concept, possession, like ownership, is of land (or an estate); this represents an obstacle

(but not a bar) at least to its reshaping as a concept unconnected to land. Land sits on von der

Pfordten's third level of legal abstraction (it is empirical). It follows (so far) that:

1) ownership's content is contingent on its continuing to be related to land, and, therefore,

so too is possession's content; and

2) ownership and possession as relationships of enjoyment with land are susceptible to

reshaping, depending on their purposes and values in law, and potentially to a great

extent; but

3) land, "being internally determined" (it is what it is), is difficult, although not impossible,

to reshape.850

However, as discussed (see chap 3, para 3.7), possession is a concept that while conceptually

linked to land, it is, accordingly, conceptualised as representative of its essential characteristics,

including thinghood which is an abstract representation itself of land and its lawful enjoyment.

847 D von der Pfordten, "About Concepts in Law" in J Hage and D von der Pfordten (eds), Concepts in Law (Springer, 2009), 17-34, 29-30.

848 D von der Pfordten, "About Concepts in Law" in J Hage and D von der Pfordten (eds), Concepts in Law (Springer, 2009), 17-34, 27.

849 The former is what this research calls an I-Thing relationship whereas the latter is an I-Others relationship. Focusing on the exclusion of others (while a consequence of possession) leads to the idea of taking into account others' relative interests and values.

850 But, see fn 603 as to how the meaning of land can vary in law.


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When, then, we consider land beyond its empirical quality – that is, by reference to what is

meant by its enjoyment in law – land as the conceptual linkage to possession can, in effect,

become a second level of legal abstraction and therefore, along with thinghood itself (as a

characteristic of possession), may be "much more open for inner-systemic determination and

interpretation in the process of adjudication".

As such, (2) immediately above may occur because the purpose of possession of land as a

relationship of exclusive enjoyment – reflecting a foundation in, or a societal perception of

property, in a non-legal reality of possession –, may, in its application, no longer be justified in

the same way it once was, justification also being a second level of legal abstraction.

Justification is, though, not a necessary legal concept: as a justification may variously exist to

explain possession at different times in legal development it may suffer from "structural

vagueness and contingency" such that it changes over time, including as reinvented, because of

new perceptions as to persons' interests and values relative to the enjoyment of land. Thus,

possession (as being of ownership) may be perceived in some of its applications as creating

undesirable outcomes (which are generally revealed when the relative interests and values of

possessors and non-possessors are weighed against each other). However, possession must,

nevertheless, maintain its connection with land (according to some conceptual description), that

being a contingent requirement for its continuing content. But, any vagueness or ambiguity in

possession's justification as a relationship (through ownership) of exclusive enjoyment of land

(including that its content is contingently relative to particular outcomes) exposes that

justification to reshaping or reinvention, especially in adjudicative contexts (that is, before a

court), especially if we limit our understanding of possession to lexical or evaluative, rather than

theoretical, definitions. In turn, this can have the effect of causing a reinterpretation of what the

law values as the enjoyment of land and also represents as the thinghood characteristic of

possession.

That said, because ownership in its orthodox sense sits at a first level of legal abstraction and is

taken from a second level of abstraction of a general (non-legal) conceptual scheme, its and,

necessarily, possession's reshapings face a not insignificant obstacle in that the reshaping must

respond to a general conceptual scheme of ownership and possession. At this level the law

adopts the concepts (they being conceptually identical in law) from general conceptualisations –

the notion of the humanization of land space through an idea of its being capable of

appropriation by and division among individuals – so as to use them according to the law's

purposes and values (to a great extent). (However, the general conceptual scheme merely

reflects for present purposes the existence of a non-legal concept not that ownership or

possession are necessarily of natural law or pre-date law; as a counterpart to a legal concept, a

general or non-legal concept is not and cannot obviously be developed, nor does it function in


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the same way, as a legal concept.) It is, then, not a straightforward matter for the law – even

though it has essentially adapted those concepts as abstract legal ones – to reshape them

according to its purposes and values without regard to that general conceptualisation. This is

because, for present purposes, the law's argument or objective for which it recognises ownership

and possession is about an enjoyment of land that has a counterpart in the fact of the

humanization of space, as mentioned. If the law wishes to reshape a concept, and even to a

great extent, it seems clear, at least at first blush, that it would do so in a way that is not

significantly detached from the general conceptual scheme.

However, relevantly, if possession's conceptual linkage to land itself is diminished merely to

being in respect of land (meaning it does not necessarily represent characteristics of exclusivity

and thinghood), it may be that the law actually is creating possession as a form of second level

legal abstraction which still is a form of reshaping, but for this research it is described as an

extended form of possession as a concept. And there, as von der Pfordten reasons, it is as a

concept "much more open for inner-systemic determination and interpretation in the process of

adjudication [meaning its] structural vagueness and contingency [now being contingently linked

according to a threshold of its only being in respect of, not of, land] open[s] up the possibility to

determine … [possession] by legal rules up to the extreme of total invention which is not

possible for the most abstract concepts of the legal system on the first level because these most

abstract concepts have to keep up the connection to our general conceptual scheme, that is to

the non-legal world."851 It is here the law ends up devising potentially ad hoc entry rules and

consequences for what amounts to, whether in name or effect, an extended or anomalous form

of 'possession' (for example, because a person need only have effective control of land (an entry

rule) or even something less to bring an action in trespass (a consequence)). Yet, the law still

does so by finding 'inner-systemic' legal markers for such an invention (and which might be

characterised as a form of 'propertising'852): for example, the possessory remedy is available to a

plaintiff who has a relatively superior right to the use and enjoyment of the land compared to

the defendant; or even simply because there is a gap in the law and "where there is a right, there

is [or ought to be] a remedy".853

Extending possession's conceptualisation by further abstraction

851 Von der Pfordten highlights a significant point about legal concepts, namely, that the law can, for its own reasons (or arguments or objectives) reshape a first level of legal abstraction so that the concept now is a second level of legal abstraction. A misunderstanding of the concept occurs if it is thought that the concept must retain, or "keep up with", its first level of abstraction and, therefore, its relationship with its general conceptualisation. Such thinking can lead to errors in understanding the characteristics of the concept which now are wholly (or primarily) determined by law.




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In their orthodox (and related) senses, ownership and possession, being of land, keep up their

connections with the general conceptual scheme of the humanization of space because they

represent the legal appropriation (including as a default idea) of the thing itself; in a second

level of abstraction they do not. We can, then, in the first level of abstraction, still recognise

what might be called permissible conceptual distinctions for ownership and, more relevantly for

this research, possession where what is being stated in law as ownership or possession continues

to represent its essential characteristics of orthodoxy (for example, where a legal relationship of

land has the characteristics of priority to and exclusivity of the land but that relationship is not

also represented by title to an estate).854 Where we reach the point where must ask whether

those concepts now – as an extended form of reshaping – fall into a second level of abstraction

is where we move beyond 'permissible conceptual distinctions' and state in law that ownership

or possession now represent different characteristics.

If ownership and, especially, possession (in their legal senses) are not to retain their orthodoxy

we need to understand in what circumstances that may occur and the apparent justifications for

such reshaping. To adapt Tay's observations,855 we can only say that ownership and possession

have been (properly) reshaped in law if those circumstances and justifications occur as or within

a chain of reasoning that is logically organised. And that is in the sense that we can continue to

understand, by reference to their respective applications, each concept as a legal response to an

argument or objective of the law about the enjoyment of, or in respect of, land according to

readily apparent entry rules and consequences (they being within their respective conceptual

contemplations). If ownership and possession (are to) become pure legal concepts (of second

level abstractions)856 – a result which may occur if their essential characteristics are reshaped

because their links to their general conceptual scheme counterparts are broken or at least

diminished – they may become, and persist as, exemplars of an inner-systemic (re)shaping of a

type suggested by von der Pfordten. However, if that is correct, it is contended somewhat

differently to von der Pfordten, that at the 'second level', ownership or, more particularly and

relevantly, possession may, then, relative to its orthodox conceptualisation, become especially

abstract (that is, more so than as first level abstractions) because its conceptual linkages are no

longer dependent on the idea of their being of land and its exclusive enjoyment (as occurs with

854 See the discussion of Congoo and Mayor of London v Hall [2011] 1 WLR 504 in chap 7, para 7.3.

855 See fn 341.

856 While ownership and possession as first level abstractions are legal concepts, it is as second level abstractions they may, because of their reshaping, become inventions of the law rather than owing their conceptualisations to links to a general conceptual scheme. The term pure is used simply to reinforce the abstract quality of the second level of abstraction relative to the first level.


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ownership in its orthodox sense).857 Rather, as a result of inner-systemic reshaping in

adjudicative settings possession, at least, appears, as already suggested, according to its

inventiveness (as least in those settings) connected to an abstract idea of representing a relative

enjoyment or right of enjoyment in respect of the land and, as such becomes conceptually

contemplative of different outcomes in its 'new' applications (for example, a possessor with a

mere right of use and occupation has a relatively superior right to a trespasser against whom the

possessor may bring an action in trespass). Accordingly, a reference throughout this research to

a second level of abstraction of possession (which will be retained to avoid the need to introduce

a further term) should be understood in that way. Also, this process captures what the research

contends is the looping-type (or looping-back) effect of conceptualisation in this area:

possession's inner-systemic reshaping occurs as a result of its adjudication. Adjudications, as

applications of possession in particular contexts, are or become statements of possession's

functionality within the law and, as such, represent the law's conceptualisation of the possession

idea. More particularly, consequences of possession's applications as declared in an

adjudicative setting may have an effect of describing or formulating an understanding of

possession's representative characteristics because those consequences appear to be the result of

the applications of the concept itself. What may occur, then, is that, by a looping-type (or

looping-back) effect, such consequences, however 'justified', (re)shape the possession concept

itself as a form of inner-systemic legal reasoning.

The research contends in subsequent chapters that there are within adjudicative settings signs

that possession has, by such a process, detached itself from its orthodox essential characteristics

(and, therefore, from ownership in its orthodox sense); as such, if possession is to represent new

characteristics in law, any resultant reshaping may be more than a reshaping according to

possession's own purposes and values (which assumes possession's general (or non-legal)

counterpart broadly represents, like orthodox possession, characteristics of priority, exclusivity

and thinghood but expressed as a broader idea of the humanization of space). If possession is

reshaped so that it no longer (only) represents those compound characteristics, then, it would

seemingly follow that possession will assume a status as, or at least to the extent of its non-

orthodoxy, a second level of legal abstraction which disconnects it from ownership (in

ownership's orthodox sense). This allows possession to become internally determined and

although highly technical in meaning, it may be difficult to fully understand it in a theoretical

sense as it may lack an organisation which logically explains when it is intended to assume a

first level or second level of legal abstraction, or possibly even aspects of both. This is because it

becomes unclear as to whether possession is a concept that is part of a legal response (with

857 Although the concept of land's enjoyment is itself abstract, at the first level the essentially empirical notion of land is maintained because the ownership in possession characteristic of exclusivity also is maintained.


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ownership) to an objective or argument of the law for the enjoyment of land (which is reflected

in its orthodox characteristics of priority, exclusivity, and thinghood), or whether it is a purely

legal concept that is adaptable to circumstances that may not concern that type of enjoyment.

We cannot, then, fully know its entry rules and consequences from situation to situation.

The research considers that, if possession is to represent a cohering and stable concept within

law, it may only conceptually creep by any reshaping to fall within a second level of legal

abstraction of the type described if there is a logical organisation to the circumstances, including

justifications, in which it does so. Its entry rules and consequences – its conceptual

contemplation – within that level of abstraction must be able to be explained and understood

such that it can be said there are unifying and cohering links within its characteristics and

applications.

Lawfulness as a linking concept

In an adjudicative setting, the legal concept that allows or justifies a relative weighing is one of

lawfulness,858 it being, like possession (at least in an orthodox sense), within von der Pfordten's

first level of legal abstraction. What is meant by lawful enjoyment of land may, then, be

reshaped (modified) according to the law's objective or argument for that enjoyment.

Lawfulness's contingency is that it must be connected to the liberties (or freedoms) of

possessors and non-possessors on the premise that it conceptually represents the acceptance in

law of actions or inactions of those persons relative to the use and exploitation of land. That is, a

non-possessor may lawfully be able to enter an owner's land without the owner's permission in

particular circumstances (often expressed as a justified entry) because – after weighing the

respective interests and values of the owner in possession and the non-possessor – possession,

in its application, no longer justifies the consequence that the freedom of the owner (or anyone)

in possession to enjoy the land extends to making a decision to exclude that entrant.

However, if, by a relative weighing of the interests and values of parties in the context of the

adjudication of a dispute concerning its application possession is being reshaped, or the

adjudication points to its reshaping, that reshaping needs to be evaluated as to whether it

remains within possession's conceptual contemplation at a first level of legal abstraction. If it

does not – because its characteristics or conceptual linkages have changed – such that

possession now falls, or points to falling, within the second level of legal abstraction (as a pure

legal concept), then, it should be evaluated whether that development nevertheless represents a

link in a chain of reasoning for the development of the possession concept generally.

858 See chap 5.


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4.3 Possession's modernism within ownership as a process of fragmentation and as perception of changing needs and relationships

In Dorman v Rodgers859 Murphy J said that "[t]hroughout the history of the common law the

concept of property has been used to recognise the legitimacy of claims and to secure them by

bringing them within the scope of legal remedies." This coherence idea860 allows the creation of

various control relationships (although in real property law, often it is said there is a limited

number of recognisable estates and interests861).

As explained in chap 3, ownership of land as a form of property is an intermediate concept in

the law's response to recognising and protecting the enjoyment of land. It is (by its recognition

and enforcement) a means to,862 or a key to, enjoyment.863 By enjoyment of land it is meant

that the enjoyment is singular and exclusive and does not admit of any other enjoyment, except

as a claim that is derivative of ownership or as permitted by statute.864 Enjoyment too, then, is

an abstract concept in law. And it is possession as a legal concept which is, in an orthodox

sense, ownership's expression of that enjoyment.

But, ownership in possession does not occur in a void. For example, Sir William Blackstone,

notable for describing the natural rights of personal security and liberty and of the common law

as at one in justifying the "sole and despotic dominion" of humans over external things of the

world in total exclusion of the rights of others,865 devoted a sizeable portion of his first chapter

of his Commentaries on the Laws of England, Of the Rights of Persons (1765) to the matter of

status within England's medieval social structure.

Because land was considered the ultimate form of wealth, the most affluent and ambitious persons in England sought to accumulate as much as possible with the broadest incidents or rights. Property holding was closely associated with social status. Not only the size of the landholding, but also the type of ownership – the particular kind of estate by which one held property – correlated closely with one's social class. Persons who were not bound in some way to the land under a manorial economy were considered free, and the property interests they typically held were called freeholds. Conversely, the peasants or serfs typically owed such heavy duties of labour service and farm product to their feudal lords that they were considered not free to leave the land, and the forms of property that they held were labelled non-freeholds or unfree tenures. Medieval serfs usually held land by arrangements akin to

859 (1982) 148 CLR 365, 372.


861 Known as the numerus clausus principle. See B Edgeworth, "The Numerus Clausus Principle in Contemporary Australian Property Law" (2006) 32 Monash University Law Review 387.

862 S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 289-291.

863 See the discussion of Bocardo in chap 3, para 3.9.

864 See Fejo v Northern Territory of Australia (1998) 195 CLR 96, [43]; Spencer v Australian Capital Territory (2007) 13 BPR 24,307, [24].

865 See further below and fn 895.


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the modern leasehold which gave them a right to occupy the land for a period of time in consideration for services or produce paid to the landlord.866

Ownership of land is a concept that has provoked, and will likely always provoke, controversy.867

As title to ownership represents a legal authority over land as sanctioned by the state (a

"legitimacy of claim" in the words of Murphy J), and because society and its interests and values

inevitably change,868 there will always be a perception that at any point in time (title to)

ownership creates winners and losers.869 Nevertheless, its mere existence in historical and

contemporary contexts has evoked and continues to evoke sympathy as a justification for its

recognition.870 Indeed, it is likely that ownership in possession does not radically change: it

must be noticed that it generally does intend not to admit enjoyment by more than one person

without that person's permission. Rather, as a concept, its representational qualities may be

reshaped or creep when justifications, including perceptions which inform those justifications,

as to what its purposes and values represent, or ought to represent, in its functional application

change. Despite their obvious relationship, possession may be more exposed to such reshaping

or creeping when it is detached from ownership (as there it no longer always retains the same

thinghood quality).

Tay warned, when considering the concept of possession generally, that it "is one thing to falsify

the law; it is another to refuse to treat it as a sequence of sacred and immutable fiats. In tracing

the development of the common law, over a period of nearly 900 years, one is concerned with a

866 D Thomas, 'Anglo-American Land Law: Diverging Developments From a Shared History, Part I: The Shared History" (1999) 34 Real Property, Probate and Trust Journal 143, 202.

867 S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 291 ("In the course of this push and pull, advocates on all sides have made, and still make, claims about property – about its origins, about its attributes, about its purposes, and about its outer limits. Almost all of our discourse about property has consisted, and still consists, of such claims.").

868 See, for example, Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, [28]-[30] (McHugh J); cf Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248, [58] (Gageler J) in relation to how the interpretation of statutes is affected by prevailing values, but adding they are "not immune from curial assessment and revision".

869 Private ownership is a successful institution in wealth-generating societies. Indeed, a key to the generation of wealth is such an institution. See J Mokyr, A Culture of Growth: The Origins of the Modern Economy (Princeton University Press, 2017), 122 ("Many of the cultural beliefs and institutions that support Smithian growth also have an impact on technological progress. Technological progress in practice depends on well-defined property rights, as well as on contract enforcement, since it typically involves investment of some kind, as well as contracts with suppliers, workers, and customers."); D Acemoglu and S Johnson, "Unbundling Institutions" (2005) 113 Journal of Political Economy 949. See T West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (CUP, 2017), 318 ("If everyone has a right to acquire and to possess property, a conflict between the haves and have-nots in which both sides are right will be unavoidable in a condition of extreme scarcity. Unless the possessors voluntarily choose to spread their wealth around, those who are starving will have no way of getting what they need except by theft or violence".).



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chain of legal reasoning extending over time; the importance of cases is as links in that chain."871

That is, specific cases, and, in particular, their facts, do not represent legal reasoning itself.

Relevantly, law is the reasoning or meaning drawn from cases over a period such that it may

apply in diffuse sets of circumstances.

The late S F C Milsom observed that:

[i]t is not just that fundamental changes are slow: their visible surface effects may be too widely scattered in subject matter as well as in time for the causation to be demonstrable from particular pieces of evidence. Various of the mischiefs addressed by the outpouring of legislation under Edward I, for example, appear to have followed from changes made under Henry II. As in the natural sciences, fundamental propositions in legal history may stand or fall not with single facts but with their power to explain all the facts.

…

A mistake the historian can easily make is to assume that a blank in his evidence means nothing was happening; and when the materials do begin to show something happening he interprets that as a large change, for which he sometimes imagines large intentions. The history of the common law affords many examples of this phenomenon, so that what was actually slow incremental change is represented as a sporadic series of innovative leaps forward, sudden upsurges of sense or civilization.872

The development of the common law of real property is incremental. And that law as it stands

today is, due to statute, a relatively modern idea.873 Often, it is difficult and unnecessary to

pinpoint particular events or reforms, including statutory ones, as marking clear turning points

in the law. There are exceptions, however.874 We may note the following for this research in the

law's development of a concept of ownership in possession as property.

1) The decline in the significance of the doctrine of tenure as a relationship between a

subject and the Crown and the resultant recognition of ownership of the estate as an

extension of the individual's personal relationship with land.

2) Despite (1), the residual idea of the right of possession as emerging from the right to

seisin (as discussed in chap 3, para 3.12).

3) With the decline in the authority of the Crown, parliament's assuming a substantial role

in creating, and directly and indirectly regulating, property in the public interest.

4) The development of a substantive (common) law with abolition of the real actions and

the adoption of an adjudicative approach to the administration of that law (especially in


872 S F C Milsom, A Natural History of the Common Law (Columbia University Press, 2003), 75-76.

873 See generally fn 998.

874 The recognition of native title in Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 may be considered one. Although native title is not so much part of the law of real property today. Also, see chap 7, para 7.4 where it is noted that English statutory reforms of the nineteenth century, including under the Judicature Act 1873 (UK), had a significant effect on the development of a substantive real property law, as well as the law generally, following the abolition of the forms of action.


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torts law) according to the relative interests and values of the disputant parties

(expressed as the "accommodat[ion of] proprietary rights and modern social interests").

These legal developments, when loosely combined with socio-economic developments, can, for

present purposes, be seen to have caused Milsom's "slow incremental change" (even if we notice

some stand-out developments) such that:

1) the law, in its orthodox conceptualisation of ownership in possession as representing the

priority to and exclusivity of land, is giving expression to a highly individualistic

expression of personality, especially when (but not entirely because of) the Crown no

longer had its original tenurial authority;

2) ownership, however, although emerging as it did under (1), has come to be seen in a

broader social or community institution context and, as such, disputes concerning land,

once dominated by the real actions, may be the subject of more abstract interests and

values as weighed and interpreted in the inner-systemic process of adjudication about

'property torts' (trespass and private nuisance) and an owner's real priority to and

exclusivity of land may have, in some contexts, assumed a 'thinghood' character that is

relative to the purpose of the owner's possession rather than with the land's entire legal

capabilities and the owner's necessary priority to them because he or she is 'the owner';

and

3) the relative interests and values of those in possession and those not in respect of land

may end up inuring in the conceptualisation of ownership in possession itself (rather

than in the personal freedom of owning) such that its characteristics are reshaped.

Justifying possession: abstractions and restraints on how ownership's possession is intended to function as relevant to relativity

Pollock wrote that the "relations of persons to things in law have to be determined in accordance

with the facts of life; and in daily life the importance of things is that they can be used and

enjoyed".875 Accordingly, the law's ideas of ownership and possession are without conceptual

substance unless they contemplate the personal enjoyment of things. In that way, and as

discussed throughout this research, the law always is conceptualising something that it

understands has factual counterparts or, at least, non-legal analogies and which allows

(orthodox) possession to come within a first level of legal abstraction referred to earlier.876


876 See J Bingham, "The Nature and Importance of Legal Possession" (1914-1915) 13 Mich L Rev 535, 538. Nevertheless, and particularly in modern society, an understanding of ownership, even if not possible without the law, exists on a crude (even if inadequate) 'mine-yours' level. Certainly, that is apparent for possession. See H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3, 67 ("[P]ossession is a cheap way to get us most of what we want from ownership."); cf S Panesar, "The Importance of Possession of Land" (2003) 33


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Applications of possession as generally understood today in law can trace their recognition from

an occupancy theory that was mostly reflective of the experience of humans and their physical

connections with land, as occurring within socio-economic developments. As such, as a legal

concept it simply can, to some extent, be accepted as existing in law877 and function as its own

form of justice. Humans have been humanizing fixed spaces of land – and whether understood

as estates, parcels, plots, holdings et cetera – for centuries within various societal frames of

reference.878 How that transformed itself into a legal idea of ownership within a property frame

of reference is the product of many factors (often having occurred sequentially), including legal

and non-legal (especially economic) history; the increasing sophistication of the law generally;

the rise and decline of certain ruling and other classes; landscape; various statutes, forms of

action, procedures, and rules; multiple property theories;879 the relative values and freedoms

within society; the idea of title; and a concept of possession.880 Importantly, ownership

recognises a simple truth that people generally do not move around randomly.

Of particular fascination and relevance for present purposes in the history of land ownership

were the theories of the natural rights theorists, primarily because they advanced a justification

for ownership that finds its contemporary expression in property libertarianism (a highly

individualistic theory that is very protective of exclusivity and is consistent with a negative

community view).881 The natural theorists' construct of ownership was, however, to be

Hong Kong LJ 569, 571 ("[The] concept of possession exists before … society and is therefore independent of, and prior to, the law."). A reference to 'land' in a statute may refer to the physical thing that is land or the legal concept of an interest in land, or possibly both. See Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95, [14]; cf Acts Interpretation Act 1954 (Q), s 36, sch 1, where, for an Act, possession of land includes the receipt of income from the land.


878 D Miles, The Tale of the Axe: How the Neolithic Revolution Transformed Britain (Thames & Hudson, 2016), 121 ("About 6000 BC incoming farmers discovered the extensive plain today known as the Tavoliere, in northern Apulia [in southeast Italy]. The landscape was forested but crossed by rivers flowing from the Apennines to the Adriatic Sea. The soils in areas cleared of trees were fertile, light and free-draining, ideal for early farmers equipped with hoes, or possibly simple scratch ploughs (ards). The farmers obviously had an eye for soil (or felt it in their hands). They located 90% of their settlements on what are, today, called 'crosta' soils, with a subsoil of calcium carbonate.").

879 See S Panesar, "Theories of Private Property in Modern Property Law" (2000) 15 Denning LJ 113.

880 Cf generally P Babie, "How Property Law Shapes our Landscapes" (2012) 38 Monash University Law Review 1.

881 G Alexander & E Penalver, An Introduction to Property Theory (OUP, 2012), 53 ("Although their theories differ in a number of respects, Nozick and Epstein both do away with Locke's theistic, natural law framework with its affirmative obligations of self-preservation and assistance to others. Instead, they favor a strictly negative community in which people merely owe one another duties of noninterference. Thus, they dramatically modify Locke's starting point of God's grant of the world to everyone in common, with its overlapping common rights, supplanting it with a world in which all resources are originally unowned."). The natural law theorists adopted a position that, by the right of nature, man could possess "differing proportions and kinds of private property: some in lands and possessions, some in the labour of their bodies only" (P Corcoran, APSA 2007: Australasian Political


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protected by the state.882 John Locke, Secretary of the Lords Proprietors of Carolina – one of

the more prominent of such theorists and perhaps the single most important property theorist

in the English-speaking world883 –, declared in his Second Treatise of Civil Government of 1690

that every man had property in his own person884 and when he mixed his labour with land, he

made the land his. Despite the apparent simplicity and robustness of this theory, it does not

have much relevance to a developed society with regimented systems for the granting and

registration of ownership of land. That is, it is not a necessary justification for ownership. In

modern terms, acquiring land is the subject of rules that have little or nothing to do with

improving land. Nevertheless, the improvement of land has been, for instance, a condition of

converting various selections granted under Crown lands legislation in Australia to freehold

land.885 And, importantly, as explained, it was the capacity of land to be improved or cultivated

that, even in English theory, rendered it susceptible to ownership or capable of being

appropriated.886 For the moment,

Lockean justification of private property in terms of labour-embodied ceases to apply in a developed society, where the raison d'etre of private property seems to be simply its own existence and the proper sympathy that it thereby attracts. In a developed society, the justification for private property is to be found in social convention and group experience, not in utility, natural rights or labour-embodied: nowadays the spectator sympathises with private property because of the aesthetically satisfying propriety of habitual associations ('when a man has a right to one thing in consequence of another, as of a horse's shoes along with the horse'), because of long-standing and uninterrupted possession, because of the sanctity of inheritances, or because of the justice implicit in the fair exchange of assets. In short, in a developed society property rights are legitimated ex post. The idea is that the masses sympathise with men of wealth and admire the suitability of great property as the means to attain great happiness. The ownership of property generates sympathy, posterior to the acquisition but still its justification; and where this sympathy is insufficient (as it very often appears to be), the state undertakes to defend property-owners, not because of their natural rights but simply because of their vested interests.887

In contrast, although writing in relation to the Romans' formulation of ownership, Birks noted:

It is the same with the jurists in relation to the concept of ownership. They write a great deal about the modes in which it may be acquired and transferred and lost, also about wrongs to

Studies Association Annual Conference, 24th-26th September 2007, Monash University: www1-www21).

882 Cf P Babie, "Three tales of property, or one?" (2016) 25 Griffith Law Review 600.

883 G Alexander & E Penalver, An Introduction to Property Theory (OUP, 2012), 35.

884 G Sreenivasan, The Limits of Lockean Rights in Property (OUP, 1995), 60-61.

885 See Crown Lands Act 1884 (Q), ss 57, 73. See also today the Land Rent Scheme in the Australian Capital Territory where a person may buy a single-dwelling residential parcel of land (as a form of Crown lease) and only be required to finance the cost of constructing a dwelling on the land.


887 D Reisman, Adam Smith's Sociological Economics (Croom Helm, 1976), 198-199; cf S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), ch 5 ("[Locke's] way of thinking about property never disappeared, but it grew weaker over the course of the nineteenth and early twentieth centuries. Property gradually came to seem less like a natural right pre-existing the law and more like a right created by the law.").


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and by owners. Indeed, either directly or indirectly, the law is overwhelmingly about the institution of private property.

But there is no attempt expressly to articulate a concept of ownership. In particular, there is no attempt to explain and justify the phenomenon of ownership, as for instance there is in Grotius, Pufendorf, and Locke; no attempt to experiment in drawing new lines between private owners and the state, as in modern socialist writers; and no attempt to define, or delineate the essential characteristics of, ownership, as in modern analytical jurisprudence. On the contrary, ownership is taken for granted, continually in issue but undefined and unexamined. The contrast with modern times should not be too much exaggerated. The same paradox obtains in most modern legal minds: the law is still preponderantly about property, but the abstract problems are hived off into 'jurisprudence', where the dialogues of legal philosophers is less with their fellow lawyers than with political scientists and philosophers.888

It was nearly eighty years after Locke that the Scottish economist and philosopher Adam Smith,

a fierce anti-mercantilist, had written that "property and civil government very much depend on

one another. The preservation of property and the inequality of possession first formed it, and

the state of property must always vary with the form of government. The citizens begin with

considering government and then treat of property and other rights".889 Simply, private

property was an institution and government had an obligation to create new property in the

interests of economic wealth.890 To Smith, the legislature was the central figure in law; the

judge took the figure of the impartial spectator.891 And the acquisition of private property as a

wealth maximising endeavour would evoke a general sympathy within society. But, importantly,

Smith, while not propounding a theory of property, believed that the preservation of property

was in the public interest – a mode of subsistence for society – as free trade among owners of

property would maximise wealth for the benefit of society as a whole. Smith, who thought that

societal development proceeded through four natural stages marked by society's mode of

888 P Birks, "The Roman Law Concept of Dominium and the Idea of Absolute Ownership" (1985) 2 Acta Juridica 1, 2-3.

889 An Inquiry into the Nature and Causes of the Wealth of Nations (1776).

890 Interestingly, as A Linklater, Owning The Earth (Bloomsbury, 2013), 177-178, records, by the eighteenth century in England, "property had become a source of political power, or capital, and, for some, of aesthetic enjoyment … [M]ost farms were huge … and their tenants unmistakably wealthy. Frequently, the largest estates consisted of little more than a small 'home farm' surrounded by larger tenancies whose rents kept the owner's family in comfort … By 1800 more than 85 per cent of agricultural land in Britain was farmed by tenants. The social chasms that divided the three classes, landlords, tenants, and laborers, would persist with little alteration in rural Britain into the second half of the twentieth century. What this picture concealed, however, was the political and economic crisis that eighteenth-century landowners had created. By removing most of their land from the marketplace, they had attempted to insulate the source of their power with its attendant privileges against outside threat … [I]t was out of Britain's highly capitalized, stalled land market that the Industrial Revolution emerged."

891 I Tassopoulos, "Adam Smith's bipolar approach to law" F Forman (ed) The Adam Smith Review Vol 9 (Routledge, 2017), 114 ("The influence of the impartial spectator on law passes through legal reasoning, and comes from two directions: the general principles of natural justice and the ideal of justice.").


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subsistence – hunting, pastoral, agricultural, and commercial892 – thus recognised an acute

public dimension to property. And so too did in reality Smith's contemporary, Blackstone.

Writing in his Commentaries on the Laws of England, Blackstone said that privately owned

property was one of three absolute natural rights "which every man is entitled to enjoy, whether

out of society or in it".893 According to Blackstone, "[t]here is nothing which so generally strikes

the imagination, and engages the affections of mankind, as the right of property". The natural

right of personal property was, in essence, indivisible from the natural rights of personal

security and personal liberty:894 collectively, they, and the common law were at one in justifying

the "sole and despotic dominion which one man claims and exercises over external things of the

world, in total exclusion of the right of any other individual in the universe".895 Blackstone,

thus, in a kind of post-intuitive rationalisation of individualism – to acquire property is the

expression of personal preference –, blended law and liberty. The "regard … the law [had] for

private property" was above the "general good of the whole community" and, as such, was

beyond interference by government.896 But, it is apparent Blackstone, although recognising the

absolutism of a right of private property (or ownership) – a somewhat abstract idea in itself897 –,

did not intend for property to simply function or be protected in some absolutist way whereby

an owner was free to ignore that which was around him or her.898 Private property did not, even

if not somehow held on trust for the community, necessarily give its holder power over

others:899 it did not transcend the common good. Nevertheless, Blackstone, like Smith,900

892 J Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton University Press, 2005), 27-28, 29-30, 32 ("[Adam] Smith argues that certain steps of societal development and certain institutions develop naturally, unless the harshness of the climate or other inconveniences of their surroundings prevent a people from developing beyond a certain stage. Societies, he argues, progress more or less quickly as a result of many environmental and material factors beyond obvious qualities of climate: the defensibility of their land, or access to effective means of transport to distant markets, especially navigable rivers …").

893 As to the effect of Blackstone on American legal thought see, S Macias, "Legal Thought from Blackstone to Kent and Story" in S Hadden and A Brophy (ed), A Companion to American Legal History (Wiley, 2013), ch 25.

894 Bl Comm vol I, Bk I, ch 1, 120 ("[The] right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation"; the "personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law"; and the right of property "consists of the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.").

895 A Linklater, Owning the Earth (Bloomsbury, 2013), 83.

896 In any event, "the public good is nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law".

897 See also generally Maloney v The Queen (2013) 252 CLR 168, [74]-[76] (Hayne J); fn 1015.

898 P Babie, "Sovereignty as Governance: An Organising Theme for Australian Property Law" (2013) 36 UNSWLJ 1075, 1075-1076 ("Blackstone's work in Of the Rights of Things displays the wonderful complexity of property as being both individual rights and obligations to the wider community.").

899 See P Babie, "Sovereignty as Governance: An Organising Theme for Australian Property Law" (2013) 36 UNSWLJ 1075, 1076-1080 where he considers M Cohen, "Property and Sovereignty" (1927) 13


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rejected the social contract theories of Grotius and Pufendorf, preferring an occupation theory of

property: a possession could, as a clear statement to the world that one intends to appropriate

the thing,901 transform itself into ownership. Blackstone (and Smith), in favouring historical

context and human experience, clearly shunned the metaphysical.902 But, while Blackstone's

great strength was his eloquence, natural law in particular was problematic for him (although,

as Jeremy Bentham charged, he was "natural-law-like"903) and it has been said he failed to

distinguish "between an historical explanation and a moral justification" for English law.904

Unlike Locke, whose consent theory believed that individuals entered organised society so as to

protect their rights to life, liberty, and property, and therefore, no government had the right to

deprive individuals of these rights,905 Blackstone thought, with "no direct, programmatic

guidance",906 that the legislature was the sovereign body of a nation and could, if explicit in its

permission, authorise the taking of private property by the state.907 Blackstone thus excoriated

the expropriation of private property by government except under authority of parliament: "[a]ll

that the legislature does [in compelling the individual to acquiesce to a taking] is to oblige the

Cornell Law Quarterly 8 ("In a seminal, but today largely overlooked, article written in 1927, Morris Cohen … [made] the simple, but entirely accurate claim that the conferral of power engendered in property is, in fact, nothing less than a state grant of sovereignty to the individual said to hold property.").

900 R Campbell & A Skinner, Adam Smith (Routledge, 1982), 113.

901 C Rose, "The Law is Nine-Tenths of Possession: An Adage Turned on Its Head" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 2, 77; C Rose, "Possession as the Origin of Property" (1985) 52 U Chi L Rev 73.

902 Cf F Vaki, "Adam Smith and Immanuel Kant as critics of empire: International trade companies and global commerce versus jus commercii" in F Forman (ed) The Adam Smith Review Vol 9 (Routledge, 2017), 13. Nevertheless, at 14-15, Kant believed that property was the condition of use of land whereas John Locke thought labour and use were conditions of (acquiring) property.

903 Blackstone believed in a natural liberty.

904 D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (CUP, 1989), 49; S Macias, "Legal Thought from Blackstone to Kent and Story" in S Hadden and A Brophy (ed), A Companion to American Legal History (Wiley, 2013), ch 25, 486-487 ("Blackstone's goal … to apply Roman methods of organization and analysis to the English common law … proved problematic for Blackstone because the principal source of Roman law was natural law, while the sources of common law were highly varied and relied much more on judges and precedent than did the Roman law. Because Blackstone attempted to put the common law into an institutional structure that employed a fundamentally different sort of analytical construct, legal writers … [like] Blackstone faced problems, specifically with the roles of history, sovereignty, and the common law forms of action, which natural law did not address.").

905 Locke thought the individuals could withdraw their obligation to obey the government if the government did not protect natural rights.

906 D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (CUP, 1989), 55.

907 B Siegan, Property Rights: From Magna Carta to the Fourteenth Amendment (Transaction Publishers, 2001), 101, notes that James Wilson (one of the Founding Fathers of the United States) thought the courts could invalidate a legislative act that abridged natural rights.


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owner to alienate his possessions for a reasonable price".908 Ownership was natural to man and

ownership was absolute: when the government expropriated private property from an

individual, it did not extinguish ownership of 'his possession'; rather, the government acquired

for itself ownership of (that is, the private property or right of property in) the possession.

For English law, and by default, Australian law, much is said to be owed to Blackstone's quasi-

occupancy theory909 – one grounded in human experience rather than especially enlightened

thought – as justifying a right of private property in land. As explained in chap 3, possession

was, even if it was wrongful, evidence of a claim to enjoyment of an estate; the person entitled in

law to the estate was the person with a better claim to the estate's possession. The notion of

relativity of title, firmly recognised in Asher v Whitlock,910 "generate[d its own] sympathy,

posterior to the acquisition [usually found in actual possession, including of a predecessor] but

still its justification". And so too does 'title by registration', the cornerstone of the Torrens

system of title (see below). But, as already noted, neither system of title comprehensively

explains what it is to possess (or own) land. Hence, reference still is made to what it was that

Blackstone actually was justifying as the "sole and despotic dominion".

When compared with other private property theories (especially of the natural or metaphysical

theorists911), Blackstone's theory does lack a certain vigour.912 As Birks, above, warns, an

absence of an articulated justification for ownership can, at least partly, expose it (or possession)

to reshaping in law in the hands of courts and even legislators in the methods referred to in para

4.2.913 Reshaping may be especially likely to occur if ownership, as expressed through its

functional enjoyment – possession – is taken, by the purpose of such application (which will be

to give effect to the interests and values of a possessor), to come into conflict with, or have

908 Bl Comm, vol I, Bk I, ch 1, 135. "The laws of England are … extremely watchful in ascertaining and protecting this right [of property]. Upon this principle the great charter [the Magna Carta] has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land". Cf JT International SA v Commonwealth of Australia (2012) 250 CLR 1.

909 Blackstone's theory is described as quasi-occupancy as it partly incorporated a natural rights theory.

910 (1865) LR 1 QB 1.

911 For example, Immanuel Kant and Georg W F Hegel.

912 Property theories are, however, mostly analytical tools.

913 See, for example, Crown Land Management Act 2016 (NSW), s 5.17 ("A disposition of Crown land by the Minister on behalf of the Crown, expressed to be a lease, is a lease even if exclusive possession of the land is not conferred on any person"); s 5.22 ("A disposition of Crown land by the Minister on behalf of the Crown, expressed to be a licence, is a licence even if exclusive possession of the land is conferred on a person."); S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 95-96 ("Joseph Story [a justice of the Supreme Court of the United States] noted that even if property originated in occupation and use, that principle served to explain very little about the legal systems of countries like the United States, which protected property rights even in assets the owner was not currently occupying or using. 'The truth is (though it is a truth rarely brought into discussion among civilized nations), that exclusive sovereignty and ownership of the soil, is a derivative right, resting upon municipal regulations'.").


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tension with, other interests or values, including of non-owners (and which may change over

time).914 In this regard, Kevin and Susan Gray have said:915

… [I]t is likely that the 'arbitrary exclusion rule', [a formalist rule that may be applied by a person in possession] as applied indiscriminately to land ownership in English law, can be sustained only at the cost of intolerable damage to a range of more highly rated human interests and values. Foremost among these threatened concerns are important freedoms of association, assembly and movement. Inextricably linked with such freedoms is freedom of expression, which in its wider connotations embraces not only verbal activity but also many of the symbolic or nonverbal communications which are intrinsic to perceptions of individuality, personhood and self-worth.

While an owner of land obviously is subject to numerous legal imposts and obligations916 which

are justified according to some public value or interest,917 from a possessive (mine-yours)

perspective, we might accept and "primarily understand property … as an anti-redistributive

principle, opposed to governmental interventions into the extant regime of holdings for the sake

of distributive ends".918 But, as has recently been pointed out, Blackstone's description of

private property that it represented the "sole and despotic dominion" of humans was not even

accurate in his time and nor did Blackstone even suggest that private property could not be the

subject of state regulation.919 And as has also been observed when referring to state

environmental regulation:920

914 A Frändberg, "An Essay on Legal Concept Formation" in J Hage and D von der Pfordten (eds), Concepts in Law (Springer, 2009), 1, 15 ("[I]n recent decades … legal philosophy has almost totally been swallowed up by moral philosophy."); cf M Dixon, "A doctrinal approach to property law scholarship: Who cares and why?" (2014) 3 Prop L Rev 160.

915 K Gray & S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46, 65.

916 See Gumana v Northern Territory of Australia (2005) 141 FCR 457, [70], [71]; for example, under planning laws (see Planning Act 2016 (Q)). See also Vegetation Management Act 1999 (Q); Environmental Protection Act 1994 (Q).

917 F Michelman, "Possession vs Distribution in the Constitutional Idea of Property" (1987) 72 Iowa L Rev 1319, 1319-1320.

918 F Michelman, "Possession vs Distribution in the Constitutional Idea of Property" (1987) 72 Iowa L Rev 1319, 1319. The words "in a constitutional sense" have been omitted here as the quote is commentary on the idea of property from a United States perspective. Nevertheless, when property is seen as a 'fundamental right' it takes on a constitutional-like anti-redistributive character. Accordingly, the point here is being made that ownership, and private property generally, tend to sit at a level where it is thought their effects are a given, even if that should result in some unfairness. See also T Merrill & H Smith, "The Morality of Property" (2007) 48 Wm & Mary L Rev 1849; S Pascoe, "Social obligation norm and the erosion of land ownership?" (2012) 6 The Conveyancer and Property Lawyer 484; cf P Babie, "Three tales of property, or one? (2016) 25 Griffith Law Review 600.

919 P Babie, "Sovereignty as Governance: An Organising Theme for Australian Property Law" (2013) 36 UNSWLJ 1075, 1075 ("Recent scholarship gives the lie to those who would use Blackstone's words to present property as nothing more than the rights enjoyed by the individual, as, indeed, simply individualist and absolutist."). Evidently, Adam Smith also was not against State regulation if that was necessary to benefit the public.

920 J Byrne, "Property and Environment: Thoughts on an Evolving Relationship" (2005) 28 Harvard Journal of Law and Public Policy 679, 683.


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[They] appear to be a part of the property system, rather than external to it. They give form to rights and duties in resources to all sorts of persons. They broaden the idea of ownership by protecting people who do not own property in the traditional sense, but also narrow it by making more private decisions subject to public control. Insisting on the traditional jurisprudential distinction between private and public law leads to a serious misunderstanding of contemporary law, where various sources and forms of law overlap and intertwine.921

That is, ownership and its applications may be thought capable of being regulated in such a way

that the ownership concept is reshaped in the interests or values of non-owners: an I-Others

relational approach. State regulation – which may take many forms922 – may in some instances

from a public interest or community view of property923 inure in the ownership

conceptualisation process itself – that process being one that assesses how priority to and

exclusivity of thinghood functions in society924 – rather than merely as super-added limitations

on an owner's mere personal liberty of enjoyment of ownership.925

As well, as has been noted by others, an especially modernist debate exists in the exploration of

moral values that inform property and it divides itself between exclusion and economic theorists

on the one hand, and progressive theorists926 on the other.927 The former are formalists or

conceptualists and favour a rule-based approach.928 As an extension of the common law's policy

that all things must be owned, they "prioritise simplicity and predictability in property law"

according to an "architecture of boundaries that economizes on information costs by delegating

921 See also Australian Panel of Experts on Environmental Law, Democracy and the Environment (Technical Paper 8, 2017).

922 The State may regulate the acquiring of ownership itself, including by some persons (for example, foreigners); it may limit the form of ownership itself and regulate dealings in that ownership (for example, by requiring governmental approval for the transfer of an interest in land); it may impose taxes on the acquisition of (for example, forms of (stamp) duty) or holding of land (for example, land tax) and may tax those owners who leave their land vacant (for example, by a vacancy tax). Planning laws regulate the development and use of land and can indirectly have the effect of making certain land available only to certain people (for example, because of its affected value or the limitation on its development). Also, the state can ensure that certain land is not available for private ownership and is allocated for public or community purposes (for example, as reserves for park and other community purposes under the Land Act 1994 or for protected areas under the Nature Conservation Act 1992 (Q).



925 See Sydney City Council v The Valuer-General (1956) 1 LGRA 229, 233.

926 See G Alexander, E Penalver, J Singer & L Underkuffer, "A Statement of Progressive Property" (2009) 94 Cornell L Rev 959; G Alexander & E Penalver, An Introduction to Property Theory (OUP, 2012), ch 5 (Property and Human Flourishing).

927 R Walsh, "Property, Human Flourishing and St Thomas Aquinas: Assessing a Contemporary Revival" (2018) 31 Canadian Journal of Law & Jurisprudence 197, 197.

928 See S Evans, "Property, Proprietary Remedies and Insolvency: Conceptualism or Candour?" (2000) 5 Deakin Law Review 31, 45.


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most decision making about the exercise of … [the right to exclude] to owners";929 thus, they

"champion exclusion as an effective means of ensuring that property law has a strong signalling

function with a moral basis" by favouring efficiency through "simple rules".930 To the formalist,

ownership's exclusivity of the land, once acquired, means that an owner's costs of decision-

making do not, unlike the non-owner's, include costs of acquiring title to enable the outcomes of

decisions about use and exploitation of the land to be realised as the owner sees fit. Accordingly,

if the freedom to make decisions is taken out of the owner's hands, the costs of his or her owning

may, in some instances, increase.931 Indeed, for the formalist, ownership and possession derive

a stability in law partly because people understand the normative application of those

counterparts without necessarily appreciating their legal connotations.932 This is not to suggest

929 G Alexander & E Penalver, An Introduction to Property Theory (OUP, 2012), 136; J Martinez, "Bikinis and Efficient Trespass Law" (2013) 1 Utah L Rev OnLaw 1, 4 ("[A] right to use approach [to trespass law] … requires consideration of the landowner’s actual use of the land and the intruder’s impact on the beneficial uses involved. The inquiry turns into a balancing approach with all its indeterminacy and added transaction costs."); H Smith, "Property and Property Rules" (2004) 79 NYUL Rev 1719, 1753; T Merrill & S Smith, "Whatever Happened to Property in Law and Economics (2001) 111 Yale LJ 357, 389 ("The right to exclude allows the owner to control, plan, and invest, and permits this to happen with minimum information costs to others. People generally do not need to consult lists of use-conflict resolutions (or right-duty pairs) when they approach a piece of property they do not own. Instead, they know that, unless special regulations or private contracts carve out some specific use rights, the bright-line rules of trespass apply."). See also Hunter v Canary Wharf Ltd [1997] AC 655, 710-711, where Lord Hoffmann rejected an exception to the general common law rule that an owner can do as he or she pleases on his or her land for tall buildings that interfere with others' television reception as developers of such buildings would be faced with an indeterminate number of plaintiffs (in an action for nuisance) and defending such actions would hardly be cost-effective.

930 R Walsh, "Property, Human Flourishing and St Thomas Aquinas: Assessing a Contemporary Revival" (2018) 31 Canadian Journal of Law & Jurisprudence 197, 197-198, citing J Baron, "The Contested Commitments of Property" (2010) 61 Hastings LJ 917, and referring to T Merrill & H Smith, "What Happened to Property in Law and Economics?" (2001) 111 Yale LJ 357; H Smith, "Exclusion and Property Rules in the Law of Nuisance" (2004) 90 Va L Rev 965.

931 See, for example, Ward, [307] ("The grant of exclusive possession for mining purposes is directed at preventing others from carrying out mining and related activities on the relevant land. Although the lessee could prevent anyone else seeking the use the land for mining purposes, it does not follow that all others were necessarily excluded from all parts of the lease area … The holder of a mining lease … [has] a right to exclude for … specific purposes …").

932 For an American perspective see, S Banner, American Property: A History of How, Why, and What We Own (Harvard University Press, 2011), 95 ("The earliest American skeptics of property's naturalness pointed out that whether or not property was a natural right in the abstract, the specific kind of property that might exist in a state of nature looked very different from the property enjoyed in a society like that of the United States. Under natural law, Thomas Jefferson argued, land "is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it". Permanent rights require organization, so "stable ownership is the gift of social law, and is given late in the progress of society". As another lawyer put it, a bit more pithily, in the 1830s, property "as it respects the temporary use of the soil, is the law of nature; and, as it respects the right to permanent exclusive property in the substance of the soil, is the law of the land"); cf C Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms (CUP, 2006), 1, 2 ("Despite the ubiquitous reference to the concept of social norms in the social sciences, there is no consensus about the power of social norms to direct human action … 'Norm' is a term used to refer to a variety of behaviors, and accompanying expectations. These should not be lumped together, on pain of missing some important features that are of great help in understanding phenomena such as variance in norm compliance.").


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that members of society can put conditions on their participation in society through an idea of

ante-legal ownership and possession: that is, they do not (and simply, cannot) agree to own or

possess according to their own perceptions of 'ownership in possession' as ownership is

ultimately derived from the state, even if, as suggested, we can say it has a general conceptual

scheme counterpart.933 Where social practice and the law do conflict, the law will prevail934 as

members of society find their legal freedoms within society, not in spite of it.935

On the other hand, progressivists "are more comfortable with complex contextual decision-

making by courts and administrators in respect of property", and are "generally more willing to

reconsider rules in order to ensure fairness and coherence with progressive values, and they

resist the idea that property rules can be applied without attending to their consequences".936

According to Evans, "[p]roperty law has been radically transformed" in the last 100 years or

so.937 He reasons that there has been a "degree of fragmentation of the concept of 'property'" as

property's social construct has responded to and adapted to changes in society, including "the

recognition of universal human rights and … changing commercial needs and social

relationships".938 He contends that, in its common analysis as a bundle of discrete and

933 See R Palmer, "The Origins of Property in England" (1985) 3 Law & Hist Rev 1, 7.

934 J Humbach, "Property as Prophesy: Legal Realism and the Indeterminacy of Ownership" (2017) 49 Case Western Reserve Journal of International Law 211, 212. But, the point here is not that social practice and law are at odds with one another and that ownership and possession in law are the antithesis of any social understanding of those concepts; rather, if the law recognises something as ownership or possession, then, a conflicting social practice that recognises something different as ownership or possession will not prevail in a legal setting. However, conflict will often not arise if the law simply is giving effect to social practice, directly or indirectly.

