to view chapter 2

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CHAPTER 2

THE NATURE OF FREEHOLD AND LEASEHOLD INTERESTS IN

LAND

THE NATURE OF REAL PROPERTY

2.1 Butterworths Australian Legal Dictionary defines real property in the followingterms:

Land and interests in land. The term originated in the forms of

action available through the medieval common law courts. In a realaction, the remedy was recovery of the subject matter of the dispute

itself. In practice, the only property which came within the realactions was property in land, hence property in land became knownas real property. In actions for recovering other forms of property,the defendant could elect either to return the property in dispute orpay monetary compensation1

2.2 Upon the British settlement of the various Australian colonies in the late eighteenthand early nineteenth centuries, British statute and common law was received andapplied in those colonies.2

2.3 The British concept of real property law was itself derived from the feudal systemestablished following the Norman conquest. Under the feudal system the Crown is theultimate owner of all land and private citizens derive their real property rights by wayof the grant by the Crown of an interest in the Crowns land.3

2.4 As a result of the above inherited common law and the current statutory framework,the greatest interest that an individual can have in land in Western Australia is aninterest which is good and enforceable absolutely against every other individual orbody except the Crown. Such an interest is known as a freehold title in the land.

THE EVOLUTION OF REAL PROPERTY LAW

2.5 At this stage it is worthwhile further exploring the historical and theoreticaldevelopment of the concept of real property.

Roman Land Law

2.6 In approximately 450 B.C., fundamental Roman legal principles and practices werefirst put in writing on twelve tablets (the Twelve Tables), which were displayed

1 The Honourable Dr P E Nygh and P Butt (General Editors), Butterworths Australian Legal Dictionary,

Butterworths, Sydney, 1997, p981.2 Bradbrook, et al, Australian Real Property Law, Third Edition, Thomson Lawbook Co, 2002, p4.3 Ibid.

Public Administration and Finance Committee SEVENTH REPORT

6 G:\DATA\PF\pfrp\pf.lan.040514.rpf.007.xx.a.doc

publicly in the Roman Forum. The Twelve Tables included references to the conceptof usucapio, which is defined in Butterworths Australian Legal Dictionary as:

In Roman law, acquisition of ownership of property belonging to

another as a consequence of uninterrupted technical possession inrespect of the property for a fixed period, originally one year formovables and two years for immovables.4

2.7 Extant references to Tables VI and VII include the following laws:

Table VI.

1. When one makes a bond and a conveyance of property, as hehas made formal declaration so let it be binding.

3. A beam that is built into a house or a vineyard trellis one maynot take from its place.

5. Usucapio of movable things requires one year's possessionfor its completion; but usucapio of an estate and buildingstwo years.

6. Any woman who does not wish to be subjected in this mannerto the hand of her husband should be absent three nights insuccession every year, and so interrupt the usucapio of eachyear.

Table VII.

1. Let them keep the road in order. If they have not paved it, aman may drive his team where he likes.

9. Should a tree on a neighbor's farm be bend crooked by thewind and lean over your farm, you may take legal action forremoval of that tree.

10. A man might gather up fruit that was falling down ontoanother man's farm.5

2.8 Under Roman Law, theoretical absolute ownership of land by a private citizen waspossible (absolutum et directum dominium), subject to the practical exception of Statenecessity (dominium eminens or eminent domain). The term eminent domain isdefined in Butterworths Australian Legal Dictionary as:

The inherent right of the government to acquire private property forpublic purposes.6


Butterworths, Sydney, 1997, p1235.5 Oliver J Thatcher (ed), The Library of Original Sources (Milwaukee: University Research Extension Co,

1901), Vol III: The Roman World, pp9-11 (modernised by Professor J S Arkenberg, Department ofHistory, California State (Fullerton), cited at Internet site:http://www.fordham.edu/halsall/ancient/12tables.html (current at March 16 2004).

SEVENTH REPORT CHAPTER 2: The Nature of Freehold and Leasehold Interests in Land


2.9 The concept of eminent domain is discussed in greater detail in Chapter 3. As to theextent to which the Roman State used its power of eminent domain over privatelandholders, Errol E. Meidinger notes:

Legal scholars have unearthed little direct evidence on the use of

eminent domain in ancient times. They wonder, practically in unison,whether the straight roads and aqueducts of ancient Rome mightindicate some eminent domain-like power.

Notably lacking in the Roman evidence are two features now thought

central to eminent domain: established rights of the injured party tocompensation and a legal proceeding to determine the validity andextent of the taking.

In Rome it seems (as it may seem about our times to future scholars)

that the public-private accommodation was somewhat fluid andambiguous. The strong emphasis on inviolable private property that

prompts some to doubt the existence of eminent domain wascounterposed against an equally impressive and purposive state.Jones [Expropriation in Roman Law, 45 L.Q. REV. 512, 521 (1929)]suggests [at pp523-524] that the prospects of aggrieved property

owners may have varied substantially according to their politicalpositions and the nature of the taking. Nonetheless, there is a gooddeal of evidence to indicate that the Romans took privately heldproperty to further a variety of public purposes. The mode and termsof taking probably varied with particular situations and the

accommodations reflected the relative powers of the parties and localexigencies. A more durable, standardized compromise would awaitother times and societies.7

2.10 With respect to the colonies of Rome, including Britain, the system of land lawapplied in these areas by the Romans was quite different:

The non-Italian provinces were classified as conquered territory,

whose inhabitants were primarily Roman subjects with status as"dediticii" = capitulants (no legal rights.) There were very few

Roman citizens. Augustus divided the provinces into two classes:those that required active defense and those that did not. The Senateruled the latter vesting imperium in governors; the rest - the "imperialprovinces," were governed by the Emperors own legates, procurators

or prefects. The army was generally quartered in the imperial


Butterworths, Sydney, 1997, p412.7 Errol E Meidinger, The Public Uses of Eminent Domain: History and Policy, Environmental Law,

Vol 11, No 1, Fall 1980, pp7-8, at Internet site:http://www.law.buffalo.edu/homepage/eemeid/scholarship/EminentDomain.pdf (current at April 142004).



provinces. (England was occupied in such a manner fromapproximately 43 A.D. - 400 A.D.)

The land of the conquered non-Italian provinces was considered the

property of the Roman state or "ager publicus" and was held by thepossessors under charter or revocable grant and not in dominium.The relationship of the non-Roman citizen to the Emperor in the

imperial provinces was that of non-citizen familia to the paterfamilias - both in respect to property and imperium.

Considerable revenue came from "leasing" of these lands and from

contracting with "Publicans," who operated state forests and public

works, as well as the state monopoly on mines, fisheries and salt. Theprovinces paid a tributum soli (land tax) and a tributum capitis (headpoll tax based on personal property.) Funds went into the nationalTreasury (aerarium) for lands controlled by the Senate; and to the

imperial Treasury (fiscus), for those lands classified as imperial. (Ineffect, legal land ownership of the Imperial "ager publicus" was in theEmperor.)8

2.11 Historian Colin Wells observed that, for the colonies, gaining Roman citizenship wasof immense benefit in terms of ownership of property:

The main benefit of the [Roman] citizenship in Gaul will have been

to bring the new citizen under the Roman law of property, whichprobably meant that they could now be held to own wholly and inperpetuity land which probably under Celtic tribal law belonged to

the tribe, although in some way assigned to the chief or one of theother tribal nobility.9

The English Feudal Land System

2.12 The English feudal land system developed by the Normans from the 11th century, onwhich the real property law systems in modern-day United Kingdom, Australia,United States, Canada and New Zealand are based, adopted a variation to the Romanapproach - the conquering Norman King claimed ownership of all of the land andmerely granted to citizens (initially only favoured knights) an interest in portions ofthe Crown estate, as required:

8 Land Ownership in the Territories of Rome, Understanding American Property Rights (Online

Studies), 1998-2000, (Primary References: Will Durant, The Story of Civilization: Part III, Caesar andChrist, A History of Roman Civilization and of Christianity from their beginnings to AD 325, Simon andSchuster, New York c1944; John Cook, Law and Life of Rome, Cornell University Press, c1967.), atInternet site: http://famguardian.org/Publications/PropertyRights/agerpub.html (current at April 14 2004).

9 Colin Wells, The Roman Empire, (Cambridge: Harvard University Press, 1984), cited in Ancient Romanscontributions to private property rights, by Jim Powell, at Internet site:http://www.libertystory.net/LSBIGSTORIESROMANPROPERTYLAW.htm (current at April 14 2004),p1.



