An Integrated Information Management Model for
Ecologically Sustainable Development
Justine Bell LLB(Hons); GradDipLegalPrac
School of Law, Queensland University of Technology
Academic qualification for which this thesis is submitted: Doctor of Philosophy
Year Submitted: 2010
Keywords
Property Law – Torrens – Land registration – Indefeasibility – Registers
Environmental law – Sustainability – Environmental Registers
Land information management – spatial data – databases
Law reform
Abstract
Ecologically sustainable development has become a major feature of legal systems at
the international, national and local levels throughout the world. In Australia,
governments have responded to environmental crises by enacting legislation imposing
obligations and restrictions over privately-owned land. Whilst these obligations and
restrictions may well be necessary to achieve sustainability, the approach to
management of information concerning these instruments is problematic. For
example, management of information concerning obligations and restrictions in
Queensland is fragmented, with some instruments registered or recorded on the land
title register, some on external registers, and some information only available in the
legislation itself. This approach is used in most Australian jurisdictions.
This fragmented approach has led to two separate but interconnected problems. First,
the Torrens system is no longer meeting its goal of providing a complete and accurate
picture of title. Second, this uncoordinated approach to the management of land titles,
and obligations and restrictions on land use, has created a barrier to sustainable
management of natural resources. This is because compliance with environmental
laws is impaired in the absence of easily accessible and accurate information. These
problems demonstrate a clear need for reform in this area.
To determine how information concerning these obligations and restrictions may be
most effectively managed, this thesis will apply a comparative methodology and
consider three case studies, which each utilise different models for management of
this information. These jurisdictions will be assessed according to a set of guidelines
for comparison to identify which features of their systems provide for effective
management of information concerning obligations and restrictions on title and use.
Based on this comparison, this thesis will devise a series of recommendations for an
effective system for the management of information concerning obligations and
restrictions on land title and use, taking into account any potential legal issues and
barriers to implementation. This series of recommendations for reform will be
supplemented by suggested draft legislative provisions.
Brief Contents
Chapter One - Introduction ........................................................................................ 1
Chapter Two - Problems for the Torrens system as a result of fragmented
information management .......................................................................................... 13
Chapter Three - Methodology and overview of case studies ................................. 64
Chapter Four - Queensland Case Study .................................................................. 87
Chapter Five - Western Australia Case Study ...................................................... 143
Chapter Six - New Zealand Case Study ................................................................. 182
Chapter Seven - Analysis and comparison of case studies ................................... 229
Chapter Eight - Legal issues associated with integrated management of
obligations and restrictions on land title and use.................................................. 255
Chapter Nine - Conclusion ...................................................................................... 314
Table of Contents
Chapter One - Introduction ........................................................................................ 1
1.
Background to this research ................................................................................ 1
2.
Why this research is necessary ............................................................................ 4
3.
Methodology........................................................................................................ 7
4.
Terminology ........................................................................................................ 7
4.1.
‘Register’ and ‘record’ .................................................................................. 7
4.2.
‘Rights’, ‘Obligations’ and ‘Restrictions’ ..................................................... 7
4.3.
Restrictions on ‘title’ and ‘use’ ..................................................................... 8
4.4.
‘Overriding statutes’ and ‘overriding interests’ ............................................ 9
5.
Chapter Outlines .................................................................................................. 9
6.
Conclusion ......................................................................................................... 12
Chapter Two - Problems for the Torrens system as a result of fragmented
information management .......................................................................................... 13
1.
Introduction ....................................................................................................... 13
2.
Historical development of the Torrens system of land registration................... 14
3.
Principles underpinning the Torrens system of land registration ...................... 16
4.
3.1.
Indefeasibility .............................................................................................. 16
3.2.
Completeness .............................................................................................. 17
3.3.
Security........................................................................................................ 20
3.4.
Conclusion ................................................................................................... 22
Interests capable of registration in Australian jurisdictions .............................. 22
4.1.
Leases .......................................................................................................... 23
4.2.
Mortgages .................................................................................................... 24
4.3.
Easements .................................................................................................... 24
4.4.
Covenants .................................................................................................... 26
4.4.1.
Registration ........................................................................................... 26
4.4.2.
Notification ........................................................................................... 27
4.4.3.
No recognition on the land title register ............................................... 28
4.5.
Profits á prendre .......................................................................................... 28
4.6.
Other interests ............................................................................................. 30
4.7.
Conclusion ................................................................................................... 31
5.
The threat posed to the integrity of the Torrens system by overriding interests32
5.1.
Introduction ................................................................................................. 32
5.2.
Overriding statutes in the courts – a threat to security of landholding ....... 34
5.2.1.
South-Eastern Drainage Board (SA) v Savings Bank of South Australia
– in the event of inconsistency, the later statute prevails ................................... 34
5.2.2.
Miller v Minister for Mines .................................................................. 35
5.2.3.
Pratten v Warringah Shire Council ....................................................... 36
5.2.4.
Quach v Marrickville Council .............................................................. 38
5.2.5.
Hillpalm v Heaven’s Door .................................................................... 39
5.2.6.
Post-Hillpalm decisions ........................................................................ 42
5.2.7.
Conclusion ............................................................................................ 46
5.3.
Overriding statutes as a barrier to sustainability ......................................... 47
5.4.
The problem of overriding statutes and calls for reform ............................. 49
5.4.1.
Early calls for reform – 1950s .............................................................. 49
5.4.2.
1960s ..................................................................................................... 51
5.4.3.
1970s ..................................................................................................... 53
5.4.4.
1980s ..................................................................................................... 55
5.4.5.
1990s onward ........................................................................................ 56
5.5.
6.
Conclusion ................................................................................................... 62
Conclusion ......................................................................................................... 63
Chapter Three - Methodology and overview of case studies ................................. 64
1.
Introduction ....................................................................................................... 64
2.
Methodology...................................................................................................... 65
3.
2.1.
The purpose and objectives of adopting a comparative methodology ........ 66
2.2.
Jurisdictions to be compared ....................................................................... 67
2.2.1.
Queensland............................................................................................ 67
2.2.2.
Western Australia.................................................................................. 68
2.2.3.
New Zealand ......................................................................................... 69
2.3.
Prerequisites to using the comparative method ........................................... 70
2.4.
Rules for applying the comparative process ............................................... 71
2.5.
Carrying out the comparative process ......................................................... 73
2.6.
Conclusion ................................................................................................... 75
Guidelines for comparison................................................................................. 75
3.1.1.
Guidelines underpinning the Torrens framework of land registration.. 78
3.1.2.
Guidelines for a modern land administration system ........................... 79
3.1.2.1.
The concept of land ‘administration’ and the changing role of
property ............................................................................................................ 79
3.1.2.2.
3.1.3.
4.
Guidelines for assessing a land administration system ...................... 80
Guidelines for comparison in this thesis ............................................... 83
Conclusion ......................................................................................................... 85
Chapter Four .............................................................................................................. 87
Queensland Case Study ............................................................................................. 87
1.
Introduction ....................................................................................................... 87
2.
The Queensland approach – a case study .......................................................... 89
3.
2.1.
Overview of the Queensland approach ....................................................... 89
2.2.
Methodology ............................................................................................... 89
Review of legislation ......................................................................................... 92
3.1.
The Land Title Register............................................................................... 92
3.1.1.
Operation of the Land Title Register .................................................... 92
3.1.2.
Expansion of the Land Title Register – restrictions on use .................. 95
3.2.
Recording of Administrative Advices ......................................................... 98
3.2.1.
Acquisition of Land Act 1967............................................................. 102
3.2.2.
Coastal Protection and Management Act 1995 ................................... 103
3.2.3.
Environmental Protection Act 1994.................................................... 104
3.2.4.
Planning (Urban Encroachment – Milton Brewery) Act 2009 ........... 105
3.2.5.
Queensland Heritage Act 1992 ........................................................... 106
3.2.6.
Nature Conservation Act 1992............................................................ 106
3.2.7.
Recreation Areas Management Act 2006 ........................................... 107
3.2.8.
River Improvement Trust Act 1940 .................................................... 107
3.2.9.
State Development and Public Works Organisation Act 1971 ........... 108
3.2.10.
Sugar Industry Act 1999 ................................................................... 109
3.2.11.
Vegetation Management Act 1999 ................................................... 111
3.2.12.
Water Act 2000. ................................................................................ 112
3.2.13.
Wet Tropics and World Heritage Protection and Management Act
1993
........................................................................................................... 112
3.2.14.
Sustainable Planning Act 2009 ......................................................... 113
3.2.15.
3.3.
Conclusion ........................................................................................ 113
Other registers ........................................................................................... 115
3.3.1.
Aboriginal Cultural Heritage Act 2003 and Torres Strait Island Cultural
Heritage Act 2003 ............................................................................................ 116
3.3.2.
Water Act 2000 ................................................................................... 116
3.3.3.
Environmental Protection Act 1994.................................................... 117
3.3.4.
Queensland Heritage Act .................................................................... 119
3.3.5.
Petroleum Act and Petroleum and Gas (Production and Safety) Act
2004
............................................................................................................. 120
3.3.6.
Land Protection (Pest and Stock Route Management) Act 2002 ....... 120
3.3.7.
Soil Conservation Act 1986 ................................................................ 121
3.3.8.
Nature Conservation Act 1992............................................................ 123
3.3.9.
Sustainable Planning Act 2009 ........................................................... 123
3.3.10.
Building Act 1975 ............................................................................. 124
3.3.11.
Vegetation Management Act 1999 ................................................... 124
3.3.12.
Conclusion ........................................................................................ 126
3.4.
3.4.1.
Soil Survey Act 1929 .......................................................................... 127
3.4.2.
Wild Rivers Act 2005 ......................................................................... 127
3.4.3.
Conclusion .......................................................................................... 129
3.5.
4.
Restrictions which are not registered ........................................................ 127
Conclusion ................................................................................................. 129
How effective is the Queensland approach as a whole? .................................. 131
4.1.
Does the jurisdiction provide for integrated management of information
concerning obligations and restrictions on land title and use? ............................ 131
4.2.
Is the land title register utilised for the purpose of recording obligations and
restrictions on use? .............................................................................................. 134
4.3.
How easily can landholders or prospective purchasers ascertain what
obligations and restrictions on title and use apply in relation to a parcel of land?
137
4.4.
Who has responsibility for the accuracy of information concerning
obligations and restrictions on title and use? ...................................................... 139
4.5.
Is the accuracy of information concerning title and use guaranteed, and is
compensation available where information is incorrect? .................................... 140
5.
Conclusion ....................................................................................................... 142
Chapter Five - Western Australia Case Study ...................................................... 143
1.
2.
Introduction ..................................................................................................... 143
1.1.
Structure of chapter ................................................................................... 143
1.2.
Methodology ............................................................................................. 144
History of land title and use registration in Western Australia ....................... 144
2.1.
Land titles registration ............................................................................... 145
2.2.
Legislative reform ..................................................................................... 145
2.2.1.
Restrictions on use and enjoyment ..................................................... 145
2.2.2.
Expansion of certificates of title ......................................................... 147
2.3.
3.
2.3.1.
Standing Committee Inquiry - 2004 ................................................... 150
2.3.2.
Government response to the Standing Committee Inquiry ................. 152
2.3.3.
Conclusion .......................................................................................... 152
Review of the present system .......................................................................... 153
3.1.
The Land Title Register............................................................................. 153
3.1.1.
Instruments capable of registration ..................................................... 153
3.1.2.
Instruments capable of being recorded on title ................................... 154
3.1.3.
Administration of the Land Title Register .......................................... 155
3.1.4.
Future role of the Land Title Register................................................. 157
3.1.5.
Conclusion .......................................................................................... 159
3.2.
4.
Calls for further reform of the Western Australian system ....................... 150
The Shared Land Information Platform .................................................... 159
3.2.1.
Impetus for the Shared Land Information Platform ............................ 159
3.2.2.
The objectives and benefits of Shared Land Information Platform .... 160
3.2.3.
Development of the Shared Land Information Platform .................... 161
3.2.4.
Development of the Interest Enquiry function (Register of Interests) 162
3.2.5.
Operation of the Interest Enquiry service ........................................... 165
How effective is the Western Australian approach as a whole?...................... 169
4.1.
Does the jurisdiction provide for integrated management of information
concerning obligations and restrictions on land title and use? ............................ 169
4.2.
Is the land title register utilised for the purpose of recording obligations and
restrictions on use? .............................................................................................. 172
4.3.
How easily can landholders or prospective purchasers ascertain what
obligations and restrictions on title and use apply in relation to a parcel of land?
173
4.4.
Who has responsibility for the accuracy of information concerning
obligations and restrictions on title and use? ...................................................... 174
4.5.
Is the accuracy of information concerning title and use guaranteed, and is
compensation available where information is incorrect? .................................... 180
6.
Conclusion ....................................................................................................... 180
Chapter Six - New Zealand Case Study ................................................................. 182
1.
Introduction ..................................................................................................... 182
2.
Land registration in New Zealand ................................................................... 183
3.
2.1.
Historical development ............................................................................. 183
2.2.
Law reform ................................................................................................ 185
Natural resource management in New Zealand ............................................... 187
3.1.
National regulation - the Resource Management Act 1991....................... 188
3.1.1.
Introduction ......................................................................................... 188
3.1.2.
Objectives of the RMA ....................................................................... 190
3.1.3.
Operational provisions of the RMA .................................................... 193
3.1.3.1.
Land ................................................................................................. 197
3.1.3.2.
Coastal marine area .......................................................................... 198
3.1.3.3.
River and lake beds .......................................................................... 199
3.1.3.4.
Water ................................................................................................ 199
3.1.3.5.
Discharge of contaminants ............................................................... 200
3.1.3.6.
Noise ................................................................................................ 201
3.1.3.7.
Duty to mitigate adverse effects ...................................................... 202
3.1.4.
Role of the Registrar of Titles............................................................. 202
3.1.5.
Conclusion .......................................................................................... 204
3.2.
Regional policy statements and plans ....................................................... 204
3.2.1.
Overview of the Auckland Regional Council area ............................. 205
3.2.2.
Auckland Regional Council Policy Statement .................................... 205
3.2.3.
Auckland Regional Council Plans ...................................................... 207
3.3.
District/city plans ...................................................................................... 208
3.4.
Conclusion ................................................................................................. 215
4.
How effective is the New Zealand approach as a whole? ............................... 215
4.1.
Does the jurisdiction provide for integrated management of information
concerning obligations and restrictions on land title and use? ............................ 215
4.2.
Is the land title register utilised for the purpose of recording obligations and
restrictions on use? .............................................................................................. 216
4.3.
How easily can landholders or prospective purchasers ascertain what
obligations and restrictions on title and use apply in relation to a parcel of land?
218
4.4.
Who has responsibility for the accuracy of information concerning
obligations and restrictions on title and use? ...................................................... 221
4.5.
Is the accuracy of information concerning title and use guaranteed, and is
compensation available where information is incorrect? .................................... 221
5.
4.5.1.
Land Title Register ............................................................................. 221
4.5.2.
Restrictions under the RMA ............................................................... 222
4.5.3.
Compulsory acquisition ...................................................................... 223
4.5.4.
Land Information Memorandums ....................................................... 224
Conclusion ....................................................................................................... 228
Chapter Seven - Analysis and comparison of case studies ................................... 229
1.
Introduction ..................................................................................................... 229
2.
Comparison of case studies ............................................................................. 230
2.1.
Provision for integrated management of information concerning obligations
and restrictions on land title and use ................................................................... 230
2.2.
Use of the land title register for the purpose of recording obligations and
restrictions on use ................................................................................................ 234
2.3.
Ease with which landholders or prospective purchasers can ascertain what
obligations and restrictions on title and use apply in relation to a parcel of land241
2.4.
Responsibility for the accuracy of information concerning obligations and
restrictions on title and use .................................................................................. 244
2.5.
Guarantees as to the accuracy of information concerning title, and
availability of compensation where information is incorrect .............................. 248
3.
What features of the case study jurisdictions will contribute to effective
management of obligations and restrictions on land title and use? ........................ 250
4.
Conclusion ....................................................................................................... 254
Chapter Eight - Legal issues associated with integrated management of
obligations and restrictions on land title and use.................................................. 255
1.
Introduction ..................................................................................................... 255
2.
Indefeasibility and issues with placing obligations and restrictions on title ... 256
2.1.
Registration on title ................................................................................... 257
2.2.
Recording on title ...................................................................................... 261
2.2.1.
Information recorded on title for informational purposes................... 262
2.2.2.
Recording for priority ......................................................................... 264
2.2.3.
Recording as a precondition to effect ................................................. 266
2.2.4. Conclusion ............................................................................................. 269
3.
2.3.
Separate register or spatial database.......................................................... 269
2.4.
Conclusion ................................................................................................. 271
The state guarantee of title and compensation for loss .................................... 274
3.1.
Queensland ................................................................................................ 276
3.2.
Western Australia ...................................................................................... 280
3.3.
Constitutional considerations .................................................................... 284
3.4.
Conclusion ................................................................................................. 286
4.
Statutory liability for incorrect or omitted information ................................... 287
5.
Common law liability for incorrect and omitted information ......................... 289
5.1.
Negligent misrepresentation – L Shaddock & Associates Pty Ltd v Council
of the City of Parramatta .................................................................................... 289
6.
5.2.
Negligent misrepresentation post-Shaddock ............................................. 293
5.3.
The effect of disclaimers ........................................................................... 299
5.4.
Summary of negligent misrepresentation principles ................................. 303
5.5.
Conclusion ................................................................................................. 304
The effect of in rem versus in personam restrictions ...................................... 305
Chapter Nine - Conclusion ...................................................................................... 314
1.
Research findings ............................................................................................ 314
2.
Recommendations for reform .......................................................................... 315
3.
Importance of this research.............................................................................. 318
4.
Areas for further research ................................................................................ 318
Appendix A - Sample Queensland Title Search .................................................... 320
Appendix B - Sample Queensland Statutory Covenant ....................................... 323
Appendix C - Sample Queensland Property Search............................................. 327
Appendix D - Screen captures demonstrating Interest Enquiry ......................... 332
Appendix E - Sample Interest Enquiry Report ..................................................... 340
Appendix F - Sample Western Australian Title Search………………...………346
Appendix G - Sample Land Information Memorandum……………………….349
Appendix H - Administrative Advice Codes……………………………………..358
Bibliography……………………………………………………………………….361
1. Articles/books/reports/conference papers………………………………………..361
2. Cases………………………………………………………………………….…..369
3. Legislation………………………………………………………………….…….372
4. Other sources………………………………………………………………….….375
Abbreviations
ARC
Auckland Regional Council (NZ)
DCDB
Digital Cadastral Database
DERM
Department of Environment and Resource Management (Qld)
DME
Department of Mines and Energy (Qld)
DNRW
Department of Natural Resources and Water (Qld)
DOLA
Department of Land Administration (WA)
DPIF
Department of Primary Industries and Fisheries (Qld)
EPA
Environmental Protection Agency (Qld)
ESD
Ecologically Sustainable Development
FIG
International Federation of Surveyors
LIM
Land Information Memorandum
LINZ
Land Information New Zealand
LTA
Land Title Act 1994 (Qld)
RMA
Resource Management Act 1991 (NZ)
SLIP
Shared Land Information Platform
TLA
Transfer of Land Act 1893 (WA)
Statement of original authorship
The work contained in this thesis has not been previously submitted to meet
requirements for an award at this or any other higher education institution. To the best
of my knowledge and belief, the thesis contains no material previously published or
written by another person except where due reference is made.
Signature
Date
Acknowledgements
I would like to thank the QUT School of Law for its support during my candidature,
and the Institute for Sustainable Resources at QUT for providing me with a
scholarship.
I would like to thank the many people who provided me with feedback on my
research. I am especially thankful to my supervisors, Professors Sharon Christensen
and Douglas Fisher, for their insight, encouragement and guidance. Professor Rob
Fowler (University of South Australia) and Associate Professor Pamela O’Connor
(Monash University) also provided me with extremely useful suggestions at
confirmation and final seminar respectively. Thank-you also to two anonymous
examiners for their helpful feedback.
I am very grateful to the many people who assisted me with my case studies,
especially Max Locke (Queensland Registrar of Titles), Bruce Roberts (Western
Australian Registrar of Titles), Natasha Harris, Peter Ormond, and Kim Vagg
(Landgate, Western Australia), Paul Davies (Franklin District Council, New Zealand),
Warren Moyes (Land Information New Zealand) and Simone Fraser (Auckland
Regional Council). Your practical insights helped me enormously.
Finally, I would like to thank my family and friends, particularly my mother, Donna,
for their encouragement and understanding during my candidature.
This thesis reflects the law as of 5 April 2010.
Chapter One
Introduction
1.
Background to this research
Ecologically sustainable development (“ESD”) has provided the impetus for
significant international and national legal and policy developments in the past few
decades. ESD is defined as ‘development that meets the needs of the present without
compromising the ability of future generations to meet their own needs’.1 This
requires governments to ensure that resources are used in a sustainable way to ensure
that they are not depleted.
In Australia, the impacts of climate change, drought, loss of vegetation and fauna,
erosion, salinity and other environmental problems have made this goal impossible to
achieve in the absence of significant government intervention. To this end, ESD has
prompted a plethora of statutes, regulations and plans at the national, state and local
levels regulating the use of privately-owned land.2
These statutes, regulations and plans principally affect privately-owned land by
placing restrictions on the manner in which land may be used, or by imposing
obligations upon the landholder. These obligations and restrictions have been imposed
on a largely fragmented basis, and all Australian jurisdictions have in place separate
legislative regimes regulating the use of each natural resource.3 For example,
Queensland has approximately 30 environmental statutes which place restrictions on
or attach obligations to the use of land by occupiers.4 Furthermore, these fragmented
legislative regimes have generally not been supported by any cohesive management
1
2
3
4
The World Commission on Environment and Development, Our Common Future (Oxford
University Press, New York, 1987) 43.
This thesis will only be considering obligations and restrictions which affect privately-owned
land (as opposed to Crown land), as to conduct a broader examination is outside the scope of a
project of this scale.
One notable exception is South Australia. The Natural Resources Management Act 2004 (SA)
attempted to cut down the number of statutes regulating natural resources, and repealed the
Animal and Plant Control (Agricultural Protection and Other Purposes) Act 1986, the Soil
Conservation and Land Care Act 1989 and the Water Resources Act 1997. However, there are
still numerous other statutes that affect land in South Australia.
Discussed in detail in Chapter Four.
1
system. The administration of these obligations and restrictions has occurred on an
ad-hoc basis,5 and for the most part they are not managed in conjunction with one
another.
This thesis does not attempt to consider whether these restrictions and obligations are
warranted, as this is outside the scope of a research project of this scale. Rather, this
thesis accepts that these restrictions and obligations may well be necessary for
environmental protection. The objective of this thesis is to determine how information
concerning these restrictions and obligations, affecting title to and use of land, may be
most effectively managed in Australia.
The central research question in this thesis is as follows:
‘How can information concerning obligations and restrictions on land title and
use designed to facilitate sustainable development most effectively be managed
in the context of a Torrens system of land registration?’.
The fragmented management of obligations and restrictions has led to two separate
but interconnected problems:

First, incomplete information concerning obligations and restrictions is
causing uncertainty for landholders; and

Second, the lack of complete information is a barrier to compliance with
environmental laws.6
Security of landholding is one of the key drivers behind this research. Privatelyowned land in all Australian states is registered under a Torrens system of land
registration, and one of the principal objects of the Torrens system is to provide
landholders and prospective purchasers with a complete and accurate picture of
obligations and restrictions affecting their title.7 However most obligations and
5
6
7
Rohan Bennett, Jude Wallace and Ian Williamson, ‘Achieving sustainable development
objectives through better management of property rights, restrictions and responsibilities’ (paper
presented at the Expert Group Meeting on Incorporating Sustainable Development Objectives
into ICT enabled Land Administration Systems, Melbourne, 9-11 November 2005) 198.
See for example Ballina Shire Council v Simon Freeden and Lorraine Freeden [2006]
NSWLEC 192; Wall v Doyle & Anor [2008] QPEC 23, which both illustrate this problem.
See for example Theodore B F Ruoff, An Englishman looks at the Torrens System (Lawbook
Co, Sydney, 1957).
2
restrictions imposed by environmental legislation operate externally to the Torrens
system, and are not visible on a title search. As a result, the Torrens system is no
longer meeting its goal of providing a complete and accurate picture of title,8 which is
affecting security of landholding. A more effective management system which
provides a complete and accurate picture of obligations and restrictions will assist
with security of landholding.
Second, this uncoordinated approach to the management of land titles, and
information concerning obligations and restrictions on land use, has created a barrier
to compliance with environmental laws.9 It has been noted that ‘sustainable decisionmaking requires access to accurate information’.10 There are two different levels of
decision-makers this may apply to; government agencies, and landholders. Accurate
information will assist government decision-makers to determine the environmental
impacts of a proposal. Additionally, more accurate information will also assist
landholders with sustainable management of their property. For example, Bennett et
al noted that historically, tree-clearing laws have not always been followed, and a key
reason for this includes farmers lacking accurate information concerning the extent of
the restrictions imposed by these laws.11 Therefore, the provision of more accurate
information will assist both decision-makers and landholders. Specifically, more
accurate information will assist landholders in complying with environmental laws.
The focus of this thesis will be upon information made available to landholders.
This thesis aims to address these two problems. The outcome of this thesis will be a
series of recommendations for law reform in Australia. These recommendations may
be used to devise a new system for the management of information concerning
obligations and restrictions on land title and use, under which all such obligations and
8
9
10
11
See for example Brendan Edgeworth, ‘Planning law v property law: Overriding statutes and the
Torrens system after Hillpalm v Heaven's Door and Kogarah v Golden Paradise’ (2008) 25
Environmental and Planning Law Journal 82; Pamela O’Connor, ‘Double Indemnity – Title
Insurance and the Torrens System’(2003) 3(1) QUT Law and Justice Journal 141.
See for example Justine Bell and Sharon Christensen, ‘Use of property rights registers for
sustainability – a Queensland case study’ (2009) 17(1) Australian Property Law Journal 86.
Abbas Rajabifard and Andrew Binns, ‘SDI requirements of land administration’ (paper
presented at the Expert Group Meeting on Incorporating Sustainable Development Objectives
into ICT enabled Land Administration Systems, Melbourne, 9-11 November 2005) 181.
Bennett et al, above n 5, 209.
3
restrictions are managed in an integrated manner. It is anticipated that such a system
can provide the following benefits:

Integrated management of land titles and obligations on landholders and
restrictions on land use will likely provide greater certainty for landholders
and prospective purchasers, as they can more easily access information on
interests affecting their title and use; and

Integrated management is also likely to contribute to sustainable use of natural
resources, by ensuring that any obligations and restrictions on land title and
use designed to promote environmental protection are brought to the attention
of affected persons. Compliance is more likely to occur where landholders are
aware of any relevant obligations or restrictions.
Furthermore, technological advancements mean that a more integrated approach to
management of information is now feasible, and capable of implementation. Whilst
restrictions and obligations are currently managed under a number of different
legislative regimes, ‘new technology available for managing the spatial dimension can
easily combine these disparate datasets and make them understandable to the intended
audience’.12 Given the problems associated with fragmented management of
information, and the fact that there is technology available to alleviate these problems,
this research project is both timely and necessary.
The next section of this chapter will further demonstrate why this research is
necessary to supplement existing literature.
2.
Why this research is necessary
To date, there has been limited research conducted from a legal perspective
considering how information pertaining to obligations and restrictions on land title
and use can be managed in Australia. The majority of existing research has been
conducted from a surveying perspective, and has not taken into account the legal
issues associated with implementing a new information system. Furthermore, most of
the research has not considered the issues associated with managing land titles
12
Rohan Bennett, Jude Wallace and Ian Williamson, ‘Organising land information for sustainable
land administration’ (2008) 25 Land Use Policy 126.
4
registration and management of obligations and restrictions on land use in an
integrated manner. This section will briefly review the existing literature, and
demonstrate why this research is necessary to supplement it.
In 2002, the Queensland Government commissioned a surveying firm to conduct
research identifying the ‘subsystems of land administration and their properties’.13
The central issue of the report was summarised as follows:
should land administration be restrained to its traditional context or should it be seen as
much more embracing (with a name change if necessary) and include all rights,
obligations, controls, restrictions (property rights) relating to land, and for land to be
treated more holistically?14
This report acknowledged the problem of fragmented environmental management,
noting that there are over 188 Queensland Acts, and 19 Federal Acts which impact on
property rights.15 The authors noted that a fragmented approach is problematic for the
following reason:
the number of rights, obligations and restrictions (property rights) attached to land will
continue to grow to meet ever-changing planning and environmental issues and will
impact on development and the land supply chain. To meet the standards for future
sustainability it will be essential that such property rights are clear, searchable, and
definable in location.16
The report concluded that it is necessary to refocus land administration to take a more
holistic view. Several reasons were listed to support this conclusion:

integrated land management and improvements in sustainability are likely to
be much more difficult to attain without integrated management and
information;

a lack of integrated management and administration is likely to adversely
affect the security of rights, their value and tradability; and

13
14
15
16
17
any non-integrated approach will very likely be less effective and efficient.17
Ken Lyons, Ed Cottrell and Kevin Davies, ‘Report on the Efficiency of Property Rights
Administration in Queensland (2002) 14.
Ibid 44.
Ibid 5.
Ibid 21.
Ibid 44.
5
The outcome of the report was that this particular area could benefit from reform.18
However, it did not make any suggestions as to how holistic land administration could
occur. Furthermore it did not consider the role of the land title register, and the legal
issues associated with its use.
More recently, research concerning the management of obligations and restrictions on
use has been undertaken in Melbourne. The Department of Geomatics at the
University of Melbourne has established a research centre considering the link
between spatial data infrastructures and land administration. This project focuses on
spatial science, and considers whether such technology can be used to provide
detailed information on rights, restrictions, and responsibilities concerning land.19
Specifically, the Centre has examined how to classify property rights, obligations and
restrictions within an information framework.20 Their research has not considered in
detail how obligations and restrictions can be managed in conjunction with land titles,
and associated legal issues, such as liability for incorrect information. This PhD thesis
will supplement existing research being carried out by providing a detailed review of
these legal issues, and recommendations which take these issues into account.
The only legal research to date has been undertaken by researchers from the
Queensland University of Technology and Monash University. In a forthcoming
article, the researchers set down some guidelines intended to be used by legislation
drafters to ensure consistency in approaches to providing information.21 These
guidelines will be used in Chapter Eight to assist with formulating recommendations
for reform. This PhD research builds upon these guidelines by assessing in detail how
restrictions and obligations can most effectively be managed.
18
19
20
21
Ibid 12.
The Centre for Spatial Data Infrastructures and Land Administration, Land Administration and
Cadastre
(2006)
Department
of
Geomatics,
University
of
Melbourne
<
http://www.geom.unimelb.edu.au/research/SDI_research/research/topiclandadmin.htm > at 4
February 2008.
See for example Rohan Bennett, Jude Wallace and Ian Williamson, ‘Organising land
information for sustainable land administration’ (2008) 25(1) Journal of Land Use Policy 126.
Pamela O’Connor, Sharon Christensen and Bill Duncan, ‘Legislating for sustainability: a
framework for managing statutory rights, obligations and restrictions affecting private land’
(2009) 34(2) Monash Law Review (forthcoming).
6
There has been no other Australian research to date considering how information on
obligations and restrictions on land title and use can be most effectively managed.
Therefore, there is a significant gap in the literature which this research aims to fill. It
will consider how obligations and restrictions on title and use can be most effectively
managed in the context of a Torrens framework of land registration, and will make
recommendations for reform. It will also consider any potential legal issues associated
with the use of the land title register in detail.
3.
Methodology
The methodology to be used in this thesis is a comparative methodology. This thesis
will consider three case studies, Queensland, Western Australia, and New Zealand.
These three jurisdictions have been chosen because they have each adopted different
approaches to the management of restrictions on land title and use. The applicability
of the comparative methodology to this thesis will be discussed in detail in Chapter
Three.
4.
Terminology
To ensure clarity, it is necessary to briefly discuss terminology used in this thesis.
4.1.
‘Register’ and ‘record’
The terms ‘register’ or ‘registered’ are used to describe instruments which, once
registered on title, receive the benefits of registration. In contrast, the terms ‘notified’
or ‘recorded’ refer to instruments which are placed on land title, but do not attract the
benefits of registration.22 The importance of this distinction will become apparent in
later chapters.
4.2.
‘Rights’, ‘Obligations’ and ‘Restrictions’
The surveying literature discussed above refers to ‘rights, obligations and
restrictions’.23 This term has been defined as ‘a generic term used to describe all
22
23
Recordings may be made purely for informational purposes, or they may confer priority. This
will be discussed in Chapter Eight.
See for example Lyons et al, above n 13; Bennett et al, above n 5 (although Bennett et al use the
term ‘responsibilities’ instead of ‘obligations’).
7
formal and informal interests that exist between people and land and are supported by
the jurisdiction’s people’.24
The traditional role of land management systems was to administer ‘rights’.25 For
example, the Torrens register was developed as a repository of ownership rights over
land. The term ‘right’ will be used in this thesis to refer to ownership of land. It will
also be used in the context of third party rights granted over land; for example, where
a third party is granted a carbon right over land. Such a right does result in a
corresponding restriction upon the owner of the land though, therefore, these rights
will be adequately covered by use of the term ‘restriction’.
In contrast to rights, ‘obligations’ and ‘restrictions’ refer to things which either
require a landholder to undertake certain action (obligations which are positive in
nature), or prevent a landholder from undertaking certain actions (restrictions which
are negative in nature).
For clarity, this thesis will use the term ‘obligation’ to refer to requirements to take
positive action relating to land, as distinguished from ‘restrictions’, which refer to
negative prohibitions on actions relating to land.
It has been observed in this thesis that obligations generally take the form of orders or
private agreements which affect individual parcels of land. Conversely, the majority
of restrictions are statutory creations which affect multiple parcels of land.26 The
importance of this distinction will be discussed in detail later in this thesis.
4.3.
Restrictions on ‘title’ and ‘use’
This thesis will also refer to restrictions affecting either ‘title’ or ‘use’. It is important
to note that this distinction does not depend upon whether obligations or restrictions
are registered on title or not. This is because many jurisdictions have recently
expanded the scope of the land title register, and created new obligations and
24
25
26
Rohan Bennett, Property rights, restrictions and responsibilities: their nature, design and
management (PhD thesis, University of Melbourne, 2007) 7.
Ibid 6.
These restrictions have been referred to as ‘blanket restrictions’: Bennett et al, above n 5, 207.
8
restrictions capable of registration.27 Many of these registrable obligations and
restrictions regulate the use of land, without detracting from the right to possess land.
Conversely, there are many obligations and restrictions which are not capable of
registration which place limits upon what a landholder may do with their land. Thus
this distinction is not useful.
For the purposes of this thesis, restrictions on ‘title’ are those things that significantly
affect the owner’s right to their land. This includes traditional restrictions such as
leases and mortgages. It also includes compulsory acquisition of land statutes. It
would also extend to include modern statutes that take away part of an owner’s right
over their land (eg. Carbon capture and storage legislation which removes a right to
vegetation on the land). The essence of a restriction on title is something which
removes the owner’s right to possess all or part of the land.
In contrast, obligations and restrictions on ‘use’ do not affect the owner’s right to
possess the land, but merely affect the manner in which they may use it. This
includes, for example, planning controls and legislation regulating land clearing.28
4.4.
‘Overriding statutes’ and ‘overriding interests’
These terms will be discussed in detail in Chapter Two. They refer to legislation, or
instruments created by legislation, which affect land without any requirement for
registration. Thus they ‘override’ title.
5.
Chapter Outlines
The Chapters in this thesis can be divided into three stages:

Stage One – Introductory Chapters (Chapters One, Two and Three);

Stage Two – Case Studies (Chapters Four, Five and Six); and

Stage Three – Analysis and Recommendations (Chapters Seven, Eight and
Nine).
This section will briefly outline the content of each of these Chapters.
27
28
For example, statutory covenants in Queensland. These instruments will be discussed in detail in
Chapter Two.
For example Sustainable Planning Act 2009 (Qld); Native Vegetation Act 2003 (NSW).
9
Stage One
Chapter One - Introduction
This Chapter has outlined the aims, objectives and relevance of this thesis.
Chapter Two – Literature review
The purpose of this Chapter is to demonstrate in greater detail why this study is
warranted. It will provide a detailed review of the literature relating to the Torrens
system, overriding statutes, and calls for reform of the system.
Chapter Three – Methodology and Overview of Case Studies
Chapter Three will describe the comparative methodology in more detail. It will also
briefly introduce the jurisdictions to be surveyed in this study, and describe why they
have been chosen. Chapter Three also establishes a set of guidelines for comparison
which are used in this thesis to compare the methods used by each jurisdiction to
manage obligations and restrictions on land title and use.
Stage Two
Chapter Four – Queensland case study
Queensland has been chosen as the first case study as it exemplifies the fragmented
approach to management of obligations and restrictions on land title and use found in
most Australian jurisdictions. Chapter Four provides a detailed analysis of the
management regime in Queensland, and assesses it according to the guidelines for
comparison set out in Chapter Three.
Chapter Five – Western Australian case study
Western Australia has been chosen as a case study as has made significant progress
towards integrating management of obligations and restrictions on land title and use.
Chapter Five provides a detailed analysis of the management regime in Western
Australia, and assesses it according to the guidelines for comparison set out in
Chapter Three.
10
Chapter Six – New Zealand case study
New Zealand has been chosen as a case study as it is well regarded internationally for
its integrated approach to management of natural resources. Chapter Six provides a
detailed analysis of the management regime in New Zealand, and assesses it
according to the guidelines for comparison set out in Chapter Three.
Stage Three
Chapter Seven – Comparison of case study jurisdictions and recommendations for
reform
Chapter Seven will analyse and compare the results of the case studies according to
the guidelines for comparison developed in Chapter Three. The purpose of this
analysis is to identify the features used in these jurisdictions which can contribute to
effective management of obligations and restrictions on land title and use. The
outcomes of this analysis will be translated into preliminary suggestions for reform.
Chapter Eight – Potential problems with the suggestions for reform
This Chapter builds upon Chapter Seven, by anticipating and addressing the potential
problems with, and barriers to, the recommendations posed in Chapter Seven. This
Chapter will include analysis of the following issues:

Whether obligations and restrictions should be registered on title, recorded on
title, or recorded elsewhere;

Whether the recommendations could lead to increased liability for
compensation;

Whether the recommendations could lead to increased liability under statute,
or under the common law of negligent misrepresentation, as well as the role of
disclaimers; and

How obligations and restrictions designed to operate in rem29 should be
treated differently to those designed to operate in personam.30
29
30
Against the thing: Butterworths Concise Australian Legal Dictionary (2nd ed, 1998). Obligations
and restrictions in rem consequently attach to the land and are transferred with the land
Attaching to the person: Butterworths Concise Australian Legal Dictionary (2nd ed, 1998).
Obligations and restrictions in personam attach solely to the current owner, and are not
transferred with the land.
11
This Chapter will then make detailed final suggestions for reform, taking these issues
into account. This Chapter will also propose some suggested legislative amendments
to give effect to these recommendations.
Chapter Nine - Conclusion
Chapter Nine provides a conclusion to this thesis, addressing the following matters:
6.