935 That is, a freedom within society is only a legal freedom. Nevertheless, we sometimes instinctively (or perhaps conveniently) leave open the question of where the divide between owning (or having control over) a thing and not owning it exists in a perceptual or behavioural sense because, at the time we consider it, there is no law that says we cannot do something nor is there a current contest between an owner and someone else as to whether a particular action in relation to the thing is lawful or possible. That is, we may, as owners, simply perceive or behave as though we are freely able to do something and, in doing so, internalise that (by undertaking the action or just consciously or subconsciously adopting it) as a freedom of ownership. But, when called on to decide a dispute, a court may decide the scope of a freedom of owning, declare that it does not exist, or award a remedy for its interference. Thus, the ownership's conceptual representation of authority of land and its application in society – the lawfulness of enjoyment – is implicitly regulated by the limitations of other elements within the law's response to the recognition and protection of the enjoyment of land. This gives the response its coherent unity.

936 R Walsh, "Property, Human Flourishing and St Thomas Aquinas: Assessing a Contemporary Revival" (2018) 31 Canadian Journal of Law & Jurisprudence 197, 198.




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potentially shifting rights, property "can only be defined in open-textured terms and that its

margins are contested".939

It is not an aim of this research to consider whether property may coherently resolve questions

about how respective claims of possessors and non-possessors to the enjoyment of land ought to

be resolved; it is to recognise that possession as an abstract relational concept of ownership may

be being fragmented to respond to changing needs and relationships, and in different, albeit

especially abstract, ways. However, without recognising possession's characteristic of thinghood

– an aspect of its contingency –,940 the objective or argument of the law as to what it intends for

the enjoyment of land may have been shifting. The lawfulness, then, of the enjoyment of land

may, in particular contextual adjudicative contexts, be addressing a perceived underlying

distributive problem of possession that a formalist view of property may be thought to ignore.941

Justifications formed by representations: the contexts that form the basis for exclusivity as justice in itself and for adjudicative reshaping

To the real property lawyer, ownership of land can represent an idea of control or Blackstone's

dominion;942 he or she understands that title to ownership must give an owner a right of

possession of an ownership estate (whether in freehold or as a lease). In turn, the lawyer then, if

pressed, will – in almost rule-like fashion – say that the right of possession is the right to

exclude any and every one for any or no reason (see chap 6943), meaning, of course, that if

someone (without justification) intrudes onto the land the owner, or someone in possession,

may bring an action in trespass against the intruder. Necessarily that also precludes the

existence of another interest in the land, except as a derivative interest. There is, then, often less

939 S Evans, "Property, Proprietary Remedies and Insolvency: Conceptualism or Candour?" (2000) 5 Deakin Law Review 31, 31-32. Evans cites Birks command that the legal concept of property ought never be deconstructed. Nevertheless, in the particular context of a contest between a claimant and an insolvent defendant Evans, adopts the position that "[a]nalysing the concept of 'property' and the types of proprietary interests that have previously been recognised cannot resolve questions about whether the claimant's claim ought to prevail over the claims of others, notably the defendant's general creditors." Specifically he says that property "can function as a lump-concept that distracts attention from substantive questions and distorts the process of resolving contested claims." Evans shies away from Birks' view that a claim say, to a proprietary remedy is an exercise in deciding, "whether on given facts a proprietary interest has arisen, and if so, precisely of what kind". Simply, Birks believed that lawyers were not competent to address any underlying distributive justice question as to determine the 'rightful' claimant.

940 As an orthodox concept, possession does not exist without 'thinghood'.

941 This is occurring primarily in two distinct, but related, ways. These two different ways converge but have different groundings. One, the remedial element of ownership is used to create a new right of protection of freedom of enjoying land where that enjoyment is not found in an ownership claim. This arises in the context of a relativity claim against someone who has an adjudged inferior claim to the land. And, two, a right of protection exists to protect a freedom of limited use only of land so as to legitimise other claims to enjoyment of the land. This is found in an idea of disposable surplus need when considered relative to the other claims.


943 In particular, chap 6, para 6.2.


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of a concern to the lawyer of when or why a right of exclusion ought or ought not be exercised.

It does not need to be accepted; it just exists as a form of justice (or justification). In this way,

the right of possession has a conceptual or formalist simplicity to its operation; it is efficient and

certain as its outcome can be anticipated.944 Moreover, the completeness of title in the register

is in the public interest and, therefore, its own form of justice.

Yet, at one time, an idea of improving land was fervently adopted and adapted by some statutory

land regimes in Australia as a means of encouraging the private settlement and development of

land by lessees in the public interest.945 The apparent trade-off for improving the land may have

been the exclusivity of a fee simple estate – a 'higher' form of ownership –, thus denying forever

anyone else an interest or claim in the land.946 Accordingly, priority to and exclusivity as

ownership can exist as an important symbol within society. But, it can also be interpreted as

having negative connotations of exclusion and perhaps even oppression.947 Certainly, a pure

exclusivity idea of ownership which has the effect of persistently denying more efficient uses of

land in the public interest948 or perhaps on occasions, of denying the freedom of others to fully

944 According to Richard Posner, Overcoming Law (Harvard University Press, 1995), 90, "[l]egal training and experience equip lawyers with essentially casuistic tools and a feel for legal doctrines, but not with the tools that they need in order to understand the social consequences of law".

945 See, for example, the 'Robertson Land Acts' of New South Wales (the Crown Lands Alienation Act 1861 (NSW) and Crown Lands Occupation Act 1861 (NSW) which introduced 'free selection by survey' by which selectors were required to live on their selected lands for 3 years and to make improvements. Much Crown (or State) lands legislation in Australia was (for non-urban and pastoral areas) about the controlled development and settlement of land. The Robertson Land Acts were not peculiar: applicants often could 'select' land on fairly favourable terms and be required to reside on it and improve it within a stated period (thus discouraging speculation in freehold). If the land was improved, the selection could be converted to a more permanent form of estate (either a more secure form of lease or a fee simple estate). See, for example, Crown Lands Act 1884 (Q), ss 57, 58; Land Act 1910 (Q), ss 96, 97; Land Act 1962 (Q), s 125. See also The City of Rockingham v Port Kennedy Resorts Pty Ltd [1999] WASC 300, [13] ("[I]t is a proper presumption that all Crown leases (and, I would interpose, other uses of Crown land) under which land is held for private purposes must have a level of public purpose in them, in that the Crown must be assumed to be making the land available in the general public interest ..."); and Council of the City of Sydney v Garbett Pty Ltd (1993) 80 LGERA 289; Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64; Swan Yacht Club Inc v Town of East Fremantle [2005] WASCA 99; and generally Duncan v Independent Commission Against Corruption [2016] NSWCA 143.

946 Including native title holders.

947 See generally B Depoorter, "Fair Trespass" (2011) 111 Columbia LR 1090.

948 See, generally, Nicholas Strauss QC, sitting as a Deputy High Court Judge, in Beaulane Properties Ltd v Palmer [2005] EWCA 817, [187] ("Where land has been abandoned, it is in the public interest that it should be acquired by someone else who wants it and who will use it. However, it is certainly not in the public interest to expropriate an owner who wishes to hold the land and use it in the future, eg when he can get suitable planning permission, except by a proper process of compulsory acquisition for fair compensation."); cf JA Pye. See further, R Posner, "Savigny, Holmes, and the Law and Economics of Possession" (2000) 86 Virginia Law Review 535. Cf Kelo v City of New London 545 US 469, 503 (2005) (O'Connor J, in dissent), a takings case under the Fifth Amendment to the United States Constitution ("Who among us can say she already makes the most productive or attractive use of her property? … The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or


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participate in society (for example, by peacefully demonstrating on quasi-public land), may no

longer be defensible.949 This is a reflection of how our perceptions and, therefore,

representations of ownership (in possession) can change. But, perhaps more simply, it can help

explain that our understandings of ownership and possession in law are linked to historical non-

legal developments that operated as their own forms of justifications for ideas of having parcels

of land exclusively and in priority to others. That is, there was some form of general conceptual

scheme of 'ownership' and 'possession' functioning in society generally, even if, as is certainly

the case today, those concepts needed, because of their legal entry rules and consequences, to

ultimately have legal counterparts. This point can be observed in developments in England

during the Middle Ages and beyond.

In the subsistence economy of England of the Middle Ages and the immediately succeeding

centuries, one needed to own or work land to survive. Food production was security.950 The

peasants who worked the land were not limited to farmers who sold their produce at the village

or town markets; the craftsman and ordinary worker needed to farm land for his and his family's

sustenance and would sell any excess of his produce.951 New farming techniques of the mid to

late Middle Ages952 meant that a peasant came to live on and work a fixed space of land: "[h]is

connection with a particular plot of ground becomes more rooted, and thus we see a mere

natural possession in [the] process of crystallizing into permanent ownership."953 The wealthier

landowners (among the free) could sustain themselves from the rents of those working the

land.954 But, following the Black Death of the fourteenth century and the resultant decline in the

manors and the effective end of feudalism,955 the peasants emerged as a powerful labour class

any farm with a factory."). Cf Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232; R & R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603.

949 K Gray & S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46.

950 D Miles, The Tale of the Axe: How the Neolithic Revolution Transformed Britain (Thames & Hudson, 2016), 383 ("Empires from Mesopotamia to Rome and Nazi Germany have been built on the drive to acquire land and its produce. Because of this quest, the agricultural revolution has rarely stopped.").

951 Usually, these workers were tenants who could not afford to purchase the land in fee simple; he relied on continuing possession: P Rainey, M Walsh, P Harrison and D Dovar, Megarry's Manual of the Law of Real Property (Sweet & Maxwell, 9th ed), 1-047.

952 A two- or three-field system of cultivation or crop-rotation of the late thirteenth and early fourteenth centuries eventually removed the need for the individual to roam the countryside of the manor to search for good agricultural land. See J Lurye, 'The Evolution and Philosophy of Property' (1946-1947) Res Judicatae 181.

953 J Lurye, "The Evolution and Philosophy of Property" (1946-1947) 3 Res Judicatae 181, 181.

954 P Rainey, M Walsh, P Harrison and D Dovar, Megarry's Manual of the Law of Real Property (Sweet & Maxwell, 9th ed), 1-046; A Watson, The Evolution of Western Private Law (The John Hopkins University Press, 2001), 243 ("[L]and was the basis of wealth in the Middle Ages.").

955 J Lurye, 'The Evolution and Philosophy of Property' (1946-1947) Res Judicatae 181, 182 ("The period of feudalism, even in its imperfect form, comes to an end with the break-up of the manor."); D


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within what was still essentially a subsistence economy and were not simply beholden to

wealthier landowners.956 They had become individual agents. At least before the Industrial

Revolution of the late eighteenth and early nineteenth centuries – the peak of England's

economic development957 and which accompanied significant changes in agriculture958 –, the

accumulation of more land could not only benefit a landowner's social standing; it continued to

be a source of significant wealth and profit:959 "[t]his is the era of laissez-faire, of radical

individualism and the prevailing notion is that property is the instrument of personality".960

Indeed, as the economy had moved in the seventeenth and eighteenth centuries from a

subsistence economy to a market economy, larger farms became more profitable and efficient as

they were now rented to many tenants.961 However, the market economy also created an

environment for manufacturers, merchants, and professionals to profitably sell their goods and

services beyond the immediate limits of their own villages or regions. These traders and

capitalist farmers became the new wealthy, but not necessarily by owning land. According to

MacPherson, "[l]abour, land, and capital, as well as products, become subject [during the

seventeenth century] to the determination of the market", creating a type of possessive

individualism which was not formerly apparent in a society marked by custom and status,962

which were closely linked simply to land.963

Thomas, 'Anglo-American Land Law: Diverging Developments From a Shared History, Part I: The Shared History" (1999) 34 Real Property, Probate and Trust Journal 143, 192-193, 197, 198; W Holdsworth, A History of the English Law, (1903), 203 ("[The Black Death] … did much to break up the solidarity of the existing agricultural organization of the manor.'').

956 F Pryor, The Making of the British Landscape (Allen Lane, 2010), 378.

957 J Lurye, 'The Evolution and Philosophy of Property' (1946-1947) 3 Res Judicatae 181, 182.

958 D Miles, The Tale of the Axe: How the Neolithic Revolution Transformed Britain (Thames & Hudson, 2016), 389.

959 P Rainey, M Walsh, P Harrison, and D Dovar, Megarry's Manual of the Law of Real Property (Sweet & Maxwell, 9th ed), 1-005.

960 J Lurye, "The Evolution and Philosophy of Property" (1946-1947) 3 Res Judicatae 181, 182.

961 The effects of the great enclosures of the sixteenth and nineteenth centuries of manorial common lands has been debated. Depriving tenants of their common lands, often for pasture, may have created a landless class of working people who drifted to the cities and became labourers of the industrial revolution. Nevertheless, it seems the enclosures coincided with the decline of the subsistence economy, and the beneficiaries of the enclosures often were tenant-farmers whose holdings became more efficient and valuable.

962 C MacPherson, Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon Press, 1962), 54; cf C Reid, "The Seventeenth-Century Revolution in the English Land Law" (1995) 43 Clev St L Rev 221, 262 who thought that the reality was a "good deal more complicated than MacPherson's simple schema suggests".

963 Nevertheless, as land still represented political power and status it is not surprising that the traders established themselves as a landed gentry by buying up as much land as possible and indeed became significant landlords themselves. Their wealth could outdo that of the aristocratic class. And their landed status and power – which was closely linked to 'family' – was reinforced through inheritance, all because they owned the land. Eventually, however, a combination of events (including the great depression of British agriculture of the late nineteenth century) made it unfeasible for the landed


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Reid describes a somewhat earlier time – during the seventeenth century – as revolutionary in

England's real property law, evidently as a product of the English Civil Wars.964 In Reid's view:

[T]he spirit of the English Revolution [as he preferred to call it] infused the land. The leadership class that emerged victorious in the seventeenth century had found the means to cement its position in society. The principle of free alienability was balanced against dynastic interests. Estates were consolidated and preserved, and the aristocratic ethos reinforced and transmitted forward in time, as fathers passed on to sons the obligations of 'good birth'. This sense of duty and responsibility - owed first to family, then to nation, finally to generations past and those as yet unborn - that animated the English aristocracy for so long, would finally exhaust itself in places like Verdun and Ypres. That it managed to hold center stage for over two centuries is a tribute, at least in part, to the success of the legal institution known as the strict settlement.965

Reid's conclusions are especially instructive for present purposes as they crystallize how certain

events, legal and otherwise, brought us closer to a Blackstonian ownership concept that is

generally understood today or to put it another way, they help explain how we came to our

modern legal understanding of ownership in a way that preserves, at least to some extent, a

"natural-law-like" idea that ownership is founded in having a thing as an expression of one's

individual personality.

1) The Tenures Abolition Act 1660 "represented the triumph of the new order": as well as

its abolition of the court of wards, the Crown was, thereafter "prohibited from creating

new forms of feudal tenure and thereby prevented from imposing new forms of irrational

fees and obligations upon the landed classes". As is the case today, an estate in freehold

may only be held in free and common socage.966 In Reid's view, this placed real property

gentry to continue to own their vast estates. See generally T Fletcher, "The Great Depression of English Agriculture 1873-1896" (1961) 13 The Economic History Review 417; cf the 'Wakefield system', so-named after colonial land settlement promoter, Edward Gibbon Wakefield. Land reform, especially as concerned the rural peasantry, was an extremely important political issue in the late nineteenth century and early twentieth century in Britain. See generally D Waterford, 21st Century Homestead: Urban Agriculture (ISBN: 9781312936515, 2015), 35 ("The slogan for [radical Liberal Jesse] Collings' 1885 land reform campaign Three Acres and a Cow [later adopted by Joseph Chamberlain in his Radical Programme] became the battle cry of land reform and the fight against rural poverty. Three acres and a cow was seen as sufficient for a family to live on, particularly when compared to the rural poverty common at the time"); G Chesterton, What's Wrong With the World (1910), 1.10 ("Under the pressure of certain upper-class philosophies ... the average man has really become bewildered about the goal of his efforts; and his efforts, therefore, grow feebler and feebler. His simple notion of having a home of his own is derided as bourgeois, as sentimental, or as despicably Christian. Under various verbal forms he is recommended to go on to the streets – which is called Individualism; or to the work-house – which is called Collectivism ... But it may be said here that ... the governing class generally will never fail for lack of some modern phrase to cover their ancient predominance. The great lords will refuse the English peasant his three acres and a cow on advanced grounds, if they cannot refuse it longer on reactionary grounds. They will deny him the three acres on grounds of State Ownership. They will forbid him the cow on grounds of humanitarianism.").

964 C Reid, "The Seventeenth-Century Revolution in the English Land Law" (1995) 43 Clev St L Rev 221.

965 C Reid, "The Seventeenth-Century Revolution in the English Land Law" (1995) 43 Clev St L Rev 221, 280-281.

966 Property Law Act 1974 (Q), s 20(1); Crown Estate Commissioners v Roberts [2008] 2 P & CR 15, [75] ("[Section 1] of the Abolition of Tenures Act 1660 ... removed all the “fruits and consequences” of


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law "upon a new conceptual foundation" as it deprived the tenure of its fundamental

premise, namely, that it was the means to enforce feudal dues against a seised tenant and

to raise revenue for the Crown (see chap 3, para 3.12).967

Perhaps not surprisingly, however, the fictional Crown to subject tenure construct,

although effectively dead for some time in England, was adopted in the Australian

colonies for the very purpose of securing revenue for the Crown (especially when the

policy of free grants was abolished in 1831 in the colony of New South Wales).968 Given

that purpose, it would certainly be misleading to suggest that a doctrine of tenure in its

somewhat altered form as applied in the colonies had any significant effect on the

understanding of ownership in land. As Fry notes, feudal services and tenurial incidents

were virtually non-existent at the time of the settlement of the colony of New South

Wales.969 And, when the power to grant Crown land was transferred from the governors

to parliament (such transfer not being a transfer of title, but governmental function970),

the issue as to who had the continuing authority of land where the land had been granted

but remained subject to regulation under statute (for example, as a Crown lease or

licence) was a matter of construction of the relevant legislation, not a matter of tenure

(see further below).971

2) Public sentiment in England against enclosure of common lands (which had been

expressed in anti-enclosure laws) began to shift in the early seventeenth century.

In the sixteenth century, enclosure was practised in order to aggregate together large tracts of land to accommodate sheep grazing. But in the seventeenth century,

tenure in capite of the Crown. As Lord St Leonards explained in the Berkeley Peerage case (1858-61) 8 HLC 21: 'Not only were all tenures in capite … taken away, but the lands were for ever turned into free and common socage. How can the Castle and Estate of Berkeley, holden as it now is by free and common socage, and not in capite or in chief, carry with it a right in its possessor to sit in this House? It confers upon him just the same right, but no higher than the humblest cottage confers on its owner. The feudal tenure being abolished, of course the privileges annexed or flowing from it have ceased'.").

967 C Reid, "The Seventeenth-Century Revolution in the English Land Law" (1995) 43 Clev St L Rev 221, 300, 301. As a result the Statute of Uses 27 Hen 8 c 10 lost its primary purpose: "there was no longer any need to restrict recourse to uses as a means of preventing a loss of income to the Crown".

968 See P Cochrane, Colonial Ambition: Foundations of Australian Democracy (Melbourne University Press, 2006), ch 3; Lansen v Olney (1999) 100 FCR 7. That is, unlike the position in England where land had already been granted, in the Australian colonies, grants in fee simple, although to be held in free and common socage, were sold to grantees by the Crown. As well, the various systems of leases and licences of Crown land were a means of raising revenue for the Crown.

969 T Fry, 'Land Tenures in Australian Law' (1947) 3 Res Judicatae 158, 160; see also Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556, 563 (Bryson J).

970 Williams v Attorney-General (NSW) (1913) 16 CLR 404, 456 (Isaacs J).

971 See Lansen v Olney (1999) 100 FCR 7, [43] (French J) ("The basic principles of tenure, including the proposition that the Crown cannot hold as 'tenant' an interest from itself, are not, in the Australian context, constitutional in character. They may be displaced or modified in content or application by statute.").


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enclosure was coming to be practised in order to take advantage of the new agricultural techniques then being developed. Because larger numbers of people were benefited, the rhetoric of 'improvement' which was invoked to justify enclosures met a warm reception from the 1620s onward.972

3) While England's economic development as a market economy had created a new

wealthy, the idea of family – especially of elites – shaped other parts of real property law.

These two rival interests – the need to allow for economic development and the requirement that family estates be preserved and handed down to the next generation – were the subject of an enduring compromise worked out by the common lawyers in the years after 1660 … The Rule Against Perpetuities, the Strict Settlement, and the modern trust were all aspects of this compromise. Free alienability of land would be allowed, but in appropriate circumstances this principle might also be strictly subordinated to family interests.973

In Reid's view, English real property was not reformed in small, incremental steps.974 He

considers that major portions of it were reconceived as part of some sort of revolution. And, this

was due, in large part, to a reorganisation of English constitutional arrangements.

Royal power was to be placed within strict limits and made subject to substantial supervision by the Parliament. The economic interests of the landed classes were to be promoted, but long-term dynastic concerns were also to be protected. English society had acquired a character that it would not lose until after the Great War of 1914-1918.975

The demise of the Crown's authority through tenure left, in effect, English land owners to

themselves. Their estates (in freehold) were, at least for a time, more actively the subject of

family settlements than regulation by state authority and the value of having a priority to and

exclusivity of the land – a highly individualistic relationship – was perhaps more reactive to

socio-economic developments than anything else.

We can observe, then, that "new conceptual foundation[s]" for real property law whereby its

"prevailing notion is that property is the instrument of personality" have emerged through such

developments, including changing political structures. Indeed, the peculiar nature of settlement

and development of Australia's landscape showed that the characteristics of priority to and

exclusivity of land as a private ownership idea needed some adaptation, not only through the

creation of new forms of statutory estates and interests, but in recasting the respective authority

roles of the Crown and its grantees in respect of land. Tenure became, in one sense, an idea of

recognising the political or original ownership of land by the Crown (and as a conduit for raising

much needed colonial revenue for the Crown) but, in another and more significant sense, a

972 C Reid, "The Seventeenth-Century Revolution in the English Land Law" (1995) 43 Clev St L Rev 221, 300.


974 Cf fn 872.



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byword for the Crown's (that is, executive's) statutory administration of private interests

granted in the public interest. What became more important then was the regulation of

property as the instrument of personality through the different statutory estates and interests.

That is, while the Crown perhaps could maintain it was or remained the ultimate owner of land

not alienated in fee simple, grantees of such land (particularly under long-term or perpetual

leases) became new types of owners in possession. However, as a result, the characteristics of

such a concept required some adaptation (or different form of abstraction), especially having

regard to the purposes for which those grants were made (see chap 7).

Indeed, the vast areas of Australia that are subject to the private non-freehold holdings and the

legal regimes of various State and Crown lands Acts certainly may tell us that it is somewhat

misleading to say that a private law of ownership in Australia as known to and developed (even

in a revolutionary way) in English real property law – which, understandably, never provided

for the pastoral lease, the grazing selection, the agricultural farm, the prickly pear selection, et

cetera976 – ever has applied or could apply universally throughout Australia.977 While ownership

of the fee simple estate clearly was embraced, general concepts of real property, including of

possession, may, or so the argument goes, have been adopted but adapted for statutory regimes

designed to suit peculiar land conditions such that Australia's real property law must not, at

least in any uniform sense, be thought of as using concepts consistently in their application to

freehold and non-freehold land alike.978 That is, Australian real property law may have

976 See, in Queensland, Crown and State lands Acts such as the Crown Lands Act 1884 (Q), Land Act 1897 (Q), Prickly Pear Selections Act 1901 (Q), Land Act 1910 (Q), Prickly-pear Land Act 1923 (Q),Land Act 1962 (Q), and Land Act 1994 (Q). However, a statutory estate, interest or right, including a licence, may be a form of property at common law (ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140; see also Re Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327). However, not every statutory right is property (Cummings v Claremont Petroleum NL (1996) 185 CLR 124, 133; Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29, [64]).

977 See, for example, the discussion in Wik, 139-143 (Gaudron J) as to early Queensland land law. The experience of other developing colonies was not dissimilar. Cf J Weaver, The Great Land Rush and the Making of the Modern World 1650-1900 (MQUP, 2003), 64 ("In concert with distribution arrangements elsewhere … the United States' allocation system stumbled along as a complicated, diversified, much-amended work in process. In that condition, it disbursed an empire. Similarly, British colonial administrators, working with an outpouring of statutes and executive rules, parcelled out another, more scattered empire. The effort was enormous. By 1900, New South Wales had nearly 100 Acts that dealt with land transactions, and a stately Italian Renaissance-style Lands Department building graced Sydney's business district. Legislation and administrative practices everywhere grew in particulars; land and registry offices expanded apace.").

978 See generally, the majority judgments in Wik; M Lange, J Mahoney, M vom Hau, "Colonialism and Development: A Comparative Analysis of Spanish and British Colonies" (2006) 111 American Journal of Sociology 1412, 1442 ("In the United States, Canada, Australia, and New Zealand, British colonialism laid the basis for future economic prosperity by leaving behind a functioning legal system that could sustain capitalist development. Effective court systems and local policing institutions that enforced contracts underpinned the stable property rights … The land policies of the British crown also reflected the authority of the colonial state over elite interests. In the settler colonies, the respective local bodies of the colonial state were regarded as the principal owners of land. The state carefully controlled land distribution and the pace of settlement, including by regulating minimum and maximum acreages and by setting land prices. Land policies in turn reinforced the prevalence of


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developed some different abstract ideas about, one, what was contemplated by the enjoyment of

land (having regard to the capacity of different landscapes to support private use and

exploitation), and, two, how land could be enjoyed and represented as 'thinghood' in the law of

ownership and possession. In so doing, that law was still giving effect to general conceptual

notions of priority to and exclusivity: private ownership was still the objective. Nevertheless,

the general societal and economic environment in which the law is intended to operate (see

further below) can call into question the extent to which a legal abstraction such as ownership or

possession does, or needs to, retain a connection with one, any existing legal conceptualisation

of those terms, and, two, any general conceptual understandings of them. The majority in Wik

concentrated on disabusing the idea that the pastoral leases there under consideration were

leases in the nature of general law leases found in English common law. In so doing the

majority was apparently casting the pastoral leases as quite abstract forms of priority to and

exclusivity of a thing; that thing though was not the land itself – which is what any legal or

general conceptual scheme would understand as the object of the leasing – but rather, the

purpose for which the land could be used.979 The statutory schemes under which the leases were

granted (the Land Acts of 1910 and 1962 (Q)) were their own inner-systemic forms of legal

conceptualisation (that is, unique forms of propertisation (see chap 3, para 3.4).

The guiding principle as to which laws were received into the Australian colonies always was

though, what was suitable to the colony at the relevant time. In Cooper v Stuart980 the Judicial

Committee of the Privy Council recognised that "as the population, wealth, and commerce of the

Colony increase[d], many rules and principles of English law, which were unsuitable in its

infancy, [were] gradually ... attracted." Weaver considered that administrators of the early New

South Wales colony "addressed standard [colonial] predicaments …: [such as] the presence of

first peoples on frontiers; the operations of squatters and their disregard for government rules;

the importance of occupation; the accumulation of land by speculators; the costs of mapping

and organizing the land; and the challenge of extracting revenues from settlers. The particular

remedies were the unique outcomes of local politics and natural environments".981 It would not,

as alluded to, be especially surprising then that, if the argument is that just as the lease under a

Crown or State lands Act need not be the equivalent of a leasehold estate under the general law

smallholders and prevented the formation of powerful landed elites with the capacity to establish monopolistic structures harmful to long-run economic development.").

979 In limiting priority and exclusivity to the purpose, the lease was 'non-exclusive' in respect of the land. Accordingly, native title rights and interests could co-exist on the land.

980 (1889) 14 App Cas 286, 292.

981 J Weaver, The Great Land Rush and the Making of the Modern World 1650-1900 (MQUP, 2003), 87, 116-117. Weaver notes that the shapes of land tracts in Australia (and New Zealand) were shrewdly marked out by landhunters (including squatters) and graziers to include desired resources. Yet, governments responded by insisting on straight lines and rectangles "as far as is practicable".


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(as found, for instance, in respective majorities in Wik and Ward), so too the right of possession

of that lease need not be the equivalent of the right of possession of such an estate (see chap

7).982

But context can cause misunderstandings in the interpretation of priority and exclusivity of

land. For example, it must be wrong to suggest that where, for example, the State grants a lease

under Crown or State lands legislation that the lessee cannot, in any circumstances,

conceptually be the equivalent of an owner of the land (even if, for only a term).983 The

continuing authority of the State in respect of the land may persist only in statutory

administrative discretions (albeit exercisable in the public interest). That is not an authority of

the land.984 Accordingly, ownership is not represented by the authority of a sovereign power, or

its exercise, that exists in respect of the land itself.985 On granting the lease, the State transfers

an ownership – the authority of and for the land (a type of sovereignty in itself) – to the

lessee.986 Although leasehold land under a Crown or State lands Act often is referred to as a type

of tenure (freehold being the other tenure), there is little to equate such a holding with the

tenure of feudal England.987 The term tenure has remained in the legal vernacular although

there is little, if anything, to suggest it has any real or lasting relevance to land holdings.988 Even

though the term 'leasehold tenure' does tend to suggest that the State retains some authority

over the land (and the term 'tenure' is, for example, used throughout the Land Act 1994 (Q) to

differentiate between the rights under a fee simple estate and a lease, and even between a lease

982 It obviously took time before statutory regimes for the regulation of the sale and occupation of Crown lands became firmly established. J Weaver, The Great Land Rush and the Making of the Modern World 1650-1900 (MQUP, 2003), 87 ("British … newcomers on frontiers applied a web of complicated worldly ideas about property rights. That web consisted of informal and formal steps for taking land: occupation, the recognition and sale of interests, the ban on direct dealing, and the doctrine of improvement, with its succession of higher uses … [I]mported ideas associated with the law and economics of land had been influential …").

983 Cf Bowyer Group Pty Ltd v Cook Shire Council [2018] QCA 319 which considered whether a lessee of a rolling term lease under the Land Act 1994 (Q) was an owner under the Sustainable Planning Act 2009 (Q) (rep).

984 See, for example, Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2012] 2 Qd R 114, [83], [90] (Muir JA).

985 See generally Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 50-51 (Brennan J).

986 Native title is different. Although native title is recognised by the common law, its source is the traditional laws and customs of its holders.

987 It perhaps could be equated with bastard feudalism. A so-called bastard feudalism was said by some (and not without controversy) to have appeared in the late Middle Ages where military services were satisfied by payments to lords. See D Crouch and D Carpenter, "Bastard Feudalism Revised" (1991) 131 Past & Present 165.

988 See Property Law Act 1974, s 20(1).


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in perpetuity and a term lease989), the Minister and his or her delegates (including a chief

executive) merely administer an Act that applies to lease land (as defined).990

It is the peculiar nature of statutory non-freehold interests under Crown and State lands

legislation in Australia that at times suggests the adoption and adaptation in many instances of

an ownership concept to such interests. A managerial authority over the land characteristic of

priority and exclusivity rests with the lessee but in a way that recognises the limited (or limiting)

capacity of the land itself to permit an otherwise free exercise of a grantee's will to decide the

exploitation and use of the land beyond that capacity which is expressed in the purpose of the

lease.991 In some instances, the improvement of the land by the lessee992 may be said to increase

the land's capacity to support a more expansive managerial authority of (or enjoyment by) the

lessee under ownership of an estate in fee simple. And, the land, as a matter of fact, may

support increased capacity and enjoyment. That is, the priority to acquire a new form of

ownership rests with the existing lessee. Conversion of a lease (including a priority to purchase

the land) recognises that circumstances may recast the relationship of the lessee with the land.

But, in either case, the managerial authority of the State is non-existent; as said, the State's

powers mostly represent a collection of administrative decisions and powers that usually are

reviewable.993 In conceptualising ownership we ask what sort of decisions an owner would be

able to freely make in respect of the enjoyment of the land, not whether he or she has the right

to exclude others (see chap 6).994 Although parliament and the State, in administering relevant

legislation, create rules as to the purpose for which the lessee can use the land, those rules are

not evidence of the State's continuing authority over the land; no one else can generally have the

authority of enjoyment of the lease land for that purpose other than the lessee, or a person

authorised by the lessee (such as a sublessee). The fact that the State must, for example,

approve any transfer or sublease of the lease does not make the State an authority for the

land:995 the State cannot compel the lessee so to deal.996

989 See, for example, Land Act 1994 (Q), ss 16 (Deciding appropriate tenure); 172 (Issuing of new tenure).

990 See, for example, Land Act 1994 (Q), s 391, sch 6, definition of 'lease land'.

991 See, for example, Land Act 1994 (Q), s 16 (Deciding appropriate tenure).

992 As was often required under selections, along with residency obligations.

993 See, for example, Land Act 1994 (Q), chap 7, pt 3; Judicial Review Act 1991 (Q).

994 That is, ownership is an I-Thing relational idea rather than an I-Others one.

995 Land Act 1994 (Q), ss 322, 332.

996 It is by recognising the land's legal enjoyment capacity (its thinghood) as a resource that we can perhaps accommodate native title in respect of the same parcel of land in a slightly different way than it normally is. If a parcel is, having regard to its physical characteristics and planning considerations, identified by the State as only having the capacity to be used for a pastoral purpose, this represents the land's possible legal enjoyment by someone other than the Crown. Accordingly, when a lease for pastoral purposes is granted, the lessee has, in effect, an ownership interest as that lease allows the


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When we focus on the characteristics of ownership and understand it as a concept, we can see

that it simply occurs and, that, although the law can formally determine that ownership has not

occurred, whether it has occurred or is occurring in law is not always a question of labels.

Ownership may occur in different ways because each interest conceptually represents the same

characteristics. That is an aspect of the concept's contingency nature: that is, that as a concept it

is (at least in an orthodox sense) contingently linked to land as a legal concept.997

The social construct of owning as contributing to the legal abstraction of ownership: the link to a general conceptual scheme of ownership and possession

Certainly the construct and subtleties of estates and interests in land – or their ownership or

holding (see chap 3, para 3.9) – are understandably lost on most people.998 In interpreting their

surroundings and symbols and institutions of society (including of property)999 as aspects of

their humanization of communities, land often is seen as private (for example, the home),1000

land to be enjoyed. The lessee may, relatively, be in no different position in terms of his or her priority and exclusivity over the land than an owner of a fee simple estate. The lessee has the freedom of enjoyment of the lease and he or she has a right of exclusion against all others, regardless of whether they interfere with his or her carrying out the purpose of the lease. (In cases such as Wik and Ward, it would be said the lessee only has, at least, a right to exclude those who interfere with the purpose of the lease.) But, because native title originates from a different legal source, we cannot measure the enjoyment of land under such a title in the same way as the 'ownership' under a pastoral lease. Accordingly, native title may co-exist on the same parcel of land because it is derived from a different source (and not merely because the lessee has 'non-exclusive possession'). It is not, then, appropriate to speak of whether the lessee had the right to exclude a native title holder as an extinguishment exercise; it was appropriate to ask whether the lease represented ownership in a priority to and exclusivity of the land sense according to the land's possible legal enjoyment. If it did not (that is, it was akin to say, a licence) native title could obviously exist. But, ironically, the law has not chosen this path because, if it did, this would mean – on one view – native title can exist on any land, even if it has been granted in fee simple. Rather, the law has assumed all land can be owned in the same way and if the grant does not grant priority to and exclusivity of the land, native title can continue to exist.

997 To be clear, it is thinghood's exclusivity that is ownership.

998 According to A W B Simpson, A History of the Land Law (Clarendon Press, 1986, 2nd edn), 1-2, the doctrines of tenure and estates are no longer relevant. That is largely true, especially in respect of the doctrine of tenure. P Rainey, M Walsh, P Harrison and D Dovar, Megarry's Manual of the Law of Real Property (Sweet & Maxwell, 9th ed), 1-006, says that only to an extremely limited extent is any knowledge of real property law in the United Kingdom prior to the commencement of the 1925 property legislation (including the Law of Property Act 1925 (UK), the Settled Land Act 1925 (UK), and the Land Registration Act 1925 (UK)) on 1 January 1926 required. The Land Registration Act 1925 (UK) has been replaced by the Land Registration Act 2002 (UK).

999 D Sperber, Explaining Culture: A Naturalistic Approach (Blackwell Publishing, 1996), 75. See C Rose, "Possession as the Origin of Property" (1985) 52 U Chi L Rev 73.

1000 Malik v Fassenfelt [2013] EWCA Civ 798, [1] (Sir Alan Smith) ("The idea that an Englishman's home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it."). It essentially is a social observation (Monis v The Queen (2013) 249 CLR 92, [321] (French CJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ); People v Wolf 312 NYS2d 721, 723 ("[The] owner of private premises can exclude anyone and everyone for any reason whatever and preclude their return. It is well settled law that a man's home is his castle and there would be no reason whatever, no lawful reason, for a person excluded to return to the premises whether for good or evil."); Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807; Semayne's Case (1604) 5 Co Rep


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public (say, parks, reserves, and national parks), or perhaps quasi-public (for example, shopping

centres1001), in respect of which different rights and freedoms of use are almost intuitively

ascribed or anticipated.1002 The underlying ownership and legal regulatory regimes that apply to

particular land commonly are a mystery (and perhaps an irrelevancy) to most. And while the

real property lawyer will always, as a first step of enquiry, undertake a search of the land in

question in a land registry to ascertain what rights exist, often everyone else will rely on various

signals as communicating to him or her whether he or she may say, freely enter the land or use

it. For example, most people rightly assume they may freely travel up and down a public road

(as a highway).1003 But, they also assume they cannot freely enter the numerous residences that

line a street, except perhaps to go to the front door of a house, and then only for a legitimate

reason.1004 A house and the surrounding land (often represented by a boundary fence) are

accepted to be a person's private domain and all others almost willingly and subconsciously

subject themselves to a duty not to enter (perhaps even as a social norm).1005 We often associate

a physical barrier such as a fence as enforcing a boundary-type rule of possession: that is, we

assume the fence represents the physical and legal divide between one person's property and

91a; 77 ER 194; Halliday v Nevill (1984) 155 CLR 1, 10 (Brennan J); Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ); Coco v The Queen (1994) 179 427, 435; New South Wales v Ibbett (2006) 229 CLR 638 ("the fundamental importance attached by the common law to the privacy of the home"); DPP v Kaba (2014) 44 VR 526, [53]; Police v Williams (2014) 246 A Crim R 317, [274]. See chap 6. People identify, and connect with, others according to where they live: Bob Dylan, "Long and Wasted Years" (from the album, Tempest, Columbia Records, 2013) ("I ain't seen my family in twenty years; That ain't easy to understand; They may be dead by now; I lost track of them after they lost their land.").

1001 See D Mac Sithigh, "Virtual walls? The law of pseudo-public spaces" (2012) 8 International Journal of Law in Context 394; K Gray & S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46; G Alexander and E Penalver, An Introduction to Property Theory (CUP, 2012), 130-132. Of course, not making the land available to the public could be interpreted as being harmful to the public interest. If harm is used as the concept here, it needs to be understood in that sense as well.

1002 See, for example, in a statutory setting, the Mineral and Energy Resources (Common Provisions) Act 2014 (Q), which distinguishes between 'private land' and 'public land'. 'Private land' is, generally, "(a) freehold land; or (b) an interest in land less than fee simple held from the State under another Act" (s 13(1). Private land does not include land owned by a public land authority (s 13(2)). 'Public land' is "any land other than (a) private land …" and includes a public road (ss 14(1)(a), (2), 15). However, land is not private land or public land to the extent of an interest in any resource authority under an Act such as the Mineral Resources Act 1989 (Q) or an occupation right under a permit under the Land Act 1994 (ss 13(2), 14(1)(b)). The definition of private land is adopted for the Land Access Ombudsman Act 2017 (Q).

1003 Although they are generally aware that there are 'road rules' with which they must comply.

1004 See fn 456; Halliday v Nevill (1984) 155 CLR 1, 10. But, a member of the public does not have a right to enter private land. Rather, the owner is, in the absence of contrary evidence (such as a locked gate), presumed to permit someone else to enter his or her land to approach the front door for a legitimate reason.

1005 See R Ellickson, Order Without Law: How Neighbours Settle Disputes (Harvard University Press, 1991), ch 4. Consider also the enclosures of England in the fifteenth and eighteenth centuries. See H Bradley, The Enclosures in England (Batoche Books Limited, 2001 (originally published 1918)).


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someone else's.1006 However, people will often interpret the park at the end of the street, the

shopping centre, and some open spaces and thoroughfares, differently.1007 Here, they may

perceive the nature of the land and its observable use or purpose as signalling an invitation by

the owner to the public to enter and, if appropriate, to use the land for its apparent purpose.

Often the land is effectively thrown open to the public, or is interpreted as being thrown open.

The owner's identity, particularly as a public authority such as a local government, will, if

known, add to a perception that entry is authorised or will not be prevented.1008 As such, an

entrant as a member of the public may resist, or at least query, a possessor's seemingly arbitrary

or indiscriminate refusal to admit entry, or a subsequent removal of him or her from the

land.1009 In all of this, there is no specific enquiry by the entrant as to the particular ownership

interest of any owner or possessor as the entrant has merely interpreted, with the benefit of

experience, his or her participation in society1010 and perhaps a little knowledge, various

observable signals pertaining to the land and any apparent controller itself. Thus, the fact that,

for example, a shopping centre is owned by its owner in fee simple is not relevant: the entrant,

on entering, already assumes the shopping centre belongs to someone and that someone is a

private owner. The entrant is not so much concerned about his or her relative position with

respect to that owner's possession. Rather, in entering, he or she may have merely assumed a

relative freedom (or an absence of a duty not to enter1011) that was created by the circumstances,

including a categorisation of the land according to its apparent purpose. Of course, it would be

unreasonable for him or her to assume he or she may do more than enjoy that which the

circumstances imply (that is, doing that which reasonably is done in a shopping centre). The

1006 See generally L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275. See also statutes such as the Inclosed Lands Protection Act 1901 (NSW), considered in O'Donohue v Wille [1999] NSWSC 661; Vagrants, Gaming and Other Offences Act 1931 (Q) (rep), s 4A (Entering or remaining in or upon buildings, enclosed farms etc. without lawful excuse).

1007 The public undoubtedly assumes a freedom to access beaches and foreshores for recreational purposes. While the public may navigate tidal navigable waters, there is no public 'right' to access and use a beach or a foreshore at common law for such purposes. See R (on the application of Newhaven Port and Properties Ltd) v East Sussex County Council (Newhaven) [2015] AC 1547.

1008 Of course, the local government may have acquired the land as a condition of a development approval and now holds the land on trust for local government or planning purposes. Local governments often are also trustees under the Land Act 1994 (Q) of trust land, usually a reserve, or possibly, a deed of grant in trust. A local government's functions and powers in respect of such land are determined under chap 3, pt 1 of that Act and are somewhat different from the legal regulation of land owned by a local government for an estate in fee simple, whether or not on trust. The present point is how such ownership, uncontrolled by any trust, is affected by a voluntary use of the land.

1009 K Gray & S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46, referring to the emergence of a 'reasonable access rule' in distinction to an 'arbitrary access rule'; D Mac Sithigh, "Virtual walls? The law of pseudo-public spaces" (2012) 8 International Journal of Law in Context 394, 408 ("[Gray and Gray's] approach is a prototype for a geographically informed approach but requires further development.").

1010 That is, a park and a shopping centre are assumed to be open to the public.

1011 If the entrant is not subject to a duty, there is no right for the owner to exclude. The entrant thus has a freedom of entry as a matter of 'lawfulness'.


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relative freedom is shaped by the situation and it may attract to it some form of recognition and

protection in the law that gives effect to it.

Limits of perceptions and conceptualisations: weighing relative interests and values in a conceptual framework

However, our social perceptions and our legal conceptualisations of the ownership and

possession of land (and other things) still cannot help but be influenced by our understanding

that freedoms to do things (including to enjoy ownership as a possessor) usually cannot be and

are not absolute,1012 and also by ideas of what the public interest or "general good of the

community" is, including as reflected in peculiar statutory regimes regulating interests and

rights in land.1013 These can alter depending on the era in which the history of the law takes

place and what, as humans, we value in society. As such, given the law's dissemination within

modern society, perceptions of ownership and possession – or more particularly, our perceptual

understandings of their characteristics – are influenced by our appreciation that the law in a

general sense has the authority to shape and reshape, including limit, legal concepts and our

understanding of them.1014 That is, the extent to which legal concepts need to maintain their

connections to general concepts may not be as important as it once was. We have a freedom to

things, as permitted by (or at least as not prohibited by) law.1015 And, while, as an example, a

1012 See generally Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129); cf Wilson v Anderson (2002) 213 CLR 413, [194] (Callinan J) ("[The] reality in modern times [is that] exclusive possession in absolute terms has long since ceased to exist.").

1013 For example, whether a reserve under the Land Act 1994 (Q) for a community purpose contemplates public use will depend on the community purpose itself. See Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379, [236] (Basten JA); Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140, 143-144 (Mahoney JA); Bowen v Stratographic Exploration Pty Ltd and Kay [1971] WAR 119, 128 (Wickham J); Friends of King Edward Park Inc v Newcastle City Council (No 2)[2015] NSWLEC 76. A trustee of the reserve has a statutory duty to manage the reserve (as trust land) consistent with achieving the purpose of the trust (s 46(1)(a)). See further fn 538.

1014 See fn 592.

1015 See Maloney v The Queen (2013) 252 CLR 168, [74]-[76] (Hayne J) ("The ambiguity and looseness with which the word 'property' can be used is notorious. Particularly when speaking of a human right to own property, it is necessary to identify the level of generality or abstraction at which that right is being considered. The right to own property might be spoken of in terms of a freedom: the right to own (or perhaps possess or use) property without any (arbitrary, disproportionate or unwarranted) interference. But adopting this framework for analysis would inevitably shift debate to when and in what circumstances an interference with ownership of property is unacceptable … At its most abstract, reference might be made to the right to own property without attempting to elucidate what is meant by “own” or to connect the right with any particular object of tangible or intangible property. Approaching the matter in this way will often, perhaps usually, be unhelpful …"); Universal Declaration of Human Rights (1948), Art 17: (1) Everyone has the right to own property alone as well as in association with others; (2) No one shall be arbitrarily deprived of his property; cf S Evans, ‘Should Australian Bills of Rights Protect Property Rights’ (2006) 31 Alternative Law Journal 19, 20 ("[The] extent of protection afforded by the Universal Declaration in relation to private property ownership is vague at best."); and, for example, Munday v Australian Capital Territory (1998) 146


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'right of agricultural labour' might have, when exercised, once been theorised to turn itself into a

civil right of ownership by which people entered society,1016 today, land in general may, given

ever increasing populations and economic and social demands,1017 be seen, at once, as

scarcer,1018 but also, at least in certain areas, as having or demanding numerous (including

potential) uses and characteristics.1019

Importantly, when we say that each of ownership and its related concept, possession, is

representative of particular characteristics we intend that each concept represents or states

something for someone. This is an element of their law-stating functions and their justifications

as legal concepts.1020 Representations have no discernible qualities or usefulness unless they are

capable of being interpreted. Ownership and possession, although needing to have a thinghood

quality1021 (see chap 3, para 3.5), are, as abstract legal concepts, public representations in the

environment of law and society and, as such, represent something for people who are required

to interpret them, or who are subject to their application, according to law. Those people

perceive them as such because they have connotations,1022 and their behaviours – as evidenced

by their decision-making in respect of the thing owned or possessed – are the results of those

perceptions.1023 In short, the law regulates decision-making by those subject to ownership and

possession according to a notion of lawfulness (see chap 5).

FLR 17; cf New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35, [44]–[55].

1016 See fn 121.

1017 See A Linklater, Owning the Earth (Bloomsbury, 2013), ch 23.

1018 See Infrastructure Australia, 'Population Estimates and Projections: Australian Infrastructure Audit Background Paper April 2015' (<http://infrastructureaustralia.gov.au/policy-publications/publications/files/Background-paper-on-demographic-projections.pdf>), 6 ("Long-term population projections released by the Australian Bureau of Statistics (ABS) in November 2013 suggest that, on 'medium' assumptions, Australia's population will grow from 22.7 million persons in June 2012 to: 30.5 million in 2031 (an increase of 7.8 million persons or 1.56% per annum); 41.5 million in 2061 (an increase of 18.8 million persons or 1.24% per annum); 53.6 million persons in 2101 (an increase of 30.9 million or 0.97% per annum)"); 6, 7 ("Two-thirds of Australians live in the capital cities … [and the] proportion of Australians living in capital cities is expected to grow."). This likely will give increasing attention to ideas of co-living and co-sharing arrangements.

1019 As often revealed by planning instruments. See, for example, Planning Act 2016 (Q), s 8(1) ("A planning instrument is an instrument that sets out policies for planning or development assessment …").

1020 See fn 350.

1021 At least in an orthodox sense.

1022 Kent v SS "Maria Luisa" (No 2) (2003) 130 FCR 12, [61] ("The notion of ownership … carries a connotation of dominance, ultimate control and of ultimate title against the world.").

1023 D Sperber, Explaining Culture: A Naturalistic Approach (Blackwell Publishing, 1996), 78. A court, as an 'impartial spectator' (see fn 891), perceives and interprets those representations according to law.


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More specifically, ownership as an institutional legal construct authorising decision-making (in

the sense that it allows owners to behave in particular ways) spontaneously anticipates how

owners and non-owners will evaluate its relevance and usefulness. The quality and substance of

the anticipated judgments and reactions that owners and non-owners actually make are, then,

crucial to understanding how ownership and possession function and if they need to be

justifiably reshaped in law (see chap 5). If people in general choose not to engage with a concept

in the form in which it is laid out by the law (for example, if owners should, by claim of

ownership, consistently cause harm to neighbours or persons in general ignore boundaries and

continually trespass on others' land), it can be assumed there is, at the very least, scepticism of

ownership's or possession's value or purpose in society. That, of itself, does not cause

ownership's or possession's reshaping. Rather, it means that the enjoyment of ownership's

advantages, including of possession, may no longer be commensurate with, or justifiably aligned

with, community interests or values (for example, where owners are consistently restrained by

injunction from causing disturbances to others when enjoying their land where such

disturbances emanate from uses approved as lawful uses of land by planning decisions).1024 This

is directly related to our perceptions and conceptualisation of possession of land, possession

being the manifestation of the law's idea of lawful enjoyment.

It follows that the law needs to be mindful of the ways in which ownership is understood or

interpreted as those who are subject to its applications, including when enjoyed in possession,

behave according to what each represents (or rather, what they are thought to represent to

them) (see chap 3, para 3.6). Perceptions form part of ownership's and possession's

conceptualisations as, one, consistent with common law policy that all things must be owned,1025

they each have an organising quality,1026 and, two, their characteristics or properties are

intended to be functional in their applications: that is, their applications are the products of

their legal abilities to organise or regulate the behaviour of owners (or possessors) and even

non-owners (or non-possessors) as the law assumes an understanding of what motivates such

persons' decision-making or interests in respect of land and its enjoyment.1027 However, the

omnipresence of law in society today suggests, as Palmer asserts, that what we understand as

'mine' does not, or can no longer be said to, ante-date the law.1028 What is mine undoubtedly

reflected a factual understanding of owning and legal ownership has over centuries been

1024 See generally Lawrence v Fen Tigers Ltd [2014] AC 822, [161] (Lord Sumption); cf [168] (Lord Mance).

1025 See generally Bocardo.

1026 Well-defined property rights are considered essential to economic growth and social order. See fn 869.

1027 As will be explained (see chap 6, para 6.2), the 'rights' of owners and the 'duties' of non-owners are aspects of that regulation.

1028 R Palmer, "The Origins of Property in England" (1985) 3 Law & Hist Rev 1, 7.


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conceptualised according to the fact of humanization of space and as a reflection of

'individualism'. But, that which we must accept as functioning as ownership in possession today

ultimately and simply is the product of a legal system operating to provide outcomes according

to its own justifications as they may exist from time to time.

