Future trends of legal rights, obligations and restrictions on Land Use in Queensland. Michael Byrom

Transcription

1 Future trends of legal rights, obligations and restrictions on Land Use in Queensland Michael Byrom

2 Overview: Some Future Trends Continuing erosion of the Torrens System Sustainability Land Use Controls New Classes of Property E-Conveyancing Personal Property and Securities Act 2009 (Cth) (PPSA)

3 Fragmentation of Private Property Rights PRIVATE OWNERSHIP OF PROPERTY Introduction of Torrens System of land titles to simplify the process of land transfer and make land titles more certain for landowners PUBLIC OWNERSHIP OF PROPERTY Imposition of statutory restrictions on land use for the benefit of the public to sustain natural resources such as forestry, fauna, minerals, water & energy Erosion of security of title and traditional notion of indefeasibility Unprecedented number of statutory restrictions and obligations on landowners in their use of the land esp. in relation to vegetation management, coastal development, planning laws, contaminated land etc.

4 What is it? Torrens System It is a system of state guaranteed title to land, that is, the state guarantees that what you see on the register is the person who owns the land It was traditionally designed to provide a record of private property rights affecting the title to individual parcels of land

5 Torrens System (cont.) Object of Torrens: A person who purchases bona fide and for value from a registered proprietor and enters his deed of transfer or mortgage on the register shall acquire an indefeasible title notwithstanding the infirmity of his author s title Gibbs v Messer [1891] AC 248

6 Torrens System (cont.) The Torrens system was designed to provide landowners with 3 key benefits: A complete and reliable register showing all facts relating to a landowner s title; Protection for a party dealing with land i.e. it removed the need to investigate beyond the register; and A state guarantee of the accuracy of the register and compensation for loss by any inaccuracy of it.

7 Torrens System(cont.) Indefeasibility: Statutory protection against unregistered interests i.e. registered interests cannot be defeated by unregistered interests (s 184 Land Title Act 1994 (Qld) (LTA)) Exceptions include: S 184(3)(b): fraud by the registered proprietor; S 185(1)(b): interest of lessee under a short-term lease; S 185(1)(c): interest of a person benefiting from easement if its particulars are omitted/misdescribed in register.

8 Torrens System (cont.) Indefeasibility (cont.): Statutes other than the LTA may impose exceptions to indefeasibility, for example: Property Law Act 1974 (Qld) confers a power on the courts to make orders under s 185 which deprive a person of his or her interest in land if there is an encroachment on the land

9 Torrens System(cont.) Indefeasibility (cont.): An indefeasible title is created on the recording of the particulars of the lot in the freehold land register An indefeasible title for a lot is defined as the current particulars in the freehold land register about the lot Ss LTA

10 Torrens System (cont.) Limits to the State Guarantee: No right to compensation for a statutory imposed restriction on land which overrides indefeasibility (s 189(1)(l) LTA) EG: even where a property becomes unviable due to inability to clear vegetation Only entitled to compensation if a person is deprived of an interest in land under s 188 LTA

11 Sustainability What is sustainability? Definition 1: It is about meeting the needs of the present without compromising the ability of future generations to meet their needs It is about reducing our environmental footprint to help preserve the world s natural resources (Department of Environment and Heritage Protection)

12 Sustainability (cont.) What is Sustainability? (cont.) Definition 2: It is a balance that integrates: (a) protection of ecological processes and natural systems at local, regional, State and wider levels; and (b) economic development; and (c) maintenance of the cultural, economic, physical and social wellbeing of people and communities. S 8 Sustainable Planning Act 2009 (Qld) (SPA)

13 Land Use Controls Restrictions relate to the use of the land and do not impact on title, for example: Heritage restrictions Queensland Heritage Act 1992 (Qld) Vegetation management SPA and Vegetation Management Act 1999 (Qld) Restrictions on building within coastal areas under the Coastal Protection and Management Act 1995 (Qld), Coastal Management Plan 2002 reviewed with proposed Queensland Coastal Plan

14 Land Use Controls (cont.) QLD Coastal Zone Map Index

15 Land Use Controls (cont.) Map 1: South East QLD

16 Land Use Controls (cont.) Contaminated land: An administrative advice is recorded on title indicating that the land is listed in the contaminated land register (s 422 Environmental Protection Act 1994 (Qld) (EPA)) Obligation to disclose to buyer (s 421 EPA) Planning laws regulate the use and development of privately owned land SPA

17 Land Use Controls (cont.) Nature Conservation (Koala) Conservation Plan 2006 and Management Program (the Koala Plan) relating to planning and development assessment was replaced by: South East Queensland Koala Conservation State Planning Regulatory Provisions (SPRP); and State Planning Policy 2/10: Koala Conservation in South East Queensland (SPP)