Research findings;

Recommendations for reform;

Importance of this research; and

Areas for further research.
Conclusion
This chapter has provided an introduction to this thesis. Chapter Two will discuss in
detail how the Torrens system has been affected by fragmented information
management to further demonstrate why this research is warranted.
12
Chapter Two
Problems for the Torrens system as a result of fragmented
information management
1.
Introduction
As outlined in Chapter One, the objective of this thesis is to examine how information
concerning obligations and restrictions on land title and use designed to promote
environmental sustainability can be most effectively managed within a Torrens
framework of land registration. The purpose of this Chapter is to further review the
relevant literature to demonstrate why this examination is warranted.
The Torrens system was developed as a means of protecting private interests in land.
To give effect to this, early Torrens legislation only contemplated the registration of a
limited range of restrictions and obligations on title. When ESD became a pressing
concern for governments, environmental protection statutes were enacted with little
regard to how they could operate in conjunction with the Torrens system.
Consequently, the majority of obligations and restrictions created under legislation to
promote sustainability operate outside of the Torrens system. This Chapter will
illustrate how this approach to management has proven problematic.
This chapter can be divided into two parts. The first part will discuss the theoretical
basis of the Torrens system. It will begin by outlining the historical development of
the Torrens system, and discussing how it was implemented to combat uncertainty
which resulted from the deeds registration system. It will then discuss the key
principles underpinning the Torrens system, namely indefeasibility and completeness.
Finally, it will outline the range of interests capable of registration on title.
The second part of this chapter will focus upon how the integrity of the Torrens
system is under threat due to overriding statutes, which place obligations and
restrictions upon land use. It will also address how these overriding statutes have
created a barrier to compliance with environmental laws. This discussion will initially
centre upon the relevant case law, and show how the courts have dealt with the issue
13
of overriding statutes. Following a discussion of the case law, literature relating to
overriding statutes and calls for reform will be examined.
2.
Historical development of the Torrens system of land registration
All Australian states have a Torrens system of land registration. The Torrens system
was first introduced in South Australia in 1858,1 following the passing of a private
member’s bill introduced by Sir Robert Torrens.2 The Torrens system was adopted in
Queensland in 1861,3 and spread to all other Australian states by 1874.4 It has also
been adopted in New Zealand.5
The Torrens system of land registration was developed to provide a simple, easily
accessible, and accurate source of land information. Prior to the development of the
Torrens system, land in Australia was registered pursuant to a deeds conveyancing
system. This system failed to provide a single, comprehensive source of land
information, and it was necessary for a person to undertake a number of onerous
searches and queries in order to ascertain what interests affected a parcel of land. A
purchaser was required to search back through the ‘chain of title’ and examine all
previous deeds relating to the land.6 The accuracy of this ‘chain of title’ was
dependent upon the care and skill of the practitioner/s who had drafted the
documents.7 Ultimately, the use of the deeds conveyancing system proved to be timeconsuming, expensive, and had the potential to generate uncertainty.
Uncertainty could result through the dependence upon past dealings. Security of title
was affected by ‘the need to deduce title through a chain of documents “no stronger
than its weakest link…each transaction adding a fresh link increasing the perplexity
1
2
3
4
5
6
7
Introduced by the Real Property Act 1858 (SA), and amended by the Real Property Act 1861
(SA).
Douglas Whalan, 'The origins of the Torrens system and its introduction into New Zealand' in G
W Hinde (ed), The New Zealand Torrens System Centennial Essays (Butterworths, Wellington,
1971) 1, 3-5.
Real Property Act 1861 (Qld).
Real Property Act 1862 (NSW); Real Property Act 1862 (Tas); Real Property Act 1862 (Vic);
Transfer of Land Act 1874 (WA).
Land Transfer Act 1952 (NZ).
Douglas Whalan, The Torrens System in Australia (Lawbook Co, Sydney, 1982) 13.
E A Francis, The Law and Practice Relating to Torrens Title in Australasia: Vol 1
(Butterworths, Sydney,1972) 3.
14
and the risk of loss”. A purchaser depended upon the skill and vigilance of his
solicitor in ensuring that there were no missing or weak links in his title’.8
The deeds conveyancing system evolved over time to a point where many
jurisdictions provided for a system of registration. However, ‘the efficacy of the
transfer depended upon the validity of the conveyance itself and registration did not
affect this efficacy’.9 Accordingly, the system of registration merely provided a
record, and it ‘added nothing to the security of the title and did nothing to cure
inherent defects in the deeds in the chain of title’.10
Sir Robert Torrens was dissatisfied with the complexities of the deeds conveyancing
system, expressing his discontent as follows:
unfortunately the first settlers brought out with them the English law and practice of
conveyancing, with all its fictions, complications and circuities, devised of old for
evading the tyrannical exactions imposed under feudal tenancies. This law and practice,
applied to the clear titles and free tenures by Crown grant which obtained in the colony,
induced upon them in the short space of 20 years the same involvements, uncertainties
and expense which burden titles in the mother country.11
According to Whalan, ‘Torrens believed that the defects all had a common source –
the “dependent nature of titles” – and he aimed to set up a system under which each
registration would have the effect of making the new holder a fresh grantee holding
directly from the Crown; that is, he wished to set up titles which were independent of
the previous dealings with the land’.12 Furthermore, Torrens sought ‘to give the
landholder a simple and easily understandable registered title, and to secure
indefeasibility of title to those to whom the new statutory title should be so given’.13
8
9
10
11
12
13
Whalan, above n 2, 15, citing R R Torrens, The South Australian System of Conveyancing by
Registration of Title (1859) 26.
Whalan, above n 6, 13.
Ibid 13.
R R Torrens, A handy book on the Real Property Act of S.A. cited in Francis, above n 7, 4.
Whalan, above n 6, 14-5.
Donald Kerr, The Principles of the Australian Land Titles (Torrens) System: being a treatise on
the Real Property Acts of New South Wales, Queensland, South Australia and Tasmania; the
Transfer of Land Acts of Victoria and Western Australia ; and the Land Transfer Act of New
Zealand (Lawbook Co, Sydney, 1927) 7.
15
Under the Torrens system a separate folio is created in the land register for every
parcel of land. This folio contains details of the registered proprietor, as well as any
registered encumbrances on land.14 Under this system a prospective purchaser can
theoretically obtain all relevant information about a parcel of land by undertaking one
title search.
This concept of having a single source of authoritative information has been
recognised as the key feature of the Torrens system. The objective of the Torrens
system was stated succinctly by Lord Watson of the Privy Council in Gibbs v Messer:
to save persons dealing with registered proprietors from the trouble and expense of
going behind the register, in order to investigate the history of their author's title, and to
satisfy themselves of its validity.15
In short, the Torrens system was intended to replace a complex system, through which
uncertainty could result, with a single register containing all information necessary to
facilitate transfer of property.
3.
Principles underpinning the Torrens system of land registration
To achieve Sir Robert Torrens’ goals of simplicity and certainty, the Torrens system
is underpinned by several key principles: indefeasibility, completeness and security.
These principles will be discussed in turn below.
3.1.
Indefeasibility
The principle of indefeasibility has been recognised as the key feature of the Torrens
system. In Bahr v Nicolay (No 2), Mason CJ and Dawson J described indefeasibility
as ‘the foundation of the Torrens system of title’.16 In Frazer v Walker, Lord
Wilberforce made the following observation about the concept of indefeasibility:
indefeasibility of title…is a convenient description of the immunity from attack by
adverse claim to the land or interest in respect of which he is registered, which a
registered proprietor enjoys. The conception is central to the system of registration.17
14
15
16
17
Carmel McDonald et al, Real Property Law in Queensland (Lawbook Co, Pyrmont, 2nd ed,
2005) 277-8.
Gibbs v Messer [1891] AC 248, 254 per Lord Watson.
Bahr v Nicolay (No 2) (1988) 164 CLR 604, 613.
Frazer v Walker [1967] AC 569, 580.
16
Indefeasibility is recognised in all Australian jurisdictions. Although there are some
variations amongst states in terms of terminology, all states have a provision referred
to as the ‘paramountcy’ section.18 In Queensland, the paramountcy section is s 184(1)
of the Land Title Act 1994 (Qld), which states that ‘a registered proprietor of an
interest in a lot holds the interest subject to registered interests affecting the lot but
free from all other interests’.19
The purpose of indefeasibility is to protect title from defeat by any competing interest,
unless the competing interest is one registered over that title. Whalan describes
indefeasibility as ‘a shield which will ward off most attacks on a title, but which will
be pierced, with fatal results to the title it guards, by the sword of a later “indefeasible
title”’.20
As such, it is intended that the Torrens register will provide a complete and accurate
picture of title. This is because, theoretically, the holder of an indefeasible title is only
affected by subsequent registered interests.
3.2.
Completeness
The concept of completeness or conclusiveness has been discussed by a number of
commentators. In the 1950s, Theodore Ruoff, the Assistant Land Registrar in London
at the time, conducted a review of the Torrens system. He concluded that the Torrens
system is based upon three principles, known as:
 the mirror principle;
 the curtain principle; and
 the insurance principle.21
18
19
20
21
Pamela O'Connor, 'Public rights and overriding statutes as exceptions to indefeasibility of title'
(1994) 19 Melbourne University Law Review 649, 650.
The equivalent provisions in other Australian jurisdictions and in New Zealand are: Real
Property Act 1900 (NSW) s 42; Transfer of Land Act 1958 (Vic) s 42; Real Property Act 1886
(SA) s 69; Transfer of Land Act 1893 (WA) s 68; Land Titles Act 1980 (Tas) s 40; Land Title
Act 2000 (NT) s 188; Land Transfer Act 1952 (NZ) s 62.
Whalan, above n 6, 297.
Theodore B F Ruoff, An Englishman looks at the Torrens System (Lawbook Co, Sydney, 1957)
8.
17
The mirror and curtain principles ensure that the land title register will provide a
conclusive picture of title. The mirror principle ‘involves the proposition that the
register of title is a mirror which reflects accurately and completely and beyond all
argument the current facts that are material to a man’s title’.22 As such, ‘a title is free
from all adverse burdens, rights and qualifications unless they are mentioned on the
register’.23 Ruoff commented that ‘by virtue of the mirror principle it is intended that
the owner’s paper title should be absolute and indefeasible’.24
This is complemented by the curtain principle, which ‘provides that the register is the
sole source of information for proposing purchasers, who need not and, indeed, must
not concern themselves with trusts and equities which lie behind the curtain’.25
The insurance principle provides that compensation will be provided where the
register is not conclusive, and causes loss. It gives effect to the reality that, whilst the
register is supposed to give an accurate reflection of title, flaws may arise through
human error, and ‘anyone who thereby suffers loss must be put in the same position,
so far as money can do it, as if the reflection were a true one’.26
All three of these principles can be related back to the central feature of
conclusiveness. By conceiving the land title register as a ‘mirror’, Ruoff is essentially
stating that the register will portray an accurate and complete picture of the interest in
land. The curtain principle also supports this proposition, by proposing that the
register is the key source of information concerning land. This suggests that
purchasers need not make further queries regarding interests affecting the land, as the
register provides a complete picture. Furthermore, whilst the insurance principle
recognises that the register is not infallible, it provides that compensation must be
paid where loss is suffered due to the failure of the register to accurately reflect title.27
22
23
24
25
26
27
Ibid 8.
Ibid 8.
Theodore B F Ruoff, 'An Englishman looks at the Torrens System, Part One: The Mirror
Principle' (1952) 26(2) Australian Law Journal 118, 118.
Ruoff, above n 21, 11.
Ibid 13.
This applies generally only where it is the registry staff at fault. It will not apply where there has
been failure to lodge documents for registration.
18
Hinde also examined the principles underpinning the Torrens system, and reached
similar conclusions to Ruoff. Hinde stated that there are three fundamental principles
underpinning the Torrens system, which are that:
 it should not be necessary to investigate the history of a registered proprietor’s
title;
 everything which can be registered should give an indefeasible title, except
where registered by fraud; and
 an interest in land which is registered under the system should either be
secure, or otherwise compensation for that interest should be available.28
Hinde stressed the importance of the register providing a conclusive picture of the
landholder’s title, and summarised the purpose of the Torrens system as follows:
the Torrens system was designed to confer three great benefits on landholders and
conveyancers – first, a complete and reliable register which would show on its face all
the facts relevant to the registered proprietor’s title; secondly protection against the loss
which, under the general law, could result from defects in a vendor’s or mortgagor’s
title; and thirdly a State guarantee of the truth of the facts shown on the register.29
With regard to the completeness aspect, Hinde remarked that it is desirable that
persons dealing with land should be able to discover all the facts regarding title,
including the name of the registered proprietor, the nature of the estate and the
encumbrances which affect the land.30 Furthermore, he stated that it is necessary ‘to
ensure that a person dealing with land which is subject to the system is not adversely
affected by any infirmities in his vendor’s title which do not appear on the register,
thus saving the difficulty and expense of going behind the register to investigate the
title’.31
To achieve these goals, Hinde added that the Torrens system is supported by a State
guarantee that the register is true and complete. If it is not complete, compensation is
28
29
30
31
G W Hinde, 'Indefeasibility of title since Frazer v Walker' in G W Hinde (ed), The New Zealand
Torrens System: Centennial Essays (Butterworths, Wellington, 1971) 33, 35-6.
G W Hinde, 'The future of the Torrens system in New Zealand' in J Northey (ed), The A.G.
Davis essays in law : a tribute to Professor A.G. Davis (Butterworths, London, 1965) 77, 128.
Ibid 78.
Ibid.
19
payable to any person who suffers loss because of the register not disclosing all the
facts relevant to the title’.32
The feature common to both Ruoff’s and Hinde’s analysis of the Torrens system is
that of completeness. Both authors stress that the purpose of the Torrens register
should be to provide a complete and accurate picture of all interests affecting land.
It is relevant to note several things about both Ruoff’s and Hinde’s analysis. First, the
register has never provided a complete picture of interests affecting land, as there
have always been equitable interests which were not required to be registered on title.
That said, when the Torrens system was designed, there were certainly far less
unregistered interests than there are today. Additionally, both commentators wrote
about the Torrens system at a point in time where environmental issues had not
become prominent, and there were few obligations and restrictions on the use of or
title to freehold land.33 Thus while it may have been true in 1858 that the Torrens
system provided an essentially complete picture of title, this is not true today. This
thesis will highlight how this objective of completeness is no longer being met.
3.3.
Security
Another principle underpinning the Torrens system is security of title.
In 1913, Sir Charles Fortescue-Brickdale identified six features of an ideal system of
land transfer. These features were discussed in a series of lectures given at the London
School of Economics, relating to methods of land transfer. The features identified are:
1. Security;
2. Simplicity;
3. Accuracy;
4. Cheapness;
32
33
Ibid.
The majority of restrictions on freehold title were imposed in the initial grant through
reservations. The use of land was usually controlled by the government through the grant of
leasehold subject to conditions. For more detail refer to Sharon Christensen, Pam O’Connor,
Bill Duncan, Ross Ashcroft, ‘Early Land Grants and Reservations: Any Lessons from the
Queensland Experience for the Sustainability Challenge to Land Ownership’ (2008) 15 James
Cook University Law Review 42, and Enid Campbell, ‘Conditional land grants by the Crown’
(2006) 21(5) University of Tasmania Law Review 44.
20
5. Expedition; and
6. Suitability to its circumstances.34
Sir Fortescue-Brickdale discussed the first feature in detail, and stated that security
refers to several things:
 Security of the purchaser, who needs to have no fear of competing claims over
land;
 Security of mortgagors;
 Security of people who have interests in land of which they are not in
possession, such as part-owners; and
 Security of persons who have rights interfering with ownership, including
rights of way, rights to draw water, rights to prevent the owner from building
on the land, etc.35
Security in this sense is an abstract concept, referring to security of intangible rights.
Sir Fortescue-Brickdale asserted that this feature of security is the ‘foremost necessity
in a good method of land transfer’, but remarked that it is difficult to provide for all
competing claims over land.36 He remarked that security can be achieved in one of
two ways; either by tracing back through all documents affecting the land, or through
government provision of a register containing details of ownership and burdens
affecting it.37
Sir Fortescue also used security in a different sense, referring to physical security of
title. He noted that ‘an important feature in a perfect land transfer system will be the
preservation of those proofs (of title) from accidental loss or injury in a safe place
ready of access to all interested, and also some effective method of preventing their
being purposely tampered with either by forgery, alteration, mutilation, or
suppression’.38
34
35
36
37
38
Charles Fortescue-Brickdale, Methods of Land Transfer: Being eight lectures delivered at the
London School of Economics in the months of May and June 1913 (1914) 2.
Ibid 2-4.
Ibid 4.
Ibid 6.
Ibid 6.
21
It is clear that security in this sense is a key part of the Torrens system, as the Torrens
system aims to provide security to persons dealing with the register, both in an
abstract and physical sense.
3.4.
Conclusion
From this review of literature, it is evident that there are a number of key principles
underpinning the Torrens system. Indefeasibility is the central feature of the Torrens
system, providing that title can only be affected by registered interests. Ruoff and Sir
Fortescue-Brickdale also place emphasis upon completeness and security of the
register.
This thesis will show that these features are not present in the modern system for
management of obligations and restrictions on land title and use. Whilst all Australian
jurisdictions still use a Torrens register to record ownership, as well as a limited range
of registered obligations and restrictions on use, there are many other statutory
obligations and restrictions on use that operate externally to the land title register.
The following section will discuss the range of interests which are capable of
registration on the land title register, with particular attention given to more recent
statutory creations, such as covenants and carbon rights.
4.
Interests capable of registration in Australian jurisdictions
Because the Torrens system is underpinned by the abovementioned principles of
indefeasibility, completeness and security, theoretically title can only be affected by
registered interests. However there are numerous obligations and restrictions which
can affect land title and use, and only a small proportion of these are capable of
registration on title, although a number of restrictions may be able to be recorded on
title without the benefits of registration.39
Every jurisdiction using the Torrens system has a range of interests capable of
registration on the land title register, all of which are granted the benefits of
indefeasibility. Leases and mortgages are capable of registration in all Australian
39
For example, nature refuges under the Nature Conservation Act 1992 (Qld). This will be
discussed in greater detail in Chapter Four.
22
jurisdictions. Some jurisdictions have also more recently provided for registrable
covenants, easements, profits á prendre and carbon rights, although entitlements to
registration differ across the states.
To register an obligation or restriction on the land title register, it must take the form
of one of these registrable instruments. Whilst many obligations and restrictions on
land title and use are imposed by statute without any requirement for registration,
there have been some recent moves to extend the scope of registrable instruments to
accommodate environmental obligations and restrictions. As one commentator noted:
an examination of modern environmental planning and resource management
legislation shows the extent to which the exercise of individual private property rights
have become increasingly abridged in the public interest. However, private property
principles are also being increasingly applied in imaginative ways to protect elements
of the environment and to help achieve environmental goals. The use of mechanisms
such as easements, restrictive covenants, leases and licences can assist in the protection
of environmental values without interfering with property ownership.40
Each of these registrable interests will be discussed in turn.
4.1.
Leases
In Queensland, a lot or a part of a lot may be leased by registering an instrument of
lease.41 Similar provisions exist in all Australian jurisdictions and New Zealand,42
although there are some differences in terms of the length of leases which are required
to be registered.
A lease is clearly a significant restriction on land title, as it removes the landholder’s
right to occupy the land completely.
40
41
42
David Grinlinton, ‘Property Rights and the Environment’ (1996) 4 Australian Property Law
Journal 41, 62.
Land Title Act 1994 (Qld) s 64.
Real Property Act 1900 (NSW) s 53(1); Transfer of Land Act 1958 (Vic) s 66(1); Real Property
Act 1886 (SA) s 116; Land Titles Act 1980 (Tas) s 64(1); Transfer of Land Act 1893 (WA) s 91;
Land Titles Act 1925 (ACT) s 82(1); Land Title Act 2000 (NT) s 65; Land Transfer Act 1952
(NZ) Part 7.
23
4.2.
Mortgages
A mortgage may be registered over freehold land in all Australian jurisdictions and in
New Zealand.43 For example, the Queensland legislation states that ‘a lot or an
interest in a lot may be mortgaged by registering an instrument of mortgage for the lot
or interest’.44
To be registered, a mortgage must be validly executed, and contain details of the lot,
the debt, and the interest which is mortgaged.45 A mortgage operates as a charge over
land. Under the Torrens system, the mortgagor remains the registered proprietor of the
land, but holds the land subject to the rights of the mortgagee.46 A mortgage is a
significant restriction on title to land, as default will entitle the mortgagor to sell the
property. This therefore interferes with rights of occupation and use.
4.3.
Easements
An easement is a common law creation, which has been described as ‘a right enjoyed
by the owner of one parcel of land to carry out some limited activity (short of taking
possession) on a parcel of land owned by another person’.47 Thus an easement does
not restrict title to the same degree as leases and mortgages, as there is no absolute
right given to the grantee to possess the land.
Although easements were developed through the common law, in Australia easements
are given effect by statute. Easements are capable of registration or recording in all
jurisdictions and in New Zealand,48 except in Western Australia where an easement
may only be notified on a subdivision plan.49 The Queensland Torrens legislation
43
44
45
46
47
48
49
Land Title Act 1994 (Qld) 72; Land Titles Act 1925 (ACT) s 92(1); Real Property Act 1900
(NSW) s 56(1); Land Title Act 2000 (NT) s 74; Real Property Act 1886 (SA) s 128; Land Titles
Act 1980 (Tas) s 72(a); Transfer of Land Act 1958 (Vic) s 74(1); Transfer of Land Act 1893
(WA) s 105(1); Land Transfer Act 1952 (NZ) s 101.
Land Title Act 1994 (Qld) s 72(1).
Land Title Act 1994 (Qld) s 73(1).
Land Title Act 1994 (Qld) s 74.
Peter Butt, Land Law (Lawbook Co, Sydney, 5th ed, 2006) 419.
Land Title Act 1994 (Qld) Part 6 Division 4; Land Titles Act 1925 (ACT) Part 10, Division
10.3B; Conveyancing Act 1919 (NSW) Part 6, Division 4; Land Title Act 2000 (NT) Part 6,
Division 4; Real Property Act 1886 (SA) Part 8; Land Titles Act 1980 (Tas) Part 6, Division 9;
Transfer of Land Act 1958 (Vic) Part 4, Division 8; Land Transfer Act 1952 (NZ) s 90.
Transfer of Land Act 1893 (WA) Part 4A.
24
states that ‘an easement over a lot may only be created by registering an instrument of
easement’.50 The other Acts contain broadly similar provisions.51
There are several requirements for a valid easement. An easement requires a dominant
and servient tenement.52 This means that the easement over one lot must provide a
benefit to another lot – it is not sufficient that the easement benefits a person. This
rule was described by McDonald et al as ‘if B is given the right to pass over A’s land,
but B does not have any land for the benefit of which the right is exercisable, then B
simply has a licence and not an interest in A’s land’. Such a right is not capable of
registration. This rule effectively limits the circumstances in which easements may be
used.
An exception has been developed in Queensland. Under the Land Title Act, it is not
necessary to have land which is benefited in the case of a public utility easement.53
McDonald et al give the example of this rule allowing a power company to run power
lines over land, despite not owning any land with receives the benefit of these power
lines.54
More recently, an exception has been developed in Queensland to allow cane railway
easements to be registered under the Sugar Industry Act 1999 (Qld). This regime will
be discussed in detail in Chapter Four, but in essence, it allows for an easement to be
registered over land to allow for a cane railway to pass over land. This is turn allows
cane growers to transport cane to the mill.55 Similarly to the public utility exception,
the Land Title Act was amended to allow for easements to be registered regardless of
whether there are dominant and servient tenements.56 This is an example of how the
scope of registrable interests may be extended to allow for new obligations and
restrictions to be registered over title.
50
51
52
53
54
55
56
Land Title Act 1994 (Qld) s 82(1).
Land Titles Act 1925 (ACT) s 103B; Conveyancing Act 1919 (NSW) s 88; Land Title Act 2000
(NT) s 91; Real Property Act 1886 (SA) s 81; Land Titles Act 1980 (Tas) s 105; Transfer of
Land Act 1958 (Vic) s 72; Land Transfer Act 1952 (NZ) s 90.
Re Ellenborough Park [1956] Ch 131 at 163, cited in McDonald, Carmel et al, Real Property
Law in Queensland (Lawbook Co, Pyrmont, 2nd ed, 2005) 646.
Land Title Act 1994 (Qld) s 89(1).
McDonald, above n 14, 647.
Sugar Industry Act 1999 (Qld) s 63(5).
Land Title Act 1994 (Qld) s 89(2)(a)(vii).
25
Additionally, as with other interests, valid execution is necessary. An easement may
be registered only if it is signed by the registered owner of the lot to be burdened.57 As
a result, an easement may only be created over land if the landholder consents to it.
4.4.
Covenants
Covenants are treated differently across the states, and may be either registered on
title, notified on title, or not recognised on the land title register at all. This discussion
will address each of these mechanisms in turn.
4.4.1. Registration
Queensland and the Northern Territory are the only jurisdictions that allow for
covenants to be registered upon title.
In Queensland, a lot may be made the subject of a covenant through registration of an
instrument of covenant.58 There are several restrictions on the use of registered
covenants:
1. The covenant may only be registered if the covenantee is the State or local
government.59 This means that a covenant between private parties may not be
registered on title;
2. The legislation restricts the subject matter to which a registered covenant may
apply. To be eligible for registration, the covenant must relate to the use of the
lot, or be aimed at preserving a native animal or plant, or natural or cultural
heritage, or for tying lots for the purposes of transfer;60
3. ‘Use of the lot’ is further defined to mean a purpose for which the lot may or
may not be used.61 It cannot impose an architectural standard, or relate to
another lot, or include a condition precedent to using the lot, or regulate the
owner’s conduct;62 and
57
58
59
60
61
62
Land Title Act 1994 (Qld) s 83(1)(b)(i).
Land Title Act 1994 (Qld) s 97A(1).
Land Title Act 1994 (Qld) s 97A(2).
Land Title Act 1994 (Qld) s 97A(3).
Land Title Act 1994 (Qld) s 97A(7).
Land Title Act 1994 (Qld) s 97A(8).
26
4. A covenant must not secure the payment of money as a condition of
development approval, and it must not provide for anything that could be the
subject of an easement.63
As a result, the circumstances in which covenants can be registered in Queensland are
quite limited. In contrast, the Northern Territory Parliament have provided for
registration of covenants in a broader range of circumstances. In the Northern
Territory, a covenant may be created by registration of an instrument of covenant.64
The only requirements for validity are that the covenant be executed, and identify
both the land and the person having the benefit of the covenant.65 This provision
could allow for covenants between private parties to be registered. Furthermore, these
covenants may relate to matters which are excluded by legislation in Queensland.
Despite the restrictions in Queensland on the use of covenants, both jurisdictions have
essentially broadened the scope of the land title register by allowing for restrictions on
use rather than merely title to be registered on land.
4.4.2. Notification
Under the New South Wales legislation, covenants may be recorded on Torrens title
land, provided that formal requirements are satisfied.66 Despite this provision for
recording, the legislation makes it clear that recorded covenants are not granted the
status of registered instruments. Recording does not give the restriction any greater
operation than it has under the dealing creating it.67 According to Professor Butt, this
means that ‘the covenant stands or falls by its own inherent efficacy, tested by the
general principles concerning the validity and enforceability of covenants…recording
a covenant in the Register does not warrant its efficacy in the way that the
indefeasibility of title provisions of the Real Property Act warrant the efficacy of
registered dealings’.68 Thus there is a significant benefit to registration over recording,
as these general principles of law are complex, and recording will not provide a
63
64
65
66
67
68
Land Title Act 1994 (Qld) s 97A(6).
Land Title Act 2000 (NT) s 106.
Land Title Act 2000 (NT) s 107(1),(2).
Conveyancing Act 1919 (NSW) s 88(1),(3)(a).
Conveyancing Act 1919 (NSW) s 88(1),(3)(b).
Butt, above n 47, 534.
27
covenant with validity or accuracy.69 It does however confer priority on the covenant,
and also acts as a flag to alert a searcher of the existence of the covenant.
A similar situation exists in Victoria. The Victorian Registrar is empowered to record
a covenant on the land title register.70 The Victorian legislation specifically states that
such a recording does not give the covenant any greater operation than it has under
the instrument creating it.71 As a result, recording will not guarantee validity of the
covenant, and this will need to be determined by application of the general law.
Regardless, recording does ensure that the covenant runs with the land, and is binding
on successors in title.72
In Western Australia, restrictive covenant may be created and made binding in respect
of registered land, so far as the law permits.73 The Registrar shall enter a
memorandum of the covenant on the land title.74 It has been acknowledged by the
High Court that covenants made under this provision are not granted validity through
registration, and must be assessed according to the common law rules relating to
restrictive covenants.75
4.4.3. No recognition on the land title register
The remaining states do not make any provision for covenants to be registered or
recorded on the land title register. Therefore any covenants entered into are merely
private agreements between the parties.
4.5.
Profits á prendre
Profits á prendre bear some similarities to easements, although profits á prendre have
much wider scope. The main distinction between profits á prendre and easements is
that while easements grant a right to enter land, they never grant a right to take away
69
70
71
72
73
74
75
Michael Weir, ‘Land Title Act 1994 (Qld) – Statute for a New Millennium?’ (2000) 4 Flinders
Journal of Law Reform 185, 200.
Transfer of Land Act 1958 (Vic) s 88(1).
Transfer of Land Act 1958 (Vic) s 88(3).
Transfer of Land Act 1958 (Vic) s 88.
Transfer of Land Act 1893 (WA) s 129A(1).
Transfer of Land Act 1893 (WA) s 129A(5).
Forestview Nominees Pty Ltd & Anor v Perpetual Trustees WA Ltd (1998) 193 CLR 154, 15960.
28
part of the land. In contrast, a profit á prendre grants a right of entry, as well as a right
to remove some part of the soil or its produce.76
Furthermore, a profit need not attach to land that is appurtenant to land owned by the
grantee.77 This removes one of the major barriers posed by easements, as it is not
necessary that the profits á prendre benefit a separate parcel of land.
Profits á prendre are recognised in some form in Queensland,78 Tasmania,79 the
Northern Territory,80 and New South Wales.81
Profits á prendre are a reasonably new statutory creation in Queensland, having only
been capable of registration since 1997.82 In terms of the possible uses of profits á
prendre, the explanatory notes provide an example that ‘a person may sell his farm
but keep the interest to harvest the crops for a number of years. The agreement may
be registered as a profit á prendre against the titles to the lots comprising the farm’.83
Profits á prendre have also been used in Queensland for carbon sequestration, which
will be discussed in detail in Chapter Four.
Under the Queensland legislation, a lot may be made the subject of a profit á prendre
by registration of an instrument of profit á prendre.84 The requirements for registration
are valid execution, and a description of the lot, and the particulars of the profit á
prendre.85
The Northern Territory Parliament has adopted very similar provisions to those used
in the Queensland legislation.86
76
77
78
79
80
81
82
83
84
85
86
Butt, above n 47, 420-1.
McDonald, above n 14, 689.
Land Title Act 1994 (Qld) ss 97E-L.
Land Titles Act 1980 (Tas) s 107.
Land Title Act 2000 (NT) ss 118-124.
Real Property Act 1900 (NSW) s 47(1).
Inserted by Act no. 28 of 1997.
Explanatory notes, Body Corporate and Community Management Bill 1997 (Qld), 61.
Land Title Act 1994 (Qld) s 97E.
Land Title Act 1994 (Qld) s 97F(1).
Land Title Act 2000 (NT) s 118-9.
29
In Tasmania and New South Wales, profits á prendre may only be recorded on title.
The Tasmanian legislation states that a profit á prendre may be granted, and recorded
on the folio of the register.87 Similarly, the New South Wales legislation requires the
Registrar to record the details in the folio of the land benefitted and burdened.88 The
effect of recording is that same as with recorded covenants discussed above.
Recording does not confer validity; it is merely a mechanism for recording
information on title, although it may confer priority, or create an interest binding on
successors in title.
4.6.
Other interests
Some Australian jurisdictions have extended the scope of the land title register, and
expressly allowed for emerging environmental interests to be registered on title. For
example, in Western Australia the Torrens legislation has been amended to allow for
the registration of carbon rights, carbon covenants and tree plantation agreements.
These instruments essentially allow a person to obtain an interest in the carbon stored
in trees on another person’s property. Allowing third parties to benefit from the
carbon sequestered in the trees has been recognised as a ‘response to the evolving
social and environmental need to separate sequestration benefits from the underlying
ownership of the land’.89
These interests are created by the Carbon Rights Act 2003 (WA), which provides for
the registration on title to land of a ‘carbon right’, and an accompanying ‘carbon
covenant’.90 The legislation was designed to encourage trading in carbon rights by
reducing the legal risks associated with such transactions, by enabling a carbon right
to be registered over title to land as a separate interest.91
To register a carbon covenant, it is first necessary to lodge a form for the creation of a
carbon right with the Registrar of Titles.92 This form must be signed by the registered
87
88
89
90
91
92
Land Titles Act 1980 (Tas) s 107.
Real Property Act 1900 (NSW) s 47(1).
Samantha Hepburn, ‘Carbon Rights as New Property’ (2009) 31 Sydney Law Review 239, 261.
Western Australia, Parliamentary Debates, Legislative Assembly, 22 May 2002, 10960,
(Francis Logan).
Western Australia, Parliamentary Debates, Legislative Assembly, 22 May 2002, 10960-61,
(Francis Logan).
Carbon Rights Act 2003 (WA) s 5(1).
30
proprietor of the land affected by the carbon right.93 The carbon right may be
accompanied by a carbon covenant,94 which contains the terms of the carbon right.95
The carbon covenant will contain details of the agreement, and examples include
information about ‘how much carbon is to be sequestered, over what time frame, in
what form, how it is to be measured, and so on’.96 Once the form has been registered,
the carbon right becomes a separate interest in land.97
It is important that agreements of this type are registered on title, as it is a significant
restriction on title. By granting a carbon right, a landholder is in effect giving control
of part of their interest in the land to a third party. Whilst a number of restrictions
operating externally to the land title register can be found in legislation or on external
registers, a carbon right is an agreement between two private parties. Thus it is
important that it is visible on a title search, as it is unlikely a prospective purchaser
could obtain knowledge of the restriction by other means.
4.7.
Conclusion
The above discussion demonstrates that the range of interests capable of registration
has grown since the introduction of the Torrens system. Mortgages and leases
represent a significant restriction on title, as they take away the entire right of the
landholder to occupy or possess the land.98 The more recently created registrable
instruments, such as covenants, profits á prendre and carbon rights are directed
towards use of the land rather than occupation. Despite these new statutory creations,
at present there remain many obligations and restrictions on use which are not capable
of registration, and thereby pose a threat to the integrity of the Torrens system.
There is no easy distinction to draw between those interests which are capable of
registration and those which are not. There does not appear to be any discernable
distinction applied by governments in terms of determining whether obligations and
restrictions should be registered on title or not. All of the registrable obligations and
93
94
95
96
97
98
Transfer of Land Act 1893 (WA) s 104B(1)(a).
Carbon Rights Act 2003 (WA) s 10(1).
Carbon Rights Act 2003 (WA) s 11.
Western Australia, Parliamentary Debates, Legislative Assembly, 22 May 2002, 10961,
(Francis Logan).
Carbon Rights Act 2003 (WA) s 6(1).
Although in the case of mortgages this right is deferred until the mortgagee defaults on the loan.
31
restrictions operate in rem, and are binding on prospective purchasers, but there are
numerous other obligations and restrictions which also do so. One feature common to
the registrable obligations and restrictions is that they are all products of agreements
between private parties, rather than being imposed by statute. In contrast, many (but
certainly not all) obligations and restrictions which operate externally to the register
are imposed by statute. This is a distinction which may be relevant in making
suggestions for law reform, and will be discussed throughout this thesis.
The following part of this chapter will focus upon ‘overriding interests’, which are
obligations or restrictions which override title without being registered.
5.
The threat posed to the integrity of the Torrens system by overriding
interests
5.1.
Introduction
Although the Torrens system is theoretically underpinned by the principle of
indefeasibility, in practice there are obligations and restrictions outside of the register
which may affect title. It has been noted that ‘indefeasibility does not mean, and has
never meant, absolute indefeasibility’.99
Although the land title register has been used in some limited circumstances to
register or record obligations and restrictions on use,100 for the most part land title
registers are used merely to provide details of ownership, and to register restrictions
on title, such as mortgages and leases. As a result, most obligations and restrictions on
land use operate outside the scope of the land title register. However this distinction is
becoming blurred, as many registrable obligations and restrictions essentially relate to
land use (eg. Statutory covenants which restrict owners from clearing land, or require
them to actively conserve vegetation).
The terms ‘overriding interests’ or ‘overriding statutes/legislation’ have been used in
much of the relevant case law and literature. These terms are used synonymously, and
99
100
Anthony Mason, ‘Indefeasibility – logic or legend?’ in David Grinlinton (ed), Torrens in the
Twenty-First Century (LexisNexis NZ, Wellington, 2003) 3, 4.
This was discussed briefly above, and will be discussed in detail in each of the case study
chapters.
32
refer to a legislative obligation or restriction which impacts on landholding, despite
not being registered.
Overriding interests have been categorised by O’Connor as falling into three different
categories:
1. Interests which depend upon registration to be enforceable;
2. Interests which do not need to be registered, but are granted overriding status
by the statute which creates them; and
3. Interests which are capable of registration, but do not need to be registered to
override title.101
The first category is not problematic, as they are registrable on title. Within the latter
two categories, O’Connor identifies three types of statutes which override title
without the need for registration:
1. Compulsory acquisition of land statutes;
2. Vesting incidental to other decisions – these are statutes where land is vested
in an authority as a consequence of another decision (for example, where a
road is vested in a council following a decision that it is no longer required for
public use); and
3. Lesser interests in land – these are statutes which authorise the creation of
interests in land in favour of governmental authorities without the need for
registration.102
Whilst most compulsory acquisition statutes generally make some provision for
compensation where property rights are affected, the latter two categories can affect
property rights without granting a right to compensation. These categories of
overriding statutes have long been recognised as posing a serious threat to the
efficiency of the Torrens register. This section will consider the case law and
literature concerning overriding statutes and examine how judicial and academic
approaches to the problem posed by overriding statutes have evolved over time.
101
102
O'Connor, above n 18, 651.
Ibid 652-4.
33
This section will show, through a chronological account of the relevant case law, that
overriding statutes impact significantly upon security of title. This is relevant to this
thesis as it further demonstrates why current practices for managing information
concerning obligations and restrictions affecting land are in need of reform.
5.2.
Overriding statutes in the courts – a threat to security of landholding
This section will describe and analyse case law relating to overriding interests. This
analysis will show that there has been no consistent approach to overriding statutes
adopted by the courts.
5.2.1. South-Eastern Drainage Board (SA) v Savings Bank of South Australia – in
the event of inconsistency, the later statute prevails
The legal status of overriding statutes has been the subject of judicial consideration in
the High Court of Australia since at least 1939, and the case of South-Eastern
Drainage Board (SA) v Savings Bank of South Australia (“South-Eastern
Drainage”).103 This case concerned two provisions of legislation. First, South
Australia’s Torrens legislation, enacted in 1886, stated that ‘no law, so far as
inconsistent with this Act, shall apply to land subject to the provisions of this Act, nor
shall any future law, so far as inconsistent with this Act, so apply unless it shall be
expressly enacted that it shall so apply “notwithstanding the provisions of the Real
Property Act 1886”’.104
The second relevant piece of legislation was the South-Eastern Drainage Amendment
Act 1900 (SA) (“the Drainage Act”), which enabled drains to be constructed and the
cost apportioned among the landholders benefited by the drains. To this effect, the
Act stated that ‘the proportion of the cost apportioned to each landholder shall be a
debt due from each such landholder to the Crown and shall be a first charge upon the
land of such landholder benefited by the drain and shall be repaid by such landholder
with the interest thereon in equal instalments according to a scale set out the in
schedule’.105
103
104
105
South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603.
Real Property Act 1886 (SA) s 6.
South-Eastern Drainage Amendment Act 1900 (SA) s 14.
34
Under the Drainage Act, the Mt Hope drain was constructed, with the cost
apportioned amongst landholders. In 1908, a charge for construction costs attached to
the land under the Drainage Act, and in 1912 a mortgage was given to the plaintiff
bank. The plaintiff argued that the Torrens legislation was not affected by the SouthEastern Drainage Amendment Act, as it did not use the wording specified in the Real
Property Act.
The majority of the High Court held that the Drainage Act overrode the provisions of
the Real Property Act. In reaching this conclusion, Latham CJ relied on the principle
that a later statute will prevail over an earlier statute where there is any
inconsistency.106 Furthermore, Latham CJ dismissed the argument that the charges
would only take effect upon registration, as the legislation did not make any provision
for registration.107
Starke J took a similar approach, stating that if legislation either repeals or ignores
earlier legislation, it must prevail.108 Dixon J also held that the Real Property Act did
not limit the ability of the Parliament to pass laws,109 and commented that:
the South-Eastern Drainage Amendment Act 1900 created a first and paramount charge
quite independently of the nature of the landholder’s title, that is, whether the land was
under the Real Property Act or under the general law, and conferred upon it such an
indefeasible priority and fortified it with such remedies that it cannot be overridden or
affected by the provisions of the Real Property Act.110
Evatt J also held that the Drainage Act prevailed on the basis of inconsistency.111
5.2.2. Miller v Minister for Mines
Miller v Minister for Mines112 (“Miller”) is a decision of the Privy Council, on appeal
from the New Zealand Supreme Court. It is relevant to consider for two reasons. First,
decisions of the Privy Council were binding on Australian courts at this point in time.
106
107
108
109
110
111
112
South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603,
616.
Ibid 617.
Ibid 623.
Ibid 625.
Ibid 630.
Ibid 634-5.
[1963] AC 484.
35
Secondly, the New Zealand Torrens system is modelled on the Australian system,
therefore cases interpreting the New Zealand provisions can be applied to the
Australian provisions.
In Miller, a land grant was made in 1890 without any reservation of minerals to the
Crown. The landholder transferred mineral rights to a third party. Miller was a
successor in title to the land, and his certificate of title showed no reference to mineral
rights granted over the land. Miller argued that, pursuant to the Land Transfer Act, his
estate was paramount and could not be affected by unregistered interests.
The Privy Council first considered whether the mineral rights were capable of
registration, and concluded that they were not.113 They then went on to consider the
intention of the Mining Act 1926 which authorised the granting of mineral rights, and
remarked that:
If the licence is not registrable under the Land Transfer Act 1952 and the indefeasibility
provisions of that Act are to override the grant, the licence would be of no value to the
licensee except as against the original owner of the lands…their Lordships do not
consider that this can have been the intention of the legislature in enacting the
compendious code for mining privileges.114
Therefore, the Privy Council concluded that the intention of the Mining Act 1926 was
for these mineral rights to override title. This approach is similar to the High Court’s
approach in South-Eastern Drainage as it looks at the intention of the later in time
statute, and concluded that the later statute was intended to override the earlier one.
5.2.3. Pratten v Warringah Shire Council
Pratten v Warringah Shire Council115 (“Pratten”) saw a shift away from the judicial
approaches in South-Eastern Drainage and Miller. This case concerned a provision of
the New South Wales Local Government Act, which stated that ‘where, in the
subdivision of any land, there has been a provision made for a drainage reserve…the
land so provided for a drainage reserve is hereby vested in the council in fee-simple
113
114
115
Ibid 487.
Ibid 488.
(1969) 90 WN (Pt 1) (NSW) 134.
36
for drainage purposes’.116 A plan of sub-division was lodged which included a strip of
land labelled ‘drainage reserve’. A dispute arose between the parties as to ownership
of this strip of land.
Street J concluded that the council’s statutory title prevailed, because ‘it has long been
accepted that in the case of Real Property Act land there can exist proprietary rights
which do not depend upon registration for their efficacy’.117 He examined Hogg’s
work on the Torrens system,118 particularly in relation to the overriding status of
resumption of land statutes, as well as the case law, and concluded that the public
nature of overriding statutes is important.119