4.4 Conclusions

The way in which possession is perceived – especially when its applications are interpreted to

provide clear and precise outcomes (such as a claim in trespass for even a minute intrusion1029)

– may suggest to a possessor or a non-possessor, that, at times, the law, in recognising and

protecting possession as a legitimate claim (whether because of an owner's or a possessor's

title), does not take account of either individual's unique interests or values, even when

advanced as objectively beneficial in a broader societal sense (for example, to be able to use the

land as a possessor for what seems to be a reasonable purpose or to enter the land as a non-

possessor for a reasonable purpose). However, by a type of consequentialism, the applications

of ownership and possession can, because of how we interpret the representations of those

applications (see chap 3, para 3.6), loop back to justify how they are functionally conceptualised

at any point in time (because owners and non-owners accept those applications or adapt their

behaviour as they observe or participate in applications that they do not seek to depart from).1030

Specifically, if interests or values, whether of a possessor or non-possessor, are not so unique

and actually are thought to be shared by many, or if the stakes are high, it might be expected to

prompt a change in the law, including statutory law, or perhaps the law's argument or objective

for the exclusive enjoyment of land. However, the uniqueness of a situation might, on the other

hand, be thought to be the perfect subject for adjudication by a court. In adjudicative settings

applications of ownership and possession are more likely to be adjusted as a form of justifiable

reshaping (by a looping-type method): such justified applications may be causing a conceptual

creep of what is understood as ownership and possession. That is, it is by such applications that,

relevantly, possession becomes a particularly abstract legal idea and starts to detach itself from

its orthodox characteristics which otherwise confine it as a concept of the law's first level of legal

abstraction.

The methods of statute and judging are, however, different: statute can look forward and lay out

rules for future behaviour by having regard to an almost limitless number of considerations:

some are known, and some are purely speculative (but, as a result, statute can overreach and, at

times, plainly misinterpret the common law). In contrast, a judge essentially must arrive at an

answer relative only to what has already occurred, and any existing precedent or statute which

1029 Entick v Carrington (1765) 19 St Tr 1029, 1066 (Lord Camden LCJ).

1030 For example, a non-owner accepts he or she cannot lawfully enter an owner's land without invitation from the owner or some other justification recognised at law. See chap 6.


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governs the situation. However, in a dispute about ownership or rights in respect of land,

invariably he or she is always balancing the interests or values of each of the parties or, rather,

their representations: the representations of those interests or values may, on occasions, be seen

through a relativity prism – a not unfamiliar idea when considering claims of possession1031 –

that, in the result, relevantly shapes our understandings of a possessor's lawfulness of enjoying

land. At the disposal of the judge in his or her adjudicative role is, relevantly, the very idea of

judging by reference to highly abstract concepts that, as explained, are potentially capable of

being reshaped in the context of the dispute before him or her because their purposes are

intrinsically relative to the interests and values of the disputant parties. Depending on the

context – that is, the relative interests and values at stake –, the judge may adopt a more

formalist (or lumping) approach by deciding, for example, that an intruder onto residential land

is a trespasser as the owner's land is his or her 'castle and fortress' and there was no

entertainable special interest or value of the intruder's justifying entry. However, the judge may

adopt a more contextual approach where the exclusion of a person from private land apparently

thrown open to the public denies that person a freedom of association. As well, in other

circumstances, the judge may, as a form of discretionary remedialism, deny to a possessor an

injunction to restrain a continuing trespass or nuisance. These considerations are the subject of

the following chapters.


Chapter 5: Adjudicative reshaping of the lawfulness of enjoyment and the weighing Chris Boge of 'relative' interests and values

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5. Chapter 5: Adjudicative reshaping of the lawfulness of enjoyment and the weighing of relative interests and values


Chapters 3 and 4 have identified that possession is an abstract legal concept and that it may be

susceptible to reshaping. The purpose of this chapter is to consider how possession may be

reshaped by an adjudicative process. Subsequent chapters will explain circumstances in which

reshaping may be occurring as applications of the possession concept.

5.2 Possession's and ownership's abstractions: summarising diffuse material under a manageable heading?

Generally, abstractions are words from which we can build ideas. The same is true of

abstractions in law.1032 However, abstract legal concepts must exhibit and retain their stability

and, as such, their representative characteristics do not usually alter drastically, lest they cause

the law to lose its cohesion or, more practically, our understanding of what is legally

contemplated by a particular concept. That is, abstract concepts may develop, but their

usefulness in law is only demanding of respect if they are and remain functionally coherent.

The law often appears to emerge and stabilise itself out of lines of thought that are then played

out in the cut and thrust of disputes before courts. What influences courts' thinking beyond

evidence and precedent is the simple obligation that disputes need to be resolved one way or the

other according to an idea of what works. And, often, courts must think in the abstract. Yet, we

must acknowledge that the use of abstractions is susceptible to misapplication and, therefore,

fraught with danger.1033

In law, the term right perhaps is one of the more obvious examples of how a simple enough

abstraction can attract to itself all sorts of connotations and misapplications. Often, when we

speak of a right we actually are referring to a freedom or liberty, or perhaps even an excuse.1034

For example, a true licence at law to enter land is not a right of the licensee to do anything. It

merely is a permission given by the licensor and means that, until that permission is withdrawn,

1032 See generally Jones v Merton London Borough Council [2008] EWCA Civ 660.

1033 P Peters, The Cambridge Guide to Australian English Usage (CUP, 2007), 12 ("Abstract words are a useful means of building ideas. They help writers to extend their arguments and develop theories. They can encapsulate remarkable insights, and summarise diffuse material under manageable headings. But they are easily overused by those who care little whether their meaning gets through, or who want to avoid an issue. They are the clichés of academic and bureaucratic documents, and the bane of the weary reader.").

1034 See N McBride, "Rights and the Basis of Tort Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.


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the licensee's entry is justified and cannot be treated as a trespass.1035 There is nothing for the

licensee to enforce. On the other hand, contractual licences, which are of a varying nature,

frequently voluminous (in a commercial setting), and often (especially when voluminous) come

close to being leases,1036 confer rights. But, the rights of contractual licences (which are

abstractions), are, of course, not rights of leases and, therefore, are not subject to the law of

landlord and tenant.1037 They remain (or purport to remain) within the confines of personal

contractual rights. Nevertheless, we must be careful as, although we can accept there are

different categories of rights in law (because they refer to, or are meant to be, entitlements to do

different things), we cannot simply classify them as we wish and pretend that they are rights

when they are not, or that they are particular rights when they are not.1038 An understanding of

the relevant concepts and frames of reference – they being generally, legal method, legal history

and history generally – underpinning the system we call law goes a long way to our being able to

work out how abstractions, whether say, a right, ownership, or possession, function as and in

law.

For a long time, the private law of English land ownership was apparently mostly concerned

with trying and transferring title1039 and was shaped by writs, procedure, and forms of actions,

rather than any observable substantive law of rights (see further chap 7, para 7.4).1040 It was,

within those confines, preoccupied with what was 'rightful' and what was 'wrongful' (hence, in

1035 Thomas v Sorrell (1674) Vaughan 330.

1036 On occasions, they will cross the line and will be treated as leases at law. See K Lewison, Lease or Licence: The law after Street v Mountford (Longman Professional, 1985).

1037 See generally Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468.

1038 See Radaich v Smith (1959) 101 CLR 209. See generally J Dewar, "Licences and Land Law: An Alternative View" (1986) 49 The Modern Law Review 741. Consider also the easement. We essentially understand it to be a limited right appurtenant to an estate that burdens another estate (such as a right of way). However, the statutory easement in gross (or public utility easement) has a life of its own (Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118) and experience in practice suggests that, unlike the common law easement, it may, and would frequently tend to, oust the owner of the burdened estate. It ousts, not simply because it excludes the owner in a physical sense, but because it assumes exclusivity of the corporeal. Cf Moncrieff v Jameson [2007] 1 WLR 2620, as considered in chap 3, para 3.9.

1039 P Rainey, M Walsh, P Harrison, and D Dovar, Megarry's Manual of the Law of Real Property (Sweet & Maxwell, 9th ed), 1-005.

1040 Cf Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, [92] (Gummow J) ("When the jurisdiction of the courts of common law in England was defined by the system of writs and the forms of action, there was no need to speak of standing. The question was whether the plaintiff was entitled to a writ and whether the writ lay. Writing in 1870, after the abolition of the forms of action, Dicey said [A Treatise on the Rules for the Selection of the Parties to an Action (1870), 6-7]: 'The maintenance of an action depends upon the existence of what is termed a 'cause of action', ie, of a right on the part of one person (the plaintiff), combined with the violation of, or infringement upon, such right by another person (the defendant) … There goes, it should be noticed, to make up the cause of action at once the 'existence' and the 'violation' of a right, and the expression cause of action means (in strictness) the whole cause of action, ie, all the facts which together constitute plaintiff's right to maintain the action'.").


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part, the debates about why and how the law protects a possession (and, earlier, a seisin) that is

acquired without licence of a person with a right of entry onto land).1041 Statute was extremely

important.1042 From around the twelfth century the royal or king's courts assumed a certain

jurisdiction that had previously been indirectly that of the lords' or manorial courts.1043 And

"what happened in court led early to the high practical standing of precedent … [a] fixing [of]

the law",1044 even in land law. Precedent did not, however, lead to a universal or organising

theory or conceptualisation of ownership: rather, it ensured, at least in this area, that a type of

inductive reasoning based on the outcomes of analogous earlier disputes prevailed.1045 It

created an environment for adjudication to operate as a means to shape, and if justified,

reshape, legal concepts. Adjudication can thus function as an inner-systemic legal method of

determination (or propertisation) of an idea in law.

People were often vociferously attached to particular tenements prior to the late twelfth century … One who lost his land by disciplinary action or warfare would feel himself wronged, regardless of the merits: real life knows few stoics. In the victim's eyes, righting the wrong would involve restoration of the tenement. The elemental idea, however, was that of wrong, not property … There were only two elemental legal ideas in twelfth century England: wrongs and obligations. Bureaucratic justices created property by myopic regulatory

1041 In general, an estate that is gained by wrong always is an estate in fee simple: Co Litt 180b, n. See F Pollock and R Wright, An Essay on Possession in the Common Law (1888), 1-3 ("Why the law should ascribe possession to wrongdoers may be difficult to explain completely."); F W Maitland, "The Beatitude of Seisin" (1888) 4 LQR 24, 24-25 ("When … we see the possessor protected against one who admittedly is the owner, or against one who is ready and willing to prove his ownership, then we know for certain that possession itself is protected by law, and protected for its own sake.").

1042 For example, the Statute of Gloucester of 1278, and the Statute of Quia Emptores of 1290 (see now Property Law Act 1974 (Q), s 21); A Watson, The Evolution of Western Private Law (The John Hopkins University Press, 2001), 242 ("Henry II (1154-89) can be characterized as "a great legislator", and Edward I (1272-1307) was responsible for some of the most important laws in English history. Maitland, indeed, goes so far as to say that "the vigorous legislation of the time has an important consequence in checking the growth of unenacted law" …"). F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, CUP, 1910), Lecture III, described Edward I as the English Justinian.

1043 A Watson, The Evolution of Western Private Law (The John Hopkins University Press, 2001), 242 ("National courts, as distinct from local courts, apply to far more people: there are more cases, and relevant law is more readily established … The mention of the king's courts brings us to … the writ system, which has Anglo-Saxon roots. The need to have a writ to bring the cause before the court meant that high priority was centred on that and on proof, rather than on systematic development of legal rules. S F C Milsom goes so far as to claim that from, say, the thirteenth to the early sixteenth century the lawyers did not see the law as a system of substantive rules at all, and he contrasts them with Bracton and his kind, who 'were accustomed to think in terms of substantive law'.").

1044 A Watson, The Evolution of Western Private Law (The John Hopkins University Press, 2001), 242. Watson cites Thomas Craig, Ius Feudale of around 1600 (1.7.20) ("If nothing is settled by the principles of the common law or by custom (general or manorial) then in similar cases the authority of previous decisions, especially of the King's Bench, prevails. And now disputes are settled primarily in this way if it is shown that it was previously decided otherwise. Nor is there any defence to this form of judging unless the case can be distinguished for it very often happens that the whole situation of fact for the decision is changed by minute circumstances of fact. Hence come the many volumes of cases (for so the situations of fact are called) in Plowden, in Dyer and others.").

1045 See, for example, J Gordley and U Mattei, "Protecting Possession" (1996) 44 AMJCL 295, 319-329.


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decisions that eradicated the discretionary character of the feudal relationship and thus the precarious quality of the fee. The creation of property was subtle, but momentous.1046

The writ system meant that claimants to rights of enjoyment of land needed to have a particular

status and outcomes mostly settled who had, as between the parties, the better right to that

enjoyment.1047 Although disputants were limited to the forms of action, what we perhaps need

to understand is that, for centuries, English law relating to land was not simply a discrete land

law, but a law of the land. When, through modern eyes, we try to imagine a historical real

property law as giving us the principles and rules of today, we should pause to remember that

there were other societal frames of reference at work influencing the evolution of a body of real

property law.1048 Those who had real property (however conceptualised), not surprisingly did

not wish to lose it, especially when it represented power. For centuries, whether or not one was

at risk of losing 'it' turned on "whether the plaintiff was entitled to a writ and whether the writ

lay".1049 We can, then, perhaps understand that our modern understanding that trespass is an

injury to possession was not how a plaintiff who purchased a writ of trespass from the Chancery

thought of things, especially as the writ (of trespass quare clausum fregit) was addressed to the

sheriff and required the defendant to answer the plaintiff why, with force and arms and against

the king's peace, he or she broke the plaintiff's close. Today, we would, in general terms, regard

the notion of trespass as being an injury to possession as substantive law – it being of regulating

relations between persons – which founds a cause of action for which there is a remedy. That is,

we position possession (and a right of possession) as having an identifiable legal status or

existence which, in the hands of the possessor (or person with the immediate right of

possession), may be vindicated or protected if necessary against interference from someone who

has a duty not to interfere with it. Importantly, establishing the existence of a right to exclude

(or otherwise to prevent interference) and the violation of that right constitute a plaintiff's right

to maintain an action.1050

Tay adroitly observed:

A living body of law cannot be tied into the strait-jacket of an a priori conceptual system: but to insist, as a matter of principle, that we should not ask for general conceptions

1046 R Palmer, "The Origins of Property in England" (1985) 3 Law & Hist Rev 1, 7-8.

1047 Nevertheless, as a broader consideration, among those who could be called landowners, land in England was ostensibly divided for centuries among the free and unfree. S F C Milsom, The Legal Framework of English Feudalism (CUP, 1976), 38 ("[But, once the] seigniorial courts [were deprived] of any power of final decision and therefore of their own law … [f]ree tenure becomes unrecognisably different from unfree, and from its own former self in the seigniorial world.").

1048 Although, as seen, a revolution of sorts perhaps can be said to have taken place in seventeenth-century English real property law with the demise of 'tenure'. See chap 4, para 4.3.

1049 See fn 1040.

1050 See generally Letang v Cooper [1964] 1 QB 232, 243 (Diplock LJ); Republic of India v India Steamship Co [1993] AC 410, 419 (Lord Goff); Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557; Fewin Pty Limited v Prentice [2018] FCA 852, [68].


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underlying what appear to be specific rules separating one possession from another, is to live in the intellectual Ice Age in which the first forms of action were born. The rigid procedural requirements of the early situations introduce conceptual distinctions into the law and force it to develop them … In law, we have to recognize unity as well as separation, the historical development of a system struggling to accommodate new requirements and competing demands …1051

Tay accepted that there was room for conceptual distinctions of possession (not being limited to

land). However, we must, as Tay urged, avoid trying to fit a scheme or argument about

possession to the law. Rather, possession must be assessed in its development as law. We can

do that if it is recognised that possession is a legal concept that remains within a legal response

to an objective or argument of the law.

Modern systems of title by registration under Torrens statutes perhaps cause us to instinctively

question decisions like Bruton v London and Quadrant Housing Trust,1052 as referred to in chap

3, para 3.11. But, that case, although obviously decided outside a Torrens title system, is a link

in a chain. We may naturally imagine, at least when we propose to register a lease, that the

lessor of a lease must be registered as the owner of an estate in fee simple or as a lessee (so that

he or she can grant an under-lease).1053 This is perhaps an instance of how we let registers and

registered interests order our thinking and believe that a person cannot grant more than he or

she has.1054

The point here simply is that, in dealing with abstractions in real property law it is necessary to

be careful not to allow a principle such as title by registration – an odd mix of abstraction and

fact –, or the limits of registration systems generally, to act as restrictive frames of reference in

1051 A Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach" (1964) 4 Melb U L Rev 476, 479-480.

1052 [2000] 1 AC 406.

1053 Indeed, the registrar of titles will requisition the lease if the lessor is not registered or entitled to be registered as such before the lease.

1054 Undoubtedly, for Torrens title land the nemo dat rule cannot apply to registered interests (as Torrens is a system of title by registration). Another example may concern land vested in fee simple in an entity under the Land Act 1994 (Q). The Land Act 1994 (Q) generally regulates non-freehold land and has strict requirements for the registration of dealings in such land, including in many instances, the need for evidence of the Minister's approval to any dealing (see, for example, Land Act 1994 (Q), ss 332, 335, in relation to subleases of leases issued under that Act). Land vested in fee simple is recorded in a register maintained as part of the land registry under the Land Act 1994 (Q), ss 275(f), 275(g), and there is limited express reference to the registration of any dealings with such land (ch 6, pt 4, div 8C (Carbon abatement interests). As the land is not land granted in fee simple, it is not recorded in the freehold land register maintained under the Land Title Act 1994 (Q), a Torrens title Act. The land is, however, represented by a fee simple estate and is vested in an 'owner'. As to vesting generally see Ward, [214] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). As such, the owner may deal with the land as the owner of a granted fee simple estate may. His or her inability to register many such dealings does not affect his or her personal enjoyment of the estate. As the estate is vested in fee simple, it is unlikely Parliament intended the owner could only deal with the land as expressly provided for under the Land Act 1994 (Q). Further, the vesting does not occur under that Act. See, for example, State Development and Public Works Organisation Act 1971 (Q), s 125(7), (8).


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thinking except where that is necessary.1055 Equally, it is important not to perceive of an idea

such as possession in law as purely concerned with what factually occurs on the ground. When

considering concepts like ownership and possession, we need to understand what is relevant to

that consideration: we need to contextualise. Our expectations of what is relevant and what is

not relevant may not always be correct.1056

In a system of relativity of title – which has been overtaken to the extent provided for by

registration systems – the law needed a reference point for entitlement or claim as society

organised itself around ideas of a non-feudal system of priority to fixed spaces of land in

conjunction with its broader development. That reference point was a conceptualised legal

notion of possession of an estate as a form of property and creating a right of possession that

was relevant if the possession was challenged. Such property answers the description of a "legal

phenomenon [and] occurs only when an individual's claim to a parcel of land is not dependent

on his [or her] own strength or on a personal relationship: when title is protected by a

bureaucratic authority according to set rules. Property derives from the state; it cannot exist

prior to the state".1057 And as McPherson notes, the law of real property was especially

significant in English society: it functioned, mysteriously and rather abstractly at times, to

satisfy the needs of its people.

Because land was the principal source of wealth in pre-industrial times, and jurisdiction over it belonged to the king's courts, rules of real property tended to permeate the whole of English law. Not only the right to vote in Parliamentary elections but even matters like the guardianship of children, which in other legal systems forms part of the law of persons, had their source in the law of real property. In this sense, it is right to say that in England the law of land was the law of the land.1058

A claim for possession as a better right to enjoyment of land had, over a period, replaced feudal

lordship and obligation as the prevailing authority that applied to land – it was, after all, the

lord's fee and the tenant was expected to defend it – with an authority that represented an

individual's own relationship with the land itself, as represented by an estate. An actual

possession (in law) could, almost as a type of rule, be(come) a claim to (continuing)

possession1059 and would put itself up against any other claim to possession to see which was the

better claim. Actual possession was, particularly in the absence of registers and other records,

1055 See Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1, 17 (Barwick CJ). See fn 370.

1056 See generally D Sperber & D Wilson, Relevance: Communication and Cognition (Wiley-Blackwell, 2nd ed, 1996). See also T Martin, "Possession as a Root of Title" (1912-1913) 61 U Pa P Rev 647 who criticises case authorities for not explaining with precision the point at which a trespasser becomes a possessor.

1057 R Palmer, "The Origins of Property in England" (1985) 3 Law & Hist Rev 1, 7. Palmer considers the 'mine-yours' distinction is useless in describing property, at least for historical purposes.

1058 B McPherson, The Reception of English Law Abroad (Supreme Court Library of Queensland, 2007), 58.

1059 See B Shartel, "Meanings of Possession" (1931-1932) 16 Minn L Rev 611. See chap 1, para 1.4.


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observable and, as such, could be supported by evidence that say, a person was cultivating land

and selling his produce at market from that land (which was especially important in an

agriculture-based economy). This was also important for conveyancing.1060 But, regardless, the

possession was, and needed to be, something that was recognised as a reference point or

organising idea for the law as an abstract concept and which functioned as such.1061 And, given

today that registered title to ownership is the paramount claim to (continuing) possession,

possession could hardly fulfil a role otherwise than as an abstract.

Conceptually, possession, as explained, is understood to be an ownership because possession, in

an abstract sense, functions in a relational sense as a quasi- or de facto ownership of the

estate.1062 This is why we say possession is of ownership (see chap 3, para 3.10). This also

shows that concepts in this area such as ownership, possession and the estate are inter-

dependent as they come together for the law to recognise and protect the enjoyment of land.

When possession is used outside that cohering prism, it potentially becomes unstable and we

may struggle to logically work out how it can be vindicated or protected. For example, often it is

said that a lessee has possession of the leased premises. This is not objectionable if it is

understood that the lessee has possession of the lease estate as representing the leased premises

and the advantages of the premises. The lessee cannot do as he or she pleases with the premises

merely because he or she has possession of them. Of course, the lessee will be subject to

numerous covenants regulating his or her use of the premises. But, those covenants (and

contract generally) mostly are governance rules.1063 The lessee, regardless of the covenants, can

only possess a lease estate. If it is asked what the lease estate gives the lessee, it would be

somewhat circular to answer, the (granted) right of possession.1064 Instead, the lessee has the

enjoyment of the advantages of an estate for a term because the lessee has the ownership

interest in the lease. Having already noted that, in effect, a lessor transfers (grants) an

ownership interest in the form of a lease (see chap 3, para 3.11), it is the term that actually

1060 See fn 779.

1061 A Kocourek, Jural Relations (2nd edn, 1928), 370; cf A Corbin, "Jural Relations and Their Classification" (1921) Faculty Scholarship Series Paper 2873. That the law recognises possession of ownership interests that are future interests demonstrates possession's abstract quality at law as one needs to pay particular attention to what ownership interest one is dealing with when it is said it is in possession or being enjoyed in possession. As possession is the enjoyment of an ownership interest (but is not ownership itself), it follows a remainder or (true) reversion can be possessed, such interests being ownership interests.

1062 According to Oliver Wendell Holmes, The Common Law (edn, M Howe, Little Brown & Co, 1963), possession was a "conception … only less important than contract".

1063 The doctrine of waste is another governance rule which will also apply to life tenants. See originally, the Statute of Gloucester of 1278.

1064 That is, it hardly explains much if we say that the lessee has possession of a right of possession.


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creates the proprietary interest of ownership (leasing)1065 including "of necessity … those terms

and conditions of the lease which affect or qualify the interest in the land which the lease

purports to create".1066 Like the owner of a fee simple estate, the lessee may enjoy the exclusivity

of his or her ownership of an estate (but only for a term) and the advantages and disadvantages

of ownership. The lessee's exclusive enjoyment is a freedom to decide the exploitation and use

of the leased premises. For this reason, the lessee is said, as a matter of the landlord and tenant

relationship, to be entitled to quiet possession (or enjoyment) of the leased premises. That is a

matter of the proprietary nature of a lease, not its contractual nature,1067 and the lessee may

vindicate his or her right to possession of the lease by an action for recovery of possession. The

lessee may, however, and almost always is, restrained contractually to use the leased premises

for a limited purpose. Whether a term of a lease affects, delimits, or qualifies the proprietary

interest that is a lease will depend on its nature. A covenant that is implied by the landlord and

tenant relationship will certainly qualify; a collateral contract will not.

Nevertheless, it would be slightly misleading to say that, having regard to the effect of the grant

of a lease taking effect in possession, the term possession can always be used as a substitute for

enjoyment of land (or leased premises) on the basis that, in effect, the owner of the fee simple

simply transfers enjoyment – or possession – to the lessee for a term. Enjoyment – or

possession – refers to the lawfulness of what the lessee may or is doing. As possession is part of

a broader legal response to the recognition and securing of enjoyment of land, the law does not

go so far as to say that possession should always be thought of as actual enjoyment of, or an

immediate liberty to enjoy, land. If a lessee wrongfully remains in possession after the expiry of

his or her lease, the lessor usually is entitled to compensation for use and occupation of the land

by the lessee. While such compensation strictly is not mesne profits – which are damages for

trespass1068 – it has been said the distinction between the two rights to compensation is "without

a difference".1069 Regardless, it is the former lessee, now a tenant at sufferance, who is enjoying

1065 However, the term does not have the effect that a lease for say, 10 years, is of a different proprietary nature to a lease for say, 20 years. Each is a term of years. See Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367, [666]-[667]; Re Russell Road Purchase-Moneys (1871) LR 12 Eq 78, 84 (Mallins V-C) ("In law the duration of a term is immaterial, and a term for 21 years is as great an estate as one for 21,000 years. The distinction is between a chattel interest, which is a term of years, and a freehold interest. A freehold interest of the smallest duration is greater in the contemplation of law than the longest term.").

1066 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1, 17 (Barwick CJ). There, his Honour was considering what registration under a Torrens title statute secured. Registration does not ensure the validity or enforceability of every covenant in a lease.

1067 It is not understood why many leases expressly state that, if a lessee complies with the terms of the lease, the lessee is entitled to quiet enjoyment of the leased premises. Such a clause offends the very nature of a lease.

1068 Goodtitle v Tombs (1770) 3 Wils KB 118.

1069 Dean and Chapter of Canterbury Cathedral v Whitbread Plc (1995) 72 P & CR 9, 16; A Brown, A Practical Treatise on Actions at Law (1844), § 12 ("Upon judgment and execution in ejectment, the


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the land and cannot be sued in trespass (until removed). In essence, the tenant is a squatter.1070

But, through compensation (a governance rule) it is the lessor who, because of his or her

property, is treated, for the purposes of recognising and securing his or her enjoyment of the

land, – but as a fiction1071 – as the person in possession. Noting that trespass is, at least here, an

injury to possession and is wrongful, the lessor is, to vindicate his or her property, fictionally

taken to be in possession so that he or she may have his or her right of action. Of course, were it

not for the tenant's previous lawful enjoyment of the land by the lease, the tenant's (subsequent)

possession, although wrongful, would not give rise to a claim for compensation by the lessor.

Although possession mostly is associated with the idea of enjoyment of land, it again shows that

it is a mere abstract element concerned with lawfulness in the law's response to ensuring that

land is, or can be, enjoyed by those entitled so to enjoy.1072

title of the lessor of the plaintiff has relation back to the time when his right of entry first accrued, and he is in law considered to have been in actual possession of the property recovered from that time; it consequently follows that the possession of any one who held possession during the time that the lessor of the plaintiff was out of possession was wrongful, and he may bring an action of trespass against him to recover damages for the mesne profits. This action is rendered necessary, as in ejectment the lessor of the plaintiff (except in the case of ejectment by a landlord against a tenant) only recovers the land, but not the profits thereof during the period he was out of possession; to recover these profits he must in general resort to an action of trespass for the mesne profits.").

1070 R Megarry and H Wade, The Law of Real Property (Stevens and Sons Limited, 5th edn, 1984), 43 ("Such a tenant differs from a trespasser only in that his original entry was not wrongful and the landlord must re-enter before he can sue for trespass. His 'estate' in the land is no true estate, and there is no real tenure; the 'tenancy' seems to have originated in the pretext for preventing the occupation being regarded as 'adverse possession', which in time could bar the landlord's title altogether. The old rules as to adverse possession have long disappeared, and this 'tenancy' might be permitted to go with them. Neither tenancies at will nor tenancies at sufferance, therefore, need be classified as additions to the catalogue of estates. If they are excluded, the classification can be simplified into freeholds and leaseholds.").

1071 F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, (CUP, 1910), Lecture VII).

1072 The doctrine of adverse possession is consistent with this idea. The policy of the law is not to allow owners of land to sit by and let their lands be enjoyed without consequences. See Land Title Act 1994, pt 6, div 5 (Application by adverse possession for registration as registered owner). Prior to the Real Property Limitation Act 1833 (3 & 4 Will 4, c 27) (UK), a lapse of time barred an owner's remedies against an adverse possessor, but did not transfer title. See Beaulane Properties Ltd v Palmer [2006] Ch 79, [69]. Also, consider the position of the Crown (the State) and its land. It was once thought that the Crown could not bring an action in ejectment because that would suggest the Crown could be out of possession of its land and would offend the dignity of the Crown See generally Attorney-General v Brown (1847) 1 Legge 312, 320. Necessarily, the Crown was always taken to be in possession of its land even though someone else was, as a matter of fact, in possession. Eventually, in Commonwealth v Anderson (1960) 105 CLR 303, 324 (Windeyer J) it was held that the Crown could bring an action in ejectment. As a related point, the Crown once proceeded against unlawful occupants on Crown land by an information of intrusion. A person who entered on the Crown's demesne was said to intrude on the Crown's possession. As a prerogative of the Crown, the information was a statement of the Crown's title and a possessor could not rely on any (actual) possession to establish a title against the Crown. In effect, as the information did not allege dispossession, the possessor needed to establish a better title than the Crown to the land, failing which he or she was treated as a trespasser and could be moved and be liable to pay damages to the Crown. The possessor could not, therefore, gain a title at the expense of (or adversely to) the Crown: the Crown could not be disseised. The common law rule was that time did not run against the Crown (nullum tempus occurrit regi). See Sheffield v Radcliffe (1615) Hab 334, 337. In short, the


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5.3 An opening for reworking possession?

So far, it is apparent that possession may, in an orthodox sense, only represent that what the

relevant ownership interest entitles the owner to do: this is the idea of ownership in

possession.1073 So, accepting that possession conceptually at law represents the enjoyment of an

ownership interest of an estate (including its advantages and disadvantages),1074 it cannot be

anything more than what the owner of that interest may have.1075 Thus, if an ownership interest

is subject to say, a mortgage, a possessor of the ownership interest (who is not the owner) does

not have possession despite the mortgage.

As possession's relationship with an estate is premised on the estate's being corporeal and

entitling an owner of it to enjoy it exclusively, it must then be, like ownership itself, of the land

and the enjoyment of the land; it is not enjoyment of an interest or right in or in respect of the

land. The former concerns decisions about the land itself and, for that reason, has a thinghood

quality because those decisions necessarily concern the capacity of the land to lawfully support

those decisions; the latter concerns decisions relating to a specific or limited matter in respect of

the land.

information created a fiction to the extent that the possessor was regarded merely as a trespasser against the Crown, notwithstanding that the effect of the information was to put the Crown into possession. However, by statute, it became possible for a period to assert a title adverse to the Crown: whereas by the information of intrusion the possessor was compelled to show a better (and, therefore, prior) title to the Crown, now, after a period of 20 years of adverse possession, the Crown was required to show its title and, if it could (and assuming the possessor could not show a better title), the Crown could recover accordingly 21 Jac I c 14 (known as the Statute of James). Eventually, it became that, after a period of 60 years of adverse possession, the Crown was barred from showing a better title. During the 60 year period, however, the Crown could proceed by the fiction of its possession under an information of intrusion Crown Suits Act 1769 (UK) (known as the Nullum Tempus Act). In Queensland, the Nullum Tempus Act was repealed by the Real Property Acts Amendment Act 1952 (Q). Today, it is not possible to acquire title by adverse possession against the Crown (see, for example, Limitation of Actions Act 1974 (Q), s 6(4)). This applies to any land of the Crown, including land held by the Crown for an estate in fee simple (Water Corporation v Hughes [2009] WASC 152). See also, for example, Land Act 1994 (Q), ch 7, pt 3 (Unlawful occupation of non-freehold and trust land). Nevertheless, a possessor of the Crown's land has, it is said, a title that is good against the world, except the Crown; cf, Step v Crown Land Manager [2011] NTSC 55, where the court found that, although the occupant of Crown land could assert a possessory title against the world, but not against the Crown (because of legislation almost identical to the Limitation of Actions Act 1974 (Q)), the occupant was a trespasser relative to the Crown. See T Martin, "Possession as a Root of Title" (1912-1913) 61 U Pa L Rev 647, 651 ("The doctrine that possession is a root of title exists independently of the Statutes of Limitation.").

1073 However, possession in a title sense is not the ownership interest in the sense of being the same as the ownership having. It can be the having in its own way as a possessory title. Ownership is subject to its own entry rules; possession, when creating a possessory title, does not satisfy them. Note, however, for example, an adverse possessor may become a registered owner by application. See Land Title Act 1994 (Q), pt 6, div 5, fn 715.

1074 This is why is represents the characteristics of priority and exclusivity. However, as it is not ownership's having the estate in the same way as an owner's ownership, anyone possessing who is not the owner has a priority to the estate and its enjoyment that is inferior to the owner's.

1075 C Rose, "The Law is Nine-Tenths of Possession: An Adage Turned on Its Head" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 2. It is less than what the owner has for the simple reason that possession is not ownership.


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From one perspective, if we were to accept that ownership of an estate need no longer represent

a thinghood characteristic, having a relationship with the estate as an owner does or can, is still

a possession. However, much false thought about possession – usually as a result of trying to

accommodate competing demands to land – turns on the manipulation of a notion that

possession is what the estate itself confers as exclusive enjoyment or as a right of exclusion. A

person who exclusively enjoys the estate is its possessor, but that simply is because of what

ownership of the estate represents, rather than what the estate or a right confers. Once it is said

possession need not be exclusive (that being the qualification referred to), that can only make

sense if ownership of the estate does not represent exclusive enjoyment.1076 That is, to maintain

the link between possession and ownership their inter-dependency means, despite their

respective functions, the proposition must work both ways. If we try to isolate possession as

representing say, a rigid idea of intentional control over land without reference to the legal

construct of ownership applying to the land, conceivably possession could outflank ownership

and loses its relational characteristic (to thinghood). Conversely, however, and perhaps for the

future development of ownership, recognising that relational characteristic of possession may

mean that ownership need not be restrained by a view that possession represents intentional

control. Rather, and so each of ownership and possession can function together, possession

could simply represent the enjoyment that ownership represents from time to time. However,

this sounds like a particularly unstable and unsustainable approach. On the other hand, if we

abandon their relational existence altogether – that is, they need not align in the sense explained

– possession may, as an especially abstract idea, represent varying degrees of control over land,

irrespective of what ownership represents or of a purpose of land.1077 With respect, such

1076 See fn 695, although in Congoo, [161], Gageler J was not referring to possession of an estate; cf Lewis v Bell (1985) 1 NSWLR 731, 735 (Mahoney JA) ("And where what is granted is possession, it still, in principle, may remain to be decided whether what is granted is exclusive possession. But it is not necessary to consider, in this case, whether there can be a distinction between possession and exclusive possession and (if there can) what distinctions there may be between possession and exclusive possession in this context."). See also Hill v O’Brien (1938) 61 CLR 96; Radaich v Smith(1959) 101 CLR 209, 223; Moors v Burke (1919) 26 CLR 265, 271 ("[P]ossession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world.").

1077 For example, a possession of a trustee or some other manager of land dedicated for a public or community purpose (for eg, Land Act 1994, ch 3, pt 1): see New South Wales v The Commonwealth (1926) 38 CLR 74, 91 (Isaacs J) ("[A statutory dedication under the Crown Lands Alienation Act 1861 (NSW)] impressed upon dedicated lands a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated"); or possession under a mining lease: see Ward, [308] (Gleeson CJ, Gummow, Gaudron and Hayne JJ) ("The grant of exclusive possession for mining purposes is directed at preventing others from carrying out mining and related activities on the relevant land. Although the lessee could prevent anyone else seeking to use the land for mining purposes, it does not follow that all others were necessarily excluded from all parts of the lease area … The holder of a mining lease having a right to exclude for … specific purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity.").


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thinking is the only way to explain, in particular, the judgments of Toohey J in Wik and of

Dalton J in Eckford v Stanbroke Pastoral Company Pty Ltd1078 (Eckford) who respectively

thought that there was a concept of non-exclusive possession (as considered in more detail in

chap 7, para 7.2).

5.4 Adjudicative 'lawfulness' as an exercise in inner-systemic abstract justification: the horizontal extension of ownership in possession as conceptualised

In the well-known case of Bradford Corporation v Pickles1079 (Pickles) – described by Kevin

and Susan Gray as the high-point of property absolutism1080 – the House of Lords held that an

owner of land which contained underground water that percolated by undefined channels and

flowed to the land of a neighbour could, irrespective of his or her motive (including to injure his

or her neighbour), divert or appropriate the percolating water in his or her own land and thus

deprive his or her neighbour of it.1081 According to Lord Halsbury LC:1082

This is not a case in which the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it. Motives and intentions in such a question … seem to me to be absolutely irrelevant. But I am not prepared to adopt Lindley LJ's view of the moral obliquity of the person insisting on his right when that right is challenged. It is not an uncommon thing to stop up a path which may be a convenience to everybody else, and the use of which may be no inconvenience to the owner of the land over which the path goes. But when the use of it is insisted upon as a right, it is a familiar mode of testing that right to stop the permissive use, which the owner of the land would contend it to be, although the use may form no inconvenience to the owner.1083

Forty years later, in Hollywood Silver Fox Farm Limited v Emmett1084 (Emmett) Macnaghten

J (rightly) distinguished Pickles1085 when he held a defendant owner of land liable in nuisance to

his neighbour when the owner maliciously caused his son to discharge guns on the owner's land

as close as possible to breeding pens for silver foxes on his neighbour's land. The owner

intended to injure his neighbour by interfering with the breeding as he knew that the vixens

were particularly nervous during breeding season. The significance of Pickles, and the point of

distinction with Emmett, lies in the lawfulness or otherwise of the owner's activity. As

1078 [2012] 2 Qd R 324.

1079 [1895] AC 587.

1080 K Gray and S Gray, Elements of Land Law (OUP, 5th ed, 2009), [1.5.53].

1081 See, for example, at 598 (Lord Watson).

1082 [1895] AC 587, 594-595.

1083 See also Allen v Flood [1898] AC 1.

1084 [1936] 2 KB 468.

1085 Pickles' case was not a private nuisance case as the neighbour did not have a right for the water to come onto his land. See N McBride, "Tort Law and Human Flourishing" (University of Cambridge Faculty of Law Research Paper No 55/2014).


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explained, if the act is lawful, the owner may do it, regardless of his or her motive, and

irrespective of the perceived harm to a neighbour. That is his or her thinghood enjoyment (or

that which he or she, by title, has as the legal relationship of priority to, and exclusivity with, the

land). If, however, the act is exercised to the nuisance of his or her neighbour (in a legal sense),

the owner does a legal wrong – he or she "has no absolute right to create noises upon his own

land, because any right which the law gives him is qualified by the condition that it must not be

exercised to the nuisance of his neighbours or of the public" –, and if it is done "intentionally he

[or she] is guilty of a malicious wrong, in its strict legal sense".1086

That is, the owner may by legal right, or rather, legal freedom, create any noise he or she likes

that does not cause a nuisance because there is nothing to say he or she cannot. In the interests

of "all getting on together"1087 an act of an owner may be lawful and, therefore, can be done by

right, or unlawful and may still (actually) be done, but without right. A right is then (in the

sense being referred to here) purely an abstract notion. Yet, what is being discussed in

substance is an owner's liberty of enjoyment of that which ownership is thought to give him or

her: does an owner, in enjoying his or her ownership, have the freedom to create noise, for

example, or, more strictly, is it the case he or she only has a freedom (often called a right) to

create a noise so long as it does not substantially and unreasonably interfere with his or her

neighbours' enjoyment of their freedoms of enjoying their land?1088 Or, does an owner only have

a freedom to enjoy non-noisy activities on his or her land?

We must dig down into the enjoyment that the authority of ownership in possession is meant to

represent (and which is protected in law). That enjoyment assumes a lawfulness in, as, or by

that ownership.1089 Lawfulness is, then, the substance of the ownership relationship. However,

in so attributing lawfulness or otherwise to or as the enjoyment of the land, the law is putting a

value on the interests of ownership (essentially as an institution) relative to the value of other

interests in society (including ownership which may be enjoyed by someone else and non-

ownership interests). That is, the priority to and exclusivity of the land is to or of the advantages

of the land as reasonably enjoyable relative to the enjoyment of other land or other interests and

1086 Allen v Flood [1898] AC 1, 101 (Lord Watson).

1087 Restatement of Torts (Second) §822 (US) comment g (1978) ("It is an obvious truth that each individual in a community must put up with a certain amount of risk in order that all may get on together."). See also Lawrence v Fen Tigers Ltd [2014] 1 AC 822, [2] (Lord Neuberger). Although, as noted by Martin J in Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228, [165], "[c]ourts cannot force neighbours to act reasonably or sensibly towards each other".

1088 The right is a shorthand way of saying the owner, if challenged, has (or had) an enforceable claim to create the noise. More correctly, the owner had a 'right' to defend the plaintiff's claim that he or she could not lawfully create the noise.

1089 That is, ownership does not represent anything but an enjoyment that is lawful. That could be expressed as, ownership is lawfulness of enjoyment of land. An owner may act unlawfully, but ownership did not authorise him or her to act in such a way.


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values in society. The interests or values of ownership need not necessarily be weighed, in a

relative sense, against specific interests or values of another person (for example, as might arise

in a context of causing some direct harm to that other person); it may be in the interests of

society (the public interest) that, for example, land not be used for a particular purpose as it

might if a person had the priority to and exclusivity of the land. Thus, ownership in possession

ought only extend so far as being the priority to and exclusivity of that purpose. Conversely, an

owner may only be able to use land for a particular purpose because using it only to that extent

is in the public interest (for example, for a pastoral purpose, or because of a planning decision)

or perhaps even not using land for its highest and best use implies the owner ought disgorge his

or her ownership or create some right in someone else who will use it for that use (an efficiency

argument).1090

The law can conceptualise lawfulness (a highly abstract legal concept) in an adjudicative setting

according to another abstract legal concept of justification (although, as Lawrence v Fen Tigers

Ltd1091 highlights, there are inherent limits to how far a court can go1092). In simple terms, can

an owner's actions be lawful – or rather, are an owner's actions only ever lawful – according to a

legal justification standard and it is that justified lawful enjoyment that really represents

ownership in possession? Necessarily, enjoyment, then, is an inter-dependency idea as it is

realisable only in a societal framework. Any owner cannot acquire ownership except according

to society's rules: there is, thus, a value on the institution of ownership in society through its

legal system especially as it goes to great lengths (particularly in modern times) to protect that

ownership through registration. And the common law also has rules for the interpretation of

statutes which hedge around ownership.1093

In the leading Australian case of Gartner v Kidman1094 Windeyer J observed that the law could

never have been that the owner of land had the right to do as he or she pleased on or with his or

her own land.

The idea of reasonableness, that is basic to so much of the common law, is firmly embedded in the law of nuisance today. Pronouncements concerning the scope of nuisance as a tort avoid stating rights and duties as absolute. In respect of both what a man may do and what his neighbour must put up with, its criteria are related to the reasonable use of the lands in question. In some recent cases there is perhaps a more explicit recognition than there was in some earlier cases that a landowner's duty to his neighbour qualifies his right to do what he likes with his own land and on his own land. But this always was the law, and such absolute statements as appear in Bradford Corporation v Pickles, are no longer, I think taken to mean the contrary: see Hollywood Silver Fox Farm Ltd v Emmett. A shifting of emphasis has been

1090 Cf Kelo v City of New London 545 US 469, 503 (2005) (O'Connor J, in dissent). See fn 948.

1091 [2014] AC 822.

1092 See, for example, [2014] AC 822, [198] (Lord Carnwath)..

1093 See fn 381.

1094 (1962) 108 CLR 12.


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a characteristic of the way in which Courts administering the common law have in recent times accommodated proprietary rights and modern social interests.1095

What often is called a proprietary right, but, again, really is a freedom ("what a man [or woman]

may do"1096), emphasises that the construct of the freedom itself occurs and is constantly being

reshaped according to a relativity idea. In whatever iteration it emerges it always is a freedom.

It is, as a constant, explained as being shaped according to a reasonableness criteria that can

accommodate a "shifting of emphasis" in the courts' administration of the common law – an

adjudicative process – to balance the freedom of the individual against modern social interests.

The reasonableness of what an owner may do is, on a basic level, a balancing act: it is, in the

type of scenario envisaged by Windeyer J, determined according to the interest the owner may

have in doing what he or she likes with and on his or her own land relative to the interest of the

neighbour in not being harmed by the owner's doing so. Again, this is a negative community

view of ownership. Nevertheless, an owner's freedom of enjoyment of his or her ownership of

land is then one of reasonableness, and the lawfulness of the exercise of that freedom – as

evidenced by the owner's decisions in respect of the land – turns on whether such exercise (by

use and exploitation of the land) is reasonable.

But, the reasonableness and, necessarily, the lawfulness, is a deeper idea than its merely being a

limitation on the exercise of an owner's exercise of his or her personal freedom to decide how to

use the land for his or her own benefit. The reasonableness or lawfulness of enjoying the land's

advantages is what ownership represents. This is because the idea of lawfulness is inherently of

a 'common law' (in the sense of its being a law for everyone regardless of one's identity as an

owner or otherwise). It can, then, be interpreted as functioning or applying outwardly in that it

concerns the enjoyment of the land relative to the world: therefore, it is of ownership's

proprietary nature.

While in the case of potential harm to a neighbour arising from a decision of an owner in

enjoying his or her ownership in possession (that is, by using or exploiting the land in a

particular way) the law intervenes by imposing a negative duty on an owner not to cause a

nuisance, the duty is personal to that owner. The absence of any freedom (associated with

unlawfulness), like having a freedom (associated with lawfulness), however, inures in the

ownership. That is, an owner's freedom is controlled (or laid out) by ownership because

ownership recognises and protects an enjoyment of lawfulness relative to the world. An owner

has a duty not to act outside that freedom, otherwise he or she commits a legal wrong. An

owner has a right to protect (or vindicate) his or her lawful activities from unlawful interference,

those activities being within his or her freedom of enjoyment of ownership.

1095 (1962) 108 CLR 12, 47.

1096 Ownership is proprietary. We are here referring to an owner's freedom to enjoy ownership.


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Pickles was a pure property case and was about what an owner could (maliciously) do as owner

with his or her land; Emmett was a nuisance case. Windeyer J's observations in Gartner v

Kidman, as cited, also concerned the law of nuisance. Each, however, concerned, and required a

decision about, the respective interests of a plaintiff and a defendant relative to one another.

However, in essence, the plaintiff in Pickles sought a recharacterisation of the I-Thing

relationship of priority and exclusivity of the land (the proprietary) which created Pickles'

freedom to decide how to enjoy the percolating water on his land. That is, the plaintiff wished,

in its interests – which it perceived as more important than Pickles –, that Pickles not be able to

enjoy that which ownership in possession of land secured for him, namely, the advantage of

decision-making in his favour which arises from having the thing that is land. Of course,

consistent with that, Pickles could have decided to do nothing. If, however, Pickles had lost, it

would be somewhat difficult to say he had complete freedom to enjoy his land. Instead, in

restraining Pickles, the plaintiff would, in essence, have acquired a new right in respect of

Pickles' land (possibly as a negative right to prevent Pickles' diverting or appropriating the

water,). That does not mean, however, Pickles would no longer be owner (as he would have

retained his title). In contrast, Emmett required Macnaghten J to decide whether the interest of

the defendant in firing off a gun – which he could do on his land because he owned it – was less

important than the plaintiff's interest in being able to carry on fox breeding on his land.

Emmett did not deny an I-Thing relational perspective of ownership; the defendant still had the

priority to and exclusivity of enjoying the thing that was the land. It was simply not lawful for

him to enjoy it in a way that caused a nuisance to the plaintiff. The law of nuisance, and the law

of trespass – both laws of tort – do not, of themselves, cause the law to recast an I-Thing

characterisation of ownership in possession as an I-Others relational perspective1097 merely

because they may, on occasions, prevent an owner's freely carrying on a particular activity on his

or her land or, on others, not allowing an owner to prevent entry by someone else. It depends

how the law decides to justify the interests (or values) of other persons relative to the interests

(or values) of a possessor (whether an owner or someone else) in respect of the enjoyment of

land. As seen (at least in relation to nuisance), a shifting of emphasis by the courts (as noted by

Windeyer J) causes a shift in how proprietary rights – or freedoms arising from (proprietary)

ownership – and modern social interests (even at least as far back as the 1960s) can both be

accommodated. While, as Windeyer J contemplates, the shift can, in a particular dispute, have

the result that a defendant owner may be found not to be using his or her land (as the result of a

1097 Recalling that the I-Others was a purely narrow 'having' view which may force on owners more positive obligations in favour of others because it recognises that, in some instances (for example, public or quasi-public lands) their 'interests' are as important, or perhaps on occasions more important (for example, under a native title). In native title cases, the I-Thing (to preserve the thing) may be characterised as a 'ownership' (or possession) for a purpose.


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decision freely made) reasonably (and, therefore, not lawfully), that term simply asks when will

the interests or values of a plaintiff, whether as a possessor or a non-possessor, be favoured.

Ownership as a positive obligation?

The law, in conceptualising an ownership in possession, clearly intends to create situations

where a possessor may exclude others. When the law is forced to balance the possessor's

freedom of enjoyment relative to someone else's claim to entry on, or an interest in, the owner's

land, it intends to recognise the outcome ought, as a general principle, overwhelmingly favour

the owner or possessor (unless, of course, the owner authorised the entry, or created or is

otherwise bound by the interest).1098 We see that in ownership's conceptualisation and

coherence. If ownership does not represent the characteristics of priority and exclusivity of the

land it would likely only represent a relationship in respect of the land, or perhaps what might

be called a gradated form of ownership as it would (if we accept that a right of possession is a

necessary ingredient of (full) ownership) not give rise to a consequence of unqualified exclusion

of all others; but, more particularly, it would permit the enjoyment of land by others as forms of

property. This would make ownership especially abstract as it would no longer always have its

corporeal or thinghood quality.

However, recognising that ownership is conceptualised as a relationship of lawfulness – the

particular lawfulness being arrived at as a justification of the law – could that conceptualisation

(in maintaining that contingent relationship with a justified lawfulness) modify itself such that

ownership also represents an additional community-dependent characteristic so that, if the

context should require, ownership must apply itself in a way that may benefit non-possessors?

This may occur where, although recognising the social benefit of ownership (including its

ordinary intended consequence of exclusion) as a hierarchical relationship with land, that

relationship represents a positive community dependent existence whereby a positive obligation

inures in ownership itself so that any surplus need of enjoyment (or a particular advantage) –

which may be determined when weighing the relative interests and values of an owner on one

side and a claimant (including the public) to some use or interest in the land on the other – may

be 'transferred' to the community (or a member of the community). Some scholars cite the

justification for such a view (or similar view) as human flourishing.