18 Land Use Controls (cont.) Koala Plan District Area Map

19 Land Use Controls (cont.) SPP Koala Habitat Value Map

20 Land Use Controls (cont.) Natural Assets Local Law 2003 (NALL) aims to balance the needs of landowners with environmental needs: The Local Law is not a Land Use or development control (A Guide to the Natural Assets Local Law 2003) However, landowners must seek Council permission to clear protected vegetation, except for basic maintenance, weed control and emergency work The onus is on landowners to prove that a vegetation protection order meets the objects of the NALL Penalties of up to $37,500 for individuals and up to $63,750 for companies apply if you remove or interfere with protected vegetation without approval from Council

21 Land Use Controls (cont.) Protected Vegetation under NALL

22 Land Use Controls (cont.) Waterways

23 Land Use Controls (cont.) Omission of statutory restrictions on title: Appropriate for general planning conditions But is it appropriate for restrictions attaching to individual parcels of land? EG: proposed urban encroachment provisions under ss680a-680zh SPA requiring notification of affected areas to the Registrar of Titles for recordings in the Administrative Advices Register

24 New Classes of Property Creation of carbon rights in Queensland by: Deeming a carbon right to be a profit a prendre and therefore registrable under the LTA Water Rights: S 19 Water Act 2000 (Qld) (WA) vests in the State the right to the use, flow and control of all water in Queensland but see s 20(3) WA A person who may take water under s 20(3) WA may exercise various rights including bringing an action in trespass as if they were the registered owner of that land (s13a(4) Land Act 1994 (Qld))

25 New Classes of Property (cont.) Airspace Rights: Who owns the land, theirs it is from the centre of the earth to the heaven above This has long since been the case: The airspace rights of a landowner is now restricted to such height as is necessary for the ordinary use and enjoyment of the land and structures upon it (Baron Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479)

26 Future Trends: E-Conveyancing What is E-Conveyancing? A single national electronic system for land title transactions (not mandatory) Not all land title transactions will be completed electronically (est. 60%-70%) e.g. a transaction involving numerous finance companies

27 Future Trends: E-Conveyancing (cont.) When is it due to commence? December 2012 (Council of Australian Governments Milestones) Why E-Conveyancing? Need a common regulatory framework to enable electronic documents to be lodged under Torrens land title legislation in Australia

28 Future Trends: E-Conveyancing (cont.) Success of E-Conveyancing in NZ: World Bank s assessment of land title systems from 177 countries world-wide ranked NZ s system between 1 st to 3 rd most efficient in the world since its inception

29 Future Trends: PPSA PPSA commenced on 15 December 2009 (s 2 PPSA) and came into effect on 1 May 2011 Personal property includes many different kinds of tangible and intangible property, other than real property (s 3 PPSA) Although it excludes real property it extends to lease arrangements with respect to fixtures and fittings

30 Future Trends: PPSA (cont.) The changes to the law include: Attachment is required for enforceability of the security interest, that is: The grantor (person granting the security interest) must have rights in the collateral (the thing over which the security interest is taken) and value is given for the secured interest or the grantor creates the security interest (s 19 PPSA) Enforceability of the security interest against third parties requires: Attachment and either: possession, control or a signed security agreement (s 20 PPSA)

31 Future Trends: PPSA (cont.) The changes to the law include (cont.): Perfection of the security interest generally requires: Attachment and either: registration, possession or control Secured parties who hold perfected interests will take priority to those who hold unperfected ones regardless of who holds possession (s 21 PPSA)

32 Future Trends: PPSA (cont.) The significant changes brought about by the PPSA shows the extent to which governments are prepared to move away from traditional trends of property rights at common law

33 Some Helpful Articles Christensen, S and Duncan, W D Aligning sustainability and the Torrens Register: Challenges and recommendations for reform (2012) Australian Property Law Journal, 115 Christensen, S, Duncan, B and O Connor, P Regulating for Sustainability: Property Issues (2011) Faculty of Law, QUT and Faculty of Law, Monash University, Melbourne Hepburn, S Carbon Rights as New Property: The benefits of statutory verification (2009) 39 Sydney Law Review 271 O Connor, P The Extension of Land Registration Principles to New Property Rights in Environmental Goods (2009) in M Dixon (Ed), 6 Modern Studies in Property Law 363

34 Some Relevant Legislation Coastal Protection and Management Act 1995 (Qld), Coastal Management Plan 2002 reviewed with proposed Queensland Coastal Plan Environmental Protection Act 1994 (Qld) Forestry Act 1959 (Qld) Land Act 1994 (Qld) Land Title Act 1994 (Qld) Natural Assets Local Law 2003 Personal Property and Securities Act 2009 (Cth) Property Law Act 1974 (Qld) Queensland Heritage Act 1992 (Qld) South East Queensland Koala Conservation State Planning Regulatory Provisions, and State Planning Policy 2/10: Koala Conservation in South East Queensland Sustainable Planning Act 2009 (Qld) Vegetation Management Act 1999 (Qld) Water Act 2000 (Qld)

35 Striking the Balance Private Property Rights Core feature of the Torrens System that a landowner registered on title acquires an indefeasible right to that land subject to registered interests affecting the lot but free from all other interests Public Interest in Sustainability Ability of the government to bind private land owners by the imposition of statutory restrictions or obligations to use natural resources in the public interest

36 Questions?