This demonstrates a different approach to the South-Eastern Drainage and Miller
cases. Street J relied on the fact that the later statute was public in nature as the basis
for its overriding status. In contrast, earlier decisions were based upon the
presumption that a later statute will prevail.
O’Connor argues that this reasoning is flawed, making the following comment:
in my opinion Street J’s view of s 398 is questionable because he did not approach it as
a provision in conflict with the Torrens legislation and determine its effect by
examining its text and purpose. He proceeded as if prior decisions on statutory interests
laid down general principles apply to discrete classes of exceptions to indefeasibility.
What seems to underlie his approach is the notion that statutory interests such as that of
the defendant council belong to a class of inherent rights, concerning which there is an
existing body of law.120
From this analysis, it appears that the approach taken by the Court in the SouthEastern Drainage case is preferable to the approach taken in Pratten. Certainly Street
J’s interpretation of overriding statutes has the potential to lead to confusion, and one
commentator has noted that it may well broaden the class of overriding statutes by
116
117
118
119
120
Local Government Act 1919 (NSW) s 398.
Pratten v Warringah Shire Council (1969) 90 WN (Pt 1) (NSW) 134, 139.
James Hogg, The Australian Torrens system (W Clowes & Sons Ltd, London, 1905) 804.
Pratten v Warringah Shire Council (1969) 90 WN (Pt 1) (NSW) 134, 142.
O'Connor, above n 18, 668. This is reiterated in Brendan Edgeworth, ‘Planning law v property
law: Overriding statutes and the Torrens system after Hillpalm v Heaven's Door and Kogarah v
Golden Paradise’ (2008) 25 Environmental and Planning Law Journal 82, 85-6.
37
automatically characterising statutes as overriding without importing any requirement
for examination of the intention of the statute.121 In contrast, the approach of the
courts in South-Eastern Drainage and Miller requires courts to examine each
potential overriding statute individually to determine whether there is a discernable
intent to override indefeasibility.
5.2.4. Quach v Marrickville Council
Quach v Marrickville Council122 (“Quach”) involved the same provision of the Local
Government Act that was discussed in Pratten. The subject land in issue had been
sub-divided, and the plan showed a drainage reserve 4 feet wide. The land was then
re-subdivided, and the plaintiffs became registered owners. Their certificate of title
made no reference to the drainage reserve. The Court had to decide whether the
plaintiff’s title took priority over the defendant’s interest.
Young J held that the Local Government Act overrode the relevant indefeasibility
provisions, adopting the ‘public right’ characterisation used by Street J in Pratten.
Young J noted that the council had a public right granted by statute, which overrode
the government guaranteed title.
123
However, he also held that the plaintiffs took
adverse possession of the land, thereby extinguishing the defendant’s interest.124
Young J made some general comments regarding the problem of overriding statutes,
and noted that it has been recognised that, although it is the weakest point in the
Torrens system, statutory and public rights will override an indefeasible title.125 He
also noted that although he was obliged to follow precedent, ‘provisions such as s 398
pose the greatest single threat to the operation of the Torrens system and make such
substantial inroads into indefeasibility that it is impossible to rely on the register’.126
According to Young J, the incompleteness of the register increases conveyancing
costs, as demonstrated in the following passage of his judgment:
121
122
123
124
125
126
Edgeworth, above n 120, 85.
Quach v Marrickville Council (1990) 22 NSWLR 55.
Ibid 63.
Ibid 69. It is relevant to note however that this is not possible in all jurisdictions.
Ibid 61.
Ibid 61.
38
it is rather difficult to reduce the cost of conveyancing in New South Wales if ordinary
members of the community are going to be ambushed by interests such as the present.
There would be absolutely nothing to show anybody who was purchasing this property
that there was a hidden trap left over from a 1908 deposited plan…Yet, despite this,
sixty-eight years later, an innocent person’s registered title may be completely defeated
without any right of compensation and probably without any claim against any other
person.127
Ultimately, despite expressing some discontent about the effect on landholders,
Young J was bound by the precedent in Pratten.
5.2.5. Hillpalm v Heaven’s Door
The next major case which considered overriding statutes was Hillpalm v Heaven’s
Door128 (“Hillpalm”), which presented the High Court with an opportunity to
formulate an approach to interpretation. Hillpalm concerned council consent
conditions for a sub-division of land. In 1977 the registered owner of the subject land
applied to council for consent to sub-divide land, with access to proposed Lot 1 over
Lot 2. Certificates for both lots were issued, and both contained diagrams showing the
proposed right of way. Subsequently, after a series of dealings from 1990 onwards,
the certificate of title no longer showed the right of way. The appellant, as owner of
Lot 2, was later ordered to grant an easement to the respondent. The issue for
consideration was whether the appellant was required to grant an easement, which
involved an examination of whether development consent conditions under the
relevant legislation overrode the indefeasibility provisions of the Torrens legislation.
The case was considered by the Court of Appeal, which held that the planning
legislation overrode the Torrens legislation, thus requiring the appellant to grant an
easement to the respondent.
In reaching this conclusion, the Court of Appeal took a different approach to SouthEast Drainage. Instead, the Court relied on the public nature of planning legislation to
reach their decision, similarly to the approach in Pratten and Quach. This is evident in
127
128
Ibid 61.
[2002] NSWCA 301 (NSW CA); (2004) 220 CLR 472 (HC).
39
the following passage of Meagher J’s judgment, where he discussed why the
condition overrode title:
this is not only because it is the later enactment, but also because it partakes more of a
public law enactment compared to the Real Property Acts' private law complexion; and
also because the almost aggressive wording of ss122 and 123 display an intention that
they are to be of universal force.129
Hillpalm appealed to the High Court, and the appeal was allowed. However, the High
Court’s decision to overturn the Court of Appeal’s finding related to a different
interpretation of the evidence, and unfortunately, the Court did not take the
opportunity to discuss which approach applied to overriding statutes. The majority of
the Court, consisting of McHugh ACJ, Hayne and Heydon JJ considered a number of
letters exchanged between the parties which set out the approval conditions. In
December 1977, the council wrote to the surveyor stating that the sub-division had
been approved subject to a condition that there be a constructed right of carriageway.
This condition was then altered in May 1978, when council wrote a letter stating that
the registered owner should be required to declare a right of way if new roads are not
dedicated within 2 years of the date of the letter. Finally, in November 1978 the
council again wrote to the surveyor, stating that ‘council is prepared to grant final
approval to the above subdivision even though the conditions of council’s
letters…have not been complied with’.
The majority of the High Court held that the letter of November 1978 demonstrated
an intention to abandon the conditions set out in the earlier letters.130 The majority
stated that:
we do not accept that either the correspondence to which we have referred, or the
depiction on the plan of the “proposed right of way 10 wide” constituted or evidenced a
condition on which the council approved subdivision, or at least any condition that
went beyond Winchecombe Carson being required to state that it intended to create at
an unspecified future time such a right of carriageway.131
Although the majority of the High Court reached their decision based on the above
129
130
131
Hillpalm v Heaven's Door [2002] NSWCA 301 [14].
Hillpalm v Heaven’s Door (2004) 220 CLR 472, 485.
Ibid 487.
40
interpretation of the evidence, they went on to consider whether the condition would
be enforceable had it been included. They held that it would not be enforceable, as it
did not relate to a continuing use of land. This is best demonstrated in the following
passage:
‘‘development’’, as used in the EPAA [Environmental Planning and Assessment Act
1979], could refer to the subdivision of land, the use of land or to both subdivision and
use. It by no means follows, however, that a person occupying a lot in a plan of
subdivision carries a development out on the land by simply occupying the land.
Where, as here, the subdivision of the land was the relevant development, the
subsequent purchaser of a subdivided lot does not ‘‘carry that development out’’ by
occupying, and thus using, one of the lots in the subdivision.132
Unfortunately, this conclusion did not permit the Court to consider the appropriate
test to apply to overriding statutes. The majority noted that if there was a condition
relating to the continuing use of land, then there ‘would be a real and lively question
about how the two statutory schemes were to be reconciled’.133 The Court therefore
recognised that this is an uncertain area of law which requires clarification, but
concluded that this issue was outside of their jurisdiction in this particular case.
Writing about the Hillpalm decision, Professor Butt concluded that a purchaser need
only be wary of ‘an unfulfilled council consent condition that relates to the use of land
– in the sense of continuing use – as distinct from the once-only event of sub-division,
which could involve a continuing breach, which (under the provisions of the planning
laws) any person could enforce against the current owner’.134Whilst this is correct,
and a purchaser should be wary of conditions relating to continuing use, there was no
guidance offered as to how these cases would be resolved. Because the High Court
reached these conclusions, there was no opportunity for the Court to consider whether
the Court of Appeal applied the correct method to determining which statute prevails.
132
133
134
Ibid 487.
Ibid 491.
Peter Butt, ‘Indefeasibility and Council Consent Conditions’ (2005) 79 Australian Law Journal
143, 144.
41
5.2.6. Post-Hillpalm decisions
Since the High Court’s decision in Hillpalm, New South Wales Courts have had
several further opportunities to consider the effect of overriding statutes. These cases
added another layer of complexity, as they concerned transfers of land occurring
despite overriding statutes being in place.
In Kogarah Council v Golden Paradise Developments135 (“Kogarah”), the New South
Wales Court of Appeal considered whether a transfer of land was valid.136 In 1985,
the respondent was the registered proprietor of a block of land, and sought council
permission to erect a building on land. The council granted permission on the
condition that the respondent dedicated a 6m wide strip of that land to council for the
purpose of a highway. The respondent sub-divided the land accordingly, and council
became registered owner of that land.
In 2002, the council transferred that land to Blakehurst Properties. The respondent
sought an order that council had no power to transfer the property due to Local
Government Act 1993 (NSW) s 45(1), which stated that a council has no power to
sell, exchange, or otherwise dispose of community land. At first instance in the Land
and Environment Court, this order was granted. The council then appealed to the
Court of Appeal.
The Court of Appeal unanimously allowed the appeal. It was acknowledged by
Tobias J that Blakehurst, as current owner, did not breach the Act, and the Land and
Environment Court therefore had no power to make an order against Blakehurst.137 As
a result, once the transfer from the council to Blakehurst had been registered, the land
no longer met the classification of community land.138
The Court could not consider the subject of overriding statutes as it was not argued by
the parties,139 however Basten J made the following comment in obiter:
135
136
137
138
139
(2007) 12 BPR 23,651.
Kogarah Council v Golden Paradise Developments (2007) 12 BPR 23,651.
Ibid 23,662.
Ibid 23,663.
Edgeworth, above n 120, 92.
42
in the present case, s 45 of the [Local Government Act] speaks in unequivocal terms. In
renders a Council powerless to sell, exchange or otherwise dispose of “community
land”…It is, at the very least arguable, that in such circumstances the [Local
Government Act] has, by necessary implication, amended s 42 (or possibly other
provisions) of the [Real Property Act], to the extent that that provision would not give
effect to a transfer of such land upon registration.140
Another recent case is that of F & D Bonaccorso v City of Canada Bay City
Council141 (“Bonaccorso”). The facts of Bonaccorso are similar to Kogarah, and the
Court had further opportunity to discuss the effect of overriding statutes. Bonaccorso
concerned a transfer of property by the council, which the applicant claimed was
community land. The applicant sought a declaration that the land was community
land, and that the transfer was void and had no effect.
A first instance, Biscoe J of the Land and Environment Court held that on the
evidence, the land was used as a public park, and was community land. Therefore, it
was sold contrary to the Local Government Act.142 Furthermore, he concluded that the
Local Government Act impliedly repealed the Real Property Act.143 In reaching his
decision, Biscoe J made the following summary of the principles of earlier High Court
decisions concerning overriding statutes:
 A provision of a later statute impliedly repeals or amends pro tanto a provision
of an earlier statute if, upon their true construction, the later provision
explicitly or implicitly and clearly contradicts the earlier;
 There is a general presumption that there is no contradiction between two Acts
of the same legislature;
 There must be very strong grounds to support the implication of a repeal or
amendment; and
 There is no contradiction if the later and earlier statutory provisions can stand
or live together.144
140
141
142
143
144
Kogarah Council v Golden Paradise Developments (2007) 12 BPR 23,651, 23,670.
[2007] NSWLEC 159.
F & D Bonaccorso v City of Canada Bay City Council [2007] NSWLEC 159 [34].
Ibid [93].
Ibid [51].
43
This marks a return to the South-Eastern Drainage approach, which requires the court
to examine the intent of the overriding statute. This decision is therefore in line with
early High Court authority.
Although the consequence of the decision was that the indefeasibility of title was
overridden, Biscoe J noted that external registers had alleviated some of the
uncertainty, making the following comment:
although the Torrens system of registered title was designed to avoid the need to make
historical searches of title, the burden of searching council records flowing from
Hillpalm is alleviated by the statutory obligation on councils to maintain a register of
development consents that is open for public inspection.145
Biscoe J concluded by ordering that the Registrar-General exercise the power to
rectify the register, to reinstate the council as registered owner.
However, Biscoe J’s decision was overturned by the NSW Court of Appeal in late
2007, which concluded that there was no implied repeal of the Real Property Act as
the Acts could operate in conjunction with one another. The Court of Appeal noted
the principle that a court should read statutes together where possible, and noted that
the LGA provision could operate alongside indefeasibility provisions.146
In reaching this conclusion, the Court of Appeal drew a distinction between the
transfer prior to registration, and the transfer after registration. The Court noted that:
up until registration the transaction or transfer is null and void but on registration, as
Breskvar v Wall holds, there is virtually a new Crown grant of the fee simple in the
land, so that from that moment the transferee obtains a new clean title. The result is that
the transferee’s title is wholly derived from the act of registration by the RegistrarGeneral and not upon the transfer of the antecedent transaction which gave rise to the
transfer.147
As a result, the provisions can operate together. Prior to registration, the provisions of
the Local Government Act can operate to invalidate the transfer, but after registration,
145
146
147
Ibid [70].
City of Canada Bay Council v Bonaccorso Pty Ltd [2007] NSWCA 351 at [83].
Ibid [83].
44
the transfer is protected by the provisions of the Real Property Act.148 This conclusion
is supported by the terms of the Local Government Act, which ‘merely deny to a
council the power to sell or otherwise dispose of community land’. It does not declare
that a registered transfer of such land is void.149 The Court of Appeal concluded with
the comment that ‘in these circumstances, in our opinion it is impossible to discern a
legislative intent that s 45(1) was to operate to deny to a transferee of community land
the benefit upon registration of indefeasibility of title’.150
The Court of Appeal overturned the order of Biscoe J with regard to rectification of
the register, and remarked that ‘the bona fide acts of the Registrar-General, even
though they affect former proprietors’ rights, will stand’.151
This does not seem to deviate from the central finding in earlier authorities, which is
that statutes can override indefeasibility. However it adds another layer of complexity,
and essentially provides that a further registration can override an overriding
statute.The effect of this decision is that in some circumstances overriding legislation
may be defeated by registration. Once a transfer has been registered, it is irrelevant
whether there were any statutory provisions preventing this from occurring. This
decision does lend support to the assertion that obligations and restrictions on use
should be recorded on title. If the designation as community land was recorded on
title, this transfer potentially would not have proceeded. Since the transfer did
proceed, and the land was transferred to private ownership, the environmental values
have been lost. This also demonstrates how the land title register can be used to
facilitate compliance with environmental laws.
It is not entirely clear from the Court of Appeal decision in Bonaccorso which test
applies to overriding statutes. Certainly the more public enactment was not given
priority in this case, which could demonstrate a shift from that characterisation of
overriding statutes. Additionally, the first instance decision moved away from the
148
149
150
151
Ibid [86].
Ibid [88].
Ibid [88].
Ibid [91].
45
public rights characterisation in favour of the more general approach propounded in
South-Eastern Drainage.
5.2.7. Conclusion
This analysis of case law demonstrates a lack of uniformity in approach with regard to
overriding statutes. The decision in the South-Eastern Drainage case was based
purely upon rules of statutory interpretation, which dictate that a statute made later in
time will prevail, and require the courts to look at the overall intentions of the statutes.
However, in Pratten and Quach the Courts moved away from this approach, and
instead placed more emphasis upon the public nature of the overriding statute. This
approach was also adopted in the first instance decision in Hillpalm, which was
overturned on appeal, but on different grounds. Unfortunately, the reasoning of the
High Court in Hillpalm prevented them from providing some much-needed clarity in
this area. More recently though, cases such as Kogarah and the first instance decision
in Bonaccorso have seen renewed emphasis on the rules of statutory interpretation.
The Court of Appeal decision in Bonoccorso focused upon principles underpinning
the Torrens system, but this arguably also demonstrates a shift away from the public
rights characterisation.
At this point in time, it is difficult to predict with any certainty which approach courts
will ultimately adopt in relation to these issues. However, the important point that can
be distilled from all of these cases is that statutes can, and do, override indefeasibility.
Regardless of the approach adopted by the judiciary, the above analysis demonstrates
that overriding statutes pose a serious threat to the integrity of land titles. This is due
to the fact that they may have serious impacts upon land holding without any
requirement for registration or recording. Whether statutes override title on the basis
of being later in time, or public in nature, the significant effect upon land title remains
the same. Additionally, the analysis of case law demonstrates that the current
approach may lead to negative ramifications for sustainable management of land. It is
conceivable that an integrated approach to management of land titles and restrictions
on use could have possibly prevented many of these scenarios from arising.
46
5.3.
Overriding statutes as a barrier to sustainability
The above analysis of case law demonstrated how overriding statutes pose a threat to
the Torrens system. Importantly, recent cases such as Bonaccorso also starkly
demonstrate how the present approach can be a barrier to compliance with
environmental laws. As both the parties involved in the transaction and the Registrar
were unaware of the zoning restriction, the designation as community land was lost.
This shows how fragmented information concerning restrictions and obligations on
land use can result in impaired decision-making on the part of governments.
Fragmented information can also impact upon compliance with environmental laws
by landholders. A recent Queensland example which has received media attention is
the case of Wall v Doyle,152 as profiled on the television program A Current Affair in
2009.153 The Doyles purchased and cleared land at Ipswich, west of Brisbane. They
had made enquires with the local council and the Department of Natural Resources as
to whether there were any relevant land clearing restrictions, and were told that there
were not. Upon clearing the land however, they found out that there were restrictions,
administered by an entirely different authority, the Environmental Protection
Agency.154 The Environmental Protection Agency subsequently charged the Doyles.
The matter went before the Queensland Planning and Environment Court, which
issued an order against the Doyles, requiring them to undertake a very detailed and
onerous program of replanting.155 This demonstrates both limbs of the problem caused
by these overriding statutes. First, the state of information concerning obligations and
restrictions on title and use prevented the Doyles from finding this restriction, which
in turn led to decreased security of their interest in land. Had they been aware of this,
it is unlikely that they would have cleared the land, or perhaps even purchased it.
Second, this lack of information had negative consequences for the natural
environment, as the environmental values provided by the trees were lost. This shows
152
153
154
155
[2008] QPEC 23
Channel Nine, ‘Treelopping Couple’, A Current Affair, 7 July 2009 <
http://video.ninemsn.com.au/video.aspx?mkt=en-AU&brand=ninemsn&vid=77628dd6-b98d4a44-9d60-209055f91de1#::77628dd6-b98d-4a44-9d60-209055f91de1> at 13 August 2009.
These restrictions were created under the Nature Conservation Act 1992 (Qld) and the
associated Nature Conservation (Wildlife) Regulation 2006 (Qld).154 Under this regime, the
trees they cleared were a protected species.
Wall v Doyle [2008] QPEC 23.
47
that a lack of information about environmental laws can reduce compliance with
them. Therefore providing for more effective management of obligations and
restrictions on use has the potential to increase compliance.
Another example is the New South Wales case of Ballina Shire Council v Simon
Freeden and Lorraine Freeden.156 This case considered two separate legislative
regimes, the Native Vegetation Conservation Act 1997 (NSW) (since replaced by the
Native Vegetation Act 2003 (NSW)), and the Environmental Planning and Assessment
Act 1979 (NSW), as well as the associated Ballina Local Environment Plan. Similarly
to the Doyle case, clearing carried out by the respondents was authorised under the
first legislative scheme, but required a permit under the second. The respondents
argued that Native Vegetation Conservation Act repealed the other laws, whilst the
appellant contended they could operate together.157
The New South Wales Land and Environment Court considered the matter, and found
for the appellants. The Court stated that:
the scheme described above did provide a single system for clearing throughout the
State – the system was the system established by the NVC Act integrated with the EPA
Act (and environmental planning instruments). The concept of a “single system” or
“one stop shop” did not mean that a person was entitled to consider only the NVC Act
when proposing to clear land. The NVC Act expressly integrated itself with the EPA
Act and environmental planning instruments.158
This demonstrates that overriding statutes may even seemingly contradict one
another, making the situation even more confusing for landholders.
These few examples demonstrate how overriding statutes may, in addition to
threatening security of landholding, act as a barrier to compliance with environmental
laws. This is because a lack of integrated information concerning these obligations
and restrictions is making compliance difficult..
156
157
158
[2006] NSWLEC 192
Ballina Shire Council v Simon Freeden and Lorraine Freeden [2006] NSWLEC 192 at [7].
Ibid at [85].
48
5.4.
The problem of overriding statutes and calls for reform
As noted above, Australian courts have been dealing with overriding statutes since the
1930s. This problem has also been addressed by a number of commentators, and this
section will consider literature relating to overriding statutes. It will make particular
reference to calls for reform.
5.4.1. Early calls for reform – 1950s
Overriding statutes have been discussed in legal literature since the early 1950s. In
1952, following his review of the Torrens system in Australia, Ruoff remarked that
‘no one thing has undermined the attempt to achieve indefeasibility more than
inconsistent legislation’.159 Subsequent to this, the New South Wales government
commissioned a report ‘to inquire into, consider and report upon the making of
effective provision for the registration or notification for public information of
statutory charges which under the present law, take effect without registration’.160 The
report was published in 1955, making the following key findings:
(a) All proclamations, notifications, orders, determinations and resolutions by
public authorities affecting land should be registered;
(b) They should be registered in the register book; and
(c) There is an exception in that charges on land for rates, and statutory
obligations creating restrictions on user (emphasis added) need not be
registered.161
The report was accompanied by a draft bill which proposed a framework for the
registration of overriding interests. The Committee stated that the main object of the
draft bill was to assist purchasers to gain knowledge of the statutory obligations
affecting their land, by ‘reducing the sources of inquiry to a rational minimum,
preferably the title registers’.162 However, the Committee thought it was imprudent to
extend the scope of the land title register to include restrictions on use as well as title,
stating that:
159
160
161
162
Ruoff, above n 24, 119.
Property Law Revision Committee, Parliament of New South Wales, Report on Statutory
Obligations Affecting Land (1955) 5.
Ibid 7.
Ibid 32.
49
it is not practicable to apply this principle to town planning schemes in view of their
wide ramifications in imposing restrictions and prohibitions on the user of land.
Therefore the bill provides for a source of inquiry additional to the title registers,
namely, an inquiry of the local council.163
The stated rationale for this decision was that planning schemes affect large areas of
land, making it difficult and impracticable to notify the individual owners of the
details of the schemes.164 This was of course prior to the advent of computerised
systems and advances in mapping technology, and today this process would not be
nearly as onerous.
To achieve its objects, the committee included a provision in the draft bill stating that
a statutory obligation affecting land may be notified on the register.165 The term
‘statutory obligation’ was defined to mean ‘any charge on land, or any order, award,
determination, notification, resolution or proclamation affecting the title to or
restricting or otherwise affecting the user of land, or prescribing or authorising any act
or thing to be done on land, under the provisions of any act or of any regulation made
thereunder’.166
The draft bill ensured statutory obligations are only notified on title rather than
registered by stating that ‘notification or registration of a statutory obligation shall
give it no greater effect than it would have had without such notification or
registration, nor any greater effect than is claimed for it in the memorandum’.167 The
committee explained that ‘the intention of the Bill is to distinguish between a
‘registration’ (which confers the quality of indefeasibility on the interest registered)
and a ‘notification’ (which merely burdens the title with the interest notified, for what
it is worth)’.168
Whilst the report is important as it represents one of the earliest calls for overriding
interests to be registered, it does propose a restrictive approach to extension of the
163
164
165
166
167
168
Ibid 30.
Ibid 34.
Ibid 43.
Ibid 43.
Ibid 43.
Ibid 43.
50
register. Additionally, some of the committee’s observations regarding planning
controls and other restrictions affecting regions are possibly no longer valid today in
light of technological advances. Regardless, if the ‘statutory obligations’
recommended for recording by the committee were put on title, this would have
resulted in expansion of the land title register.
The report also makes it clear that interests will only be notified upon title, and will
not receive the benefits of registration. As noted above, this is an approach that has
been used in several jurisdictions for including additional information on title.
5.4.2. 1960s
The problem of overriding interests was again addressed in 1965 by Professor Hinde,
who stated that ‘by far the greatest threat to the reliability and efficiency of the Land
Transfer system lies in the numerous statutes which enable the title to land to be
affected without any entry being made on the register’.169 He further stated that
overriding interests which exist without any requirement of registration could erode
the objectives of the Torrens system, as ‘there will be a grave danger that the picture
of the title presented by the register will be so incomplete and unreliable that the
benefits of cheapness and certainty conferred by the Land Transfer Act 1952 (NZ)
will be altogether lost.’170
Hinde remarked that ‘having made the policy decision that titles are to be registered
and that the Torrens system is appropriate to this country’s needs, the legislature
should endeavour to see that the fundamental principles of that system are
conscientiously worked out in the statutes which it passes’.171 To this end, he made
suggestions for reform of the Torrens system.
Hinde considered several options, including the option of inserting a provision in New
Zealand’s Land Transfer Act 1952 to prohibit Parliament from enacting overriding
169
170
171
Hinde, above n 29, 79.
Ibid 87.
Ibid 92.
51
legislation. However, he reached the conclusion that a Parliament cannot bind its
successors, and the insertion of such a provision would not be effective.172
Instead, Hinde concluded that a change of attitude on the part of law-makers was
necessary before change could occur. He noted that ‘the only way to safeguard our
system of registration of title in New Zealand would seem to be to convince both
politicians and law draftsmen alike that, as a matter of policy, a certificate of title
under the Land Transfer Act should disclose the existence of every statutory right or
charge which affects any part of the land comprised in the certificate of title’.173
He suggested that such a policy could be achieved through the following steps:
 ‘First, by submitting to the Registrar-General of Land every Bill containing
every provision likely to affect the title to land so that he could make a report
to the Minister of Justice stating whether or not the Bill was in conformity
with the principles of the Land Transfer system; and
 Second, by ensuring also that all Bills creating rights affecting land are
committed to the Statutes Revision Committee so that a Committee could
make sure that such Bills provide that the rights (a) would have to be noted on
the register and (b) would not be binding on a bona fide purchaser for value
unless registered’.174
He concluded with the comment that the ‘necessary change of political climate will
only take place if Law Societies, senior officers of the Land Transfer Office and
university teachers do everything in their power to bring about an increased awareness
of the value of the benefits conferred by the Land Transfer system and of the
importance of ensuring that those benefits are not leached away by statutes which
override the register’.175
172
173
174
175
Ibid 96.
Ibid 96.
Ibid 96.
Ibid 96-7.
52
5.4.3. 1970s
In 1970 Professor Whalan also identified the problematic nature of overriding
statutes, and stated that ‘since the nineteenth century reformers devised the Torrens
system, development have occurred quite independently of the system which have
helped to render it much less effective than it was’.176 Whalan continued his
commentary on overriding statutes in 1971, observing that a ‘major problem area is
concerned with matters that arise extraneously to registration but which can
nevertheless affect registered interests; the principal sources of difficulty are
overriding provisions which derogate from the avowed ideal of the Torrens system
that the “register” is everything’.177 Whalan was concerned that overriding statutes
had taken emphasis away from private rights in favour of public rights. He noted that
since the disappearance of feudal obligations, fee simple ownership had reflected the
sanctity of property, and this had been encroached upon by the existence of overriding
interests, as ‘policy has decreed that public purpose and public use should gain
immeasurably and that private responsibilities should also increase’.178
Whalan took a different approach to the NSW Property Law Revision Committee, and
suggested that obligations and restrictions on use should also be notified upon title.
He argued that:
although the individual landholder may be expected to benefit to some extent from the
advance of co-ordinated development aimed at utilitarian and aesthetic integration,
fundamentally planning imposes social and legal controls which may conflict and
override the present, projected or potential use of his land by a landholder. Hence, it is
submitted that it would be a small price to pay if, in exchange, precise notification to
individual members of the community of the extent to which the community claims this
advantage over each parcel of land were to be recorded on the certificate of title to the
land affected.179
176
177
178
179
Douglas Whalan, ‘Partial restoration of the integrity of the Torrens system register” notation of
trusts and land use planning and control’ (1970) 4 New Zealand Universities Law Review 1, 1.
Douglas Whalan, 'The Torrens system in New Zealand - present problems and future
possibilities' in G W Hinde (ed), The New Zealand Torrens System: Centennial Essays
(Butterworths, Wellington, 1971) 258, 282-3.
Ibid 287.
Ibid 290.
53
He concluded by stating that ‘the ultimate aim should be to organise land records so
that it will be possible to discover in the one register every detail of proprietorship and
every benefit or liability accruing or adhering to every parcel of land; the register will
become a complete juridical, fiscal and administrative land record’.180 He stated that
legislative change is necessary to remedy the problems caused by overriding statutes.
He made the following suggestions for reform:
 ‘First, legislation would be amended to have a subsection added to it enacting
that the provisions of the section are to apply to land under the Act
notwithstanding that any statutory provision provides for the vesting of land;
and
 Second, there would be a new section which would provide positive
machinery for the registration of all statutory charges, proclamations,
restrictions, acquisitions or dealings which are to bind bona fide purchasers of
the land; and
 Finally, the section could provide a provision that the section is not to apply to
any statutory obligations that are from time to time specifically excepted from
its operation’.181
In 1973, Professor Sackville commented on the problem of overriding statutes,
making the observation that ‘if the history of the Torrens system in Australia is any
guide there would seem to be a danger that, in the course of time, the goals sought by
the framers of novel legal institutions sometimes will be forgotten, or at least
neglected’.182 He noted that overriding statutes pose a significant threat to the Torrens
system, and stated that ‘it is destructive of the aims of the Torrens system when a
purchaser finds himself bound by pre-existing statutory interests the existence of
which is not readily ascertainable even from sources other than the register’.183
As an alternative to the problems caused by overriding statutes, Professor Sackville
suggested that legislation which imposes a charge on land should state that the charge
is ineffective until registered. He stated that this should also apply to statutes vesting
180
181
182
183
Ibid 293.
Ibid 285.
Ronald Sackville, ‘The Torrens System – Some Thoughts on Indefeasibility and Priorities’
(1973) 47 Australian Law Journal 526, 526.
Ibid 536.
54
land in public authorities.184 This is an approach that has been adopted in some
jurisdictions, and will be discussed in detail in Chapter Eight. It is a good solution, as
it prevents obligations and restrictions from operating in rem unless placed on title. To
operate effectively though, it would need to be used on a uniform basis.
5.4.4. 1980s
Professor Whalan’s 1982 book ‘The Torrens System in Australia’185 built upon his
earlier work relating to overriding statutes. In this work, he noted that ‘the integrity of
the Torrens system is being undermined by the ever-increasing number and variety of
statutes which derogate from the completeness of the protection given by registration
under the system’, and further commented that the incidence of these statutes was
reaching ‘epidemic proportions’.186 Furthermore, he wrote that:
undoubtedly the most serious derogation from the conclusiveness of the Register is the
overriding statutory obligation. Especially troublesome are those created by statute, or
under the authority of a statute, but exist quite independently of registration or
notification upon any Register and derogate very seriously from the conclusiveness of
the Torrens register.187
The Law Reform Commission of Victoria produced a report in 1987 which
considered the effect of overriding statutes, amongst other issues.188 The Commission
made the following observation:
the basic principle of the Torrens system is that intending purchasers of an interest in
land should be able to rely on the title to show any prior interest which will be binding
on them. A small number of exceptions to this principle were recognised from the
beginning. Since then, conveyancing practice has become progressively more
complicated. Interests in land and controls over its use have been made in an
uncoordinated way. This increasing complication has resulted in a substantial increase
in the amount of information which must be collected before a purchase can be
made.189
184
185
186
187
188
189
Ibid 537.
Whalan, above n 6.
Ibid 338.
Ibid 344.
Law Reform Commission of Victoria, The Torrens Register Book, Report No. 12 (1987).
Ibid [5].
55
However, rather than promoting the registration or recording of all interests in land,
the Commission instead suggested that the land title register be linked to a land
information network, termed ‘Landata’.190 This was deemed necessary by the
Commission because ‘efficiency in conveyancing and in government administration is
impeded by the lack of an integrated network of land-related information’.191
The Commission considered the range of interests affecting land, and used the term
‘administrative interests in land’ to refer to ‘administrative decisions which impose
controls on the use of land, or which licence certain activities on the land’.192 The
Commission suggested that the Landata system could be used to provide information
concerning such interests, and stated that ‘the creation of a centralised system of land
information will enable all the relevant administrative decisions to be recorded in the
agency concerned and to be made available to intending purchasers’.193 The
Commission concluded with the recommendation that ‘existing and future
administrative controls affecting the use of land, including all obligations and licences
which run with the land, should be accessible through Landata’.194
The use of such a system apart from the land title register requires a departure from
the principles underpinning the Torrens system, namely the principles of
indefeasibility of title, and completeness of the land title register. This is because the
land title register would not be the sole depository of information concerning title.
Arguably restrictions on use, such as those contemplated by the Victorian report, do
not go so far as to affect title to land, thus there is no need to register or record them
on title. However, failure to place this information on title will prevent the land title
register from meeting its goal of comprehensively providing all information.
5.4.5. 1990s onward
Between the 1970s and 1990s, with the exception of the Victorian Law Reform
Commission report, there was very little literature written on the concept of
overriding interests. In recent years, sustainability has become a governmental priority
190
191
192
193
194
Ibid vii.
Ibid vii.
Ibid [19].
Ibid [19].
Ibid [19].
56
at the international, national and state levels,195 which has led to an increase in the
number of statutes creating interests or obligations which override ownership. Since
then, there has been renewed interest in the topic, partially fuelled by litigation
including the Hillpalm case.
This section will first discuss the legal literature, which focuses mainly upon the land
title register, and then consider the surveying literature, which takes a broader view of
land administration.
Legal literature
Professor Butt has written several articles about overriding interests, in the context of
the Hillpalm litigation. Following the Court of Appeal decision, Professor Butt made
the comment that whilst indefeasibility of title is the key feature of the Torrens
system, it is under constant attack from other statutes.196 From Professor Butt’s
commentary, it appears that his main concerns centres around the completeness of the
land title register. This is best demonstrated by the following quotation:
if correct, the Hillpalm decision reflects a growing legislative tendency to undermine
the conclusiveness of the Torrens register. In essence, it requires two steps from
prudent conveyancers: (1) a search of council records for unfulfilled consent
conditions; and (2) a search of superseded registered plans, looking for endorsements
which, though absent from the current plan, might reflect (and so lead to uncovering)
unfulfilled council consent conditions. The first step compels a search of a “second
register”, outside the Torrens register. The second step compels a search of superseded
elements of the Torrens register. Both are inimical to the philosophy behind the Torrens
system. Sir Robert Torrens would not have been pleased.197
Professor Butt wrote another article on Hillpalm following the High Court decision.
As mentioned above, he made the comment that purchasers did not need to concern
themselves with consent conditions relating to subdivision, but, should search for
unfulfilled consent conditions relating to the continuing use of land. 198 Although this
195
196
197
198
D E Fisher, 'Sustainability, the built environment and the legal system' in J Yang, P S Brandon
and A C Sidwell (eds), Smart & Sustainable Built Environments (Blackwell Publishing Inc,
Massachusetts, 2005) 245, 246.
Peter Butt, ‘Indefeasibility Overridden -Significantly’ (2003) 77 Australian Law Journal 88, 88.
Ibid 89.
Butt, above n 134, 145.
57
did appear to narrow the scope of overriding interests, Professor Butt still expressed
concern about the need to perform additional searches, commenting that:
how do they find out about such conditions? Only by searching council records. So the
obligation to search remains – it is just that the object of the search is narrower (but no
less expensive or time-consuming).199
Professor Butt has also discussed overriding statutes in the most recent edition of his
Land Law text. He noted that indefeasibility provisions may be repealed by later
legislation, and generally this repeal occurs by implication.200 He remarked that the
consequence is ‘to leave the Register in a misleading state, for although the Real
Property Act purports to make the Register conclusive, the registered title may in fact
be subject to statutorily-endorsed interests that the Register does not disclose’.201
In his book, Professor Butt further emphasised the need to undertake further searches
to properly assess whether there are any interests affecting title. He noted that:
so substantial are the inroads of overriding statutes into indefeasibility of title that it is
imprudent, when acquiring interests in Torrens title land, to rely solely on the Register
as an accurate mirror of the registered proprietor’s title. To do so invites ambush from
unrecorded interests. In the result, overriding statutes pose perhaps the greatest single
threat to public confidence in the Torrens system.202
As Professor Butt has highlighted in his work, the present state of the Torrens register
requires a prospective purchaser of land to undertake multiple searches to ascertain all
interests affecting land. This supports a conclusion that reform is necessary to
condense the number of enquiries which must be undertaken by a prospective
purchaser.
These notions are reiterated by Edgeworth, who recently wrote an article discussing
the problem of overriding statutes, with particular attention to the differences in
judicial approaches.203 This article was written prior to the Court of Appeal decision
in Bonaccorso, and noted that the first instance decision was ‘a good result for
199
200
201
202
203
Ibid 145.
Butt, above n 47, 796.
Ibid 796.
Ibid 798.
Edgeworth, above n 120.
58
planning and environmental laws’.204 However, the Court of Appeal decision is likely
to provoke a contrary conclusion, which is that the current state of the law is a good
result for the Torrens system. Regardless of which system is given primacy,
Edgeworth’s comments are still valid, particularly his observation that ‘perhaps it is
time for policy makers to consider if, and how, these two divergent regulatory
regimes might be better reconciled’.205 This supports reform of the present approach.
Edgeworth also noted that ‘advances in information technology make this objective
more feasible than at any time in the past’.206 This is a point that has been addressed
in the literature written from a surveying perspective, which will be discussed below.
Surveying literature
This problem of incompleteness has been recognised by the Queensland government,
which commissioned a report on property rights undertaken by a team of surveyors.
This report, written by Lyons et al, predicted that ‘the number of rights, obligations
and restrictions (property rights) attached to land will continue to grow to meet everchanging planning and environmental issues and will impact on development and the
land supply chain. To meet the standards for future sustainability it will be essential
that such property rights are clear, searchable, and definable in location’.207 Lyons et
al, similarly to Edgeworth, also placed emphasis upon new technologies as a
mechanism to support reform.
This report emphasised that the number of rights, obligations and restrictions will
continually expand, further affecting the reliability of the Torrens register. However,
Lyon et al also wrote that a searchable register of these overriding rights, obligations
and restrictions would assist the promotion of ecologically sustainable development.
This suggests that an integrated register could possibly alleviate both problems.
Lyons et al also commented upon the public nature of most overriding statutes. The
authors noted that whilst ‘traditionally land management was viewed as an owner’s
business alone, this is no longer the case due to environmental and sustainability
204
205
206
207
Ibid 97.
Ibid 97.
Ibid 97.
Ken Lyons, Ed Cottrell and Kevin Davies, 'Report on the Efficiency of Property Rights
Administration in Queensland' (2002), 21.
59
concerns’.208 Instead, the authors concluded that it is necessary to take a holistic view
of property rights, which includes all rights, obligations and restrictions,209 and stated
that a holistic view would confer the following benefits:
 holistic land management and improvements in sustainability are likely to be
much more difficult to attain without holistic property rights and markets,
management and information;
 a lack of holistic property rights management and administration is likely to
adversely affect the security of rights, their value and tradability; and
 any non-holistic approach will very likely be less effective and efficient.210
In the context of reform of the current system, Lyons et al stated that:
some probably hold the view that a holistic view is not appropriate and the above
definitions are not appropriate. Some view land administration as dealing solely with
the recording of possession rights, interests and obligations as recorded on a title and
that it has little to do with the creation and allocation of ROR’s, and that each type of
right should be treated independently. Improvements would be obtained by regulatory
reform. Others would argue, and this report does, that the above has been the
traditional way and that it is in need of change (emphasis added).211
This change would appear to include extending the land title register to cover
restrictions on use as well as restrictions on title. Although this is a significant change,
the report suggested that such a drastic change away from the traditional model of
land administration is necessitated by the need to achieve sustainability.
The authors of that report built upon their analysis in a book chapter published in
2007, and discussed the effect of obligations and restrictions on title and use on the
Torrens register. They noted that ‘several original intents of the Torrens system have
been eroded, such as the principle of holding in one place all information necessary to
take into account in a transaction. It also appears that some of the original defects the
208
209
210
211
Ibid 43.
Ibid 44.
Ibid 44.
Ibid 45.
60
Torrens system was established to overcome, such as complexity, uncertainty and
cost, have crept back in’.212
Lyons et al further reiterated the need to reform the current system, and summarised
the reasons for this as follows:
 it is difficult and costly to determine what restrictions affect a parcel of land;
 the costs of complying with legislation is becoming very high, and this is also
causing uncertainty; and
 this uncertainty is beginning to have an adverse impact on security, which can
impact on property value.213
There has also been a lot of research conducted by the Centre for Spatial Data
Infrastructures and Land Administration at the University of Melbourne concerning
this issue. A key driver for this research was the Bathurst Declaration, devised in
1999.214 The Bathurst Declaration was developed by a group of surveyors, and
recommended that nations commit to:

providing for security of tenure for landholders;

promoting reform of land administration to achieve sustainable development;
and

encouraging government departments to share land information amongst
themselves, and with the public.215
This Declaration was the precursor to a number of publications by the Centre. Bennett
et al specifically addressed the problem of overriding statutes, making the following
comment:
legislation is created in an ad-hoc manner and the institutions which administer the
regulations are not integrated. The laws have undermined the vision of a single registry
212
213
214
215
Ken Lyons, Kevin Davies and Ed Cottrell, ‘The Need to Consider the Administration of
Property Rights and Restrictions before Creating them’ in Alex Smajgl and Silva Larsonv (eds),
Sustainable Resource Use: Institutional Dynamics and Economics (Earthscan, London, 2007)
208, 216.
Ibid 218.
International Federation of Surveyors, The Bathurst Declaration on Land Administration for
Sustainable Development (1999)
<http://www.fig.net/pub/figpub/pub21/figpub21.htm#WORKSHOP%20FINDINGS> at 26
November 2009.
Ibid.
61
as the depository of all interests in land. Unlike the centralized management and law
making related to the ownership layer, the creation of restrictions has been reactionary,
ad hoc and noncentralized. The legislative restrictions are valuable; however, they
work outside existing land administration systems. A title no longer reflects all interests
in land and many interests are not secured or easily accessible.216
This research essentially supports reforming land administration systems so that they
are more integrated in their approach. The Centre’s research to date has focussed upon
how to classify property rights, obligations and restrictions within an information
framework.217 A recent publication noted that whilst there has been a lot of literature
dealing with holistic management of interests, there is very little that deals with
implementing the concept.218 This supports the need for research considering how
information can be managed in an integrated manner.
Conclusion
This recent literature demonstrates that the growing trend towards sustainable
management of land and natural resources has led to an increased number of statutes
which create obligations and restrictions on land use.
5.5.
Conclusion
This review of case law and commentary demonstrates a timely need to consider how
the present system can be reformed. This review shows that overriding statutes have
been recognised as problematic since as early as the 1950s, and that this problem is
becoming more prevalent as more overriding statutes are enacted. Importantly
however, it also shows that solutions to this problem are becoming more feasible, due
to computerised technology. The existence of this problem, and the feasibility of
technological solutions, shows that it is relevant to consider in detail how obligations
and restrictions on land title and use can be most effectively managed.
216
217
218
Bennett et al, above n 5, 200.
See for example Rohan Bennett, Jude Wallace and Ian Williamson, ‘Organising land
information for sustainable land administration’ (2008) 25(1) Journal of Land Use Policy 126;
Ibid 127.
62
6.
Conclusion
This chapter has demonstrated that the goals of the Torrens system are no longer
being met due to the ever-increasing number of statutes which override title, or place
obligations or restrictions upon use. Whilst the Torrens system was developed to
protect private property rights, today governments are more concerned with
implementing legislation to serve public purposes, without regard to the effect on
private rights.
Additionally, cases such as Bonaccorso demonstrate that the sustainability objectives
of obligations and restrictions on land use may be lost when these instruments are not
notified on title, or made available through another easily accessible source. This
supports the assertion that integrated management of land titles and obligations and
restrictions on use can lead to better environmental outcomes.
Furthermore, whilst there have been a number of calls for reform of the current
situation, to date there has been no entirely satisfactory resolution of this problem in
any Australian jurisdiction. As a result, a detailed review of the current approach with
a view to formulating suggestions for reform is warranted, and will be undertaken in
this thesis.
Part Two of this thesis will consist of three case studies, which will be analysed to
determine how they are currently managing obligations and restrictions on land title
and use, and whether their current approach is effective. Part Three of this thesis will
then analyse the results of these case studies, and formulate recommendations for
reform of the current system.
63
Chapter Three
Methodology and overview of case studies
1.
Introduction
The purposes of Chapters One and Two were to introduce the problem, and
demonstrate why further research in this area is needed.
Chapter Two provided a review of the literature relating to the Torrens system, and
the effect of overriding interests, and concluded that the ability of the Torrens system
to meet its objectives is currently under threat. This is because the majority of statutes
enacted to promote environmental sustainability create obligations and restrictions
which operate externally to the Torrens system of land registration. This has also
decreased the effectiveness of such statutes in achieving the goal of ESD.
Although there have been numerous calls for reform of the present system,
management of obligations and restrictions on land title and use is still not occurring
on a uniform basis. Furthermore, there is no discernable distinction underpinning
when restrictions and obligations are placed on title, and when they are not. Whilst the
Torrens register was traditionally a repository of restrictions on title only, today there
are obligations and restrictions on use of land which may also be registered. Despite
this expansion, the Torrens system only allows for registration of a narrow range of
interests, and many obligations and restrictions on land use do not fit within these
categories of registrable interests. Instead, obligations and restrictions are found in a
myriad of separate statutes which operate externally to the land title register. Because
these are not easily discoverable, it is difficult for landholders and prospective
purchasers to ascertain the range of interests which affect their land. This is
undermining the goals of the Torrens system, as well as making it difficult for
landholders to adhere to any obligations or restrictions affecting their land. This has
led to a clear need for reform of this area.
The objective of this thesis is to suggest how obligations and restrictions on land title
and use can be most effectively managed within, or alongside, a Torrens framework
64
of land registration. To assist with this analysis, a comparative methodology will be
adopted and applied to three case study jurisdictions.
This chapter will discuss the comparative methodology, and its application to this
thesis. It will also introduce the three case studies which have been chosen. The
purpose of undertaking these case studies is to survey several different approaches to
management of obligations and restrictions in Torrens jurisdictions, and to identify
which features of these approaches are most successful, and also to address any
potential problems with these features.
The first case study will be Queensland, which is indicative of the current approach to
natural resource management used in most Australian jurisdictions. This approach is
one of fragmented management – resources are managed under separate legislative
regimes and by a number of government departments.
Queensland will then be compared with Western Australia, and New Zealand, both of
which have a Torrens system of land registration, and have developed novel
approaches to the management of obligations and restrictions on land use.
Finally, this chapter will set out some guidelines for comparison as a basis on which
these jurisdictions will be assessed and compared to ensure uniformity.
2.
Methodology
This section will discuss the theoretical basis for the comparative methodology. It will
first outline the purpose and objectives of adopting a comparative methodology. It
will then briefly introduce the jurisdictions to be compared.
This section will then outline and apply the pre-requisites and rules which must be
fulfilled prior to applying the comparative methodology. Finally, it will demonstrate
why the comparative methodology is relevant to this thesis.
65
2.1.
The purpose and objectives of adopting a comparative methodology
The methodology that will be used in this thesis is a comparative methodology. This
section will discuss the academic literature outlining the objectives and utility of
adopting a comparative methodology.
Hutchinson suggests that the comparative methodology is useful if approached with a
goal of achieving more than a mere comparison of sameness and differences between
systems. The comparative methodology can instead be used to learn more about a
legal system by comparing it to others, and to identify solutions to novel legal
problems already addressed in other jurisdictions.1
Comparative law can be used for a number of purposes. Gutteridge stated that
comparative law is particularly useful to law reform.2 He remarked that a legislator
cannot always rely on existing sources of law, and highlighted the usefulness of
examining other systems to glean experience. He stated that ‘there is often much to be
learned from the process of trial and error which is a feature of much of our modern
legislation’.3
The objects of comparative law, as identified by Gutteridge, are:
 To discover how far any differences which may exist are fundamental in
character or merely accidental;
 To determine the causes underlying any such differences; and
 To form an estimate of their respective merits or demerits, having regard to the
particular conditions in which they are called upon to function.4
de Cruz also stated that comparative law can be used for a number of purposes,
including:
 As an academic discipline;
 As an aid to legislation and law reform;
1
2
3
4
Terry Hutchinson, Researching and Writing in Law (Lawbook Co, Pyrmont, 2nd ed, 2006), 106.
H.C. Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study
& Research (University Press, Cambridge, 2nd ed, 1949), 35.
Ibid 36.
H.C. Gutteridge, 'The value of comparative law' (1931) The Journal of Public Teachers of Law
26, 27.
66
 As a tool of construction;
 As a means of understanding legal rules; and
 As a contribution to the systematic unification and harmonisation of laws.5
For present purposes, comparative law as an aid to law reform is the most relevant.
Fang described the comparative method as involving ‘not only the identification of
legal problems in one country, but also, and mainly, comparative analysis of what are
claimed to be comparable laws from other historical periods and other legal or
normative systems’. The usefulness of this is that we can ‘learn, from one law’s
strong points and another’s weaknesses, how to improve our own countries’ legal
system and science of law’.6
The comparative law methodology will be used in this thesis to assist with an
examination of methods used in other jurisdictions, with a goal of selecting those
features which may improve the Australian system of the management of obligations
and restrictions on land title and use. The jurisdictions were selected as there are some
major differences in their approaches to land and natural resources management,
which will be discussed in this thesis. An examination of these differences will assist
in identifying those features which should be adopted in an effective system for
management of obligations and restrictions on title and use.
The following section will briefly introduce the subject jurisdictions.
2.2.
Jurisdictions to be compared
2.2.1. Queensland
Queensland has been chosen to represent the status quo in terms of management of
obligations and restrictions on land title and use in most Australian jurisdictions. All
Australian states, including Queensland, have large volumes of environmental
legislation. One commentator discussed the large volume of provisions which
5
6
Peter de Cruz, Comparative Law in a Changing World (Routledge-Cavendish, New York, 3rd
ed, 2007) 18.
Li Fang, ‘The Methodology of Comparative Law’ (1994) Special volume Asia-Pacific Law
Review 31, 31-2.
67
override title in Victoria, and noted that ‘there is little reason to suppose that the
position…is significantly different in other states’.7 Thus it is acceptable to review
one State as representative of an approach used across Australia.
Environmental management in Queensland is undertaken on a fragmented basis, with
one study identifying over 188 statutes impacting upon the environment and property
rights.8 In Queensland there is separate legislation regulating water, vegetation, fauna,
soil, minerals, planning, coastal management and environmental protection, along
with many other statutes impacting on title or use.9 In some cases, obligations and
restrictions imposed by legislation are capable of registration on the land title register.
The main examples are statutory covenants for environmental preservation, easements
under the Sugar Industry Act and profits á prendre under the Forestry Act. However,
in most cases, obligations and restrictions may be found either recorded on title as
administrative advices,10 on a separate, resource-specific register (eg. the
contaminated land register), or in the text of the legislation itself.
Chapter Four will discuss and analyse all Queensland legislation which creates, or
allows for the creation of, obligations and restrictions on land title and use in order to
promote environmental sustainability. The purpose of this analysis will be to examine
how obligations and restrictions on land title and use are presently managed in
Queensland. Chapter Four will then assess this management regime according to the
guidelines for comparison which will be developed below.
2.2.2. Western Australia
Western Australia has been chosen as a case study as it has made significant progress
towards integrated management of obligations and restrictions on land title and use.
7
8
9
10
Brendan Edgeworth, ‘Planning law v property law: Overriding statutes and the Torrens system
after Hillpalm v Heaven's Door and Kogarah v Golden Paradise’ (2008) 25 Environmental and
Planning Law Journal 82, 83.
Ken Lyons, Ed Cottrell and Kevin Davies, 'Report on the Efficiency of Property Rights
Administration in Queensland' (2002) 5. However Chapter Four will show that there are only
approximately 30 environmental statutes which impact upon land use in any significant way.
Discussed in detail in Chapter Four.
This means the obligation or restriction is visible on title, but does not attract the benefits of
registration. This will be discussed at length in Chapter Four.
68
Western Australia is similar to Queensland in that there are numerous statutes creating
obligations and restrictions on title and use, with several government departments
having responsibility for administration of these statutes.
The Western Australian government has recognised the problems with this approach,
and recently undertook a process of reform, which resulted in the development of a
search platform called the Shared Land Information Platform (“SLIP”). SLIP allows a
user to perform a single search which will simultaneously search all government data
to give an accurate picture of all obligations and restrictions on title and use.
Chapter Five will discuss the Western Australian approach to management of
obligations and restrictions on title and use, and use the guidelines for comparison to
assess its effectiveness.
2.2.3. New Zealand
New Zealand is an appropriate comparator as its legal system has sufficient
similarities to the Australian legal system. New Zealand is a common law jurisdiction,
and it has in place a Torrens system for land registration. Therefore features of the
New Zealand system could realistically be adopted in Australia.
New Zealand is a useful case study because most environmental obligations and
restrictions on title and use are managed through a single legislative regime. In the
late 1980s the New Zealand government embarked on a process of reform, which
culminated in the Resource Management Act 1991 (NZ) (“RMA”). The RMA
provides for the administration of a number of obligations and restrictions on title and
use, and also defines the roles and responsibilities of local government authorities in
managing natural resources.
Chapter Six will discuss the New Zealand approach and assess its effectiveness
according to the guidelines for comparison developed in this chapter.
69
2.3.
Prerequisites to using the comparative method
The above section outlined the jurisdictions to be compared in this thesis. The purpose
of this section is to justify why these jurisdictions are appropriate subjects for
comparison.
Schmitthoff suggested that there are several prerequisites to undertaking the
comparative process:
 The topic or topics under examination must be comparable;
 Regard must be had to their legal and social background; and
 An analytical classification of an impartial and scientific character must be
applied to the jurisdictions being investigated.11
With regards to the first point, Hutchinson stated that jurisdictions must be chosen
carefully, to ensure that there are good overlaps between the legal systems to facilitate
discussion.12 It is necessary to consider factors such as historical development,
sources of law, hierarchy, legal institutions, and economic and political structures.13
Gutteridge also noted that particular attention must be given to the subject-matter of
the comparison. He stated that ‘like must be compared with like, and the concepts,
rules or institutions under comparison must relate to the same stage of legal, political
or economic development’.14
As part of this thesis, three case studies will be undertaken. The case study
jurisdictions will be Queensland, Western Australia, and New Zealand. Applying the
prerequisites for comparison:
 The topics under comparison are comparable, as this thesis is assessing each
jurisdiction on the basis of their approach to natural resource management, and
any interactions with the land title register;
11
12
13
14
M. Schmitthoff, 'The Science of Comparative Law' (1939-1941) 7 Cambridge Law Journal 94,
96.
Hutchinson, above n 1, 107.
Ibid 109.
Gutteridge, above n 2, 73.
70
 The legal and social backgrounds of these jurisdictions are sufficiently
comparable, as they all have common law systems, and all utilise a Torrens
system of land registration; and
 An impartial analysis will be carried out, as each jurisdiction will be assessed
according to uniform guidelines for comparison which will be discussed
below.
Therefore the prerequisites for comparison are satisfied.
2.4.
Rules for applying the comparative process
Fang asserts that there are several rules underpinning comparative analysis which
must be followed prior to undertaking the analysis. There rules are:
1. Defining the subject to be compared – Fang states that the researcher must
collect all relevant material and determine whether they are analysing the law
merely on paper, or as it exists in reality. If it is the latter, the comparison can
‘assist us in identifying the shortcomings of our own country’s legislation and
allow us to absorb beneficial experiences into domestic legislation’;15
2. Defining the comparison – it is necessary to identify what aspect of the
systems is being compared. There must be some similarity for the researcher
to be able to identify advantages and disadvantages. For example, a
comparison between the law of marriage and the law of natural resources will
not provide any useful information;16 and
3. Concreteness – it is necessary to give the analysis a concrete form.17
The final rule relating to concreteness requires further explanation. Fang states that
the following matters must be determined prior to undertaking an analysis:
 Length comparison or breadth comparison – whether the examination is of
laws of different historical periods, or of different countries during the same
historical period;
15
16
17
Fang, above n 6, 34.
Ibid 35.
Ibid 35.
71
 Macroscopic or microscopic comparison – whether the examination involves
comparison of the legal system as a whole, or on similar specific laws of
different countries;
 Inner comparison or outer comparison – whether laws are of the same or a
different type comparatively; and
 Functional comparison or structural comparison – a functional comparison
looks at what laws countries have adopted to deal with similar situations,
whereas a structural comparison compares the structures of legal systems.18
These rules are satisfied in relation to this study. The subject to be compared is clearly
defined; this thesis will compare how obligations and restrictions on land title and use
are managed in the subject jurisdictions. Further, the study will involve examining
both the laws ‘on paper’ and ‘in reality’.
Second, the comparison is defined. This thesis is examining a very specific part of
each jurisdictions legal system, namely, how information concerning obligations and
restrictions is managed, and specifically, whether the land title register is utilised at all
for this purpose.
Finally, in relation to Fang’s third rule regarding concreteness, the following
observations may be made:
 A breadth comparison is being used, as this thesis will examine laws of
different countries in the same time period;
 A microscopic comparison will be made, as this thesis is only looking at laws
concerning obligations and restrictions on land title and use;
 An inner comparison will be made, as the comparison will involve laws of the
same type; and
 A functional comparison will be made as this thesis will look at laws rather
than the structure of legal systems.
As these rules are satisfied, the comparative methodology is appropriate for
application to this study.
18
Ibid 35.
72
2.5.
Carrying out the comparative process
Since the prerequisites and rules for the comparative methodology are satisfied, it is
necessary to discuss how the comparison will be carried out. Kamba developed a
process for comparing legal systems consisting of three steps:
 Descriptive phase – involves describing the systems involved, and examining
the legal solutions provided by those systems;
 Identification phase – involves identifying similarities and differences between
the systems; and
 Explanatory phase – during this phase the similarities and differences are
accounted for.19
Kamba states that all of these phases are essential to the comparative process, as
merely describing various systems without attempting to relate them is not
comparative law.20 The following quote best emphasises the nature of comparative
law:
the ultimate test in evaluating the technique or techniques employed is: does the
technique of comparison employed adequately or effectively fulfill the object or objects
which the comparatist has decided on? Does it, for example, promote the better
understanding of one’s own law, the formulation of reliable theories of law, the
promotion of law reform or unification?21
Kamba’s approach has been built upon by other commentators. Hutchinson identified
four distinct stages of the comparative process:
 Identification of an issue which crosses boundaries;
 Examination of the context or framework of the jurisdictions selected;
 A brief description of each jurisdiction;
 Analysis of differences and relationships between the jurisdictions.22
19
20
21
22
W Kamba, ‘Comparative law: a theoretical framework’ (1974) 23 International and
Comparative Law Quarterly 485, 511-2.
Ibid 512.
Ibid.
Hutchinson, above n 1,108.
73
This once again emphasises that the comparative process must go beyond simply
listing attributes of the legal systems under review.
de Cruz provided a more detailed analysis of the comparative process, separating it
into eight distinct phases:
Step One – identify the problem and state it as precisely as possible;
Step Two – identify which foreign jurisdictions will be compared to the home
jurisdiction;
Step Three – decide which primary sources of law are going to be needed;
Step Four – gather and assemble the material relevant to the jurisdiction being
examined;
Step Five – organise the material in accordance with headings reflecting the
legal philosophy and ideology of the legal system being investigated;
Step Six – map out possible solutions, taking note of any differences which may
affect comparison;
Step Seven – critically analyse the legal principles;
Step Eight – set out conclusions within a comparative framework, ensuring that
they relate to the original purpose of the enquiry.23
It is necessary to address how the comparison will be carried out in this thesis. As
discussed above, a comparative analysis must follow a distinct method. Chapters
Four, Five and Six will describe the systems in place in each jurisdiction, and assess
them according to uniform guidelines for comparison. These guidelines are useful for
clearly identifying similarities and differences between the systems. Chapter Seven
will then compare and analyse the distinctions between the jurisdictions, and Chapter
Eight will make recommendations for reform, taking into account any potential legal
issues and barriers to implementation.
The comparative methodology in this thesis will also satisfy de Cruz’s process:
 Chapters Four, Five and Six will examine the jurisdictions selected, and
provide a detailed description of the operation of their system for the
management of obligations and restrictions on title and use. These chapters
23
de Cruz, above n 5, 242-245.
74
will also assess each jurisdiction according to the guidelines set out below.
This will satisfy steps three, four and five of de Cruz’s comparative process;
and
 Chapters Seven and Eight of this thesis will satisfy steps six to eight, by
critically analyzing the results of the case studies, and providing suggestions
for reform.
This has demonstrated that the comparative methodology will be applied
appropriately in this thesis.
2.6.
Conclusion
This section has demonstrated the applicability of the comparative methodology to
this thesis. One of the most important pre-requisites to applying this methodology
appropriately is ensuring that jurisdictions are assessed on the same features. The
following section will develop guidelines for comparison which will be used in this
thesis to assess the case study jurisdictions, thereby satisfying this requirement.
3.
Guidelines for comparison
The purpose of this thesis is to analyse how obligations and restrictions on title and
use, particularly those regulating environmental outcomes, can be most effectively
managed within the context of a Torrens framework of land registration.
The outcome of this thesis will be a series of recommendations for a new system for
the management of obligations and restrictions on land title and use, which
comprehensively catalogues all obligations and restrictions. The intended benefits of
such a system are twofold:
1. A comprehensive register or management system would provide greater
certainty for landholders and prospective purchasers, as they could more easily
access information on obligations and restrictions affecting a parcel of land.
This would also benefit decision-makers by ensuring they had access to
current and accurate information; and
2. Such a system would also contribute to sustainable use of natural resources, by
ensuring that any obligations and restrictions on land title and use designed to
75
promote environmental protection are brought to the attention of affected
persons. Cases discussed in Chapter Two demonstrated that compliance with
environmental laws is difficult in the absence of accurate and complete
information. Thus complete and accurate information can contribute to
compliance with environmental laws.
As part of this analysis, three case studies will be examined to determine how
obligations and restrictions on title and use are currently being managed across
different jurisdictions. Each jurisdiction will be assessed with the aim of ascertaining
the features needed for a management regime to provide the benefits listed above. It is
not the intention of this thesis to pick one jurisdiction of the three as the ‘best’, and
thus suggest that its approach should be adopted entirely. Rather, the purpose of this
thesis is to assess several distinct methods of management of information concerning
obligations and restrictions, to ascertain which features are effective and which are
ineffective. It will also identify and address any potential legal problems with these
features, and barriers to implementation. The end result of this thesis is to make
recommendations for reform, and the findings of the case studies will inform these
recommendations.
The literature outlining the comparative process emphasised the need to compare the
systems to identify points of similarity and difference. In order to undertake this
analysis, it is necessary to determine which aspects of the systems will be compared.
To do this, a set of uniform guidelines for comparison will be used. As there are no
set guidelines for examining the legal merits of a system for the management of
obligations and restrictions on title and use, this thesis will adopt its own set of
guidelines. These guidelines will merely provide a point of comparison amongst the
jurisdictions, and will not be used to rank the jurisdictions surveyed. Rather they will
be used to identify which features of a system assist with effective management of
obligations and restrictions on land title and use.
The guidelines in this thesis have been developed on the basis of the relevant
literature surveyed in Chapter Two. Chapter Two discussed the literature
76
chronologically, and from this review the literature appears to fall within two broad
categories:
 Literature addressing the components of a Torrens system – this is literature
which addresses the traditional components of the Torrens system, and
outlines the key features of a Torrens system; and
 Literature addressing the components of a modern land registration system –
this is literature which is written predominately from a surveying perspective,
and examines how a modern land registration system can contribute to
sustainability.
The first category of literature places emphasis upon protection of private rights. In
contrast, the second category relates largely to public rights, and focuses upon how
effectively the land administration system facilitates sustainability as a public right.
As noted by one commentator, ‘where common law was primarily concerned with
resolving conflicts between individuals…modern environmental and land use
regulation proceeds from a more integrated ecocentric and community oriented view
of land use and environmental responsibility’.24 This encapsulates the distinction
between these two categories of literature.
Both private and public rights are relevant to the objective of this thesis, which is to
determine how information concerning restrictions on and obligations affecting title to
and use of land may be most effectively managed in Australia. One of the intended
outcomes of this thesis is to make recommendations for a management regime which
provides greater certainty to landholders and prospective purchasers, which is a
private right. However, an additional outcome of this thesis is to make
recommendations which allow for more effective management of obligations and
restrictions on use to ensure that their environmental protection purposes are being
fulfilled. This involves protection of a public right. Thus both categories of literature
are relevant.
24
David Grinlinton, ‘Property Rights and the Environment’ (1996) 4 Australian Property Law
Journal 41, 62.
77
It is inappropriate to consider only literature addressing the Torrens system alone, as
many obligations and restrictions on title and use are managed through different
systems. Additionally, the range of obligations and restrictions has increased
exponentially since the development of the Torrens system, as ESD has become a
pressing concern. To recognise this, the guidelines for comparison in this thesis need
to consider a broader range of issues.
These two categories of literature will be discussed in turn below. Finally, a set of
guidelines will be developed for the purpose of this thesis, which attempt to strike a
balance between public and private rights, and assess the degree to which each
management regime provides for effective management of obligations and restrictions
on title and use. These guidelines for comparison will be used to assess how
effectively the system meets the traditional goals of the Torrens system, whilst
ensuring that modern obligations and restrictions on land use are visible to affected
persons.
Therefore this thesis will be assessing the jurisdictions upon more than just its land
title register. Each jurisdiction will be assessed according to what obligations and
restrictions on land title and use are present, and how these obligations and
restrictions are managed. The guidelines to be applied must reflect this.
3.1.1. Guidelines underpinning the Torrens framework of land registration
Land registration systems were traditionally concerned only with the protection of
private rights. When the Torrens system was developed in the mid-19th century as a
new land registration system, and there were a number of principles underpinning its
operation. The literature relating to the Torrens system has been discussed in detail in
Chapter Two, and will not be discussed again here. From the literature review in
Chapter Two, it is possible to isolate the following guidelines against which the
success of a Torrens system of land registration can be measured:
 Simplicity;
 Accuracy;
 Security of title;
78
 Independence of title (ie. It is not necessary to examine historical transactions
to establish good title); and
 Lowered transaction costs.25
These guidelines are sourced from an examination of the literature in Chapter Two,
including the writings of Ruoff and Fortescue. This chapter does not propose to
restate the material discussed in Chapter Two. An effective Torrens system will
provide simplicity, by ensuring that a prospective purchaser need not undertake
numerous searches. This will also lead to lowered transaction costs. A Torrens
register will provide an accurate picture of title, and it will also be secure. Title will be
independent of previous transactions.
These guidelines reflect the prevailing social concerns at the time the Torrens system
was developed, namely security of landholding. Lyons et al remarked that ‘the
administration of freehold land has been mainly concerned with the granting and
recording of title and support to conveyancing’.26 As a result, the Torrens system was
not initially designed to support broader societal goals such as sustainability, and was
implemented merely to protect private rights. As one of the aims of this thesis is to
propose a management regime which provides greater certainty to landholders and
prospective purchasers, these guidelines are relevant.
3.1.2. Guidelines for a modern land administration system
3.1.2.1. The concept of land ‘administration’ and the changing role of property
Whilst the above guidelines relate solely to land title registration, more recent
literature has focused upon the broader concepts of land ‘administration’ and
‘management’. Lyons et al noted that land administration traditionally ‘has been
mainly concerned with the granting and recording of title and support to
conveyancing’.27 In contrast, land management has a slightly different meaning, and
is also discussed by Lyons et al as follows:
land management has generally been considered to be how an “owner” uses and
manages land for a productive economic purpose, and to apply to rural and large
25
26
27
See Chapter Two, 3.1-3.4.
Lyons et al, above n 8, 42.
Ibid 42.
79
holdings, rather than small urban holdings. Traditionally land management was viewed
as an owner’s business alone but this is no longer the case due to environmental and
sustainability concerns. A range of recent Legislation has imposed restrictions and /or a
duty of care on some landholders. Traditionally land administration and land
management were seen to have little in common, but this is no longer the case.28
What this analysis demonstrates is that a land title registration system is no longer
sufficient, and it is necessary to consider a broader system of land administration
which incorporates any obligations and restrictions on use. As such, this thesis will
need to adopt guidelines for comparison which ensure that the case studies are
assessed according to whether they provide for effective dissemination of information
concerning both title and use.
This shift toward land administration as a broader concept has been driven primarily
by changing societal concerns throughout the past century. At the time that the
Torrens system was introduced, property was viewed primarily as a means of
economic development. As a result, it was traditionally subject to few restrictions on
its use. However, during the 20th century, it was recognised that environmental quality
was deteriorating, and land use subsequently became subject to a number of
restrictions.
3.1.2.2. Guidelines for assessing a land administration system
Governments in Australia have responded to the environmental crisis mainly through
the enactment of legislation which generally regulates the use of a single
environmental resource. This is evident in the report compiled by Lyons et al, who
noted that whilst ‘there are various calls on the urgent need to manage land more
holistically (for environmental and sustainability reasons), the administration of the
rights, obligations and restrictions on land and its components, tends not to be carried
out holistically’.29 This point was reiterated by Godden and Peel, who noted that
‘what has been lacking for ESD to date is not acceptance in environmental law but,
rather, effective legal implementation’.30
28
29
30
Ibid 43.
Ibid 43.
Lee Godden and Jacqueline Peel, Environmental Law: Scientific, Policy and Regulatory
Dimensions (Oxford University Press, Melbourne, 2010) 283.
80
Lyons et al concluded that sustainable development requires a more integrated and
holistic view of land administration, because of the following matters:
 Holistic land management and improvements in sustainability are likely to be
much more difficult to attain without holistic property rights and markets,
management and information;
 A lack of holistic property rights management and administration is likely to
adversely affect the security of rights, their value and tradability; and
 Any non-holistic approach will very likely be less effective and efficient.31
They suggested some guidelines which should underpin modern land administration
systems. These guidelines emphasise that property rights should be:
 Clearly defined;
 Completely and exclusively allocated (that is, holders of property rights
should be guaranteed exclusive use);
 Secure;

Legally enforceable; and

Tradable.32
Additionally, they stated that the objectives of a land administration system should be:
 To ensure property rights are clearly defined and secure;
 To support the operation of markets in property rights;
 To ensure transactions can be carried out
 To provide legally correct, integrated information;
 To enable property rights to be used as a source of capital;
 To contribute to social stability;
 To contribute to natural resource and environmental sustainability; and
 To operate effectively and efficiently.33
31
32
33
Ibid 44.
Ibid 68.
Ibid 6.
81
These are similar to the guidelines set out by the International Federation of
Surveyors (“FIG”) in their 1995 Statement on the Cadastre. Although this Statement
refers specifically to cadastral systems, a broad definition of the cadastre is adopted.
FIG define ‘cadastre’ to include the following elements:
 It is a land information system managed by one or more government agencies;
 It provides those involved in land transactions with relevant information and
helps to improve the efficiency of those transactions and security of tenure in
general;
 It is a parcel-based system, ie. information is geographically referenced to
unique, well-defined units of land; and
 Graphical indices of these parcels, known as cadastral maps, show the relative
location of all parcels in a given region.34
Given the broad definition of ‘cadastre’ adopted in the statement, it appears that the
guidelines developed by FIG could potentially apply to parcel-based land registration
systems, such as that used in Australia.
Additionally, the FIG Statement also addressed the evolving nature of land
administration systems, noting that ‘today, the information is also increasingly used
by both private and public sectors in land development, urban and rural planning, land
management, and environmental monitoring’.35 As such, the FIG guidelines are useful
to examine for the purposes of this thesis.
Although FIG acknowledged that success may be a relative term, they developed the
following guidelines for measuring the success of a cadastre:
a) Security: the system should be secure to encourage investment. Records should
also be physically secure;
b) Clarity and Simplicity: the system should be clear and simple to understand
and to use. This ensures that costs are minimised, access is fair, and the system is
maintained;
34
35
International Federation of Surveyors, FIG Statement on the Cadastre (1995) FIG
<http://www.sli.unimelb.edu.au/fig7/cadastre/statement_on_cadastre.html> at 27 October 2008.
Ibid.
82
c) Timeliness: The system should provide up-to-date information in a timely
fashion. The system should also be complete, with all parcels included in the
system;
d) Fairness: the cadastral system should not be influenced by political processes,
and should have decentralised offices, simple procedures, and reasonable fees;
e) Accessibility: the system should be capable of providing efficient and effective
access to all users;
f) Cost: The system should be low cost or operated in such a way that costs can
be recovered fairly and without unduly burdening users; and
g) Sustainability: There must be mechanisms in place to ensure that the system is
maintained over time. This includes procedures for completing the Cadastre in a
reasonable time frame and for keeping information up-to-date.36
Both the guidelines set down by Lyons et al and by FIG acknowledged that land
administration systems need to serve a broader purpose than the traditional title
registration approach.
3.1.3. Guidelines for comparison in this thesis
The guidelines for comparison developed in this chapter will be used to assess the
effectiveness of the case study jurisdictions, for the purpose of identifying features
which may assist in the effective management of obligations and restrictions on land
title and use. As the purpose of this thesis is twofold, it is necessary to assess how
effectively each system provides certainty for landholders, and how effective the
system is in facilitating compliance with environmental laws.
As land in Australia is registered under the Torrens system of land registration, it is
important to determine whether the system assessed fulfils the goals of the Torrens
system, including security and certainty. However, given that ESD is a pressing
concern for governments, any examination must also take into account whether the
regime provides for effective management of natural resources. Therefore, the
guidelines for comparison developed in this chapter will not be used to address the
land title register solely; they will be used to assess the overall effectiveness of the
36
Ibid.
83
jurisdiction’s regime for the management of all obligations and restrictions on land
title and use.
Although the goals of the Torrens system in the 19th century and land administration
today are very different, the discussion above demonstrates that the success of both is
dependent upon a number of similar factors. Both a title registration system, and a
broader land administration system must be underpinned by common principles to
succeed.
The following guidelines for comparison will be used in this thesis:
1.
Does the jurisdiction provide for integrated management of information
concerning obligations and restrictions on land title and use?
This will involve a consideration of whether information concerning obligations and
restrictions on title and use is fragmented across a number of registers and Acts, or
whether the jurisdiction has taken steps to integrate this information. Both sets of
literature discussed above place emphasis upon security of landholding, and security
is dependent upon being able to accurately ascertain what obligations and restrictions
impact upon a parcel of land.
2.
Is the land title register utilised for the purpose of recording obligations and
restrictions on use?
As discussed above, the literature concerning the Torrens system focuses mainly upon
whether it accurately provides information concerning title. However the recent
proliferation of obligations and restrictions upon land use means that a record of title
no longer gives a landholder or prospective purchaser an accurate picture of the uses
to which their land may be put. This guideline will assess whether the land title
register has been used in the subject jurisdictions to register or record obligations and
restrictions on use, as well as title.
3.
How easily can landholders or prospective purchasers ascertain what
obligations and restrictions on title and use apply in relation to a parcel of
land?
84
One of the main purposes of the Torrens system was to simplify the conveyancing
process, and save purchasers from having to undertake onerous searches.
Furthermore, the literature also shows that modern land administration systems should
be clear and easily understandable. This guideline will be used to assess how easily
information concerning obligations and restrictions on land title and use may be
obtained in the subject jurisdiction. Ease of obtaining information provides certainty
for landholders, as well as promoting compliance with environmental laws.
4.
Who has responsibility for the accuracy of information concerning obligations
and restrictions on title and use?
This is also relevant to whether the system is secure and certain. As stated above, the
purpose of this thesis is to devise recommendations for a system which provides
greater certainty for landholders and prospective purchasers by allowing them to more
easily access information on obligations and restrictions affecting their title and use,
and well as contributing to sustainable use of natural resources.
For these purposes to be achieved, it is necessary that landholders are able to rely on
the information that they access. Therefore, it is necessary to determine whether a
government agency has responsibility for accuracy of the information.
5.
Is the accuracy of information concerning title and use guaranteed, and is
compensation available where information is incorrect?
One of the principles underpinning the Torrens system is the insurance principle,
which provides that landholders must be compensated for any interference with their
title. It is necessary to examine whether the jurisdictions have any mechanisms in
place through which landholders can obtain compensation.
4.
Conclusion
This chapter has discussed the comparative methodology, and demonstrated why it is
appropriate to this thesis. As part of this discussion, guidelines for comparison have
been developed and will be used to assess the case studies.
85
The following three chapters will each consist of a case study – Queensland, Western
Australia and New Zealand. Each chapter will outline the system, and then apply the
guidelines for comparison to the subject jurisdiction.
86
Chapter Four
Queensland Case Study
1.
Introduction
The objective of this thesis is to examine how information concerning obligations and
restrictions on land title and use can be managed within a Torrens land registration
framework. To determine this, three case studies are being considered. Queensland
provides a useful case study as it represents the approach of most Australian states; it
uses a Torrens system of land registration, and has a fragmented system for the
management of obligations and restrictions on land title and use.
In Queensland, all freehold land is registered under a Torrens system of land
registration. The Torrens system was first introduced in Queensland by the Real
Property Act 1861 (Qld), and is presently regulated by the Land Title Act 1994 (Qld)
(“LTA”). The system underwent major reform with the enactment of the LTA, and
the objective of the 1994 Act is to ‘consolidate and reform the law about the
registration of freehold land and interests in freehold land and, in particular—
(a) to define the rights of persons with an interest in registered freehold land;
and
(b) to continue and improve the system for registering title to and transferring
interests in freehold land; and
(c) to define the functions and powers of the Registrar of titles; and
(d) to assist the keeping of the registers in the land registry, particularly by
authorising the use of information technology.’1
The LTA establishes the land title register, which will be discussed in further detail
below. The land title register is administered by the Queensland Department of
Environment and Resource Management (“DERM”). Prior to 2009 this Department
was known as the Department of Natural Resources and Water, thus some references
will be made to this entity. The reorganisation of government departments in 2009
does not affect the material in this chapter in any substantive sense. There are some
1
Land Title Act 1994 (Qld) s 3.
87
references in this chapter to legislation being administered by the Environmental
Protection Agency (“EPA”), which has now been absorbed under the umbrella of
DERM. However the ‘Environment’ and ‘Natural Resource’ functions of DERM are
still very much separate, and the restructure has not at this stage led to greater
integration of the agencies.2
The land title register operates in conjunction with the state’s cadastre, called the
‘Digital Cadastral Database’ (“DCDB”). The DCDB ‘is a continuous spatial dataset
defining all State land, freehold land, and non-property parcels within the state’.3
Whilst the cadastre sets out the boundaries and descriptors of land in the state, the
land title register contains details of ownership of, and encumbrances affecting land.
As the Torrens register has been in operation since 1861, all legislative obligations or
restrictions in favour of environmental sustainability have had to operate within a
well-established framework. Most obligations and restrictions on land title and use are
created by legislation without any requirement for registration on the land title
register. Some of this legislation is administered by the DERM, and some is
administered by either the Environmental Protection Agency (“EPA”) which since
2009 is part of DERM, or the Department of Mines and Energy (“DME”).
This chapter will commence with a brief overview of the Queensland approach, and a
discussion of the methodology used to compile this case study. It will then provide a
review of all legislation in Queensland which impacts upon land title and use. This
review will be organised according to how information concerning obligations and
restrictions on title and use is made available under legislation. Because Queensland
uses a fragmented approach to natural resource management, it is necessary to
consider each Act which imposes obligations or restrictions on title or use
individually.
2
3
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and
Resource Management (Interview, 3 August 2009).
Steven Jacoby and Bronwyn Huitfeldt, ‘A Queensland perspective in the context of the LAS
model’ (paper presented at the Expert Group Meeting on Incorporating Sustainable
Development Objectives into ICT enabled Land Administration Systems, Melbourne, 9-11
November 2005), 145.
88
Once the Queensland approach has been outlined and discussed in detail, it will be
assessed according to the guidelines for comparison developed in Chapter Three.
2.
The Queensland approach – a case study
2.1.
Overview of the Queensland approach
Management of information concerning obligations and restrictions on land title and
use in Queensland is fragmented. Information concerning these obligations and
restrictions on title and use may be found in one of four places:
1.
Registered on the land title register;
2.
Recorded on title as an administrative advice;
3.
Recorded on a separate, resource-specific register; or
4.
Not recorded anywhere, and only found in legislation, regulations or plans.
The LTA establishes the land title register, and also provides for the recording of
administrative advices. In addition to the system of registration set out in the LTA,
there are a number of resource-specific registers that operate externally to the land
title register, which are established under separate legislation. These registers will be
discussed in detail below at 3.
2.2.
Methodology
To accurately assess and analyse the Queensland approach, it was necessary to review
all items of legislation which create, or enable the creation of obligations and
restrictions on land title and use, where such legislation was enacted for the purpose
of environmental protection. In undertaking this review, particular reference was
made to whether the legislation made any provision for notification of obligations or
restrictions on title or elsewhere.
Several types of legislation have been deliberately excluded from this review, namely
legislation which:
 Applies only to land under the Land Act 1994 (Qld), which is Crown land;
 Enables a specified entity to hold property;
89
 Applies to all property in emergency situations. For example, the Ambulance
Act 1991 (Qld) allows for ambulance officers to enter private premises in an
emergency; and
 Applies generally to all property (for example, the general environmental duty
contained in the Environmental Protection Act 1994 (Qld)).
The first exclusion applies because this thesis is only considering obligations and
restrictions on title and use applying to private land. The second and third exclusions
apply because they are irrelevant to this thesis. The fourth exclusion applies because
this thesis is concerned with obligations and restrictions on land title and use, and not
duties which apply generally to all landholders.
The list of legislation reviewed in this thesis has been compiled using several
methods. First, a survey was undertaken of the following government department
websites to obtain lists of legislation administered:
 Department of Natural Resources and Water;
 Environmental Protection Authority;
 Department of Mines and Energy; and
 Department of Primary Industries.
This review was undertaken in 2008, prior to the reorganisation of Queensland
government departments.
Second, reference was made to a review of environmental legislation in Queensland
commissioned by the State government in 2002. This report stated that ‘in
Queensland there are at least 188 separate pieces of legislation that define land related
Property rights or impact on their administration/management’.4 This list of
legislation was reviewed, but it was found that many of these Acts were irrelevant for
present purposes. This was because they were repealed, or were Acts as passed and
the operational provisions had been amalgamated into other Acts, or because they fell
into the list of exclusions mentioned above.
4
Ken Lyons, Ed Cottrell and Kevin Davies, 'Report on the Efficiency of Property Rights
Administration in Queensland' (2002).
90
Third, searches were conducted on the Office of the Queensland Parliamentary
Counsel website to ensure that no Acts had been overlooked using the above methods.
In conducting these searches, combinations of the following keywords were used:
 Land;
 Property;
 Register;
 Title; and
 Use.
From these sources a list of relevant legislation was compiled. The following section
will discuss and analyse this legislation in terms of what obligations and restrictions
on land title and use they create, and whether these obligations and restrictions are
registered or recorded on any register.
As this thesis is primarily concerned with how obligations and restrictions on land
title and use can be managed within a Torrens framework of land registration, it is
especially important to consider if and how any obligations and restrictions are
presently registered or recorded. As such, the review of the legislation will be
organised into the following sections:

Registration on the land title register;

Notification as an administrative advice;

Notification on another register; and

Obligations and restrictions which are not registered.
This structure was deliberately chosen to demonstrate the various ways in which
information concerning obligations and restrictions on title and use is made available.
91
3.
Review of legislation
3.1.
The Land Title Register
3.1.1. Operation of the Land Title Register
The LTA requires the Registrar to keep a register of freehold land.5 The LTA clearly
establishes a Torrens system of title by registration,6 as it states that ‘an instrument
does not transfer or create an interest in a lot at law until it is registered’.7 The land
title register in Queensland is now computerised, and this allows the titles office to
provide greater information.8
The Registrar is obliged to record the following information on the land title register:

Details of every lot under the Act;

Every interest registered in the register;

The names of persons holding a registered interest;

All instruments registered in the register, and when they were lodged and
registered; and

Anything else required to be recorded by the LTA or another Act.9
These obligations reflect the traditional Torrens model of registration, which involves
only providing information on registered interests and instruments.
The LTA does provide the Registrar with additional powers. Whilst the matters above
are details that must be recorded, the LTA also states that the Registrar may record
certain additional information, namely:

Anything the Registrar is permitted to record by the LTA or another Act; and

Anything the Registrar considers should be recorded to ensure that the register
is an accurate, comprehensive and useable record of freehold land in the
State.10
5
6
7
8
9
10
Land Title Act 1994 (Qld) s 27.
See Chapter Two for an explanation of this concept.
Land Title Act 1994 (Qld) s 181. Despite this, equitable claims are interests remain
recognisable: Barry v Heider (1914) 19 CLR 197, 208. However they may be defeated by a later
indefeasible title.
Michael Weir, ‘An Australian View: The Queensland Land Title Act 1994’ in David Grinlinton
(ed), Torrens in the Twenty-first Century (LexisNexis NZ, Wellington, 2003) 295, 298.
Land Title Act 1994 (Qld) s 28.
Land Title Act 1994 (Qld) s 29.
92
These provisions empower the Registrar to record administrative advices, which will
be discussed in detail below.
All entries registered in the land title register attract the benefits of indefeasibility,
which was discussed in detail in Chapter Two. The so-called ‘paramountcy’ provision
is contained in s 184(1) of the LTA, which states that ‘a registered proprietor of an
interest in a lot holds the interest subject to registered interests affecting the lot but
free from all other interests’.11 The LTA does contain several exceptions to the
paramountcy provision, mostly relating to errors and misdescriptions in the register.12
There is also an exception where there is fraud on the part of the registered
proprietor,13 or where there is an equity arising from the act of the registered
proprietor.14 The equity exception essentially refers to ‘an act of the registered
proprietor which makes it unconscionable of that registered proprietor to deny an
unregistered, or…no longer registered, right or interest’.15 An example of the
exception applying is the case of Bahr v Nicholay.16 In this case a registered
proprietor took their interest on the condition that they would sell the land to the
appellants at a later date. The registered proprietor subsequently refused to do so. The
High Court ordered re-transfer of the property, and noted that the registered
proprietors held the property on a constructive trust for the benefit of the appellants.17
The system of land title registration in Queensland also gives effect to the insurance
principle, as discussed in Chapter Two. The LTA states that a claimant is entitled to
compensation from the State where they are deprived of a lot, or an interest in a lot,
because of:
 The fraud of another person;
 Administrative errors in registration;
 Tampering with the freehold land register;
11
12
13
14
15
16
17
Land Title Act 1994 (Qld) s 184(1).
Land Title Act 1994 (Qld) s 185(1)(b)-(g).
Land Title Act 1994 (Qld) s 184(3)(b).
Land Title Act 1994 (Qld) s 185(1)(a).
White v Tomasel & Anor [2004] QCA 89 at [20].
Bahr v Nicolay [No 2] (1988) 164 CLR 604.
Ibid 638-9.
93
 Loss, destruction or improper use of documents held by the land title registry;
or
 An omission, mistake, breach of duty, negligence or misfeasance by the
Registrar or registry staff.18
Furthermore, a claimant is entitled to compensation for loss or damage because of:
 The incorrect creation of an indefeasible title in the name of another person;
 Incorrect registration;
 An error in an indefeasible title or in the freehold land register;
 Reliance on the incorrect state of the freehold land register;
 Loss, destruction or improper use of a document deposited or lodged at the
land registry or held by the land registry for safe custody;
 Omission, mistake, breach of duty, negligence or misfeasance of or by the
Registrar or a member of the staff of the land registry; or
 The exercise by the Registrar of a power in relation to an application or
dealing of which the person had no connection.19
However, s 188A further states that a claimant is not entitled to compensation under
this section for loss or damage caused by the incorrectness of a register kept by the
Registrar if the Registrar may correct the register.20 Therefore if no loss is actually
suffered, and the mistake can be easily rectified, there is no entitlement to
compensation.
These provisions reflect the traditional concept of land registration, namely that
registered interests can only be affected by subsequent registered interests. They also
give effect to the insurance principle (discussed in Chapter Two) which provides that
compensation will be payable by the State where a registered proprietor suffers loss.
A search of the land title register will show all registered interests affecting the land.
A sample title search is annexed to this thesis at Appendix A as an example.
18
19
20
Land Title Act 1994 (Qld) s 188.
Land Title Act 1994 (Qld) s 188A(1),(2).
Land Title Act 1994 (Qld) s 188A(3).
94
3.1.2. Expansion of the Land Title Register – restrictions on use
Traditionally only a limited range of interests were registrable in Queensland, namely
transfers, leases and mortgages. These are all characterised as restrictions on title, as
all involve a restriction on the owner’s right to possess land.21 In recent years new
instruments have been developed, including statutory covenants and profits á
prendre.22 These all allow for obligations and restrictions to be placed on the
landholder’s use of the land, without affecting their right to possession. The creation
of these new registrable instruments has allowed for a broader range of obligations
and restrictions to be registered on title. It is relevant to note at the outset that these
obligations and restrictions are all ones that affect single parcels of land, as opposed
to blanket restrictions affecting all parcels in a specified region.
The first registrable instrument which may be used to register obligations and
restrictions affecting land use is statutory covenants. As discussed in Chapter Two,
statutory covenants are registrable in Queensland subject to certain conditions.23 The
Nature Conservation Act 1992 (Qld) utilises statutory covenants in some
circumstances as a means of securing nature refuge agreements. Under the Nature
Conservation Act, a nature refuge may be created on private property. A nature refuge
is classed as a ‘protected area’ under the Act,24 which means that environmental
obligations are imposed upon the landowner. A nature refuge may be created by
agreement, or by compulsory declaration.
From a reading of the Nature Conservation Act, it appears that different types of
instruments are used dependent on whether the nature refuge is established by
agreement. If the landholder and Minister agree to the establishment of a nature
refuge, the relevant instrument used is a conservation agreement.25 In contrast, where
a compulsory declaration is made, the Minister must specify a conservation covenant
applying to the area.26
21
22
23
24
25
26
Although in the case of mortgages, this restriction is deferred until such time as the mortgagee
defaults on the loan.
See Chapter Two for details.
Namely they must relate to use of the land, the government must be covenantee, etc: Land Title
Act 1994 (Qld) s 97A.
Nature Conservation Act 1992 (Qld) s 14(h).
Nature Conservation Act 1992 (Qld) s 45.
Nature Conservation Act 1992 (Qld) s 49.
95
It is not entirely obvious from reading the legislation what the distinction is between
agreements and covenants, but it is conceivable that covenants could be registered as
statutory covenants, pursuant to the LTA. Conservation agreements are not
registrable, and will be discussed in further detail below. Furthermore, in practice it
appears that the usual approach employed by the EPA is to record either agreement as
an administrative advice.27
Statutory covenants are however widely used to register obligations and restrictions
on land use, and are most commonly used to register planning requirements created
by local governments. The requirements may include the preservation of natural or
physical features on land. Some specific examples provided by the Queensland
Registrar of Titles include a covenant between a landholder and a local council for the
‘preservation of native vegetation’, which obliges the landholder to preserve all
vegetation in its natural state, and not undertake any development which interferes
with vegetation. Another example between a landholder and a local council provides
for the ‘preservation of native plant and animal’, and prevents the owner from
clearing vegetation, and requires them to ensure that the movement of fauna onto their
land is not impeded by restrictive fencing.28 This demonstrates that statutory
covenants may be used to register both positive obligations and negative restrictions
affecting land.
Other more recent examples include obliging owners to have water-sensitive housing
(used in semi-rural areas), and obliging owners to have noise-sensitive housing
(having double-glazing on windows etc when located near a busy road), or requiring
landholders to keep their land clear for fire-fighting purposes in fire-prone areas.29 An
example statutory covenant is annexed to this thesis as Appendix B.
Another type of registrable instrument used to register restrictions on use is
easements. An Act which uses easements for this purpose is the Sugar Industry Act
27
28
29
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and
Resource Management (Interview, 3 August 2009).
Ibid
Ibid. These restrictions are not imposed by legislation, but are rather the product of agreement
between the State or local government, and the landholder.
96
1999 (Qld). The Sugar Industry Act is administered by the Department of Primary
Industries and Fisheries (“DPIF”), and its object is ‘to facilitate an internationally
competitive, export oriented sugar industry based on sustainable production that
benefits those involved in the industry and the wider community’.30 To achieve this
object, the Act sets out a number of provisions whereby a mill owner or grower can
gain access rights over privately owned land.31 The access right may be in the form of
a permit to pass, or a cane railway easement.32
A cane railway easement may be granted to a mill owner to facilitate supply to the
mill.33 This allows for a cane railway line to pass over privately owned land, to allow
growers to transport cane to the mills.
Where a cane railway easement is granted, relinquished, or cancelled, the grantee
must notify the Registrar.34 The easement may then be registered upon title.35 To
enable this to happenit was necessary to amend the LTA. As the grantee of such a
right does not necessarily own appurtenant land the normal requirement for a
dominant and servient tenement was not satisfied. To allow cane railway easements to
be registered the LTA definition of ‘public utility easements’(which carried no
requirement for a dominant tenement)36 was amended in 2008 to include reference to
cane railway easements.37
This is a key example of how the scope of the land title register can be extended,
through legislative change, to allow for registration of a broader range of interests.
Traditionally easements had to comply with common law requirements to be
registrable, but this requirement has been modified by legislation to allow for a
broader range of obligations and restrictions to be registrable.
30
31
32
33
34
35
36
37
Sugar Industry Act 1999 (Qld) s 3.
Sugar Industry Act 1999 (Qld) ss 64-65.
Sugar Industry Act 1999 (Qld) s 63(1).
Sugar Industry Act 1999 (Qld) s 63(5).
Sugar Industry Act 1999 (Qld) s 71(1),(2).
Sugar Industry Act 1999 (Qld) s 71(3).
Land Title Act 1994 (Qld) s 89(1).
Land Title Act 1994 (Qld) s 89(2)(a)(vii).
97
The final example of the land title register being used to register environment
obligations and restrictions involves profits á prendre. Profits á prendre are used for
environmental purposes under the Forestry Act 1959 (Qld). Under this Act, an owner
of land may enter into an agreement with another person, either vesting property of a
natural resource product in the other person, or granting a right for the other person to
maintain, harvest, or otherwise deal with the natural resource product.38 If such a right
is granted, the person’s rights are registered as a profit á prendre.39 For the purposes
of the Act, ‘natural resource product’ is defined to mean a tree or vegetation, carbon
stored in a tree or vegetation, or carbon sequestration by a tree or vegetation.40 This
essentially allows the landholder to grant the right to use their trees for carbon
storage, for financial gain.
To date, these are the only instances of registrable instruments being used to register
environmental obligations and restrictions on land use. There are clear benefits to
registering obligations and restrictions this way. Bell and Christensen note that ‘the
major benefit of these rights being registered on title is that a search of the land title
register will alert an owner, prospective purchaser and a government department of
their existence. In addition, the question of whether the rights or restrictions are
enforceable against subsequent owners is clear’.41 This is because the LTA clearly
states in its indefeasibility provisions that a landholder takes their interest subject to
registered interests.42
Although there are only several environmental obligations and restrictions capable of
registration, the above analysis shows how new instruments may be created, and
existing instruments modified, to allow for a broader range of registrable interests.
3.2.
Recording of Administrative Advices
In addition to these registered instruments, the LTA permits the Registrar to keep
other information separate to the register, where it is considered necessary or
38
39
40
41
42
Forestry Act 1959 (Qld) s 61J.
Forestry Act 1959 (Qld) s 61J(5).
Forestry Act 1959 (Qld) schedule 3.
Justine Bell and Sharon Christensen, ‘Use of property rights registers for sustainability – a
Queensland case study’ (2009) 17(1) Australian Property Law Journal 86, 90.
Land Title Act 1994 (Qld) s 184(1).
98
desirable for the effective or efficient operation of the register.43 The explanatory
notes to the legislation state that such information could include, for example,
‘administrative advices which list references to such matters as contaminated land
sites, heritage listings etc’.44
Administrative advices differ from registered interests in that most of the principles
relating to registration do not apply to them. The principle of indefeasibility does not
apply to administrative advices, as s 184(1) of the LTA makes it clear that a registered
owner takes their interest subject only to other registered interests. As a result,
obligations and restrictions recorded as administrative advices do not necessarily
operate in rem, unless the enabling statute states that they do. Furthermore, the state
guarantee of title does not apply to these entries, and entitlements to compensation
that apply to registered instruments are not applicable.
Administrative advices are not registered on title, but are merely recorded for
informational purposes. They are part of the land title register, and are visible on a
title search. The current Queensland Registrar of Titles describes registered interests
as being ‘above the line’ on a title search, whereas administrative advices are recorded
‘below the line’, thus not attracting the benefits of registration.45 A sample title search
is annexed to this thesis as Appendix A, and shows this distinction.
This distinction between registered and recorded instruments is not necessarily
reflected in the form of the title. The title search annexed to this thesis shows two
separate headings – “easements, encumbrances and interests”, and “administrative
advices”. However the ‘line’ that the Registrar of Titles refers to is not physically
present, and it may be difficult for a landholder or prospective purchaser to ascertain
the difference between these two entries.
Furthermore, administrative advices do not provide any detail of the obligation or
restriction, but merely flag its existence. The Land Title Practice Manual states that
43
44
45
Land Title Act 1994 (Qld) s 34(1).
Explanatory notes, Land Title Bill 1994 (Qld) 6.
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
99
‘enquiries relating to an administrative advice should be directed to the relevant
authority or department administering the legislation or issuing the notice. The
registry will not provide any further detail other than that disclosed on the notice’.46
The insurance principle also does not apply to such entries, as the LTA expressly
states that a person is not entitled to compensation for deprivation, loss or damage
arising from the recording or keeping of information under the section discussed
above, where:

The information is incorrect; and

It was given to the Registrar for keeping by another entity; and

The incorrectness was not because of an error of the Registrar in the recording
or keeping.47
The procedure for notifying the Registrar of an administrative advice is usually set out
in the relevant Act. In most instances it is up to the Department responsible for the
administration of the Act to initiate an administrative advice. A form 14 general
request must be filed with the Registrar of Titles specifying the details of the
administrative advice, and it is then notified on title.48
At present, there has only been one case in Queensland referring to the recording of
administrative advices. This case is Beames v The State of Queensland,49 which is part
of a long series of cases, and is related to the earlier case of Beames v Leader,50 which
concerned shifting property boundaries due to accretion and erosion. Mr Beames tried
to lodge a survey plan with the titles office, and it was refused on the basis that the
boundary lines had changed. The court overturned the findings of the Registrar, and
held that he was obliged to register the plan once it was satisfactory in form.
After this decision, the Registrar included a reference to the survey plan as an
administrative advice. Mr Beames contested this decision, arguing that the survey
46
47
48
49
50
Queensland Department of Environment and Resource Management, Land Title Practice
Manual (2009) ¶ 52-0000.
Land Title Act 1994 (Qld) s 189(1)(l).
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
[2002] QSC 83.
(1998) Q ConvR 54-506.
100
plan should be given status as a registered interest. As the land title register only
allows for registration of a narrow range of interests, an officer of the Registrar of
Titles gave evidence that to include a reference to the new plan under the heading
"easements, encumbrances and interests" (as shown on the title search annexed to this
thesis as Appendix A) would require re-designing the database tables of the Land
Titles Office.51
The judge concluded that including the plan under the heading "Administrative
Advices" constituted conformity with the order. His Honour paid particular attention
to s 8(1) of the LTA, which provides that the register may be kept by the Registrar in
the form that the Registrar considers appropriate.52 The judge did comment that this
approach ‘has its imperfections’, but noted that is not erroneous or misleading.53
The significance of this decision is that a Queensland Court has recognised that the
recording of administrative advices is a sound method of ensuring that information is
notified, even though it does not fit within any of the instruments capable of
registration.
At present, the following legislation creates, or enables the creation of, obligations
and restrictions that must be notified as administrative advices:
 Acquisition of Land Act 1967;
 Coastal Protection and Management Act 1995;
 Environmental Protection Act 1994;
 Fossicking Act 1994;
 Sustainable Planning Act 2009;54
 Nature Conservation Act 1992;
 Planning (Urban Encroachment – Milton Brewery) Act 2009;
 Queensland Heritage Act 1992;
 Recreation Areas Management Act 2006;
 River Improvement Trust Act 1940;
51
52
53
54
[2002] QSC 83 at [19].
Ibid [21].
Ibid [21].
Replaced the Integrated Planning Act 1997 (Qld) on 18 December 2009.
101
 State Development And Public Works Organisation Act 1971;
 Sugar Industry Act 1999;
 Vegetation Management Act 1999;
 Water Act 2000; and
 Wet Tropics World Heritage Protection and Management Act 1993.
All of these Acts relate to environmental matters, with the exception of the Fossicking
Act 1994. The Acts relating to environmental matters will be discussed in detail below
to compare the various ways in which they provide for administrative advices. The
obligations and restrictions on title and/or use created by each Act will be discussed,
and analysed.
3.2.1. Acquisition of Land Act 1967
The Acquisition of Land Act empowers the government to take land, which is
obviously the most significant potential interference with title. Under the Act, the
Crown and the local government are empowered to take land in specified
circumstances.55 The list of specified circumstances is lengthy, and allows land to be
taken for a large number of public purposes.56 As such, the Act is potentially a threat
to security of title.
The legislation sets out a process by which landholders must be notified of any
proposed resumption. If either entity intends to take land, they must first serve a
notice of intention to resume.57 Where the notice of intention to resume relates to land
under the LTA, it shall be filed with the land registry.58 The Registrar will then record
the existence of the notice as an administrative advice. Consequently, any potential
purchaser or interested member of the public should be able to determine whether the
land is subject to a proposed resumption through conducting a title search.
One flaw with this system is that records will only be made on the title of land which
is to be resumed. There will not be records made on the titles of neighbouring land,
55
56
57
58
Acquisition of Land Act 1967 (Qld) s 5(1).
Including for roads, railways, vehicle parking, harbours, airports and bridges: Acquisition of
Land Act 1967 (Qld) sch.
Acquisition of Land Act 1967 (Qld) s 7(1).
Acquisition of Land Act 1967 (Qld) s 7(4).
102
even though the resumptions may have an impact on value. For a purchaser to
determine whether there are any resumptions indirectly affecting land, they need to
make enquires with the Department of Main Roads. The potential use of spatial
databases will be discussed later in this thesis, and perhaps a mapping tool is a
solution which would allow owners or prospective purchasers of neighbouring
properties to ascertain whereby there are any proposals in a region.
3.2.2. Coastal Protection and Management Act 1995
The Coastal Protection and Management Act prescribes an objective of protection,
conservation and rehabilitation of the coast.59 To achieve this objective, the Act
requires creation of both a state coastal management plan, as well as regional
management plans.60 These plans place limitations and restrictions upon development
in coastal areas, which is a restriction on land use.
To provide security to landholders, the Act uses administrative advices for two
separate purposes. First, an owner of an interest in land is entitled to be paid
compensation where the existing use of the land is changed by a prohibition imposed
by a coastal plan or declaration.61 The Act sets out a procedure for claiming
compensation, and further states that as soon as practicable after compensation is
paid, the chief executive must notify the Registrar.62 The Registrar is then required to
record the notice as an administrative advice.63 Presumably this is so that prospective
purchasers are aware that any rights to compensation have been exhausted.
Second, under the Act, the chief executive may serve a coastal protection notice on a
person requiring them to take positive action, or stop an activity stated in the notice.64
The Act also contains a similar provision relating to tidal works notices.65 Where
either of these notices are given, the chief executive must notify the Registrar of
Titles, who must keep a record of the notice.66 The Act specifically states that these
59
60
61
62
63
64
65
66
Coastal Protection and Management Act 1995 (Qld) s 3(a).
Coastal Protection and Management Act 1995 (Qld) ss 30, 35.
Coastal Protection and Management Act 1995 (Qld) s 150(1).
Coastal Protection and Management Act 1995 (Qld) s 158(1).
Coastal Protection and Management Act 1995 (Qld) s 158(3).
Coastal Protection and Management Act 1995 (Qld) s 59(2).
Coastal Protection and Management Act 1995 (Qld) s 60(1).
Coastal Protection and Management Act 1995 (Qld) s 63(2),(3).
103
notices are intended to operate in rem, but a buyer will only be bound by the notice if
the purchaser notified them of it. If the purchaser fails to notify the buyer, then the
agreement is of no effect.67 This is quite an unusual approach, and is not used by
many other Queensland Acts. It essentially mimics the mandatory disclosure regimes
used in other parts of Australia.68 In some respects it is a good approach, as it requires
information to be provided to a purchaser for the restriction or obligation to take
effect. However, another approach would be merely to state that it does not take effect
unless recorded. A title search will almost always be conducted in a conveyance, thus
this is sufficient to ensure the purchaser is alerted to the existence of the notice.
Requiring the vendor to alert the purchaser may result in an unnecessarily harsh
outcome where the vendor innocently fails to notify the purchaser.
One disadvantage of this Act is that it only provides for these specific notices to be
recorded as administrative advices. It does not provide for details of obligations and
restrictions generally to be notified on title. Consequently, a search of the land title
register will not alert a landholder to any generic restrictions on development imposed
by the plans. Therefore administrative advices are only used under this Act in relation
to obligations and restrictions which apply to individual parcels of land. They are not
used to record details of blanket restrictions affecting multiple blocks of land.
3.2.3. Environmental Protection Act 1994
This Act establishes the contaminated land register, and the environmental
management register, both of which will be discussed in detail below. The Act states
that where an entry is made on the contaminated land register, the Registrar must be
notified in order to record an administrative advice.69 Entries on the environmental
management register are not recorded as administrative advices.
The Act is silent as to whether these entries operate in rem, although the overall intent
of the Act clearly indicates that they do. The Environmental Protection Act, similarly
to the Coastal Protection and Management Act, requires vendors to notify purchasers
67
68
69
Coastal Protection and Management Act 1995 (Qld) s 63(4),(5).
See for example the Sale of Land Act 1962 (Vic) s 32 which requires a vendor to provide a
purchaser with certain information. The contract may be rescinded in some instances if
information is not provided.
Environmental Protection Act 1994 (Qld) s 422(1).
104
of the existence of certain matters. Under the Environmental Protection Act, a vendor
must notify the purchaser that the land is recorded in the contaminated land or
environmental protection register. Failure to do so entitles the purchaser to
rescission.70
The Act also creates a number of other obligations and restrictions which are not
required to be recorded as administrative advices, or on the separate registers. To
accurately determine whether land is subject to any obligations and restrictions under
the Act, it is necessary to consult the legislation itself, in addition to the registers.
3.2.4. Planning (Urban Encroachment – Milton Brewery) Act 2009
This recent enactment is aimed at protecting the use of the Milton Brewery and
restricting criminal and civil proceedings in relation to activities conducted on the
premises.71 The Act is related to environmental issues, but in contrast to most other
issues, it protects actions which may be viewed as harmful to the environment.
This Act applies to the area surrounding the Milton Brewery, which is currently
subject to increased residential development. The government enacted this legislation
to prevent litigation from new residents in these developments relating to emissions
from the Brewery, where the emissions are within the Brewery’s licence conditions.72
Under the Act, a person is prohibited from taking legal proceedings asserting that acts
done at the Brewery interfere with an environmental value due to emissions of noise
or odour.73 This only applies in relation to new developments.74
If a person in this area applies for a development application, they must give the
Registrar of Titles notice that the Act applies.75 The Registrar must keep a record
70
71
72
73
74
75
Environmental Protection Act 1994 (Qld) s 421(2), (3).
Planning (Urban Encroachment – Milton Brewery) Act 2009 (Qld) s 3.
Planning (Urban Encroachment – Milton Brewery) Act 2009 (Qld) ss 5, 7; Explanatory Notes
Planning (Urban Encroachment – Milton Brewery) Bill 2008 (Qld) 1.
Planning (Urban Encroachment – Milton Brewery) Act 2009 (Qld) s 8. This applies provided
that development conditions of the brewery and any code of environmental compliance have
been complied with: s 8(2). This provision is activated when the person proposes to undertake
development: s 7.
Explanatory Notes, Planning (Urban Encroachment – Milton Brewery) Bill 2008 (Qld), 1.
Planning (Urban Encroachment – Milton Brewery) Act 2009 (Qld) s 9(1).
105
showing the notice.76 If the person has not notified the Registrar, and sells the
property, the buyer is entitled to terminate the contract.77
3.2.5. Queensland Heritage Act 1992
The Queensland Heritage Act also establishes a separate register, which will be
discussed below. Similarly to the Environmental Protection Act, where an entry is
made on the register, the Registrar is to be notified,78 and must notify the existence of
the entry as an administrative advice.79 The Queensland Heritage Act specifically
states that heritage agreements operate in rem, and bind each person who is from time
to time the owner, regardless of whether they signed the agreement.80
3.2.6. Nature Conservation Act 1992
The object of the Nature Conservation Act is ‘the conservation of nature’.81 Much of
the Act applies to State land, however there are some provisions relating to privately
owned land. To achieve the objects of the Act in relation to private land, the Act sets
out a procedure for establishing nature conservation covenants and agreements
relating to land. These agreements are discussed above at 3.1. Where an agreement is
reached, or where a refuge is compulsorily declared, there may be significant
restrictions placed upon the use of land, or obligations imposed.
If an agreement is reached, the chief executive must notify the Registrar of Titles
within 14 days.82 The Registrar is required to maintain records showing that the land
is subject to a registrable conservation agreement or covenant.83 The Nature
Conservation Act explicitly addresses the effect of these conservation agreements,
noting that once registered, the agreement is binding on the land-holder and any
successors in title.84 Given that the Act requires notice to be given to the Registrar
within 14 days, the land title register should hopefully be updated relatively soon after
76
77
78
79
80
81
82
83
84
Planning (Urban Encroachment – Milton Brewery) Act 2009 (Qld) s 9(2).
Planning (Urban Encroachment – Milton Brewery) Act 2009 (Qld) s 10.
Queensland Heritage Act 1992 (Qld) s 174(1).
Queensland Heritage Act 1992 (Qld) s 174(3).
Queensland Heritage Act 1992 (Qld) s 174(7).
Nature Conservation Act 1992 (Qld) s 4.
Nature Conservation Act 1992 (Qld) s 134(1).
Nature Conservation Act 1992 (Qld) s 134(2).
Nature Conservation Act 1992 (Qld) s 51(1)(a).
106
an agreement is reached. It is relevant to note though that the Nature Conservation
Act does not state whether there are any consequences for failure to notify.
3.2.7. Recreation Areas Management Act 2006
The purpose of the Act is to establish recreation areas, taking into account the
conservation, cultural, educational, production and recreational values of the areas, as
well as the interests of area land-holders.85
The Act details a process whereby private land can be declared to be a recreation area.
Once land is declared a recreation area, the Minister must prepare a management plan
outlining the recreational objects to be achieved for planning, developing and
managing the area.86 Under the management plan, there may be restrictions placed on
the manner in which the owner may use their land.
As soon as practicable after entering into a recreation agreement, the chief executive
must give notice of the agreement to the Registrar of Titles.87 The Registrar must
record details of the notice in the relevant register so a search will show the
agreement.88 Provided that the agreement is notified in accordance with this
legislation, a search of the land title register should reveal the existence of any
restrictions on use imposed under this Act. Problems may arise though because the
Act is silent as to whether there are any consequences for failure to notify the
Registrar of Titles. This lack of consequences could lead to delays in notifying the
Registrar.
Furthermore, these agreements operate in rem, as the legislation specifically states
that they are binding on the landholder and any successors in title.89
3.2.8. River Improvement Trust Act 1940
The River Improvement Trust Act is silent as to its objectives, but contains a number
of provisions aimed at the preservation of rivers. The Act states that a trust constituted
85
86
87
88
89
Recreation Areas Management Act 2006 (Qld) s 4(1).
Recreation Areas Management Act 2006 (Qld) s 20(1).
Recreation Areas Management Act 2006 (Qld) s 10(1)(a).
Recreation Areas Management Act 2006 (Qld) s 10(2).
Recreation Areas Management Act 2006 (Qld) s 11(1).
107
under the Act may prohibit a person by notice from doing anything which caused or
contributed to damage already done by a flood or cyclone to a river bank, or is likely
to cause such damage in the future.90 Such prohibitions may in effect create
restrictions upon the use of land. Failure to comply with any prohibition is an
offence.91
Where an improvement notice is given in relation to freehold land, the trust must give
the notice to the Registrar of Titles.92 The Registrar shall record in the register the fact
of the giving of the improvement notice.93 Thus a title search should detail any
restrictions on use imposed by this Act.
These notices are intended to operate in rem. The Act states that ‘where an
improvement notice is given to the occupier of land in respect of which the
improvement notice was given, a person who subsequently to the giving of that notice
becomes the occupier of that land shall, whether or not the person had or would be
deemed in law to have had notice of its existence, comply in every respect with the
notice unless it has ceased to subsist or operate’.94 Therefore notices are binding on
successors in title.
3.2.9. State Development and Public Works Organisation Act 1971
The State Development and Public Works Organisation Act is also silent as to its
objectives, but it essentially regulates development which is considered to be
significant to the State.
Part 5A of the Act relates to prescribed projects, and lists its objectives as:

to provide for the identification of projects of state significance;

to provide a decision-making scheme;

to provide for conditions to be imposed on prescribed projects, addressing the
nature of the project, and the proper management of environmental effects of
the project; and
90
91
92
93
94
River Improvement Trust Act 1940 (Qld) s 11(1).
River Improvement Trust Act 1940 (Qld) s 11(4).
River Improvement Trust Act 1940 (Qld) s 11A(1)(a).
River Improvement Trust Act 1940 (Qld) s 11A(2)(a).
River Improvement Trust Act 1940 (Qld) s 11(3A).
108

to promote the use of voluntary environmental agreements to encourage the
conservation,
maintenance,
rehabilitation
or
enhancement
of
the
95
environment.
Voluntary environmental agreements may be entered into by an applicant, and may
contain provisions relating to preventing, controlling or mitigating detrimental
environmental effects of a prescribed project, or conserving, maintaining,
rehabilitating or enhancing aspects of the environment.96 Under these agreements,
obligations and restrictions may be placed upon the manner in which land may be
used.
Administrative advices are used to record details of these agreements. The Act states
that the coordinator-general must, within 14 days after entering into a recorded
voluntary environmental agreement in relation to land, give the Registrar written
notice of the agreement.97 The Registrar must keep records that show the particulars
of the land, and state the places where particulars of the agreement may be
inspected.98 Once registered, the agreement operates in rem, and is binding on
successors in title, and anyone who has an interest in the land.99
3.2.10. Sugar Industry Act 1999
The regime established under the Sugar Industry Act is discussed above at 3.1. The
Act provides for cane railways easements, which are registrable on title, and permits
to pass. A permit to pass allows the permit holder to use another party’s land subject
to the conditions of the permit,100 and an easement may be granted to allow a mill
owner access to another mill.101
Administrative advices are used to record details of permits to pass. If a permit to pass
is granted, relinquished or cancelled, the grantee must notify the Registrar within 28
95
96
97
98
99
100
101
State Development and Public Works Organisation Act (Qld) s 76A.
State Development and Public Works Organisation Act (Qld) s 76S(1).
State Development and Public Works Organisation Act (Qld) s 76U(1).
State Development and Public Works Organisation Act (Qld) s 76U(3).
State Development and Public Works Organisation Act (Qld) s 76U(6).
Sugar Industry Act 1999 (Qld) s 63(2),(3).
Sugar Industry Act 1999 (Qld) s 63(5).
109
days of the event.102 The Registrar must ensure that a notice appears in the relevant
register so that a search will show that the event has happened.103
The Act is silent as to whether permits to pass are intended to operate in rem or in
personam. However, the Act does state that a permit to pass must state a period to
which it has effect,104 and if this is omitted, it has effect until it is cancelled.105
Presumably the intention then is for permits to pass to operate in rem.
The use of administrative advices to record details of permits to pass is relatively new,
with a separate register being in place up until 2008. The Sugar Industry Act
underwent substantial amendment in 2008, and one of the major changes was to
notification of access rights. The rationale for the overhaul of access rights
registration was described in the Bill’s Explanatory Notes as follows:
the recording of notices will ensure that all current access rights are recorded
permanently and accurately as notices on Queensland’s Automated Titles System and
that searches can be conducted efficiently. Further, the notices will resolve a major
difficulty with the accuracy of the current access rights register, by providing automatic
updates for ownership and land description changes.106
The amendments to the Sugar Industry Act perhaps represent a positive step towards
reforming the Torrens system, by abolishing a separate register, and instead placing
access rights directly on the land title register as administrative advices, or as
registered interests. By placing restrictions directly on the land title register, the
number of searches required to accurately ascertain all obligations and restrictions
affecting land title and use is reduced.
It would be beneficial for the Sugar Industry Act to explicitly state the legal effect of
permits to pass.
102
103
104
105
106
Sugar Industry Act 1999 (Qld) s 71(1), (2).
Sugar Industry Act 1999 (Qld) s 71(3).
Sugar Industry Act 1999 (Qld) s 63(4).
Sugar Industry Act 1999 (Qld) s 285(2).
Explanatory Notes, Primary Industries and Other Acts Amendment Bills 2008 (Qld) 6.
110
3.2.11. Vegetation Management Act 1999
The purpose of the Vegetation Management Act is essentially to regulate vegetation
clearing in a manner that promotes ecologically sustainable development.107 To
achieve this purpose, the Act places a number of limitations upon development, and
therefore upon the use of land.
Administrative advices are utilised by the Act for several purposes. First, the Act
provides for two types of notices binding on landholders – stop work notices, and
restoration notices. Stop work notices are negative in nature, and require a person who
is committing a vegetation offence to stop doing so.108 A restoration notice is positive
in nature, and requires a person who committed a vegetation offence to rectify the
matter.109
The Vegetation Management Act makes it clear that restoration notices run with the
land.110 As soon as practicable after a restoration notice has been given, the chief
executive must notify the Registrar of Titles.111 The Registrar must keep records
showing that the notice has been given, in such a way that a search of the register will
show that the restoration notice has been given.112
Second, the Act allows the Minister to make a declaration stating that an area is an
area of high nature conservation value, or an area vulnerable to land degradation.113
As soon as practicable after a declaration is made, the chief executive must notify the
Registrar of titles.114 The Registrar is required to keep the records in a way that a
search will show that the declaration has been made.115 These declarations are
expressed to be binding on ‘each person who is from time to time the owner of the
land’,116 which means that they operate in rem.
107
108
109
110
111
112
113
114
115
116
Vegetation Management Act 1999 (Qld) s 3(1).
Vegetation Management Act 1999 (Qld) s 54A.
Vegetation Management Act 1999 (Qld) s 54B.
Vegetation Management Act 1999 (Qld) s 55.
Vegetation Management Act 1999 (Qld) s 55A(1).
Vegetation Management Act 1999 (Qld) s 55A(3).
Vegetation Management Act 1999 (Qld) s 16(1).
Vegetation Management Act 1999 (Qld) s 19K(1).
Vegetation Management Act 1999 (Qld) s 19K(4).
Vegetation Management Act 1999 (Qld) s 19K(6).
111
Finally, if development approval is given in relation to vegetation, or a property map
of assessable vegetation is made, the chief executive must give the Registrar of Titles
written notice of the approval or the map.117
However, it seems the Act only makes use of the register in relation to obligations and
restrictions that a specific to individual parcels of land. In addition to these parcelspecific obligations and restrictions, the Act places a number of general restrictions
upon development which affect entire regions, and administrative advices are not used
to record any of these restrictions. To ascertain whether land is subject to any such
restrictions, it is necessary to consult the legislation, and any associated plans and
policies.
There are also some other registers established under the Vegetation Management Act
which record details of obligations and restrictions. These registers will be outlined
below.
As a result, a search of the land title register will not conclusively outline all potential
restrictions imposed under the Vegetation Management Act.
3.2.12. Water Act 2000.
The main mechanism for recording interests under the Water Act is the Water
Register, which will be discussed in detail below. Administrative advices are used in a
limited sense to record details of private water supply agreements, and distribution
operations licenses.118
3.2.13. Wet Tropics and World Heritage Protection and Management Act 1993
Where private land is located in the Wet Tropics area, a person is prohibited from
destroying a forest product, or carrying out any other act prescribed by regulation,
unless granted a permit.119 Where any prohibitions apply to private land, the Registrar
must maintain records that show this.120
117
118
119
120
Vegetation Management Act 1999 (Qld) s 70B.
Water Act 2000 (Qld) ss 1000-1001, 1007.
Wet Tropics and World Heritage Protection and Management Act 1993 (Qld) s 56.
Wet Tropics and World Heritage Protection and Management Act 1993 (Qld) s 66.
112
This is a good model as all restrictions created by the Act or regulations which affect
land will be notified on title.
3.2.14. Sustainable Planning Act 2009
The Sustainable Planning Act 2009 (Qld)121 only makes use of the land title register
in relation to its compensation provisions. Under the Sustainable Planning Act, a
person is entitled to be paid compensation where:
 a change to the planning scheme reduces the value of the interest; and
 a development application (superseded planning scheme) for a development
permit relating to the land has been made; and
 the application is assessed having regard to the planning scheme and planning
scheme policies in effect when the application was made; and
 the assessment manager, or, on appeal, the court refuses the application, or
approves the application in part or subject to conditions or both in part and
subject to conditions. 122
Where compensation is paid, the local government must notify the Registrar of Titles,
who is then required to make a notification on title.123
3.2.15. Conclusion
The above analysis highlights the different ways in which administrative advices are
used. In most cases, the legislation obliges the relevant person to notify the Registrar
of Titles of a specified matter, who will then record an administrative advice.
Administrative advices do have the potential to assist with effective management of
restrictions and obligations on title and use. They ensure that information is drawn to
the attention of persons searching the land title register without conferring the benefits
of registration. However, there are some problems with the current use of
administrative advices.
121
122
123
Replaced the Integrated Planning Act 1997 (Qld)
Sustainable Planning Act 2009 (Qld) s 704.
Sustainable Planning Act 2009 (Qld) s 713.
113
There are several distinctions amongst the legislation in terms of how administrative
advices are utilised. There are different timeframes imposed in relation to notifying
the Registrar. In some cases the Act is silent as to a timeframe, with other Acts
imposing a timeframe of 14 days, 28 days, or ‘as soon as practicable’. There are
potential problems with accuracy where an Act fails to specify a timeframe, as a
department may not notify the Registrar in a timely manner. Also, even where Acts do
specify a timeframe, they are silent as to whether there are any consequences for
failure to notify. For example, they could state that interests do not take effect until
they are notified, or they could grant a right to compensation where loss is suffered
due to a failure to notify.
Also, whilst some Acts state that obligations and restrictions are binding on
successors in title, this is not uniform. Thus it is difficult to ascertain whether
obligations and restrictions are intended to operate in rem or in personam.
Administrative advices do not automatically operate in rem, and are dependent upon a
statutory provision clarifying their effect. Conceivably there could be some
administrative advices which bind successors in title, and some which do not. To find
out, the landholder or prospective purchaser would have to consult the legislation.
Furthermore, whilst administrative advices are a good method of notifying
information on title without conferring the benefits of registration, the manner in
which administrative advices are used differs between the Acts discussed above. In
some cases administrative advices are used to record all details of obligations and
restrictions on private land imposed by the Act (for example, the Recreation Areas
Management Act), whereas in other cases, only selected matters are recorded as
administrative advices (for example, the Vegetation Management Act).
In the latter situation, the land title register does not provide an accurate picture of
obligations and restrictions on land title and use imposed by an Act, making it
necessary to consult the text of the legislation, regulations and plans for complete
details of obligations and restrictions.
114
Additionally, for the most part it seems as though administrative advices are used
more frequently in the instance of obligations and restrictions that are specific to an
individual parcel of land. It does not appear that administrative advices are used in the
case of blanket restrictions that affect multiple parcels of land. For example, the
Vegetation Management Act and associated plans create restrictions that apply to
entire regions. These restrictions are not noted on title.
Finally, administrative advices are not used by all Acts which create restrictions on
land title and use. Therefore a search of the land title register will not show all
obligations and restrictions on use. To fully ascertain whether there are any
obligations and restrictions on land title and use, there are a number of other registers
which must be consulted, in addition to the legislation itself in many cases.
3.3.
Other registers
Some of the Acts surveyed establish separate registers that operate externally to the
land title register. These Acts are:
 Aboriginal Cultural Heritage Act 2003;
 Environmental Protection Act 1994;
 Land Protection (Pest and Stock Route Management) Act 2002;
 Nature Conservation Act 1992;
 Petroleum Act 1923;
 Petroleum and Gas (Production and Safety) Act 2004;
 Queensland Heritage Act 1992;
 Soil Conservation Act 1986;
 Torres Strait Islander Cultural Heritage Act 2003;
 Vegetation Management Act 1999 (Qld); and
 Water Act 2000.
This section will also briefly discuss the Sustainable Planning Act 2009 (Qld) and the
associated local government planning schemes. Whilst this Act does not establish a
register, it is possible to obtain property searches under the relevant planning
schemes. These searches essentially involve the local government providing a
summary of information from their own internal systems, therefore it is relevant to
115
this discussion. Similarly, it will also discuss sustainability declarations provided
under the Building Act 1975 which are provided prior to sale of a property.
Each of these registers will be discussed in detail below.
3.3.1. Aboriginal Cultural Heritage Act 2003 and Torres Strait Island Cultural
Heritage Act 2003
The Aboriginal Cultural Heritage Act and the Torres Strait Island Cultural Heritage
Act are almost identical in terms of structure. The registers established under both
Acts are very similar in operation, and are both administered by the DERM. These
registers were created to serve an informational purpose – namely, to assemble in one
place information concerning cultural heritage studies, management plans, bodies, and
any other relevant information.124 Furthermore, the register is intended to be used in
land use planning, as well as in research.125
At present, entries in these registers are not notified as administrative advices. This is
unlikely to change in the future, as there are problems with accuracy due to
difficulties associated with validating claims.126 Despite this, both registers are
required by legislation to be available to the public.127
It appears that all relevant obligations and restrictions imposed by the Act are
registered on this register, however because it is not linked to the land title register, it
may not always be consulted by a landholder or prospective purchaser.
3.3.2. Water Act 2000
The Water Act 2000 and its associated water register are also administered by the
DERM. The regime established under the Water Act differs from other regimes as its
the main object is to facilitate trade in water entitlements. The purpose of the regime
124
125
126
127
Aboriginal Cultural Heritage Act 2003 (Qld) s 47(1); Torres Strait Island Cultural Heritage Act
2003 (Qld) s 47(1).
Aboriginal Cultural Heritage Act 2003 (Qld) s 47(2); Torres Strait Island Cultural Heritage Act
2003 (Qld) s 47(2).
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
Aboriginal Cultural Heritage Act 2003 (Qld) s 51; Torres Strait Island Cultural Heritage Act
2003 (Qld) s 51.
116
is to allow registration of, and dealings with, water allocations.128 As such, it is a
register of ownership and entitlements, as opposed to a register of obligations and
restrictions.
The water register is similar to the land title register in a number of ways. The Act
states that ‘a person has notice of an interest in a water allocation if the interest is
included in the register’.129 Furthermore, most interests and dealings recognised under
the Land Title Act are capable of registration on the water register (eg. mortgages).130
Despite this, the provisions of the Land Title Act relating to indefeasibility and
compensation for loss are specifically exempted.131
The Water Register operates separately to the land title register, but is linked to it.
When a water license is registered on the water register, it is automatically linked to
the land title register. This is possible due to interlinked computer systems in the
DERM.132 This contributes to accuracy of land records, by ensuring that a landholder
is notified of any water allocations linked to their land.
3.3.3. Environmental Protection Act 1994
The Environmental Protection Act and the Queensland Heritage Act establish
registers that are administered by the EPA.
The Environmental Protection Act prescribes an objective of ecologically sustainable
development,133 and to this end, the EPA is required to keep a number of registers,
including the contaminated land and environmental management registers.134 These
registers are used to record details of ‘notifiable activities’ and ‘contaminated land’.
Schedule three of the Act lists approximately 40 activities which are classified as
‘notifiable activities’ for the purposes of the legislation. The list includes asbestos
128
129
130
131
132
133
134
Water Act 2000 (Qld) s 94(b).
Water Act 2000 (Qld) s 148(3).
Water Act 2000 (Qld) s 150(1).
Water Act 2000 (Qld) s 151(1)(h).
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
Environmental Protection Act 1994 (Qld) s 3.
Environmental Protection Act 1994 (Qld) s 540.
117
manufacture or disposal, chemical and paint manufacture and storage, dry cleaning,
and pest control as example. The Act mandates that landowners and local
governments must advise the EPA where a notifiable activity is being carried out on
property.135
‘Contaminated land’ is defined as land contaminated by a hazardous contaminant,136
which includes substances such as arsenic, DDT, or oil.137 The Act mandates that
landowners and local governments must advise the EPA where they become aware of
contaminated land.138
If the EPA decides the land has been, or is being, used for a notifiable activity or is
contaminated land, the administering authority must record particulars of the land in
the environmental management register.139 According to the EPA, ‘sites on the
environmental management register in most circumstances pose a 'low risk' to human
health or the environment under their current land use. Entry on the environmental
management register does not mean that the land must be cleaned up or that the
current land use must stop’.140
Notification on the contaminated land register is more serious. Prior to entering land
on this register, a number of investigations must be carried out. If the EPA is satisfied
that the land is contaminated land and action needs to be taken to remediate the land
to prevent serious environmental harm, then an entry will be made.141
Where an entry is made on the contaminated land register, the Registrar is to be
notified in order to record an administrative advice.142 This does contribute to
135
136
137
138
139
140
141
142
Environmental Protection Act 1994 (Qld) ss 371(1), 372(1).
Environmental Protection Act 1994 (Qld) ss 371(2), 3722).
Queensland Government, Contaminated Land (2007) Environmental Protection Agency
<http://www.epa.qld.gov.au/environmental_management/land/contaminated_land/>
at
28
November 2007.
Environmental Protection Act 1994 (Qld) ss 371(1), 372(1).
Environmental Protection Act 1994 (Qld) s 374(3).
Queensland Government, Management of Contaminated Land (2007) Environmental Protection
Agency
<
https://www.epa.qld.gov.au/environmental_management/land/contaminated_land/management_
of_contaminated_land.html#gen3> at 8 December 2009.
Environmental Protection Act 1994 (Qld) s 384(2)(c).
Environmental Protection Act 1994 (Qld) s 422(1).
118
certainty, as a landholder is advised of the existence of an entry on this register
through an ordinary title search. Furthermore, now the DNR and EPA have merged,
there is the possibly for further integration of these registers in the future.143
In contrast, entries made on the environmental management register are not required
to be notified as administrative advices. As noted above, landholders are required to
notify prospective purchasers where the land is notified on either register.144 This
should ensure that prospective purchasers are aware of entry on either register. For
clarity though, it would perhaps be sound for entries on both registers to be recorded
as administrative advices. This is particularly so as an entry on the environmental
management register may become an entry on the contaminated land register
depending on the outcome of investigations. This may then require the landholder to
take positive action to remediate land.
3.3.4. Queensland Heritage Act
The Queensland heritage register is also administered by the EPA. The object of the
Queensland Heritage Act is ‘to provide for the conservation of Queensland’s cultural
heritage for the benefit of the community and future generations’.145 To this effect, the
Act establishes the Queensland heritage register. A place may be entered in the
register if it fulfils any of the criteria listed in s 35(1), most of which relate to its
cultural significance. If a place is entered in the heritage register, any development
applications must be assessed, and may be refused if the development would destroy
or substantially reduce the cultural heritage significance.146
Where an entry is made on the register, the Registrar is to be notified in order to
record an administrative advice.147
143
144
145
146
147
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and
Resource Management (Interview, 3 August 2009).
Environmental Protection Act 1994 (Qld) s 420.
Queensland Heritage Act 1992 (Qld) s 2(1).
Queensland Heritage Act 1992 (Qld) ss 44(1), (2), (3).
Queensland Heritage Act 1992 (Qld) s 174(1).
119
3.3.5. Petroleum Act and Petroleum and Gas (Production and Safety) Act 2004
The Petroleum Act 1923 and the Petroleum and Gas (Production and Safety) Act
2004 are administered by the DME. Under these Acts, all petroleum is, and has
always been, property of the Crown,148 but both Acts provide for various access rights
to petroleum located on privately owned land. Both regimes also establish registers to
provide details of these access rights.149 These registers are available for access by the
public upon payment of a prescribed fee.150
In contrast to some of the other Acts surveyed, they do not provide for register entries
to be notified to the Registrar of Titles. A prospective purchaser or other interested
party has to contact the DME to conduct a search of these registers, as the existence of
any obligations and restrictions contained within them will not be visible on an
ordinary title search.
3.3.6. Land Protection (Pest and Stock Route Management) Act 2002
The purpose of this Act is to provide for pest management for land, and stock route
network management.151 With regards to pest management, the Act states that this
purpose is to be achieved by declaring certain animals and plants to be pests, and
restricting and preventing activities concerning these animals and plants.152 Pest
management is relevant to environmental sustainability, as it is ‘an integral part of
managing natural resources and agricultural systems’.153
A regulation may declare an animal or plant to be a pest for the whole or part of the
state.154 Where such a declaration has been made, it is an offence to:
 introduce a declared pest;155
 feed a declared pest animal;156
148
149
150
151
152
153
154
155
156
Petroleum Act 1923 (Qld) s 9; Petroleum and Gas (Production and Safety) Act 2004 (Qld) s
26(2).
Petroleum Act 1923 (Qld) s 80A(1); Petroleum and Gas (Production and Safety) Act 2004 (Qld)
s 564(1)(a).
Petroleum Act 1923 (Qld) s 80C(1); Petroleum and Gas (Production and Safety) Act 2004 (Qld)
s 566(1).
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 3.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 4.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 9.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 36.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 39.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 40.
120
 keep a declared pest;157
 release a declared pest;158 or
 supply a declared pest.159
However, all of these activities may be authorised by a declared pest permit. A person
may apply to the Chief Executive for a declared pest permit to carry out any of the
activities listed above.160 Under the legislation, the Chief Executive is required to
maintain a register of declared pest permits.161 The legislation is silent as to whether
this register is available for public inspection. Furthermore, there is no obligation
placed upon the Chief Executive to notify the Registrar of Titles of any entries on the
register. As such, this register must be searched in addition to a title search, to ensure
that an accurate picture of all restrictions on title and use is attained.
Additionally, there is no register containing details of what plants and animals are
declared pests, and the geographic areas to which these restrictions apply. As a result,
the register in place is of little use in determining what restrictions affect a given
parcel of land. It is necessary to consult the text of the legislation and regulations to
determine whether there are any relevant declarations in place.
3.3.7. Soil Conservation Act 1986
The Soil Conservation Act differs from most environmental legislation as it does not
explicitly state its objective. The Act defines ‘soil conservation’ to mean the
prevention or mitigation of soil erosion,162 and is therefore clearly in place for the
purpose of environmental protection.
The Act uses two different instruments to achieve soil conservation, namely property
plans and project plans.
157
158
159
160
161
162
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 41.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 43.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 44.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 58.
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) s 75(1).
Soil Conservation Act 1986 (Qld) s 6.
121
Property plans are a voluntary undertaking, which depend upon the consent of a
landowner. They apply to a single property, or part thereof. A landowner may
instigate a property plan by making an application to the DERM for approval of the
plan.163 Under the Act, a property plan must detail all ‘soil conservation measures,
undertakings, acts, proposals, prohibitions and things designed, carried out, enforced
or proposed to be carried out or enforced…for the purpose of soil conservation’.164 A
landowner may also apply for financial assistance to carry out the necessary works.165
In contrast, a project plan can be imposed upon landowners without their consent. A
project plan typically applies to an area covering between 10 and 20 properties.166 The
first step is for the Chief Executive to prepare a plan for an area, which contains the
same information necessary for property plans.167 Once the plan has been prepared,
the Soil Conservation Act specifies that a community consultation period must follow,
allowing members of the public to lodge objections to the plan.168 If no objections are
made, the Chief Executive may then forward the plan to the Governor-in-Council for
approval.169
Once a project plan is in place, the Chief Executive may, in accordance with the plan,
issue a soil conservation order to a landowner, requiring them to construct or maintain
the soil conservation measures listed in the order.170
The Act requires the Chief Executive to keep a register of all approved plans, and also
to keep a copy of each approved plan and details of all revocations. These records
must be available for inspection by any person, free of charge.171 There is no
provision for this register to be linked to the land title register, therefore an additional
search must be undertaken to determine whether there are any obligations or
restrictions in place.
163
164
165
166
167
168
169
170
171
Soil Conservation Act 1986 (Qld) s 10(1).
Soil Conservation Act 1986 (Qld) s 10(2).
Soil Conservation Act 1986 (Qld) s 24.
Queensland Government, Soil Conservation Planning in Cropping Lands (2006) Department of
Natural Resources and Water <http://www.nrw.qld.gov.au/factsheets/pdf/land/l83.pdf> at 26
November 2007.
Soil Conservation Act 1986 (Qld) s 14.
Soil Conservation Act 1986 (Qld) ss 14(7); 21.
Soil Conservation Act 1986 (Qld) s 15(1).
Soil Conservation Act 1986 (Qld) s 17(1).
Soil Conservation Act 1986 (Qld) s 33.
122
3.3.8. Nature Conservation Act 1992
The Nature Conservation Act also establishes a separate register. Under s 133, the
chief executive must keep a register including most instruments under the Act. Those
relevant to private land are conservation agreements, management and conservation
plans, and interim conservation orders.172
The register must be made available for public inspection during office hours on
business days. A prescribed fee is payable, and a person may take extracts of the
register.173
This register is effectively linked to the land title register. As stated above, the chief
executive is required to notify the Registrar of these instruments, and they must be
recorded as administrative advices.
3.3.9. Sustainable Planning Act 2009
The Sustainable Planning Act was enacted to achieve ecological sustainability
through managing the development process and its effects on the environment, and
coordinating and integrating planning at the local, regional and state levels.174
Amongst other things, the Sustainable Planning Act sets out the process whereby
local governments are to create planning schemes, which are given the force of law.175
An example planning scheme is Brisbane’s City Plan. This is a very detailed plan
which sets out its overall objectives, and then has a number of local plans for suburbs,
which outline performance criteria and solutions for development in those areas.
Although neither the Sustainable Planning Act nor the local planning schemes
provide for public registers, a prospective purchaser can apply for property
information, which the council will provide using information from their own
information sources. For example, in Logan City Council a prospective purchaser can
172
173
174
175
Nature Conservation Act 1992 (Qld) s 133(1).
Nature Conservation Act 1992 (Qld) s 133(2).
Sustainable Planning Act (Qld) s 3.
Sustainable Planning Act (Qld) s 80.
123
apply for a property search, which gives information on the property ownership and
location, the valuations, details of rates levied, details of zoning, including planning
schemes, vegetation management and building envelopes, details of any building
work, engineering resumptions and realignments, and water consumption.176 An
example property search is annexed to this thesis as Appendix C.
However these property searches are not comprehensive, and if a landholder or
prospective purchaser wishes to develop the land, it would be prudent to consult the
planning scheme in detail. If there are any inaccuracies in the information that is
provided, the local government is required to pay reasonable compensation.177
3.3.10. Building Act 1975
Under recent amendments to this Act, a seller of a property is required to prepare a
sustainability declaration to provide to prospective purchasers.178 The declaration will
be an approved form which provides information about the property’s sustainable
energy or water use, or amenity or safety of persons using the building.179
This system differs from the other Acts discussed as it does not require a searcher to
actively seek the information; it must be provided to them by law. This ensures that
purchasers are provided with relevant information, and is similar to the mandatory
disclosure regimes used in other jurisdictions.180
3.3.11. Vegetation Management Act 1999
The Vegetation Management Act creates several registers:

Register of clearing notifications;

Register of regrowth clearing authorisations; and.