Alexander, a progressive property theorist, contends that the "basic purpose of property is to

enable individual[s] to achieve human flourishing … [t]hat is, the well-lived life should be

measured by a person's capabilities rather than by a person's possession or by the satisfaction of

1098 It is why statute is said to hedge around property (R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603, [40], [42]). See fn 381.


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his subjective preferences".1099 Thus (and as discussed below), owners may, as a social or

community obligation that inures in ownership itself, not only need to give up or disgorge an

advantage or self-preference of ownership (for example, a freedom to decide who may or may

not enter land or to carry on a particular activity on land), but also give an advantage of

ownership (for example, the availability of the land's use for others) if that advantage is, in a

particular contextual setting, reasonably assessed to be surplus to his or her needs as an owner

(which could be determined having regard to the owner's own status (for example, as a public

authority) or limitations under a planning instrument) and that is necessary to contribute the

essential life-fulfilling capabilities of others. It does not occur by compensating others, or as a

restitutionary-type idea: it occurs by reshaping ownership. It thus may represent more than

merely recasting or modifying an owner's personal freedom of enjoyment of ownership in

possession; rather, it recasts the already abstract concept of what it means to lawfully enjoy

ownership in possession because it now shifts that concept from an essentially negative

community view (not to cause harm to others in enjoying) to a positive community view (to

enjoy by giving up (assigning or disgorging) an advantage where that it is necessary to

contribute to the capabilities of others as stated or the community generally). A 'giving up' may

be realised in different ways: it may involve allowing others to use land for a particular purpose

not involving a right of property, or it could extend to giving them (by operation of law) a right

of property. In either case, the interest of someone else may be enforceable by remedy (say, an

injunction to restrain an owner from denying use).

However, a particular difficulty in property jurisprudence is, as identified in chap 3, para 3.4,

that, because ownership has a default law-stating function or functions from a negative

community view, the scope of its consequential freedoms for its enjoyment tend to exist until

refined, reshaped, or denied (including by statute). That is, in assuming a lawfulness

characterisation of ownership's enjoyment (in possession) according to a default idea that

ownership is generally intended,1100 as a consequence, to enable the owner to exclude others

until determined otherwise, necessarily the inquiry becomes when a non-possessor's (or, in a

broader sense, the community's) interests or values are more important than a possessor's.1101

This often is a process of adjudicative justification.

1099 G Alexander, "Ownership and Obligations: The Human Flourishing Theory of Property" (2013) Cornell Law Faculty Publications, Paper 653, 2. Alexander distinguishes human flourishing from a welfarist view of property. "Welfarism … [generally] supposes that there is one and only one good – maximization of preference satisfaction."

1100 That is, ownership itself is lawful; the owner's freedom of enjoyment (or how he or she may enjoy ownership) also is lawful. We are considering which decisions an owner may make may fall within that freedom.

1101 To be clear, merely because the law determines that an owner can no longer exclude particular persons ought not, at least in an orthodox sense, having a looping effect that ownership and possession also no longer represent characteristics of priority and exclusivity of land. That is,


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According to McBride, who favours in tort law a balancing between a plaintiff's and defendant's

relative interests,

tort law has to take a view as to what is in Plaintiff's and Defendant's respective interests. And that, in turn, requires tort law to take a position on what is involved in human flourishing. We cannot tell whether Defendant's being made to do x will make Plaintiff better off (and if so, to what extent), or make no practical difference to Plaintiff, unless we can construct some sort of line of value for Plaintiff, one end of which will involve Plaintiff doing 'really badly' and the other end of which will involve Plaintiff doing 'really well', and place Plaintiff on that line of value and see what effect Defendant's being made to do x would have (or is likely to have) on Plaintiff's position on that line. But in order to construct such a line of value, we have to take a view as to what doing 'really well' and what doing 'really badly' means for someone like Plaintiff. The same applies when we have to determine whether Defendant's being made to do x will make Defendant worse off (and if so, to what extent), or make no effective different to Defendant.1102

McBride, having reviewed various case authorities, is able to construct a rough table of values

that appear to underlie a balanced approach to tort law (at least in England and Wales) in the

sense that the approach is a form of adjudicative administration of law by the courts. These

identified values are intended to strike a balance between the relative interests and values of

plaintiffs and defendants in determining what basic rights plaintiffs have against defendants. In

essence, the law decides what interests and values of plaintiffs and defendants it ought to

recognise and protect and engages in an objective value judgment1103 as to which interest or

value ought to prevail in a particular dispute.1104 We might call this part of the law's justification

process: that is, it is deciding according to some objective value which interests or values of a

disputant party ought to prevail. Its result is to characterise the actions or behaviour of the

relevant party as lawful or unlawful. And it becomes particularly abstract because the

determined limit(s) of those actions or behaviour can represent the outward expression of

ownership. McBride reasons, for example, that where a plaintiff's interest in a defendant's not

doing x counts as 'very important' (that is, where it concerns values such as life, health, good

education, and intimate relationships) or 'important' (liberty, property, having a job, not being

made destitute, and playful activities such as music-making,1105 and cricket1106) and the

ownership still represents the priority to and exclusivity of the land and the lawfulness of an owner's freedom of enjoyment still is that of priority and exclusivity of the land. Nevertheless, we are still asking what the priority to and exclusivity of land means. Once we accept that it simply is not about a I-Thing relationship, the relativity idea of I-Others becomes a focus on relative significance of interests.

1102 N McBride, "Tort Law and Human Flourishing" (University of Cambridge Faculty of Law Research Paper No 55/2014), 1-2.

1103 G Alexander, "Ownership and Obligations: The Human Flourishing Theory of Property" (2013) Cornell Law Faculty Publications, Paper 653, 3 ("Human flourishing, unlike welfarism, is not a desire-fulfillment theory of how a person's life can go maximally well. It is an objective theory … [However, there] are many diverse paths to lead a fulfilling life, many ways of flourishing.").

1104 Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42, [57].

1105 See Christie v Davey [1893] 1 Ch 316.


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defendant's interest in being allowed to do x counts as 'not very important' (making money or

not being upset) or 'not at all important' (malicious activities or degrading activities) – and so

long as everything else is equal – the courts are likely to impose a duty not to do x on the

defendant for the plaintiff's benefit.1107

Alexander recognises four (uncontroversial) essential capabilities to living a fulfilling life: life,

freedom, practical rationality, and sociability. And, these, according to Alexander:

can meaningfully exist only within a matrix of social structures and practices. Even the most seemingly solitary and socially threatened of these capabilities, freedom, depends upon a richly social, cultural, and institutional context; the free individual must rely upon others to provide this context … We are, in short, inevitably dependent upon communities, both chosen and unchosen, not only for our physical survival, but also for our ability to function as free and rational agents.1108

Communities are the means through which people flourish and "become fully socialised into the

exercise of our capabilities". Alexander considers that even as individual agents we have a

dependency on others and the communities of which we are members: it is that dependency

which allows people to develop human capabilities that make human flourishing possible.1109

But, human flourishing relies on resources.

Human flourishing requires a version of distributive justice that has as its objective giving people what they need in order to develop the capabilities necessary for living the well-lived life. Insofar as I regard my own flourishing as valuable and something that I ought to foster, insofar as I am a rational human being, then I am committed to fostering the flourishing of others insofar as they are rational human beings as well.1110

Alexander does not consider the state can properly make demands on someone to foster the

development of others. However, in his view, in:

the modern capitalist state, … the uncoerced actions of private entities are not sufficient to supply all members of society with access to all of the resources necessary for them to have the opportunity to develop the capabilities necessary for human flourishing.1111

As members of communities are dependent on others, an obligation arises to support the social

networks and structures which allow each member to develop capabilities that make human

flourishing possible. In particular:

1106 See Miller v Jackson [1977] 1 QB 966 (CA).

1107 N McBride, "Tort Law and Human Flourishing" (University of Cambridge Faculty of Law Research Paper No 55/2014), 13-14.

1108 G Alexander, "Ownership and Obligations: The Human Flourishing Theory of Property" (2013) Cornell Law Faculty Publications, Paper 653, 5.

1109 G Alexander, "Ownership and Obligations: The Human Flourishing Theory of Property" (2013) Cornell Law Faculty Publications, Paper 653, 5-6.




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[p]roperty owners are obligated to provide from their surplus, and in ways that are appropriate to them as property owners, to the communities to which they belong – upon which they are dependent – those benefits that the community reasonably regards as necessary for development of the capabilities essential to human flourishing. This obligation is not unlimited, of course. It is limited in the first instance by the same demands generated by the capabilities that facilitate human flourishing – personal security, practical rationality, and sociality, etc. It is also limited by the principle of subsidiarity – the notion that the state ought not arrogate to itself functions that can be performed just as well, if not better, by smaller, more intimate communities.1112

That is, property owners must provide to 'their' communities, or members of communities, what

they do not need as property owners where that contributes to capabilities necessary for human

flourishing.1113 However, in turn, communities themselves must themselves provide its

members, including owners, resources that contribute to capabilities necessary for human

flourishing. Alexander, in considering the controversy in the United States of public

recreational use of privately-owned beaches (which in some states, is protected through a public

trust doctrine) concludes:

The need to nurture affiliation will not always justify public access.1114 But surely, as social conditions change and make affiliation more difficult, the good of affiliation will justify some version of a reasonable access rule in some circumstances where public access to privately-owned land is sought for recreational purposes.1115

Therefore:

1) a human flourishing theory of property recognises a rights and obligations view of

ownership;

2) the normative foundation of those obligations rests on human flourishing, that is, living

a fulfilling life according to (at least) the essential capabilities of life, freedom, practical

rationality, and sociability;

3) the inter-dependency of communities and their members means that owners of land

within those communities must contribute the surplus of what they do not require as

property owners to the "vitality of [a] community's material infrastructure": for example,

by providing reasonable access to another member of the community, not simply

because he or she demands it, but so that he or she may engage in a use of the land that


1113 Inherently, that is not at the expense of their own human flourishing. That is, their own communities must, in turn, provide capabilities for owners to have the capabilities essential for human flourishing.

1114 Including where the public has reasonable access to a public beach. Cf C Boge, "A Trip to the Beach: A Matter of Right or Trespass?" (2017) 37 Queensland Lawyer 8.



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supports a life-fulfilling capability (such as engaging in recreation, that being an element

of the capabilities of life and sociability);1116

4) as society changes, so too may the obligations on owners because the incapacity of others

to engage in activities according to the essential capabilities of life may mean that any

surplus of what is not reasonably required by the owner ought to be given up so that

others may engage in an activity supporting one or more of those capabilities (for

example, if the availability of land becomes scarcer).

Earlier we identified that, in interpreting their surroundings, and the symbols and institutions

of society (including of property)1117 as aspects of their humanization of communities, people (in

their own minds at least) may classify land as private land, public land, or quasi-public land (see

chap 4, para 4.3). Each type of land has particular characteristics and is subject to legal

arrangements as to its ownership causing it to fall into one of those classifications (including its

title; approved use under a planning instrument; the owner's invitation or absence of invitation

to others to enter or use the land; the types of improvements on the land, including fencing, et

cetera). That is, characteristics of the land and its enjoyment may communicate to others

whether they are able to enter or use the land. There is here a mixing of the abstract and fact.

The owner of public land, or even quasi-public land (especially where he or she is required by

some legal obligation to maintain the land as public or quasi-public land1118), may not be able to

arbitrarily exclude a member of the public from the land, even though the owner has, by title, a

right of (exclusive) possession.1119 In such an instance, having regard to the nature of the land,

and the member of the public's interest in entering the land (for example, to engage in a

recreational or social activity), the owner may be under a positive obligation to allow entry, or

even to facilitate it (or, at the very least, be under a duty not to prevent or obstruct entry) where

the proposed entry is for a purpose for which the land is used or dedicated.1120 This is because,

all things considered, the interest or value (as identified) of the member of the public in entering

and using the land (which bears a public quality in any event) is more important than the

owner's interest in denying entry.

But, we may be able to extend this thinking to more discrete 'rights' and, more specifically, the

rights or interests of different claimants in the same land so that they represent property in

1116 G Alexander, "Ownership and Obligations: The Human Flourishing Theory of Property" (2013) Cornell Law faculty Publications, Paper 653, 8, 9.

1117 D Sperber, Explaining Culture: A Naturalistic Approach (Blackwell Publishing, 1996), 75. See C Rose, "Possession as the Origin of Property" (1985) 52 U Chi L Rev 73.

1118 Including under a condition of a development approval under a planning statute.

1119 See also fn 538; and chap 7.

1120 See generally, K Gray & S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46.


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themselves. An I-Thing relational perspective of ownership can have the effect of denying

interests or rights of others in land: that must be noted, at least, as an intended function of

ownership in the vast majority of cases.1121 As such, to found a qualifying right (or rather,

freedom) of entry or use or interest in someone else,1122 the asserted interest of the non-owner

would generally need to be of a potent quality when weighed against the owner's property

interest (which we can value as, at least, important). That is, in justifying entry, the entrant's

liberty would, relatively speaking, need to be very important (in McBride's classification). But,

regardless, where the other interest or value is, itself, a claim to property in the land (and not

merely entry or use), in some contexts (generally high stakes contexts), that claim may,

relatively, be thought to be as important as, if not more important than, an existing property

interest. Native title appears to provide an apt example here. Recognising that native title

could, in effect, co-exist on land subject to pastoral leases under Crown or State lands legislation

is a means of redressing discriminatory practices of the past (those practices denying indigenous

populations access and enjoyment to their lands1123). As previously mentioned, but to be

explained further, in justifying the conclusion that the grants of various statutory leases (in

particular pastoral leases under Crown or State lands legislation) do not necessarily extinguish

native title rights and interests, the High Court has apparently reshaped the possession concept.

The justification for doing so is apparent in statements such as the following of Kirby J in

Griffiths v Minister for Lands, Planning and Environment.1124

Before the decision of this Court in Mabo v The State of Queensland [No 2] (1992) 175 CLR, the interests of the Ngaliwurru and Nungali peoples were not treated by Australian law as legal interests at all. However, following the decisions of this Court in Mabo, reaffirmed in Wik, Australian law belatedly recognised the potential of interests in land, such as those of the Ngaliwurru and Nungali peoples, to qualify as legal interests that might be upheld in the nation's courts. Because the land in question in this appeal was unalienated Crown land, with no inconsistent interest granted to others, the situation of the land at Timber Creek presents (subject to proof) the classic circumstance in which Australian law gives recognition to an established Aboriginal native title. It does so without legal discrimination occasioned by the Aboriginal race of the traditional owners. It does so in accordance with the common law as modified by the provisions of the Native Title Act 1993 (Cth), as enacted by the Federal Parliament in 1993 with later amendments, including in 1998, following the Wik decision.

As noted in chap 3, para 3.4, Simon France J in New Zealand Fish and Game Council v Her

Majesty's Attorney-General1125 thought that it was impossible to focus within the decisions of

1121 It is a consequence of ownership's exclusivity of the land.

1122 Where not granted by the owner (or found in statute).

1123 See Mabo v The State of Queensland [No 2] (1992) 175 CLR 1.

1124 (2008) 235 CLR 232, [62] (dissenting). Griffiths was about whether the Northern Territory could compulsorily resume native title interests.

1125 (2009) 10 NZCPR 351, [34]. There, the New Zealand Fish and Game Council, a body representing hunters and people who fished, sought a declaration that pastoral leases granted under the Land Act 1948 (NZ) did not confer 'rights to exclusive possession'.


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the respective majorities in Wik, Ward, and Wilson v Anderson1126 on the factors of the

respective legislation or leases considered as to whether they conferred legal possession

"without acknowledging that the analysis is affected by the context in which the decisions

arose".1127 That is, in propertising things (such as land) in an adjudicative setting according to

concepts such as possession, the context in which the propertisation (an exercise in abstraction)

occurs – including the concept's possible adjudicative reshaping within a determination as to its

content – affects the adjudication. And that context includes a justification concept when

weighing the respective interests and values of the disputants; one that, as Simon France J

noted, needed to consider the effect of the application of the possession concept on native title,

especially as "Australian law … recognised the potential of [native title] interests in land … to

qualify as legal interests that might be upheld in the nation's courts" and which might not be

extinguished unless that was clearly the effect of an inconsistent legislative or executive act.1128

As discussed in chap 7, the majorities in (especially) Wik and Ward chose to reshape possession

rather than decide that it did not apply to the 'non-exclusive' statutory leases at hand. They

were, then, engaging in an adjudicative propertisation of the land when they declared the

content of those leases. This was, it is suggested, the coming together of consequences flowing

1126 (2002) 213 CLR 401.

1127 That said, in Wik, each of the members of the majority, referred to elements of the leases as justifying their respective decisions as to why their grants did not confer rights of (exclusive) possession. For example, the lessee was given such possession as was necessary for the pastoral purpose; several specific and general rights of entry were reserved; the grants did not expressly confer exclusive possession (per Toohey J); the Land Acts conferred rights on authorised persons to enter the leased lands to remove materials; the Acts denied the lessee rights in respect of, or rights to control access to, trees or timber; the Acts authorised the depasturing of stock, if a stock route or road passed through the land and the rights of persons to go on and survey, inspect or examine the lands; the vast areas of the leases (per Gaudron J); the Acts mixed together concepts of leases and licences; the characteristics and incidents of a pastoral lease under the Land Act 1910 (Q) did not approximate what under a lease as understood at general law may have been a right to exclude as trespassers those exercising rights attached to their subsisting native title rights (per Gummow J); the number and variety of reservations emphasised that pastoral leases were statutory interests peculiar to the conditions of the land (per Kirby J). Gaudron J specifically rejected an argument that the Crown acquired a reversionary estate on granting a pastoral lease, in part, because a leasehold estate had not been granted.

1128 New Zealand Fish and Game Council v Her Majesty's Attorney-General [2009] NZHC 438, [37] ("The context of whether a pastoral lease ends native title influenced the starting point, and the focus, of the majority judgments [in Wik, Ward, and Wilson v Anderson]."); cf Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232, [105] (Kirby J) ("Nevertheless, against the background of the history of previous non-recognition; the subsequent respect accorded to native title by this Court and by the Federal Parliament; and the incontestable importance of native title to the cultural and economic advancement of indigenous people in Australia, it is not unreasonable or legally unusual to expect that any deprivations and extinguishment of native title, so hard won, will not occur under legislation of any Australian legislature in the absence of provisions that are unambiguously clear and such as to demonstrate plainly that the law in question has been enacted by the lawmakers who have turned their particular attention to the type of deprivation and extinguishment that is propounded. In Mabo [v The State of Queensland [No 2] (1992) 175 CLR 1, 64,] Brennan J cited authorities from Canada, the United States and New Zealand that support the contention that "native title is not extinguished unless there be a clear and plain intention to do so.").


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from several legal concepts, namely, possession (or what the lessee enjoyed), justification, and

land and its enjoyment (a lawfulness idea). Possession, being at the first level of legal concepts,

was at least open to modification "according to the [legal system's] own purposes and values to a

great extent".1129 Such 'purposes and values' consisted of giving effect to native title according to

the respect the law had for it (as reflected in limits on its extinguishment): the recognition of

native title is its own form of justice in an adjudicative setting that must determine whether it

would be extinguished by the possession and so acts as a form of justification for the

modification of the possession concept, providing, however, possession maintained its

conceptual link to land.1130 That is, native title, now qualifying "as legal interests that might be

upheld in the nation's courts", now forces its way into an adjudication of the content of an

existing relationship with land. However, to the extent that the possession of a lessee under a

pastoral lease is, then, characterised as 'non-exclusive', the effect may have been to expand

possession conceptually even further; that is, to a second level of legal abstraction because it no

longer represents those characteristics which are essential to its retaining its conceptual linkage

with land (namely, of exclusivity and thinghood).

Reshaping ownership in possession itself, not merely subjecting it to governance rules

In Wik, the effect of the majority's decision was not to burden the possession of a lessee with a

native title right and interest: it was (as explained further in chap 7) to propertise the lease land

according to a reshaped or modified possession concept such that a native title right and interest

could also exist on the same land.

The law can still value an owner's ownership in possession as a form of justice in itself when it

justifies a third party's entry onto the land without the owner's permission. However, how the

law gives effect to that justified entry can have significant implications for the conceptualisation

of ownership and possession. Alexander favours:

a theory of property that emphasises the obligations that owners owe to others, specifically to certain members of the various communities to which they belong. These obligations vary in different contexts and at different times. As society has grown more complex and more interdependent, the obligations have thickened. Capturing all of these obligations under one theoretical umbrella, one may speak of a social-obligation norm that the law does and should impose on owners. This norm, I want to stress is inherent in the concept of ownership itself. This is an important point because it means that when the law, whether by way of statutes, administrative action, or judicial decisions, announces some restriction on an owner's use of her land or building, insofar as that announcement restates what is already part of the social-obligation norm, it is simply a legal recognition of a restriction

1129 See fn 847.

1130 As noted, the majority in Wik did this when each agreed to Toohey J's postscript. See fn 1276. As stated by Callinan J in Ward, at [959], fn 1043, "justice and human rights are an aspiration of Australian legal system but they are contestable concepts, capable of being interpreted differently.".


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that is inherent in the concept of ownership rather than being externally exposed and engrafted upon the owner's bundle of rights.1131

The effect, then, is that courts increasingly enquire into what is normatively relevant in a

particular case.1132 But, even if not favouring a human flourishing view of property, such

thinking highlights, again, that courts may, including in disputes about the enjoyment of land in

possession, engage in an adjudicative balancing of the respective interests and values of the

parties to a dispute, one, relative to the context of that dispute, and, two, in accordance with

adjudicative methods relating to procedure and the awarding of remedies (see chap 7). The

result is what is normatively relevant expresses itself as a form of lawful enjoyment (recognised

and protected as ownership in possession according to determinations as to rights and duties of

parties and remedies) and which regulates possessors' and others' interactions with each other

in communities.

5.5 Conclusion

Enquiries as to what is normatively relevant may, for present purposes, be occurring in

particular contexts that, among others, may include whether a disputant claims a native title

right or interest in land; whether the land has a particular quality to it, such as a public or quasi-

public quality; whether a particular disputant may be denied access to justice without the award

of a particular remedy; or whether, in other circumstances, a particular remedy is not

appropriate. Those enquiries – which themselves inform the process of adjudicative balancing

of relative interests and values of the disputants as well as justifications for deciding where the

weight of that balance lies – may, depending on what is at stake, force courts to abandon

lumping-concept applications of possession and ownership in their orthodox sense: that is,

those applications, if not justified according to adjudged standards, may, over time, lead to a

reshaping (including modification) of the possession and ownership concepts such that there

may develop new characteristics of possession and ownership (even involving positive

obligations or which are contingently linked to new ideas of what is represented as the lawful

enjoyment of thinghood). This can put possession and ownership within a second level of legal

abstraction referred to by von der Pfordten as they now are justified as abstract concepts that

are "much more open … [to] inner-systemic determination and interpretation in the process of




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adjudication" and do not "have to keep up the connection to our general conceptual scheme,

that is to the non-legal world."1133

As seen, native title, which is recognised itself as a form of property, and because of its origins in

the traditional laws and customs of its holders, is a relationship with the land at the same

proprietary level as the (co-existent statutory) lease.1134 This means that native title does not

merely burden the lessee's enjoyment of his or her possession (even if, should there be conflict

between the exercise of the lessee's enjoyment and the native title, the lessee's interest will

prevail); it is similarly a primary relationship with the land. And there is nothing especially

remarkable about the law's recognising and protecting co-existing relationships with land. The

law has, however, chosen to use the possession concept, in a reshaped form, to acknowledge

such co-existing relationships and, arguably, could justify its doing so outside a native title

context (for example, where a court adopts a beneficial interpretation of a statute intended to

recognise an interest or claim of a person to land).1135 That is, possession becomes a legal tool of

analysis in an exercise of weighing the relative interests and values of parties and may be

invoked so that possessory remedies may still be available to protect a one or more 'possessory

interests'.1136 It, thus, assumes a law-stating function to describe rights as declared or decided

and which go no further than their being claims to do particular things according to an

identified purpose. However, there are doubts about the quantity of such 'rights' (that is, as to

whether they must meet certain threshold requirements of control over or in respect of land

thus tending towards being exclusionary).1137 Thus, possession may represent an especially

abstract entitlement or a bundle of entitlements in respect of a thing. In this way, possession no

longer functions as a legal concept in the same sense it once did as it now lacks the contingent

relationship or linkage quality with the lawful enjoyment of the land in an exclusivity sense. It

1133 While, as already noted, von der Pfordten states that legal concepts within the first level of legal abstraction are more abstract than those within the second level, this research adopts a position that if or when ownership and possession fall to any extent within the second level they are likely more abstract than under the first level because, as suggested, they do not, within that second level, necessarily retain their conceptual linkages to land in the sense of their being of land. They become, as a result, more susceptible to inner-systemic determination.


1135 In its orthodox sense, possession cannot be shared (although it may be jointly held). See chap 6, para 6.3. The so-called 'legality principle', although itself a rule of statutory construction, would not, of itself, save an existing interest in land from reshaping where the clear language of an Act is to recognise another primary interest in the same land. See fn 381.


1137 See further chap 6, para 6.5 where, in Countryside Residential (North Thames) Ltd v T (2001) 81 P & CR 2 the right to bring a possessory action against a trespasser (in terms of RSC Ord 113 (UK)) was predicated on the plaintiff's having effective control of premises. See also chap 7, para 7.2 which refers to Ward, [89], where it was said that, referring to possession of land under the common law "invites attention to … whatever notions of control over access might be thought to be attached to it".


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no longer represents (when it needs to), or solely explains a relationship of priority to and

exclusivity of, the land.

It is not the purpose of this research to argue whether such developments are desirable.

Chapters 6 and 7 consider applications of possession as instances of the potential adjudicative

reshaping of that concept. Chapter 6 directly considers such developments in the context of the

broader notion of the right to exclude. Chapter 7 extends chapter 6 by considering such

developments in the context of exclusivity and relativity and considers whether, in effect, the law

is developing anomalous possessory interests by conceptual creep.

Chapter 6: Possession as exclusion and the relativity of rights Chris Boge

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6. Chapter 6: Possession as exclusion and the relativity of rights


Chapter 3 explained that ownership and possession are conceptualised in law according to

representative characteristics of priority, exclusivity, and thinghood. It was further said that

exclusion is a consequence of possession. Chapter 4 identified that possession may be

susceptible to reshaping as a concept and chapter 5 explained that a process of adjudication may

cause that reshaping such that possession may become an especially abstract legal concept. The

purpose of this chapter is to explain how exclusion and the related action in trespass are

relevant to possession's continuing development and conceptualisation.

6.2 Trespass, ownership, possession, and excluding others

The action in trespass is said to be in respect of an injury to possession.1138 The right of

(exclusive) possession came to be cast as, or at least involving, the right to exclude any and every

one for any or no reason1139 which right may be vindicated by an action in trespass.1140 The action

assists in "build[ing] walls – in both real and hypothetical senses – around property".1141

The right to exclude, however, is not the right of possession or enjoyment, nor is it a (conferred)

right of ownership or of an estate. As observed by McHugh and Gaudron JJ in Plenty v

Dillon,1142 the "policy of the law is to protect the possession of property and the privacy and

security of its occupier". This recognises that land (or an estate), being owned, always is in

possession of someone even though it may not always be apparent who is in possession at a

particular point in time. In the absence of evidence to the contrary, the owner will, as seen, be

taken to be in possession. Thus, the law protects the enjoyment of land in possession, regardless

of who actually is in possession. Whether a possessor can exclude another person from the land

is a related, but different, consideration.

1138 Barker v R (1983) 153 CLR 338, 340-341 (Mason J) ("The essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession, using that word in its strict sense so as to include a person entitled to immediate and exclusive possession (Thompson v Ward (1953) 2 QB 153, at pp 158-159).)".

1139 See fn 696.

1140 If we try to recast this in more orthodox terms, we end up with this explanation: a person with a present right of possession of an estate can, if an intruder should enter without justification, bring an action in trespass against the intruder simply because the plaintiff has a relationship with the estate. While all land is in the possession of someone, whether the owner or (actual) possessor of an ownership interest in an estate, this is about recognising the proper plaintiff.

1141 G Chapman, "Boundaries of Exclusion" (2007) 72 Missouri Law Review 1287, 1291.

1142 (1991) 171 CLR 635, 647.


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6.3 The action in trespass: of possession or the right to exclude?

Generally, in medieval England, the writ of trespass charged that a trespass was done by force

and arms and against the king's peace.1143 The king's bench originally assumed jurisdiction for

the writ as it was criminal. If convicted, the defendant was fined and liable to imprisonment if

the fine was not paid. However, there was a civil element, namely, the remedy of damages in

favour of the plaintiff for invasion of the plaintiff's land. As Kirby P noted in MacIntosh v

Lobel1144 trespass – or rather, the form of writ called trespass quare clausum fregit – was used,

or issued, where there was a breaking of a close1145 and as "it developed, … vindicated only

violations of actual possession of the land",1146 including where a person was entitled to

immediate possession.1147 While the common law "seems to have committed itself fully and

unequivocally" to this proposition – namely, that trespass is an injury to possession1148 –

equally, it seems not to have necessarily been a universal rule.1149 It seems to be found in certain

facts of legal history.1150

1143 F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, (CUP, 1910), Lecture I). The writ of trespass quare clausum fregit was addressed by the king to the sheriff. The defendant was required to answer the plaintiff why with force and arms and against the king's peace he broke the plaintiff's close.

1144 (1993) 30 NSWLR 441.

1145 Essentially, a tenement or later, an estate.

1146 (1993) 30 NSWLR 441, 454; N H N "The Possession Necessary to Support an Action for Trespass on Real Property" (1925) 11 Virginia Law Review 476; G Deiser, "The Development of Principle in Trespass" (1917) 27 Yale Law Journal 220; L Clark, "Trespass Quare Clausum Fregit – Strict Liability or Not?" (1959-1960) 12 Ala L Rev 301.

1147 See fn 1138.

1148 Roberts v Taylor (1845) 1 CB 117, 126 (Cresswell J) ("In trespass quare clausum fregit the possession of the plaintiff is the foundation of the action; and the defendant is considered sufficiently to deny the plaintiff's right of possession by pleading liberum tenementum in himself or a third person; in the latter case justifying as the servant and acting by the command of such third person: and by this anomalous plea the plaintiff is put to show how he has a possession in himself consistent with the freehold being in another, unless he chooses to traverse the title set up by the plea."); see also Lord Fitzhardinge v Purcell [1908] 2 Ch 139, 145.

1149 T Street, Foundations of Legal Liability: A Presentation of the Theory and Development of the Law(1906), 235; cf G Woodbine, "The Origins of the Action of Trespass" (1924) Yale Law Journal 799. An action in trespass "protects possession against any act that prejudices it.": Y Emerich, "Why Protect Possession?" in E Descheemaeker (ed), The Consequences of Possession (Edinburgh University Press, 2014), 33; trespass is "essentially a wrong against possession.": K Gray and S Gray, Elements of Land Law (OUP, 5th edn, 2009), 171; Harker v Birkbeck (1764) 3 Burrow 1556, 1563 [97 ER 978, 982] (Lord Mansfield). Cf K Gray & S Gray, "Civil Rights, Civil Wrongs and Quasi-Public Space" (1999) 4 European Human Rights Law Review 46; G Parchomovsky and A Stein, "Reconceptualizing Trespass" (2009) 103 Northwestern University Law Review 1823.

1150 See Brown v Tasmania (2017) 91 ALJR 1089, [383] (Edelman J) ("In an action for trespass to land, there must be direct interference, either intentional or negligent, with possession of the land without the plaintiff's consent or without other lawful authority. The gist of the action is interference with possession. The right of possession of a freeholder (or a lessee) is sufficient, but is not necessary, to found an action in trespass. Actual possession of land (as distinct from mere occupation in the sense of physical presence or use and enjoyment) constitutes prima facie evidence of seisin in fee and is therefore sufficient to found a right of action in trespass against any person who is unable to show a better title for instance, a defendant having no right of possession of their own."); T Street,


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Trespass, like nuisance,1151 (obviously) is a tort. But, the right to bring an action in trespass or

nuisance is not a characteristic of possession of an estate, even if they are connected.1152 The

right of action and the remedy are more in the nature of governance rules.1153 A right of action

responds to some default in respect of a right or duty.1154 There is, then, a distinction between

how a right of action arises and the law's policy reasons for creating the right of action. For

example, in Hargrave v Goldman1155 Windeyer J spoke of (private) nuisance being "the invasion

of the common law rights of an owner or occupier of land". It is easy, however, to misconstrue

such a statement to mean that nuisance is an invasion of ownership or occupation. It simply

means, for example, that if there is an unreasonable and substantial interference with the lawful

Foundations of Legal Liability: A Presentation of the Theory and Development of the Law (1906), 235 ("The action of trespass was in its origin a criminal action, and hence it would not lie for an act which did not constitute a breach of the peace or manifestly tend to a breach of the peace. This was the very ground on which the King's Bench assumed jurisdiction over the wrong. In the light of this idea it is easy to see how the law arrived at the proposition that only those acts which involve a violation of possessory right are trespasses. It was comparatively easy to reconcile the law with this conclusion, for the reason that there were other remedies which were available for the commonest injuries done by person who have lawful possession of the property of others. Thus the writ of waste lay against the lessee or tenant who committed waste upon the estate of the lessor or remainderman.").

1151 Here, private nuisance.

1152 Cf S Douglas, "The Content of a Freehold: A 'Right to Use' Land?" in N Hopkins (ed), Modern Studies in Property Law Vol 7 (Bloomsbury, 2014), ch 16; P Giliker, "The relationship between property law and tort law" in A Hudson (ed), New Perspectives on Property Law: Obligations and Restitution (Taylor and Francis, 2013), ch 3. See also D Nolan, "'A Tort Against Land': Private Nuisance as a Property Tort" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2012), ch 16; cf F Lightwood, A Treatise on Possession of Land (1894), 1 ("[The] exact nature of the right [of possession] depends on the remedies granted for violations of it, and can only be stated after examination of those remedies."); F Pollock and R Wright, An Essay on Possession in the Common Law (1888), 5.

1153 See T Merrill and H Smith, 'The Morality of Property' (2007) 45 Wm and Mary L Rev 1849; cf, P Giliker, "The relationship between property law and tort law" in A Hudson (ed), New Perspectives in Property Law: Obligations and Restitution (Taylor and Francis, 2013), ch 3, 72, who asks "to what extent should 'property torts' alter their essential characters to meet modern social and political needs? Whilst their historical origins may be confined to the protection of proprietary interests, this does not necessarily indicate that courts in the 21st century should continue to adopt such an approach. Courts today are required to intervene to protect a wide range of interests from a variety of litigants and it may be questioned whether, in such circumstances, the courts may choose to ignore the wider social consequences following the commission of torts such as nuisance and trespass." Indeed it may be questioned. But, that is not a function solely of real property law. That is an aspect of the wider legal response to the enjoyment of land. The point here is that, whatever position courts, or the law, take, it is a function of the law generally.

1154 While the law recognises that the "essence of the [tort of private nuisance] is the detraction from the [possessor's] enjoyment of the natural rights belonging to … the [possession] of land" (Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, 507 (Dixon J), the law limits the plaintiff possessor's right of action to a nuisance that is the substantial and unreasonable interference with the use and enjoyment of his or her land (Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42, [57]).

1155 (1963) 110 CLR 40, 60.


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enjoyment of ownership or occupation by an owner or occupier (possessor), the person

interfering may be liable in nuisance.1156

Although ownership and possession of an estate are proprietary,1157 they are not rights in

themselves.1158 And, as seen, their respective holders are said to have a title to the estate. A

titleholder has a right of enjoyment of ownership or possession as an incident of that title, but

title is not a right in itself either.1159 Instead, by reason of an owner's or possessor's possession –

each being represented by a title –, the right of enjoyment of possession of an estate can only be

fully realised or protected by imposing a duty on others not to interfere with it. And, really, the

right of enjoyment is, as discussed, a freedom. It is the freedom to the enjoyment of the land as

the law permits. As such, the possessor is said to have a liberty (but often called a right, and

sometimes, a liberty or interest right) to enjoy the possession of the estate.1160 However, that

does not make the protection of the freedom or liberty of enjoyment an essential feature of

possession (or ownership), even if it appears to be a natural consequence of possession: it is a

feature of the law's response to recognising and protecting the lawful enjoyment of land (often

explained from a policy perspective in terms of the inherently private nature of a person's

property, and also with an undoubted privacy dimension1161). While someone must always be in

possession, again, the importance of drawing the distinction between a possessor's freedom or

liberty to enjoy ownership in possession1162 and ownership itself is so that the law can shape

rights and duties at the correct level of the law's response. For example, possession of an

ownership interest vested in possession will (subject to any contrary governance rule) allow the

possessor to use the land for his or her own purposes: no one else has a freedom to do that (as

no one else has title to an ownership interest). But, if someone intrudes onto the land, the

possessor's exclusive enjoyment of the land (via his or her ownership interest of the estate) does

not, of itself, impose a duty on the intruder not to intrude. It is because of the possession with

its characteristic of exclusivity that the possessor may have a right to exclude the intruder and

the intruder may have a duty not to intrude. The duty imposed by law and which is created from

1156 Private nuisance is said to arise in two other circumstances, namely, one, an interference causing an encroachment on to a neighbour's land short of trespass, and, two, physical damage to a neighbour's land or any building, works, or vegetation on it.

1157 Cf J Hill, "The Proprietary Character of Possession" in E Cooke (ed), Modern Studies in Property Law, Vol 1 (Hart Publishing, 2011), ch 2.

1158 Ownership and possession are separated here simply to say that the possession of someone who is not the owner is a proprietary interest, even if that possession may be inferior to the owner's ownership.

1159 Nevertheless, not uncommonly we refer to, for example, a right of enjoyment as a right of ownership.

1160 N McBride, "Rights and the Basis of Tort Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.

1161 See Bell v Maryland 378 US 226, 253 (Douglas J) ("The home … is the essence of privacy, in no way dedicated to public use, in no way extending an invitation to the public.").

1162 See Bocardo.


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the proprietary interest arises from the respect the law has for the personal enjoyment of the

proprietary interest itself.1163 It is common law policy.1164 But, the possessor will not have a right

to exclude everyone and nor will all potential entrants have a duty not to intrude.

What makes an intrusion a trespass is the existence of a correlative coercive right to have others

not intrude onto the land without justification (for example, inevitable accident, consent,

incapacity, necessity, a limited right to recapture chattels, and entry under legal authority such

as a warrant or statute1165):1166 it is stated as simply as "the owner or person in possession can

exclude others who have no permission or other legal right to enter. To enter without that

authority is trespass".1167 Others, then, have a duty not to intrude if their entry would not be

1163 See Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803, [102]; Coco v The Queen (1994) 179 CLR 427, 435; Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807.

1164 Plenty v Dillon (1991) 171 CLR 635, 647 (Gaudron and McHugh JJ) ("The policy of the law is to protect the possession of property and the privacy and security of its occupier: Semayne's Case (1604) 5 Co Rep 91a, 91b; 77 ER 194, 195; Entick v Carrington (1765) 19 St Tr 1029, 1066; 95 ER 807, 817; Southam v Smout [1964] 1 QB 308, 320; Eccles v Bourque (1975) 2 SCR 739, 742-743; Morris v Beardmore [1981] AC 446, 464.").

1165 See O'Donohue v Wille [1999] NSWSC 661, [19].

1166 Bl Comm, Vol III 212-214; Bade v Rural City of Murray Bridge [2008] SASC 9, [68]; Entick v Carrington (1765) 19 St Tr 1029, 1066 (Lord Camden LCJ) ("By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him."). As Brennan J noted in Halliday v Nevill (1984) 155 CLR 2, 10, and in referring to Lord Scarman in Morris v Beardmore [1981] AC 446, 464, Lord Camden's statement in Entick v Carrington "is still true". It is very Blackstone-esque. It is the first proposition of Semayne's Case(1604) 5 Co Rep 91a, 91b; 77 ER 194, 195J, as reported by Sir Edward Coke, that every person's house "is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose". That 'first' proposition is qualified by two other propositions justifying entry in certain cases, including, according to the 'third' proposition, where the sheriff intends to arrest an occupant or execute the king's process. The result or major premise of these precedents is that, every intrusion onto land without justification is a trespass. Cf T Endicott, "Was Entick v Carrington a Landmark?" in A Tomkins and P Scott, Entick v Carrington: 250 Years of the Rule of Law (Hart Publishing, 2015), 109-130, 113 ("Lord Camden’s decision in Entick has made more of a splash in the US than in the UK. Like habeas corpus, the doctrine in Entick was an element in the constitution that the American revolutionaries wanted to keep.").

1167 Johnson v Buchanan (2012) 223 A Crim R 132, [57]; Hartnett v State of New South Wales [1999] NSWSC 265, [16]; Plenty v Dillon (1991) 171 CLR 635, 647-648 (Gaudron and McHugh JJ) ("The common law has a number of exceptions to the general rule that a person is a trespasser unless that person enters premises with the consent, express or implied, of the occupier. Thus, a constable or citizen can enter premises for the purpose of making an arrest if a felony has been committed and the felon has been followed to the premises. A constable or citizen can also enter premises to prevent the commission of a felony, and a constable can enter premises to arrest an offender running away from an affray. Moreover, a constable or citizen can enter premises to prevent a murder occurring. In these cases there is power not only to enter premises but, where necessary, to break into the premises. However, it is a condition of any lawful breaking of premises that the person seeking entry has demanded and been refused entry by the occupier … Furthermore, a constable, holding a warrant to arrest, may enter premises forcibly, if necessary, for the purpose of executing the warrant provided that the constable has first signified "the cause of his coming, and ... [made] request to open doors" … But no public official, police constable or citizen has any right at common law to enter a dwelling-house merely because he or she suspects that something is wrong … Nor, except in the instances to which we have referred, can any person enter premises, without a warrant, to apprehend a fugitive


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justified, and it is for them to establish that a justification exists in law (which, in itself, is a

policy consideration as an aspect of lawfulness).1168 The correlative right is said to be a

fundamental (in the sense of sacred1169) common law right of a person in possession of private

property:1170 the "law of trespass has a human rights dimension".1171 A possessor's liberty interest

enjoyable in possession – a right to freely enjoy an ownership interest in possession in or of an

estate (including a lease) – is personal to him or her.1172 The ownership interest, being a

proprietary interest, creates a (primary) coercive right to protect the (secondary) liberty interest

who may be on the premises ... Another exception to the general rule that a person who enters premises without the express or implied consent of the occupier is a trespasser is the rule that the sheriff can enter premises, by force if necessary, for the purpose of executing process in cases where the Sovereign is a party to the action … Moreover, if the door of premises is open the sheriff may enter "and do execut[ion] at the suit of any subject, either of the body, or of the goods". But the right to execute at the suit of a subject does not extend to breaking open the outer doors of a dwelling-house ... It has been held, however, that, for the purpose of executing process at the suit of any subject, the sheriff may break open a barn or outhouse which is not part of a dwelling-house ... A number of statutes also confer power to enter land or premises without the consent of the occupier. But the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise be tortious conduct … [citations omitted]."); see also Halliday v Nevill (1984) 155 CLR 1, 7 (Gibbs CJ, Mason, Wilson, and Deane JJ) ("If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house.").

1168 Plenty v Dillon (1991) 171 CLR 635, 647, 651, 652, 653 (Gaudron and McHugh JJ). See also Halliday v Nevill (1984) 155 CLR 1, 20 (Brennan J) ("There is, of course, a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement. The contest is not to be resolved by too ready an implication of a licence to police officers to enter on private property. The legislature has carefully defined the rights of the police to enter; it is not for the courts to alter the balance between individual privacy and the power of public officials. It is not incumbent on a person in possession to protect his privacy by a notice of revocation of a licence that he has not given; it is for those who infringe his privacy to justify their presence on his property. There may well be a case for enlarging police powers of entry and search, but that is a matter for the legislature.").

1169 Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807 ("[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does not damage at all; if he will tread upon his neighbour's ground, he must justify it."); Coco v The Queen (1994) 179 CLR 427.

1170 R v Sorensen (2013) 240 A Crim R 297, [15]; Monis v The Queen (2013) 249 CLR 92, [321] (French CJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ) ("In the 18th century, postal services were made a sovereign function in many nations, because they were considered a necessity. It was not possible to have government without communication. This underscores the importance of the implied freedom in the context of the regulation of postal services. Yet around the same time, an English judge made the social observation that "[e]very man's house is his castle" [Semayne's Case (1604) 5 Co Rep 91a, 91b; 77 ER 194, 195] when discussing the conditions for the execution of search warrants. That a warrant to search premises might not identify the object of the search was described as "totally subversive of the liberty of the subject" (footnotes omitted).)"; Halliday v Nevill (1984) 155 CLR 1, 10 (Brennan J); Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ), 647 (Gaudron and McHugh JJ).

1171 Johnson v Buchanan (2012) 223 A Crim R 132, [61], citing Morris v Beardmore [1981] AC 446 (Lord Scarman); see New South Wales v Ibbett (2006) 229 CLR 638; Plenty v Dillon (1991) 171 CLR 635; Kuru v State of New South Wales (2008) 236 CLR 1, [43] (Heydon J).

1172 See para 3, para 3.10.


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by requiring a defendant not to intrude.1173 So, the possessor (whether the owner, a lessee, or an

actual possessor) has a right to have others not enter so that he or she can freely enjoy the

ownership in possession. However, where a possessor is not the owner, there is no coercive

right operating against the owner because the owner has a superior right to enjoyment of his or

her ownership interest. The possessor's liberty interest becomes a freedom to enjoy a

possession (as a proprietary possessory title), but the freedom does not extend to excluding the

owner as the law does not provide any protection against the owner's entry.

As alluded to, the right to exclude is considered good against the world and is correlative to all

others' duties not to intrude. When it is said the right to exclude is the right to exclude any and

every one for any or no reason1174 we are talking about the right as part of the law's response to

recognising and protecting the enjoyment of land at its correlative and coercive level of

operating against the world. But, it is not the case that a right against the world need only arise

out of a proprietary interest. The significance of possession as a proprietary relationship is that,

as it is of ownership of an estate (which represents the land), it is and can only ever be exclusive.

What flows from that is that the possessor's enjoyment of ownership in possession must be

exclusive. There cannot be multiple possessors (even sharing, as opposed to joint, ones) as that

would be to say that there can be more than one owner of, or decision-maker in respect of, the

same thing.1175 Therefore, there is a distinction between an exclusive proprietary interest and

exclusion or a right to exclude all others from the land.1176 They operate at different levels of the

1173 N McBride, "Rights and the Basis of Tort Law" in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12. However, if there is a possessory title, the duty not to intrude does not arise against the owner with a superior right of possession (even if the owner needs to plead his or her title as a defence to an action in trespass).

1174 See fn 696.

1175 Cf Hill v O'Brien (1938) 61 CLR 96; B Shartel, "Meanings of Possession" (1932) 16 Minn L Rev 611; Moors v Burke (1919) 26 CLR 265, 271 ("[P]ossession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world."). That is, possessors may jointly be in possession, but there cannot be two (or more) competing possessions at the same time. There can, of course, be two (or more) rights to possession. That is the idea of relativity of title. Other proprietary interests such as easements are not exclusive in the sense that no one else may not enjoy the burdened land. The 'holding' of the easement is, however, exclusive to the benefitted land. Although, note the owner in possession of a fee simple estate where a lessee is in possession of a lease estate. See chap 3, para 3.11.

1176 Cf Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, [1265], where McKerracher J makes, with respect, the error of saying, "Rights are either exclusive, in that they entitle the exclusion of others for any reason or no reason, or non-exclusive." The issue surely is whether there is a right to exclude. Consider Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724, 729 (Hope JA, with whom Priestley and Meagher JJA agreed) ("Although ... [s 232 of the Local Government Act 1919 (NSW)] provides that the council has the same estate and rights in and with respect to the site of a public road as a private person would have if he were entitled to the site as private land held in fee simple, it does not follow in my opinion that the functions, powers, rights and duties of the council with respect to land comprised in a public road are the same as those of a private person with respect to land which he owns."); CPT Manager Limited (acting as trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69, [107]: cf Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15.


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law's response. As seen, a person may own or be in possession for himself or herself – that is,

exclusively enjoying ownership – but not have the right to exclude all others. And, equally,

another person may be able to enter (and not be able to be excluded) but he or she may not be

the decision-maker in respect of the land. Being the decision-maker in respect of land connotes

exclusivity (and possession); a decision-maker can make a decision to exclude. But, the root of

that decision is his or her possession (or entitlement to enjoyment of the estate).

At this point, one might question what possession represents if the possessor cannot exclude

everyone from the land. However, it is up to the law, as affected by policy and potentially

competing freedoms, to decide how, and to what extent, it protects a possessor's exclusive

enjoyment of the proprietary interest. That is a matter of justification and what he or she may

do, including relative to others, is a matter of lawfulness (or lawful enjoyment).

Moreover, a freedom of enjoyment of ownership in possession does not occur merely by

exclusion of others. Freedom of enjoyment (the liberty interest often expressed as a right) is an

incident of title. That is the proprietary element. A possessor can use or exploit land – that is,

have the benefit of the lawful enjoyment of land – because he or she is the possessor. As a

proprietary interest, ownership tells us that others cannot have a competing possession of the

land (except as a relative claim to possession). Certainly, the action of ejectment supports that.

Also, as a proprietary interest it can be disposed of as such. This has nothing to do with

exclusion, except to the extent that it does, as explained, create coercive rights of exclusion. The

coercive right operates in respect of potential intruders and gives the freedom further stability

by ensuring it is realisable against interference (by the action of trespass): it also ensures the

costs of possessing are relatively low for a possessor compared to a non-possessor. But,

essentially, the owner has a ius in re propria, a general right of enjoyment as an incident of his

or her title to ownership.1177

So, excluding all others is not a conferred right of ownership or of the estate: it is more in the

nature of a consequence, its being an element in the law's response to the shaping of the liberty

interest of enjoying ownership in possession.1178 If ownership itself determined the nature of the

right to exclude, including its operation, it would be difficult to see how the law could justify any

intrusions onto land (otherwise than perhaps under a statute). This emphasises that ownership

Exclusivity refers to that which can be the subject of ownership or possession; whether or not an owner or possessor may exclude someone from the land does not affect the exclusivity of that which he or she owns or possesses. That is, an owner in possession may exclusively have the right to exclude someone who has a duty not to enter; the owner in possession may also exclusively have the duty not to exclude someone who has a right (or freedom) of entry. Exclusivity and exclusion are different concepts.

1177 As opposed to an ius in re aliena which is more consistent with an interest in the property of another.

1178 It is, then, not correct to say ownership confers a right of possession which is a right to exclude. This uses the term possession (albeit as the subject of a right) inappropriately as the right of possession is the right of enjoyment of the estate itself.


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itself, or rather, the possessor's enjoyment of ownership in possession, actually is more about

exclusivity of that enjoyment and, as such, recognising a priority to that enjoyment rather than

exclusion.1179 Ownership of an estate allows us to identify a person who, for himself or herself,

can enjoy the estate and any consequential rights (including a right to exclude); ownership also

allows us to identify a person against whom the law can regulate other interests (for example, in

equity) and, on occasions, impose obligations. Ownership's impersonal proprietary character

allows us to create exclusivity of enjoyment as between a possessor and the advantages of the

immoveable thing that is land. Proprietary means ownership partakes of the land; what an

owner may do with his or her ownership as enjoyment is subject to regulation by the law. But,

the owner can rest assured that he or she is the only one who is being regulated as an owner in

possession in respect of the land he or she owns. The flip side is that the owner is the only one

who can take advantage of his or her ownership (by possessing it).