Land ownership in ancient England, as with most objects, depended

primarily on possession. You had it, you owned it. You wanted it, you

fought for it. You found it, you kept it. There were no courts or policeforce ready to recognize or enforce "legal rights" as we know themtoday.

All this changed with the conquest of England in 1066 by the Norman

conquest. William decreed that he owned all of the land in England byright of conquest. Not one acre of England was to be exempted fromthis massive expropriation. This sudden vacuum of privately-held landwas promptly filled by a variety of huge land grants given by the new

King to either his Norman officers or to those of the English who wereready to recognize him as king.

The underlying principle of the system was that nobody owned land

but the king. The expressions dominion directum and dominion utile

are often used to describe the relative ownership of king and lords;the former as landlord the latter as tenant.

This represents a significant difference between real estate and

chattels. Chattels can be owned outright. It can also be contrasted

with those countries that have an allodial system (absolute ownershipof land). Even today, in those countries that have inherited thetenurial system, all land belongs to the Crown; persons only own anestate in the land.10

2.13 In his book Property and Freedom, Richard Pipes states that:

At the time of the Norman Conquest the landed estates of the English

royalty stood at their zenith. The conquerors abolished allodialholdings: previous owners, if permitted to keep their estates, becameroyal tenants in chief. Norman royalty not only inherited the holdings

of the deposed Anglo-Saxon kings but also the confiscated realproperties from the lords who had offered them resistance, much ofwhich they distributed among their tenants. The tenants in chief wererequired to provide the king with fixed quotas of cavalry. To ensure

that they had the required number of horsemen, they, in turn, grantedestates to knights. Thus the feudal chain was forged. But William theConqueror assumed that all the land, secular as well as clerical,belonged to him and was held by his tenants on feudal terms. A tenantin chief who failed in his duties forfeited his lands to the crown.11

10 Lloyd Duhaime, History of Real Estate Law: The Old English Landholding System, Duhaime &

Company, Victoria, British Columbia, Canada, November 1996, at Internet site:http://www.duhaime.org/Real-estate/rehist1.htm (current at April 14 2004).

11 Richard Pipes, Property and Freedom, Alfred A Knopf (New York), 1999, p126.



2.14 By the time of the Domesday Book in 1086, the Western European feudal system ofland tenure had been imposed by the Norman kings throughout England. Peter Buttnotes that:

Of all the land of England surveyed in the Domesday Book, about

one-fifth was held directly by the King, about one-quarter by theChurch, and about one-half by the Kings greater followers. These

last numbered about 1,500 tenants-in-chief, each holding by someservice of the King as overlord. Of these, a small number (probablyno more than 12) held about one-quarter of all the landed wealth ofEngland in 1086.

What especially distinguished English feudalism from its Continental

counterpart was its universality. This was based on the premise -perhaps a fiction - that William the Conqueror was the paramountlord of all the land in England. This is explained partly by the fact of

conquest, partly by confiscations following the various rebellionswhich occurred in the early years of Norman rule, and partly by thefeudal instincts of later lawyers who construed the submission of theSaxons as a surrender and regrant of their lands on the lines of the

old benefice. A grant from the King became the basis - actual orfictional - of all landholding. No longer was any land allodial."12

2.15 The allocation of land to selected lords by the first Norman kings was tied to theability of the lords to perform important public duties, most important of which was toprovide the King with knights in time of war. Armies of knights were amassed byway of the lords effectively subletting their granted lands to their own vassals tolive and work on in exchange for the vassals undertaking military service as required.The historian Ordericus Vitalis noted that William the Conqueror allocated landsto knights in such a way and so arranged their contingents that the kingdom of

England should always have 60,000 knights at the ready and produce themimmediately at the Kings command as necessity required.13 Although it is likelythat 5,000 or so14 knights was a more realistic figure for the time, the importance ofthe expectation of public service on the part of a recipient of a grant of land from theKing cannot be overstated.

2.16 In his book Land Law, Peter Butt notes that the English doctrine of land tenuresdeveloped on a much wider scope than its Continental counterpart, with landsubsequently being granted by the King not just for the provision of military oraristocratic services by his subjects (knight service), but also the supply of a widevariety of other public and personal services, such as: domestic staff, weapons, food,transport, and entertainment (serjeantry); and religious services such as the saying

12 Peter Butt, Land Law, Fourth Edition, Lawbook Co, Sydney, 2001, pp58-59.13 Ibid, p59.14 Ibid.



of masses for the donor or donors family (frankalmoin).15 Unlike under RomanLaw, there was no absolute ownership of property in medieval England, and a tenantsinterest in their land was never more than temporary and for so long as they performedthe services required of them.16

The Application of English Land Law in Australia

2.17 Upon the taking of possession of Australia in 1770 by Britain, all land of the territoryvested in the British Crown and all land titles issued in Australia since that date arederived from Crown grants.

2.18 For the first 40 years after British settlement of Australia in 1788, the principal meansby which the Crown alienated land in New South Wales was by way of land grants tomilitary officers, free settlers and former convicts to encourage the cultivation of land.These grants were often subject to conditions, such as requirements: to accept andmaintain convicts; to cultivate a specified number of acres within five years; and/orthat the grantee not sell the land within five years.17 Grantees were usually required topay an annual sum of money to the Crown in exchange for the land grants (whichamounted to five per cent of the value of the land by 1825). From 1842 onwardsCrown land in New South Wales could only be alienated by way of sale.18

2.19 It has been observed that the Australian colonies never wholeheartedly adoptedthe technical distinction at English law between real property (that is, land andinterests in land) as opposed to personal property (that is, all property, or chattels,other than land and incorporeal hereditaments19).20 It is noted that from 1813, debtrecovery laws in the Australian colonies treated real and personal property almostalike.21

2.20 The individualistic nature of the Australian approach to real property law wasdemonstrated at the start of the 20th century when all Australian States enacteduniquely simple and administratively inexpensive dividing fences legislation,reflecting the distinctly Australian concern for a detached dwelling on a clearlydefined quarter acre block.22

2.21 The Crowns continuing relationship with private landholders in respect to their landin Australia has, as in other land systems based on the English model, been largelytheoretical with the state imposing few of the original feudal obligations on

15 Ibid, p59-60.16 Ibid, p80.17 Ibid, p754.18 Ibid, p755.19 The Honourable Dr P E Nygh and P Butt (General Editors), Butterworths Australian Legal Dictionary,

Butterworths, Sydney, 1997, p873.20 Bradbrook, et al, Australian Real Property Law, Third Edition, Thomson Lawbook Co, 2002, p5.21 Ibid.22 Ibid, p8.



landholders, save for land rates and taxes imposed by state and local governments.23 Ithas been observed that the state has generally preferred to use grants of leaseholdtenure in land where the state has wished to impose more unique or onerousobligations on a particular landholder.24

THE BRITISH SETTLEMENT OF WESTERN AUSTRALIA

2.22 In 1828, the following written instructions were given to Lieutenant Governor Stirlingfor the conduct of the British Settlement of the Swan River Port on the West Coast ofNew Holland:

Amongst your earliest duties will be that of determining the most

convenient site for a Town, to be erected as the future Seat ofGovernment.

You will be called upon to weigh maturely the advantages, which may

arise from placing it on so secure a situation as may be afforded onvarious points of the Swan River, against those which may follow

from establishing it on so fine a Port for the reception of shipping asCockburn Sound is represented to be: and more effectually to guardagainst the evils, to be apprehended from an improvident disposal ofthe land in the immediate vicinity of the Town, you will take care, that

a square of three Miles (or one thousand nine hundred and twentyAcres) is reserved for its future extension, and, that the land withinthis space is not granted away (as in ordinary cases) but shall be heldupon leases from the Crown, for a Term not exceeding twenty oneyears. You will, from the commencement of the undertaking, be

observant of the necessity of marking out, and reserving for Publicpurposes, all those peculiar positions within, or in the vicinity of theprojected Town, which, from natural advantages, or otherwise, willprobably be essential to the future welfare of the Settlement.

In laying the foundations of any such Town, care must be taken to

proceed upon a regular plan, leaving all vacant spaces which will infuture times be required for thoroughfares, and as the sites ofChurches, Cemeteries, and other Public Works of utility and generalconvenience.

You will cause it to be understood that His Majesty has granted to youthe power of making all necessary locations of Land.

You will bear in mind, that, in all locations of Territory, a due

proportion must be reserved for the Crown, as well as for themaintenance of the Clergy, support of Establishments for the

23 Ibid, p14.24 Ibid.



purposes of Religion, and the Education of youth, concerning whichobjects more particulars will be transmitted to you hereafter.