Register of offsets.
These registers will be discussed in turn.
176
177
178
179
180
Logan City Council, Application for Residential Property Information
http://www.logan.qld.gov.au/NR/rdonlyres/D0CB5715-3470-4CC0-9BAD46B4D0BD5B0C/0/ps1.pdf> at 11 August 2009.
Sustainable Planning Act (Qld) s 707.
Building Act 1975 (Qld) s 246C.
Building Act 1975 (Qld) s 246B.
See for example Sale of Land Act 1962 (Vic) s 32(1).
(2009)
<
124
The Vegetation Management Act and the associated Regrowth Vegetation Code set
out a very complicated system defining when regrowth may be cleared.
Under the Regrowth Vegetation Code, certain types of clearing are allowed provided
that DERM is notified.181 The Act states that a person must not clear regulated
regrowth vegetation under the regrowth vegetation code unless they have given a
clearing notification to DERM.182 The register of clearing notifications is used to
record details of these notifications.183 This essentially negates the need for DERM to
assess these applications.
If a person wishes to clear regrowth vegetation in a way that does not comply with the
regrowth vegetation code, they need to apply for a regrowth clearing authorisation.184
DERM have to assess these applications.185 If an authorisation is given, it is registered
on the register of regrowth clearing authorisations.186 Importantly, these
authorisations do not run with the land.187
It is probably not important that regrowth clearing authorisations are not notified on
title as they do not operate in rem. However it may be beneficial for clearing
notifications to be notified, in the event that a purchaser of land wishes to conduct
clearing that has already been notified.
The Vegetation Management Act also has an associated Policy for Vegetation
Management Offsets. This may contain matters regarding offsets as a condition of
development approval.188 The chief executive must keep a register of these offsets.189
There is no provision for this register to be linked to the land title register, but the
Vegetation Management Act contemplates the use of statutory covenants to secure
181
182
183
184
185
186
187
188
189
Queensland Government, Regrowth Vegetation Code (2009) Department of Environment and
Resource Management < http://www.derm.qld.gov.au/publications/docs/p203735.pdf > at 14
December 2009.
Vegetation Management Act 1999 (Qld) s 19V.
Vegetation Management Act 1999 (Qld) s 19X.
Vegetation Management Act 1999 (Qld) s 19ZA.
Vegetation Management Act 1999 (Qld) ss 19ZB – 19ZD.
Vegetation Management Act 1999 (Qld) s 19ZG.
Vegetation Management Act 1999 (Qld) s 19ZE.
Vegetation Management Act 1999 (Qld) s 10D.
Vegetation Management Act 1999 (Qld) s 22DL.
125
these offsets.190 This is also discussed in the Policy, but is not mandated.191 This is
potentially a sound method of providing information on these offsets, but should be
used on a uniform basis.
3.3.12. Conclusion
Although a number of Acts establish registers, the operation of these registers differs
considerably.
In some Acts the register is effectively linked to the land title register through the
recording of administrative advices, whereas in other cases it is not. An administrative
advice will not provide any detail of the obligations and restrictions, and it is
necessary to undertake a separate search. Regardless, this method does ensure that the
existence of any obligations and restrictions is flagged on a title search.
In cases where the register is not linked, it is necessary to conduct an additional search
to determine whether or not there are any obligations or restrictions affecting the
property.
The purpose of the registers also differs. The Water Register was developed to
facilitate trade of water entitlements, whereas the registers established under the
Aboriginal Cultural Heritage Act and the Torres Strait Islander Cultural Heritage Act
are merely an informational tool.
Additionally, some registers are comprehensive and contain details of all relevant
obligations and restrictions under their establishing Act, whereas others (for example,
the Land Protection (Pest and Stock Route Management) Act 2002) only contain some
restrictions. In the latter case, it is also necessary to consult the legislation, regulations
and plans to fully ascertain what obligations and restrictions affect land.
190
191
Vegetation Management Act 1999 (Qld) s 10D(2)(d).
Queensland Government, Policy for Vegetation Management Offsets (2009) Department of
Environment
and
Resource
Management
<
http://www.derm.qld.gov.au/about/policy/documents/3450/veg_2006_2888.pdf>
at
14
December 2009.
126
3.4.
Restrictions which are not registered
A number of the Acts surveyed also impose restrictions on title and use, which are not
registrable on any register. These Acts include:
 Electricity Act 1994;
 Land Tax Act 1915;
 Local Government Act 1993;
 Metropolitan Water Supply and Sewerage Act 1909;
 Soil Survey Act 1929; and
 Wild Rivers Act 2005.
As these restrictions are not registrable, it is necessary to consult the legislation itself,
as well as any regulations and plans, for details of restrictions on title and use. From
this list of legislation, the Soil Survey Act 1929 and Wild Rivers Act 2005 are the only
Acts that create, or enable the creation of restrictions, in favour of environmental
sustainability. These two Acts will be discussed in detail below.
3.4.1. Soil Survey Act 1929
The Soil Survey Act is silent as to its objectives. It states that authorised persons are
permitted to enter land for the purpose of carrying out a soil survey. They are also
permitted to dig or bore into land, take samples, and conduct any inspection or
investigation.192 The Act is silent as to how details of such authorisations may be
obtained.
3.4.2. Wild Rivers Act 2005
The purpose of the Act is to ‘preserve the natural values of rivers that have all, or
almost all, of their natural values intact’.193 The Act sets out a number of principles
for achieving this purpose, including regulating activities to preserve wild rivers,
taking a precautionary approach, and taking into account the impact of activities on
wild rivers natural values.194
192
193
194
Soil Survey Act 1929 (Qld) s 3.
Wild Rivers Act 2005 (Qld) s 3(1).
Wild Rivers Act 2005 (Qld) s 3(3).
127
To achieve these purposes, the Minister is empowered to declare an area to be a wild
river area.195 The area is then divided into two parts – the high preservation area, and
the preservation area.196 Once an area has been declared a wild river area, there are
limitations upon development.
More stringent provisions apply in respect of high preservation areas. If a
development application is made for a material change of use of premises or
operational work for agricultural or animal husbandry activities, and part of the area is
a high preservation area in a wild river area, the assessment manager must refuse the
application.197
If a development application is made for a material change of use of premises or
operational work:
 In a wild river area;
 That is residential, commercial or industrial development; and
 That is assessable under IPA;
The assessment manager’s decision must comply with the applicable code mentioned
in the wild river declaration for the area.198
The Act does not make any provision for notification of wild river declarations. As a
result, a party applying for a material change of use of premises or operational work
needs to contact the department directly to determine whether any restrictions apply.
Details of wild river declarations are available on the DERM website. At present,
there are six wild river declarations in place, with a further proposal currently
underway.199
If a party is not aware of any declaration, this may affect their application, as the
declaration may not be specifically addressed.
195
196
197
198
199
Wild Rivers Act 2005 (Qld) s 7.
Wild Rivers Act 2005 (Qld) s 41.
Wild Rivers Act 2005 (Qld) s 42.
Wild Rivers Act 2005 (Qld) s 43.
The State of Queensland, Declared Wild River Areas (2008) Department of Natural Resources
and Water < http://www.nrw.qld.gov.au/wildrivers/declared_areas.html> at 9 March 2009.
128
3.4.3. Conclusion
In both Acts surveyed there is potential for use of a register. In the case of the Soil
Survey Act, any authorities to enter land could be recorded as administrative advices.
As the Wild Rivers Act places limitations upon development, it is even more important
that some registration system be used to ensure that landholders are properly informed
of restrictions upon use. This would also enable landholders to properly frame any
applications for development approval.
3.5.
Conclusion
The following table briefly summarises the findings regarding the use of registers
Aboriginal Cultural Heritage Act 2003
No register
Recorded as
administrative
advices
Separate register
Land Title Register
under the Acts discussed above.
X
Acquisition of Land Act 1967
X
Building Act 1975
X
Coastal Protection and Management Act
X
X
1995
Electricity Act 1994
X
Environmental Protection Act 1994
Forestry Act 1959
X
X
X
X
Fossicking Act 1994
X
Sustainable Planning Act 2009
X
Land Protection (Pest and Stock Route
X
X
X
Management) Act 2002
Land Tax Act 1915
X
Local Government Act 1993
X
Metropolitan Water Supply and Sewerage
X
129
No register
Recorded as
administrative
advices
Separate register
Land Title Register
Act 1909
Mineral Resources Act 1989
Nature Conservation Act 1992
X
X
X
Planning (Urban Encroachment – Milton
X
X
Brewery) Act 2009
Petroleum Act 1923
X
Petroleum and Gas (Production and
X
Safety) Act 2004
Queensland Heritage Act 1992
X
X
Recreation Areas Management Act 2006
X
River Improvement Trust Act 1940
X
Soil Conservation Act 1986
X
Soil Survey Act 1929
X
State Development And Public Works
X
Organisation Act 1971
Sugar Industry Act 1999
Torres Strait Islander Cultural Heritage
X
X
X
Act 2003
Vegetation Management Act 1999
X
X
Water Act 2000
X
X
Wet Tropics World Heritage Protection
X
X
and Management Act 1993
Wild Rivers Act 2005
X
This table clearly shows a fragmented approach to the recording of information
concerning obligations and restrictions on land title and use. There are a number of
registers that must be consulted as well as some obligations and restrictions which are
130
not recorded anywhere, and can only be found within the relevant legislation,
regulation, or plan.
This section has analysed each Act on an individual basis. It is now necessary to
assess the system for management of obligations and restrictions on title and use as a
whole in accordance with the guidelines for comparison set out in Chapter Three.
4.
How effective is the Queensland approach as a whole?
4.1.
Does the jurisdiction provide for integrated management of information
concerning obligations and restrictions on land title and use?
As discussed in detail above, information concerning obligations and restrictions on
land use can be found in one of four places:
 Registered on the land title register;
 Recorded as an administrative advice;
 Registered in a separate register; or
 In legislation, regulations or plans.
As a result, there are a number of different places where obligations and restrictions
on land title and use may be found, often with little interlinkage between them.
Administrative advices may be recorded on title, but only a small number of Acts
require this. Furthermore, many of those Acts which do use administrative advices
only do so in a minimal way, and information on many obligations and restrictions
created by those Acts is only available in the text of the legislation, regulations, or
plans.
As discussed above at 3.3, obligations and restrictions may also be found on a
separate register established under legislation (for example, the heritage register).
Some of these Acts require that entries on these registers be entered as administrative
advices, effectively linking the register to the land title register, but this obligation
does not apply universally. Furthermore, even where the obligation does exist, the
registers are not interlinked, and all administrative advices must be made manually.200
200
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
131
Entries are therefore dependent upon the diligence of the administering agency.
Additionally, an administrative advice merely alerts the searcher as to the existence of
the obligations and restrictions, and a search of the separate register is necessary to
obtain the details.
In addition to these registers, there are a number of obligations and restrictions on title
and use that are not recorded on any register, and exist solely in legislation. To
ascertain what these obligations and restrictions are, it is necessary to consult the
legislation, and in some cases, regulations and plans.
An example of the complexity of the current system can be found in the Queensland
Court of Appeal decision of Burns v State of Queensland & Croton.201 Mrs Burns
purchased vacant land at a Crown auction in 1968, and decided to sell the land in
2002 as she was experiencing significant financial hardship. She decided to clear the
land prior to sale in the hope that it would increase the price, and applied for a permit
to clear native vegetation. This decision was described as leading her ‘into the web of
intricacies of the Integrated Planning Act’.202
Mrs Burns’ application for a clearing permit was refused on the basis that her land
was a known habitat for the endangered mahogany glider and cassowary. As a result,
the value of her land was substantially reduced, with Jerrard JA noting that ‘she has
been singled out to bear a very substantial cost of preserving the habitat of the
mahogany glider’.203
Mrs Burns challenged the refusal to grant a permit, and despite the Court’s sympathy
for Mrs Burns’ situation, her appeal was dismissed as the encumbrance over her land
had its basis in legislation.
Unfortunately, this encumbrance could only be found by reading the Integrated
Planning Act 1997 (Qld), in conjunction with the Integrated Planning Regulation
201
202
203
[2006] QCA 235.
Burns v State of Queensland & Croton [2006] QCA 235 [5]. The Integrated Planning Act 1997
(Qld) has since been replaced by the Sustainable Planning Act 2009 (Qld), but this does not
effect the outcome of this case.
Ibid [5].
132
1998 (Qld), the Vegetation Management Act, and the State Policy for Vegetation
Management on Freehold land. As this restriction was not notified on title, Mrs Burns
was not notified of its existence. Furthermore, if Mrs Burns had sold the land without
clearing it, an innocent purchaser could have purchased the land without knowledge
of this restriction on development.
Whilst this thesis does not attempt to enter into a discussion as to the necessity for
legislative obligations and restrictions on land, this case does demonstrate a need for
clearer information systems which draws together fragmented legislative regimes.
This problem is also apparent in the case of Wall v Doyle,204 discussed in Chapter
One, which involved land clearing which was allowed under one statutory regime, but
not under another.
Recent events which occurred in Collingwood Park in Queensland also demonstrate
how the present system can result in landowners being unaware of major issues
affecting their land. A number of persons purchased and built upon land in
Collingwood Park, unaware that there were a number of disused mines under the area.
In April 2008, these disused mines caused land subsidence, causing a number of the
properties to sink, which in some cases caused irreparable damage.205
The existence of these mines could not be found through the usual conveyancing
searches. Since the land subsidence occurred, the Queensland government proposed
new legislation which will enable owners of land in Collingwood Park to have a legal
note placed on their title, which will provide an alert that the property is in an at-risk
area, and also allow the owner, or any future owner, to claim financial assistance if
the land is damaged further in the future.206 This legislation was passed in November
2008, and will be discussed below at 4.2. The government further resolved to
introduce legislation that will prevent future development in old mining areas.207
204
205
206
207
[2008] QPEC 23.
Queensland Government, Collingwood Park Subsidence (2009) Department of Mines and
Energy < http://www.dme.qld.gov.au/cp_subsidence.cfm> at 27 January 2009.
Ibid
Queensland Government, Collingwood Park inspires new legislation (2008) Department of
Mines and Energy <http://www.dme.qld.gov.au/media_centre.cfm?item=562.0> at 27 January
2009.
133
Despite these proposals, landowners have still had to endure a lengthy process to
obtain financial assistance for damage to their homes. Furthermore, the damage has
had a flow-on effect to neighbouring landowners, who have not suffered any physical
damage, but have seen their property values decrease. These problems quite possibly
could have been prevented had the land title register provided relevant information
about these mines.
In conclusion, the current system used in Queensland does not provide for integrated
management of information concerning obligations and restrictions on land title and
use, as a myriad of registers, statutes, regulations and plans must be consulted to
obtain a complete understanding of all obligations and restrictions affecting land.
There has been movement in recent years towards making more information
available, although this has largely occurred on a reactive basis as a response to
specific problems, as in the Collingwood Park example.
There is some potential for greater integration to occur now that the DNRM and EPA
are merged under the umbrella of the DERM, but such integration will be slow to
occur, and will not be total. For example, there may eventually be potential for the
contaminated land register to be linked to the land title register.208
4.2.
Is the land title register utilised for the purpose of recording obligations
and restrictions on use?
The land title register only allows for the registration of certain instruments. As
discussed above, some Acts have utilised these instruments as a mechanism of
registering obligations and restrictions on use. This has become more widespread in
recent years as more instruments have been created and made capable of registration,
such as covenants and profits á prendre.
The main examples of these instruments being used for environmental purposes are
statutory covenants for conservation or preservation of nature, profits á prendre under
the Forestry Act, and easements under the Sugar Industry Act. These examples are all
208
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and
Resource Management (Interview, 3 August 2009).
134
quite recent, with covenants being available only since 1997, and the relevant sections
of the Forestry Act and Sugar Industry Act inserted in 2000 and 2008 respectively.
This demonstrates that the use of the land title register to register obligations and
restrictions on use is growing.
There are also a number of Acts which provide for administrative advices to be
recorded on title. Although these do not attract the benefits of registration, these
entries are visible on a title search and will alert the searcher to the existence of the
obligation or restriction. In some cases, these entries will also bind successors in title.
The use of administrative advices is also growing, and effectively extending the scope
of the land title register. A very recent example of the land title register being
extended is in the case of properties affected by land subsidence at Collingwood Park.
The Mineral Resources Act 1989 (Qld) was amended in November 2008 to provide a
state guarantee for land affected by subsidence. This guarantees that the state will pay
for all works necessary to stabilise the land and repairs to land, or alternatively, they
will purchase the land where repairs are not cost-effective.209 Where this guarantee is
given, the owner of affected land may, in writing, ask the chief executive to have a
record of the guarantee for the land included on the freehold land register.210 The
chief executive must notify the Registrar, who must in turn keep a record so that a
search of the register will show the guarantee.211 The explanatory notes make it clear
that this record is to operate as an administrative advice.212 Therefore the use of
administrative advices is also growing.
Additionally, there is increased use of external registers to record details of
obligations and restrictions on use. Only one of these registers links directly to the
land title register, and this is the water register. Any entries on it synchronise with the
land title register automatically, and this is possible because both registers are
administered by the same department.
209
210
211
212
Mineral Resources Act 1989 (Qld) s 381B(1).
Mineral Resources Act 1989 (Qld) s 381C(1).
Mineral Resources Act 1989 (Qld) s 381C(2), (3).
Explanatory notes, Mines and Energy Legislation Amendment Bill 2008 (Qld) 34.
135
There are other registers which are not directly linked to the land title register, but are
intended to operate in conjunction with it, as legislation obliges the relevant persons
to notify the Registrar where entries are made on the register. One deficiency with this
system is that none of that Acts surveyed state whether there are any consequences for
failure to notify the Registrar of Titles. Potentially there could be obligations and
restrictions which have not been notified.
In contrast to the water register, these other external registers are not linked to the
land title register, and updates do not occur automatically. The relevant department
has to physically lodge the administrative advice with the DERM in the form of a
form 14 general request. The DERM has no way of checking whether the departments
are filing all administrative advices; their role is simply to record the information that
is given to them. If departments breach their statutory obligation to notify the register
of administrative advices, the DERM has no means of finding out.213 Although there
is provision for information to be recorded on title, whether or not this is occurring is
difficult to assess. Furthermore, the lack of statutory consequences for noncompliance could be acting as a barrier to departments providing information in a
timely manner. If for example legislation stated that obligations and restrictions did
not take effect unless notified, this would be a good incentive for departments to
ensure that information is notified in a timely manner.
Thus the land title register is used for the purpose of recording information on
obligations and restrictions on land title and use, but only in a limited way. However
the scope of the land title register has grown in recent years, and the Registrar of
Titles has indicated that there is potential for further growth in the future.214
Arguably the register should be used to register and record a broader range of
interests. As noted by Weir:
one fundamental aspect of the Torrens system is that a party can search and ascertain
all relevant interests in relation to that parcel of land. If an interest in land cannot be
registered or denoted on the register in some way, this limits the ability to enforce and
213
214
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and
Resource Management (Interview, 3 August 2009).
136
secure this interest. A titles system which is able to accommodate the widest variety of
interests provides the maximum flexibility for the development of land. The inability to
record an interest or to provide some indication on the register such as a caveat
diminishes the mirror which the register should provide.215
Further expansion of the scope of the land title register to register and record new
interests would contribute to restoration of the mirror principle.
4.3.
How easily can landholders or prospective purchasers ascertain what
obligations and restrictions on title and use apply in relation to a parcel of
land?
As discussed above, there is no single information source which may be consulted to
identify all obligations and restrictions affecting land title and use. Consequently, it is
not easy to obtain information on obligations and restrictions on title and use due to
the myriad of registers and Acts which must be consulted.
To ascertain the full range of information concerning obligations and restrictions on
land title and use, it is necessary to undertake a number of searches, and consult
legislation, regulations and plans. Standard conveyancing practice suggests that, at the
very least, the following searches should be undertaken:
215
216

Title search (land title register);

Planning search (through the relevant local council);

Land tax search;

Queensland Transport search;

Main Roads search;

Contaminated land and environmental management register search;