An analogy of sorts may be drawn with the right of assignment. As Isaacs J said in

Commissioner of Stamp Duties (NSW) v Yeend,1180 "assignability is a consequence, not a test" of

a proprietary interest or right. An owner's ability to assign is a personal liberty that arises from,

or because there is, a proprietary interest or right. If there is a governance rule that limits or

prohibits the assignment of the interest or right, the interest or right still exists. The limitation

or prohibition does not affect the test of whether the interest or right exists in the first place.

Similarly, the right of exclusion is a consequence, not a test, of ownership as a proprietary

interest. It remains identifiable by third parties and is permanent and stable, indicia of its being

property at law.1181

6.4 A right of possession against the whole world and a right of possession not against the whole world?: a problem of 'relativity'

At law, the right of possession – which usually was evidenced or presumed by actual possession

of a current occupier or traced through a predecessor in title1182 – developed into the idea that

1179 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193, [156] (Lamer CJC). See L Katz, "Exclusion and Exclusivity in Property Law" (2008) 58 UTLJ 275 who argues that exclusivity and not exclusion is the central idea of ownership. She calls an exclusion approach a boundary approach and contends that it does not properly explain what an owner may do with the owned thing. Katz is correct. Exclusivity is the central idea of ownership as a proprietary interest. A right to exclude functions as a different element in the law's response to the objective of enjoyment of land. Cf M Wilson, "What's So Private About Private Property?" (2017) Graduate Dissertations and Theses 1, who argues that privacy, the value of which is promoted through private property rights, places limitations on others being able to access one's physical spaces and has normative significance for moral behaviour.

1180 (1941) 43 CLR 235, 245.

1181 See National Provincial Bank Ltd v Ainsworth [1975] AC 1175, 1247-1248 (Lord Wilberforce); R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 342 (Mason J).

1182 NRMA Insurance Ltd v B & B Shipping & Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273, 279 (Jordan CJ) ("[I]t is now well established that proof of anterior possession for any period is sufficient to make a prima facie case [of seisin in fee and right to possession]."); Allen v Roughley (1955) 94


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the right must have been good against the world, except the person with a superior right, he or

she being a prior possessor.1183 This is the notion of relativity of title. What was good against the

world was the claim to enjoyment (or the claim to possession) – not actual possession itself (the

actual possession being evidence of the right) –, for, although there were relatively good and bad

claims, what each claimed was the same (that is, to possession). In that sense, an ownership of

an estate was capable of being personally enjoyed by a person with the better claim to it (or a

better claim in ejectment).1184 Such right of possession was good against the world because of its

status as a claim of a proprietary interest and a particular one at that which could not admit the

existence of an identical proprietary interest in the same land. It was not good against the world

simply because an owner had a right to exclude all others from the land. There is no

competition between comparable claims to land in a case of exclusion (that is, where we would

think of an action by a person in possession against the trespasser). A right of exclusion always

arose as a consequence of a right of possession and as such can be said to partake of possession

because the right of possession itself is of ownership. That is, a right to exclude is not merely the

denouement of ownership or a possessory title; it inures in ownership and a possessory title

because each represents a normative phenomenon.1185 However, the correlative duty of others

not to intrude may not extend to everyone. Accordingly, ownership in possession persists as

representing exclusivity even if the right to exclude which arises out of it is not enforceable

against everyone.1186 Importantly, specific rules for recognising rights of exclusion and who does

and does not have correlative duties not to intrude do not separate "one possession from

another"; rules may be no more than a part of the abstract legal technique or law-building that

CLR 98; Asher v Whitlock (1865) LR 1 QB 1. Prior possession will not, however, affect a registered owner's title under a Torrens system of title.

1183 So, someone may have had a better right to the enjoyment of the land; but, until he or she showed himself or herself, and was not statute-barred, the person in possession was taken to have the better right to possession. While an actual possessor (B) had a right of possession (a possessory title), a person with a superior right of possession (A) was a prior possessor and, although not in, could establish that title, including through a predecessor in title. The actual possessor may have traced his or her right of possession through an earlier possessor (C) who, nevertheless, was inferior to A. Whoever is in actual possession, despite not having a title enforceable against a person with a superior right of possession, may bring an action in trespass against a third party. See Harper v Charlesworth (1825) 4 B & C 574 [107 ER 1174].

1184 J Gordley and U Mattei, "Protecting Possession" (1996) 44 AMJCL 293, 331 ("There is nothing contradictory … about recognizing a right in the possessor, good against anyone else, to use the property until the owner appears and asserts his own rights. Indeed, if we imagine the non-owner can use the property without hurting the owner, it would be strange not to recognize such a right. At least the property will have been put to some use.").

1185 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv J Law & Policy 593, who argues that the correlative duty not to intrude derives from a norm of inviolability of property within society.

1186 Powell v McFarlane [1977] 38 P & CR 452, 469 ("Possession of land … is a concept which had long been familiar and of importance to English lawyers, because (inter alia) it entitles the person in possession, whether rightfully or wrongfully, to maintain an action in trespass against any other person who enters the land without his consent, unless such other person has himself a better right to possession.").


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contributes to the discrete conceptualisation of the possession concept. In other words, we

conceptualise possession as the enjoyment of an ownership interest partly because the

consequence of exclusion inures in the personal enjoyment of ownership: as explained in para

6.3, a right to exclude protects the liberty interest of enjoyment thus emphasising an inter-

dependency between the elements of the law's response to the recognition and protection of the

enjoyment of land.1187

It is important, however, when considering whether an owner or possessor may exclude

someone else from the land not to confuse matters of title with the exercise of the owner's or

possessor's personal enjoyment of the land. Title is not about exclusion; it does not alter

regardless who an owner or possessor may or may not exclude from the land. Title is of

ownership (including when it is a possessory title) and concerns the relationship with the land.

In Ward,1188 Gleeson CJ, Gummow, Gaudron, and Hayne JJ said, in referring to a determination

of native title rights that complies with the requirements of s 225 of the Native Title Act 1993

(Cth):1189

It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead.1190

Although the controlling of access to land by others may be interpreted as something the holder

of a right, as against the whole world, to possession may do as a consequence of having that

right,1191 their Honours' reasoning suggests that there can be rights of possession against and not

against the world in a title sense.

According to their Honours, in the case of a right of possession not being of the kind that it is

against the whole world, it may be "greatly doubted" there is any right to control access to land

or to make binding decisions about the land's use. Presumably this is because there is no right

to control access or to make binding decisions (including in a title sense). That is, of course,

rather circular. Accordingly, there must be a right to control access and to make binding

decisions about the land's use for there to be a right to possession. But, in which order? In


1188 Ward, [52].

1189 Native Title Act 1993 (Cth), s 225 (part) ("A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: … (b) the nature and extent of the native title rights and interests in relation to the determination area …").

1190 See also Banjima People v State of Western Australia (2015) 231 FCR 456, [104]; Moses v State of Western Australia (2007) 160 FCR 148, [210].

1191 See fn 557.


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Mayor of London v Hall1192 (Hall) Lord Neuberger MR interpreted the above passage as saying

that "a person has possession of certain land if he can 'control access to the [land] by others,

and, in general, decide how the land will be used'". That is more consistent with the notion that

possession is a relationship with an estate. In Ward,1193 their Honours had explained in the

preceding paragraph that it will "seldom be appropriate, or sufficient, to express the nature and

extent of the relevant native title rights and interests by using" the terms possession, occupation,

use, and enjoyment where the native title rights and interests do not amount to a right, as

against the whole world, to possession, occupation, use, and enjoyment. That seems to merely

restate that to be possessory, the right must be a right as against the whole world.

The passages referred to in Ward partly suggest that controlling access to land and making

binding decisions about the land's use flow from the right of possession that is exercisable

against the whole world. Lord Neuberger MR appears to suggest that a person has possession if

he or she can control access and decide how the land will be used. The 'if' suggests his Lordship

thought that the control and binding decision-making created the possession.1194 It was not said

a person who has possession can control access et cetera.

While Ward concerned the characterisation of native title rights and interests, it highlights the

special difficulties of describing the right of possession when detached from ownership of an

estate or a relationship with an estate (that is in the sense that the claim to possession is of

possession of the estate according to the ownership interest). A right to control access to land

and to decide how land will be used can be sourced outside ownership (including as a native title

or statutory right). However, because ownership of an estate conceptually represents exclusivity

of enjoyment, an owner may enjoy ownership and may control access to the land and decide

how the land will be used as those actions concern the land's (or estate's) enjoyment. The owner

himself or herself has a liberty to enjoy the ownership; as owner, and as explained below, he or

she has, as a matter of title, the priority to that enjoyment. Often this is referred to as the right

of possession. That right is not enforceable against the world as such merely because the owner

can freely decide who enters and who does not, and how to use the land. That arises because he

or she is the owner in possession of an estate. And the right is not a conferred right of

ownership to exclude all others.

It is not clear, then, what the words "as against the whole world" could possibly add to a right of

possession. Suggesting that not having a right of possession as against the whole world is

1192 [2011] 1 WLR 504, [21].

1193 Ward, [51].

1194 See below (chap 7, para 7.3) where Hall is discussed further. A key issue in that case was whether the Mayor, by reason of his statutory powers, had possession of particular land and could seek a possession order for the removal of occupiers of the land. The Mayor's statutory powers to care, control, and manage the land meant that he had a right to possession.


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unlikely to entitle the holder of a (lesser) right of possession to control access to land or to make

binding decisions about the land's use makes little sense as it is difficult to see how a person

could have a right of possession as an entitlement to enjoyment of ownership and not be in a

position of controlling access to land or to make binding decisions about the land's use.1195 The

notion that the character of that right being against or not against the whole world makes a

relevant difference misstates the right of possession (at least in an orthodox sense). Whether a

native title right or interest amounts to a right of possession should concern the exclusivity of a

native title holder's traditional rights and interests as a relationship with the land and the

holder's resultant claim to their enjoyment, not whether the native title rights amount to a right,

as against the whole word, to possession of the land.1196 Even the idea of relativity of title in

English law was not concerned with claims to possession against the whole world: it was about

the relative claims of those who were claiming an entitlement to possession of an estate. It is

because ownership of the estate is proprietary that the possession operates against the world.

Relevantly, the notion that a right is enforceable against the whole world simply means that all

others owe a correlative duty to the right holder not to interfere. In so far as such a right

concerns ownership, the whole world has a duty not to interfere with the owner's liberty to enjoy

his or her ownership; that duty is correlative to the owner's right to exclude all others, as

discussed below.

Potentially, the only consequence of a right of possession not being against the whole world is

that there cannot be any right to control access or to make binding decisions. In leaving open

the possibility of a right of possession that is not against the whole world and, as a consequence,

does not create a right to control access or to make binding decisions, the majority in Ward were

apparently supporting an idea of a 'non-exclusive possession' or a right of non-exclusive

possession (sometimes referred to as 'possession of the land for a purpose').1197 They did go on

to say that it was preferable, where there is no right as against the whole world to possession, to

express the native title rights and interests by reference to the activities that could be conducted,

as of right, on, or in relation to, land or waters.1198 That is appropriate: the term possession

should not be used. The word possession, even if not "against the whole world", would seem

most inapt to describe what those rights and interests might represent. However, that may now

be considered an overly orthodox approach (see chap 7, para 7.2).

1195 Assuming the person with the right of possession is in possession, including where he or she has an immediate right to possess the estate.

1196 The possible extinguishment of native title rights and interests by the grant of an inconsistent interest or right is an entirely different matter. That does not concern whether the native title or the other interest or right is enforceable against the whole world.

1197 See Ward, [89].

1198 Ward, [52].


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6.5 Trespass and relief as justice: the relative superior claim of 'right' regardless of possession, access to justice, and 'unorthodox' possession

Accepting that possession of an estate clearly creates a right for the possessor to have a potential

trespasser not intrude, it remains a separate but unclear matter why possession takes on the role

of some sort of exclusive primary right of the possessor and the intruder's entry is only a

trespass if that particular primary right should first be established. That is, why does trespass

hinge on a person's possession, whether legal or actual possession? An unjustified intrusion

will always be a trespass as someone will always be in possession.1199 Trespass ab initio never

turned on the plaintiff's being in possession.1200 The only real issue, then, is, who is the right

plaintiff.1201 The insistence on the plaintiff's being in possession denies other potential users of

the land a right of action for the trespasser's intrusion, it being said the trespasser does not owe

anyone other than a possessor a duty not to intrude.1202 However, it is not especially clear why

another user of the land does not have an interest in the trespasser's not intruding onto the land,

even though the possessor in his or her possession will always be injured. If we accept that the

other user at least has some right to use or is lawfully using the land, could he or she not have an

interest in the trespasser's not intruding? We have not elevated, nor do we need to, the user's

right or lawful use into anything more than it was because it merely was some sort of liberty

interest. (We call it a right because of some protection the law might provide for it.) As seen,

ownership in possession may give rise to the right to exclude. But, as an element in the law's

response to recognising and protecting the enjoyment of land, it is not the case that such a

1199 See Bocardo.

1200 T Street, Foundations of Legal Liability: A Presentation of the Theory and Development of the Law(1906), 242-243 ("The doctrine of trespass ab initio, wherever applicable, effectually impeaches the principle that trespass will not lie unless the plaintiff can show a violation of his possession by the tortfeasor ... The true explanation of the doctrine of trespass ab initio is apparently to be found in considerations of policy and convenience. It appeared to the early judges that the power which under one condition or another the law bestows upon one individual to … invade the premises of another is a power that is capable of resulting in great hardship where it is abused ... The only objection to the use of this remedy was found in the principle that trespass lies only where there is a trespassory invasion of possession. But … this rule was a mere accident of legal history and was based upon the idea that long ago ceased to have any real ground for its support …").

1201 The defendant trespasser cannot plead ius tertii, that is, that there is someone with a superior title to the plaintiff possessor's title. See M Wonnacott, Possession of Land (CUP, 2006), 30-34. Some claims against public officers for intrusions onto land may not need to be determined to be trespasses. The entry may, for example, be beyond power (ultra vires) or be an improper exercise of a statutory power (see Beaudesert Shire Council v Smith (1966) 120 CLR 145, 156; Northern Territory v Mengel (1995) 185 CLR 307) and the courts will provide appropriate remedies for any unlawful act (Corporation of the City of Einfeld v Development Assessment Commission (2000) 199 CLR 135, [56] (Gaudron J) ("[Courts] within the limits of their jurisdiction and consistent with their obligation to act judicially provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.")).

1202 Or to put it around the other way, the non-possessor does not have a right for the trespasser not to intrude. This is a private law rule that only a right-holder can sue.


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coercive right ought only arise out of a proprietary interest (that is, legal or actual possession) or

be reserved to a person who is entitled to enjoy a proprietary interest. If the use of land is

merely by license of the owner, orthodox law says the licensee cannot bring an action in trespass

against the intruder, unless in the licensor's name and with the licensor's consent, because the

licensee does not have a right to exclude.1203

In Manchester Airport plc v Dutton1204 (Dutton) Laws LJ (with whom Kennedy LJ agreed), in

permitting a licensee under a contract to occupy land who had not entered into possession to

obtain an order for possession against trespassers on the land, appeared to turn orthodox law on

its head1205 by reference to a simple, but not insignificant, adage, ubi ius, ibi sit remedium –

where there is a right, there is a remedy.1206 If it is accepted the ius was a right to exclude

(extrapolated out from the plaintiff's right to occupy the land1207), Laws LJ implicitly (but

certainly not directly) recognised that rights that might be good against the world are not

confined to those created from proprietary interests.1208 Thus, a duty on all others not to intrude

1203 Or unless the licensee actually is in possession.

1204 [2000] QB 133. See also Countryside Residential (North Thames) Ltd v T (2001) 81 P & CR 2; Alamo Housing Co-operative v Meredith [2003] EWCA Civ 495; Vehicle Control Services Ltd v Revenue & Customs [2013] EWCA Civ 186; cf Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, [101], where Barrett J considered that Dutton was wrong in principle; see also Hinkley v Star City Pty Ltd [2010] NSWSC 1389, [193], [218]-[219]; Brown v Tasmania (2017) 91 ALJR 1089, [383] (Edelman J); J Hill, "The Proprietary Character of Possession" in E Cooke (ed), Modern Studies in Property Law, Vol 1 (Hart Publishing, 2011), ch 2, 40 ("Although possession confers a right in the nature of property (rather than simply a personal right to be protected against wrongdoers), it is not enforceable against either the owner or the owner's successors in title unless it is coupled with the right to exclusive possession. It follows that a licensee or squatter in actual possession (but without the right to exclusive possession) cannot claim trespassory protection vis-à-vis the owner or the owner's successors in title. As a contractual licensee who is not in actual possession only has personal rights (which should be enforceable only against the licensor), the decision in Manchester Airport plc v Dutton is contrary to principle.").

1205 [2000] QB 133, 147 (Laws LJ) ("As I understand it, the principal objection to the grant of such relief is that it would amount to an ejectment, and ejectment is a remedy available only to a party with title to or an estate in the land; which as a mere licensee the airport company plainly lacks. It is clear that which was the old law …").

1206 RSC Ord 113 ("Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order."); see now Secretary of State for Environment, Food and Rural Affairs v Meier [2009] 1 WLR 828 (Civil Procedure Rules (UK), rr 55.1(a) and (b)); R Butler, "Remedies in Land Litigation – The Tail Still Wags the Dog" (2000) 9 Nottingham LJ 1.

1207 But, it is not clear that was what Laws LJ was thinking. He may having been thinking that the licensee had a right to occupy and that right needed protection through a remedy. With respect, the licensee needed to have a cause of action and that would seem to have required it to have a right to exclude the defendant, as why otherwise would the defendant owe the licensee a duty not to be on the land?

1208 [2000] QB 133, 149 ("In my judgment the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys. This is the same principle as allows a licensee who is in de facto possession to evict a trespasser. There is no respectable distinction, in law or logic, between the two situations."). Laws LJ appears to have taken the matter one step further.


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may be correlative to the right of a non-proprietary interest user to protect his or her liberty to

enjoy his or her use under mere licence. (However, Laws LJ did not really need to go that far as,

in reasoning not unlike that used in cases such as Wik and Ward to refer to a possession in

respect of which the possessor may exclude those who interfere with the purpose of the

possession, his Lordship simply decided that the plaintiff at least had a right good against the

defendant, regardless of anyone else.) Perhaps another way to look at it is to recognise that the

trespasser must always owe a duty not to intrude and the correlative right to exclude must inure

for the benefit of anyone who has a right of use of the land. This introduces its own type of

relativity in respect of rights and 'non-rights' to land;1209 that is, although the right of the licensee

to use the land is not of a possessory (proprietary) nature, it is personal to him or her and must

be relatively better than the non-right of everyone else, or at least the defendant. The non-right

becomes a correlative duty to the right of the licensee to exclude the non-right holder or, more

simply, it was a duty of the defendant not to interfere with the plaintiff's necessarily superior

right. Accordingly, the duty is owed to the licensee, not merely to the owner who we can take to

have possession of the land (the estate). And the duty has nothing to do with any identification

of a proprietary interest in the plaintiff. The correlative right, however, merely protects, to the

extent necessary, the liberty each rightful user has to a lawful (non-exclusive) enjoyment of the

land according to his or her entitlement in respect of the land (or, rather, to the enjoyment of his

or her limited entitlement).1210 For a contractual licence that entitlement is non-exclusive.1211 In

simple terms, we have not secured the right to exclude to an exclusive enjoyment of the land

residing in a proprietary ownership interest. In fact, Dutton has detached it (if it recognises it at

The right of action in trespass is not a coercive right: it is a secondary right. The right of action in trespass is a step removed from a liberty interest. The right of action in trespass arises because the right to exclude was infringed.

1209 See K Gray and S Gray, Elements of Land Law (OUP, 5th ed, 2009), [2.1.38].

1210 D Pearce, "Property and contract: where are we?" in A Hudson, New Perspectives on Property Law: Obligations and Restitution (Taylor and Francis, 2013), ch 4, 115 ("[A]t the primary level the gulf between rights in property and contract is as wide as ever … [However] at the level of secondary rights a process of assimilation is underway. This coalescence, occurring across the spectrum of private law rights, has as its driving force the notion that what counts is the availability of an adequate remedy. In this respect, applying the term 'secondary' to the remedial right is somewhat misleading, in that it is to this right that the court attaches primacy … Once a claimant has demonstrated that his primary right avails against the defendant, that he is prima facie entitled to a remedy, the courts are increasingly willing to look beyond the taxonomical status of the right, in order to ensure practical justice at the remedial level. The courts are showing an increasing willingness to deploy the 'full armoury of remedies' to redress the infringement of the claimant's rights, be they proprietary or contractual. Latin maxims, we are told, have no role in today's law. Pacta sunt servanda may properly be consigned to the dustheap, but ubi ius, ibi sit remedium seems set to continue to rule us from its grave.").

1211 Lewis v Bell (1985) 1 NSWLR 731, 734 (Mahoney JA); Ray Mullins & Sons Pty Ltd v Skycorp Investments Pty Ltd [2011] WASCA 49, [66]-[68] (Buss JA); Ward, [502] (McHugh J). There is, of course, a difficulty with this. A defendant trespasser cannot be sued over and over by different users. However, the solution would seem to lie not in the absence of a right of exclusion, but in the remedy. The damage to a user may be minor or it may be significant. However, any damages for merely entering ought to be reserved only to the possessor as the person with managerial authority for the land.


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all) and found a new, or additional way, for it to exist.1212 In conceptual terms, this raises the

obvious point as to whether we even need to find the ownership interest at all: that is, we can get

from A to C without worrying about passing through B. The only thing we perhaps need to

worry about is the trespasser's exposure to being sued by multiple right-holders for what seems

(at least to him or her) like the same wrong.

Dutton can partly be explained as the result of the court's perception that there was some gap to

be filled in the law relating to possession. The justification for its doing so was access to justice.

According to Laws LJ:

In this whole debate, as regards the law of remedies in the end I see no significance as a matter of principle in any distinction drawn between a plaintiff whose right to occupy the land in question arises from title and one whose right arises only from contract. In every case the question must be, what is the reach of the right, and whether it is shown that the defendant's acts violate its enjoyment. If they do, and (as here) an order for possession is the only practical remedy, the remedy should be granted. Otherwise the law is powerless to correct a proved or admitted wrongdoing; and that would be unjust and disreputable. The underlying principle is in the Latin maxim (for which I make no apology), "ubi ius, ibi sit remedium".1213

Laws LJ, however, can be accused of indirectly (if not intentionally) reshaping what is

understood by possession. In justifying relief for the plaintiff, his Lordship effectively elevated

what it was the plaintiff had as a personal relationship as between it and its licensor in respect of

the land to a freedom to enjoy a relationship with the land such that a new coercive right of

exclusion emerged against the defendant. The defendant, in turn, had a correlative duty not to

interfere with the plaintiff's relationship with the land which seemingly was unnecessary to

describe beyond its contractual description: it was relatively superior to any claim, or interest,

the defendant (a trespasser) had in being on the land. Accordingly, a plaintiff who has, against

an entrant onto or occupier on the land, a relatively superior right of use or occupation may be

able to bring an action in trespass.1214 This application of a relativity principle appears to rest on

not much more than a weighing of the respective interests and values of the disputants. The

interest of the plaintiff at least included a right (even if limited) and there was potential harm to

it if it was not awarded an appropriate remedy so that it could lawfully enjoy its entitlement:

that is a matter of justice, or the plaintiff's access to it. Subsequent authority suggests, however,

that a plaintiff's right must consist of a sufficient degree of control of the land itself. It is not

clear why that is so if a relativity of interests and values justification is applied. Interestingly,

1212 See generally also, L Fennell, "Property and Half-Torts" (2007) 116 Yale LJ 1400; cf A Baker, "Developers versus Protestors: Contractual Licensees and Possession Claims Post Dutton" in W Barr (ed), Modern Studies in Property Law, Vol 8 (Hart Publishing, 2015), ch 6.

1213 Dutton, 150. Consider in an analogous sense Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [58] (Gaudron J) where her Honour said that "[e]quitable remedies are available in the field of public law precisely because of the inadequacies of the prerogative writs.").

1214 Cf Vaughan v Shire of Benalla (1891) 17 VLR 129, 135 (Hood J).


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from a justification in Dutton seemingly based in justice, a chain of reasoning – law – may be

developing, at least in England (but which, as already suggested, has an analogy in Australia).1215

In Countryside Residential (North Thames) Ltd v T1216 Waller LJ (with whom Rougier and

Aldous LJJ agreed), in following Laws LJ's reasoning in Dutton, above, said:

It seems to me that there is a clear difference between a licence granted for the purpose of access, which does not provide effective control over the land, and a licence to occupy which does. In the instant case, if the developers had occupied the land prior to protest camps being set up, they might have been able to argue that as a fact they did occupy and have effective control so as to bring themselves within the concept as recognised by Laws LJ. However, it does not seem to me that it was in any way legitimate to imply terms into the licence or to construe the licence, clause 6, so as to provide for that degree of control by contract. In my view, the first appeal should be allowed. The developers did not have a contractual right to occupy or have possession with the effective control that is necessary if Dutton is to apply. They simply had a contractual right to access which is not sufficient for Ord 113 purposes.1217

The rightfulness of a claim to exclude trespassers – or relative superiority of the plaintiff's

position – must, at least in Waller LJ's view, have reached a level of effective control of the land.

But the rightfulness of the claim – being almost, as said earlier, an idea of relative right of

someone who will always have a superior entitlement to the trespasser – appears to be justified

by the idea of access to justice, especially when the rules of court procedure provide for the

availability of a perceived suitable remedy. Although apparently having to meet a threshold of

effective control, the court, by adjudicative process in authorities such as Countryside

Residential (North Thames) Ltd v T and Dutton use the devices of procedure and remedy to

(re)shape or invent a right to exclude (which is, for their purposes, represented simply by the

risk of harm to a right of occupation or use1218), and by default, reshape the content of possession

(even if not expressly called into play in a dispute) by now suggesting it itself, but in an extended

form (that is, as not representing thinghood in the orthodox sense explained throughout this

research), can give rise to a right of exclusion against anyone without any justification or claim

of right for being on the land. That is, the right to exclude now protects a liberty claim of an

effective controller – thus establishing a cause of action – and founds a right of action in

trespass. A court may find an analogous justification – in the balancing of parties' respective

interests and values – in recognising that an effective controller of land may bring an action in

nuisance.1219

1215 Although in Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, [101], Barrett J considered that Dutton was wrong in principle. See further below.

1216 (2001) 81 P & CR 2, [17]. See also Monsanto plc v Tilly [2000] Env LR 313.

1217 As to RSC Ord 113 see fn 1206.

1218 But, perhaps not a contractual right to access.

1219 Cf Hunter v Canary Wharf Ltd [1997] AC 655. However, see L Crabb, "The Property Torts?" (2003) 11 Tort L Rev 104, 110-111.


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In Mehta v Royal Bank of Scotland,1220 a tenant or lodger case, the plaintiff successfully sued the

defendant in trespass despite the plaintiff's only having a contractual licence with 'exclusive

possession'. Lord Templeman had said in Street v Mountford1221 that there were three hallmarks

of a tenancy, namely, (1) exclusive possession; (2) payment of a rent; and (3) the tenancy was for

a term certain. Necessarily, then, his Lordship thought that a lodger is not a tenant merely

because he or she enjoys exclusive possession. In Mexfield Housing Co-operative Ltd v

Berrisford1222 Lord Neuberger MR said:

If the agreement does not create a tenancy for technical reasons, namely because it purports to create an uncertain term, it is hard to see why, as a matter of principle, it should not be capable of taking effect as a contract, enforceable as between the parties personally, albeit not capable of binding their respective successors, as no interest in land or other proprietary interest would subsist.

And:1223

The fact that the parties may have thought they were creating a tenancy is no reason for not holding that they have agreed a contractual licence …

Mr Gaunt relies on Street v Mountford [1985] AC 809 to support another argument, namely that the agreement could not amount to a licence because it granted the occupier exclusive possession, which is the hallmark of a tenancy. In my view, there is nothing in that argument. The hallmarks of a tenancy include the grant of exclusive possession, but they also include a fixed or periodic term. That was emphasised by Lord Templeman in Street v Mountford at several points in his judgment, where he referred to a tenancy having to be for "a term of years absolute", a "fixed or periodic term certain", or (in a formulation which he approved and adopted) "for a term or from year to year or for a life or lives" … Further, as Lord Templeman made clear more than once, the rule that an occupier who enjoys possession is a tenant admits of exceptions, even where the occupier has been granted a fixed or periodic term …

For present purposes, the key point to be derived from these authorities is that a person may

enjoy exclusive possession even if he or she does not have a lease (under the general law). That

possession, however, may (if necessary) found a possessory action.

In Dutton Laws LJ, almost in reverse (that is, by detaching the possessory action from reliance

on possession), dismissed the idea that the plaintiff there needed to establish possession of an

estate (as a possessory title) to found its action as old law. In his Lordship's view, there would,

as said, be a gap in the law if that were the case because there would be no proper relief available

to a licensee.1224 While it has been said the "exact nature of … [the right of possession] depends

1220 [1999] 3 EGLR 153.

1221 [1985] AC 809.

1222 [2012] 1 AC 955, [60].

1223 [2012] 1 AC 955, [63], [64].

1224 [2000] QB 133, 147 (Laws LJ) ("As I understand it, the principal objection to the grant of … [an order for possession against the trespassers] is that it would amount to an ejectment, and ejectment is a remedy available only to a party with title to or estate in the land; which as a mere licensee the airport company plainly lacks. It is clear that this was the old law … [and in it] I hear the rattle of medieval chains … I think there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto


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on the remedies granted for violations of it, and can only be stated after examination of those

remedies",1225 conceptualising possession and the right of possession according to their being of

ownership of an estate does not occur in law to deny other users or occupiers of land relief when

someone enters or occupies the land uninvited. As said, the right to exclude may exist even if

not attached to ownership in possession and, implicitly, that is a principle for which Dutton and

subsequent authorities appear to stand. However, Laws LJ appeared to arrive at that conclusion

because there appeared to be a suitable remedy available under RSC Ord 113 and not (at least in

an orthodox sense) because there was a cause of action which allowed the plaintiff to claim a

right of action.

In the context of rights in respect of Crown land, but resting on an orthodox grounding, Barrett

J, in Georgeski v Owners Corporation SP49833,1226 after noting that a licensee cannot sue in

trespass (except perhaps where his or her licence is coupled with an interest), expressly rejected

Law LJ's reasoning in Dutton, adding that to do otherwise would "be to fail to accept principles

about the nature of trespass to land which are deeply rooted in Australian law and have been

recognised by the High Court". His Honour had earlier stated:1227

Because the law as stated in Radaich v Smith (1959) 101 CLR 120, approved by Lord Templeman in Street v Mountford [1985] AC 809 (a case described by Lord Millett, speaking for the Privy Council in Ramnarace v Lutchman [2001] 1 WLR 1651 as having restored orthodoxy in England), has, as Birts puts it, “always been that trespass was not maintainable by a licensee unless he had exclusive occupation amounting to possession”, the objection to the making of a possession order in the Manchester Airport situation is that “it offends against the law of trespass, not ejectment”.

While the action for ejectment grew out of the writ of trespass, Barrett J thought that the

majority's view in Dutton had created a new class of claimant in trespass actions, namely, the

mere occupier of land under right or the effective controller of land.1228

The later decision of the United Kingdom Supreme Court in Secretary of State for the

Environment, Food and Rural Affairs v Meier1229 (Meier) partly concerned whether an order

for the recovery of possession could be made in respect of land not occupied by gypsy travellers

and currently possessed by the owner in circumstances where the defendant travellers were

occupation. The mistake inheres in this: if the action for ejectment was by definition concerned onlywith the rights of estates owners, it is necessarily silent upon the question, what relief might be available to a licensee …"). Cf Ward, [503]-[504] (McHugh J); Hill v O'Brien (1938) 61 CLR 96, 110 (Dixon J). It seems clear that a licensee may bring an action in trespass in the licensor's name with the licensor's consent. See O Han, "Licensee versus trespasser: Hill v Tupper resuscitated" (2016) 6 Prop L Rev 87.

1225 J Lightwood, A Treatise on the Possession of Land (1894), 1.

1226 (2004) 62 NSWLR 534.

1227 (2004) 62 NSWLR 534, [101].

1228 C Boge, "Possession of Land – Missteps in the Control Analysis: Part 2" (2015) 89 ALJ 100, 109.

1229 [2009] 1 WLR 828.


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likely to occupy such land when removed from the land they currently occupied.1230 The Civil

Procedure Rules (UK) made a distinction between a 'possession claim' which was a claim for the

recovery of possession of land (r 55.1(a)) and a 'possession claim against trespassers' which was

a claim for the recovery of land which the claimant alleged is "occupied only by a person or

persons who entered or remained on the land without the consent of a person entitled to

possession of that land" (r 55.1(b)). According to Lady Hale, while the remedy in each case was

the same – that is, an order for physical removal from the land – r 55.1(b) did "not … exclude the

possibility that the person taking action to enforce his right to occupy is also in occupation of it".

That is, "not … too much weight [should be put] on the word 'recover'".1231 Lady Hale, after

noting the abolition of the action of ejectment in 1876 and its replacement by the action for

recovery of land,1232 had earlier said, not unlike Laws LJ in Dutton:

The underlying principle is ubi ius, ibi remedium: where there is a right, there should be a remedy to fit the right. The fact that "this has never been done before" is no deterrent to the principled development of the remedy to fit the right, provided that there is proper procedural protection for those against whom the remedy may be granted. So the questions are: what is the right to be protected? And what is the appropriate remedy to fit it?1233

In Meier Lord Rodger was of the view that r 55 "cannot have been intended to … alter the

essential nature of the action itself: it remains an action for recovery of possession of land from

people who are in wrongful possession of it."1234 While, in passing, Lord Rodger was not critical

of Dutton,1235 there Laws LJ had actually thought that, although dealing with Ord 113 (the

predecessor of r 55), the issue was one with "regards [to] the law of remedies". Lady Hale in

Meier thought that any possessory remedy should be relative to the 'right'. In that regard, she

said that the:

modern possession action is there to protect the right to physical occupation of the land against those who are wrongfully interfering with it. The right protected, to the physical occupation of the land, and the remedy available, the removal of those who are wrongfully there, should match one another.1236

With respect, this is not a case of removing a deterrent to the use of a remedy that existed

because 'this has never been done before'. It seems more like a case of, 'why not use the

remedy?'1237 That is, to follow from Lady Hale's earlier statement, the remedy itself is being

1230 Meier, [4] (Lord Rodger) ("[T]he Commission were asking for two things: to be put back into possession of the land on which the defendants were camped at Hethfelton, and to be put into possession of the other specified areas of land which they owned, but on which, they anticipated, the defendants might well set up camp once they left Hethfelton.").

1231 Meier, [35], [39].

1232 See Supreme Court of Judicature Act 1875 (UK).

1233 Meier, [25].

1234 Meier, [8].

1235 Meier, [6].

1236 Meier, [35].

1237 See also Meier, [97] (Lord Collins).


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developed to fit a right – if that is appropriate –, rather than a remedy is protecting or

vindicating a right. As has been suggested, there is nothing particularly wrong with the law's

deciding that a person in mere occupation of land or with a right to occupy land has a right to

exclude others from the land or who at least interferes with his or her enjoyment of occupation

or the right to occupy. The law can, if it chooses – and whether in the name of modernising

itself, discarding old law, or quietening the rattling of medieval chains –, determine that a right

is exercisable against the world whether or not the right arises out of a proprietary interest. It

seems, however, that the law is unlikely to go about doing that merely by pointing to an

apparent prompt from a procedural rule or remedy contained within subordinate legislation.

While Meier substantially was about whether a possession order could extend to land in respect

of which the defendants were not in possession or occupation, Lord Neuberger MR's reasoning

is especially instructive.1238

[59] … [H]owever desirable it is to fashion or develop a remedy to meet a particular problem, courts have to act within the law, and their ability to control procedure and achieve justice is not unlimited. Judges are not legislators, and there comes a point where, in order to deal with a particular problem, court rules and practice cannot be developed by the courts, but have to be changed by primary or secondary legislation – or, in so far as they can be invoked for that purpose, by Practice Directions. In my view, it is simply not possible to make the sort of enlarged or wider order for possession which the Court of Appeal made in this case, following (as it was, I think, bound to do) the reasoning in [Secretary of State v Drury[2004] 1 WLR 1906].

[60] The power of the County Court for present purposes derives from section 21(1) of the County Courts Act 1984, which gives it “jurisdiction to hear and determine any action for the recovery of land”. The concept of “recovery” of land was the essence of a possession order both before and after the procedure was recast by section 168ff of the Common Law Procedure Act 1852, although, until the Supreme Court of Judicature Act 1875, the action lay in ejectment rather than in recovery of land – see per Lord Denning MR in McPhail v Persons, Names Unknown [1973] Ch 447, 457-8. Nonetheless, the change of name did not involve a change of substance, and the essence of an order for possession, whether framed in ejectment or recovery, is that the claimant is getting back the property from the defendant, whether by recovering the property from the defendant or because the claimant had been wrongly ejected by the defendant. As stated by Wonnacott, in Possession of Land (2006), page 22, “an action for recovery of land (ejectment) is an action to be put into possession of an estate of land. The complaint is that the claimant is not currently ‘in’ possession of it, and … wants … to be put ‘in’ possession of it.” See also Simpson, A History of the Land Law (2nd edition), pages 144-5 and Gledhill v Hunter (1880) 14 Ch D 492, 496 per Sir George Jessel MR.

[61] As Sir George Jessel explained, an action for ejectment and its successor, recovery of land, was normally issued “to recover possession from a tenant” or former tenant. An action against a trespasser, who did not actually dispossess the person entitled to possession, was based on trespass quare clausum fregit, physical intrusion onto the land. Nonetheless, where a trespasser exclusively occupies land, so as to oust the person entitled to possession, the cause of action must be for recovery of possession. (Hence, if such an action is not brought within twelve years the ousting trespasser will often have acquired title by “adverse possession”.) Accordingly, in cases where a trespasser is actually in possession of land, an action for recovery of land, i.e. for possession, is appropriate, as Lord Denning implicitly accepted in [McPhail v Persons, Names Unknown [1973] Ch 447).

1238 Meier, [59]-[64].


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[62] This analysis is substantially reflected in the provisions of the [Civil Procedure Rules (CPR)] and in the currently prescribed form of order for possession. CPR 55 is concerned with possession claims, and CPR 55.1 provides:

“(a) ‘a possession claim’ means a claim for the recovery of possession of land (including buildings or parts of buildings);

(b) ‘a possession claim against trespassers’ means a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not; …”

The special features of a possession claim against trespassers are that the defendants to the claim may include “persons unknown”, such proceedings should be served on the land as well as on the named defendants, and the minimum period between service and hearing is 2 days (or 5 days for residential property) rather than the 28 days for other possession claims – see CPR 55.3(4), 55.6, and 55.5(2) and (3).

[63] The drafting of CPR 55(1) is rather peculiar in that, unlike that in CPR 55(1)(a), the definition in CPR 55(1)(b) does not include the word “possession”. Given that, since 1875, the cause of action has been for recovery of land, the oddity, as Lord Rodger has pointed out, is the inclusion of the word “possession” in the former paragraph, rather than its exclusion in the latter. However, in so far as the point has any significance, the definition of “a possession claim”, like the definition of “land”, in CPR 55(1)(a) may well be carried into CPR 55(1)(b). In any event, the important point, to my mind, is that a possession claim against trespassers involves the person “entitled to possession” seeking “recovery” of the land. Form N26 is the prescribed form of order in both a simple possession claim and a possession claim against trespassers (see CPR Part 4 PD Table 1). That form orders the defendant to “give the claimant possession” of the land in question. Although the orders at first instance (as drafted by counsel), and in the Court of Appeal, direct that the claimant do “recover” the land in question from the defendants, that is the mirror image of ordering that the defendants “give” the claimant possession.

[64] The notion that an order for possession may be sought by a claimant and made against defendants in respect of land which is wholly detached and separated, possibly by many miles, from that occupied by the defendants, accordingly seems to me to be difficult, indeed impossible, to justify. The defendants do not occupy or possess such land in any conceivable way, and the claimant enjoys uninterrupted possession of it. Equally, the defendants have not ejected the claimant from such land. For the same reasons, it does not make sense to talk about the claimant recovering possession of such land, or to order the defendant to deliver up possession of such land.

A possession order operates in personam.1239 Denying that a possession order could extend to

the defendants in respect of land of the plaintiff and which the defendants did not possess goes

to demonstrating that the substance of the order is about the plaintiff's getting or recovering

that which he or she does not have. And, that is possession, but only where someone else has it

and can personally be the subject of the order. As Lord Neuberger MR suggests, the distinction

between r 55(1)(a) and (b) lay in the respective status of the potential defendants. Paragraph (a)

would generally cover a circumstance where the defendant remained in possession but

originally was in possession by right (for example, a lessee),1240 and paragraph (b) would apply

where the person in possession entered without right. Such a person is, at least initially, a

trespasser. How, as Lady Hale and Lord Collins1241 suggest, r 55.1(b) can be construed as

1239 Meier, [6] (Lord Rodger). See fn 726 and accompanying text.

1240 See fn 1070.

1241 See fn 1237.


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extending to allow a plaintiff with a mere right to occupy land to bring a possession order

against a defendant who is interfering with that right is difficult to understand. Although it may

be said that the supersession of seisin by possession via the ejectment action was a significant

development in the law of actions rather than the law of real property – the supersession of

seisin by the use was a significant development in the law of real property –1242 the notion that,

by the twenty-first century, there is not a substantive real property law, and only a law of actions

and remedies about real property, is preposterous. It would certainly surprise the likes of Sir

Robert Megarry who was known to follow precedent to the letter. Sir Robert perhaps thought

there was nothing more to add. Yet, decisions such as Dutton and the reasoning of Lady Hale in

Meier appear to use the devices of procedure and remedies rather than substantive law to, in

effect, provide new legal outcomes.

From a formalist-type view of real property law, we should, in the area of possession of land, be

suspicious of such approaches, particularly as there can never be a clear dividing line between

the action and remedy and that which they seek to protect or vindicate. The old real actions

were said not to create substantive law: much early litigation can, as already said, be thought of

in the context of what was 'rightful' or 'wrongful' in so far as it concerned seisin. But, seisin

itself is no longer relevant,1243 and so the situation today is vastly different. Novel situations will

often arise which require resolution. And existing principles and concepts may not be able to

fully resolve such situations. However, a mere perceived gap in the law may call for the

development of principle or an application of a concept, or the development of a justified

conceptual distinction.1244 The risk in using an action or remedy to suggest or provide an

outcome – whether or not with the purpose of modernising the law – is that it almost always

inevitably forces the reshaping of some principle, concept, or right.1245 Over time we may pay

less attention to how that occurred, and simply accept the reshaped principle, concept, or right

as 'the law'. If, as should occur, the law strives for cohesion across its fields, including through

statute, and in its operation, the law must, to meet new situations in the areas of possession and

ownership, be built around or develop from its existing concepts. Civil procedure rules are not

concepts.

In Hinkley v Star City Pty Ltd,1246 (Hinkley) the lessee of a casino complex, Sydney Harbour

Casino Properties Pty Ltd, granted to Star City Pty Ltd a "licence granting [Star City] a non-

exclusive right to occupy the Permanent Site for the Term …" Star City acknowledged that the

1242 See fn 819.

1243 At least as any form of strict doctrine. See, however, in chap 3, para 3.12, how seisin may have influenced our conceptualisation of ownership and possession of land, particularly in relation to the characteristic of exclusivity.

1244 Cf Ward, [503]-[504] (McHugh J).

1245 See Countryside Residential (North Thames) Ltd v T (2001) 81 P & CR 2.

1246 (2010) 15 BPR 28,983.


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licence "rest[ed] in contract only and … [did] not create or confer on Star City any tenancy or

any estate or interest whatsoever in or over the Permanent Site and the rights of [Star City] will

be those of [Star City] only …"1247 Star City was in occupation of the whole of the casino complex

and was in possession of at least the casino premises. Ward J considered1248 whether the

existence (if it was established) of "actual possession in fact by Star City [of the non-casino

premises] operate[d] to exclude any concurrent standing on the part of Casino Properties", as

the lessee of the premises, to bring an action in trespass. After reviewing several authorities1249

her Honour said at:1250

It is therefore in my view by no means unlikely that (notwithstanding that Star City may have actual possession of the whole of the casino complex) Casino Properties would be said to have retained a degree of control sufficient to maintain an action in trespass against a wrongdoer or person who otherwise has no right to enter the non-casino premises, in circumstances where the terms of the licence expressly state that it is non-exclusive and thus implicitly at least preserve the right of Casino Properties to enter the land and to license others to do so.

Ultimately, however, even if (as I think it does) Casino Properties has standing (by reason of its right to possession of the non-casino premises over which it had been granted no more than a non-exclusive licence) to maintain a claim in trespass against a member of the public, such as Mr Hinkley, to whom it has decided to refuse access to the non-casino premises, this will be a moot point if Mr Hinkley could rely in his defence on an entitlement to have access to the premises derived from a licence granted by Star City (statutory or otherwise); hence the efficacy of Star City's withdrawal of a licence to enter the casino premises would seem to me to determine the outcome of such a claim.

With respect, it is necessary to read some words into this (albeit tentative) analysis to make

sense of it. Clearly, Casino Properties retained its right to possession of the whole of the casino

complex. It had only given Star City a licence to occupy the complex. That licence was a burden

on Casino Properties' possession. The continuing "right of Casino Properties to enter the land

and to license others to do so" was simply consistent with its granting Star City a licence only

and, really, would have been indicative more of a continuing possession than a mere continuing

right to possession. The fact that Star City may have had (or assumed) "actual possession of the

whole of the casino complex" did not deny Casino Properties its continuing right to possession

found in its title. An actual possessor may not exercise any possessory title against a titleholder:

that is the notion of relativity of title. But, that does not mean the titleholder has any actual

possession. To refer, then, to Casino Properties' retaining "a degree of control sufficient to

maintain an action in trespass against a wrongdoer or person who otherwise has no right to

1247 The licence was in addition to the Star City's statutory power of exclusion.

1248 Hinkley, [213].

1249 Including Wuta-Ofei v Danquah [1961] 1 WLR 1238 where Lord Guest remarked that the "slightest amount of possession would be sufficient to entitle the person who is so in possession … to recover as against a mere trespasser". While the "slightest amount of possession" must be a reference to an actual enjoyment of at least some of the fruits of an estate, the phrase is, nevertheless, confusing. It is intended to imply that, to sue in trespass, it is not necessary for the possessor to actually be enjoying all the fruits of an estate at the same time. The power to use the land and, so far as is practicable, to exclude all others is what is important.

1250 Hinkley, [229]-[230].


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enter the non-casino premises" misstates the nature of Casino Properties' right to bring an

action in trespass if that degree of control is thought to be anything other than its right to

possession. To be clear, if Star City was in actual possession, Casino Properties' right to

possession had not been whittled down to be a sufficient degree of control or a slight amount of

possession to justify any claim in trespass nor, if the matter is looked at another way, had its

right to possession been supplemented by a sufficient degree of control or slight amount of

actual possession to justify a claim.1251 Simply, Casino Properties' right to possession was

enough, even if the law required it to attempt to take possession (at Star City's expense) before it

brought an action in trespass.1252 And Star City's actual possession was enough for it to have

brought a claim in trespass.1253 If Star City did not have actual possession, on the facts Casino

Properties must have had it. The difficulty with Ward J's reasoning is that her Honour seems to

have considered that, "notwithstanding that Star City may have [had] actual possession", it was

appropriate to establish that Casino Properties retained a degree of control of the non-casino

premises. This was so despite her later stating that Casino Properties had standing to sue in

trespass by reason of its right to possession of those premises. Casino Properties' right to

possession and Star City's actual possession merely had a possible effect on pleadings, not

substantive claims by Casino Properties or Star City against Mr Hinkley for trespass. That is, for

example, if Star City, as the actual possessor, had chosen not to pursue a claim against Mr

Hinkley, Mr Hinkley may have compelled Casino Properties to show its title and an attempt to

take possession before the trespass was alleged to have occurred. To enquire whether "multiple

parties could maintain an action in trespass in respect of the same land at the same time"

confuses the issue if it is thought that each of the multiple parties must, or is somehow going to

be able to, show some actual possession (for example, by showing that they were, at the same

time, each enjoying different fruits of an estate). Claims by multiple parties technically are

possible but each claim is not based on actual possession: there can only be one such claim.

And, the trespasser cannot be sued over and over again for the same wrong.1254 That is, in effect,

if Casino Properties had brought an action in trespass without attempting to take possession, Mr

1251 Hunter v Canary Wharf Ltd [1997] AC 655, 703 (Lord Hoffmann) ("[In an action in trespass,] the plaintiff (or joint plaintiffs) must be enjoying or asserting exclusive possession of the land …").

1252 Ocean Accident and Guarantee v Ilford Gas Company [1905] 2 KB 493; Lord Fitzhardinge v Purcell [1908] 2 Ch 139, 145.

1253 Star City could have brought the action without having to establish a right to possession as Mr Hinkley did not have a title justifying his entry.

1254 M Wonnacott, Possession of Land (CUP, 2006), 24 ("The law … balked at allowing a squatter [the actual possessor] to bring the action against an intruder whilst denying it to the person wrongly being kept out of possession by the squatter. It therefore permits the action to be brought by a person who has a mere right to possess too. This naturally complicates the relationship between trespass, possession and title because, in order to protect the intruder from the risk of being sued twice by two different people for the same wrong (first by the person in possession, and then, perhaps, by someone with a better right to possession), the intruder must sometimes be permitted to plead as a defence that someone else has a better right to bring the claim than the claimant; this is the plea of ius tertii."). See also at 32-33.


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Hinkley could have claimed that Star City had a better right to bring the action as Star City was

the actual possessor.1255

6.6 Conclusion

In Hall (to be considered further in chap 7), Lord Neuberger MR said "that there is obvious

force in the point that the modern law relating to possession claims should not be shackled by

the arcane and archaic rules relating to ejectment, and, in particular, that it should develop and

adapt to accommodate a claim by anyone entitled to use and control, effectively amounting to

possession, of the land in question"1256 consistent with the views of Laws LJ in Dutton and of

Lady Hale in Meier. His Lordship thought that in Meier he was the only one who clearly

"support[ed] the argument that a possession order may be subject to the same principles as

those that applied to ejectment", but noted that there, the claimant's title was not in issue.1257

Nevertheless, Lord Neuberger MR's requirement that an entitlement to use and control

effectively amount to possession appears to represent an exclusivity threshold for a possession

claim and, thus, is consistent with an application of possession in its orthodox sense. Given,

however, the other judgments in Meier, there seems to be little appetite in England1258 to put up

a fight to maintain the ejectment foundation of a modern possession claim. But, as explained,

exclusivity and exclusion are different ideas: the ejectment or recovery action is concerned with

resolving a competition between disputants who claim the same thing, namely, possession. That

is an idea of exclusivity and, as such, does not admit of someone else having the same thing

(even if that someone else should claim it). Exclusivity can be conveyed away (including by the

grant of derivative or lesser interests), but it cannot be dissected so that there are multiple

'exclusivities': that does not make sense. Exclusion is a consequence of exclusivity as it is (in

general terms) concerned with decisions to allow or not allow someone else access to the thing

which is exclusive.

It does not, on its face, seem too great a leap, then, for courts in adjudicative settings to

conceptualise possession as representing the fact of occupying land or some effective control of

land, especially where doing so will make available a remedy for another's interfering with that

'possession'. That is, the true interest of a plaintiff in the sense of his or her having a cause of

action can be an entitlement that must be relatively superior to the claim of someone else with

no-right, such as a trespasser. And while it may be permissible to detach trespass from

possession, references to a plaintiff's needing to have a sufficient degree of control or a right of

occupation (or the like) may be another way of saying, effective control, or they may not.