I think it necessary, also, to caution you, thus early (as Land on the

Sea or River Side will, naturally, be the first to be located) that youmust be careful not to grant more than a due proportion of Sea orRiver Frontage to any Settler. The great advantage to be derived from

an easy Water Communication will of course not escape yourconsideration, and this advantage should be divided amongst as manySettlers as can conveniently benefit by their position in the vicinity.25

The Allocation of Land in Western Australia from Colonial Settlement to the Present

2.23 The allocation of Crown Land to settlers in Western Australia in 1829 was initiallyproportional to the amount of capital introduced, at the rate of forty acres for everysum of 3, and of 200 acres for every labourer brought into the colony. These grantswere subject, however, to improvement conditions (such as forfeiture of the land tothe Crown if the land had not been improved within ten years of the grant26).27

2.24 In 1831, instructions were given by the British Colonial Office to LieutenantGovernor Stirling regarding the administration of land transfers in the colony, whichstressed the need for certainty and uniformity in practice to ensure the maintenance ofthe confidence of the settlers in the new system of land grants:

From the 18th to the 25th Clause of your Instructions you will find

all the Regulations which have been thought necefsary for yourguidance in effecting a complete Territorial division of the Colonyinto Counties, Hundreds, & Parishes, nor am I aware that any

addition could be advantageously made to that body of Rules, or thatthey demand any further elucidation.

The series of Instructions from 26th to 32nd Clause, respecting the

granting of waste Land to Private Settlers, together with my

accompanying despatch will, I trust, place you in full pofsefsion of theviews of His Majestys Government on that important subject.

It however remains to be stated that the Grants thus to be made

should be drawn up in one uniform style. For your afsistance I

enclose the draft of such a form of Grant as is fit to be adopted onevery such occasion.

25 Lieutenant-Governor Stirling's Instructions 30 December 1828 (UK), December 30 1828, pp1-2, at

Internet site: http://www.foundingdocs.gov.au/places/wa/wa2.htm (current at February 3 2004).26 Neil Jarvis (ed), Western Australia: An Atlas of Human Endeavour, The Department of Lands and

Surveys (Western Australia) in Association with the Education Department of Western Australia, Perth,1986, p57.

27 Early History of Land Tenure, special article, Year Book Australia 2002, Australian Bureau ofStatistics, at Internet site:http://www.abs.gov.au/Ausstats/[email protected]/94713ad445ff1425ca25682000192af2/88fd067140fc3f4dca2569e300102388!OpenDocument (current at February 3 2004), p1.



Connected with this subject is the very important consideration which

respects the alienation of Lands by sale & conveyance. The difficulty

of adopting the English System of conveyancing has beenacknowledged in all Colonies dependant on the British Crown, & hasbeen remedied in most by the introduction of two efsential Laws. Thefirst establishes some simple Forms to the use of which is attributed

the effect of a complete alienation & transfer from the Seller to theBuyer of the Property. The second establishes a general office ofRegsitry in which every transaction of this nature is recorded, &which Record is declared efsential to the validity of the transfer. You

cannot too soon adopt Regulations of this nature, & for yourafsistance I enclose a copy of an Act pafsed for a similiar purpose inthe Island of Van Diemens Land. In a Settlement of which the wealth& resources must, to a great extent, consist in agriculture, whatever

tends to relieve the Proprietors of the Soil from uncertainty,respecting their Titles, or from embarafsment in the conveyance oftheir property must eminently conduce to the general welfare.28

2.25 Despite the above plan for a uniform subdivision of land in the colony, the plan wasnever implemented; in part due to the practical problem of allocating evenly measuredland parcels in circumstances where there was a lack of surveyors and the farmingpotential of land was so variable.29

2.26 As the colonys population grew rapidly, and the colony obtained a measure of selfgovernment, the terms for the grant of Crown Land changed:

The original regulations under which grants were made to the first

settlers were amended by others of a similar nature issued by theImperial Government on the 20th July, 1830, which in turn werereplaced in 1832, when free grants were abolished and land was sold

at a minimum price of five shillings per acre. In 1837 the price ofallotments in Perth, Fremantle, and Albany was fixed at a minimum of5 an acre. New land regulations were issued by the Colonial Office[in] 1843, 1864, 1873, 1882, and 1887, when the whole of theregulations were amended and consolidated. The colony was dividedinto six divisions in all, of which sale by auction was permitted, butotherwise the conditions of occupation differed in each division.

... In the year 1890 Constitutional Government was granted to thecolony, and from time to time various amendments were made in the

28 Despatch No 2 Re Legal and Judicial Subjects, April 28 1831 (UK), at Internet site:

http://www.foundingdocs.gov.au/places/wa/wa5ii.htm (current at February 3 2004), pp3-4.29 Neil Jarvis (ed), Western Australia: An Atlas of Human Endeavour, The Department of Lands and

Surveys (Western Australia) in Association with the Education Department of Western Australia, Perth,1986, p57.



land laws until the year 1898, when a Land Act was passed amending,repealing, and consolidating previous legislation as to the sale,occupation, and management of Crown lands.30

2.27 By 1850, minimal clearing of land for agricultural purposes had taken place in thecolony, and the clearing that had taken place was usually just for the establishment ofpastoral homesteads and subsistence farming.31 Between 1840 and 1887, land in theSouth West of the State was allocated primarily as pastoral leases.

2.28 Regulations introduced in 1887 encouraged the conditional purchase of freeholdland for agriculture at a minimum price of ten shillings an acre, payable in equalinstalments over 20 years. Conditional purchasers had to satisfy minimumrequirements for the fencing and improvement of the land.32 The conditional purchasesystem continued throughout most of the 20th century.

2.29 Development conditions were also applied as part of the returned servicemensettlement and group settlement land schemes after each of the two World Wars:

Those who settled on land after the First World War were given

financial assistance but still required to adhere to conditionalpurchase conditions, and returned servicemen after the Second WorldWar were placed on developed farms, under perpetual leaseconditions with low annual rentals.33

2.30 A 1986 DOLA publication noted that Western Australia was one of the few parts ofthe Western world to undergo large-scale land development in the 20th century, withmore than 3,300 new farms established in the south-west of the State between 1945and 1986.34 Over 1,100 of these farms (which varied in size from less than fourhectares for intensive market gardens near Perth to 1600ha wheat/sheep properties)were created under the War Service Settlement Scheme following World War Two.35

From the late 1950s, the Settlement Scheme was extended from returned servicemenonly to civilians, although the land offered to the civilians was far less developed. Bythe end of the settlement program in 1969, which was abolished following a glut ofwheat on the world market, more than 2000 new farms had been created.36

30 Early History of Land Tenure, special article, Year Book Australia 2002, Australian Bureau of

Statistics, at Internet site:http://www.abs.gov.au/Ausstats/[email protected]/94713ad445ff1425ca25682000192af2/88fd067140fc3f4dca2569e300102388!OpenDocument (current at February 3 2004), p1.

31 Neil Jarvis (ed), Western Australia: An Atlas of Human Endeavour, The Department of Lands andSurveys (Western Australia) in Association with the Education Department of Western Australia, Perth,1986, p77.

32 Ibid, p57.33 Ibid.34 Ibid, p81.35 Ibid.36 Ibid.



2.31 Currently in Western Australia, the primary legislation dealing with land related issuesare the Land Administration Act 1997 and the Transfer of Land Act 1893.

2.32 Immediately prior to June 30 2003, land was administered in Western Australia by asingle State Government agency, DOLA. A major restructure of DOLAs operationscommenced in 2002. The restructure involves the establishment of a new statutoryauthority (the Department of Land Information (DLI); which is presently still inoperation as a department, but is moving towards becoming a statutory authority) toadminister land titles and provide valuation services and land information, and theincorporation of DOLAs Crown land management role and the Pastoral Lands Boardwithin DPI.

2.33 In a Statement to the Legislative Council in November 2002, the ParliamentarySecretary to the Minister for Planning and Infrastructure, Hon Graham Giffard MLC,outlined the aims of the restructure as follows:

The new statutory authority will have the commercial flexibility to

deliver a greater return to the State and community. It will continue toadminister land titles, provide government with valuation servicesand make available land information including maps and onlineservices. Fees for statutory services such as land title registration and

certified extracts of the valuation roll will still be regulated. However,the new organisation will become self-funding and be able to reinvestrevenue into customer service, to ensure that Western Australiaremains at the cutting edge of land information systems. This will seethe development of new online services and improvements in the

quality of the information available to the public. For example, landinformation held by DOLA includes lot boundaries, land areas,property valuations and land contour information. New onlinesystems could cross reference this data with information on water

rates and land tax details to help people who are buying properties. Itwill also help conveyancers and surveyors do their jobs more easilyand effectively.