Energex search; and

Court registry and ASIC search.216
Michael Weir, ‘Land Title Act 1994 (Qld) – Statute for a New Millenium?’ (2000) 4 Flinders
Journal of Law Reform 185, 194.
Sharon Christensen and Bill Duncan, Queensland Conveyancing Protocol – Buyer Inquiries
(2008)
Queensland
Law
Society
<
http://www.qls.com.au/content/lwp/wcm/resources/file/ebc03e4640b5593/Qld%20Conveyancin
g%20Protocol%20v3%20_10%20September%202008.pdf> at 14 August 2009.
137
As outlined above there are many additional searches that could be conducted, but are
generally not undertaken in a standard residential conveyance, unless there is a
particular reason to do so. For example, a mining search may be conducted, but will
usually only be conducted where the area is a known mining area. This has recently
become a major issue in Collingwood Park, as discussed above, where properties have
been built upon a disused mine, and subsequently affected by land subsidence. The
existence of the mine was not revealed through ordinary searches, and purchasers did
not conduct specialised mining searches.
All of the registers surveyed are available to the public. The land title register is
searchable by any person on payment of a prescribed fee. The Act permits persons to
search and obtain copies of the indefeasible title of the lot, a registered instrument, or
any information kept under the Act.217 A land title register search will also disclose
the existence of obligations and restrictions recorded as administrative advices, but
the searcher must contact the relevant department for details. All of the other external
registers surveyed permit public access, most upon payment of a prescribed fee.218
In summary, it is difficult to ascertain what obligations and restrictions on title and
use affect a parcel of land. Most purchasers of residential property engage a solicitor
to complete the conveyance of property, in which case the standard searches listed
above would generally be undertaken. However, there are a number of obligations and
restrictions which may not be found through conducting these standard searches, and
there is no easy way to determine if there are any such obligations and restrictions
affecting land. Additionally, as almost all searches entail a fee, it may prove too much
of a financial burden for prospective purchasers to conduct every possible search.
Furthermore, for an individual representing themselves, it would be exceptionally
difficult for them to accurately ascertain all obligations and restrictions affecting their
property, due to the large number of registers, statutes, regulations, by-laws and plans
which must be consulted.
217
218
Land Title Act 1994 (Qld) s 35(1)(a).
Aboriginal Cultural Heritage Act 2003 (Qld) s 51; Petroleum Act 1923 (Qld) s 80C(1);
Petroleum and Gas (Production and Safety) Act 2004 (Qld) s 566(1); Queensland Heritage Act
1992 (Qld) s 32(1); Water Act 2000 (Qld) s 153; Torres Strait Islander Cultural Heritage Act
2003 (Qld) s 51(1).
138
4.4.
Who has responsibility for the accuracy of information concerning
obligations and restrictions on title and use?
The land title register is only accessible by the titling staff at DERM; no other agency
may place information on these registers. The Registrar of Titles suggested an
approach whereby other Departments could access a database similar to the AAR and
record details of obligations and restrictions themselves. Such an approach does have
disadvantages though, as there may be numerous problems with accuracy, currency,
and also liability for incorrect information.219
Although only the titling staff have access to the register, staff will not question the
substantive information contained in a general request to record administrative advice;
they will only ensure that it complies with requirements as to form. Once general
requests to record an administrative advice are received by the titling staff, they are
examined for compliance with the legislation. If the dealing complies with the
legislation, it is registered.220
Therefore, it is the responsibility of the administering agency to ensure that
information is correct. Additionally, it is the responsibility of the administering
agency to provide notice to the Registrar where an administrative advice is required,
therefore liability for omitted entries would be attributable to the responsible agency.
As discussed above, there are differences amongst the legislative regimes regarding
when events must be notified to the Registrar in order for an administrative advice to
be recorded. Whilst some Acts specify timeframes in which the Registrar must be
notified, others state ‘as soon as practicable’, and others are silent as to a timeframe.
The responsibilities are therefore defined by the relevant Act. However as noted
above, it is unclear what the consequences are where information is not notified
within these timeframes.
219
220
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
Queensland Land Registry, The Titling Process (2008) Department of Natural Resources and
Water <http://www.nrw.qld.gov.au/property/titles/pdf/titlingprocess.pdf> at 17 September 2008.
139
Administering departments will be responsible for information contained in external
registers not linked to the title register. With regard to obligations and restrictions
contained only in legislation, it is the searcher’s responsibility to ensure that the most
recent version of legislation is consulted.
4.5.
Is the accuracy of information concerning title and use guaranteed, and is
compensation available where information is incorrect?
The guarantee of accuracy given to information varies considerably depending on its
source.
The only entries that are guaranteed completely are those registered on the land title
register. As mentioned at 3.1, the insurance principle applies to the land title register.
The LTA states that a claimant is entitled to compensation from the State in a number
of circumstances, including where they are deprived of an interest in a lot because of
fraud, administrative errors, tampering with the register, loss or destruction of
documents, or conduct of registry staff.221 Furthermore, a claimant may be entitled to
compensation for loss or damage in other circumstances, provided that the register
cannot be corrected.222
The insurance principle does not extend to other obligations and restrictions notified
as administrative advices, and other external registers, as well as restrictions found
only in legislation. The LTA specifically states that the Registrar of Titles will not be
liable for incorrect information recorded as an administrative advice.223 As mentioned
above, the Queensland Registrar of Titles characterises these entries as being ‘below
the line’, therefore not attracting the same benefits as those registered interests ‘above
the line’.224 Therefore if a landholder is affected by an obligation or restriction which
is not registered on title, they will not have an action against the Registrar of Titles.
One possible option would be to bring an action against the administering agency for
breach of statutory duty, or negligent misrepresentation where inaccurate information
221
222
223
224
Land Title Act 1994 (Qld) s 188.
Land Title Act 1994 (Qld) s 188A(1),(2).
Land Title Act 1994 (Qld) s 189(1)(l).
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources
(Interview, 30 July 2008).
140
is provided. However, this right is less certain than the statutory right to compensation
provided in the case of registered interests.
Entries on external registers are also not subject to the state guarantee of title.
Although the water register is closely modelled on the land title register, it specifically
excludes the provisions of the Land Title Act granting indefeasibility.225
Therefore, there are very few statutory entitlements to compensation where loss is
suffered as a result of inaccurate information.
Furthermore, there are few entitlements to compensation where legislation impacts on
the manner in which land may be used. Where land is taken under the Acquisition of
Land Act, a claimant may apply to the relevant authority for compensation, which is
assessed at the value of the estate or interest on the date it was taken.226 This
restriction clearly affects title though, rather than use.
This potential inequity is highlighted in the Queensland Court of Appeal decision in
Bone v Mothershaw.227 In this case, Mr Bone was sent a notice advising him that the
council had made a vegetation protection order in respect of his property. Despite this,
the vegetation on Mr Bone’s land was destroyed and removed, at some point after the
notice had been provided. Although the Court upheld the validity of the order,
McPherson JA made the following comment:
what is really Mr Bone’s fundamental complaint about the whole process of vegetation
protection that has been imposed on his land...is that, by the council’s action in making
the order, his land has been struck with sterility in relation to the uses he can now
lawfully make of it. Except with council approval, there is practically nothing he can do
with it except grow vegetation and perhaps walk on it…For this severe limitation on his
rights as owner, he has received and will receive no compensation, although he
continues to enjoy the privilege of paying the rates that the council levies on his land.228
225
226
227
228
Water Act 2000 (Qld) s 151(1).
Acquisition of Land Act 1967 (Qld) ss 19-20.
[2003] 2 Qd R 600.
Bone v Mothershaw [2003] 2 Qd R 600, 611.
141
Despite this dissatisfaction expressed by the Court of Appeal, there remains no
recourse available to owners whose land use is affected by legislation, unless the
government decides to grant compensation on an ad hoc basis, such as in the
Collingwood Park example, or as granted under the Nature Conservation Act.
The only alternative basis for claiming compensation is where there has been a
misrepresentation made. Rights to compensation for misrepresentation will be
discussed in Chapter Eight, but it is relevant to note at this point that rights are quite
restricted. Additionally, this right is only available where information provided is
inaccurate. There is no entitlement to compensation merely where rights to use land
are affected.
5.
Conclusion
It is evident from this chapter that the system for management of information
concerning obligations and restrictions on land title and use in Queensland is not
cohesive. The application of the guidelines for comparison developed in Chapter
Three demonstrated that the Queensland system does not ensure security and certainty
for landholders. This is largely because is difficult to obtain information concerning
obligations and restrictions on land title and use, due to the large number of Acts,
regulations, plans and registers which must be consulted. This lack of certainty and
security has, in turn, decreased the effectiveness of environmental legislation in
meeting its objectives. This is clear from cases such as Wall v Doyle,229 where a lack
of information resulted in unauthorised land clearing, which in turn destroyed the
environmental values which the legislation aimed to protect. This case study has
demonstrated that a fragmented approach to management of information concerning
obligations and restrictions on land title and use is not effective in facilitating
sustainable development.
The remaining two case studies will provide examples of systems that have taken a
more integrated approach to management of information concerning obligations and
restrictions on land title and use.
229
[2008] QPEC 23.
142
Chapter Five
Western Australia Case Study
1.
Introduction
Western Australia has been chosen as a case study because of its innovative approach
to the management of information concerning obligations and restrictions on land title
and use. The Western Australian government uses two separate but complementary
systems for this purpose. First, there is a land title register, which serves its traditional
function of registering details concerning ownership and restrictions on title. In
addition, there is a new platform called the ‘Shared Land Information Platform’
(“SLIP”), through which users can easily obtain information from government
departments concerning obligations and restrictions on land use, through a search
called ‘Interest Enquiry’. These systems are not interconnected, but searches of both
are becoming commonplace in conveyancing.1 Although SLIP is still in development,
the intention of the government is to gradually expand the information available
through SLIP, so that it will eventually be comprehensive, and cover all obligations
and restrictions on use.
This chapter will discuss and critically analyse the Western Australian approach, and
assess it according to the guidelines for comparison developed in Chapter Three.
1.1.
Structure of chapter
This chapter will commence by discussing the historical background to the Western
Australian system. It will outline how the system has evolved, and examine
mechanisms previously used for recording information on land use. It will also
discuss an important Standing Committee Report which was a major impetus for law
reform in Western Australia.
This chapter will then discuss the present system, and how the land title register and
SLIP each operate.
1
Interview with Natasha Bowler, Senior Project Officer, Landgate (Perth, 7 May 2009).
143
This chapter will conclude by analysing the effectiveness of the Western Australian
approach, having regard to the guidelines for comparison being used in this thesis.
1.2.
Methodology
To complete this case study, a review of legislation and literature concerning land
titles registration and SLIP was undertaken. Once this was complete, a number of
semi-structured face-to-face interviews were conducted with representatives of
Landgate, the statutory authority responsible for administering land, as well as the
Registrar of Titles.
The information in this chapter was compiled in a different manner to the information
in the Queensland case study chapter. In the Queensland case study a very detailed
review of legislative obligations and restrictions on title and use was undertaken. This
was necessary to demonstrate the different regimes being used for provision of
information concerning obligations and restrictions on use, as the Queensland
approach is fragmented in nature. Also, the information systems used in Queensland
all emanate from statute. In contrast, Western Australia utilises SLIP as a mechanism
which will eventually provide information on all obligations and restrictions on use.
The recording of information on SLIP is not a legislative requirement, but rather a
product of government policy. As a result, the substantive details of legislative
obligations and restrictions in Western Australia were not considered in any depth.
The focus in this chapter is instead upon the approach being used for notification of
the obligations and restrictions, rather than the content of the legislation creating
them.
Regardless, both chapters outline the jurisdiction’s approach to management of
information concerning obligations and restrictions on land title and use, thus the
prerequisite of comparability is satisfied.
2.
History of land title and use registration in Western Australia
Western Australia is being examined as a case study because it has developed a novel
approach to the management of obligations and restrictions on land title and use. This
144
approach has only become operational in recent years, and so it is useful to consider
the reform process undertaken, as this may inform the recommendations of this thesis.
2.1.
Land titles registration
Title to privately-owned land in Western Australia is registered under the provisions
of the Transfer of Land Act 1893 (WA) (“TLA”), which requires the Registrar to
maintain a register of titles.2 The TLA incorporates the principle of indefeasibility,
and states that until an instrument is registered, it shall not be effectual to pass any
estate or interest in any land under the operation of the TLA.3
The land title register was initially designed to serve the traditional function of
recording details of ownership, as well as allowing for registration of a limited range
of interests over title.
2.2.
Legislative reform
Although the land title register was initially designed to serve a narrow purpose, the
TLA has been amended several times over the past two decades to allow it to operate
in a broader capacity. The two most significant amendments will be discussed in turn.
These are an amendment in 1996 to allow for restrictions on use and enjoyment to be
recorded on title, and an amendment in 2003 to allow titles to be digitised, and for
additional information to be recorded on title.
2.2.1. Restrictions on use and enjoyment
In 1996 a new provision was added to the TLA, to allow factors affecting use and
enjoyment of land to be recorded on title. Section 70A of the Act states that when the
local government considers it desirable that proprietors or prospective proprietors of
the land be made aware of a factor affecting the use or enjoyment of the land or part
of the land, the local government may cause a notification of the factor to be prepared
in an approved form and lodged with the Registrar.4
2
3
4
Transfer of Land Act 1893 (WA) s 48(1).
Transfer of Land Act 1893 (WA) s 58.
Transfer of Land Act 1893 (WA) s 70A(1).
145
A further subsection qualifies this by stating that the Registrar may only endorse the
notification where it is accompanied by written consent of the proprietor of the land.5
The objective of this amendment is outlined in the parliamentary debates. Prior to the
introduction of s 70A, government agencies had in many cases asked the Department
of Land Administration if they could record information concerning use and
enjoyment of land on title. This was to reduce the instances where purchasers of land
were unaware of restrictions unless they did ‘a lot of detailed homework’.6
It was asserted that s 70A ‘provides an effective means of alerting purchasers to any
limitations on the land being purchased’.7 It was also intended to benefit governments
seeking to record information on title, and to provide prospective purchasers with a
wider range of information concerning land.8 The following examples were provided
of when these notifications could be used:
 Building envelopes contained in development;
 A compulsory requirement to connect to a sewer;
 A notification that building work has been approved;
 A requirement to leave a minimum area of land to construct a septic system;
 The imposition of zoning controls;
 Warnings as to unexploded ordinances;
 Contaminated land warnings; and
 Landfill warnings.9
Another stated advantage was to ‘reduce or eliminate the incidence of other
legislation undermining the indefeasibility principle of the Act without amending the
Transfer of Land Act’.10 Thus the government recognised that restrictions on land use
posed a threat to the principles underpinning the Torrens system of title, and s 70A
was an attempt to alleviate this threat.
5
6
7
8
9
10
Transfer of Land Act 1893 (WA) s 70A(2).
Western Australia, Parliamentary Debates, Legislative Council, 22 May 1996, 2224 (Mark
Nevill).
Western Australia, Parliamentary Debates, Legislative Assembly, 29 August 1996, 4862
(Graham Kierath, Minister for Lands).
Ibid.
Ibid.
Ibid.
146
There are two cases which provide examples of how these notifications may operate.
In Baker v Town of Vincent,11 the court ordered that a notification be placed on title
stating that vehicular access to the rear of a property was prohibited. This was
‘designed to ensure that future owners are aware that the use of the structure for a
motor vehicle and adjacent wall are non-compliant, and the potential impact it may
have on the safety of passing pedestrians’.12
Another example is Huachong Development Pty Ltd v Western Australian Planning
Commission. In this case a developer was required to lodge notifications that a
development close to Perth airport may be affected by aircraft noise.13
This amendment to the TLA was made prior to the development of SLIP, and indeed
before the technology needed for a system like SLIP was possible. As a result, the use
of this provision is somewhat limited today, and many obligations and restrictions are
better suited to SLIP, as it prevents the title from becoming ‘cluttered’.14 However,
existing notifications will remain on title. In the case of new obligations and
restrictions, it will be necessary to consider whether land title or SLIP is the more
appropriate place to record the details.
2.2.2. Expansion of certificates of title
The TLA was amended again in 2003 to allow the government to record a broader
range of interests on certificates of title. To enable this, the amendments provided for
a move to a digital title system. The explanatory memorandum to the amending Act
stated that this will allow the then Department of Land Administration (“DOLA”) to
‘use its own considerable datasets in relation to land and link them to the title for the
relevant land. It will also permit DOLA to link to other datasets in State and local
government to enable the title to become the “one stop shop” for all interests and
information about particular parcels of land’.15 This essentially extends the purpose of
11
12
13
14
15
[2008] WASAT 4.
Baker v Town of Vincent [2008] WASAT 4 at [15].
Huachong Development Pty Ltd v Western Australian Planning Commission [2008] WASAT
188 at [28].
Interview with Bruce Roberts, Registrar of Titles, Western Australia (Perth, 7 May 2009).
Explanatory Memorandum, Transfer of Land Amendment Bill 2001 (WA) 1.
147
the certificate of title to allow it to contain information on land use. The certificate of
title will contain this information, or at the very least state where it can be found.16
To ensure that this additional information is exempt from the State guarantee, the
certificate of title is broken into two parts. The rationale for this is best described in
the explanatory memorandum:
the first part of the title will be the traditional land tenure, interests and encumbrances
recorded on the title such as the ownership of the land, mortgages, charges, leases,
memorials, easements, restrictive covenants, caveats, warrants and notifications of
factors affecting the use and enjoyment of land. All of the tenure and interests will be
subject to the usual State guarantee under the indefeasibility of title provisions of the
TLA.
The second part of the title will contain information about the land, which will not be
subject to the State guarantee, but will be a very useful addition to the title and give a
greater degree of relevant information about the land…There are endless possibilities
in relation to the amount and nature of information about the land that can be included
on the digital title. It can even permit the linking of information contained in other
datasets held by DOLA, other State agencies and Local Government.17
This amendment provides for a very similar system to the administrative advices used
in Queensland, where registered interests subject to the guarantee are registered
‘above the line’, whereas notifications not attracting the benefits of registration are
recorded ‘below the line’. This distinction is perhaps clearer on the Western
Australian title search than it is on the Queensland title search. A Western Australian
title search is annexed to this thesis as Appendix F, and it quite clearly shows a line
accompanied by a statement ‘end of title search’. Additional information appears
below this line. This is preferable to the Queensland method, as it makes it clear to
searchers that the information below the line is not part of title.
Under the TLA, the Registrar has an obligation to endorse on a certificate of title the
particulars of all dealings and matters affecting the land where they are required by
16
17
Ibid 3.
Ibid 4.
148
the Act to be registered.18 Under the 2003 amendments, additional information may
be endorsed on the certificate with approval of the register. This information may be:
 Information about the land which is not information about title, or information
required to be endorsed; or
 A graphic demonstrating the extent of the land, or an easement or covenant
that affects it.19
This amendment allowed for the register to be expanded to include information not
traditionally capable of inclusion. The Western Australian Registrar of Titles also
describes this provision as a typical ‘above the line’ and ‘below the line’ provision,
allowing additional information to be recorded, without impacting upon title.20
According the Registrar, the most common use of this provision is to record the street
address of a property on title, as well as a reference to the sketch of land.21 This
section could potentially be used for a broader range of purposes, but similarly to s
70A notifications, the introduction of SLIP has largely eclipsed the need for
information to be recorded on title in this manner.
There has thus far been little litigation concerning this provision. In McGiveron v
Stanton-Bovis the court had to consider whether a public access way operated. There
was no formal registration of transfer of the access way, but there was a handwritten
note concerning it that would have been found upon a search of the register.22 The
judge agreed that this should have constituted notice to the purchaser, but noted that
law in this area is not settled, and some of the facts in the case were in dispute.
Therefore the matter could not be concluded at the interlocutory stage.23
The example title search annexed to this thesis as Appendix F shows how this
provision has been used to include street address details on a title search.
18
19
20
21
22
23
Transfer of Land Act 1893 (WA) s 48A(2).
Transfer of Land Act 1893 (WA) s 48A(1A).
Interview with Bruce Roberts, Registrar of Titles, Western Australia (Perth, 7 May 2009).
Ibid.
McGiveron v Stanton-Bovis [2007] WASC 240 at [5].
Ibid [19]-[20].
149
2.3.
Calls for further reform of the Western Australian system
Despite these amendments to the TLA in 1996 and 2003, it became evident that
obligations and restrictions on land title and use were still posing problems to
landholders and prospective purchasers. Additionally, advances in technology meant
that more sophisticated computer databases could be used to provide land
information.
To determine how obligations and restrictions could be most effectively managed, the
government commissioned an inquiry to consider options for reform. This section will
discuss the recommendations of this inquiry, as well as the government’s response.
2.3.1. Standing Committee Inquiry - 2004
In 1999 the Western Australian government directed the Parliamentary Committee on
Constitutional Affairs to conduct an inquiry entitled ‘the erosion of private property
rights without compensation due to Acts, regulations and policies’. In 2001 after a
change of government, this Committee was abolished, and the new Standing
Committee on Public Administration and Finance took over this inquiry as part of a
larger review.
The Standing Committee published its findings in 2004, in a report titled ‘Report on
the impact of State government actions and processes on the use and enjoyment of
freehold and leasehold land in Western Australia’.24 From the outset, the Committee
noted that there are a myriad of ways in which the government can and do impact
upon the use and enjoyment of land.25
In the report, the Committee paid particular attention to submissions made by the now
defunct Department of Land Administration (“DOLA”). In its 2001 submission,
DOLA made the following observation, which is worthy of full repetition:
in Western Australia there is no one agency that oversees land administration and in
most cases a single activity is managed by a number of differing government agencies.
From a stakeholder and customer perspective, the continued introduction of new land
24
25
Standing Committee on Public Administration and Finance, Western Australia Legislative
Council, Report on the impact of State Government actions and processes on the use and
enjoyment of freehold and leasehold land in Western Australia (2004).
Ibid 35.
150
related legislation is increasing the complexity of land administration in this State, and
this has a significant impact upon the recording of all rights, restrictions and
responsibilities on the land titles (Torrens) register.
It is a fundamental part of this submission that the efficiency and integrity of the land
registration system (through the Torrens system) is being eroded because many of the
limitations and prohibitions affecting land and interests in land are not collected and are
not centrally available for access by everyone.26
DOLA also noted that search costs had increased substantially because purchasers had
to search for interests operating outside of the Torrens register.27 DOLA
recommended that a central portal be established, where customers could find all
information on obligations and restrictions affecting land. However, they
recommended that the Torrens register remain in its current state, with all other
obligations and restrictions collated elsewhere.28 This is because it would be
administratively difficult and cost prohibitive for everything to be noted on the
certificate of title.29
The report took account of DOLA’s submissions, and made two recommendations in
this area:
 In the short term, the Department of Land Administration should continue to
implement its aim of establishing itself as a “one stop shop” database of all
interests affecting land as an urgent priority; and
 In the long term, the Department of Land Administration should introduce, as
soon as practical, an electronic three dimensional certificate of title which
records all interests affecting the land described on the certificate of title.30
These recommendations differed from DOLA’s submissions, as they suggested
expanding the scope of the land title register for recording obligations and restrictions,
rather than establishing a separate database.
26
27
28
29
30
Ibid 524-525.
Ibid 526.
Ibid 524-525.
Ibid 526.
Ibid 530
151
2.3.2. Government response to the Standing Committee Inquiry
The State government issued a response to the Standing Committee Inquiry in 2004.
The government supported the first recommendation, that DOLA establish themselves
as a “one-stop shop” for information in land, commenting that ‘the system will enable
interested parties to source a wide range of government land information including
key details about rights, restrictions and obligations associated with a land parcel or
certificate of title’.31
The government did not support the second recommendation, which was that the
certificate of title should be expanded to record details of all interests affecting land.
This is in accordance with the submissions made by DOLA. The government
expressed the following rationale for this decision:
a certificate of title has the benefit of a State guarantee as to its accuracy. With the
recording of all “possible” interests affecting land on the certificate of title, it would not
be feasible to extend this guarantee to all items and this may have the effect of eroding
the integrity and indefeasibility of the certificate of title.
The significant costs of such a proposal ultimately would need to be passed on and may
have the effect that obtaining a copy of an absolute certificate of title would be cost
prohibitive.32
In summary, the government supported the introduction of an integrated system, but
did not support the expansion of the Torrens register for this purpose. As a result, it
was necessary for a system to be established whereby obligations and restrictions on
use are managed holistically, but externally to the land title register.
2.3.3. Conclusion
This Standing Committee inquiry was the main impetus for the development of
SLIP.33 The following section will discuss the present system used in Western
Australia, which consists of the land title register, and the Shared Land Information
31
32
33
Western Australian Government, Response to the Report on the impact of State Government
actions and processes on the use and enjoyment of freehold and leasehold land in Western
Australia (2004) pp 29-30.
Ibid 29-30.
Interview with Bruce Roberts, Registrar of Titles, Western Australia (Perth, 7 May 2009).
152
Platform. Following the recommendations of DOLA and the State government’s
response, these systems remain separate, but together aim to provide a comprehensive
account of obligations and restrictions affecting title.
3.
Review of the present system
A combination of legislative reform as well as the Standing Committee
recommendations led to major reform of the Western Australian system. Currently
information concerning title is contained in the land title register, whilst the objective
of SLIP is to provide information on obligations and restrictions concerning use.
This section will discuss the roles of the land title register, and SLIP, noting how they
complement one another.
3.1.
The Land Title Register
3.1.1. Instruments capable of registration
The Western Australian land title register has retained its traditional function of only
registering interests affecting title. Traditional interests capable of registration include
mortgages34 and leases.35 Restrictive covenants are also capable of registration, but
the legislation states that they ‘may be created and made binding…so far as the law
permits’.36 As a result, registration does not confer validity; this is still determined in
accordance with general principles of law.
The TLA does not deal with registration of easements, but does empower the courts to
extinguish, discharge or modify easements which have been created.37
In Western Australia the scope of the land title register has been extended to allow for
the registration of carbon rights, carbon covenants and tree plantation agreements. As
discussed in Chapter Two, these instruments allow a person to gain a legal interest in
the carbon sequestered in trees on another person’s property. These interests are
created by the Carbon Rights Act 2003 (WA), which provides for the registration on
34
35
36
37
Transfer of Land Act 1893 (WA) s 105.
Transfer of Land Act 1893 (WA) s 91.
Transfer of Land Act 1893 (WA) s 129A
Transfer of Land Act 1893 (WA) s 129C(1).
153
title to land of a ‘carbon right’, and an accompanying ‘carbon covenant’.38 The
legislation was designed to encourage trading in carbon rights by reducing the legal
risks associated with such transactions, by enabling a carbon right to be registered
over title to land as a separate interest.39
To register a carbon right and covenant, it is first necessary to lodge a form for the
creation of a carbon right with the Registrar.40 This form must be signed by the
registered proprietor of the land in respect of which the carbon right is to be created.41
The carbon right may be accompanied by a carbon covenant,42 which may contain the
terms of the carbon right.43 Essentially the carbon covenant will contain details of
‘how much carbon is to be sequestered, over what time frame, in what form, how it is
to be measured, and so on’.44 Once the form has been registered, the carbon right
becomes a separate interest in land.45
Despite this amendment to the TLA, as well as the amendments above to allow for
restrictions on use to be notified, the land title register has largely retained its
traditional role as a repository of information concerning restrictions on title only.
Furthermore, in 2004 it was estimated that there were more than 180 interests that
could affect use and enjoyment of land, but only a small number of these were visible
on the certificate of title.46
3.1.2. Instruments capable of being recorded on title
Amendments made to the TLA in 1996 and 2003 have allowed for additional
information to be recorded on title. These amendments will not be discussed again in
38
39
40
41
42
43
44
45
46
Western Australia, Parliamentary Debates, Legislative Assembly, 22 May 2002, 10960,
(Francis Logan).
Ibid 10960-10961.
Carbon Rights Act 2003 (WA) s 5(1).
Transfer of Land Act 1893 (WA) s 104B(1)(a).
Carbon Rights Act 2003 (WA) s 10(1).
Carbon Rights Act 2003 (WA) s 11.
Western Australia, Parliamentary Debates, Legislative Assembly, 22 May 2002, 10961,
(Francis Logan).
Carbon Rights Act 2003 (WA) s 6(1).
Government of Western Australia, Shared Land Information Platform Implementation Plan:
Final
(2004)
Landgate
p
23
<
http://www.landgate.wa.gov.au/docvault.nsf/web/SLIP_ImpPlanFinRepVol1_271004/$FILE/SL
IP_ImpPlanFinRepVol1_271004.pdf> at 6 February 2009.
154
any detail, but it is relevant to note again that such notifications do not receive the
benefits of indefeasibility, and are recorded on title purely for informational purposes.
3.1.3. Administration of the Land Title Register
The administration of the land title register in Western Australia is interesting to
consider, as it differs considerably to the position in Queensland.
Prior to 2006, the land title register was administered by the Department of Land
Administration. In 2006 legislation was passed to create a statutory authority
responsible for land administration, and this change became effective on 1 January
2007.47
In 2006, the Western Australian Land Information Authority was established under
legislation.48 This Authority is more commonly known as ‘Landgate’. The
explanatory notes to the Bill noted that ‘information about land and its ownership, use
and management is vital for Western Australia's economic, social and environmental
development. The agency to be created by this Bill will be the first of its kind in
Australia and will help maintain the State's competitive edge in the national and
global economy’.49
The purpose of the legislation was to establish a land information statutory authority
with commercial powers.50 Its objectives are twofold:
 To act as a body through which the State performs certain functions related to
land information on a basis that does not involve making a profit; and
 To generate for the State a fair commercial return from providing goods and
services on a basis that may involve making a profit.51
47
48
49
50
51
Western Australian Land Information Authority, About Us (2007) Landgate
http://www.landgate.wa.gov.au/corporate.nsf/web/About+Us> at 16 March 2009.
Land Information Authority Act 2006 (WA) s 5(1).
Explanatory Memorandum, Land Information Authority Bill 2006 (WA) 1.
Ibid.
Land Information Authority Act 2006 (WA) s 8.
<
155
Thus the Authority is responsible for carrying out government business, as well as
creating a profit. The explanatory notes to the Bill further elaborated upon the
authority’s role, and noted that it will:
 deliver core government services in land titling, land information and
valuation that are currently provided by the Department of Land Information;
 provide new systems and online services to open up access to extensive
government databases about land; and
 lead the commercial development of the State's land information, which has
acquired market value in recent years as a result of significant changes in
technology, use and demand.52
The explanatory notes also asserted that improved access to land information will
provide a number of benefits for government, business and the community, including
in planning, and land and property development.53
The Land Information Authority Act elaborates further upon the functions of the
Authority in a section titled ‘functions’. This section states that the Authority’s main
responsibilities include administering and providing access to information in land
information systems as the laws of the State require.54 The following subsections then
broaden this, allowing the Authority to provide information other than that required
by legislation.55 This gives the Authority a very wide power to provide information on
obligations and restrictions. This contrasts to the position in Queensland, whereby the
Registrar of Titles only records information provided by government departments
pursuant to legislation.
Furthermore, as a statutory authority, the Authority has far broader powers than a
government department may have. The Authority may exercise the following powers
for the purpose of exercising its functions under the Act:
 acquire, develop, dispose of, and otherwise deal with, property;
52
53
54
55
Explanatory Memorandum, Land Information Authority Bill 2006 (WA) 1.
Ibid.
Land Information Authority Act 2006 (WA) s 9(1).
Land Information Authority Act 2006 (WA) s 9(2)-(4).
156
 enter into any contract or arrangement, including a contract or arrangement
with any person for the performance of the function by that person on behalf
of the Authority;
 act as an agent or provide consultancy, professional, or technical services or
other assistance under a contract for services or other arrangement;
 participate, with the Minister’s approval, in any business concern and, with the
Treasurer’s approval, acquire, hold, and dispose of, shares, units, or other
interests in, or relating to, a business concern;
 carry out any investigation, survey, exploration, feasibility study, evaluation,
or review;
 collaborate in, carry out, or procure the carrying out of, research and publish
information that results from the research;
 produce and deal in any equipment, facilities, or system associated with the
performance of the function;
 use information that it derives from the performance of any function that this
or any other Act gives the Authority or a member of its staff;
 develop and turn to account any technology, software, or intellectual property
that relates to the function and, for that purpose, apply for, hold, exploit, and
dispose of any patent, patent rights, copyright, or similar rights; and
 promote the Authority and promote and market its goods and services.56
Because the Authority is a statutory authority rather than a government department, it
is able to exercise a far broader range of functions. This in turn expands the
Authority’s ability to manage obligations and restrictions falling outside of the
traditional range of interests registered on the land title register.
3.1.4. Future role of the Land Title Register
The amendments made to the TLA in 1996 and 2003 allow the land title register to be
used for a potentially broader range of purposes. However, the Registrar of Titles has
expressed the view that information concerning obligations and restrictions on land
use is better suited to SLIP, as the technology is better equipped to demonstrate
56
Land Information Authority Act 2006 (WA) s 12(2).
157
obligations and restrictions which affect multiple blocks of land, and it also prevents
the register from becoming ‘cluttered’.57
The Registrar does recognise that some additional information should be recorded on
the land title register, but has requested greater clarity in the terminology to be used.
The Registrar wrote a policy regarding consistency of language, which he has asked
the Parliamentary Counsel to adopt in drafting.58 He remarked that legislation uses the
term ‘memorial’ in three distinct senses:
1. A memorial which charges the land with payment of money;
2. Memorials which merely notify of the existence of a particular factor affecting
the use and enjoyment of land; and
3. Memorials which attempt to achieve both.
The Registrar submitted that ‘it is inappropriate to call something a memorial when it
is only advising an owner of something which is affecting the use and enjoyment of
land. The term “memorial”, in my opinion, is better used in circumstances where it is
charging the land with payment of money’. He added that ‘the term “notification”
[should] be used where it is intended that a person is notified of something which
affects the use and enjoyment of land’. 59
He states that these two distinct terms should be used as each instrument has a
different effect on title. The key legal difference is that ‘a notification is not a
registered encumbrance over the land whereas a memorial is. A memorial can prevent
a land transaction from occurring whereas a notification should not be permitted to do
so’.60
As a result, the land title register will continue to operate largely as a depository for
information concerning title, but also for some information concerning use. The
Registrar hopes that greater consistency in language will be used for future legislation
utilising the land title register.
57
58
59
60
Interview with Bruce Roberts, Registrar of Titles, Western Australia (Perth, 7 May 2009).
Letter from Bruce Roberts, Registrar of Titles, Western Australia, to Greg Calcutt,
Parliamentary Counsel, 19 April 2006.
Ibid.
Ibid.
158
3.1.5. Conclusion
The role of the land title register in Western Australia is very similar to the role of the
land title register in Queensland. Only a limited range of interests are capable of
registration, but further legislative provisions have allowed for additional information
to be registered or recorded.
The significant difference is that the Western Australian government have moved
away from recording information on title, instead recording it on SLIP. In contrast,
the use of administrative advices in Queensland appears to be growing. The following
section will discuss SLIP in detail.
3.2.
The Shared Land Information Platform
The Shared Land Information Platform (“SLIP”) is a distinct platform which operates
separately to the land title register. This section will discuss the impetus for
development of SLIP, and what objectives it aims to achieve. It will also discuss the
operation of SLIP, and in particular the Interest Enquiry function, which is essentially
a search function which utilises the SLIP technology.
3.2.1. Impetus for the Shared Land Information Platform
Development of the Shared Land Information Platform (“SLIP”) began shortly after
the 2001 state election. The government commissioned the Functional Review
Taskforce to identify costs and efficiencies associated with the project, which was
completed in 2002.61 Following on from this, AOT Consulting (commissioned by the
Department of Treasury and Finance) conducted a review, and provided a report in
2003. AOT identified that the mechanisms used by agencies at the time for sharing of
information were ‘cumbersome, resource intensive, and the data is prone to becoming
out-of-date’.62 Further, AOT concluded that:
 SLIP would offer significant strategic benefits to government and the broader
community;
 It is technically feasible; and
61
62
Government of Western Australia, above n 46, 2.
Ibid.
159
 It could realise financial benefits.63
This confirmed that SLIP would be beneficial, and that such a system was possible.
Following these reviews, the government began development of the SLIP.
3.2.2. The objectives and benefits of the Shared Land Information Platform
The aim of SLIP was to ‘streamline the government’s land and property information
by providing the infrastructure and services necessary to link individual agencies
together so customers can better access the range of information available’.64
The objectives of the SLIP were stated as follows:
 To simplify access to the government’s land information;
 To improve the efficiency of the government’s business processes; and
 To implement government strategy involving drawing agencies closer
together.65
The intended benefits of SLIP for the general public were:
 Better sharing and integration of land information;
 Improved quality of decision-making and times;
 Improved management of community-supplied information;
 Reduced errors and subsequent rework at an agency level; and
 Value-adding to an agency’s data by combining it with other like datasets in
order to provide context.66
Thus the goal of SLIP is to eventually make all obligations and restrictions on land
use available through a single search.
63
64
65
66
G Searle and D Britton, ‘The Western Australian Shared Land Information Platform and
Modern Land Administration Systems’ (Paper presented at the Expert Group Meeting,
Sustainability and Land Administration Systems, Melbourne, 9-11 November 2005) 120-121.
Kylie Armstrong, ‘Shared Land Information Platform – a Cost Effective Spatial Data
Infrastructure Supporting Sustainable Development’ (Paper presented at the GSDI 10
Conference, Trinidad, 25-29 February 2008) 2.
Government of Western Australia, above n 46, 3.
Ibid 8.
160
3.2.3. Development of the Shared Land Information Platform
SLIP aims to draw all land information together through one single platform. This
was considered important, because obligations and restrictions on land title and use
are managed by 26 different government agencies, and there are as many as 6,100
government employees using this information in their work.67
One important feature of SLIP is that it does not function as a complete register of
information. Rather than assembling all information in one place, SLIP draws upon
data that remains in control of the relevant government department. The aim of SLIP
is to streamline information by ‘providing the infrastructure and services necessary to
link individual agencies together so customers could better access the range of
information available’.68
Although only one search is required, this search draws upon numerous databases to
provide this information. This process is best described by the following passage from
the SLIP Implementation Plan:
the SLIP Enabling Framework takes advantage of current internet-based technologies
and standards so that data can be accessed transparently as a single, integrated land
information system whilst data remains within the control of custodial agencies.
Agencies retain accountability for their data; information security is improved; access
to data is opened up; and there are opportunities to automate many land-related
processes, currently considered labour intensive.69
As a result, the data stays within the control of the custodian, but is drawn together
through a single search.
The SLIP consists of four distinct focus areas:
1. Emergency management;
2. Natural resource management;
3. Interest Enquiry (previously called Register of Interests); and
4. Land development process.70
67
68
69
70
Ibid 4.
Searle and Britton, above n 63,120-121.
Government of Western Australia, above n 46, 4.
Ibid 40.
161
The emergency management focus area is clearly irrelevant for present purposes. The
natural resource management focus area is also not relevant, as it is more targeted at
government agencies and community groups seeking information for the purpose of
decision-making concerning resources. This thesis is focussed instead on availability
of information to landholders. However, this does show that integrated management
systems can provide wider benefits, and may also assist decision-makers. Also, the
land development focus area is not relevant, as it enables development application
details to be easily shared amongst government agencies to expedite the decisionmaking process.
Therefore for the purposes of this thesis, the Interest Enquiry or Register of Interests
focus area is of most relevance.
3.2.4. Development of the Interest Enquiry function (Register of Interests)
The Interest Enquiry function, or Register of Interests as it was initially titled, was
developed because ‘repeatedly individuals and businesses find their dreams and
development plans curtailed due simply to not knowing what interests exist over a
parcel of land’.71 To alleviate this, the Interest Enquiry’s aim was to provide a single
system through which all information on obligations and restrictions on use could be
found. These obligations and restrictions are broadly termed ‘interests’ for the
purposes of the Interest Enquiry, and this term will be used in this context in this
thesis. An ‘interest’ is defined as ‘anything that may affect the use or enjoyment of an
area of land, sea or air. It must have some form of legislation or regulation governing
the interest and have a defined custodian for the provision of that interest
information’.72
Prior to the Interest Enquiry function becoming operational, a landholder or
prospective purchaser needed to contact the relevant government departments or
custodians directly to obtain information. Given that there were 23 different
71
72
Ibid 6.
Government of Western Australia, Shared Land Information Platform ROI Focus Area
Implementation
Plan:
Final
Report
(2004)
Landgate
p
8
<
www.egov.wa.gov.au/documents/SLIP_RoIFocusAreaImpPlanFin_271004. pdf> at 6 February
2009.
162
custodians in control of land data, this was a lengthy and cumbersome process.73 The
intended purpose of Interest Enquiry was to allow landholders and prospective
purchasers, as well as industry representatives and government agencies, to identify
interests with a single search, rather than having to contact multiple agencies.74
One of the main drivers behind the establishment of the Interest Enquiry was the need
to provide certainty to landholders. It was noted that
there is an increasing recognition of the need to manage risk. Local authorities in
particular are facing increasing pressure to ensure that there are no undiscovered
interests prior to planning approvals being issued, with legal action having resulted
where interests have been discovered later. The community have a growing expectation
that information will be accessible within government to support the decisions which
affect them.75
Furthermore, the State government concluded that if the Interest Enquiry was not
implemented, the following problems would arise, or continue:
 land management and improvements in sustainability are likely to be much
more difficult to attain without a holistic view of interests and markets,
management and information;
 a lack of holistic interests information management and administration is
likely to adversely affect the security of rights, their value and tradability; and
 the existing non-holistic approach will very likely continue to be less effective
and efficient.76
This specifically acknowledges that sustainable use of resources is unlikely to occur
without integrated management of land and natural resources. This is further
elaborated upon in the objectives of the Interest Enquiry, which are:
 to ensure that all property rights in the Interest Enquiry are clearly defined,
and are clear, certain, unambiguous, exclusive, legally enforceable, tradeable,
and the area/spatial extent to which each specific property rights applies is
clear, certain and unambiguous;
73
74
75
76
Government of Western Australia, above n 46, 49.
Armstrong, above n 64, 5.
Government of Western Australia, above n 46, 51.
Government of Western Australia, above n 72, 9.
163
 to support markets in property rights;
 to ensure that transactions and trading in property rights can be carried out,
and that dealings are simple, transparent, certain in outcome, easily accessible,
affordable, conducted expeditiously, with no disincentives;
 to provide legally correct information on all property rights that applies to, or
affects any area of land, sea and air, and to ensure that integrated information
on all property rights applying to any land parcel(s) is quickly and easily
obtainable at low cost; and
 to contribute to natural resource and environmental sustainability, by
providing for efficient and effective management of property rights to further
environmental and sustainability objectives.77
Thus the objectives of Interest Enquiry are essentially twofold – it serves an economic
purpose by providing better information to facilitate the trade of property, and it also
serves an environmental purpose by providing better information to facilitate
sustainable management of resources. This essentially mirrors the objectives which
will underpin the recommendations of this thesis.
As with all of the SLIP focus areas, data available through the Interest Enquiry
remains in the control of the custodians. This is reiterated in the Register of Interests
(as it was then called) Implementation Plan, which stated that ‘the Register of
Interests is not a central repository where all interests are stored and managed. Rather,
it is an enabling framework/mechanism providing access to interest information
managed by multiple custodial agencies’.78
The SLIP Implementation Plan describes the operation of the Interest Enquiry as
follows:
1. The customer selects the purpose of the enquiry, and identifies the area or land
parcel of interest, using an online map;
2. The system determines agencies to contact and sends requests automatically;
77
78
Ibid 14.
Government of Western Australia, above n 72, 6.
164
3. Agencies’ responses are sent to the Interest Enquiry system as they are
completed;
4. The system notifies the user of known interests and the status of enquiries in
progress; and
5. The customer can log on to the system to check later responses and their
status.79
The benefit of this approach is that the risk of undiscovered interests is reduced, and
the government can provide significantly improved service.80 This in turn also lowers
transaction costs for landholders and prospective purchasers.81
3.2.5. Operation of the Interest Enquiry service
The Interest Enquiry service (changed from ‘Register of Interests’) is now
operational, and use of this service is becoming standard practice in conveyancing,
along with a title search.82
It is relevant to briefly explain how Interest Enquiry works. A user logs into ‘My
Landgate’, and selects the ‘Interest Enquiry’ function. The user then searches for a
property using its street address. The search function then zooms to this property on a
map.
Once the property has been located, the user then either selects specified interests to
search, or instead searches for all interests. Interest Enquiry then searches all available
government data. This occurs in a variety of ways. Where agencies have their data
represented on their own spatial database, these datasets are accessible via SLIP
Enabler. SLIP enabler uses the coordinates to compare a property selected in Interest
Enquiry against each agency’s spatial dataset. The process is best described by a
representative of Landgate:
we use the coordinates of the property (as defined in Landgate’s cadastral data) to make
a shape for comparison against agencies data. If you can imagine that an interest may
visually cross into the boundary of a property – we essentially are looking for any lines
79
80
81
82
Government of Western Australia, above n 46, 50.
Ibid 52.
Ibid 52.
Interview with Natasha Bowler, Senior Project Officer, Landgate (Perth, 7 May 2009).
165
or points from that agencies dataset that fall within the properties boundary. If we
locate something inside the boundary this results in a ‘yes’ response’. If we do not find
any overlapping data then this results in a ‘no response’.83
The situation is more complex where agencies do not have existing spatial datasets. In
some cases, agencies have created new datasets which are accessible by the SLIP
Enabler.84
Landgate are also looking at other methods to use if agencies do not want to provide
access to the spatial dataset via SLIP Enabler, or if they do not use spatial data. It is
anticipated that Interest Inquiry could be expanded to do the following:

Text Query into databases - Landgate could use an identification number to
locate information in tables of data. Examples would include title number,
address or other common identifier to locate information;

Web services – Landgate could use web services to gain access to ‘reports’
already provided by an agency’s existing website. The SLIP enabler would
essentially access their existing system and the user would be delivered
information in the same format as the agencies system supplies it; and

Agency Notification - Landgate could send through an email (or similar) to an
agency enquiring whether a property has any interests affecting it. It is likely
that this would be suitable for those agencies whose data needs to be
investigated manually and/or in the case of agencies which have limited
technical know-how or support. Landgate would then act as a conduit for
manual enquiries in place of phone calls, enquiry forms etc.85
It is relevant to note that these methods are all potential methods, and are not yet used
in Western Australia. At present there are some restrictions on the type of agency data
that can be found by SLIP.
Once Interest Enquiry has searched all available government data, it provides a
summary of all interests affecting land. The User can then order separate reports for
83
84
85
Email from Natasha Bowler, Senior Project Officer, Landgate, to Justine Bell, 19 October 2009.
Ibid.
Ibid.
166
each identified interest. Screen captures demonstrating this process are annexed this
thesis as Appendix D.
At present, not all information on interests is available through an Interest Enquiry.
Currently Landgate estimate that there are 54 different interests affecting land title
and use.86 The following list outlines the interests that are available either through an
Interest Enquiry, or through contacting the relevant custodian:
 Aboriginal Communities;
 Aboriginal Heritage Sites;
 Acid Sulphate Soil Risk;
 Acquisitions;
 Bush Forever areas;
 Carbon Rights;
 Control of access on state roads;
 Emergency Services Levy;
 Mining titles;
 Native Title and Indigenous land use agreements;
 Petroleum tenures;
 Regional planning schemes;
 Register of heritage places;
 Survey information;
 Threatened species and ecological communities; and
 Tree plantation agreements.87
An Interest Enquiry search will alert the customer where any of these potential
interests affect their land. The customer is then able to order individual reports in
relation to these interests. For example, the search may alert the customer to a
potential risk of acid sulphate soils. A report can then be obtained from the relevant
agency, which is the Department of Environment and Conservation. The report will
advise the owner of the relevant level of acid sulphate soil risk in relation to their
86
87
Interview with Natasha Bowler, Senior Project Officer, Landgate (Perth, 7 May 2009).
Landgate, Interest Dictionary Report (2009).
167
property, and the corresponding impacts upon development.88 An example report is
included in this thesis as Appendix E.
Although a number of interests can be ascertained through an Interest Enquiry, it is
clear that a number can not. Interests not available include:
 Contaminated sites;
 Declared plants;
 National park, conservation park, and nature reserve;
 Native vegetation;
 Register of the national estate (heritage); and
 Salinity.89
To determine whether any of these interests affect a parcel of land, it is still necessary
for the landholder or prospective purchaser to make their own enquiries with the
relevant government department or agency. Regardless, an Interest Enquiry search
will tell the purchaser that these interests are not covered, which at least provides the
purchaser with some guidance in relation to what enquiries must be made.
Additionally, these 54 interests which have been identified are only those that
Landgate are aware of – there may well be other interests which have not yet been
identified. Landgate are reliant upon information provided by other agencies, so there
is a risk that Landgate may not be made aware of interests.90 As a result, whilst this
list of interests purports to be complete, there may well be other restrictions which are
not yet identified.
Although Interest Enquiry presently covers only a relatively small number of interests
on land use, it is the intention of Landgate to eventually extend the scope of Interest
Enquiry to include all interests affecting land. This is dependant upon the cooperation of all government departments in the future. It does appear that government
88
89
90
Landgate, Sample Acid Sulphate Soil Risk Interest Report (2009).
Landgate, Interest Dictionary Report (2009).
Interview with Natasha Bowler, Senior Project Officer, Landgate (Perth, 7 May 2009).
168
support for the project does exist, and expansion of SLIP will most likely occur in the
future.91
Furthermore, Interest Enquiry searches operate externally to the land title register.
There is consequently a need to search the land title register as well as performing an
Interest Enquiry search.
4.
How effective is the Western Australian approach as a whole?
This section will assess the Western Australian approach as a whole according to the
guidelines for comparison developed in Chapter Three. It is relevant to note at this
point that SLIP is still very much in its infancy, so it is difficult to accurately assess
whether or not it has achieved its aims. As a result, this assessment will be completed
on the basis of the information available at this point in time.
This section will make some comments regarding the differences between Queensland
and Western Australia, but most of the comparative analysis will occur in Chapter
Seven.
4.1.
Does the jurisdiction provide for integrated management of information
concerning obligations and restrictions on land title and use?
Western Australia has made significant progress in terms of providing security to
landholders and prospective purchasers through the integration of information
concerning obligations and restrictions on land title and use.
The land title register in Western Australia has largely retained its traditional role of
registering only a limited range of interests which affect title. A sample Western
Australian title search is annexed to this thesis as Appendix F. The Interest Enquiry
function through SLIP does however endeavour to draw all other interests together
into a single interface. The intention of the government is to eventually make all
interests on title and use visible through two searches (ie. Land title register search
and Interest Enquiry search).
91
Ibid.
169
Although requiring landholders and prospective purchasers to undertake two searches
does detract from the Torrens’ mirror principle, arguably it is preferable to the
situation in Queensland, where numerous searches and enquiries are necessary.
Additionally, as discussed above, it may be the case that the land title register is not
the appropriate place to record information on land use. Thus having two sources of
information may allow the government to provide more accurate and complete data
than if they attempted to solely use the land title register for this purpose.
Despite the positive features associated with SLIP, there are two potential problems
with the Western Australian approach:

Although an Interest Enquiry search will eventually provide information on all
interests affecting land, it will not be collated in one place; and

At present not all interests on land title and use are available through an
Interest Enquiry.
With regard to the first problem, it was noted earlier that all information on interests
remains with the relevant government agency. An Interest Enquiry search effectively
searches all of these agencies’ data simultaneously. Therefore, it is not a central
repository of all information concerning land.
The rationale for keeping the data with the custodians was explained by a SLIP
representative in an interview:
[SLIP] delivers the most up-to-date data available from participating organisations
because when users connect to SLIP, they connect directly into the source data hosted
and maintained by the custodian agency. “If you centralise data, taking it away from
the owners, it just doesn’t work,” says Landgate’s Robin Piesse, Manager Market
Development. The data must reside with the owners because they are the people who
know their data the best. SLIP ensures that the data stays with the owner so that the end
user gets the right data from the right people at the right time,” she said’.92
Thus the objective of keeping the data with the relevant agency is in fact to increase
security, as the custodians are seen as better equipped to handle their own data.
92
Geoconnexion, ‘A new information era: the Australian Shared Land Information Platform
(SLIP) development’ (2008/2009) 8(1) Geoconnexion International Magazine 46, 46.
170
Provided that the technology allows for all obligations and restrictions to be
ascertained through this single search, it probably is immaterial that the data remains
in control of the relevant custodians. Indeed leaving the data in the control of the
custodian may allow for the provision of more accurate and up-to-date information.
The second problem mentioned above is more likely to create issues in Western
Australia. As discussed above at 3.2.5, not all indentified interests are presently
available through an Interest Enquiry search. However, the intention of Landgate is to
eventually have information on all interests available. A significant barrier to this is
that some agencies are protective of their data, and are reluctant for it to be available
through Interest Enquiry, although this attitude is beginning to change as the SLIP
project gains increasing government, business and community support.93 If this barrier
can be overcome, and information on all interests is made available through an
Interest Enquiry search, the system will obviously provide a greater level of security
to landholders and prospective purchasers. This could perhaps be achieved through
legislative reform, and the enactment of a provision obliging government departments
to make data available.
Once all data is available through SLIP, the system in Western Australia will provide
a good example of integrated management of information concerning obligations and
restrictions on land title and use. This is because a prospective purchaser will be able
to search the land title register and undertake an Interest Enquiry search prior to
purchasing property, and through these two searches, get a clear picture of all
obligations and restrictions on title and use affecting the land.
However the current lack of information may prove problematic, and the potential
liability of Landgate and other agencies will be discussed further below at 4.4.
Furthermore, as Interest Enquiry does not yet cover all interests, independent
enquiries are necessary to ascertain whether there are any other relevant interests
impacting on title or use. Additionally, as these interests are often created by
legislation, without any requirement for consent of the landholder, new interests may
93
Interview with Natasha Bowler, Senior Project Officer, Landgate (Perth, 7 May 2009).
171
arise subsequent to purchase. Therefore at this point in time a landholder or
prospective purchaser can be affected by interests that are not notified either on title
or through an Interest Enquiry search. The present approach used in Western
Australia does not yet provide a high degree of certainty to landholders and
prospective purchasers, and information has not yet been completely integrated.
Despite these issues, the Western Australian approach is certainly more advanced than
the Queensland approach, and represents a coordinated approach to reform, even
though the process is not yet finished.
4.2.
Is the land title register utilised for the purpose of recording obligations
and restrictions on use?
As noted above, there have been some attempts over the past few decades to extend
the scope of the land title register. This has been achieved through legislative reform
to allow for notification of information, without attracting the state guarantee.
There has also been development in terms of interests capable of registration with the
creation of registrable carbon rights and covenants. The rationale for using the land
title register for this purpose was to provide these rights with security to encourage
trade.
Arguably this rationale could be applied to a broader range of interests, as placing
obligations and restrictions on use on the register would provide landholders and
prospective purchasers with greater security. However it appears that the preferred
approach of the Western Australian government is for information on land use to be
made available through SLIP rather than on the land title register. As mentioned
above, government representatives have formed the view that SLIP is a more
appropriate forum to record information on use, as it prevents the register from
becoming ‘cluttered’.94 Although providing this information through the SLIP
platform rather than on a land title search does derogate from the mirror principle,
arguably there are sound reasons for this. Certainly SLIP appears to be a more
appropriate forum for restrictions which affect multiple parcels of land.
94
Interview with Bruce Roberts, Registrar of Titles, Western Australia (Perth, 7 May 2009).
172
As there are advantages to using SLIP to record this type of information, perhaps
better integration between the systems could solve the problems posed by using two
different systems. At present there is no interaction between the land title register and
SLIP, although this could perhaps be achieved relatively easily. If land title searches
were amended to include a note directing searchers to conduct an Interest Enquiry,
this would solve the information deficiency in a simple way.
4.3.
How easily can landholders or prospective purchasers ascertain what
obligations and restrictions on title and use apply in relation to a parcel of
land?
Theoretically it will be easy to obtain information on obligations and restrictions on
title and use, through performing a search of the land title register and an Interest
Enquiry. At present though, it is necessary to make independent enquiries with
government departments to accurately ascertain all obligations and restrictions
affecting land.
Therefore, there is currently a need for a landholder or prospective purchaser to make
enquiries in addition to the two searches, which could be quite onerous. However if
the range of information available through an Interest Enquiry search is expanded in
accordance with the government’s intention, the result will be a system that does
allow for easy access to information concerning obligations and restrictions on title
and use.
To alleviate this problem of incomplete information available through Interest
Enquiry, a search will also provide a list of what information is not covered.95 This
does make it easier for a landholder or prospective purchaser to ascertain what
interests could potentially affect their land. However, as Interest Enquiry gives no
information on whether these interests affect a given parcel of land, it is necessary to
make numerous enquiries with different agencies to gain a complete picture of
obligations and restrictions affecting land. The list merely gives the landholder or
prospective purchaser some parameters for these further enquiries. Furthermore,
Landgate have specifically acknowledged that there could be additional interests
95
Interview with Natasha Bowler, Senior Project Officer, Landgate (Perth, 7 May 2009).
173
which they have not been made aware of, therefore the existence of these will not be
shown through an Interest Enquiry search.
In standard conveyancing practice, a search of the land title register and an Interest
Enquiry would be performed. Any member of the public may perform a search of the
land title register. To access Interest Enquiry, it is necessary to obtain a ‘My
Landgate’ ID. Any member of the public can do this. Most of the data in Interest
Enquiry is available to everyone, although the technology allows for certain datasets
to be made private, and only available to restricted users.96
There is no cost for using the Interest Enquiry function, although there may be a
charge imposed for accessing certain data. Whilst Interest Enquiry will alert a user to
the existence of an obligation or restriction affecting land, to learn the details of this
interest, it is necessary to purchase a report. At present these reports only attract a
$5.50 service fee, although it is anticipated that this charge will increase as use of the
Interest Enquiry search becomes more widespread.97
These two searches are consequently quite easy to undertake.
4.4.
Who has responsibility for the accuracy of information concerning
obligations and restrictions on title and use?
Landgate are responsible for information on the land title register, and the state
guarantee will be discussed below at 4.5.
The situation concerning information available through an Interest Enquiry is more
complex. As noted above, there are two possible issues with the Interest Enquiry
function:
96
97