1255 C Boge, "Possession of Land – Missteps in the Control Analysis: Part 2" (2015) 89 ALJ 100, 110-111.

1256 Hall, [27].

1257 Hall, [27].

1258 Hall, [27]; cf fn 1204.


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In Hinkley Ward J, faced with Star City's possible actual possession, seemingly disconnects the

action of trespass from possession by introducing a 'sufficient degree of control' threshold to

Casino Properties' 'right to possession' position. Assuming for the moment Casino Properties

was a proper plaintiff and it was necessary for Casino Properties to establish its own possession,

such an approach can suggest that the injured possession or interest of a plaintiff in a trespass

action can be of something less than possession of an estate. In an orthodox setting, whenever a

plaintiff needs to assert his or her possession he or she must establish it according to ordinary

principles; however, he or she does not, at the time of the trespass, need to be enjoying all the

fruits of an estate to maintain that he or she, nevertheless, is in possession. This is what Lord

Guest meant by the "slightest amount of possession" being sufficient for a person in possession

to recover against a trespasser in Wuta-Ofei v Danquah.1259 To raise, then, a 'sufficient degree

of control' in a factual possession context while noting someone else may have factual

possession is confusing to say the least.1260 After acknowledging that trespass vindicates

possession and rights of possession rather than mere occupation, referring, as Ward J did,1261 to

a "degree of control sufficient to maintain an action in trespass" against an unlawful intruder,

rather than to a "degree of control sufficient to establish possession", while not necessarily

wrong can, if not applied properly, subtly tend to focus the enquiry on the remedy and not an

underlying principle, an approach which appears, as suggested, to have developed in

England.1262 In other words, the remedy can reinvent the relationship of enjoyment it is said to

protect (or even perhaps create a new relationship).1263 It also may, in a particular case, have the

effect of elevating the plaintiff's claim to a remedy (the new class of claimant in trespass) by

adopting the relativity approach referred to where:

1) the justification for, or operation of, such an approach; and

2) the plaintiff's threshold interest or right necessary to engage the approach,

are not especially clear. However, if a justification is to rest in a mere weighing of the parties'

respective interests or values, then, it may turn out that a party's interest need not be of any

special quality: it is, instead, relative according to the circumstances of the particular dispute,

the court's adjudicative concern being one of justice more than anything else.

1259 [1961] 1 WLR 1238.

1260 This is a different point to the one made above as to whether a claimant who only has a right to possess needs to attempt to take possession before being entitled to a remedy for a trespass.

1261 Hinkley, [212].

1262 Again, the problem is that the enquiry as to whether Casino Properties had a degree of control sufficient to maintain an action in trespass was made in the light of Star City's possible actual possession.


Chapter 7: Of conceptual distinctions and ad hoc applications: conceptual creeping Chris Boge and anomalous 'possessory' interests

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7. Chapter 7: Of conceptual distinctions and ad hoc applications: conceptual creeping and anomalous 'possessory' interests


Further to chap 6, which considered the right of exclusion, the purpose of this chapter is to

analyse particular applications of possession to the extent they may be contributing to a

reshaping of that concept. These three related applications are:

1) possession of a purpose as an anomalous possessory interest (or 'title'): here, possession:

a. is or may assume a status as being analogous to ownership in some interests; and

b. in others, as being detached from ownership (para 7.2);

2) related to (1), the statutory grant 'of possession' that is exclusory1264 and not of ownership

(para 7.3); and

3) the indirect limitation of possession: discretionary remedialism and the limitations of

enjoyment (para 7.4).1265

7.2 Reshaping possession according to purpose: orthodoxy, the 'right of (exclusive and non-exclusive) possession', and the rise of the new 'possessory' claimant

Earlier (in chap 5, para 5.3), it was noted that possession, when referred to as the apparent

object of the right of possession, often is considered in the sense of its being something that is

granted or conferred by an estate, whether a fee simple or a lease, or that it is an incident of such

an estate. More particularly, as Windeyer J said in Radaich v Smith:1266

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise. To say that a man who has, by agreement with a landlord, a right of exclusive possession of land for a term is not a tenant is simply to contradict the first proposition by the second. A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass.

1264 As to the distinction between exclusory and exclusionary for present purposes see para 7.2.

1265 That is, high stakes and the 'technical' interference. Here, we may find more 'technical' interferences, including in nuisance settings, if to award a remedy (particularly an injunction) would cause oppression.

1266 (1959) 101 CLR 209, 221-222.

Chapter 7: Of conceptual distinctions and ad hoc applications: conceptual creeping Chris Boge

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In Lewis v Bell1267 Mahoney JA said in the context of deciding whether an arrangement for the

occupation of certain stables near Randwick Racecourse, Sydney, was, at law, a lease or a

licence:

And where what is granted is possession, it still, in principle, may remain to be decided whether what is granted is exclusive possession. But it is not necessary to consider, in this case, whether there can be a distinction between possession and exclusive possession and (if there can) what distinctions there may be between possession and exclusive possession in this context.

Referring to (exclusive) possession as being granted or conferred (and so that a conclusion at

law can be reached that an estate has been granted) does confuse what possession is about. As

discussed so far, possession represents a relationship with an estate: it is, then, more to the

point that if an estate is granted it may be possessed (because it can be owned).

To try to decide whether '(a right of) possession' or '(a right of) exclusive possession' has been

granted causes the inquiry as to whether an estate has been granted to ask – which type of

possession has been granted, the exclusive one, or the non-exclusive one? In an orthodox sense,

possession, being of ownership is exclusive and any right of possession is to the exclusive

enjoyment of the estate. Using the term 'exclusive possession' invites a distinction that does not

even exist in that sense.

Nevertheless, as alluded to in chap 6, para 6.4, the distinction has been made in Australian

authorities, especially those concerning leases under Crown or State lands legislation and, then,

mostly in the context of native title litigation. Although dealing with different contexts, these

authorities, despite concerning statutory interests in land, consider the general law concept of

possession and their reasoning can be seen to be aligning with developments in England that

commenced with Dutton such that a chain of reasoning may be emerging (but which is

incomplete) that is reshaping the law's conceptualisation of possession. In so doing, it is, but

not always expressly, adapting distinctions between actual possession and legal possession

where the former may, because of the nature of what the possessor may enjoy, merely have an

exclusory effect and, is therefore, distinguishable from a possession of a person with title to an

estate.

Leases under Crown and State lands legislation: possession as exclusory and not exclusionary

Some discussion about the nature of leases under Crown and State lands legislation has already

been undertaken.1268

1267 (1985) 1 NSWLR 731, 735 (Kirby P and Samuels JA agreeing).



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Undoubtedly, under Crown or State lands legislation in Australia variants of what might be

called quasi-ownership have been created through some (or conceptualised as) statutory leases

where the Crown or State does not occupy the traditional role of lessor – rather, often, a

Minister and his or her delegates exercise administrative functions and make potentially

reviewable decisions in respect of leases under statutory provisions1269 – and the lessee has the

managerial authority of the lease land subject to those functions and decisions.

Starting with Wik,1270 a line of authority developed that appeared to require a conclusion that

there was total extinguishment of native title only where a right of exclusive possession was

conferred by a grant, that right being or at least involving a right to exclude any and every one

for any or no reason.1271 In Wik, each of the two leases for pastoral purposes granted under the

Land Act 1910 (Q) and the Land Act 1962 (Q) were found by a majority of the court (in separate

reasons) not have conferred a right of exclusive possession on the lessee. The Commonwealth

Parliament, by amendments to the Native Title Act 1993 (Cth), thought that, where such a right

was not granted, there could, however, be a grant of a right of 'non-exclusive possession' which

may nevertheless have a total or partial extinguishing effect on any subsisting native title.1272 In

theory and effect, multiple non-exclusive interests or rights could exist on the same parcel of

land.1273

The pastoral leases considered in Wik were leases wholly found in statute.1274 This does not

mean, though, that they could not share characteristics similar to those of leases found in

common law. In particular, they could, if that was implied by the statutory schemes under the

Land Acts (Q) of 1910 and 1962, and their respective terms, be estates in land and be possessed

(as understood under the general law). Generally, the court in Wik was simply asked: in the

1269 See, for example, Land Act 1994, ch 7, pt 2; sch 2. A decision may be reviewable under the Judicial Review Act 1991 (Q) (but generally not while the decision could be subject to internal review). See s 13.

1270 Earlier authorities in Australia about leases under Crown lands statutes generally had concluded that they were in the nature of leases as known to the general law. See, for example, O'Keefe v Williams (1910) 11 CLR 171; Macdonald v Tully (1879) 1 QLJ 21; Ricketson v Cook (1899) 20 LR (NSW) 438; Farnell v Bowman (1887) 12 App Cas 643; Blackwood & Ibotson v London Chartered Bank of Australia (1874) LR 5 PC 92. However, their peculiar natures had been acknowledged (see Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199). For example, they could be granted in perpetuity and they were often subject to significant reservations in favour of the Crown.

1271 See Ward; Western Australia v Brown (2014) 253 CLR 507, [36], [52]; Congoo, [8].

1272 See Native Title Amendment Act 1998 (Cth). Cf Ward, [478] (McHugh J) ("Non-exclusive occupation is an intelligible term; non-exclusive possession is not.").

1273 However, if a lease is granted over unallocated State land under the Land Act 1994, the land no longer is unallocated State land (see sch 6, definition of 'unallocated State land'). Therefore, another lease cannot be granted over the same land. The situation was the same under the Land Act 1962 in respect of leases over Crown land. This is consistent with a lease being exclusive, irrespective of whether a lessee could exclude everyone.

1274 Living and Leisure Ltd v Commissioner of State Revenue (2017) 106 ATR 910, [27].


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circumstances, was it necessary for the lessees to have the priority to and exclusivity of the

land's enjoyment to carry out pastoral purposes? In the end, when the majority1275 found that it

was not, the pastoral leases were characterised as limited statutory rights of use. However, in a

postscript to his judgment, Toohey J,1276 said that "to say that the pastoral leases in question did

not confer rights to exclusive possession on the grantees is in no way destructive of the title of

those grantees". This suggested the lessees, while unable to exclude the native title holders from

the land, could, however, otherwise enjoy their leases unhindered. With reference to Toohey J's

general reasoning, his Honour effectively was saying the lessees could otherwise enjoy a

possession granted by the leases unhindered.

Some statements of the majority in Wik, particularly by Toohey J, suggest a reshaping of the

possession concept (in its orthodox sense). This was unnecessary to bring about a result that the

grants of the pastoral leases did not necessarily extinguish all native title rights and interests in

the leased lands. That is, it was unnecessary to refer to the lessees having possession while still

recognising their entitlements to use the lease lands for pastoral purposes.

In Eckford, the defendant sought summary judgment dismissing the plaintiffs’ claim for adverse

possession in respect of the defendant’s lease. The defendant was the lessee of a pastoral lease

in Cape York, Queensland, under the Land Act 1994 (Q).1277 The plaintiffs were the lessees of an

adjoining pastoral lease.

The defendant argued that, as a pastoral lessee, it never had an action to recover land within the

meaning of the Limitation of Actions Act 1974 (Q) (LAA), ss 13 and 24(1), as the Land Act 1994

(Q) only gave a lessee a statutory right to bring an action against a person in unlawful

occupation of the land.1278 Also, a pastoral lease was, as found in Wik, a creature of statute and

not of the common law.

Under the LAA, an action includes any proceeding in a court of law.1279 And s 5(5) says—

A reference in this Act to a right of action to recover land includes a reference to a right to enter into possession of the land … and a reference to the bringing of such an action includes a reference to the making of such an entry …

According to Dalton J, as the plaintiffs’ claim for adverse possession commenced at least in 1973

the Land Act 1962 (Q) applied. Section 372 of the 1962 Act (the successor to the Land Act 1910

(Q), s 203) relevantly said that a person who unlawfully occupied Crown land (which did not

1275 Toohey, Gaudron, Gummow and Kirby JJ (in separate reasons).

1276 Wik, 132 (which was written with the concurrence of the other members of the majority).

1277 The lease was originally granted under the Land Act 1910 (Q) but, at the relevant time, was subject to the Land Act 1962 (Q).

1278 Land Act 1994 (Q), chap 7, pt 2.

1279 LAA, s 5(1).


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include land subject to a lease or licence) was guilty of an offence against the Act. Section 373

(the successor to s 204 of the 1910 Act) authorised the Crown, on making a complaint before

justices and issued with a warrant, to "remove such person from such land, and to take

possession of the same on behalf of the Crown". The section also gave a lessee or licensee from

the Crown authority to make a complaint against "any person in unlawful occupation of any part

of the land" in a lease or licence. An amendment to s 373 referred to giving possession of the

land to the Crown or the lessee or licensee (as the case may have been).

Dalton J rejected the defendant’s application for summary judgment for the following reasons.

(1) The terms of the Land Act 1962 (Q), s 373, made it abundantly clear that the proceeding it

described was one to be put into possession of land. The complaint was made against an

unlawful occupier. If the land was not Crown land, as defined, because it was subject to a

(pastoral) lease, the sensible construction was that possession was taken on behalf of the

pastoral lessee. As a matter of construction this right described by s 373(1) was an action to

recover land within the meaning of the LAA, ss 13 and 24, particularly having regard to the

history of the action of ejectment and the subsequent use of the phrase after the Common

Law Procedure Act 1852 (UK).1280 Possession was always the gist of the action of

ejectment. It was an action brought by someone wrongfully ejected from land to remove a

trespasser and be restored to possession.1281

(2) The interest of a pastoral lessee was an estate or interest in land within the meaning of land

under the LAA. It did not matter that its incidents were defined by statute rather than the

common law. The amended Land Act 1962 (Q), s 373, plainly described a proceeding to

restore possession, that is, an action to recover land within the meaning of the LAA, ss 13

and 24.1282

(3) Neither the Land Act 1910 (Q) nor the Land Act 1962 provided that the statutory procedure

to remove someone in unlawful occupation was an exclusive remedy. The terms of the

sections were permissory rather than mandatory. It may have been, as Gummow J

suggested in Wik, that the sections creating a statutory procedure to remove trespassers had

their origins in doubt as to whether or not the Crown had an action for ejectment. 1283

In Wik, having found that the pastoral lessees did not have rights to (exclusive) possession, the

majority said it was open for native title rights (but not including a right to control land) to co-

1280 See para 7.4.

1281 Eckford, [29].

1282 Eckford, [30].

1283 Eckford, [32].


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exist with the lessees’ rights under the leases. In Eckford, Dalton J1284 suggested that a pastoral

lessee will always have a right to possession.

The majority in Wik found that the grant of a pastoral lease was not inconsistent with the continuing existence of native title rights, and to that extent, the decision is authority for the proposition that a pastoral lessee does not have exclusive possession. But the decision in that case is no authority for the proposition that such a lessee does not have a good right against persons who wrongly occupy land the subject of the grant in circumstances where that wrongful occupation is inconsistent with the pastoral lessee’s rights. This is particularly clear in the judgments of Gummow and Kirby JJ in the High Court decision, but I think it is also readily discernible in the judgments of Toohey and Gaudron JJ [emphasis added].

If Dalton J is correct, in Ward, McHugh J and Callinan J (who both dissented) must have

misunderstood what the majority said in Wik. According to Callinan J:1285

[In Wik] Gaudron J and Gummow J construed ss 203 and 204 [of the Land Act 1910 (Q)] as providing strong, affirmative indications that a pastoral lease was a form of licence rather than a true lease.

Earlier McHugh J:1286

Unfortunately in Wik, the majority Justices appeared to assume the expressions “demised”, “lease” and “grant” in the Land Act 1910 (Q) and the Land Act 1962 (Q) were estate neutral. Their Honours gave little, if any, weight to the ordinary meaning of those terms ...

In Eckford Dalton J:1287

Both the leases ... were leases for pastoral purposes. The use of land by one pastoral lessee was entirely incompatible with the use of the same land by the other pastoral lessee. The grants to each pastoral lessee must necessarily have been of possession to the exclusion of another pastoral lessee. As Toohey J said in Wik, “A pastoral lease under the relevant legislation granted to the lessee possession of the land for pastoral purposes. And the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes.”

With respect, Toohey J in Wik either misstated the nature of possession or when he referred to

possession he did not use the term in its orthodox sense (although the general difficulty here is

that the lessee's possession is being considered in the sense of its being a conferred right rather

than a relationship with an estate).1288 In Ward,1289 Gleeson CJ, Gaudron, Gummow, and Hayne

JJ said, in referring to a claimed native title right in terms of the Native Title Act 1993 (Cth), s

225(e):1290

1284 Eckford, [22].

1285 Ward, [683].

1286 Ward, [514].

1287 Eckford, [25].


1289 Ward, [89].

1290 Native Title Act 1993 (Cth), s 225(e) ("("A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: … (e) to the extent that the land or waters in the


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The expression "possession, occupation, use and enjoyment … to the exclusion of all others" is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of "possession" of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms."

Consistent with the discussion in chap 6, para 6.4, the court here is making a distinction

between a 'possession of the land' and a 'possession to the exclusion of all others', the latter,

however, being unable to be considered outside its statutory context. The former though is,

according to the court, a common law concept and must have some control over access element

attached to it. This suggests that possession must always be exclusory, that is, tending towards

exclusion but does not necessarily involve the exclusion of all others. Although referring to the

content of a native title right, the distinction (adapted to a statutory lease) appears to be (at least

from a passage such as the one cited from Ward):

1) a lease may confer a right of exclusive possession: this is an idea of a possession to the

exclusion of all others (or a possession that is exercisable against the world whereby the

lessee may control access to the land and make decisions about the use of the land) (it is

'exclusionary'): it follows the lessee may possess the lease land (or rather, the lease) and

use the land for the purpose of the lease;

2) in the absence of a right under (1), the lessee may have possession of the land for the

purpose of the lease and, presumably, a right to possess to that extent:1291 however,

consistent with subsequent authorities, the possession is 'exclusory' as the lessee may

exclude those who interfere with its use of the lease land for the purpose of the lease.

The lessee does not have possession exercisable against the world as he or she may not

control access to the land and make decisions about the use of the land.

Possession under (2) appears to be classified as an (authorised) actual possession under the

common law that does not create a title that is good against all others, or is at least not good

against native title claimants. This may be able to align, to some degree, with a notion of

effective control as referred to in Countryside Residential (North Thames) Ltd v T,1292 a decision

which, as seen, itself was apparently following Dutton. And, while it is said the possession

under (2) is of the common law, it can be seen that possession there detaches itself from

ownership or, more specifically, ownership's thinghood characteristic. It may be, then, that

determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.").

1291 See Eckford, [25] above.

1292 (2001) 81 P & CR 2, [17]. See chap 6, para 6.5.


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possession, and not ownership, is being reshaped. In effect, possession appears to be

conceptually extending itself through the suggestion that thinghood is not enjoyment of the

land. It would, it is suggested, be preferable – because of possession's entanglement with

ownership – to recognise this is a wholly different or anomalous type of relationship with land,

something that the High Court appears to have encouraged. It more likely falls, then, within a

second level of legal abstraction.1293

While statute may conceivably create degrees or gradated forms of possession, as a common law

concept (used in a statutory interests setting without apparent modification) possession's

content is (in an orthodox sense) contingent on its maintaining a connection with the concept of

land. The Land Act 1994 (Q), and earlier Land Acts in Queensland, for example, refer to

possession, but the term is not defined in any of those Acts.1294

From Toohey J's reasoning in Wik, a pastoral lessee may be able to bring an action in trespass

against an intruder on or occupier of the lease land because the intrusion or occupation is

inconsistent with the lessee's right to exclude arising from his or her possession for pastoral

purposes. That is, despite the lessee's non-exclusive interest, there is a sufficient possession (an

effective control) which gives rise to an exclusory right; but, the lessee cannot exclude any and

every one for any or no reason (even if an intruder or occupier has no interest or right in the

land or otherwise enters the land without justification). The first part of the proposition – that

is, the lessee may be able to bring an action in trespass – may be acceptable (and is consistent

with developments noted in chap 6), but acceptance of the second is more difficult – that is, the

justification. If trespass is detached from possession and simply linked to a right to exclude,

then we are on firm ground. But, when possession, or a right of possession, is used in a non-

exclusive sense as the foundation of the right to exclude, it is not entirely clear what we are

talking about any more (a point also alluded to in chap 6). That is, although the right to exclude

may be relative to limited persons only (or even the whole of the world except for some), as

explained earlier, the notion that the right of possession also is relative to a limited number of

persons (and, therefore, is non-exclusive) breaks a link in the chain. The exclusivity of

possession (and its control over access and its being against the world1295) follows from its link

to ownership of an estate; if such ownership is not in issue, possession then, as a concept, must

be forming its own new links or characteristics as a form of legal inner-systemic reasoning. That

is, possession's conceptual linkage to the lawful enjoyment of land (which usually is of

ownership) now states a condition of representing a relationship whereby it may be:


1294 The Acts Interpretation Act 1954 (Q), sch 1, merely says that possession of land includes the receipt of income from the land.

1295 And, regardless of the order in which those concepts are considered.


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1) the priority to and exclusivity of a purpose in respect of land (therefore meaning other

interests may exist on the land providing they do not interfere with that 'possession'); or

2) it is a right to carry on a purpose on the land.

In either case, the possession, as not representing the thinghood of the land, apparently still is

exclusory as it gives rise to some sort of right in the possessor to exclude those who interfere

with that possession.

In Eckford, Dalton J, like Toohey J in Wik, apparently distinguished exclusive possession from

possession. And, more recently, in Congoo so too did Gageler J.1296 To say possession is not

exclusive because the possessor does not have the right to exclude certain persons, but

nevertheless has the right to exclude all others or has "possession to the exclusion of another

pastoral lessee" leads to contentions that possession may somehow be shared;1297 that

possession need not be complete possession; or that possessory remedies are only available

against certain third parties.1298 And, if that is a conclusion of law, it begs the question, as

already alluded to, as to at what point in the enquiry does one decide that the possession may

be, or is, non-exclusive.1299 That is, is the threshold effective possession (or control)? In its

orthodox sense, possession is a relationship with an estate;1300 as such, others may have rights

to enter land which effectively burden the possession.1301 Possession, and the availability of

possessory remedies, must have functional applications: in the circumstances of Wik, it would

have been pointless for a lessee to be able to exclude only some persons from the leased land to

enable him or her to carry on authorised activities on the land.1302 That is, in determining

whether a lease estate (or a statutory interest in the nature of a lease) was granted, the extent of

others' rights may prevent a finding that such an estate was given in the first place. That is

different to a finding that such an estate was granted but that it is subject to limited rights of

entry in favour of others (whether granted by the lessee or found in say, statute). On this view, a

lease was, having regard to the statutory scheme and the express terms of the grants in Wik,

1296 Congoo, [161].

1297 Cf Hill v O'Brien (1938) 61 CLR 96. Possession may be held jointly.

1298 In commenting on the terminology of the Native Title Act 1993 (Cth), McHugh J said in Ward,[478]: "Non-exclusive occupation is an intelligible term; non-exclusive possession is not".


1300 However, note, chap 7, para 7.4 where Hall is discussed further.

1301 Ward, [478] (McHugh J).

1302 It is a different issue that a lessee's rights may be said to prevail over any native title rights; that only arises after establishing that the lessee does not have an estate (or a statutory interest in the nature of an estate).


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either necessary or it was not; if it was, the leases were sufficiently corporeal1303 for them to be

possessed. If it was not, there was nothing to possess.

The majority in Wik did not say native title could exist on leased lands despite the lessees'

having been granted (statutory) estates; rather, they said native title could exist because the

lessees were not granted estates.1304 While the freedom of enjoyment is protected by a right to

exclude (and possessory remedies) and is exercisable against unlawful entrants, the majority in

Wik did not expressly say the lessees had such a right. They had a statutory right of action

(which also applied to licensees) exercisable against unlawful occupiers.1305 That did not alter

the fact that, in the end, the lessees only had statutory rights to occupy and use land for pastoral

purposes. In this way, the leases were (again in a more orthodox sense) not unlike contractual

licences as known to the general law. And, for that reason native title rights could continue to

co-exist over the leased lands.

On such an analysis, it would not follow that “each pastoral lessee must necessarily … [be] in

possession to the exclusion of another pastoral lessee”. In Wik, Toohey J, having regard to his

Honour’s other observations about the nature of a pastoral lease, did not use the term

possession in its orthodox sense. His statement as referred to by Dalton J1306 could not readily,

then, be authority for the proposition maintained by her Honour that a pastoral lessee must

(always) have a right to possession against another pastoral lessee. The other lessee has no right

to the first lessee's land. But that is not because the first lessee has a right to non-exclusive

possession. Without any right to possession, the duty of the other lessee not to interfere with

the first lessee's leased land is the same as anyone else who does not have a right to use of the

land. Importantly, that duty is not, in any orthodox sense, relative to the lessee's right of

occupation and use. At best, it would be relative to the Crown's 'residual possession' in the

land.1307

1303 That is, as sufficiently analogous to estates under the general law.

1304 See, for example, Wik, 155 (Gaudron J).

1305 See, for example, now, Land Act 1994 (Q), ch 7, pt 2 (Unlawful occupation of non-freehold and trust land).

1306 Eckford, [25].

1307 Wik, 246 (Kirby J). This does no harm to the lessee's continuing right to use a statutory procedure against another person who has unlawfully done a trespass related act on the land (Land Act 1994(Q), chap 7, pt 2). That statutory procedure, which is available to lessees, licensees, permittees and trustees of trust land (see s 415), does not require such parties to have a right to possession. In Wikwhat appeared to be identified was a right of 'non-exclusive' possession that could be a right to exclude any and every one, except native title holders. According to Gummow J (at 201), the "characteristics [of a pastoral lease under the Land Act 1910 (Q)] were not such as to approximate what under a lease as understood at general law may have been a right to exclude as trespassers persons exercising rights attached to their subsisting native title". With respect, such a statement confuses concepts, but is consistent with a focus of a right of possession on exclusion. Under the general law, a trespass action can be brought against a person who has no justification for entering onto the land. However, it is not correct to say that native title was not extinguished or that a native


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Further, Dalton J placed a heavy emphasis on Gummow J’s reasoning in Wik that the Land Act

1910 (Q), ss 203 and 204, the equivalents of the Land Act 1962 (Q), ss 372 and 373(1), gave

lessees of pastoral leases rights to possession. With respect, it is suggested Dalton J interpreted

Gummow J’s statements in Wik in a selective way.

An enquiry needs to be undertaken as to whether the relevant lease, being a statutory lease, is in

the nature of a lease estate under the general law. If it is not, then, native title could survive to

the extent the native title is not inconsistent with the rights granted under the lease.

In Ward,1308 Gleeson CJ, Gaudron, Gummow and Hayne JJ, when referring to pastoral leases

under Western Australian Crown lands legislation, noted the Land Act Amendment Act 1900

(WA), s 15, which provided:

A Notice inserted in the Government Gazette, signed or purporting to be signed by the Minister or the Under Secretary for Lands, to the effect that any lease, license, or other holding is forfeited for default in payment of rent, or for breach or non-observance or non-performance of the conditions thereof, shall be deemed equivalent to a re-entry and recovery of possession by or on behalf of the Crown within the meaning of the proviso for re-entry expressed in or implied by the lease, license, or other instrument.

According to their Honours:

The language of re-entry is aptly used in connection with a lease. It is, however, not apt to speak of re-entry in connection with licenses or other interests any more than it is apt to speak of recovery of possession by the grantor of a contractual licence from the grantee.

This echoed statements made by the majority in Wik, including Gummow J. Although terms

usually associated with an estate in land such as a lease (for example, re-entry, possession,

recovery of possession) may also be used in relation to a statutory licence, all that means is that

it is necessary to look further to determine the true nature of the lease (or licence). If the

position were otherwise – that is, for example, the term 'recovery of possession' was being used

in its technical sense – a licence, as well as a lease, must confer a right to possession. In Wik,1309

title holder could not be excluded because statutory trespass actions under the relevant Land Acts in Wik or a general law trespass action could not be brought against a native title holder exercising a native title right. The native title holder had an exclusive right in respect of (but not necessarily to) the land. If so, the holder had a liberty to enjoy that right as the holder pleased. To consider, however, that a lessee of a pastoral lease could exclude all others but for a native title holder and, therefore, have a 'non-exclusive' possession or that a pastoral lessee did not have a "right to exclude as trespassers persons exercising rights attached to their subsisting native title", makes little sense as there was never an issue as to whether a native title holder could or could not be excluded. That is, it never arises. Exclusion refers to persons who do not have a claim to or in respect of the land under colour of right. A native title holder does not have a native title right because someone else cannot bring a trespass action against the holder. If there is a native title, the other person cannot bring an action in trespass. Accordingly, to characterise a lessee's possession or 'interest' in the land (or anyone's for that matter) as commensurate with the availability of a right of exclusion – which is exercisable against the whole world, or some but not others – clearly is wrong. It does not wax and wane according to exclusion.

1308 Ward, [172].

1309 Wik, 194-195.


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Gummow J was merely saying that, because such a result could not, having regard to other

provisions, possibly have been intended (even if s 204 was "in the nature of ejectment"), it is not

appropriate to place too much weight on the use of such terms when used in relation to different

types of rights granted under an Act.1310 That is, each statutory provision must be judged against

the whole of the legislative scheme.

To say, as Dalton J in Eckford suggested, that the right to possession, even if not exercisable

against native title holders and perhaps others, was exercisable against another pastoral lessee,

misconstrues the nature of possession as a legal concept in its orthodox sense. This is because it

moves possession away from an idea of being linked to ownership of an estate and encourages

the idea that a right of exclusion exists to protect the enjoyment of rights of use and occupation

of land, regardless of their being merely in respect of land, rather than being of the land. It

becomes a right of exclusory effect. Although set within a different factual matrix, this has a

familiarity with the reasoning in Dutton and of Lady Hale in Meier (see chap 6, para 6.3, and

further, para 7.4).1311

Possession of a purpose

To develop the discussion above further, as referred to, in Wik Toohey J spoke of a lessee's

"possession for pastoral purposes only". In Dutton, Laws LJ thought a possessory remedy was

available to protect the licensee's rights under the licence. In both cases, there was no

possession of, or right to (exclusive) possession of, an estate (as understood under the general

law).

In Ward the majority commented that the holder of a mining lease under the Mining Act 1978

(WA) may enjoy a right to exclusive possession. But:1312

… [t]he grant of exclusive possession for mining purposes is directed at preventing others from carrying out mining and related activities on the relevant land. Although the lessee could prevent anyone else seeking to use the land for mining purposes, it does not follow that all others were necessarily excluded from all parts of the lease area … The holder of a mining lease having a right to exclude for … specific purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or

interest for so long as the holder of the mining lease carries on that activity.1313

1310 Wik, 201 ("[T]here is apparent the mixing together or combination in the statutory regime for pastoral leases and occupation licences of elements which in an analysis under the common law of leases and licences would be distinct". Clearly, s 204 of the Land Act 1910 (Q) did not require the lessee to have a right to possession to bring the action: he or she only needed to be the 'lessee'.").


1312 Ward, [308].

1313 Later, at [333], their Honours, in referring to the Argyle mining lease said, "Exclusive possession was granted for mining purposes only".


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A mining lease, like other mining tenements, usually does not create an estate, or even an

interest, in land.1314 In Ward, above, the majority linked possession to a limited use of land for a

purpose. The possession apparently prevented others from carrying out mining and related

activities on the land.1315 However, that did not necessarily preclude others from enjoying rights

in areas of the leased land that the lessee was not possessing for mining or related activities. On

an orthodox possession analysis, the reasoning appears to make little sense as it suggests that

the lessee would have a right to exclude, but only so far as to protect his or her freedom of

enjoyment of the land for mining purposes only, or more abstractly, the mining purposes

themselves. Possession as a concept is, in its orthodox sense and as has repeatedly been said,

contingently linked to the land and so too is the right to exclude that protects the freedom to

enjoy that possession. Clearly, on the majority's reasoning, a lessee of a mining lease did not

have a right to exclude of that nature as the lessee's rights were only to use the land for "specific

purposes", namely mining purposes. It would appear to follow that the lessee is said to have

that right of exclusion so that he or she can avail himself or herself of possessory remedies when

undertaking mining and related activities that normally necessitate having territorial control

over the relevant area, but not otherwise. To say a lessee has a "right to exclude for … specific

purposes" may suggest that, if a third party's entry (whether a trespasser on the land or an

interest holder), including a native title party's entry, does not interfere with the carrying on of

the specific purpose, the lessee has no exclusion remedy against that third party, seemingly

because the lessee does not have (nor need to have) a possession of that quality. That is not how

possession in its orthodox sense works: a possessor has a right to exclude if enjoyment of his or

her possession is disturbed. Being of ownership of an estate, it is disturbed whenever anyone

enters the land without justification, and irrespective of whether the possessor's use for a

purpose of his or her enjoyment is affected. Detaching possession from ownership (or a right of

possession of ownership) of an estate (as representing the land) causes possession and rights of

possession to take on independent or anomalous characterisations in real property law: they no

longer maintain their conceptual contingent links to land – and thus represent a characteristic

of thinghood – which gave them their content. However, these characterisations may end up,

by a type of looping effect (which occurs by a court's applying a possession concept in a

particular context), extending possession as a concept because they represent relationships with

a thinghood that itself represents the enjoyment of the purpose for which land may be used,

rather than the land and its lawful capacity (see the discussion in chap 3, para 3.7 and chap 4,

para 4.2).

1314 See, for example, Mineral Resources Act 1989 (Q), s 10; TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576; cf New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands Act (1992) 78 LGERA 1.

1315 See generally H Smith, "The elements of possession" in Y Chang (ed), Law and Economics of Possession (Blackwell, 2015), ch 3.


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In Western Australia v Brown1316 (Brown) French CJ, Hayne, Kiefel, Gageler and Keane JJ

said:

[t]he decisions in Wik and Ward established that the grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if not accompanied by the grant of a right to exclude any and everyone from the land for any reason or no reason, is not necessarily inconsistent with, and does not necessarily extinguish, native title rights such as rights to camp, hunt and gather, conduct ceremonies on land and care for land … [emphasis added]

The "grant of a right to exclude any and everyone from the land for any reason or no reason"

represents for their Honours an incident or right attaching to ownership of an estate, including a

lease, under, or sufficiently analogous to an estate under, the general law.1317 This is the grant of

the right of exclusive possession. In contrast, the grant of exclusive possession (as referred to in

Ward, above) or grant of rights to use land for particular purposes (as referred to in Brown),

not being associated with an ownership interest of the land (an estate), still (if we adopt

Eckford) may give the grantee a right of possession (or right of non-exclusive possession).

Accordingly, the grantee cannot exclude all others from the land for any or no reason. He or she

may only exclude others who would try to use the land for the same purpose. Thus, the right to

exclude here has an exclusory effect. But, that which may be protected and which the grantee

may enjoy is the particular purpose.

The majority's reasoning in Ward, above, bears analogy with Laws LJ's reasoning in Dutton at

least to the extent that it appears to suggest that a possessory remedy can protect a freedom to

use or enjoy land that does not arise from possession of an estate (in an orthodox sense).1318

Ironically, although Brown suggests a statutory lessee either has an unqualified right to a

possessory remedy or he or she does not, if a court adopted Dutton reasoning the lessee may,

regardless, seek a possessory remedy to protect his or her rights of use against an unlawful

intruder. In disagreeing with the majority, Callinan J in Ward1319 said that the provisions of the

Mining Act 1978 (WA) made it clear that "exclusive possession is conferred on the lessee so that

he or she can conduct mining over and under the land". That is, the lessee had possession of the

land (as represented by a lease that is sufficiently analogous to an estate under the general law)

1316 (2014) 253 CLR 507, [55].

1317 See also Congoo below at para 7.3.

1318 As referred to chap 6, para 6.4, the majority in Ward, at [52], appeared to acknowledge that there may be such a thing as a right of possession that is not exercisable against the whole world when it said that it may be greatly doubted that such a right of possession confers a right to control access to land. If all this means is that the holder of the right of possession may use the land without controlling others' access to the land, one wonders why it needs to be linked to the concept of possession at all.

1319 Ward, [848]-[849].


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to enable the lessee to carry on mining rather than the lessee had a right to exclude third parties

when that was necessary to carry on mining.1320

The reasoning of the majorities in Wik and Ward, and in Brown, suggest that possession may be

enjoyed in respect of land – including in the sense that the land is represented by a purpose (or

rather, a lease for a purpose) – even when the possession is not of the land. That is, the lease for

a purpose does not necessarily represent the right to all the land's possible lawful enjoyment (in

a capacity sense); nevertheless, 'it' (in a thinghood sense) can be possessed. And, the lessee has

'title'.1321 In Hounslow London Borough Council v Twickenham Garden Developments Ltd1322

(Hounslow) Megarry J said:

… In some [building contracts], the building owner may be in manifest possession of the site, and may remain so, despite the building operations. In others, the building owner may be in de facto, at all events, exercise no rights of possession or control, but leave the contractor in sole and undisputed control of the site ... The contract necessarily requires the building owner to give the contractor such possession, occupation or use as is necessary to enable him to perform the contract, but whether in any given case the contractor in law has possession must, I think, depend at least as much upon what is done as upon what the contract provides …

The respective lessees of the grants considered in Wik et cetera, although having a title, did not,

like the contractor in Hounslow, enjoy a right of (exclusive) possession as an owner of an estate

(including a lessee) under the general law does. They were apparently granted possession

"necessary to enable … [them] to perform" their leases. Wik and the other cases did not

consider (as they did not need to) whether the lessees in law had possession.1323 The possession

in law (as referred to by Megarry J) must refer to possession of the owner's estate. Consistent

with Megarry J, those decisions, however, imply that there can be a concept of sufficient

1320 C Boge, "Possession of Land – Missteps in the Control Analysis: Part 2" (2015) 89 ALJ 100, 114. Although mining leases are peculiar – they are not like other statutory leases under say, Crown or State lands legislation – the reasoning of the majority in Ward and, to a lesser extent, of the court in Brown, cannot be reconciled with ordinary principles relating to possession and title, particularly in relation to leases. While a lease usually is granted so that the lessee can carry on a specific use, a lease (at least in ordinary terms) that does not specify a 'permitted use' is as effective as a lease that does. A covenant may be implied that the lessee must use the premises in a tenant-like manner (Warren v Keen [1954] 1 QB 15). Leases under Crown or State lands legislation are almost always issued for a purpose. Also, a lease does not necessarily oblige the lessee to carry out any use. However, in Brown, the plurality said (at [63]) that had "the mineral leases provided that the whole of the land must be used in a way which would not permit any use of the land by native title holders, it may have been open to construe the leases as providing for the joint venturers to exclude any and everyone from the whole of the land for any reason or no reason." The problem with this analysis is that, because the right to exclude all others from the whole of the land for any reason or no reason arises when the lease is possessed, if the lease is issued for a specific purpose, it is easy, then, simply to say that no right to exclude for any or no reason exists as the 'lessee' may not have a reason to exclude a person who does not, or would not, interfere with the lessee's use of the land for the specific purpose (cf Radaich v Smith (1959) 101 CLR 209, 217 (Taylor J).

1321 Wik, 132 (Toohey J's postscript). See fn 1276.

1322 [1971] Ch 233, 257.

1323 Although, as noted, they were said to have title.


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possession that is not possession in law. Such a possession appears to be a possession that is

conferred by grant or by contract (or possibly by statute). The problem of the conferred

possession has been explained:1324 it may not necessarily be of an estate. If an estate is granted,

then it must be capable of being possessed. But, if there is no estate (as was the position in Wik

and also in Hounslow) what is granted as possession (impliedly (as in Wik) or expressly (as in

Hounslow)) is a possession not linked to an estate and appears to be an ad hoc or, perhaps to be

fairer, anomalous, form of the concept.

But, as the above discussion shows, even if there is a gradated form of possession, its functions

or applications do not appear clear. It is to be assumed that if, in Dutton, the licensee had been

granted such possession as was necessary to enable it to perform, or carry out the purpose of,

its licence, the objection to Laws LJ's remedy could still stand on the basis that, one, the licensee

was not granted an estate (or possession of an estate), and, two (as raised by Megarry J), it had

not otherwise entered into possession (of the licensor's estate). That is, when a licensee is in

possession (not such possession as was necessary …), he or she is in possession of the owner's

estate (as a matter of fact, but as a conclusion of law); it is not a different type of possession.1325

The fact he or she does not have a right of possession (not being granted an estate) does not

preclude his or her bringing an action in trespass against all but the licensor.1326 Nevertheless,

the licensee's necessary possession may have objectively been no more than a right to occupy

and use the land for a purpose. In this way, the term possession, as used, does not assume in

legal effect any more than a limited right ordinarily associated with a contractual licence. Of

course, the 'possession-right' may, on a proper construction of the arrangement considered as a

whole, have amounted to the grant of a lease. But, if so, the consequences, of course, are

different: the grantee has been granted a lease which may be possessed in the true sense of the

term.

The tension lies in using possession as a conferred right if the ordinary consequences of

possession – its protective remedies – are not to follow: they ordinarily following because,

conceptually they partake of possession's (or ownership's) characteristics of priority to and

exclusivity of the land. As seen, in Laws LJ's view, the remedies would likely not follow only if,

as a matter of justice, that was not appropriate, or as Lady Hale put it in Meier, if the

defendant's interests could not be procedurally protected. Those respective positions do not,

however, concern themselves with the orthodox conceptualisation of possession.


1325 As Megarry J notes, however, whether that is the case may depend on what is done on the land as well as the terms of the licence. In other words, the licence may be able to explain what the licensee does as mere occupation.

1326 Although the licensee in possession may have a right to possess against everyone but the licensor. See further para 7.3 and the discussion of Congoo.


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7.3 Statutory 'grant' of possession without a right: exclusivity without the benefits of having ownership and anomalous possessory interests

In Congoo, an area of land the subject of an application for a native title determination under

the Native Title Act 1993 (Cth) had been temporarily requisitioned during World War II for use

by the Commonwealth as an artillery and live fire range. Regulation 54 of the National Security

(General) Regulations 1939 (Cth) (made under the National Security Act 1939 (Cth)) relevantly

provided:

(1) If it appears to the Minister of State for the Army to be necessary or expedient so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, he may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land.

(2) While any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation, the land may, notwithstanding any restriction imposed on the use thereof (whether by law or otherwise), be used by, or under the authority of, that Minister for such purposes, and in such manner, as he thinks expedient in the interests of the public safety or the defence of the Commonwealth, or for maintaining supplies and services essential to the life of the community, and that Minister, so far as appears to him to be necessary or expedient in connexion with the taking of possession or use of the land in pursuance of this sub-regulation—

(a) may do, or authorize persons so using the land so to do, in relation to the land, anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest; and

(b) may by order provided for prohibiting or restricting the exercise of rights of way over the land, and of other rights relating thereto which are enjoyed by any person, whether by virtue of an interest in land or otherwise.

(3) The owner or occupier of any land shall, if requested by the Minister of State for the Army or a person thereto authorized by him so to do, furnish to that Minister or such person as is specified in the request such information in his possession relating to the land (being information which reasonably may be demanded in connexion with execution of this regulation) as is so specified.

Of reg 54(1), French CJ and Keane J thought that it could possibly have authorised one of two

types of possession, namely, a taking of actual or physical possession which "brings with it a

notion of exclusivity albeit it must be understood in its statutory setting", or a conferring of a

"'right of exclusive possession', equivalent to the unqualified right of a fee simple owner to

exclude anyone and everyone from the land for any reason whatsoever".1327 Their Honours

concluded that reg 54(1), read as a whole, was "concerned with" the former and not a right of

exclusive possession.1328 In the result:1329

1327 Congoo, [11].

1328 Congoo, [12]. In a separate judgment, Gageler J mostly agreed with French CJ and Keane J. Hayne J, Kiefel J and Bell J, in separate judgments, disagreed. However, as the court was split 3-3, the appeal from a majority of the Full Federal Court ((2014) 218 FCR 358 (North and Jagot JJ; Logan J dissenting)) which found that the native title rights and interests had not been extinguished was dismissed.


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[38] The possession granted to the Commonwealth, and the powers conferred as an incident of that possession, authorised the preclusion of native title holders for a time, or from time to time, from entering onto the land or waters. It may be taken to have impaired their enjoyment of their native title. However, where the law, as in this case, imposes a control regime which has a limiting purpose of not disturbing subsisting rights and interests, and where that purpose limits the scope of the rights granted and the powers conferred by the law, the impairment cannot be said to be inconsistent with the subsistence of native title rights and interests. It cannot support the conclusion that there was a “clear and plain legislative intention” to extinguish native title.

[39] In this case the position is clear. The military orders authorised, although they did not mandate, the preclusion, for their duration, of the exercise of the native title rights and interests of the Bar-Barrum People. The powers which they conferred were not unconfined. They could not support a finding of inconsistency between the statutory scheme and the native title rights and interests of the Bar-Barrum People which would lead to the conclusion that their rights or interests were extinguished.1330

On this analysis, as the native title rights and interests of the Bar-Barrum People essentially

subsisted as primary rights in land (that is, they only burdened the Crown's title), the possession

which the Commonwealth was granted was not of an ownership interest in respect of the land

and, therefore, did not extinguish the native title rights and interests. Hill says, in a non-native

title context:1331

Although possession confers a right in the nature of property (rather than simply a personal right to be protected against wrongdoers), it is not enforceable against either the owner or the owner's successors in title unless it is coupled with the right to exclusive possession [for example, as occurs under a lease]. It follows that a licensee or squatter in actual possession (but without the right to exclusive possession) cannot claim trespassory protection vis-à-vis the owner or the owner's successors in title.

According to French CJ and Keane J, the Commonwealth's possession was not "enforceable

against" the Bar-Barrum People's native title in the sense that it could lead to the native title's

extinguishment because it was not "coupled with the right to exclusive possession". The

Commonwealth could, however, exclude native title holders and anyone else during the

Commonwealth's possession to the extent that was necessary to give effect to the purpose of reg

54(1). Although, even if the Commonwealth did not, as French CJ and Keane J found, enjoy a

right of (exclusive) possession, it could not obviously have been considered a licensee or

squatter in possession. But, its actual possession (being authorised) would have allowed it,

unlike the licensee or squatter, to claim trespassory protection against an owner or native title

1329 Congoo, [38], [39].

1330 Cf Congoo, [45], [46] (Hayne J), ("It is both legally and logically wrong to say that the “objective intention” or “statutory purpose” of the reg 54 orders or the laws pursuant to which they were made was to “preserve” all previously existing rights. The conclusion that native title rights and interests were not extinguished by the reg 54 orders is legally flawed. It takes as its premise a legal proposition for which there is no support: that native title rights and interests are extinguished only if an intention to extinguish is discernible in the reg 54 orders and the provisions pursuant to which they were made. That premise, and the conclusion which is drawn from it, are both contrary to the accepted doctrine established and unfailingly applied in this Court in a succession of cases decided over more than twenty years ...").

1331 J Hill, "The Proprietary Character of Possession" in E Cooke (ed), Modern Studies in Property Law, Vol 1 (Hart Publishing, 2011), ch 2, 40.


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holder. Accordingly, the Commonwealth did not have exclusivity in an ownership sense;

nevertheless, its possession gave it a power of exclusion in limited circumstances.1332

Such exclusion did not arise from an inconsistency of rights between statutory and native title

rights in a relevant sense; rather, it apparently arose as a consequence of the Commonwealth's

enjoyment of an actual possession, albeit that actual possession was granted as and understood

as a statutory right. Such exclusion is not the test of inconsistency and, therefore, total

extinguishment (where it is alleged the grant of a non-indigenous grant is exclusive). The test is

of exclusivity of ownership in the sense of a grant that transfers the authority of priority and

exclusivity of – or authority over – the land from the Crown to a grantee, not where what has

been granted is a possession that is not exclusive against anyone else with a subsisting

ownership or interest in the land. Merely being able to exclude someone from the land who had

a subsisting ownership in the land – including a native title right or interest1333 – is different

from having exclusivity of ownership which, by operation of law, prevents anyone else from

having ownership in the land. That is, the Commonwealth's possession gave enjoyment of what

ownership ordinarily confers, but it did not, in itself, represent the authority for the land.

As explained, each of ownership and possession represent priority and exclusivity. But, they do

so in different ways. The exclusivity of ownership means that there can be no other ownership

in the same land: the ownership is of the estate that represents the land. Such ownership is the

priority to the land (the estate). It is incomprehensible to speak of ownership any other way.

The exclusivity of possession means that there is no other freedom to or of the enjoyment of

ownership. And possession is the priority to that freedom. However, it will be recalled that

ownership divides itself according to the ideas of having the land and freely enjoying the land

(according to the estate) and it is possible for one person to have the land and for another to be

freely enjoying it. The former usually is referred to as title. To avoid any misunderstanding, if

an owner grants a lease, then, the lessor is transferring an ownership interest to the lessee: in

practical terms, the owner cannot enjoy his or her ownership interest (for a term) in the same

way he or she did before the grant of the lease.

And, importantly, possession, as discussed, is of ownership. But, all this means is that

possession cannot exist unless the land is subject to an ownership interest. In other words, land

that is owned may be possessed, but land cannot otherwise be possessed.1334 Possession, then, is

1332 See generally Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516, [14].

1333 Of course, if there had been a subsisting owner other than the Crown, the native title would not have continued. However, the reference to a subsisting ownership simply is raised to demonstrate that an ownership can exist while someone else can enjoy possession. Also, the point here is that Crown's ownership (of its Crown or unallocated State land) can be an ownership that remains undisturbed by the granting of possession to the Commonwealth.

1334 All land must be owned. It follows that an interest in land that is not an estate cannot be possessed.


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not ownership, and a non-owner possessor does not enjoy the same rights as an owner. The

non-owner's possession has, in effect, displaced the owner's possession, but not the owner's

ownership (although, if we were discussing this as a pure relativity contest, there are simply two

rival claims as to who has the better right of possession). When we imagine ownership of an

estate as impersonal we can understand each of an owner and possessor is claiming the same

impersonal thing. Each is not claiming the other's personal liberty to enjoy the ownership. But,

possession must be of ownership as the possession could never be (except perhaps as provided

for by statute) more than what the owner may enjoy in possession of the estate.

Minister of the State for the Army v Dalziel1335 concerned the same regulations as in Congoo and

was considered in Congoo. In Dalziel, the respondent was a weekly tenant of the Bank of New

South Wales in respect of vacant land in Sydney. The respondent operated a parking station on

the land. The court rejected the Minister's argument that the respondent retained his weekly

tenancy and the Bank its fee simple estate in the land, and that there had not been a taking of

any recognised estate or interest in the land, and therefore no acquisition under s 51(xxxi) of the

Constitution.

According to Starke J, while the Commonwealth did not acquire ownership or any estate in the

land, its right of temporary possession was "under the denomination of iura in re aliena [a right

in the thing of another], and so a right of property, the subject of acquisition".1336 Rich J,

however, thought that "the Minister has seized and taken away from Dalziel everything that

made his weekly tenancy worth having, and has left him with the empty husk of tenancy".1337 In

Williams J's view, the Commonwealth had divested Dalziel "of the very essence of the

proprietary interest conferred [by his tenancy]".1338

According to Dixon J in New South Wales v The Commonwealth ("the Bank Nationalisation

Case"):1339

I take [Minister of the State for the Army v Dalziel] to mean that s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property.1340

1335 (1944) 68 CLR 261.

1336 (1944) 68 CLR 261, 290.

1337 (1944) 68 CLR 261, 286.

1338 (1944) 68 CLR 261, 305.

1339 (1948) 76 CLR 1.

1340 (1948) 76 CLR 1, 349.