DOLA's crown land management role and the Pastoral Lands Board

are to be transferred to the Department for Planning andInfrastructure. This move will enable the Government to integrate themanagement of crown land, which accounts for 93 per cent of theState's surface, with our broader land use and transport planning

objectives. The new statutory authority, which is expected to beestablished in 2004, will be based in Midland. The changes follow anextensive review of DOLA's future and consultation with industry andstakeholders.37

37 Hon Graham Giffard MLC, Parliamentary Secretary representing the Minister for Planning and

Infrastructure, Western Australia, Legislative Council, Parliamentary Debates (Hansard), Wednesday,November 13 2002, p3010.



THE DEFINITION OF LAND IN WESTERN AUSTRALIA

2.34 Under s 3 of the Land Administration Act 1997, land is defined as:

(a) all land within the limits of the State;

(b) all marine and other waters within the limits of the State;

(c) all coastal waters of the State as defined by section 3(1) of the

Coastal Waters (State Powers) Act 1980 of theCommonwealth; and

(d) the sea-bed and subsoil beneath, and all islands and

structures within, the waters referred to in paragraphs (b)and (c).

2.35 As noted above, all land is administered in Western Australia on behalf of the State,and the Crown as the ultimate or radical title holder, by either the Land AssetManagement Section of DPI (in the case of Crown lands and lands acquired by theCrown) or the (soon-to-be statutory authority) DLI, in a number of different tenures orinterests, including:

Fee simple

Pastoral leases

Conditional purchase leases

General leases (99 or 999 year leases)

Perpetual leases

Reserves

Licences and Profits a Prendre

Easements

Roads and Mall Reserves

Unallocated Crown land

2.36 Under the doctrine of estates, inherited by Australia from English law, the land (whichis always owned by the Crown) is treated as separate from the interest or estate in theland given by the Crown to its private subjects. The type of estate given (that is, feesimple, for life, etc.), determines the duration of the interest. A private landholder canthus never own more than an estate in the Crowns land, and never the land itself.38

2.37 As was stated in Walsingham's Case in 1578:

"The land itself is one thing and the estate in land is another thing:

for an estate in the land is a time in the land, or land for a time: and

38 Real Property, Halsburys Laws of Australia Online, Butterworths (subscription service), December 1

1997, (current at February 6 2004), para 355-2000.



there are diversities of estates, which are no more than diversities oftime; for he who hath a fee simple in the land has a time in the land

without end, or land for a time without end; and he who has land intail has a time in land, or the land for a time, as long as he has issuefrom his body; and he who has an estate in land for life has no timelonger than his own life; and so of one who has an estate in land forthe life of another, or for years."39

2.38 Land in Western Australia may be conveniently classified for the purposes of theInquiry as either Crown land (held either solely by the Crown or in its proprietarycapacity as landlord) or Freehold land.

2.39 The following table compiled from information contained within the 2002-2003Annual Report of DOLA shows the breakdown of land tenure in Western Australia:

Table 2.1

Land Tenure in Western Australia (as at June 30 2003) 40

Land Tenure Type Area of State Covered(Kms)

Percentage

Unallocated Crown Land 925,700 37%

Pastoral Leases 898,700 36%

Aboriginal Reserves 202,800 8%

Private Freehold 182,600 7%

National Parks and Conservation Reserves 171,800 6%

Other Leases 74,300 3%

Other Managed Reserves 23,700 1%

Unmanaged Reserves 21,700 1%

State Forests and Timber Reserves 21,200 1%

Reserves Managed by Local Governments 5,000 -

Total 2,527,600 100%

2.40 Attached to this report at Appendix 4 is an A3 map of Western Australia indicating thevarious types of land tenure as at June 30 2003. The map was provided to theCommittee by DLI. Larger, more detailed, versions of this map are available fromDLI.

39 Cited in Allodial, (Ref: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the

United States of America and the Several States of the American Union, Childs & Peterson, c1856.), atInternet site: http://famguardian.org/Publications/PropertyRights/R3allod.html (current at April 14 2004).

40 Department of Land Administration, Annual Report 2002-2003, Government of Western Australia, Perth,August 31 2003, p39.



2.41 Also attached at Appendix 5 is an A4 map showing the extent of natural and clearedvegetation in Western Australia from 1988 to 2003. This map was also provided tothe Committee by DLI (based on Department of Agriculture data). Larger, moredetailed, versions of this map are available from DLI and the Department ofAgriculture.

CROWN LAND

2.42 The State of Western Australia has an area of approximately 2,527,620 squarekilometres (not including submerged coastal land), approximately 93 per cent ofwhich is the Crown estate - that is, land which has not been alienated in fee simpleto private parties.41 Western Australia has approximately 38 per cent of Australiastotal Crown lands.42

2.43 By s 3 of the Western Australia Constitution Act 1889 (Imp.), the Western AustralianParliament is given power to legislate with respect to Crown land:

The entire management and control of the waste lands of the Crown

in the colony of Western Australia, and of the proceeds of the sale,letting and disposal hereof, including all royalties, mines andminerals, shall be vested in the legislature of that colony.43

2.44 The Land Administration Act 1997 is the Western Australian Parliaments currentprimary statute governing dealings in Crown land.

2.45 The introduction of the Land Administration Act 1997 simplified the process for theadministration of Crown land by applying the conveyancing practices of the Torrensregistration system. The registration system for Crown land thus mirrors the freeholdland registration system.44 Certificates of Crown land title are created in the name ofthe State of Western Australia as the proprietor of the radical title for allocatedparcels of Crown land, and are similar in format to, although clearly differentiatedfrom, freehold certificates of title.45

The Crowns Proprietary Power Over Land The Granting of Leasehold Interests inLand

2.46 As at June 30 2003, there were 527 pastoral leases covering approximately 95 millionhectares (36 per cent of the State) and 474 stations.46 Fifty four percent of pastoralleases are held by individuals, ten per cent are held by mining companies, 33 per cent

41 Department of Land Administration, Land Acquisitions, April 1999, at Internet site:

http://www.dola.wa.gov.au/home.nsf/(FrameNames)/Publications (current at April 14 2004).42 Department of Land Administration, Government Land Administration in Western Australia, 2001,

foreward.43 Ibid, p46.44 Ibid, pp10-11.45 Ibid, p11.46 Department of Land Administration, Annual Report 2002-2003, Government of Western Australia, Perth,

August 31 2003, p42.



are held by other companies, and three per cent are foreign owned.47 Almost all ofthese pastoral leases were granted prior to 1975. Other types of Crown leases areconditional purpose leases (about 122 remained as at June 30 2000 over a total area of177,000ha), general leases (over 1,780 in place as at June 30 2000 for over 250different purposes), 99 year leases (about 150 remained as at June 30 2000), 999year leases (about 185 as at June 30 2000, generally for community infrastructurepurposes such as church sites), leases over, under or on roads (less than 20 as at June30 2000), and perpetual leases under the States War Service Land SettlementAgreement Act 1954-74 (about 720 as at June 30 2000 comprising a total area ofaround 645,000ha).48

2.47 A set of core attributes applying to all classes of Crown leases has received wide legaland customary acceptance. The most significant rights of a lessee attaching to a leaseare:49

a) The entitlement to the exclusive use and enjoyment of the land (subject to thelimited rights of Aboriginal people to enter and to engage in traditionalactivities), with the laws of trespass applying equally to freehold andleasehold land.

b) The right to engage in approved land use activities.

c) Pre-emptive rights to seek changes to the title or to apply to engage in otherland uses.

d) Veto rights over other prospective users (excluding Aboriginal peoplesengaging in traditional activities, and individuals and companies involved inmining and mineral exploration).

e) Security of tenure, either by perpetual or long-term title, with the latter havingroll-over provisions and a pre-emptive right of renewal.

f) Rights to transfer or sell the lease, subject to Ministerial approval, which isnot customarily withheld.

g) The right to receive the full value from the sale of the lease title and all capitalimprovements.

Pastoral leases

2.48 A pastoral lease is a lease over Crown land which gives the lessee the right to grazestock on the natural vegetation. Pastoral leases in Australia developed from theconditions faced by British settlers in the early 19th century:

47 Ibid.48 Department of Land Administration, Government Land Administration in Western Australia, 2001, pp22-

23.49 John Holmes, The Policy Relevance of the States Proprietary Power: Lease Tenures in Queensland,

pp240-256, Australian Journal of Environmental Management, Vol 3, December 1996, p253.



Official efforts were made to constrain the early settlement to an

area surrounding Sydney. Nonetheless, actual development spread

well beyond the official limits giving rise to the class of pastoralistsknown as the squatters. Subsequently some security of title wassought for this illegal landholding and the early colonial legislaturewas sympathetic to squatters claims. A system of Crown grants of

leasehold interests evolved. Much of rural Australia remains subjectto Crown leasehold arrangements.50

2.49 In Western Australia an eight member Pastoral Lands Board administers the pastorallease system under the direction of the Minister for Lands.51 Pastoral leases aregranted and held on the condition that certain improvements are made to the land(such as fencing, wells, etc.), and that stock levels are maintained.52 Aboriginalpeople have a right to enter upon any unenclosed and unimproved parts of a pastorallease to seek their sustenance in their accustomed manner.53 All pastoral leasesin Western Australia will expire on June 30 2015, and the terms for the renewal ofeach lease will need to be negotiated at that time.54 The Committee notes that ongoingactivities have already commenced within the Government and industry as part of thelead-up to the expiry, and renewal, of these pastoral leases.

2.50 A pastoral lease grants to the lessee an exclusive right to conduct activities associatedwith pastoralism, while approval from the Government is required for the lessee toundertake activities not connected with pastoralism such as forestry, operating an eco-tourism business or undertaking a private conservation initiative.55 Typical pastorallease conditions include:

general conditions, such as the term or length of the lease and the rental rate;

land management and use conditions, such as controls on stock type andlevels, maintenance of fencing, watering points, and lessees duty of care tofollow sound land management practices; and

reservation conditions, such as the Governments rights to timber and soil, andpublic access rights.56

2.51 In Western Australia, permits issued under the Land Administration Act 1997 are usedto regulate non-pastoral activities on land that is subject to a pastoral lease. However,

50 Bradbrook, et al, Australian Real Property Law, Third Edition, Thomson Lawbook Co, 2002, p5.51 Division 2, Part 7, Land Administration Act 1997.52 Ibid, ss 107 and 111.53 Ibid, s 104.54 Department of Land Administration, Government Land Administration in Western Australia, 2001, p44.55 Productivity Commission, Pastoral Leases and Non-Pastoral Land Use, Commission Research Paper,

AusInfo, Canberra, 2002, pxii.56 Ibid, pxiii.



such permits are generally only issued for short timeframes and cannot be transferredwith the lease title.57

2.52 The Crowns proprietary power derives from the Crowns exercise of its sovereignpower of ultimate ownership of land to make itself the beneficial owner or landlord ofunalienated land.58 The proprietary power is most commonly exercised in countries ofrecent British settlement, such as the United States, Canada, New Zealand andAustralia.59 A general reluctance to convert Crown leases to freehold land is also acommon phenomenon is these countries:

In Australia, as in other recently colonised countries, it was

generally assumed that there would be a progressive transition

towards enhanced private property rights as the land became moreclosely settled and intensively used for private purposes. Apart fromland required for public purposes, all land would be freehold, withthe State thereby abandoning its tenure-related proprietary power

over land in private use. Any necessary limitations and controlswould be exercised through the sovereign power.

However, this process of land privatisation has remained incomplete,

not merely because certain land parcels have been set aside for public

purposes, but also because, over extensive tracts of land, the fullaward of private freehold title has been seen as not justified, oneconomic and social grounds.60

2.53 In Canada, less than ten per cent of land is held under private title.61 In the AmericanState of Alaska, less than one per cent of land is held in individual private title.62 Inthe contiguous 48 states of the United States, 21 per cent of land is federally owned,with most of this federal land being in the western rangelands where grazing and otherprivate uses are allowed under a permit system, which does not award land title orexclusive occupancy rights to permit-holders.63

2.54 In Australia, pastoral lease tenures account for 42 per cent of Australias land area and67 per cent of all land held under private title (leasehold and freehold):

In Australia and, to a lesser extent, New Zealand, the rapid spread

of extensive grazing over vast areas posed a challenge to colonial

governments in reconciling the immediate needs of pastoralists with

57 Ibid, pxiv.58 John Holmes, The Policy Relevance of the States Proprietary Power: Lease Tenures in Queensland,

pp240-256, Australian Journal of Environmental Management, Vol 3, December 1996, p242.59 Ibid.60 Ibid, p243.61 Ibid.62 Ibid.63 Ibid.



other emerging or potential interests. Out of these challengesemerged a unique land tenure system, by which leasehold titles

became flexible instruments for the selective award of those propertyrights needed by titleholders to engage in approved activities, whilereserving all other rights to the state. This left the state with somecapability to reshape the tenure system in response to subsequentdemands.64

2.55 In New Zealand, a process of tenure review has seen agreements reached between thegovernment and lessees whereby pastoral tenure has been converted to freeholdtenure. By negotiation, land on pastoral leases with commercial production potentialis excised as freehold land whilst land with high conservation values is transferred tothe public conservation estate.65

2.56 The Industry Commissions 1998 inquiry into Ecologically Sustainable LandManagement66 was supportive of pastoralists adopting alternative economic activitiesto improve both their own economic circumstances and the economically sustainablemanagement of the land. However, it was subsequently noted by the ProductivityCommission that:

The development of non-pastoral land uses may not be an option on

all pastoral lease land. However, current pastoral leasearrangements may constrain ecologically sustainable managementand the further emergence of economically-viable non-pastoral landuses. The arrangements typically inhibit competition between pastoraland non-pastoral land uses, and can sometimes preclude alternative

uses of the land. As a consequence, innovative land uses and potentialeconomic and ecological gains, that could benefit land managers andthe wider community, may be stifled.67

2.57 It has been argued in other jurisdictions that the system of Crown leases may nolonger be relevant, and that it would be simpler and more efficient for the State toissue only freehold titles, legislating where necessary to impose any relevant limits onthe rights of the titleholders.68

FREEHOLD LAND

2.58 The word freehold is defined in Butterworths Australian Legal Dictionary as:

64 Ibid, pp243-244.65 Productivity Commission, Pastoral Leases and Non-Pastoral Land Use, Commission Research Paper,

AusInfo, Canberra, 2002, pxiv.66 Industry Commission, A Full Repairing Lease Inquiry into Ecologically Sustainable Land

Management, Report No 60, AGPS, Canberra, 1998.67 Productivity Commission, Pastoral Leases and Non-Pastoral Land Use, Commission Research Paper,

AusInfo, Canberra, 2002, p1.68 John Holmes, The Policy Relevance of the States Proprietary Power: Lease Tenures in Queensland,

pp240-256, Australian Journal of Environmental Management, Vol 3, December 1996, p244.



A type of land-holding originating in feudal times, being land held

by a freeman and subject to services and incidents thought to be

appropriate to the status of a freeman. At common law, there werethree types of freehold estate: fee simple, fee tail and the life estate.Freeholds are of uncertain duration, unlike leasehold. Historically,they were also unlike leasehold in that possession was recoverable

under the real actions. The term is used in modern times simply tomean ownership of land.69

2.59 It should be noted that freehold title is not one, consistent, type of tenure. The Stateretains the power to offer various forms of freehold title, with different rights andduties applying to the titleholder. A small number of early freehold titles in the SouthWest of Western Australia, as well as in Queensland and New South Wales awardedthe ordinarily reserved Crown mineral rights on the land to the titleholders, while atone time in Queensland some freehold titles did not convey timber rights to thetitleholder.70

2.60 The term fee simple is defined as:

The estate in land which is the most extensive in quantum, the most

absolute in respect to the rights it confers of all estates known to

law and for all practical purposes of ownership, it differs from theabsolute dominion of a chattel in nothing except the physicalindestructibility of its subject: Commonwealth v New South Wales(1923) 33 CLR 1. Originated in feudal times as an estate capable ofinheritance (a fee) which could descend to any heirs whatsoever ofthe original grantee.71

2.61 The key feature of a fee simple interest in land is that it forms part of the estate of theowner and is able to be transferred at any time, or, upon the owners death, be left tonominated beneficiaries by means of a will (or to statutory beneficiaries in the absenceof a will). For instance, s 10 of the Administration Act 1903 provides that:

The real as well as the personal estate of every deceased person

shall be assets in the hands of the executor to whom probate has beengranted or administrator, for the payment of all duties and fees and ofthe debts of the deceased in the ordinary course of administration.