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It is this approach that French CJ and Keane J apparently adopted in Congoo.1341 While Dalziel

was a case about s 51(xxxi) of the Constitution and, specifically, whether there was an

acquisition within the meaning of that paragraph, French CJ and Keane J seemingly were of the

view that the Commonwealth's possession fell within an unnamed or unclassified, or variant,

group of interests that still bore the characteristics of priority and exclusivity of the thing (the

land), but, having regard to the purpose of the regulations, in its own peculiar way.

That said, the Commonwealth's possession in Congoo would, at least at first glance, appear to be

hardly distinguishable from the statutory right of possession that the Mayor had in Hall and so

does not fall outside the first level of legal abstraction as discussed earlier: although anomalous

because of the absence of title to an estate, it may nevertheless be a permissible conceptual

distinction within that first level.1342

In Hall,1343 the defendants were encamped on the Parliament Square Gardens, London (PSG), as

part of 'Democracy Village'. The Mayor of London sought an order for possession in respect of

the PSG as well as an injunction to enforce that order against the defendants. Under the

Greater London Authority Act 1999 (UK), s 384(1), freehold title to the PSG was vested in the

Crown. The balance of s 384 and s 385 placed the care, control, management and regulation of

the PSG in the Greater London Authority. Section 384(8) said those functions could be

exercised by the Mayor on behalf of the Authority. After acknowledging the defendants'

argument that a claim for recovery of possession could only be successfully maintained if that

person could establish title to an estate in land, Lord Neuberger MR (with whom Arden and

Stanley Burnton LJJ agreed) said:1344

[T]here is obvious force in the point that the modern law relating to possession claims should not be shackled by the arcane and archaic rules relating to ejectment, and, in particular … it should develop and adapt to accommodate a claim by anyone entitled to use and control, effectively amounting to possession, of the land in question.

The Mayor could rely on ss 384 and 385 to show that he had a statutory right of possession to

PSG and could in substance enforce what the Crown would have had but for the Mayor's

statutory powers and responsibilities: "every aspect of ownership and possession [was] vested in

the Mayor, as part of his own statutory duty and statutory right, and not as agent of the Crown;

1341 Congoo, [20] (French CJ and Keane J) ("As Williams J explained [in Minister of State for the Army v Dalziel (1944) 68 CLR 261)], notwithstanding its conferment of exclusive possession, the military order did not determine any estate or interest in the land. The owner continued to be the owner in fee simple and the tenant continued to be a tenant from week to week. Their rights continued to exist 'subject to the statutory right of the Commonwealth to take possession of the land and to use it for the purpose authorized by the regulation'.").


1343 [2011] 1 WLR 504.

1344 [2011] 1 WLR 504, [27].


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he [had] complete control and regulation of PSG".1345 Thus, by statute, the Mayor enjoyed the

ownership interest in the PSG. The Mayor was not vested with a title to the Crown's estate, but

effectively had everything that would have otherwise been represented by the Crown's

ownership. It followed that the Mayor could seek an order to be put in possession despite not

having title to the estate. The Mayor was not the owner, but the Mayor's claim was 'rightful' as it

represented a statutory right of possession and a claim to priority and exclusivity of the Crown's

ownership interest, as sourced in the Greater London Authority Act 1999 (UK).

Hall does not amount to a radical challenge to possession's conceptualisation or the integrity of

the law's response to recognising and protecting the enjoyment of land. If anything, just as Lord

Neuberger MR thought that ss 384 and 385 of the Greater London Authority Act 1999 (UK) did

not undermine the Mayor's title to sue for possession, the decision does not undermine the law's

response; it "support[s] it".1346 Hall demonstrates that, merely because a person may be limited

in his or her use of land (for example, because he or she can only use the land for a particular

purpose as provided for under a statute) does not mean he or she cannot be in possession (or

have a right of possession) of the land, or that his or her possession is possession for that

purpose only.1347 Any limitation on his or her use is a governance rule. Thus, despite such a

limitation and the absence of title, he or she may have the priority and exclusivity of the land.

His or her priority and exclusivity are no different from someone else's who is not limited in his

or her use of the land as in each case there is only a single authority for the enjoyment of the

land. The land is still owned because it belongs to someone and someone can still enjoy it.

Significantly, only one person – the owner or person with the (superior) right of possession – is

able to make decisions for the land, whether limited or otherwise.1348 Any idea here that there

is, or needs to be, a possession for a limited purpose confuses concepts. As seen, for a

possession of a purpose, the so-called possession is not necessarily the priority and exclusivity of

the land as it suggests that, although the 'possessor' may have exclusivity of using the land for a

particular purpose, he or she does not have exclusivity of the land. There is, then, no necessary

'land-thinghood'. That is, the possession is not of the land for a purpose; rather, it is possession

of the purpose.

1345 [2011] 1 WLR 504, [29]. The Mayor had a right and duty to enforce the Crown's title in the Mayor's own name (at [33]).

1346 [2011] 1 WLR 504, [33]. See also Hinkley v Star City Pty Ltd (2010) 15 BPR 28,983; affirmed on appeal: Hinkley v Star City Pty Ltd (2011) 284 ALR 154, where it was found that Star City Pty Ltd, rather than the lessee of certain premises, could bring an action in trespass because of its statutory powers and functions. However, there can be difficulties where the relevant action is to recover possession and it is said the plaintiff has possession of land under a contractual right. See C Boge, "Possession of Land: Missteps in the Control Analysis – Part 1" (2015) 89 ALJ 49, 62-63.


1348 That is the effect of a decision such as Bone v Mothershaw [2003] 2 Qd R 600.


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A possession order against the defendants who were occupying the PSG in Hall assumes a

claimant has a right to the possession in circumstances where a defendant has 'it' (that is,

possession1349). That would, relevantly, seem to put a claimant in a not dissimilar position to a

lessee. As discussed (in chap 3, para 3.11), a lessee effectively has an ownership interest by

virtue of a grant from the lessor. The lessor has transferred that interest to the lessee as a term.

In that instance, the lessee's right of (exclusive) possession is not like the right of possession of a

possessor who has such a right as an incident of a presumptive possessory title (that is, a title

acquired without the owner's consent). The lessee's right of possession is an incident of the

lease estate; the possessor with a presumptive possessory title has a right of possession to the

same estate to which the owner has a right of possession. That distinction is important because

obviously it affects whether an owner can recover possession.

Although the Crown's title was not in issue in Hall, because the Mayor had, by statute, a right of

possession, it cannot be said, unlike the position of a possessor under a possessory title, that the

Mayor's right of possession had no effect on the Crown's title. In other words, the Crown could

not (in the same way a lessor of a lease cannot) enforce a right of possession and go in to

possession. Put simply, the Crown did not relevantly have a right of possession because the

Mayor's possession was not wrongful. While the Mayor's right of possession certainly would

have been superior to a right of possession asserted by anyone else who may have been in

possession (and had a presumptive possessory title), that is not the relevant point.

As suggested, in Congoo French CJ and Keane J's reasoning seemed to position the

Commonwealth as having a right of possession (as an incident of its statutory possession) that

was good against the world, except, but in a unique way, for any existing holder of a right of

possession (and, apparently, anyone who had any sort of proprietary type interest). As

indicated, it was not as though any such holder could recover possession while the

Commonwealth was in possession. It is the absence of that restraint in circumstances where the

Commonwealth's possession was not authorised by the holder of that right that would ordinarily

suggest any existing ownership interest would disappear (that is, ordinarily where the

possession was wrongful the owner could recover possession).1350 However, as French CJ and

Keane J acknowledge, that was not how the regulations operated. The regulations created a

unique situation because they essentially created, from an existing owner's perspective, an

involuntary right of possession in the Commonwealth which, although obviously not wrongful,

had a limited effect relative to existing estates and interests. In short, the Commonwealth's

right of possession did not have the usual priority and exclusivity consequences of becoming a

1349 Although where the claimant's right of possession is an exclusive claim found in statute, what the defendant has likely needs some adaptation. The defendant has that which prevents the claimant from being able to make decisions about the land in accordance with its statutory authority.

1350 To put it another way, it would usually indicate the existing ownership has been extinguished.


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superior right (say, like a lease). It had (ostensibly because of its compulsory acquisition-type

genesis) a relative priority and exclusivity consequence that was peculiar to it. Undoubtedly, it

had an exclusory effect, but, as seen, that does not necessarily mean it was of ownership. Their

Honours appeared to limit the Commonwealth's relative possession because the regulations

authorised it for a limited purpose. Thus, although leading to a different result to authorities

such as Wik and Ward (because there, the native title rights and interests could be exercised at

the same time as the pastoral leases in (non-exclusive) possession), French CJ and Keane J's

reasoning also introduces purpose as its own type of abstract (non-land) thinghood concept

which, in effect, can be possessed. Having a right to possess a purpose for which land may be

used may not, then, have an effect on, in one situation, co-existing other rights (Wik and Ward),

and, in another situation (Congoo), existing ownership interests. Again, this introduces a

relativity consideration: relative to existing ownership interests, the Commonwealth's

possession, although having a thinghood quality, does not affect title to those interests (even

though the Commonwealth could exclude their owners from entry). It may, however, bind

everyone else (and, in this sense, is not inconsistent with Lord Hoffmann's reasoning in Bruton

v London and Quadrant Housing Trust (as discussed in chap 3, para 3.11)).

Accordingly, the regulations in Congoo either, one, had the effect of suspending the usual

superior right of possession of an owner on a pure relativity of title analysis, or two, treated the

Commonwealth's grant of (the right of) possession as a purely innominate or anomalous interest

that, relevantly, did not have any effect on any existing estate or interest (except that it could not

be enjoyed beyond merely continuing to have the estate or interest during the Commonwealth's

possession). While the Commonwealth's possession under the National Security (General)

Regulations 1939 (Cth) as considered in Congoo may not have had the effect of extinguishing

any owner's existing ownership of an estate in the land, it is, on this alternative second

reasoning, only if native title is equated with such ownership could it be said to survive the grant

of the (right of) possession to the Commonwealth.

7.4 Adjudication and possession: the substantive law secreted in the interstices of procedure as the court weighs the relativity of parties' interests and values as a conceptualisation technique

The jurist and historian, Sir Henry Sumner Maine, famously said in his Dissertations on Early

Law and Custom (1883)1351 that, "[s]o great is the ascendancy of the Law of Actions in the

infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted

1351 At 389.


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in the interstices of procedure." Frederick Maitland thought the observation was true of real

property law: that law had "been secreted in the interstices of the forms of action".1352

So important in the past was this fact that the great textbooks take the form of treatises on procedure1353 … [T]extbooks … take the form of discussions as to when a man can bring this or that action – trespass, trover, detinue, or assumpsit. This dependence of right upon remedy it is that has given English law that close texture to which it owes its continuous existence despite the temptations of Romanism.1354

Placing oneself in the time of Blackstone, or even later around 1830, Maitland also wrote:

Let it be granted that one man has been wronged by another; the first thing that he or his advisers have to consider is what form of action he shall bring. It is not enough that in some way or another he should compel his adversary to appear in court and should then state in the words that naturally occur to him the facts on which he relies and the remedy to which he thinks himself entitled. No, English law knows a certain number of forms of action, each with its own uncouth name, a writ of right, an assize of novel disseisin or of mort d'ancestor, a writ of entry sur disseisin in the per and cui, a writ of besaiel, of quare impedit, an action of covenant, debt, detinue, replevin, trespass, assumpsit, ejectment, case. This choice is not merely a choice between a number of queer technical terms, it is a choice between methods of procedure adapted to cases of different kinds.1355

A notable feature of the forms of action were that the writs, which had their own precedents,

were directed to the king. The writ of ejectment was issued to the sheriff. But, a king's system of

justice with its basis in the writ system allowed, perhaps unintentionally, a common law to

develop. In the effect, that law was the 'unsaid law' within that system. Endicott writes:

… [I]t had all along been the king’ s duty to administer justice.

The Plantagenet kings discharged their duty to legislate responsibly by legislating in Parliament, and they discharged their duty to administer justice by delegation to their judges. They sent out judges to administer justice according to law in the king’s name; in a stroke of accidental genius, they did not tell the judges what the law was, but gave them authority to issue writs in the name of the king (a technique that had been missing in Normandy). The power to issue writs to sheriffs in the king’s name gave the judges not merely a jurisdiction to resolve disputes, but a constitution-building authority that they used, eg, to construct habeas corpus ad subjiciendum as a control on arbitrary detention (at first, against local authorities including local courts). Legislative and judicial powers became separated gradually from the rest of the power of the king, until Sir Edward Coke was able to hold – as the king’s judge, in the king’s name – that the king could not decide judicial cases personally, but only through his judges, and that the king had no authority to create offences or to change the common law without an act of Parliament. These separations of legislative and judicial power from the king’s own personal rule were not new with Coke; the two ideas, separating the legislative and the judicial power from the king’s own rule, had both been asserted by John Fortescue in the 1460s, and were not new then. But they were not fully established in Fortescue’s time or in Coke’s. That took major legislative acts of constitution building by Parliament, including the Habeas Corpus Act 1640, the Bill of Rights 1689

1352 F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, (CUP, 1910), Lecture I).

1353 See, for example, C Runnington, A Treatise on the Action of Ejectment (1792); J Chitty, A Treatise on Pleading, and Parties to Actions (1844).


1355 F W Maitland, The Forms of Action at Common Law (ed by A Chaytor and W Whittaker, (CUP, 1910), Lecture I).


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(protecting the privileges of Parliament and outlawing taxation without Parliament – though that had been widely viewed as constitutionally unacceptable since the reign of Edward III), and the Act of Settlement 1701 (protecting judicial independence by tenure in office that was secure against the Crown).

This constitution had not reached this point by defining three branches of government, but by defining the judicial and legislative roles, and creating new institutions for their discharge. Judicial and legislative institutions began as courts within the court of the king. They emerged as independent high courts with specified powers and were protected against interference from the Crown, with the judges acting in the name of the king, and the king legislating in Parliament. The royal power in general was undefined; the judicial and parliamentary powers came to be defined and to be established as exclusive to the judicial and parliamentary institutions.1356

The forms of action were gradually abolished in the nineteenth century. The real and mixed

forms of action (not including ejectment) were abolished by the Real Property Limitation Act

1833 (UK).1357 By the Common Law Procedure Act 1852 (UK), a simple writ of summons only

was required to commence an action.1358 By s 168 of that Act, the form of writ of summons

simply required that, in an ejectment action, the plaintiff was entitled to possession and to eject

all others from the land. And, finally, as well as fusing the superior common law and equity

courts (but not common law and equity themselves) and creating a High Court of Justice with a

Court of Appeal above it, the Judicature Act 1873 (UK),1359 which commenced on 1 November

1875, and the civil procedure rules made under it (the Rules of the Supreme Court), meant that

the:

plaintiff is to state his case, not in any formula put into the king's mouth but in his own (or his adviser's) words endorsed upon the writ, and his pleader is to say not upon what form of action he relies but merely what are the facts upon which he relies. Some differences there are in the procedure due to differences in the nature of the action, of the facts relied upon and of the rights to be enforced. Thus in some cases there is and in others there is not a right to a trial by jury, in some cases there is a right to special procedure for judgment by default if the claim is for a liquidated sum, and so forth. Much there is for practitioners to study in the Judicature Acts and the Rules of the Supreme Court, but it is no longer possible to regard any form of action as a separate thing.

This results in an important improvement in the statements of the law – for example in textbooks – for the attention is freed from the complexity of conflicting and overlapping systems of precedents and can be directed to the real problem of what are the rights between man and man, what is the substantive law.1360

1356 T Endicott, "Was Entick v Carrington a Landmark?" in A Tomkins and P Scott, Entick v Carrington: 250 Years of the Rule of Law (Hart Publishing, 2015), 109-130, 113.

1357 3 and 4 Will IV, c 27, s 36. The personal forms of action were abolished by the Uniformity of Process Act 1832 (UK), 2 Will IV, c 39.

1358 The Real Property Limitation Act 1833 (UK) and the Common Law Procedure Act 1852 (UK) generally applied to the Australian colonies (except the situation was slightly different in South Australia). See the Colonial Laws Validity Act 1865 (UK).

1359 The Australian colonies enacted legislation modelled on the Judicature Act 1873 (UK). See, for example, Judicature Act 1876 (40 Vict No 6) (Q); Judicature Act 1883 (36 & 37 Vict c 66) (V). New South Wales enacted the Supreme Court Act 1970 (NSW).



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In Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management

Limited1361 Gummow J noted:

When the jurisdiction of the courts of common law in England was defined by the system of writs and the forms of action, there was no need to speak of standing. The question was whether the plaintiff was entitled to a writ and whether the writ lay. Writing in 1870, after the abolition of the forms of action, Dicey said [A Treatise on the Rules for the Selection of the Parties to an Action (1870), 6-7]:

The maintenance of an action depends upon the existence of what is termed a 'cause of action', ie, of a right on the part of one person (the plaintiff), combined with the violation of, or infringement upon, such right by another person (the defendant) … There goes, it should be noticed, to make up the cause of action at once the 'existence' and the 'violation' of a right, and the expression cause of action means (in strictness) the whole cause of action, ie, all the facts which together constitute plaintiff's right to maintain the action.1362

An idea of a cause of action rests on the facts on which the plaintiff relies and the remedy he or

she seeks, not one of fitting within a form of procedure adapted to different kinds of actions.

However, the language of the old forms of action can, from time to time, intrude into our

understanding of the substantive law (even when that law is a matter of interpretation of the

requirements of an Act). For example, a possession without an owner's consent may

conveniently be referred to as an adverse possession. But, in truth, in such circumstances there

is no distinction in substance between a possession and an adverse possession:1363 any

possession without the owner's consent, and regardless of whether the owner is statute-barred

from bringing an action to recover possession, is adverse.1364 Use of the adjective adverse may

imply that the possessor must (also) be doing something that is harmful to the paper owner.1365

A concept of non-adverse possession had, because of the requirements of the old forms of

action, emerged in case authorities with the apparent effect that a squatter's possession was only

adverse to a paper title if the squatter's use of the disputed land was of a kind clearly

inconsistent with the paper title. That is, possession not of this kind, even if enjoyed without an

owner's consent, was non-adverse possession and could not, therefore, convert itself into a

paper title. According to Lord Browne-Wilkinson in JA Pye:1366

[33] … [The] concept [of non-adverse possession] was engrafted by the common law and equity onto the limitation statute of James I (21 Jac 1, c 16). Before the passing of Real Property Limitation Acts 1833 (3 & 4 Will 4, c 27) and 1874 (37 & 38 Vict, c 57), the rights of the paper owner were not taken away save by a 'disseisin' or an ouster and use of the land by

1361 (2000) 200 CLR 591, [92].

1362 See generally Letang v Cooper [1965] 1 QB 232 (Diplock LJ).

1363 See Zarb v Perry [2012] 1 WLR 1240, [26] (Arden LJ); M Wonnacott, Possession of Land (CUP, 2006), 131 ("If a person 'had' or is 'in' possession of an estate, then that possession is necessarily 'adverse' to anyone who claims a better right to possess that estate. Non-adverse possession would be a contradiction in terms.").

1364 We can ignore the peculiar case of the tenancy at sufferance here.

1365 Perhaps averse is a more appropriate adjective.

1366 JA Pye, [33], [35]-[36].


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the squatter of a kind which was clearly inconsistent with the paper title. Such inconsistent use was called adverse possession … Under the 1833 Act (sections 2 and 3 …) the right of action was barred 20 years after "the right … to bring such action shall have first accrued" and "such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession". Soon after the passing of the 1833 At it was held that "the second and third sections of that Act … have done away with the doctrine of non-adverse possession, and … the question is whether 20 years have elapsed since the right accrued, whatever the nature of the possession": Denman CJ in Nepean v Doe d Knight (1837) 2 M & W 894, 911 …

[35] From 1833 onwards, therefore, old notions of adverse possession, disseisin or ouster from possession should not have formed part of judicial decisions. From 1833 onwards the only question was whether the squatter had been in possession in the ordinary sense of the word. That is still the law …

[36] Many of the difficulties with … [the requirements of the Limitation Act 1980 (UK)] are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to 'oust' the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter's use of the land has to be inconsistent with any present or future use by the true owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.

Lord Browne-Wilkinson specifically rejected an approach that required there to be an ouster of

the paper title owner for there to be a dispossession. Dispossession must necessarily occur if the

squatter is in possession.1367

It is sometimes said that ouster by the squatter is necessary to constitute dispossession … The word 'ouster' is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession ... There will be a 'dispossession' of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumed possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter's subsequent occupation of it in law constitutes possession the squatter must have 'dispossessed' the true owner for the purposes of Schedule I, paragraph I …

In Barker v R1368 Brennan and Deane JJ spoke of circumstances in which an entry onto land in

the possession of another was justified at law against a background of the old common law

forms of action.

Justification may take a variety of forms including, inter alia, a paramount right to possession, some other statutory or common law right of entry, the leave and licence of the person in possession and, in the absence of negligence, involuntary and inevitable accident. While the old common law forms of action prevailed, the action for trespass to land was restricted to trespassory entry: if the actual entry was and remained lawful, subsequent presence or action on the land would not found an action in trespass. Under the modern law of tort however, a person who has lawfully entered and been upon land which remains in the possession of another is liable in trespass if his justification for being upon the land ceases or if he performs acts upon the land which take him outside the scope of his justification for being thereon. When the permission or authority ("leave and licence") of the person entitled

1367 JA Pye, [38].

1368 (1983) 153 CLR 338, 356-357


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to possession is relied upon to justify what would otherwise constitute a trespass, a person enters land as a trespasser at common law if his entry is beyond the scope of the permission. If the entry is within the scope of the permission, he will become a trespasser at common law only when the permission to be upon the land is revoked or exhausted or when his conduct upon the land is such that his presence thereon is outside the scope of the permission.

The old forms of action can have a fascination – and, apparently, even applications – beyond

their usefulness or relevance. Undoubtedly, however, they have assisted our understanding of

concepts in real property law, including of ownership and possession.1369 Ownership and

possession partly are, in substance, products of the forms of action (that is, the various real

actions which concerned seisin and ejectment which concerned possession, each an exclusivity

idea). Through disputes brought by such forms these concepts were being conceptualised (or, in

some respects, simply assumed). But, they do not take their characteristics from the forms of

action; those characteristics exist in part because, not unexpectedly, the administration of

justice was bound up in the forms of action.

As suggested, Hall represents a permissible conceptual distinction of possession (or the right of

possession) as the possession of the Mayor still fell within the representative characteristics of

priority, exclusivity, and thinghood (in an orthodox sense), and appeared to represent no more

than possession of the ownership interest of the Crown. The reasoning of French CJ and Keane

J in Congoo has some similarities with that in Hall, but, positions possession differently, as

possession there was being assessed relative to existing and, apparently, superior, ownership

interests (whereas in Hall the defendants' interests were relatively inferior). The

Commonwealth's possession in Congoo was an anomalous non-title possession because it was

for a limited purpose.1370 Although having an exclusory effect, it did not, like the Mayor's

possession in Hall, assume a de facto title status.

However, Dutton and Lady Hale in Meier appear to leap over possession and go straight to a

remedy and require the law to fashion a right to exclude as protecting the liberty to enjoy a right

of occupation (as discussed in chap 6, para 6.5). However, while the advantage of using RSC

Ord 113 was its summary nature, it may have been permissible to, first, establish a right to

exclude in the licensee, and then, grant an injunction against the defendants. But Dutton does

not do that, and suggests the right and remedy were there, or at least implicit, in the form of Ord

113.

While it has been stressed that a right to exclude and possessory rights of action are

consequences of ownership or possession, the law nevertheless conceptualises ownership in

possession according to such consequences as they form part of the law's response to the land

1369 Although, as noted, possession essentially was not the subject of the real actions. It was the subject of ejectment (which Maitland described as a mixed action). Its modern equivalent is the action for recovery of possession.

1370 It is analogous to a consensual parting with possession.


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enjoyment objective. A right of action and remedy follow a right (that is, because there is a

cause of action), but they must be logically connected within and according to that response.1371

It will be recalled that in Dutton Laws LJ acknowledged that the "principal objection to the

grant of" an order for possession was "that it would amount to an ejectment, and ejectment is a

remedy available only to a party with title to or estate in the land".1372 Laws LJ, noting the form

in which the action for the order was to be brought,1373 considered this to be the old law and

remarked that in such an objection he heard "the rattle of medieval chains".1374 The reference to

the form in which the action for the order was to be brought should not be confused with any old

form of action. As seen, a plaintiff must have a cause of action; necessarily, he or she must have

standing to bring his or her action according to the facts. Under the old forms of action a

plaintiff needed simply to come within a particular form of writ. While one cannot pick and

choose the effect of a summary procedure (under RSC Ord 113, r 1 which was operative at the

time of Dutton), Laws LJ appeared to be saying that, to deny the plaintiff who was a contractual

licensee with a right to occupy land because it was not in possession or did not have title which

would found an action in ejectment, sounded like the limitations of the old forms of action: that

is, the old forms were not about standing to bring an action, but simply whether one could avail

oneself of a writ. On the contrary, when Laws LJ thought he could hear the "rattling of medieval

chains", he was stressing that he was not tied by such limitations1375 and, in fact, was saying that

the modern form of a possession order actually is found in substantive law as concerns the

rights and duties of and between persons. Specifically,

[t]he lesson to be learnt from these ancient forms is that the remedy by way of ejectment was by definition concerned with the case where the plaintiff asserted a better title to the land than the defendant; and the fictions, first introduced in the latter half of the 16th century and in effect maintained until 1852, were designed to cut out the consequences of pleading points

1371 This research does not adopt a view that the law may only determine that a right to exclude arises out of a proprietary interest. Rather, it maintains the view that a non-proprietary right to exclude does not find its basis in a non-exclusive possession.

1372 Dutton, 147.

1373 That is, under the former RSC, O 113, r 1, which was a summary procedure for an order for possession that could be granted to a person claiming possession of land which he or she alleged was occupied solely by a person or persons who entered into or remained in occupation without his or her licence or consent.

1374 See also Countryside Residential (North Thames) Ltd v T (2001) 81 P & CR 2; Alamo Housing Co-operative v Meredith [2003] EWCA Civ 495; Vehicle Control Services Ltd v Revenue & Customs [2013] EWCA Civ 186; cf Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, [101], where Barrett J considered that Manchester Airport plc v Dutton was wrong in principle. See also A Baker, "Developers versus Protestors: Contractual Licensees and Possession Claims Post Dutton" in W Barr (ed), Modern Studies in Property Law, Vol 8 (Hart Publishing, 2015), ch 6, 104, who suggests that Dutton may have been overruled by Bocardo.

1375 Dutton, 148.


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that might be taken if the plaintiff did not plead his case as to the relevant legal relationships with complete accuracy.1376

Laws LJ was not suggesting that a civil procedure rule embodied any right itself; the plaintiff

had its right by the law of contract and that came within the contemplation of RSC Ord 113, r 1.

Rather, his Lordship was of the view that the law needed to provide the plaintiff with an

effective remedy: this could be seen as an issue of access to justice.1377 Hence his, and later Lady

Hale's, reference to the brocard, ubi ius, ibi remedium. Laws LJ pressed home his point.

… I think there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto occupation. The mistake inheres in this: if the action for ejectment was by definition concerned only with the rights of estate owners, it is necessarily silent upon the question, what relief might be available to a licensee. The limited and specific nature of ejectment means only that it was not available to a licensee; it does not imply the further proposition that no remedy by way of possession can now be granted to a license not in occupation. Nowadays there is no distinct remedy of ejectment; a plaintiff sues for an order of possession, whether he is himself in occupation or not. The proposition that a plaintiff not in occupation may only obtain the remedy if he is an estate owner assumes that he must bring himself within the old law of ejectment. I think that is a false assumption.1378

The missing link, of course, is that it does not fully explain the plaintiff's cause of action. It is, as

already observed, difficult to say that the plaintiff's right had been violated, let alone by the

defendant. A plaintiff must be able to maintain an action against the defendant according to

"the whole cause of action, ie, all the facts which together constitute the plaintiff's right to

maintain the action".1379 It is one thing to say the plaintiff has a right; it is another to say its right

has been violated; and it is an entirely different thing to say that an identified defendant violated

that right where the defendant did not owe a duty to the plaintiff not to intrude on the land. In

the last case, it is non-sensical to speak of the plaintiff's having a right at all, especially in a

correlative sense. There may be a right and there may – rather, should – be a remedy; but, the

remedy is against the party who owed the plaintiff a duty. The notion that there must be a

remedy is but an aspect of the rule of law. But, rights can be misunderstood, as not everything

we imagine to be a right is enforceable against someone, or at least someone of our choosing.1380

When in Ashby v White,1381 Lord Holt CJ said, "if the plaintiff has a right, he must of necessity

have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or

enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of

1376 Dutton, 149.

1377 Cf, Dutton, 149.

1378 Dutton, 149.

1379 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited(2000) 200 CLR 591, [92], cited above.

1380 See generally N McBride, "Rights and the Basis of Tort Law" in in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing, 2011), ch 12.

1381 (1703) 92 ER 126.


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right and want of remedy are reciprocal", he did not mean that every conceivable right needed a

remedy so that full justice from the plaintiff's perspective could be done to the plaintiff,

especially if that imposed a burden on someone else. As Lady Hale recognised in Meier,1382 there

must be sufficient procedural protection for the defendant.

Clearly, as suggested, each of Laws LJ and Lady Hale thought the development of law was,

indeed, a matter of finding an effective remedy and filling a perceived gap. Whereas once a new

form of action (or writ) may have been invented to meet a particular situation that was not

covered by an existing writ, there is a distinction, albeit not always easy to discern, between

procedural and substantive legal rights that are said to implement the law and also where it is

the perceived gap which it is thought must be filled lies.1383 In University of Essex v Djemal1384

Buckley LJ had said of RSC Ord 113, r 1:

I think the Order is in fact an Order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession.

With respect, Buckley LJ is correct and his view is not easily explained away by relying on the

deceptive proposition that right and remedy are reciprocal when, in truth, the use of the

machinery of a court's jurisdiction appears to have encouraged a notion that, where there is a

remedy, there can be a right to fit that remedy.

7.5 Discretionary remedialism and adjudicative limitations: another relativity challenge to possession?

Even accepting Buckley LJ's view in University of Essex v Djemal (as referred to in para 7.4),

are possession, and ownership generally, being (indirectly) reshaped in another way by a form of

discretionary remedialism, that is, a discretionary power of a court to award a remedy, especially

for a continuing trespass or nuisance (and even when, as a matter of substantive law, the

plaintiff is in possession in an orthodox sense)?

The Civil Proceedings Act 2011 (Q), s 8, says:

If a court has jurisdiction to hear an application for an injunction or specific performance, the court may award damages as well as, or instead of, an injunction or specific performance.

1382 Meier, [25].

1383 All-In-One Design & Build Limited v Motcomb Estates Limited (2000) 144 SJLB 219 QBD ("The term 'practice and procedure' is used in contrast to 'substantive law': on the one hand, substantive law comprises the body of rules of law which give or define legal rights and duties or create or confer legal status, and on the other hand, practice and procedure comprise the machinery by which such legal rights, duties and status are enforced or recognised, which is sometimes called 'adjective law'.").

1384 [1980] 1 WLR 1301, 1304.


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Section 8 is the equivalent of what is known as Lord Cairns' Act.1385 In an action for trespass,

damages "compensate the plaintiff for damage to the land … [and] vindicate the plaintiff's right

to exclusive use and occupation of his or her land".1386 Where the trespasser causes the owner

no financial loss, damages are measured by the benefit received by the trespasser, that is, his or

her use of the land.1387 The "measure of damages is often analysed as a loss of a bargaining

opportunity or … 'price payable for the compulsory acquisition of a right'."1388 And, the basis for

an award of damages in nuisance (irrespective of the type1389) is the diminution in the value of

land.1390

The effect of smoke from a neighbouring factory is to reduce the value of the land. There may be no diminution in the market value. But there will certainly be loss of amenity value so long as the nuisance lasts. If that be the right approach, then the reduction in amenity value is the same whether the land is occupied by the family man or the bachelor. If the occupier suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment.1391

In Emprja Pty Ltd v Red Engine Group Pty Ltd1392 (Emprja) the applicant was a lessee of a

lease from the State under the Land Act 1994 (Q). The lease was for marina purposes. The

respondent was a sublessee of a marina berth within the applicant's lease.1393 Under cl 4.1 of the

sublease, the respondent was required to give written notice to the applicant nominating a boat

or other vessel which the respondent intended to moor in the berth from time to time and which

was, at all times, required to have dimensions appropriate to the berth.1394 The respondent

berthed a large motor yacht, 'Pelicans', at its berth under the sublease. Pelicans' beam exceeded

the width of the sublease area by 100mm. Also, when tied up, the outboard side of Pelicans

projected 500mm into a 1.157m manoeuvring strip. Jackson J found that it was a trespass for

the respondent to berth Pelicans in a fashion so that the boat protruded into the manoeuvring

strip which was part of a common area.1395 The applicant argued that it was entitled to an

injunction to restrain the respondent's continuing trespass. Alternatively, the applicant claimed

it was entitled to an injunction to restrain the respondent's continuing breach of cl 4.1. The

1385 Chancery Amendment Act 1858 21 & 22 Vict c 27 (UK).

1386 Plenty v Dillon (1991) 171 CLR 635, 654-655 (Gaudron and McHugh JJ).

1387 Attorney-General v Blake [2001] 1 AC 268, 278 (Lord Nicholls).

1388 Bocardo, [123] (Lord Clarke), citing, Attorney-General v Blake [2001] 1 AC 268, 281 (Lord Nicholls).

1389 See fn 1417.

1390 Michael Vincent Superannuation Fund Pty Ltd v Aurizon Operations Limited [2017] QSC 26, [43].

1391 Hunter v Canary Wharf [1997] AC 655, 696 (Lord Lloyd).

1392 [2017] QSC 33.

1393 See Land Act 1994 (Q), s 332.

1394 Specifically, cl 4.1(a)(ii) of the sublease.

1395 At [35].


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respondent contended that there were various reasons why no injunction should be granted in

the circumstances, including that the injury to the applicant was small or trivial; the effect of the

injunction would be oppressive to the respondent; and there was a disproportion in the

detriment to the respondent and the benefit to the applicant.

In considering the court's discretion under the Civil Proceedings Act 2011 (Q), s 8, Jackson J

referred to the oft-referred to 'good working rule' of AL Smith LJ in Shelfer v City of London

Electric Lighting Co.1396

In my opinion, it may be stated as a good working rule that:

(1) If the injury to the plaintiff's legal rights is small,

(2) And is one which is capable of being estimated in money,

(3) And is one which can be adequately compensated by a small money payment,

(4) And the case is one in which it would be oppressive to the defendant to grant an injunction:

then damages in substitution for an injunction may be given.1397

In Jackson J's view:1398

Although it has been said numerous times that it is wrong to treat Lord Cairns' Act as operating as a basis for a compulsory purchase of a plaintiff's right, it is impossible to deny that is sometimes the effect of an award of damages for trespass or nuisance or breach of a restrictive covenant where the award is made to compensate a plaintiff for past and future loss by reason of the defendant's continuing wrong.

Even so, from Shelfer onwards, the cases have operated on the basis that it is not a matter of course to award damages under Lord Cairns' Act instead of an injunction to which the plaintiff is otherwise entitled. It was said in Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, recently:

In Shelfer, the Court of Appeal made plain that the unprecedented statutory power to award damages in equity did not introduce damages as the standard remedy for trespass, whereby wrongful acts could routinely be sanctioned by the effective 'purchase' of the landowners' rights. Rather, it was necessary to make out a special case for the court to exercise its jurisdiction to award damages under Lord Cairns' Act. Although the Court of Appeal emphasised that an injunction remained the prima facie remedy for trespass, AL Smith LJ articulated, in a 'good working rule', guidance as to when, exceptionally, damages would be appropriate.1399

In Plenty v Dillon1400 Mason CJ, Brennan and Toohey JJ cited Lord Camden LCJ's statement in

Entick v Carrington1401 that "every invasion of private property [unless by licence or justified],

be it ever so minute, is a trespass". There is not, as may incur in an action in nuisance, any

1396 [1895] 1 Ch 287, 322-333.

1397 The good working rule does not operate where, despite (1) to (4) being satisfied, the trespass or nuisance is deliberate (see Emprja), [81]).

1398 Emprja, [64]-[65].

1399 (2007) 20 VR 311, [39].

1400 (1991) 171 CLR 635, 639.

1401 (1765) 19 St Tr 1029, 1066.


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"weighing of respective rights of the parties in the use of their land to make a value judgment as

to whether the interference [by the trespass] is unreasonable".1402 And, according to Gaudron

and McHugh JJ (although not in respect of a continuing trespass):1403

If the courts of common law do not uphold the rights of individuals [such as a right to exclude] by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.

That said, damage to the plaintiff is not an element of an action for trespass to land. The

absence of damage is not, then, an obstacle to the grant of an injunction for a continuing

trespass. Conversely, it has been said a proven absence of damage, without more, is insufficient

to justify the grant of an injunction.1404 When, in the slightly different context of Meier, Lady

Hale said that a court may grant a possession order if there is sufficient procedural protection

for the defendant,1405 we can perhaps adopt and adapt the idea of the court's granting such an

order for the benefit of someone not in possession to the broader jurisdiction of the court to

shift its emphasis in administering the common law to accommodate proprietary rights and

modern social interests.1406 The court's discretion to award a remedy as appropriate in an

instance of a proven trespass or private nuisance seems a not illogical extension of such an

adjudicative process. That is, for instance, can a defendant buy access to, or interference with,

land where the access or interference occurs without a possessor's consent, but the access or

interference is otherwise considered reasonable, justifiable, or in the public interest (that is,

where it falls outside the good working rule)?

In Emprja Jackson J did not suggest that authority went that far, at least to date. According to

his Honour:

1) authority recognises that an injunction may restrain a trespass even where the damage to

the plaintiff is minimal;1407

2) there may be cases that would otherwise fit within the 'good working rule' where the

defendant's conduct disentitles him or her from asking that damages be assessed in

substitution for an injunction;1408

1402 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287, [118]. See further fn 494.

1403 (1991) 171 CLR 635, 655.

1404 Emprja, [66], citing Meagher, Gummow & Lehane's Equity Doctrines and Remedies (5th edn), [21-110]; Jaggard v Sawyer [1995] 1 WLR 269, 278-279.

1405 Meier, [25].

1406 Gartner v Kidman (1962) 108 CLR 12, 47 (Windeyer J).

1407 Emprja, [67]. See Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311.


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3) where the injury to the plaintiff is small and is capable of being estimated in money, it

may, having regard to all relevant factors, be oppressive to the defendant to grant the

injunction (and which is not to be substituted by a test which determines where the

balance of convenience lies);1409

4) the above statements, however, must not be substituted for the statutory text (of the

Civil Proceedings Act 2011 (Q), s 8) or the discretion that is conferred by it;1410 and

5) there is argument that the burden is on the defendant to show why an injunction should

not be granted.1411

After acknowledging that an award of damages instead of an injunction would be to authorise

the respondent's ongoing trespass for the future; the injury to the plaintiff's legal rights was

small; and that it was difficult to assess whether the applicant's injury was capable of being

estimated in money (as there was no evidence as to the value of the part of the manoeuvring

strip that was encroached on), Jackson J thought it seemed "not unlikely that the applicant's

injury … [was] one that … [could] be adequately compensated by a small money payment".1412

But, his Honour concluded:

Each case must depend on its own facts. The respondent's detriment is no doubt likely to be much greater than the benefit of the injunction to the applicant. The trespass seems to have come about from a lack of appreciation (by both the respondent and the landlord) that Pelicans as berthed encroached into the manoeuvring strip.

Even so, it does not in my view amount to oppression to conclude that the applicant is entitled to an injunction to restrain the respondent from continuing to trespass onto the manoeuvring strip. Accordingly, in my view, it is not appropriate in the present case to award damages instead of granting an injunction to restrain the respondent's trespass.1413

Remedies can be a matter of relations between parties; they do not, in a possession context,

concern one's relationship with the possessed thing unless looked at entirely in a protection,

vindication, or boundary sense (that is, they may, if in the discretion of a court, fall more into an

I-Others, rather than I-Thing, relational view of possession). Nor are they usually fashioned

because a defendant's offending conduct was undertaken in the public interest. For present

purposes, the potential oppression of awarding an injunction against a defendant is not affected

1408 Emprja, [68]. See generally Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2010] BLR 73, [48] (Lord Walker) as to principles for awarding damages under Lord Cairns' Act.

1409 Emprja, [69], [80]; Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, [73]; Jaggard v Sawyer [1995] 1 WLR 269. An example where it may be oppressive is an innocent encroachment. See S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv LJ & Pub Pol'y 593, 646.

1410 Emprja, [70]; Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311; Lawrence v Fen Tigers Ltd [2014] AC 822.

1411 Emprja, [70]-[71]; Lawrence v Fen Tigers Ltd [2014] AC 822, [121] (Lord Neuberger).

1412 Emprja, [73]-[76].

1413 Emprja, [82]-[83].


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by whether he or she was minded to intrude or interfere with the plaintiff's enjoyment of his or

her land because that was in the public interest. The plaintiff is entitled to his or her remedy

and while the Civil Proceedings Act 2011 (Q), s 8, suggests an award of damages is an alternative

to an injunction (or specific performance), the provision is not engaged unless the court had the

jurisdiction to award the injunction in the first place. As Jackson J's reasoning suggests,

damages are "instead of granting an injunction"; as a result, there may be factors (such as

oppression) which exceptionally lead to a conclusion that damages ought be awarded. We

arrive, then, at the transformation of a discretion to grant an injunction into a discretion to deny

an injunction in exceptional circumstances.1414

Separating possession from its protective remedy: an argument against its reshaping by adjudicative remedialism

Unlike trespass, a private nuisance does not usually involve a direct physical intrusion onto

land.1415 For present purposes, a private nuisance may consist of a substantial and unreasonable

interference1416 with the enjoyment of possession of an estate in land.1417 A nuisance (in this

sense) would ordinarily be seen as an interference with the possessor's personal enjoyment of

the estate. Where the nuisance is a continuing nuisance, or where it is likely to continue, an

injunction may be ordered by the court as relief.1418 If the issue of enjoyment of possession is

looked at from the perspective of the availability of a right of action for private nuisance and the

injunction remedy, it is not too difficult to reach a conclusion that the possessor of an estate:

1) may enjoy his or her estate free of substantial and unreasonable interferences but, then,

only if a court, in the exercise of its discretion (rather than as a rule), orders an

injunction as being appropriate;1419 or, alternatively,

1414 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv LJ & Pub Pol'y 593, 645.

1415 See Hunter v Canary Wharf Ltd [1997] AC 655.

1416 For example, as noted by Preston CJ in Robson v Leischke [2008] 72 NSWLR 98, [85], noise (Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683, 697-702; Vincent v Peacock [1973] 1 NSWLR 466); vibrations (Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287; Hoare & Co v McAlpine [1923] 1 Ch 167); dust (Pwllbach Colliery v Woodman [1915] AC 634; Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32; Kidman v Page [1959] Qd R 53); sediment from soil erosion (Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108, 126-127); noxious smuts and pollution (St Helen's Smelting Co v Tipping (1865) 11 HLC 642; 11 ER 1483); smoke (Crump v Lambert (1867) LR 3 Eq 409; Manchester Corp v Farnworth [1930] AC 171).

1417 In Hunter v Canary Wharf Ltd (1997) AC 655, the House of Lords rejected an argument that a licensee may bring an action in private nuisance. A nuisance may also consist of an encroachment on to a neighbour's land short of trespass and physical damage to the neighbour's land or any building, works, or vegetation on it.

1418 Sedleigh-Denfield v O'Callaghan [1940] AC 888.

1419 See, for example, Prentice v Mercantile House Pty Limited [1991] FCA 50, [80].


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2) does not have a right to enjoy his or her estate free of insubstantial and reasonable

interferences.1420

Lightwood once put it that the "exact nature of the right [of possession] depends on the

remedies granted for violations of it, and can only be stated after examination of those

remedies".1421 This approach may be thought to dilute what is understood as possession

(including legal possession) because it conceptually characterises the content of possession as

being of the possessory remedies. However, the interest of the plaintiff which is interfered with

in the case of nuisance is a liberty or freedom to enjoy his or her possession (which generally

translates as, a freedom to do as one pleases so long as no harm is caused to anyone else, but

subject to any governance rules). As such, any suggestion that possession is being diluted may

end up asking the wrong questions concerning the roles of the other elements associated with

the law's response to an objective or argument for the enjoyment of land. Property in the form

of an ownership interest of an estate is not reshaped every time a court declines to order an

injunction for a substantial and unreasonable interference with its possession. (However, as

discussed below, that may be different if the court(s) adopt an adjudicative justification as,

essentially, a rule for not ordering an injunction in an identified class of circumstances.)

By the same token, a consequentialist interpretation of property which places the protection of

property inside the property itself (that is, as a right to exclude or as a right to be free of

substantial and unreasonable interference), can have the opposite effect if it is thought that an

injunction is granted as a matter of course for any intrusion onto or interference with

property.1422 That is, the injunction, or its availability, as some sort of secondary right becomes,

by default, the right or foundation on which property is conceptualised: not surprisingly, the

property is, then, characterised as exclusionary and is constituted by a primary right of

exclusion (or non-interference).

In the end, it must be recalled that possession is merely an element in a response to meeting an

objective or argument of the law. An injunction is a remedy (another element in that response)

and it protects a right (also an element). It may be awarded at the discretion of the court in a

trespass or nuisance action. The discretion itself is another element in the law's response.

1420 See S Douglas, "The Content of a Freehold: A 'Right to Use' Land?" in N Hopkins (ed), Modern Studies in Property Law Vol 7 (Bloomsbury, 2014), ch 16. See also D Nolan, "'A Tort Against Land': Private Nuisance as a Property Tort" in D Nolan and A Robertson (eds), Rights and Private Law (Hart, 2012), ch 16.

1421 J Lightwood, A Treatise on Possession of Land (1894), 1. There Lightwood was referring to the situation where mere possession in fact became the source of "a right known as the right of possession (ius possessionis)."

1422 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv LJ & Pub Pol'y 549.


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The real issue, then, is what the law and, by necessity, society, values as the lawful enjoyment of

land. Each element in the law's response is reacting to the value that is placed on that

enjoyment and, conversely, by its non-enjoyment by non-owners.1423

To contend that ownership in possession is somehow less of an interest because the possessor

cannot enjoy the land to the same extent as he or she may once have or because the interest is

not completely protected against another's interference with that enjoyment (whether or not

unreasonable and substantial) is, on one view, incorrect. The error is in characterising the

possession itself as the correlative right of action and a duty or 'no-right' of all others (the world

at large) not to interfere. Also, on that view, it misunderstands that each element is simply

responding to the enjoyment objective. That objective, of course, may change over time,

especially if society alters the values it puts on the respective freedoms of owners and non-

owners in respect of land.

The rights of action in trespass and nuisance respectively regulate or govern (in the sense of

touching on) relationships between possessors of estates and others as concerns others' actual

or attempted interferences or intrusions, but not between possessors and their estates. As such,

they do not govern a possessor's property in the estate except in the sense they govern the

outward expression of that property relative to others. Whether, at some point, someone

decides to interfere with a possessor's liberty interest that is property will arise out a factual

circumstance. If so, a cause of action springs forth from that circumstance.1424 But, that

interference or the possibility that the interference (as a continuing one) may not be restrained

by an injunction does not have the effect of saying that the possessor's property was anything

less than it was before the interference. Even in the case of the trespass where the law excuses a

particular entry onto land as not unlawful (including say, of unavoidable accident1425), the law

has only regulated the relationship between the possessor and the particular entrant, not the

possessor's enjoyment of the estate.1426

1423 See T Merrill and H Smith, 'The Morality of Property' (2007) 45 Wm and Mary L Rev 1849; cf, P Giliker, "The relationship between property law and tort law" in A Hudson (ed), New Perspectives in Property Law: Obligations and Restitution (Taylor and Francis, 2013), ch 3, 72, who asks "to what extent should 'property torts' alter their essential character to meet modern social and political needs? Whilst their historical origins may be confined to the protection of proprietary interests, this does not necessarily indicate that courts in the 21st century should continue to adopt such an approach. Courts today are required to intervene to protect a wide range of interests from a variety of litigants and it may be questioned whether, in such circumstances, the courts may choose to ignore the wider social consequences following the commission of torts such as nuisance and trespass." Indeed it may be questioned. But, that is not a function solely of property law. That is an aspect of the wider legal response to the enjoyment of land. The point here is that, whatever position courts, or the law, take is a function of the law generally.

1424 Letang v Cooper [1965] 1 QB 232 (Diplock LJ).

1425 See Barker v R (1983) 153 CLR 338, 356-357 (Brennan and Deane JJ).

1426 See further below. The concept of a licence stands on a similar footing.


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While AL Smith LJ's 'good working rule' is of some heritage today and may be seen as only

applying in exceptional cases, the discretionary jurisdiction of the court highlights that the

priority and exclusivity of ownership in possession is not a guarantee to its protection in a form

of no future interference if discretionary factors weigh against the awarding of an injunction.

What is being realised here is that an objective or argument of enjoyment of land is multi-

faceted and that it is not a necessary and complementary objective of the law to protect an

enjoyment of land only by concepts of ownership and possession according to added notions of

absolute exclusion or no interference. Again, to assert that the right of exclusion is ownership,

rather than a consequence, forces us to ask too many questions about who can and cannot really

be excluded, and even if someone can be excluded, whether that always means they will be

ordered (by injunction) not to interfere in the future. Indeed, in Jaggard v Sawyer1427 the

English Court of Appeal awarded damages for trespass in lieu of an injunction, the result being

that the defendant in effect had a right of way over the plaintiff's land in return for the payment

of a monetary amount to the plaintiff.1428

It leaves us with recognising that possession is not a conceptual island on which other elements

hinge or revolve around in recognising and protecting the enjoyment of land. Rather, the key

consideration in this area is the objective or argument itself: the lawfulness of land's enjoyment.

Variously, and throughout legal history, forms of action, and later causes of action, have existed

within particular frames of reference (including a feudal lord-tenant relationship) such that the

possession which we recognise as conceptually existing today has only ever been a means of

recognising, and to securing, the lawful enjoyment of land. As alluded to, the manner in which

land is enjoyed as an objective of the law may, because of changing values, also change over

time. And as also explained, the level of the law's response to a land objective at which this

change may occur depends on the method of the law and the extent to which the law is trying to

compel or encourage change.

The discretionary awarding of remedies for trespass and nuisance: a method for reconceptualisation of possession

Regardless, remedies which are used to protect or vindicate a right arising out of possession (for

example, the right of exclusion and non-interference) can assert themselves as especially

significant in how possession can be perceived and, possibly, conceptualised. However, as seen,

whether possession (in its orthodox sense) is reshaped turns on whether its characteristics are

changed. It will depend, then, whether the exercise of a discretion can have the effect of altering

the representations of those characteristics (especially of exclusivity). It would likely only do so

if, for example, courts were not to follow the good working rule of AL Smith LJ in Shelfer v City

1427 [1995] 1 WLR 269.

1428 Cf Property Law Act 1974 (Q), s 180 (Statutory right of user).


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of London Electric Lighting Co and decide that there were particular circumstances where

damages ought always be awarded in lieu of an injunction for a continuing trespass or nuisance.