2.62 The Committee notes that an estate in fee simple is granted over a defined portion ofland from the Crown estate subject to a vast web of legislation which impacts uponthe use of that land. The most obvious of this legislation is that which relates to the

69 The Honourable Dr P E Nygh and P. Butt (General Editors), Butterworths Australian Legal Dictionary,

Butterworths, Sydney, 1997, pp504-505.70 John Holmes, The Policy Relevance of the States Proprietary Power: Lease Tenures in Queensland,

pp240-256, Australian Journal of Environmental Management, Vol 3, December 1996, p245.71 The Honourable Dr P E Nygh and P Butt (General Editors), Butterworths Australian Legal Dictionary,

Butterworths, Sydney, 1997, p467.



express reservations contained in a freehold grant to the Crown of the minerals in theland (with the exception of some parcels of land granted throughout the South West ofthe State in the 19th century) and the right of the Crown to resume the land.

2.63 Many of the grievances expressed to the Committee over the course of the Inquiry byprivate landholders indicate a misunderstanding of, or a frustration with, thelimitations surrounding the concept of a freehold title. As one witness expressed it:

I thought that freehold land meant that it was free of any hold, which

means you can clear it, put bores in, dig dams, drain or deepenswamps and carry on certain types of mining. If not, the Governmentis misleading the general public.72

2.64 A town planning consultant who gave evidence to the Committee noted that many ofhis clients of continental European origin had difficulty with the concept of the Crowncompulsorily acquiring privately-held interests in property with apparent ease:

Freehold title from my understanding can be misunderstood.

Ultimately the Crown owns all land. A title gives a landowner abundle of rights. However, because the Crown effectively ultimatelyowns the land, the Crown also has the right to take away those rights.I can assure the committee that this has been very difficult for some

Italian clients of mine to ever understand. The European system doesnot work like that. If they have ownership of the land, it is atraditional lineage ownership and the land cannot be resumed easilyfor roads etc, whereas here the State has resumption powers becausethe Crown has that right.73

Recommendation 1: The Committee recommends that a brief, plain English,information sheet be developed by the Department of Land Information whichsummarises the main aspects of land law in Western Australia and explains the rightsand obligations of freehold and leasehold landholders. Such a publication should bemade available to the public free of charge.

Recommendation 2: The Committee recommends that the Department of LandInformation liaise with relevant stakeholder and industry bodies to facilitate thedistribution of a plain English information sheet on land law in Western Australia, asrecommended in Recommendation 1, from the offices of local governments, real estateagents and settlement agents, and to incorporate the information sheets contentswithin relevant standard conveyancing forms.

72 Mr Kimberley Hough, Transcript of Evidence, November 27 2002, p1.73 Mr Graham Houghton, Director, Graham Houghton Town Planning, Transcript of Evidence, November

27 2002, pp5-6.



The Granting of Fee Simple Tenure

2.65 Part 6 of the Land Administration Act 1997 empowers the Minister for Lands to sellCrown land in fee simple by the registration of a transfer against a Crown Land Title.The following sections of the Land Administration Act 1997 provide for such adisposal of Crown land in fee simple: ss 74-75, 78, 80, 83, 85-89.

2.66 An estate in fee simple, is an interest in Crown land derived from the Crown estateand was, prior to the introduction of a simplified process under the LandAdministration Act 1997, usually granted by way of a Crown Grant, made by theQueen, to a person (the definition of which could also include a company, statutorybody or incorporated association).74

2.67 As stated above, freehold titles in Western Australia cover a total area ofapproximately 182,600 square kilometres, or seven per cent of the total area of theState.75 As at June 2000 the following approximate totals of certificates of title, notcounting those certificates of title which were at that time subject to a dealing, were inexistence over land in Western Australia:76

74,500 certificates of title were held by local, State and Federal authorities;and

843,000 certificates of title were held by private owners (individuals andincorporated bodies).

2.68 In its 2001 submission to the Committee, DOLA noted that the timeframes vary inrespect to the grant of leasehold and freehold tenure directly from the Crown estate:

This is mainly due to requisite research, survey and the compilation

of approvals from related Government agencies and otherstakeholders prior to granting the land to lessees or transferring theland to purchasers.

There are no set timeframes involved in the granting of leasehold or

freehold title over land. However, in theory if all approvals wereavailable, the administrative process of preparing and lodgingenabling documents would average about one month.77

Issues Relating to the Freeholding of Crown Land

The impact of native title on the freeholding process

2.69 The Committee notes the impact of native title on the administrative steps involved inthe freeholding of Crown land. The Committee has, however, resolved not to include

74 Submission No 121 from Department of Land Administration, March 7 2002, p11.75 Department of Land Administration, Annual Report 2002-2003, Government of Western Australia, Perth,

August 31 2003, p39.76 Department of Land Administration, Government Land Administration in Western Australia, 2001, p9.77 Letter from Mr Grahame Searle, Acting Chief Executive, Department of Land Administration, April 24

2003, p3.



the wider issue of native title within the express terms of reference of this inquiry.Native title is a significant and complex issue in its own right, and is too broad inscope to be adequately addressed within the context of this inquiry. The Committeenotes that issues arising from native title have been examined by a number of Stateand Commonwealth parliamentary committees over the past ten years.

The freeholding of land with a high proportion of natural vegetation for agriculturalpurposes

2.70 A number of submissions raised concerns that over the years the State Governmenthas released too much heavily vegetated land as freehold and leasehold in theagricultural region of the State:

No land should be released unless that release is in the States long

term interests and the State should buy back, where possible, landthat should not have been released in the first place.78

2.71 The core business of the former Department of Lands and Surveys in the 1970s was torelease arable lands, mainly by way of conditional purchase tenure. It was recognized,however, by the early 1980s that arable land stocks had been exhausted.79 DOLAnoted in April 2003, however, that:

The release of Crown land by the Department of Lands and Surveys

in agricultural areas, and in present times by DOLA, has neveroccurred without referral to related stakeholders dealing withenvironmental protection, agriculture, conservation, mining, planningand local government.

Any concerns by stakeholders must be addressed prior to release,

including assessments and impact studies relating to agriculture,conservation and protection of the environment. In recent times thisincludes the completion of environmental impact surveys,archaeological and ethnographic surveys and Aboriginal heritagesurveys, among other assessments.80

2.72 The issue of land clearing for agricultural purposes is dealt with extensively inChapter 7 of this report.

Revestment of Land

2.73 Pursuant to s 82 of the Land Administration Act 1997 and s 243 of the Transfer ofLand Act 1893, freehold land that is acquired by the Crown through purchase orcompulsory acquisition may be revested in the Crown. In such circumstances, theRegistrar of Titles will cancel the relevant Certificate of Title and the subject land will

78 Submission No 69 from B and G Betts, December 14 2001, p3.79 Letter from Mr Grahame Searle, Acting Chief Executive, Department of Land Administration, April 24

2003, p4.80 Ibid.



be re-identified by a new lot or location number and dealt with the same way as otherCrown land.81

Easements

2.74 Butterworths Australian Legal Dictionary defines an easement in the followingterms:

A right enjoyed by a person with regard to the land of another

person, the exercise of which interferes with the normal rights of theowner or occupier of that land: Municipal District of Concord vColes (1906) 3 CLR 96.82

2.75 A 2001 DOLA publication defines an easement as follows:

An easement is a grant of rights over land by the property owner in

favour of another person, to enter onto land for the purpose ofinstalling and maintaining facilities such as cables, pipelines, etc. Aneasement may also grant the right to cross over land in order to gainaccess to another parcel of land.83

2.76 Although at common law for an easement to be valid it must benefit the holder ofanother, neighbouring, parcel of land (the dominant tenement), s 195 of the LandAdministration Act 1997 expressly provides that the State of Western Australia, aState instrumentality, a statutory body corporate or a local government may create aneasement without a dominant tenement. This provision enables public works andservice infrastructure (such as for water and power services) to be constructed andmaintained on freehold land by way of an easement corridor, without the necessity forthe State or other body having to acquire the freehold of either the land which is thesubject of the easement or any neighbouring land.

2.77 The most common type of easement, apart from service and infrastructure easementsfor water and sewerage pipes and electricity transmission lines, is a right of way overthe subject land. The range of easement types, and the rights they confer over thesubject land, are numerous and include such rights as:84

a) to discharge water;

b) to occupy a pew in a church;

c) to use a toilet or kitchen on anothers land;

d) to use an airfield for testing aeroplanes;

81 Department of Land Administration, Government Land Administration in Western Australia, 2001, p29.82 The Honourable Dr P E Nygh and P Butt (General Editors), Butterworths Australian Legal Dictionary,

Butterworths, Sydney, 1997, p401.83 Department of Land Administration, Crown Easements, November 2001, at Internet site:

http://www.dola.wa.gov.au/home.nsf/(FrameNames)/Publications , p1 (current at February 6 2004).84 Halsburys Laws of Australia Online, Butterworths (subscription service), December 1 1997, (current at

February 6 2004), para355-12005.



e) to create noise over adjoining land;

f) to fix signs, hoardings or advertising on anothers land;

g) to enjoy a recreation area;

h) to enter upon anothers land to repair a building on neighbouring land;

i) to construct banks on anothers property in the course of a mining operation;and

j) to use an area of land as a garden.

2.78 Easements may not necessarily grant a right to physical entry of anothers property,and may simply confer a right on a neighbouring landholder to the free flow of airthrough defined apertures on the subject land, or to receive light for a building, orwater through pipes.85

2.79 Easements may be created by a number of mechanisms:

a) by the express grant of a landholder in favour of another (see, for example,Part IVA of the Transfer of Land Act 1893 in the case of subdivisions) orthrough reservation on sale;

b) by an empowering statute in the case of easements for service infrastructure,such as electricity transmission lines and water pipelines (see, for example, ss36-37 Energy Operators (Powers) Act 1979);

c) by a grant of the Minister for Lands (s 144, Land Administration Act 1997);

d) by order of the Supreme Court under Part XIII of the Property Law Act 1969;or

e) by prescription (that is, where the landholder has knowledge of the use oftheir land by another person over a period of time and fails to object: Dalton vAngus (1881) 6 App cas 740).

The Torrens System of Land Titling

2.80 Butterworths Australian Legal Dictionary defines Torrens title as follows:

A system of land title where a register of land holdings maintained

by the State guarantees indefeasible title to land included in theregister. The system gives title by registration, as opposed to oldsystem title, which depends on proof of an unbroken chain of titleback to a good root of title.86

2.81 The Torrens system of land titling, named after the deviser of the system, Sir RobertTorrens, was introduced in South Australia in 1857 to simplify the then existing Deeds

85 Halsburys Laws of Australia Online, Butterworths (subscription service), December 1 1997, para355-

12010 (current at February 6 2004).86 The Honourable Dr P E Nygh and P Butt (General Editors), Butterworths Australian Legal Dictionary,

Butterworths, Sydney, 1997, p1172.



system inherited by the Australian colonies from England. The Torrens system isarguably Australias best export, having been adopted in various forms in GreatBritain, Canada, and large parts of Europe, Asia, and the Pacific region.87

2.82 Since the commencement of the Transfer of Land Act 1875, all grants of land inWestern Australia have been recorded in accordance with the Torrens system.88

Furthermore, since 1997, a freehold interest in Crown Land may be created andtransferred out of the Crown estate by way of a transfer of land registered pursuant tothe Transfer of Land Act 1893.89

2.83 Under s 48(1) of the Transfer of Land Act 1893 a Register of Titles is maintained,whereby a separate Certificate of Title is created and maintained for each parcel ofland, recording details of the property description, the nature of the estate held in theland, the name of the registered proprietor, and a record of any dealings orencumbrances affecting the land. Section 48(1) reflects one of the key principlesenshrined in the Torrens system of land administration - referred to as the MirrorPrinciple. As the 2001 submission from DOLA states:

In theory, a potential purchaser need only examine the content of the

Certificate of Title for a particular property to examine the natureand extent of any dealings affecting the land. That is, the Certificate

of Title mirrors (reflects) the rights, restrictions and responsibilitiesthat burden the land.90

2.84 In addition to the Mirror Principle, there are two other key principles that underpinthe Torrens system:

the Curtain Principle undisclosed interests and estates that sit behind thetitle do not impact upon the registered proprietor, regardless of the time oftheir creation; and

the Indemnity Principle those who suffer loss by relying upon the face ofthe title may be compensated out of an assurance fund.

2.85 It has been stated that the basic goal of the Torrens system is:

to make the governmentally maintained record a conclusive

statement of ownership and the condition of title. This conclusivestatement is intended to function as a mirror of the true state of thetitle and as a curtain between the present and the past which should

87 Lynden Griggs, The Assurance Fund: Government Funded or Private?, The Australian Law Journal 76

ALJ 213, April 2002, pp250-257, footnote No 3, p257.88 Submission No 121 from Department of Land Administration, March 7 2002, p11.89 Ibid.90 Ibid, p14.



make it unnecessary to conduct the kind of historical searchesperformed in recording systems.91

2.86 Section 68 of the Transfer of Land Act 1893 provides expressly that the estate of theregistered proprietor on the Certificate of Title is paramount against all other interests,subject to the exceptions listed in that section. Those exceptions include, among otherthings, easements, lands included in a title by misdescription and rights acquired byadverse possession.

2.87 Although at times, such as with the recent finance brokers pooled first mortgageschemes in this State, the principle of indefeasibility of title appears to operateunfairly with respect to unregistered interests in land, the principle remains central tothe States system of land administration. Owen J of the Supreme Court of WesternAustralia recently stated:

The principle of indefeasibility is well understood by lawyers and by

the commercial community. In my view it must be given the utmostrespect and should be applied according to its tenor.

I do not deny that there is an element of unfairness to the unregistered

investors in not treating them the same way as the registered holders

fall to be considered because of the [Transfer of Land Act 1893]. Nordo I underestimate the emotional and financial pain that this wholesorry episode has caused for the investors generally. A courtneeds to proceed with caution. It must not, through sympathy for theplight of the unregistered investors, develop a rule of equitable

principle that is so broad as to make inroads into the principle ofindefeasibility. That principle must be paramount. Unless there isidentified some personal conduct by the registered proprietor or bysome person for whose conduct he or she is responsible, the general

rule is that registered title ought to prevail. This provides animportant element of certainty in the administration of the [Transferof Land Act 1893].92

2.88 There continues to remain in Western Australia some small pockets of freehold landwhich are still governed under the old common law deeds system and the Registrationof Deeds Act 1856. This land accounts for one per cent of the land in WesternAustralia and is located in some of the earliest settled areas of the State, such asBunbury, Busselton, Albany, York, Midland and Fremantle.93 Provision is made

91 McCormack (1992) 18 WMLR 61 at 81, cited in The Assurance Fund: Government Funded or

Private?, by Lynden Griggs, The Australian Law Journal 76 ALJ 213, April 2002, pp250-257, footnoteNo 3, p250.

92 Mark Anthony Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) & Ors v Registrar of Titles & Ors[2001] WASC 201 (3 August 2001), per Owen J, at paras 196 and 289.

93 Government Land Administration in Western Australia, Department of Land Administration, 2001, p10.



under Part II of the Transfer of Land Act 1893 for old system land to be brought underthe Torrens system.

THE SYSTEM OF LAND ADMINISTRATION IN WESTERN AUSTRALIA

2.89 There is a large amount of legislation, both State and Federal, that impacts upon landadministration in Western Australia. DOLA advised in its 2001 submission thatDOLA itself then administered 33 Acts of Parliament, and utilised an additionalnumber in common with other Planning and Infrastructure portfolio agencies, and itsoperations were impacted upon by at least another 108 State and Federal Acts.94

2.90 In its 2001 submission to the Committee, DOLA advised that the purpose of landadministration in Australia is to ensure the integrity of the official record of rights andinterests in land and property so that: 95

a) transactions in land and property can occur efficiently and effectively;

b) information concerning the rights, restrictions and responsibilities of land arereadily available;

c) planning decisions are based upon current, complete and correct landinformation; and

d) the system supports the formation of capital, based on land and property.

2.91 DOLA submitted that the importance of land administration in a Western capitaliststate lies with the ability of private individuals and corporations to generate capitalusing the security of land tenure as the basis to obtain a mortgage over property.96

The following table shows the number and value of transfers and mortgages inWestern Australia between 1991/92 and 2000/01:

Table 2.2

Transfers and Mortgages in Western Australia (1991/02 to 2000/01) 97

YEAR NUMBER OFTRANSFERS

TRANSFERSCONSIDERAT

IONS

NUMBER OFMORTGAGES

MORTGAGEPRINCIPAL

1991/92 69,960 $7.2B 80,914 $9.8B

1992/93 81,592 $9.2B 90,729 $13.0B

1993/94 97,704 $11.9B 110,160 $18.6B

1994/95 81,431 $11.3B 93,208 $16.4B

94 Submission No 121 from Department of Land Administration, March 7 2002, pp10, 12, 33-36.95 Ibid, p6.96 Ibid, p4.97 Ibid, p5.