That is, by the discretionary awarding of remedies the court may decide that the lawfulness of

ownership has a positive community view, meaning that it becomes the exclusivity of, in effect,

giving over to other members of the community a freedom to interfere with an owner's

enjoyment of his or her land in particular circumstances (for example, where loud noise is

considered a reasonable impost on all owners in a modern urban environment). Such

circumstances may reveal themselves, initially, as high stakes contexts (thus calling out for

adjudicative settling), but, in time, assume a low stakes status as ownership assumes a more

positive community view: by that view, ownership involves a characteristic of positive

community obligation to, in effect, accept, in the interests of society, more interference.1429 This

is somewhat different from the essentially negative community view of priority to and

exclusivity of land in its orthodox 'ownership in possession' sense. While, as said, enjoyment as

a concept in law does not secure for its holder any particular pleasure from land, the priority,

exclusivity, and thinghood characteristics of ownership in possession change (from their

orthodox understandings) if, in effect, the owner not only, no longer has a freedom to decide not

to give over to someone else an advantage of the land, but must give it over as a characteristic, in

itself, of ownership in possession. Although such an obligation does not mean there is no longer

ownership (or that a person who now enjoys an advantage also is an owner), it can, at least,

imply that ownership in possession has been reshaped because it has been conceptually

extended through an adjudicative process of considering its potential applications to others in

society (for example, by excluding them from land).

The law of trespass itself (as discussed in chap 6) has been described as having an appearance as

an uncomplicated "backwater of property law": relief in the form of an injunction generally is an

entitlement of a property owner where the trespass is continuing or threatened as trespass

"strikes at the very core of a property owner's right to exclude".1430 Nevertheless, it has been

said this "basic understanding of trespass" apparently wants to be brushed off in the light of a

"recurring conflict between the right to exclude, on the one hand, and the strong societal

interests in obtaining access to private property, on the other" (see the discussion in chap 5, para

1429 See the discussion of human flourishing and property law in chap 5, para 5.4; A Linklater, Owning the Earth (Bloomsbury, 2013), 397 ("The iron law of private property turns out to be a paradox. Although it promotes individuality, it only works by giving equal weight to the public interest. That was the premise that Adam Smith specified for the working of the invisible hand, and James Madison for the operation of democracy. And most fundamentally, it is what involves everyone in a society that will reward a few more than the majority. The guardian of the public interest might be the press, the law, or the government, but ultimately it grows from humanity's simultaneous desire for individual fulfilment and for social justice.").

1430 B Depoorter, "Fair Trespass" (2011) 111 Columbia LR 1090, 1090-1091.


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5.4 as to modern property theory and the lawfulness of enjoyment of land).1431 Those societal

interests, perhaps reflected in a human flourishing theory of property, may "include preserving

the interests of individuals, such as preventing private harm to oneself or one's property, or

preserving interests shared by society at large, such as public safety and health

considerations".1432

It has been the experience of trespass law that justifications for entry without the authorisation

of the owner or statute have been exceptional1433 and that discrete justifications for entering

without authority of the owner or statute1434 perhaps reveal an absence of any "explicit doctrinal

foundation or coherent framework" and make "it difficult to assess ex ante what will be

considered trespass, what will incur liability, and what the concomitant damages might be".1435

The discretion of a court to award a remedy such as occurs under a Lord Cairns' Act, may go

(some way) to addressing such a concern and complements developments in authorities such as

Dutton and Meier as it searches for different justifications for the outcome of an adjudicative

dispute, rather than relying on conceptual formalism (for example, a person in possession (only)

is entitled to an injunction for a continuing trespass). In Dutton and Meier the remedy

functions as a type of secondary right: that is, the right to an effective remedy. Dutton and

Meier are different to the issue of which type of remedy ought to be awarded because in each, as

seen, the issue was whether there was a primary right for which there could possibly be a

remedy in the form of a possession order. Nevertheless, the availability of the possession order

was said by Lady Hale to "match the right". Conversely, even where there is a recognised

consequential primary right such as a right of exclude arising from possession,1436 a type of

discretionary remedialism, as reflected in a Lord Cairns' Act, allows the court to provide the

plaintiff with a remedy in its discretion ("if appropriate"), rather than a particular remedy as a

rule, and so, therefore, may allow the court to enter another adjudicative relativity exercise

weighing the respective interests of a plaintiff and a defendant as a form of justification for an

outcome (namely, the remedy awarded). In the context of competing claims to the enjoyment of

1431 B Depoorter, "Fair Trespass" (2011) 111 Columbia LR 1090, 1091. To demonstrate his point, Depoorter says that the legal system, at least in the United States, must balance the boundaries of privacy, private property rights, and the public's right to gather information relevant to the public interest where private protection against intrusion may affect the public's interest in discovering dishonest or potentially harmful activities. He says that, for instance, unless undercover journalists are excused from trespass liability when entering private property, information that is important to public welfare is unlikely to be unveiled.

1432 B Depoorter, "Fair Trespass" (2011) 111 Columbia LR 1090, 1092; cf Gartner v Kidman (1962) 108 CLR 12, 47 (Windeyer J).

1433 B Depoorter, "Fair Trespass" (2011) 111 Columbia LR 1090, 1092.

1434 See fn 1165.

1435 B Depoorter, "Fair Trespass" (2011) 111 Columbia LR 1090, 1092-1093.

1436 Coco v The Queen (1994) 179 CLR 427, 435; New South Wales v Ibbett (2006) 229 CLR 638, 646.


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land, the awarding or not awarding of a particular remedy (as opposed to merely recognising a

right to a remedy) may, conceivably, be able to be used to compel a possessor to, in effect,

disgorge the plaintiff's surplus need for the use or exploitation of his or her land (for example, by

compensating the plaintiff in damages for a trespass where the defendant trespasser's interest in

entering or using the plaintiff's land is considered more important than the defendant's

continuing exclusion of the defendant, as would occur if an injunction were awarded).

Discretionary remedialism is the view that courts have the discretion to award plaintiffs an "appropriate remedy" in an individual case and are not necessarily limited to specific kinds of remedies within any category.1437 To be sure, it comes in different forms and flavors, but the idea of discretion is central to its conception.1438 Critics of discretionary remedialism argue that it becomes problematic to speak of rights (in the remedial sense) if discretion of any kind persists as an element of the remedial discourse. They, in turn, prefer a strict rule-based approach to the discretionary one.1439

We have already identified that rights of action and remedies are elements within the law's

response to an objective of protecting and securing the enjoyment of land. A right of action may

arise because, for example, a possessor has a right to exclude or a right of non-interference and

one (or both) of those rights has been infringed. However, authorities such as Dutton and Meier

have apparently recognised a new form of possessory claimant to (traditional) possessory

remedies. And Australian authorities dealing with interests in Crown or State lands legislation

have also seemingly created gradated (and, therefore, anomalous) forms of possessory interests.

But, the adjudicative process itself may be limited in its ability to protect possession (or the

enjoyment of land) in the face of how ownership of land is governed in a modern society and, as

such, ironically highlights possession's reliance (even in an orthodox sense) on adjudicative

justification and possession's susceptibility to reshaping by non-adjudicative governance frames

of reference that also weigh the relative interests and values of owners and other members of

society.

In Lawrence v Fen Tigers Ltd1440 (Lawrence), planning permission had been given in 1975 for

the construction of a stadium to be used for speedway racing and associated facilities on the

then owner's agricultural land, some three miles west of Mildenhall Suffolk. The stadium was

constructed soon after and was used for its permitted use by Fen Tigers Ltd, a licensee of the

1437 S Evans, "Defending Discretionary Remedialism" (2001) 23 Sydney L Rev 463, 463.

1438 See P Finn, "Equitable Doctrine and Discretion in Remedies" in W Cornish et al (eds), Restitution: Past, Present and Future (Hart Publishing, 1998), 251; D Jensen, "The Rights and Wrongs of Discretionary Remedialism" (2002) Sing J Legal Stud 178; P Loughlan, "No Right to the Remedy?: An Analysis of Judicial Discretion in the Imposition of Equitable Remedies" (1989) 17 Melb UL Rev 132; D Wright, "Wrong and Remedy: A Sticky Relationship" (2001) Sing J Legal Stud 300.

1439 S Balganesh, "Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions" (2008) 31 Harv LJ & Pub Pol'y 593, 649. Birks is perhaps the most outspoken critic of discretionary remedialism. See P Birks, "Three Kinds of Objection to Discretionary Remedialism" (2000) 29 W Aust L Rev 1.

1440 [2014] AC 822.


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stadium. Stock car and banger racing was also conducted at the stadium. Motorbike racing and

practice also took place on a track at the rear of the stadium.

In 2006, the appellants bought and moved into a bungalow which was about 560 metres from

the stadium and about 860 metres from the track. Following complaints by the appellants

about the noise from the track, attenuation works were carried out to the stadium and the track.

The appellants, however, pursued claims in private nuisance against the owner and operator of

the stadium, and the lessee of the track.

Lord Neuberger and Lord Carnwath each delivered separate lengthy judgments, both agreeing

that the appellants had established nuisance. Each of Lords Sumption, Mance, and Clarke

generally agreed with Lord Neuberger, but added some additional reasons or qualifications.

Lawrence concerned nuisance by interference with enjoyment, as distinct from nuisance by

encroachment or damage.1441 The differing approaches of Lords Neuberger and Carnwath are

significant for present purposes.

In Lord Neuberger's opinion:1442

… [T]he mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is normally of no assistance to the defendant in a claim brought by a neighbour who contends that the activity cause a nuisance to her land in the form of noise or other loss of amenity.

A planning authority has to consider the effect of a proposed development on occupiers of neighbouring land, but that is merely one of the factors which has to be taken into account. The planning authority can be expected to balance various competing interests, which will often be multifarious in nature, as best it can in the overall public interest, bearing in mind relevant planning guidelines. Some of those factors, such as many political and economic considerations which properly may play a part in the thinking of the members of a planning authority, would play no part in the assessment of whether a particular activity constitutes a nuisance – unless the law of nuisance is to be changed fairly radically. Quite apart from this, when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.

However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case. Thus, the fact that the planning authority takes the view that noisy activity is acceptable after 8.30 am, or if it is limited to a certain decibel level, in a particular locality, may be of real value, at least as a starting point as Lord Carnwath says in para [218] below, in a case where the claimant is contending that the activity gives rise to a nuisance if it starts before 9.30 am, or is at or below the permitted decibel level. While the decision whether the activity causes a nuisance to the claimant is not for the planning authority but for the court, the existence and terms of the permission are not irrelevant as a matter of law, but in many cases they will be of little, or even no, evidential value, and in other cases rather more.

According to Lord Carnwath:1443

1441 Lawrence, [1] (Lord Neuberger); [175] (Lord Carnwath).

1442 Lawrence, [94]-[96]. Lord Neuberger recognised (at [33]) that it would be possible, at common law, to grant an easement for noise.


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The law of private nuisance, of far greater antiquity than modern planning legislation, also fulfils the function of protecting the interests of property owners. There is, however, a fundamental difference between planning law and the law of nuisance. The former exists to protect and promote the public interest, whereas the latter protects the rights of particular individuals. Planning decisions may require individuals to bear burdens for the benefit of others, the local the local community or the public as a whole. But, as the law stands, it is generally no defence to a claim of nuisance that the activity in question is of benefit to the public.

Thus planning controls and the law of nuisance pull in opposite directions. A development executed in accordance with planning permission may nevertheless cause a substantial interference with the enjoyment of neighbouring properties. Should a property owner be able in effect to undermine the planning process by bringing a claim of nuisance against the developer and securing not only damages but also an injunction prohibiting the activity in question, regardless of its public significance?

Lord Carnwath did not directly answer the question. As conceded by his Lordship, courts may

be under-equipped to understand the precise purpose or effects of a regulation or statutory

project and its significance to the public.1444 For present purposes, this suggests two things:

1) while statutes do not confer or assume for a decision-maker, whether the State or say, a

local government, some proprietary authority over land, they do recognise that

ownership and possession do not promise more than a priority to and exclusivity of

enjoying land subject to the exercise of decisions by such decision-makers (again, this is

the notion of lawfulness). Any restraints on how a decision will be exercised depends on

the provisions and purpose of the statute itself, and, the owner's or possessor's, interests;

and

2) there is enough 'play' in the notion of personal freedom of possessing that a case by case

analysis may be undertaken to protect a private reasonable enjoyment of land having

regard to the development of society, modern usages, population expansion, changing

localities, and scope for future development, but which applies a broader public interest

test to the activity in question: as stated by Lord Neuberger "the existence and terms of

the permission are not irrelevant as a matter of law, but in many cases they will be of

little, or even no, evidential value, and in other cases rather more". In a low stakes

dispute between two neighbours, many instances will be resolved by looking at the very

private nature of the plaintiff's enjoyment still within the confines of an ordinary usages

of humankind test. But, higher stakes disputes may involve, for example, a public

interest in the activity itself,1445 or the public interest in the undertaking of such a use.

The second is potentially broader as it can relate to the expression of one's freedom in

1443 Lawrence, [193]-[194].

1444 Lawrence, [198], where his Lordship cites M Lee, "Nuisance and Regulation in the Court of Appeal" [2013] JPEL 277, 284 ("Courts are not generally in a position to assess the substantive quality of regulation …").

1445 See Denniss v Minister of Defence [2003] Env LR 741.


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undertaking a use, as opposed to an assessment of any more direct public benefit in the

activity itself. Of course, the court may deflect away, by finding liability, but essentially

allowing recovery in damages, rather than an injunction.1446

The public interest is not a defence to an action in nuisance. Nevertheless, it must be relevant to

assessing the reasonableness of user.1447 And the mere fact a statutory power, for example, to

approve a development or use of land, is exercised (or is required to be exercised) in the public

interest cannot, of itself, authorise a nuisance.1448

According to Lord Carnwath:1449

… I think there should be a strong presumption against allowing private rights to be overridden by administrative decisions without compensation. The public interest comes into play in the limited sense accepted by Lord Westbury [in St Helen’s Smelting Co v Tipping (1865) 11 HLCas 642] 650, as discussed above, that is in evaluating the pattern of uses “necessary … for the benefit of the inhabitants of the town and of the public at large”, against which the acceptability of the defendant’s activity is to be judged. Otherwise its relevance generally in my view should be in the context of remedies rather than liability.

I would accept however that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant’s activity is to be judged.

According to Lord Carnwath, a planning permission cannot be relied on by a defendant in a

nuisance action merely because the defendant's activity was authorised under the permission,

and notwithstanding that the activity may be said, on its face, to be in the public interest. The

public interest may be relevant only to the extent it may inform an assessment as to the

reasonableness (that is, lawfulness) of the defendant's activity. But, it may be relevant to

whether damages, rather than an injunction, is ordered. Also, there may be cases of strategic

changes in a planning permission or a major development which cannot be ignored in assessing

the reasonableness or otherwise of the defendant's activity. Lord Neuberger adopted a narrower

approach and was somewhat more circumspect about the relevance of "a strategic planning

decision affected by considerations of public interest" or a planning decision relating to a "major

development"1450 and thought the difference between strategic planning permissions and other

planning permissions seemed to be "a recipe for uncertainty".1451 Lord Neuberger's apparent

concern was that he wished to maintain the clear line between the role of the court – to decide

whether as a matter of law a defendant's activity is a nuisance – and that of a planning authority,

1446 Denniss v Minister of Defence [2003] Env LR 741, referred to in Lawrence, [221] (Lord Carnwath).

1447 Lawrence, [221] (Lord Carnwath), citing Clerk & Lindsell, at 20-107.

1448 Cf Lawrence v Fen Tigers Ltd [2012] 1 WLR 2117, [57] (Jackson LJ).

1449 Lawrence, [222]-[223].

1450 Wheeler v JJ Saunders Ltd [1996] Ch 19, 30 (Staughton LJ); 35 (Peter Gibson LJ).

1451 Lawrence, [92].


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which is to assess a planning application and make a decision according to the requirements of

the relevant planning law. It is not for the planning authority to decide a neighbour's common

law rights.

It seems, however, that the devil is in the remedies. Both Lord Neuberger and Lord Carnwath

suggested that liability in nuisance could be found, but, especially in circumstances where there

is a public interest in the development, the relative interests of the parties could be handled

through the remedies.

Lord Sumption thought that AL Smith LJ's 'good working rule' of the Lord Cairns' Act as to

when a court might, in the case of a continuing nuisance, order damages rather than an

injunction, was a rule conceived at a time when fewer people owned land. In his Lordship's view

(which, admittedly, was not enthusiastically supported by other members of the court), the rule

did not have a particularly modern relevance because more people now owned land: as such, a

court perhaps ought to favour awards of damages where nuisance is established lest its

preference to grant injunctions not be in the public interest, particularly as that interest often is

reflected more broadly in planning schemes and the permissions granted under them for the

undertaking of various uses within communities generally. Such schemes and permissions will

undoubtedly consider a broader range of issues that are beyond the capacity of the courts and

the relevance to the established principles of liability in nuisance. That is, the modern

phenomenon of ownership of land – one marked by its prevalence within society and spatially

closer living conditions of society's increasing inhabitants – may force a re-evaluation of how an

owner's freedom to enjoy ownership can practically be realised. While ownership itself is not

disturbed, nor potentially is a defendant owner's liability in nuisance for causing a substantial

and unreasonable interference with his or her neighbour's enjoyment of his or her land, the

court's discretion to refuse to prohibit the continuation of the nuisance and, instead, to order the

defendant simply to pay damages, tends to affirm a conceptualisation of ownership in

possession:

1) as the mere priority to and exclusivity of land without that authority being of any lesser

or greater legal content or value on account of the owner being disturbed or not in

nuisance; or

2) potentially, as being characterised as including a positive obligation to give away a

surplus need of not being interfered with by others who are pursuing life-fulfilling

activities.

An owner's right to bring an action in nuisance (or in trespass) is a consequence of ownership

(or more specifically, his or her coercive right of exclusion and non-interference that protects his

or her freedom to enjoy ownership in possession) and is an element in the law's choosing

priority and exclusivity as characteristics of ownership and possession for the reason that such


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characteristics lack substance if they are not, at least in theory, capable of being protected by

action. However, the remedy itself is a matter of discretion and, as such, acknowledges that

there can be circumstances where the owner will still have ownership (and may be in

possession) but not have the benefit of a remedy preventing (as opposed to compensating for)

the defendant's continuing interference. That such circumstances may (but not exclusively)

arise because of a public interest consideration (as imagined by Lord Sumption) explains that

legal ownership only ever occurs as an ownership of society: it is, in the end, a weighing of the

relative interests and values of members of society. Such weighing represents an instance of

how courts, in administering the common law, try to accommodate proprietary interests and

social interests. One effect of that accommodation may be to reshape possession by

conceptually linking it to a concept of the lawful enjoyment of land that includes, as Alexander

opines, a positive community view. This may, when considered with the developments

discussed in paras 7.2 to 7.4, represent another form of horizontal extension of the possession

concept.

Distinguishing the features of possession in its different senses

It is possible, then, and as explained in the following table, to distinguish the features of

possession in its orthodox conceptual sense and possession in an extended conceptual sense

(the second category representing various non-orthodox applications of possession, as

discussed, and tending towards falling within a second level of legal abstraction as previously

explained).

Possession in its orthodox conceptual sense

Possession in an extended conceptual sense

Intermediate elemental legal concept in legal response to enjoyment of land

Generally (but not necessarily), an intermediate elemental legal concept in legal

response to enjoyment of land

Unqualified enjoyment of land is aim or argument of the law

Qualified enjoyment of land is aim or argument of the law

Is relational property (that is, it recognises a relationship between a possessor and the land)

Is relational property, but highly-dependent on relativity of interests and values of

disputants

Law-stating function Adjudicative-stating function and is adaptive to legal response influenced by other factors (eg access to justice, availability of remedy)

(Dutton, Meier)

Allows significant reshaping of characteristics that possession represents

Has factual or non-legal counterpart and falls Especially abstract legal concept which


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Possession in its orthodox conceptual sense

Possession in an extended conceptual sense

within a first level of legal abstraction; therefore, while reshaping as a form of

propertisation may occur, conceptual linkage to land (that is, being of land and its lawful

enjoyment) and characteristics are maintained

functions according to inner-systemic workings of legal system and falls within a

second level of legal abstraction (as explained in this research) meaning it is more prone to reshaping relative to other legal concepts (or

values) (eg justifications, lawfulness) and, therefore, does not need to maintain a

conceptual linkage to land and its lawful enjoyment in the same way as possession in its

orthodox sense; it emerges as a pure legal concept that is a unique form of propertisation

Highly inter-dependent on other elements in legal response as entry rules and consequences

(JA Pye)

Not highly inter-dependent on other elements in legal response (but purpose of recognition may be to engage other element (eg remedy))

and occasionally assumes a 'stand-alone' function (for example, so that a possessory

remedy may be invoked); however, adopts and adapts concepts such as 'right of possession' or 'possession of land', but not in orthodox sense

(Wik, Ward, Brown, Eckford)

Lump (or formal) application (JA Pye,Bocardo) is highly rigid or static (is

formalistic) as it represents characteristics of ownership of a common law estate (or

equivalent as recognised in Hall) that relates to unqualified enjoyment of land (even if

limited by a governance rule, such as a statutory purpose (Hall) or a covenant as to

use (under a lease)

Functional application highly sensitive to land use and claims to use of land relating to

distributive ideas concerning property; highly evaluative and is consistent with gradations of

ownership approach to land; potentially inconsistent with notion that property is an

aim or argument of the law (Wik, Ward, Brown, Eckford; may include Congoo (French

CJ and Keane J)

Maintains its conceptual law-stating function while being subject to governance or

regulatory rules relating to enjoyment of land (eg planning laws)

Adopts an adjudicative-stating function that is reshaped according to characterisations of

property (eg, 'private', 'public', or 'quasi-public' (or 'multi-use') characterisations of property)

or is reshaped according to justification of competing claim (Dutton, Meier)

Legal protections of rights of action and remedies are highly-dependent and are

inferential legal consequences (Bocardo)

Legal protections of rights of action and remedies may be less dependent; occasionally uses a looping-back idea as an entry rule for

existence of possession, as qualified enjoyment of land is the aim or argument (Dutton, Meier)

However, while the table distinguishes features of possession in its orthodox and extended

senses, there is evidence of cohering links between the two in a chain of reasoning. As noted,

Hall represents a conceptual distinction of possession in its orthodox sense, but it does not

extend so far as to be an extension, at least to the extent it would fall within the second column.

The reasoning of French CJ and Keane J in Congoo, while bearing some similarities to Hall,


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only sits in the second column of the table because it does not fully explain how the particular

possession there did not assume, in effect, a title-status. Nevertheless, as explained, their

Honours' reasoning may also sit in the first column because it is consistent with possession's

being a relative abstract concept of 'land-thinghood' (which, in itself, is abstract). Cases such as

Wik, Ward, and Brown do not, however, logically explain what it is that is possessed (as, unlike

Congoo, they do not support thinghood's conceptual linkage to exclusivity of the land). If that is

to be an especially abstract concept of 'purpose' (or land for a purpose), then, it should be

explained how that represents thinghood. This is because, as identified, while possession's (and

ownership's) representative characteristics may conceivably change, the stability (and

usefulness) in law of a concept are those characteristics. If possession no longer represents, for

example, exclusivity of thinghood, then it is somewhat difficult to say it is possession any longer.

As suggested, a purpose may attract to itself exclusivity and thus assume (abstractly) a

thinghood quality: this may be enough. But, we can only see if that is the case when we see how

possession is acquired (through entry rules) and its consequences (for example, what rights of

action and remedies are available to a possessor for interference). It is not enough to simply

recognise that a possessory remedy is available because there is some sort of ad hoc right to

enjoy land that is relatively better than the right or interest of the person who seeks to interfere

with it. That only indirectly allows us to conceptualise whether the right is possession; and, in

that regard, we may struggle because, when we conceptualise possession, we usually link it (as

cases like Bocardo do) to an idea of proprietariness (something which may not be there for all

rights, no matter how relatively better they are than some others).

Accordingly, cohering links between possession's applications as considered in this research

may exist to some extent. But, given how possession appears to behave in its orthodox and

extended senses – as explained in the table above – possession as a concept lacks legal

organisation in that it does not cohere as a unitary concept, even if it can, nevertheless, be said

to apply differently depending on the context. The result will likely continue to be that courts,

when called on to apply possession (and particularly in high stakes contexts), will start the

adjudicative process by declaring that possession remains a term for which the "law has never

worked out a completely logical and exhaustive definition" and, from there, apply possession in

a way that aligns best with an outcome sought despite its application needing to show that it

remains representative of particular characteristics.

7.6 Conclusions

The High Court apparently has made a distinction between a right of exclusive possession and a

right of non-exclusive possession (or right of possession) in respect of land on the following

bases:


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1) the right of exclusive possession, being of ownership (of a fee simple estate or lease as

understood under the general law) refers to possession in its orthodox sense: therefore,

it represents a priority to and exclusivity of the land and a possessor is entitled to make

decisions about the land;1452 and

2) the right of (non-exclusive) possession which is not of ownership and is a right of

possession of (or for) a purpose: therefore, its decision-making relates to the purpose

itself that is carried out on the land such that there can, in an especially abstract sense,

be possession of the purpose (or possession of the land for the purpose).1453

The court has attached a significance to the term exclusive as being linked to exclusion: that is, a

right of exclusive possession is a right to exclude any and every one for any or no reason.

Exclusivity is, as explained in this research, linked to ownership and the old action of ejectment.

A (mere) right of possession (or right of non-exclusive possession) is not of this character;

however, apparently, it will allow the holder of the right to exclude others if others should

interfere with the purpose for which possession was granted (or their entry onto the land would

interfere with the use of the land for that purpose). It is, thus, exclusory. Accordingly, where a

lessee has been granted a lease for a specific purpose (which will almost always be the case), this

may translate to: it is the purpose that needs protection and which is protected by possessory

remedies. However, it may not always be clear what extra is needed so that the lessee is given a

right of exclusive possession (so-called) which carries with it the right of arbitrary exclusion

because this right is of the land. An important feature will again be the purpose for which the

lease was granted. If the purpose is of a limited type (for example, a pastoral purpose), then, a

conclusion might be drawn that the lessee does not need to exclude all others from the land.

The conclusion (apparently), then, is that the lessee may only have a right of possession (or a

right of non-exclusive possession).

A potential problem with this approach is that it leaves open statutory leases (at least) to

interpretations that must consider, because of their statutory natures, possible claims in respect

of the land by other parties. In an adjudicative setting, other possible claims to the land may be

determined to outweigh a lessee's interest in excluding others from the lease land. By drawing a

distinction between a right of exclusive possession and a right of possession, the lessee – whose

interest may be held to be relatively inferior than the claimant's – is not, however, merely

subject to a duty to allow the claimant to enter or use the land. Instead, because the lessee has

only a right of exclusive possession when that is of ownership or of a lease as known to the

1452 Even if he or she is restrained by, for example, a purpose of the lease or a planning law regulating the type of development that may be carried on on the land. The possessor also has a right to exclude any and everyone from the land for any or no reason (unless that person's entry is justified at law).

1453 The possessor has a right to exclude anyone who interferes with the possessor's use of the land for the purpose (or the purpose itself).


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general law, merely having the right of non-exclusive possession means (as was the effective

result of Wik) that the claimant to the other interest enjoys, with the lessee, a co-existent

primary interest in the land. The lessee's title may, then, be of what may called a gradated type

of ownership: that is, the distinction with a limited right of use and occupation (such as a

licence) appears to have the outcome that the lessee has a priority to and exclusivity of

something. This is because some significance is being attached to the term possession. The

lessee's priority and exclusivity does not admit others to enjoy that which the lessee enjoys.1454

Importantly, possession's abstractive quality now assumes a new or extended character.

However, as explained, possession (as a legal concept) being, like ownership, of the highest form

of legal concepts (see chap 4, para 4.2), generally relies for its content on its link with a

contingent concept. That, in its orthodox sense, is thinghood in the sense of being the lawful

enjoyment of the land (as represented by an estate). In its extended character where it is subject

to a right of non-exclusive possession – thus meaning that there must be a thing that can be the

object of non-exclusive possession1455 – that thing appears to be capable of being a purpose for

which land may be used. Alternatively, a possessor may apparently enjoy advantages of

possession (especially being able to take advantage of a possessory action) to protect his or her

enjoyment of a right (cast as possession in an anomalous sense) to use land for a specific

purpose. The right is a priority to and exclusivity in respect of the land, not of the land itself.

However, such a characterisation would lack a contingent thinghood quality of possession and is

hardly distinguishable from say, an exclusive contractual licence. Nevertheless, as seen in

authorities such as Dutton and Meier, that may not matter. And, such a development is not

necessarily inconsistent with perspectives of enjoyment of land to the extent they may, for

example, encourage multiple uses of land in the interests of efficiency, or to recognise what are

regarded as legitimate claims of others to the land. While the cited example of peculiar statutory

leases obviously includes the policy of the particular Act under which the leases were granted

and are governed, authorities such as Wik occur because courts perceive there are limitations in

the general law as an effective "means of governance"1456 when disputes arise between parties

that concern relative interests and values in respect of land. A means of resolving such disputes

– which arise in an adjudicative setting and concern a particular parcel of land – may, having

decided the relative importance of each disputant's interest, be to reshape, including modify, an

already abstract legal concept such as possession. Such a reshaping is, however, part of broader

legal method that is not limited to statutory interests. There seems to be little reason why courts

1454 In a native title context, that is not difficult to justify as, respectively, the lessee and the native title holder cannot enjoy what each other has (the sources of their respective rights being found in entirely different legal systems).

1455 Which is how Dalton J recognised the pastoral lease in Eckford could be 'adversely possessed' even though the subject lease did not confer a right of exclusive possession.

1456 J Getzler, A History of Water Rights At Common Law (Oxford, 2004), 6; Lawrence.


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will not eventually use other high stakes contexts, if considered appropriate, to reshape

possession in the interests of balancing the relative interests and values of disputants, especially

as the general law is not unfamiliar with the idea of anomalous real property interests.1457

A purpose of this research has been to demonstrate that the adjudicative role of courts can cause

an abstract concept of possession to be reshaped (including modified). Courts appear to have at

their disposal several methods to force such a reshaping, even if only incrementally. Although,

as Lawrence recognises, there are limits, and courts are not always equipped in adjudicative

settings of 'causes of actions' to take account of all relevant considerations in a weighing of

relative interests. Undoubtedly, some developments have left gaps in reasoning and it is not

clear that there is yet a clear chain of reasoning in the further development of the possession

concept, particularly as developments invariably take place in limited contexts, only when there

is a dispute and, then, are resolved by reference to subject-specific justifications.

1457 Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408, [46]; Commissioner of Main Roads v North Shore Gas Co (1967) 120 CLR 118, 131-134 (Windeyer J).

Chapter 8: Conclusion Chris Boge

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8. Chapter 8: Conclusion

8.1 Findings of research

Possession is a functional abstract concept operating in the law. Within that operation

possession's legal status, in a technical or orthodox sense, has been to recognise and secure the

enjoyment of land as that is understood within a conceptual ownership frame of reference. This

is the role it plays in law. Accordingly, ownership as a concept assumes significance in an

understanding of possession. The content or characteristics of ownership, and necessarily,

possession, as concepts, are contingent on their linkage to the concept of land and its

enjoyment.

Despite its being able to be found in the factual enjoyment of land, possession must be

understood only as a legal abstract concept. It cannot, and need not, be defined in the sense that

there must be a precise meaning for it. This is because of its purpose, being to secure social

order in the public interest, and also its development which has occurred as a result of legal and

social history. Arising out of the social and economic reality that people occupied or were in (of)

fixed areas of land and, eventually, came to be unburdened of tenurial services and incidents

(thus meaning seisin largely became irrelevant), possession as a legal concept developed as

being of an ownership idea (even if not always directly expressed as such), the characteristics of

which it represented being a priority and exclusivity of the land. The priority and exclusivity of

land of the person with a better right of possession (or earlier, seisin) was expressed as a title

and not strictly ownership (as it is not possible to own the physical thing that is land).

Nevertheless, ownership, especially where land is registered land, emerged as the organising

concept in law for representing a priority to and exclusivity of land. As such, to possess is to

possess that which represents what is understood as ownership and possession is a form of (in

the sense that it follows) ownership (a quasi-ownership) which may itself be recognised as a

title.

Recognising that possession is of ownership, at least in an orthodox sense, and understanding

the content of possession's conceptual characteristics allowed an assessment to be made as to

whether applications of the possession concept could be classified as remaining consistent with

those characteristics or whether they are ad hoc or anomalous applications which are causing a

conceptual extension (a creep) of possession.

The research considered that, if possession's consequences are not justifiable (as abstract policy

considerations), the law may, in its applications of the concept in particular contexts, reshape

possession. In particular, it is the thinghood characteristic of possession which appears to be

especially susceptible to reshaping in adjudicative settings. This is because possession's


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justification as an abstract legal concept is especially open to adjudicative reshaping, a form of

inner-systemic legal determination through a looping-type (or looping-back) effect.

Thinghood, an abstract representative characteristic of possession, is about the lawfulness of

enjoyment of the thing that is land: lawfulness can also represent a relative concept when

considering the respective interests and values of possessors and non-possessors in relation to

the enjoyment of land. Weighing those respective interests and values in the context of

applications or consequences of possession in an adjudicative setting may cause the reshaping of

possession (and ownership), where the justification of possession has altered. A reshaping may,

for example, occur through a type of looping approach or effect whereby applications of

possession are assessed according to an adjudicative justification standard (for example, access

to justice) such that a court may reason that the possession concept, or possessory remedies, can

extend horizontally to the circumstances of a disputant's 'right' of enjoyment in respect of land.

Specifically, the conceptual creep may occur when:

1) the right of possession is characterised variously as a right of exclusion as well as an

anomalous right detached from ownership (and, therefore, no longer of title to land) –

in the nature of a ius in re aliena –, each such right noticeably being concerned with the

right of its holder to relatively affect the interests or values of other persons, rather than

the holder's priority to and exclusivity of enjoyment of the thing that is land.1458 The

effect is that the right (a claim) becomes a wholly new or especially abstract legal

concept and is not of ownership because the content of ownership and possession (as

legal concepts) must conceptually remain directly connected with the thing that is land

(that is, in the sense of being a ius in re propria); and

2) the lawfulness of enjoyment of land – the heart of being in possession – adjusts itself to

recognise the significance of interests or values of non-possessors in respect of the land

such that the thinghood of the possession has altered variously to:

a. be possession of a purpose; or

b. incorporate a positive community value whereby ownership in possession

characteristically includes a positive obligation to disgorge a surplus need of

enjoyment for the benefit of interests considered more important than the

possessor's.

This 'creep' may, however, simply be indicative of the law's further (although somewhat

uncertain) development of the possession concept. Real property law is a law of abstraction.

Estates in land and titles to estates are legal abstractions. To possess land is, in effect, to

abstractly have a relationship with an abstraction! The conceptual nature, meaning, and

1458 Although sometimes debated, the better view is that there cannot be incorporeal possession, that is, possession of a right (J Salmond, Jurisprudence (7th ed, 1924), §95).


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contemplation of possession becomes more difficult to discern, however, when its links to other

abstractions are not clear. In considering the characteristics of persons' relationships with land

and the consequences for interfering with those relationships, courts may create new abstract

concepts that may be the subject of a possession or right of possession. While there perhaps is

nothing particularly surprising about that – as the law is a continuing and developing history of

abstraction – doing so must be part of a discernible chain of reasoning.

8.2 Possession's continued operation as a functional legal concept

Real property law allocates and distributes land, and rights in land, among claimants to a

particular dispute, and generally through a compensation principle across society as a whole.1459

A means for the law's allocating and distributing the priority to and exclusivity of land is a

concept of ownership in possession, a concept which today is secured by State-guaranteed title

(under Torrens title or like registration systems). The concept, or more particularly the idea of

enjoyment of ownership – possession – has, however, been shaped and reshaped, over time, by

various adjudicative reasoning. Thus, the effects of the law's allocation and distribution of the

thing that is land through a concept of possession has been reactive to the relative interests of

claimants. While often seen through the prism of discrete disputes concerning specific interests

of disputants, given the significance of ownership and possession as concepts in law and society,

any reshaping of their conceptual characteristics may have important consequences for how we

perceive, use, and exploit land in the future. And as modern societies face their own challenges

(for example, significant population growth, the scarcity of land, and perhaps accommodating

more robust ideas of human rights), concepts such as ownership and possession are likely to

come under closer examination as to how they functionally affect the relative interests and

values of members of society, and the broader public interest, and as such, whether they ought

to be further reshaped, including by government intervention. According to Samuels:

There is, first of all, an existential necessity of choice over relative rights, relative capacity to visit injury or costs, and mutual coercive power (or claims to income). The economy, in which the legal process is so obviously involved, is a system of relative rights, of exposure to costs shifted by others, and of the coercive impact of others. In choosing between conflicting rights' claimants, furthermore, the choice is between one interest or another. The choice is over capacities to participate in the economic decision-making process … These choices are a function of rights which are a function of law; so that, inter alia, income distribution – through relative claims to income – is a partial function of law. It is ineluctable, then, that government is involved in the fundamental character, structure, and results of the private sector. Policy issues thus become which or whose rights government operate to effectively secure, which rights will government no longer operate to effectively secure and which new rights, that is, the use of government to change the effective pattern of rights or realization of interests.1460

1459 N Mercuro and S Medema, Economics and the Law: From Posner to Post-Modernism (Princeton University Press, 1999), ch 4, 128.

1460 W Samuels, "Interrelations between Legal and Economic Processes" (1971) 14 Journal of Law and Economics, 435, 442.


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As a legal concept, possession does not pretend to be a perfect expression of anything. It merely

represents its stated characteristics that the law and, indeed, society consider important in the

interests of the public. It, or rather ownership in possession, allows us to order claims to land in

the interests of social order and so become, in effect, a legal convention. In turn, ownership in

possession makes us believe that an idea of having and enjoying land has an essential stability

and certainty about it such that we may then order our social and economic affairs accordingly.

In particular, its mere existence as a concept, with its formal entry rules and consequences,

attracts its own sympathy. We tend not to be overly concerned about the history of ownership

or possession; rather, many of us would go no further than say, recognising that ownership of a

fee simple estate is the greatest estate anyone may own and interference with its enjoyment

(possession) needs to be clear and justified. Ownership and possession can thus function as

entrenched legal concepts which respond to an objective or argument of recognising and

protecting the enjoyment of the thing that is land in broader societal and economic contexts.

And those contexts can include a sympathy context. They do this by representing the

characteristics of priority and exclusivity. Priority and exclusivity should only be thought of in

the context of recognising and protecting an enjoyment of land. That is, we cannot say

ownership is the priority and exclusivity of having land without acknowledging that the priority

and exclusivity is intended to allow an owner to personally enjoy ownership within a legal

system that, through governance rules, regulates rights, duties, and freedoms of owners and

non-owners. The limitations of what is legally possible is a contemplation of ownership's

priority and exclusivity or, to put it another way, ownership merely represents the priority to

and exclusivity of the freedoms of an owner in possession as the law determines from time to

time in respect of land. Put simply, priority and exclusivity do not guarantee anything other

than priority and exclusivity to or of the lawful enjoyment of the land.

While there has been significant development in the concept of possession in the context of

particular statutory leases in Australia because of native title, such development has revealed

the especially limited concept of ownership-type interests in possession: as abstract concepts,

they are highly contingent on other abstract concepts in law and, thus, are susceptible to

reshaping in adjudicative settings according to judicial notions of justification and lawfulness.

That does not mean that, as concepts, ownership and possession generally are fragile. On the

contrary, their conceptual linkages (especially to 'land-thinghood' which has developed over

centuries) ensure their overall or broader stability and, as seen to date, it is likely their

modification occurs, and will continue to occur, in high stakes settings where there is some

particular significance attached to the relative interest or value of a party who claims a use of the

land against an owner in possession. This in turn may create a justification – another

conceptual linkage – for reshaping the characteristics of possession (especially thinghood) in

those settings. (In low stakes settings (for example, where land has an obvious private quality


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such as one's home), ownership in possession will more than likely continue to function in a

fairly orthodox way. But, even there, that cannot be assured.) Indeed, reshaping has, in effect,

been the experience of the law for some time and especially so since, in real property law, a

substantive law began to emerge following the abolition of the real actions. Tort law, and in

particular the actions of trespass and nuisance, have had a significant effect on what it means to

enjoy land as a possessor and courts may, as has been recognised by the United Kingdom

Supreme Court, find it increasingly difficult to satisfactorily balance the interests of respective

owners and others in communities. Such balancing may, to a significant degree, increasingly

become the responsibility of planning laws and administrative decision-makers as courts

discover that their powers and discretions cannot provide complete justice to disputants. In

turn, the notion explored in the seemingly narrow confine of statutory leases under Crown and

State lands legislation in Australia – that of possession (or enjoyment) of a purpose – may assert

itself as the new form of abstract thing that is possessed in much broader contexts.

Characterising one's ownership in possession as the priority to and exclusivity of the lawful

purpose of the land (as thinghood or lawful enjoyment) may, in a sense, already be what a

possessor can only really have. Consequently, it is not difficult to envisage that a purpose as the

real object of a possessor's priority and exclusivity may, in some instances, leave room as a

surplus need of a possessor (that is, as representing a type of residual capacity in the land or

another purpose that is surplus to the possessor's relative interest) for co-existent uses or

enjoyment of the same land for other efficient or 'life-fulfilling' purposes. In each case, there

may be an owner in possession of his or her respective purpose: these may, in substance, be

forms of gradated ownership (in possession). And they may have exclusory (rather than

exclusionary) effects as the possessor may have a right (only) to exclude someone who interferes

with that purpose.

Possession of land may be one of those concepts that is increasingly drawn into a process of

adjudicative reshaping so that, in its applications, it can produce more desirable consequences

when proprietary and modern social interests need balancing (especially in high stakes

settings). Reshaping seems possible particularly if the concept becomes more abstract, and even

if the result is to, in effect, create different forms of possession, namely, an orthodox form and

an extended form. For now, it seems apparent that the High Court, and the courts in England,

have laid the groundwork for possession's (and ownership's) reshaping by a process of

conceptual creep so that it can be adapted to particular situations. Fundamentally, it is a

twofold belief: one, that the law can create its own arguments and objectives in addressing how

people can enjoy land and, two, as a consequence of one, that the law can find its own means to

address those arguments and objectives, including by reshaping its existing concepts. There are,

within this groundwork – which might be characterised as a developing or ongoing form of

inner-systemic 'propertisation' in law –, some cohering links, especially when conceptual


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distinctions allow possession to remain rooted in a level of abstraction that is contingently

linked to an idea of possession's being of land and its enjoyment. But, presently, possession's

reshaping such that it is reshaped or extends beyond that form of abstraction lacks logical

organisation.1461

1461 See fn 846.

Appendix A Primary case authoroties Chris Boge

Page | 330

Appendix A Primary case authorities

Aftermarket Network Australia Pty Ltd v Certain Underwriters at Lloyd's Subscribing to Policy No 6482/13(C)-13087 [2016] FCA 1402

Akici v LR Butlin Ltd [2006] 1 WLR 201

Allen v Roughley (1955) 94 CLR 98.

Allen v Flood [1898] AC 1

Ashby v White (1703) 92 ER 126.

Asher v Whitlock (1865) LR 1 QB 1.

Attorney-General v Brown (1847) 1 Legge 312

Attorney-General v Chambers (1854) 4 De GM & G 206 [43 ER 486]

Barker v R (1983) 153 CLR 338

Berrisford v Mexfield Housing Co-operative Limited [2012] 1 AC 955

Black v Garnock (2007) 230 CLR 438

Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380

Bone v Mothershaw [2003] 2 Qd R 600

Bradford Corporation v Pickles [1895] AC 587

Breskvar v Wall (1971) 126 CLR 376

Bruton v London and Quadrant Housing Trust [2000] 1 AC 406

Buckinghamshire County Council v Moran [1990] Ch 623

Chaplin v Smith [1926] 1 KB 198

Coco v The Queen (1994) 179 CLR 427

Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118

Commissioner of Stamp Duties (NSW) v Yeend (1941) 43 CLR 235

Commissioners of Customs and Excise v Sinclair Collis Limited [2001] 3 CMLR 6

Cooper v Stuart (1889) 14 App Cas 286

Countryside Residential (North Thames) Ltd v T (2001) 81 P & CR 2


Page | 331

Dorman v Rodgers (1982) 148 CLR 365

Eckford v Stanbroke Pastoral Company Pty Ltd [2012] 2 Qd R 324

Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33

Entick v Carrington (1765) 19 St Tr 1029

Esposito v Commonwealth (2015) 235 FCR 1

Federal Commissioner of Taxation v American Express Wholesale Currency Services Pty Ltd(2010) 187 FCR 398

Fejo v Northern Territory (1998) 195 CLR 96

Gartner v Kidman (1962) 108 CLR 12

Gatward v Alley (1940) 40 SR (NSW) 174

Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534

Gifford v Lord Yarborough (1828) 5 Bing 163 [130 ER 1023]

Glenn v Federal Commissioner of Taxation (1915) 20 CLR 490

Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232

Gumana v Northern Territory of Australia (2005) 141 FCR 457

Halliday v Nevill (1984) 155 CLR 1

Hargrave v Goldman (1963) 110 CLR 40

Hill v O'Brien (1938) 61 CLR 96

Hinkley v Star City Pty Ltd (2010) 15 BPR 28,983

Hollywood Silver Fox Farm Limited v Emmett [1936] 2 KB 468

Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233

Hunter v Canary Wharf Ltd [1997] 2 WLR 684

JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221

Jaggard v Sawyer [1995] 1 WLR 269


Page | 332

Johnson v Buchanan (2012) 223 A Crim R 132

JT International SA v Commonwealth (2012) 250 CLR 1

Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (2017) 254 FCR 559

Kuru v State of New South Wales (2008) 236 CLR 1

Lam Kee Ying v Lam Shes Tong [1975] AC 247 (PC)

Lawrence v Fen Tigers Ltd [2014] AC 822

Lewis v Bell (1985) 1 NSWLR 731

Living and Leisure Ltd v Commissioner of State Revenue (2017) 106 ATR 910; [2018] VSCA

237

MacIntosh v Lobel (1993) 30 NSWLR 441

Mabo v The State of Queensland [No 2] (1992) 175 CLR 1

Maloney v The Queen (2013) 252 CLR 168

Manchester Airport plc v Dutton [2000] QB 133

Mayor of London v Hall [2011] 1 WLR 504

Mehta v Royal Bank of Scotland [1999] 3 EGLR 153

Mexfield Housing Co-operative Ltd v Berrisford [2012] 1 AC 955

Minister of the State for the Army v Dalziel (1944) 68 CLR 261

Moncrieff v Jameson [2007] 1 WLR 2620

Monis v The Queen (2013) 249 CLR 92

Moors v Burke (1919) 26 CLR 265

Morris v Beardmore [1981] AC 446

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5)[2016] FCA 752

New South Wales v Ibbett (2006) 229 CLR 638

New South Wales v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1


Page | 333

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232

New Zealand Fish and Game Council v Her Majesty's Attorney-General (2009) 10 NZCPR 351

Nullagine Investments Pty Limited v The Western Australian Club Incorporated (1993) 177 CLR 635

Plenty v Dillon (1991) 171 CLR 635

Powell v McFarlane [1977] 38 P & CR 452,

Principal and Fellows of Newnham College in the University of Cambridge v Her Majesty's Revenue and Customs (2008) 1 WLR 888

Queensland v Congoo (2015) 256 CLR 239

R v Boyesen [1982] AC 768

R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603

Radaich v Smith (1959) 101 CLR 209

Roberts v Taylor (1845) 1 CB 117

Schleter t/as Cape Crawford Tourism v Brazakka Pty Ltd (2002) 12 NTLR 76

Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] 1 WLR 828

Semayne's Case (1604) 5 Co Rep 91a [77 ER 194]

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287

Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42

Simpson v Knowles [1974] VR 190

Small v Tomassetti (2002) NSW ConvR 56-011

Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373

Step v Crown Land Manager [2011] NTSC 55

Street v Mountford [1985] AC 809


Page | 334

Svendsen v State of Queensland [2002] 1 Qd R 216

Sydney City Council v The Valuer-General (1956) 1 LGRA 229

Tabe v The Queen (2005) 225 CLR 418

Thomas v Sorrell (1674) Vaughan 330

Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591

University of Essex v Djemal [1980] 1 WLR 1301

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

Wallis's Clayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94

Western Australia v Brown (2014) 253 CLR 507

Western Australia v Ward (2002) 213 CLR 1

White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd (2007) 13 BPR 24835

Wik Peoples v The State of Queensland (1996) 187 CLR 1

Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (in

liq) (2013) 251 CLR 592

Wilson v Anderson (2002) 213 CLR 401

Wuta-Ofei v Danquah [1961] 1 WLR 1238

Yanner v Eaton (1999) 201 CLR 351

Appendix B Primary legislation cited Chris Boge

Page | 335

Appendix B Primary legislation cited

Commonwealth

Coastal Waters (State Powers) Act 1980

Coastal Waters (State Title) Act 1980

National Security Act 1939

National Security (General) Regulations 1939, reg 54

Native Title Act 1993, s 225

Seas and Submerged Lands Act 1973

Queensland

Acquisition of Land Act 1967, ss 13(1), 37(1)

Acts Interpretation Act 1954, ss 32A 36; sch 1

Civil Proceedings Act 2011, s 8

Crown Lands Act 1884, ss 57, 73

Environmental Protection Act 1994

Judicature Act 1876

Land Act 1910, ss 96, 97, 203, 204

Land Act 1962, ss 125, 372, 373

Land Act 1994, ch 1, pt 4, div 2; ch 4, pt 3, div 3; ch 7, pts 2, 3; ss 13, 14, 15, 16, 17, 24(1), 154, 172, 275(f), 276(f), 322, 332, 358; schs 2, 6

Land Title Act 1994, pt 6, div 5; ss 35, 38, 47, 49C, 49D, 78(2)(b), 184, 185; sch 2

Legislative Standards Act 1992, s 4

Limitation of Actions Act 1974, ss 6(4), 13, 19, 24(1)

Mineral Resources Act 1989, ss 8, 10

Planning Act 2016

Property Law Act 1974, ss 8, 19, 20(1), 21, 30, 102(1), 180, 198A

State Development and Public Works Organisation Act 1971, s 125(7), (8)

Succession Act 1981, sch 2, pt 4, item 4

Survey and Mapping Infrastructure Act 2003, pt 7

Sustainable Planning Act 2009

Appendix B Primary legislation cited Chris Boge

Page | 336

Trusts Act 1973

New South Wales

Crown Land Management Act 2016, ss 5.17, 5.22

Real Property Act 1900

Supreme Court 1970

United Kingdom

Chancery Amendment Act 1858 (Lord Cairns' Act)

Common Law Procedure Act 1852

Crown Suits Act 1769 (Nullum Tempus Act)

Distress and Replevin Act 1908

Greater London Authority Act 1999, ss 384, 385

Judicature Act 1873

Land Registration Act 1925

Land Registration Act 2002

Limitation Act 1980

Property Law Act 1925

Real Property Limitation Act 1833

New Zealand

Land Act 1948

Appendix C Bibliography Chris Boge

Page | 337

Appendix C Bibliography

Books, book chapters and monographs

G Alexander, Property and Human Flourishing (OUP, 2018)

G Alexander and E Penalver, An Introduction to Property Theory (CUP, 2012)

J Angell, A Treatise on the Right of Property in Tide Waters (1824)

B Arneil, John Locke and America: the Defence of English Colonialism (Oxford University

Press, 1996)

A Baker, "Developers versus Protestors: Contractual Licensees and Possession Claims Post

Dutton" in W Barr (ed), Modern Studies in Property Law, Vol 8 (Hart Publishing, 2015), ch 6

C Baldus, 'Possession in Roman Law' in P du Plessis, C Ando, K Tuori (eds), The Oxford

Handbook of Roman Law and Society (OUP, 2016), ch 41

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