YEAR NUMBER OFTRANSFERS

TRANSFERSCONSIDERAT

IONS

NUMBER OFMORTGAGES

MORTGAGEPRINCIPAL

1995/96 73,198 $8.9B 88,031 $13.0B

1996/97 72,298 $12.4B 89,907 $16.7B

1997/98 81,088 $13.1B 95,048 $20.2B

1998/99 83,119 $14.0B 92,977 $20.4B

1999/00 89,390 $16.0B 98,063 $24.6B

2000/01 75,526 $13.4B 86,183 $23.9B

Government Agencies as Landholders

2.92 A large number of Government agencies and instrumentalities either maintainsignificant landholdings in their own name or control land on behalf of the Crown.The following table, based on figures compiled by the Office of the Auditor General,shows the number of discrete property sites (which may vary in size from a smallresidential block to a pastoral lease or nature reserve) held or controlled by thefollowing ten agencies:

Table 2.3

Property Held by Government Agencies98

Agency ApproximateNumber of

Property SitesOwned

ApproximateTotal Site

Value ($m)

Number ofSites Acquired(July 2000 toJune 2002)

Number ofSites Divested(July 2000 toJune 2002)

Department ofLandAdministration

58 000 2 350 not available99 not available100

98 Table extracted from information contained in Performance Examination: Grounds for Improvement:

Government Owned or Controlled Contaminated Sites, Report No 6, Auditor General for WesternAustralia, November 2002, at Internet site: http://www.audit.wa.gov.au/reports/report2002_06.pdf(current at February 5 2004), p28.

99 The Committee was advised by DPI (which is now responsible for Crown land and the land acquisitionfunctions of the former DOLA) that the Department has no means of determining the number of separateinstances of land reverting, by various means, to State ownership or the Crown estate which take placewithin any specified timeframe: Letter from Director General, Department for Planning andInfrastructure, November 7 2003, p2.

100 The Committee was advised by DPI (which is now responsible for Crown land and the land acquisitionfunctions of the former DOLA) that, due to the Departments current information systems, it is verydifficult (requiring manual analysis) to obtain statistics for all of the various means by which land may bedivested by the Department for any specified time period: Letter from Director General, Department forPlanning and Infrastructure, November 7 2003, p3.



Agency ApproximateNumber of

Property SitesOwned

ApproximateTotal Site

Value ($m)

Number ofSites Acquired(July 2000 toJune 2002)

Number ofSites Divested(July 2000 toJune 2002)

Western PowerCorporation

3,000 300 20 50

WesternAustralianPlanningCommission

2,800 350 290 170

Department ofConservationand LandManagement

2,100 1,900 30 20

LandCorp 1,600 550 190 750

Commissionerof Main Roads

1,800 250 340 110

WesternAustralianGovernmentRailwaysCommission

1,500 100 nil 70

Department ofEducation

800 850 30 20

Department ofAgriculture

120 40 5 3

GoldCorp 20 unknown nil nil

Review of the Land Administration Act 1997

2.93 In January 2004 the DPI released a discussion paper as part of a ministerial review ofthe Land Administration Act 1997; such review being required by s 279 of that Act.101

The discussion paper sets out the aims and achievements of the Land AdministrationAct 1997, and outlines both planned and suggested amendments to the Act.

2.94 Public submissions were called for in relation to the matters raised in the discussionpaper, with a closing date of February 27 2004.

101 Department for Planning and Infrastructure, Review of the Land Administration Act 1997 Discussion

Paper, January 2004, at Internet site: http://www.dpi.wa.gov.au (current at February 26 2004).



2.95 The Minister for Planning and Infrastructure is required to table a report based on thereview before each House of Parliament by September 30 2004.

THE TYPES OF GOVERNMENT ACTIONS AND PROCESSES THAT MAY IMPACT UPON THEUSE AND ENJOYMENT OF FREEHOLD OR LEASEHOLD LAND

2.96 As this report will show, there are a myriad of ways that all levels of government canand do impact upon the use and enjoyment of freehold and leasehold land. At one endof the scale are financial impositions such as land tax and rates, and at the mostextreme end of the scale is the compulsory acquisition of interests in land by the state.

2.97 As an example, the Department of Agriculture alone is responsible for administeringthe following Acts and regulations that provide for government actions which mayimpact upon landholders:102

Soil and Land Conservation Act 1945, and regulations.

Stock Diseases (Regulations) Act 1968.

Agricultural Produce (Chemical Residues) Act 1983.

Stock (Identification and Movement) Act 1970.

Agriculture and Related Resources Protection Act 1976.

Health (Pesticides) Regulations 1956.

Agriculture and Related Resources Protection (Spraying Restrictions)Regulations 1979.

Aerial Spraying Control Act 1966.

2.98 The focus of the Inquiry was on the impact of the actions and processes of StateGovernment agencies and bodies. Some of the specific impacts examined in detail bythe Committee, and included in this report, are:

a) compulsory acquisition of interests in land;

b) transmission line and water pipeline easements;

c) land use zonings;

d) subdivisions and development approvals;

e) land clearing restrictions in agricultural areas;

f) environmental policies relating to urban bushland and wetland conservation;

g) industrial buffer zones;

h) heritage lists;

i) protection of endangered fauna and flora;

j) conflicting land uses within close proximity; 102 Submission No 154 from Department of Agriculture, September 18 2002, p1.



k) mining rights granted to third parties over privately held land; and

l) notification and recording of restrictions on land use.

PRIVATE PROPERTY RIGHTS

2.99 Before examining the above-listed impacts in detail, it may be useful to consider theconcept of private property rights, both in terms of the concepts theoretical basisand how such a concept can practically coexist within the current legal framework.

Concepts of Private Property Rights

2.100 Private property is a central, and emotive issue, in Western society. Professor AliceTay wrote in 1978 that:

Property is that which a man has a right to use and enjoy without

interference; it is what makes him as a person and guarantees hisindependence and security. It includes his person, his name, hisreputation, his chattels, the land that he owns and works, the house hebuilds and lives in and so on. These things are seen as his property in

early law because they are seen as the reification of his will, as thetangible, physical manifestation of his work and his personality.103

2.101 In Semaynes Case,104 Coke CJ stated that:

the house of every one is to him as his castle and fortress.105

2.102 One definition of private property rights, and a discussion of the value of suchrights, is set out below:

The right to private property is the social-political principle that

adult human beings may not be prohibited or prevented by anyonefrom acquiring, holding and trading (with willing parties) valued

items not already owned by others. Such a right is, thus, unalienableand, if in fact justified, is supposed to enjoy respect and legalprotection in a just human community.

In the development of classical liberalism there emerged in Western

political thought a shift of focus as to the prime value in social-political matters, from the group - a tribe, class, state or nation - tothe human individual. It started with the effort to gradually transferpower from a few or even one person as the source of collective

authority and power to more segments of society involved inexercising such authority and power, leading, eventually, to thesovereignty of the human individual. The way in which power isdiffused when individuals are sovereigns rather than groups is

103 Professor Alice Tay, Law, the citizen and the state, in E Kamenka, et al (eds), Law and Society,

London, 1978, p10.104 (1604) 5 Co. Rep. 91a.105 Ibid, p91b.



through the fact that individuals have only a little and highlydiversified power to wield. In consequences, they aren't likely to

impose themselves on others by, say, starting a war, even when theydisagree very seriously. That, in essence, was the initial motivationfor moving toward individualism, which, when implemented via lawand public policy, is much more conducive to peace and, as a result,

to prosperity than is any form of collectivism. Thus classicalliberalism has had some considerable support on practical grounds -its usefulness to attaining various widely sought after objectives.106

2.103 In her article Of Estates and Interests: A Tale of Ownership and Property Rights,Susan Bright discusses the myth that ownership of land confers absolute powers:

Blackstone, writing in the heyday of liberalism [Commentaries onthe Laws of England, 1765-9], portrayed property as giving sole anddespotic dominion over the external things of the world, in total

exclusion of the right of any other individual in the universe. Thepicture is of the owner pointing both literally and metaphorically tothe boundary of his property and stating that no one, individual orgovernment, can cross this line without permission; within the

boundary the owner is Ruler, free to do with the land whatever hewishes. Property thus becomes a powerful concept. It representsautonomy, control and freedom from interference. The owner is freeto act in any way, in total disregard of the moral and social claimsthat those outside the property may have.

This is an image full of rhetoric, but it is a false image. Even the

holder of a fee simple estate, undoubtedly an owner, and the fullestownership known to English land law, is not such a Ruler. Hisfreedom to use the land is wide but not absolute. All sorts of

limitations are placed upon land use, some specific to the particularland (for example,

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