Information remains in the control of the agency; and

Not all information is available at present.
Ibid.
Ibid.
174
With regard to the first issue, it appears unlikely that this will cause any major
problems. As stated above, there are sound reasons for leaving the data in control of
the relevant custodians. Therefore each agency is responsible for their own data. The
only problem that may arise is with regard to how data is made available to the SLIP
Enabler. At present, SLIP Enabler accesses spatial datasets used by agencies. If these
datasets are the main datasets used by the agencies, and are kept up-to-date, this
should not be a problem. If however data is put onto a spatial dataset purely for the
purposes of Interest Enquiry, and agencies use different data in their day-to-day work,
it will be necessary for agencies to ensure that information on the spatial database
remains current. If agencies are using different data in their work and for the purposes
of SLIP, there is potential for inaccuracies to occur.
The second issue may lead to potential liability for lack of complete data. Landgate
have recognised that this lack of complete information could lead to litigation, but
have reached the view that it is better to have some information available through a
central repository than to have none at all.98 Furthermore, the issue of risks was
canvassed in the SLIP Implementation Plan. It was noted that as SLIP is an automated
system, it may provide incorrect or incomplete information. The government noted
that this may lead to liability issues, but thought this was unlikely due to the
following:
 The degree of automation will be managed according to types of interests and
the associated risk levels. The system provides for manual validation of
responses to enquiries; and
 The system will provide information on interests using custodians’
information. This is no different from the current situation.99
Because an Interest Enquiry search will not provide any information which was not
previously available; there is no greatly increased risk. This was further elaborated
upon later in the Implementation Plan, where the possible legal liability for
misinterpretation of datasets was discussed. The authors noted that ‘with increased
access and availability of land and geographic data, there is increased potential and
98
99
Interview with Bruce Roberts, Registrar of Titles, Western Australia (Perth, 7 May 2009).
Government of Western Australia, above n 46, 53.
175
risk that data could be used and misinterpreted, which could lead to litigation’. This
risk of litigation was downplayed though, with the authors noting that ‘risk levels are
commensurate with current uses of land and geographic data. While some legal and
regulatory issues remain, they are less significant than originally perceived. Current
systems already handle the legal and regulatory issues. Most of the data to be included
in SLIP is already available in digital form’.100
Therefore, although there is a risk of liability for misrepresentation, the government is
of the view that this risk is not any greater than it was prior to the introduction of
Interest Enquiry. This is because SLIP merely draws together data that was previously
available. Furthermore, as the data remains in control of the agency, any liability will
likely attach to the agency rather than to Landgate.
There are two steps which have been taken to mitigate legal risks associated with the
Interest Enquiry, namely the use of disclaimers, and memorandums of understanding
between Landgate and the agencies providing data.
First, there are a series of disclaimers which users are alerted to. The memorandum of
understanding entered into between Landgate and the custodian agency obliges
Landgate to provide a web display of a disclaimer for customers including the
following information:
 General – a disclaimer that Landgate and other government agencies will not
be liable ‘for any loss or damage, however caused (including through
negligence, error, omission or otherwise) which may be directly or indirectly
suffered in connection with the use of SLIP’;
 Good faith – the materials available through SLIP are provided ‘in good faith
and are considered true and correct at the time of publication’. The disclaimer
further states that changed circumstances after publication may affect accuracy
of material;
 No warranties – all warranties are disclaimed, and Landgate and other
agencies ‘do not warrant or accept any liability for the information as to its
quality, suitability, completeness, availability or accuracy’; and
100
Ibid 101.
176
 No reliance – ‘customers using SLIP information remain responsible for
making their own assessment of it and should verify all information with their
own professional advisers or the relevant government agency sources’.101
This disclaimer will be visible when conducting an Interest Enquiry search. This
essentially conveys to the customer that the information available through SLIP is
provided merely for informational purposes, and is not intended to be relied upon
solely.
The general Landgate website also provides the following disclaimer:
the information and materials presented at this web site are distributed by Landgate as
an information source only. While every effort has been made to ensure the accuracy
and completeness of the information, no guarantee is given nor responsibility taken by
the Landgate for errors or omissions in the database.
The information is provided solely on the basis that readers will be responsible for
making their own assessment of the matters. Readers are advised to verify all relevant
representation, statements and information with their own professional advisers.
The Landgate does not accept any liability for any loss or damages for the information
or advice provided at this web site or incorporated into this web site by reference, or
which is incurred as a result of the use of, or reliance upon, the information and advice
contained at this web site.
In addition to locally mounted information, the Landgate web server provides links to
other Internet sites. These external information sources are outside the Department's
control and it is the responsibility of the Internet users to make their own decisions
about the accuracy, reliability and correctness of information found.102
This disclaimer emphasises that data is given purely for informational purposes, and
Landgate do not undertake to guarantee the accuracy or completeness of the data. It
also states that users should verify information with their own advisers. It is doubtful
101
102
Landgate, Memorandum of Understanding Template (2009) clause 4.1(b).
Landgate,
Disclaimer
of
Liability
(2009)
http://www.landgate.wa.gov.au/corporate.nsf/web/disclaimer+of+liability> at 22 July 2009.
<
177
that advisers would be in a position to know more about government data than the
government themselves. Given that Landgate are in a superior position and have
effective control of the data, it is unclear whether a court would uphold these
disclaimers given the opportunity.
Additionally, each government agency includes their own disclaimer within their
Interest Enquiry report. For example, the Department of Environment and
Conservation provides the following disclaimer with their Acid Sulphate Soil risk
report:
this Interest Report has been prepared by Department of Environment and
Conservation (DEC). While DEC makes every effort to ensure the accuracy, currency
and reliability of this information at the time it was prepared, circumstances may have
changed since the information was originally provided. Users must exercise their own
skill and care when interpreting the information contained within this Interest Report
and, where applicable, obtain independent professional advice appropriate to their
circumstances. In no event will DEC, its agents or employees be held responsible for
any loss or damage arising from any use of or reliance on this information.
Additionally, this Interest Report must not be reproduced or supplied to third parties
except in full and unabridged form.103
This echoes the disclaimer required to be provided by Landgate, in that it discourages
the customer from relying on the information provided. However, it is unlikely that
recipients could obtain information from any other source, as government
departments effectively have a monopoly over their own data. This may be a factor a
court would consider in determining whether to uphold a disclaimer, and will be
discussed in detail in Chapter Eight.
Despite the use of these disclaimers, liability issues may still arise in relation to SLIP.
Writing about aggregated data, Christensen et al noted that ‘the majority of consumers
who obtain information through an official government website will expect that the
provenance of the data has been checked for accuracy both in the original information
103
Landgate, Sample Acid Sulphate Soil Risk Interest Report (2009).
178
and in the way in which the aggregated data is represented’.104 Thus even where a
disclaimer is used, there is the risk that users will rely on the information.
Furthermore, it is evident from the Australian case law that courts will not necessarily
uphold disclaimers; they are merely one of the factors relevant to a discussion of
liability. Disclaimers will be discussed in detail in Chapter Eight.
The disclaimers used in SLIP may be effective to transfer liability from Landgate to
the relevant government agency, but it doubtful whether the agency themselves would
be immune from liability.
The second step taken to mitigate liability in Western Australia is memorandums of
understanding entered into between Landgate and the agencies providing data. This is
important because data provided via an Interest Enquiry is not maintained by Landata,
but remains in the control of the custodians. Christensen et al have discussed this
situation, and stated that ‘as the government agency responsible for releasing the
information may not be the agency statutorily responsible for the truth of the
information consideration should be given to the protocols put in place for obtaining
quality information from multiple agencies and to the use of the disclaimer’.105
Landgate have put in place protocols in an effort to ensure that information provided
by agencies is quality information. Landgate have entered into separate
memorandums of understanding with each of the agencies, which ensure that the
agencies provide information responsibly. In the template memorandum of
understanding, the custodian agency is specifically obliged to provide ‘the best
information or datasets available, at the time of their publication’.106 Therefore
although all information provided is heavily disclaimed, agencies are obliged to
essentially use their best endeavours to provide accurate material. As discussed above,
it is likely that any liability for negligent misrepresentation will attach to the agency
rather than Landgate itself, providing a good incentive for agencies to ensure that their
data is complete and accurate.
104
105
106
Sharon Christensen, Bill Duncan and Amanda Stickley, ‘Shifting Paradigms of Government
Liability for Inaccurate Information’ (2008) 15(2) Murdoch University Electronic Journal of
Law 185, 205.
Ibid 205.
Landgate, Memorandum of Understanding Template (2009) clause 4.1(a).
179
Although the Western Australian approach does not provide complete certainty to
landholders and prospective purchasers, it does appear to have made good progress in
endeavouring to make information on interests available through two searches.
With regard to information which is not yet available via an Interest Enquiry, it is
necessary to contact the agency directly for details of obligations and restrictions.
Thus the relevant agency will be responsible for the accuracy of information.
4.5.
Is the accuracy of information concerning title and use guaranteed, and is
compensation available where information is incorrect?
The insurance principle applies only to interests capable of registration on the land
title register. Section 201 of the TLA allows a person deprived of an interest or estate
in land to recover compensation from the state. ‘Estate’ is defined to mean any ‘legal
or equitable estate or interest, easement, right, title, claim, demand, charge, lien, or
encumbrance in, over, to, or in respect of the land’.107 This clearly only extends the
guarantee to persons deprived of a registered right. As obligations and restrictions on
use do not go so far as to deprive a person of title, this guarantee will not apply.
This was one of the government’s concerns when considering the recommendations
of the Standing Committee Inquiry (discussed above at 2.3.1). The Standing
Committee recommended that the certificate of title be expanded to include all
restrictions on use. The government rejected this idea, as it was not considered
feasible to extend the guarantee beyond its present scope.
As the guarantee only extends to registered interests, there is no compensation
available in relation to information gained through an Interest Enquiry search, unless
of course liability arises for negligent misrepresentation.
6.
Conclusion
Whilst the Western Australian approach does not yet provide landholders and
prospective purchasers with a complete picture of all obligations and restrictions on
107
Interpretation Act 1984 (WA) s 5.
180
land title and use, it has made significant progress in this area. Additionally, the
government is taking steps to increase the range of information concerning
obligations and restrictions available through SLIP, which will hopefully remedy this
issue. This could perhaps be achieved more easily through legislative mandates
requiring agencies to make data available through SLIP.
Although SLIP does not interact with the land title register, thus derogating from the
mirror principle, it is arguable that the land title register is not the appropriate place to
record all government information. As a SLIP search is becoming standard in
conveyancing practice regardless, it is probably of little consequence that information
is spread across two separate registers or platforms. However to effectively integrate
the systems, the government could possibly enact legislation requiring a note to be
placed on all titles, advising searchers to also consult SLIP and conduct an Interest
Enquiry to ascertain all information concerning their land. This could possibly even
be done under s 48A of the TLA, as amended in 2003. This would be a small measure
that would increase the degree of integration within the Western Australian system.
SLIP is still very much in its infancy, so it is difficult to properly assess whether it is
an effective model for the notification of obligations and restrictions on title and use.
Assuming that SLIP can be expanded in the future to include all information on land
use, it most likely represents an effective model for the management of obligations
and restrictions on land title and use, when used in conjunction with the land title
register.
181
Chapter Six
New Zealand Case Study
1.
Introduction
New Zealand was chosen as a case study because it is recognised as a world leader in
integrated natural resource management. New Zealand is useful for comparative
purposes as it has a Torrens system of land registration, but it also has a novel method
of management of information concerning obligations and restrictions on title and use,
which may help to inform the Australian approach. New Zealand has been at the
‘cutting edge’ of environmental law developments, being one of the first countries in
the world to implement the ‘sustainability principle’.1 Thus New Zealand may
potentially provide some useful lessons for Australia.2
Most natural resources in New Zealand are managed holistically under the Resource
Management 1991 (NZ) (“RMA”) regime, which amalgamated a number of
fragmented management regimes into a single regime. The RMA contains a number
of substantive provisions relating to resource management, and also defines the roles
of regional and district councils with regard to natural resource management. The
New Zealand government also uses an important document called a ‘Land
Information Memorandum’ (“LIM”) to provide information on obligations and
restrictions affecting land to prospective purchasers.
It is relevant to briefly note the differences between Australia and New Zealand in
terms of government, as this is necessary to an understanding of the resource
management regime. The system of government in New Zealand differs from
Australia in that it is centralised, and New Zealand does not have formal states or
provinces. As a result, legislation is only made at the national level. Additionally
though, there are local government instrumentalities which are granted power under
the RMA to make policies and plans, and any rules prescribed in plans have the legal
1
2
David Grinlinton, ‘Property Rights and the Environment’ (1996) 4 Australian Property Law
Journal 41, 41.
David Grinlinton, ‘Contemporary Environmental Law in New Zealand’ in Klaus Bosselmann
and David Grinlinton (eds) Environmental Law for a Sustainable Society (New Zealand Centre
for Environmental Law, Auckland, 2002) 19, 30.
182
effect of regulations.3 The country is divided into regions, which each have a regional
council, and then further into districts and cities, which each have a district or city
council. The RMA vests each level of government with certain powers and
responsibilities. This is in effect similar to the system in Australia where
responsibility for resource management is divided between the federal, state and local
governments.
This Chapter will commence by discussing the operation of the Torrens system in
New Zealand. It will then address the resource management regime, discussing each
level of government in turn. It will conclude by critically analysing the New Zealand
approach having regard to the guidelines for comparison set out in Chapter Three.
2.
Land registration in New Zealand
2.1.
Historical development
Development of the present land titles registration system in New Zealand followed a
similar path to the Australian system. Originally land in New Zealand was registered
under a deeds conveyancing system. The deeds system was introduced by legislation
in 1841, and amended in 1908.4 The deeds system is still in force in New Zealand, but
its use is limited as most land has been brought under the Torrens system.5
The Torrens system of land registration was introduced in New Zealand in 1870 by
the Land Transfer Act 1870 (NZ). There have been several amendments and
consolidations made since this first enactment, and the current Torrens Act is the
Land Transfer Act 1952 (NZ).6 The 1952 Act has also been significantly amended in
recent years to accommodate electronic registration and conveyancing.7 The New
Zealand government has switched over to an electronic conveyancing system called
‘Landonline’, which has made titles available electronically. Landonline also allows
for electronic lodgment.8
3
4
5
6
7
8
Resource Management Act 1991 (NZ) ss 68(2), 76(2).
Tom Bennion et al, New Zealand Land Law (Brookers, Wellington, 2005) 37.
Ibid.
Ibid 38.
Ibid.
Landonline, An Introduction to Landonline (2009) <http://www.landonline.govt.nz/aboutlandonline/introduction.asp> at 27 July 2009.
183
The New Zealand Torrens system is underpinned by the same key principles which
underpin the Australian system – namely the mirror, curtain and insurance principles.9
These principles are discussed in detail in Chapter Two of this thesis.
The principle of indefeasibility is enshrined in the New Zealand legislation, although
the term ‘indefeasibility’ is seldom used.10 Section 62 essentially states that the
registered proprietor of land shall, except in case of fraud, hold the land subject to
such encumbrances, liens, estates, or interests as may be notified on the register but
absolutely free from all other encumbrances, liens, estates, or interests whatsoever.
This is reiterated by Edwards J in the leading New Zealand case of Fels v Knowles,
who stated that ‘the cardinal principle of the statute is that the register is everything,
and that, except in cases of actual fraud on the part of the person dealing with the
registered proprietor, such person, upon registration of the title under which he takes
from the registered proprietor, has an indefeasible title against all the world’.11
As with most Torrens jurisdictions, there are several exceptions to this general rule. A
registered proprietor’s estate may be affected by:
 the estate or interest of a proprietor claiming the same land under a prior
certificate of title or under a prior grant registered under the provisions of this
Act;
 an omission or misdescription of any right of way or other easement created in
or existing upon any land; and
 any portion of land erroneously included in the grant, certificate of title, lease,
or other instrument evidencing the title of the registered proprietor by wrong
description of parcels or of boundaries.12
These bear some similarities to the Queensland Land Title Act.
9
10
11
12
Bennion et al, above n 4, 39.
Ibid 45.
Fels v Knowles (1906) 26 NZLR 604, 620.
Land Transfer Act 1952 (NZ) s 62.
184
New Zealand Courts have interpreted the Torrens legislation in the same manner as
Australian Courts, by emphasising the concept of completeness. This is most evident
in the following dicta, which outlined the goal of the Torrens system as:
to contain within its four corners a complete system which any intelligent man could
understand…the cardinal principle of the statute is that the register is everything, and
that, except in the cases of actual fraud on the part of the person dealing with the
registered proprietor, such person, upon registration of the title under which he
takes…has an indefeasible title against all the world.13
Therefore, the intention is that the land title register contains all information
concerning land. However this concept of completeness has been eroded by an
increasing number of obligations and restrictions impacting on land use. In New
Zealand here has been a recent push to reform the Torrens system, in recognition of
the fact that it is no longer achieving its goals. The following section of this chapter
will discuss the work of the New Zealand Law Reform Commission on this issue.
2.2.
Law reform
A recent Issues Paper by the New Zealand Law Reform Commission addressed
whether the central features of the Torrens system are presently being met in New
Zealand. It concluded that the principle of indefeasibility has achieved its aims to the
extent that the Torrens system removes the need for historical investigations of title.
However the Commission noted that there are a number of exceptions to
indefeasibility, which to some extent undermine the principle. Furthermore, the mirror
principle does not operate effectively, as the register is not a complete reflection of all
interests relating to land.14
The Issues Paper specifically dealt with the issue of overriding statutes, and the
authors noted that ‘there are many statutes that merely affect or create limitations on
the use of land but most interests are entered or noted on the register’.15 The
Commission also noted that there are good policy reasons for these statutes, even
13
14
15
Fels v Knowles (1906) 26 NZLR 604, 619.
New Zealand Law Reform Commission, Review of the Land Transfer Act 1952, Issues Paper
No. 10 (2008) 17.
Ibid 102.
185
where not recorded on title.16 This recognised that statutes such as the RMA were
enacted to serve social important goals, including sustainable development. However
it recognised that there is a tension between these statutes and titles registration. This
is emphasised later in the report, where the authors considered arguments for and
against registration of overriding statutes.
In terms of an argument for the registration of overriding statutes, the authors stated
the following:
one view is that these statutory interests undermine the conclusive register and the
security of a proprietor’s title. If a registered title may potentially be affected adversely
by interests that do not appear in the register, it does not provide a complete and
reliable record. People may need to look behind the register to verify the accuracy of
title information or there may be serious practical implications. The effect is that people
may lose confidence in the reliability and efficiency of the system and in the security of
their indefeasible title.17
Thus the authors contended that the current state of affairs has led to problems with
accuracy of the title register, which could potentially be remedied through the
registration or recording of overriding interests on title.
Conversely, they noted that the policy grounds behind the existence of overriding
statutes justify their existence, thus potentially outweighing any negative impact upon
landholding. They also contended that these statutes are unlikely to have a significant
impact on indefeasibility regardless.18 If this viewpoint is to be adopted, the
registration of obligations and restrictions is unnecessary, and their existence in any
case is more important that providing landholders or prospective purchasers with
accurate information.
Certainly the assertion that overriding statutes are unlikely to have an impact on
indefeasibility is contrary to the position in Australia. Chapter Two and Four
discussed a number of cases where overriding statutes have had a negative impact on
indefeasibility. Whilst there may well be sound policy reasons behind the existence of
16
17
18
Ibid.
Ibid 106.
Ibid 107.
186
these overriding statutes, it is important that interested parties are able to gain
information about these statutes easily. One of the purposes of this Law Reform
Commission review is to examine which of these arguments should prevail, and
whether the Land Title Act should be amended to provide for registration of these
overriding interests. It is hoped that the Law Reform Commission will recognise the
importance of providing information on these statutes, and propose some methods to
address this. This review was not finalised at the time of submission of this thesis, but
it is relevant to note though that this problem is currently being considered and
reviewed in New Zealand, and future law reform may occur.
3.
Natural resource management in New Zealand
The above section of this chapter considered the arrangements for land titles
registration in New Zealand. As the purpose of this thesis is to determine how
obligations and restrictions on land title and use can be most effectively managed, it is
necessary to also consider other arrangements for management of information in New
Zealand. As with the other case studies, the focus is on obligations and restrictions
enacted to promote sustainable use of natural resources.
Natural resource management in New Zealand is essentially regulated by two means.
First, the RMA contains a number of provisions directly affecting natural resource
management. These provisions are contained in Part 3 of the RMA, and they lay down
a series of duties relating such activities as the use of land, the coastal marine area, the
beds of lakes and rivers, water, and discharge of contaminants.19
Second, the RMA also provides for ‘an elaborate hierarchy of policy statements, plans
and rules’.20 The RMA divides New Zealand into 12 regional councils, based on river
catchment boundaries.21 Within these 12 regions, there are 69 district and city
19
20
21
Tony Randerson, 'Resource Management Act 1991' in David Williams (ed), Environmental and
Resource Management Law in New Zealand (Butterworths, Wellington, 2nd ed, 1997) 55, 70.
Ibid 71.
Caroline Miller, 'Alternative Methods in Resource Management: A New Zealand Example'
(2000) 15 Planning, Practice and Research 129, 129; David Grinlinton, ‘Integrating the
normative principle of sustainability into environmental governance in New Zealand’ (Paper
presented at the IUCN Academy of Environmental Law 7th annual Colloquium, Wuhan, China,
3 November 2009) 6.
187
councils.22 There are plans to cut down the number of councils in New Zealand, but
this is not expected to occur until 2011.23 The functions of these councils will be
discussed in detail below. At this point it is relevant to note there are three different
levels of regulation which are relevant to natural resource management in New
Zealand:

National (or central);

Regional; and

District.
Under the RMA there is a system of vertical integration, whereby each level of
government is granted separate, but sometimes overlapping responsibilities. The
RMA provides that lower level plans must ‘give effect to’ higher level policies and
plans, which assists with the achievement of vertical integration.24 This aims to ensure
that there are no conflicts.
This section will discuss natural resource management at each of these levels in turn.
As it is not feasible to discuss all regional and district plans, an example will be
chosen at each level. The purpose of this examination is to gauge how obligations and
restrictions are managed, which will inform a discussion as to the effectiveness of the
New Zealand model.
It is also important to note that there are statutes other than the RMA which are
relevant to natural resource management in New Zealand.25 These Acts will be
discussed where relevant, but as it is mainly the RMA which impacts upon private
land use, this will be the focus of this Chapter.
3.1.
National regulation - the Resource Management Act 1991
3.1.1. Introduction
The RMA is recognised as a crucial development in New Zealand’s legal history. The
22
23
24
25
New Zealand Ministry for the Environment, Getting in on the Act (2006) Ministry for the
Environment <http://www.mfe.govt.nz/publications/rma/everyday/overview-jun06/overviewjun06.pdf> at 8 January 2008.
Interview with Paul Davies, General Counsel, Franklin District Council (Telephone interview, 7
August 2009).
Resource Management Act 1991 (NZ) ss 55, 62, 65, 73, 75; Grinlinton, above n 21, 6.
For example Fisheries Act 1996 (NZ); Forests Act 1949 (NZ); Crown Minerals Act 1991 (NZ).
188
Act was drafted following a governmental review of its predecessor legislation, as
well as a Ministry for the Environment report on the implications for New Zealand of
the Brundtland Report.26 Environmental issues became prominent in New Zealand
following a change of government in 1984.
27
However it was the publication of the
Brundtland Report in 1987 which led to significant reform, with one commentator
remarking that the Brundtland report is possibly the most important source of many of
the concepts found in the RMA.28 The Ministry for the Environment report made a
number of recommendations, which suggested that ‘in essence, a single, integrated
resource management statute would replace the separate procedures found in nine
existing Acts’.29
One of the most important features of the RMA is the adoption of integrated
environmental management. Williams describes the need for integrated management
as follows:
in the past environmental regulation has often proceeded on an ad hoc basis pursuant to
which one aspect of a development has been controlled in isolation. This approach is
flawed because the principal types of pollution, air, water and land, are closely linked
and a prescription for the reduction of one frequently leads to the increase of another.30
This recognition that fragmented environmental management was flawed was the
major driver behind reform in New Zealand to provide for a more holistic approach to
the management of natural resources. Shortly after the RMA came into operation, the
Ministry for the Environment asserted that this integration of resource management
needs to occur at two levels. First, there needs to be integration across media –
different natural resources need to be managed in conjunction with one another.
Second, there needs to be integration across agencies – this involves joint decisionmaking, management and responses.31 The RMA was a significant step towards
26
27
28
29
30
31
David Williams, Environmental and Resource Management Law in New Zealand (Butterworths,
Wellington, 2nd ed, 1997) 59.
Grinlinton, above n 2, 25.
Ibid 57.
Constance Hunt, Peter Bobeff and Kenneth Palmer, ‘Legal Issues arising from the Principle of
Sustainable Development: Australia, Canada and New Zealand’ (1991) 9(1) Journal of Energy
and Natural Resources Law 1, 19.
Williams, above n 26, 61.
New Zealand Ministry for the Environment, ‘Not Just An Add-On’ (1993) Planning Quarterly
18, 19.
189
integrated management, as it affected over 50 pieces of legislation, and repealed a
number of major Acts.32
Despite the significance of the RMA, it has not been completely effective in achieving
its goals, with the government conceding that ‘in the 18 years since the RMA came
into force there has been growing criticism of its ability to effectively manage
complex environmental issues and the slow and costly plan preparation and
consenting processes’.33 As a result, the RMA was amended in 2009, with
amendments coming into force on 1 October 2009. Even though the RMA is
considered to be a leading example of environmental legislation, this demonstrates
that reform is necessary to ensure that law evolves and changes alongside developing
environmental issues.
This section will discuss the RMA and its consequent amendments, with particular
attention given to its objectives and aims, as well as the substantive provisions of the
Act.
3.1.2. Objectives of the RMA
The goals of sustainable management and integration are reflected in the objects of
the RMA. This was viewed as a significant development in environmental law at the
time, because prior to the RMA there were no guiding principles for the
administration of legislation managing natural resources.34 Furthermore, the RMA
was one of the earliest examples of the sustainability concept being incorporated as a
guiding principle into domestic law.35
This emphasis on sustainable management and integration is evident from Part 2 of
the Act, which sets out purposes and principles that underpin the RMA. The purpose
of the RMA is outlined in s 5 as the promotion of ‘sustainable management of natural
32
33
34
35
Grinlinton, above n 21, 7.
New Zealand Ministry for the Environment, Overview of the Resource Management
(Simplifying
and
Streamlining)
Amendment
Act
2009
(2009)
<
http://www.mfe.govt.nz/rma/central/amendments/resource-management-simplify-andstreamline-amendment-bill-2009/overview-rma-2009.html> at 10 November 2009.
Grinlinton, above n 21.
Rhoanna Stanthorpe, ‘A Vision for the Future? The Concept of Sustainable Development in the
Netherlands and New Zealand’ (2000) 4 New Zealand Journal of Environmental Law 147, 167.
190
and physical resources’.36
The term ‘sustainable management’ is defined under the Act to mean ‘managing the
use, development, and protection of natural and physical resources in a way, or at a
rate, which enables people and communities to provide for their social, economic, and
cultural wellbeing and for their health and safety while—
 Sustaining the potential of natural and physical resources (excluding minerals)
to meet the reasonably foreseeable needs of future generations; and
 Safeguarding the life-supporting capacity of air, water, soil, and ecosystems;
and
 Avoiding, remedying, or mitigating any adverse effects of activities on the
environment’.37
There has been a lot of academic debate in New Zealand concerning the interpretation
of the term ‘while’,38 sparked by some divergence in judicial approaches.39 If this
word is taken to be a coordinating conjunction, then all factors are taken to be equal –
in effect, economic, social and cultural factors are granted the same level of
importance as environmental factors. Alternatively, if a subordinating conjunction is
implied, then the environmental requirements are given priority.40 Initially courts
preferred the latter approach, also known as an ‘environmental bottom-line’
approach,41 but more recently courts have preferred an approach which strikes a
balance between economic and environmental factors.42 This has been described as
the ‘overall broad judgment’ approach by the Courts, noting that the Act requires ‘an
overall broad judgment of whether a proposal would promote the sustainable
36
37
38
39
40
41
42
Resource Management Act 1991 (NZ) s 5(1).
Resource Management Act 1991 (NZ) s 5(2).
See for example Douglas Fisher, An Introduction to Resource Management (1991); John
Milligan, ‘Pondering the “While”’ (1992) Terra Nova 7, 8; Kerry Grundy, ‘In Search of a
Logic: Section 5 of the Resource Management Act’ (1995) New Zealand Law Journal 40;
Stephanie Curran, ‘Sustainable Development v Sustainable Management: The Interface
Between the Local Government Act and the Resource Management Act’ (2004) 8 New Zealand
Journal of Environmental Law 267, 277; Klaus Bosselmann,‘Property rights and sustainability:
can they be reconciled?’ (Paper presented at the Property Rights and Sustainability conference,
Auckland, 16-18 April 2009) 13.
See for example North Shore City v. Auckland Regional Council [1997] NZRMA 59.
Curran, above n 38, 277.
See for example New Zealand Rail Ltd v Marlborough District Council (1993) 2 NZRMA 449,
470.
Ibid 278-9.
191
management of natural and physical resources…such a judgment allows for
comparison of conflicting considerations’.43
Thus the current approach to natural resource management is in line with the
definition of ‘ecologically sustainable development’ espoused at the international
level. However, when the RMA was drafted, the term ‘sustainable management’ was
deliberately chosen over ‘sustainable development’, because the main driver behind
the Act was sustainability in an environmental sense, rather than a social or economic
sense.44 This has caused some controversy, as current judicial approaches have been
viewed as less protective of the environment.
Section 6 of the RMA goes on to prescribe matters of ‘national importance’, which
are to be recognised and provided for by persons managing the use, development, and
protection of natural and physical resources. These matters are as follows:
(i)
The preservation of the natural character of the coastal environment
(including the coastal marine area), wetlands, and lakes and rivers and their
margins, and the protection of them from inappropriate subdivision, use, and
development;
(ii)
The protection of outstanding natural features and landscapes from
inappropriate subdivision, use, and development;
(iii) The protection of areas of significant indigenous vegetation and significant
habitats of indigenous fauna;
(iv) The maintenance and enhancement of public access to and along the coastal
marine area, lakes, and rivers;
(v)
The relationship of Maori and their culture and traditions with their ancestral
lands, water, sites, waahi tapu, and other taonga;
(vi) The protection of historic heritage from inappropriate subdivision, use, and
development; and
(vii) The protection of recognised customary activities.
These factors have been described as providing significant guidance towards
43
44
North Shore City v. Auckland Regional Council [1997] NZRMA 59, 94.
Sarah Kerkin, ‘Sustainability and the Resource Management Act 1991’ (1992-1995) 7 Auckland
Universities Law Review 290, 295.
192
achieving the goals in s 5, and one commentator has remarked that requiring decisionmakers to ‘recognise and provide’ places a relatively strong positive obligation upon
them to ensure that these matters are considered.45
These factors are also supplemented by the ‘other matters’ prescribed in s 7. Section 7
states that all persons exercising functions and powers under the RMA in relation to
managing the use, development, and protection of natural and physical resources,
shall have particular regard to—
 the ethic of stewardship;
 the efficient use and development of natural and physical resources;
 the efficiency of the end use of energy;
 the maintenance and enhancement of amenity values;
 intrinsic values of ecosystems;

maintenance and enhancement of the quality of the environment;
 any finite characteristics of natural and physical resources;
 the protection of the habitat of trout and salmon;
 the effects of climate change; and
 the benefits to be derived from the use and development of renewable energy.
The Treaty of Waitangi is also relevant to decision-making.46
It is clear from this examination of the objectives of the RMA that sustainable
management of natural resources is the key feature underpinning the RMA.
Regardless of the interpretation of these provisions, it is evident that environmental
factors are a major, if not the sole, driving force behind natural resource management
in New Zealand.
3.1.3. Operational provisions of the RMA
Whilst Part 2 of the RMA sets out the objectives and guiding principles underpinning
the Act, Part 3 of the RMA is entitled ‘duties and restrictions under this Act’, and it
contains the substantive provisions of the RMA. Part 3 places a number of restrictions
45
46
Williams, above n 26, 83.
Resource Management Act 1991 (NZ) s 8.
193
upon land use in order to achieve the objects of the Act. These provisions will be
discussed in detail below.
Prior to discussing these substantive provisions, it is necessary to outline the role of
resource consents under the RMA. Part 6 of the RMA provides for the use of resource
consents, which are an important mechanism under the Act. A resource consent is a
consent to do something which would contravene stated sections of the Act.47 The
operation of resource consents has been described as follows:
persons have the ability to apply for a resource consent to obtain permission to do
something that would otherwise result in a contravention of the Act’s restrictions on
use of the coastal marine area, water and air. Consents operate as a way to allow
individual uses of a resource where the activity applied for is generally unavailable
under the scheme of the RMA or may raise sustainable management concerns.48
There are several types of resource consents under the RMA:
 land use consents;
 subdivision consents;
 coastal permits;
 water permits; and
 discharge permits.49
The nature of each of these consents and permits will be discussed in detail below.
To obtain a resource consent, an application must be made with the relevant local
authority.50 When the RMA was enacted, it provided for public consultation prior to
obtaining a resource consent, unless the application was for a controlled activity, or
where the authority was satisfied that the environmental effects would be minor.51
47
48
49
50
51
Resource Management Act 1991 (NZ) s 87.
Laura Fraser, ‘Property Rights in Environmental Management: The Nature of Resource
Consents in the Resource Management Act 1991’ (2008) 12 New Zealand Journal of
Environmental Law 145, 163.
Resource Management Act 1991 (NZ) s 87.
Resource Management Act 1991 (NZ) s 88(1).
Resource Management Act 1991 (NZ) s 93(1) (repealed).
194
This reflected one of the key underlying principles of the RMA, which was public
participation in consent applications.52
However this resulted in large numbers of resource consent applications requiring
public notification, which led to delays in processing applications.53 As a result, the
2009 amendments to the RMA repealed the existing provisions relating to public
notices, and inserted new provisions. Now public consultation is only required where:

The consent authority decides that the activity will have or is likely to have
adverse effects on the environment that are more than minor; or

the applicant requests public notification of the application; or

a rule or national environmental standard requires public notification of the
application.54
In the first instance, namely where the activity is likely to have adverse effects on the
environment, there are several limitations placed upon the consent authority in
reaching their decision:

they must disregard any effects on persons who own or occupy the land in, on,
or over which the activity will occur, or any land adjacent to that land;

they may disregard an adverse effect of the activity if a rule or national
environmental standard permits an activity with that effect;

in the case of a controlled or restricted discretionary activity, they must
disregard an adverse effect of the activity that does not relate to a matter for
which a rule or national environmental standard reserves control or restricts
discretion;

they must disregard trade competition and the effects of trade competition; and

they must disregard any effect on a person who has given written approval to
the relevant application.55
There has already been some concern expressed in relation to these amendments. One
commentator noted that reducing public participation may prove problematic, stating
52
53
54
55
Grinlinton, above n 21, 14.
New Zealand Ministry for the Environment, above n 33.
Resource Management Act 1991 (NZ) s 95A(2).
Resource Management Act 1991 (NZ) s 95D.
195
that ‘dissatisfaction through exclusion from the process often leads to ongoing public
and political agitation, and protracted and expensive litigation’.56 Given that public
participation was a key feature of the RMA, this amendment could potentially lead to
public dissatisfaction. These amendments are very recent, and it will be interesting to
see other academic and judicial commentary on the topic over time.
Regardless of the requirement for public notification, resource consents are one of key
means by which actions may be allowed under the RMA. The nature of resource
consents is explicitly addressed in the RMA, which states that resource consents ‘are
not real or personal property’.57 Given this classification, the RMA had to explicitly
state the legal effect of these consents. In the case of land use consents and
subdivision consents, they shall attach to the land to which each relates, and therefore
benefit the owners and occupiers of the land for the time being, unless the consent
expressly provides otherwise.58
The remaining types of permits do not attach to land, and separate provisions apply in
relation to each of them. Coastal permits may be transferred to another person.59
There is no requirement that the transferee have any interest in the relevant land.
In contrast, a holder of a water permit granted for damming or diverting water may
only transfer the permit to any owner or occupier of the site in respect of which the
permit is granted; they may not transfer the permit to any other person.60 Thus these
permits are effectively tied to the land, although they do not attach to it and are not
automatically transferred with the land. Wild J has described this as being the factor
which distinguishes these permits from land use resource consents.61
Similarly, discharge permits may only be transferred to another owner or occupier of
the site.62
56
57
58
59
60
61
62
Grinlinton, above n 21, 14.
Resource Management Act 1991 (NZ) s 122(1).
Resource Management Act 1991 (NZ) s 134(1).
Resource Management Act 1991 (NZ) s 135.
Resource Management Act 1991 (NZ) s 136(1).
Altimarloch Joint Venture Ltd v Moorhouse & Ors [2008] NZHC 1031 [136].
Resource Management Act 1991 (NZ) s 137(1),(2).
196
Therefore it is clear that coastal, water and discharge permits do not attach to the land,
but instead may need to be transferred separately. Thus if a prospective purchaser of
land is particularly interested in damming or diverting water, or discharging
contaminants, they would need to clarify with the vendor whether the permits are to
be transferred.
The operational provisions of the RMA will now be discussed in detail, with further
attention given to the role of resource consents.
3.1.3.1. Land
Part 3 commences with a section regarding restrictions on the use of land. Section 9
states that no person may use land in a manner that contravenes a district plan or
regional plan unless the use is allowed by a resource consent.63 A resource consent, as
described above, is a consent to do something which would otherwise be prohibited
by the Act.64 The type of resource consent relevant to land is a land use consent.65
It is evident from s 9 that the RMA is not concerned with the regulation of land use,
instead it delegates this role to district and regional councils. District and regional
plans will be discussed in detail below. It is relevant to note though that even where
action is prohibited by a district or regional plan, it may be allowed where a resource
consent has been properly granted. One commentator remarked that a council’s
standard reply to complaints from members of the public regarding restrictions in
plans was that a person could instead apply for a resource consent, which would be
considered on its merits.66 Prior to the 2009 amendments, this application process
would usually be informed by public consultation. Since the recent amendments
restricted this right to public consultation, a resource consent application may prove
futile. Given that council created the plan, it is unlikely they would award a resource
consent allowing activity that they deemed should be restricted. Thus it may now
prove difficult for members of the public who are dissatisfied with a plan to access
any remedy.
63
64
65
66
Resource Management Act 1991 (NZ) s 9(1),(3).
Resource Management Act 1991 (NZ) s 87.
Resource Management Act 1991 (NZ) s 87(a).
Ken Palmer, ‘Zoning “Wipeout” and the No Compensation Principle’ (1997) 1 New Zealand
Journal of Environmental Law 316, 317-8.
197
3.1.3.2. Coastal marine area
The RMA sets out a number of restrictions regarding the coastal marine area, which is
defined as the foreshore, seabed, coastal water, and airspace above the water.67 These
restrictions prohibit any person from:

Reclaiming or draining any foreshore or seabed;

Erecting or removing a structure on any foreshore or seabed;

Disturbing any foreshore or seabed, including by excavating, drilling, or
tunneling;

Depositing any substance that is likely to have an adverse affect on the
foreshore or seabed;

Destroying, damaging or disturbing are foreshore or seabed; and

Introducing any plant on the foreshore or seabed.68
These restrictions apply unless the activity is allowed by a regional plan or resource
consent.69
The RMA also sets out specific rules with regard to coastal marine areas vested in the
regional council. These rules prohibit any person from occupying any part of the
coastal marine area, and from removing any sand, shingle, shell, or other natural
material from the land.70 However, this second rule only applies where the material is
removed in such a quantity that a licence or profit á prendre is necessary.71
Additionally, the RMA prohibits a person from carrying out any activity on a coastal
marine area in a manner that contravenes a regional plan, unless the activity is
specifically allowed by a resource consent.72 Therefore the RMA uses a combination
of direct restrictions on activity, and also delegates some responsibility to regional
councils.
67
68
69
70
71
72
Resource Management Act 1991 (NZ) s 2(1).
Resource Management Act 1991 (NZ) s 12(1).
Resource Management Act 1991 (NZ) s 12(1).
Resource Management Act 1991 (NZ) s 12(2).
Resource Management Act 1991 (NZ) s 12(4)(b).
Resource Management Act 1991 (NZ) s 12(3).
198
3.1.3.3. River and lake beds
River beds and lake beds are defined in s 2 of the RMA. A river bed is defined as the
space of land which the waters of the river cover at its fullest flow without
overtopping its banks.73 A lake bed is defined as the space of land which the waters of
the lake cover at its highest level without exceeding its margin.74
The RMA prohibits persons from carrying out the following activities on a river or
lake bed:

Using, erecting, removing or demolishing a structure or part of a structure on,
under, or over the bed;

Excavating, drilling, tunneling or otherwise disturbing the bed;

Introducing a plant in, on, or under the bed;

Depositing any substance in, on, or under the bed; and

Reclaiming or draining the bed.75
These restrictions apply unless the activity is allowed by a regional plan or resource
consent.76 Although regional plans would usually be required to give way to the
RMA, this provision allows plans to override the RMA is these circumstances.
Furthermore, unless expressly authorised, a person may not enter or pass across any
river or lake bed, or disturb or remove any plant or animal on the river or lake bed in
contravention of a regional or district plan.77
3.1.3.4. Water
The RMA broadly defines ‘water’ to include water in all its physical forms, whether
flowing or not, and whether over or under the ground.78 ‘Geothermal water’ means
water that is heated within the earth by natural processes to a temperature exceeding
30 degrees Celsius, and includes steam, water and water vapour.79 The definition of
73
74
75
76
77
78
79
Resource Management Act 1991 (NZ) s 2(1).
Resource Management Act 1991 (NZ) s 2(1).
Resource Management Act 1991 (NZ) s 13(1).
Resource Management Act 1991 (NZ) s 13(1).
Resource Management Act 1991 (NZ) s 13(2).
Resource Management Act 1991 (NZ) s 2(1).
Resource Management Act 1991 (NZ) s 2(1).
199
water for the purposes of the RMA includes fresh water, coastal water and geothermal
water, but does not include water in any form while in any pipe, tank, or cistern.80
Under the RMA, a person may not take, use, dam or divert any water, heat or energy
from water, or heat or energy from the material surrounding geothermal water.81
There are several exceptions to this general rule. A person is not prohibited from the
above actions in relation to water if:

The action is expressly allowed by a rule in a regional plan or a resource
consent;

In the case of fresh water, where the water, heat or energy is required for an
individual’s reasonable domestic needs, or for an animal’s drinking water,
provided that the taking does not have an adverse effect on the environment;

In the case of coastal water, the water, heat or energy is required for an
individual’s reasonable domestic or recreational needs, and the taking, use or
diversion does not, or is not likely to, have an adverse effect on the
environment; or

The water is required for fire-fighting purposes.82
Therefore the RMA grants some access rights to water in limited situations, although
the main task of regulating water allocations is devolved to regional councils.
3.1.3.5. Discharge of contaminants
The RMA sets out a number of rules in relation to contaminants. ‘Contaminant’ is
defined to include any substance that either by itself or in combination with another
substance, is likely to change the physical, chemical or biological condition of water,
land, or air upon discharge.83
Individuals are prohibited from discharging any:

80
81
82
83
Contaminant or water into water;
Resource Management Act 1991 (NZ) s 2(1).
Resource Management Act 1991 (NZ) s 14(1).
Resource Management Act 1991 (NZ) s 14(3).
Resource Management Act 1991 (NZ) s 2(1).
200

Contaminant onto or into land in circumstances which may result in that
contaminant entering water;

Contaminant from any industrial or trade premises into air; or

Contaminant from any industrial or trade premises onto or into land;
unless the discharge is expressly allowed by a rule, resource consent or regulations.84
Additionally, no person may discharge any contaminant into the air, or onto land, in a
manner that contravenes a rule in a district or regional plan, unless expressly allowed
by a resource consent.85
The RMA also recognises the inter-relationship between discharge of contaminants,
and the coastal marine area. Specifically, the RMA states that no person may, in the
coastal marine area, dump any waste or matter from a ship, aircraft or offshore
installation, or incinerate any waste or any matter in a marine incineration facility.86
This applies unless the discharge is permitted by a resource consent, regulation, or
district or regional plan.87
3.1.3.6. Noise
The RMA recognises that activities permitted under the RMA and regional and
district plans may generate noise, and addresses this issue.
Under the RMA, every occupier of land, and every person carrying out an activity in,
on, or under a water body, or in the coastal marine area, shall adopt the best
practicable option to ensure that the emission of noise from that land or water does
not exceed a reasonable level.88
However, the RMA does not limit the right of local authorities to prescribe noise
emission standards in regional or district plans, or resource consents.89
84
85
86
87
88
89
Resource Management Act 1991 (NZ) s 15(1).
Resource Management Act 1991 (NZ) s 15(2).
Resource Management Act 1991 (NZ) s 15A(1).
Resource Management Act 1991 (NZ) s 15A(2).
Resource Management Act 1991 (NZ) s 16(1).
Resource Management Act 1991 (NZ) s 16(2).
201
3.1.3.7. Duty to mitigate adverse effects
In addition to the fairly specific provisions of the RMA, the Act obliges all persons to
comply with more general environmental duties. Under the RMA, every person has a
duty to avoid, remedy, or mitigate any adverse effect on the environment arising from
an activity carried on by or on behalf of that person, whether or not the activity is in
accordance with a rule in a plan or a resource consent.90
Although most provisions of the RMA operate in conjunction with district and
regional plans, this provision is clearly intended to override any plans or resource
consents in the event of a conflict. This provision does not impose any specific and
enforceable duties on parties,91 but may be used to impose an enforcement or
abatement order on a person requiring them to stop doing something harmful, or to
mitigate activity already undertaken.92
3.1.4. Role of the Registrar of Titles
There is some provision for interaction between the RMA and the land titles register.
This interaction is quite limited, and most obligations and restrictions imposed under
the RMA are not registered or recorded on title. However the Registrar has been
described as having a limited ‘gatekeeper role’ under the RMA.93
The main interaction exists in relation to subdivision of land. The RMA prohibits
subdivision of land, unless expressly allowed by a district plan or resource consent,
and where a survey plan has been deposited with the Registrar.94 The local authority
is also permitted to place conditions upon subdivision, but is required to first consult
the Registrar to determine the practicality of any condition.95 Once the local authority
has granted consent to subdivide, this consent is registered upon land, and is deemed
90
91
92
93
94
95
Resource Management Act 1991 (NZ) s 17(1).
Resource Management Act 1991 (NZ) s 17(2).
Resource Management Act 1991 (NZ) s 17(3).
Email from Warren Moyes, Senior Advisor to the Registrar-General of Land, to Justine Bell, 8
July 2009.
Resource Management Act 1991 (NZ) s 11(1).
Resource Management Act 1991 (NZ) s 220(3).
202
to be a covenant running with the land.96 These consents are characterised as subdivision consents for the purposes of the RMA.97
The conditions which may be placed upon subdivisions include conditions that parts
of land must be amalgamated, or that reservations be made, or easements be entered
into.98 Where there is a condition requiring land to be amalgamated, the authority
shall specify that land be held in one certificate of title, or that a covenant be entered
into prohibiting the parts of the land being transferred or leased separately.99 These
conditions are relevant to the Registrar, as once a covenant is entered into, or where a
condition requires amalgamation, the Registrar shall not issue a certificate of title for
separate lots.100 Furthermore, where a consent requires easements or reservations, the
Registrar must refuse to register a transfer or lease unless satisfied that easements or
reservations have been duly made.101
It has been acknowledged that there are limitations upon the interaction between the
land title register and the RMA, with a representative of the registry making the
following observation:
not all local authority conditions or restrictions are noted on the title however, so
searching LINZ records will not disclose everything a prospective purchaser might
want or need to know. Such information may be obtained via a LIM report (Land
Information Memorandum) from the relevant local authority which contains a variety
of data about the land (district plan information, special problems etc.) that will not be
available from searching the title.102
The role of Land Information Memorandums will be discussed below in the section
discussing district councils. However it is relevant to note at this stage that the land
title register plays only a limited role in the regime established under the RMA.
96
97
98
99
100
101
102
Resource Management Act 1991 (NZ) s 221(4),(5).
Resource Management Act 1991 (NZ) s 87(b).
Resource Management Act 1991 (NZ) s 220(1).
Resource Management Act 1991 (NZ) s 220(2).
Resource Management Act 1991 (NZ) ss 240(1), 241(1)
Resource Management Act 1991 (NZ) s 243(c).
Email from Warren Moyes, Senior Advisor to the Registrar-General of Land, to Justine Bell, 8
July 2009.
203
3.1.5. Conclusion
The foregoing analysis shows that the main importance of the RMA is its statement of
objectives and guiding principles, as well as the establishment of resource consents.
Whilst the RMA does create some substantive rules in terms of management of
resources, for the most part this role is delegated to regional and district councils.
Thus it is necessary to consider the role of the regional and district councils in some
detail to fully understand the system for resource management and management of
information regarding obligations and restrictions on land title and use in New
Zealand.
3.2.
Regional policy statements and plans
Under the RMA, regional councils are vested with a number of functions. These
functions include:
 The establishment, implementation and review of objectives, policies and
methods to achieve integrated management of the natural and physical
resources of the region;
 The preparation of objectives and policies in relation to any actual or potential
effects of the use, development, or protection of land which are of regional
significance;
 The control of the use of the land for the purpose of soil conservation, the
maintenance of water quality, maintenance of ecosystems and mitigation of
hazards and adverse effects;
 Contaminated land investigations;
 Control of coastal marine areas;
 Control of taking, use, damming and diversion of water; and
 The strategic integration of infrastructure with land use through objectives,
policies. 103
Regional councils also have the power to create two types of documents with respect
to resource management, which are termed regional policies, and regional plans.
103
Resource Management Act 1991 (NZ) s 30(1).
204
Regional policies are required to provide an overview of the ‘resource management
issues of the region and policies and methods to achieve integrated management of
the natural and physical resources of the whole region’.104 In essence, policies state
the objectives of any regional efforts regarding resource management. In contrast to
the broad nature of regional policies, regional plans are designed ‘to assist a regional
council to carry out any of its functions in order to achieve the purpose of this Act’.105
Therefore, plans will contain the substantive provisions regarding resource
management.
To effectively provide for integrated management of natural resources, decisionmakers in regional councils have to take account of likely effects on all natural and
physical resources when developing policies and making decisions.106 Therefore
policies and plans will address all natural resource components together.
Given the number of regional councils in existence, it is not possible to discuss all
council policies and plans within the scope of this thesis. Instead, Auckland Regional
Council has been chosen as an example. The reason for this is that Auckland is a very
large and diverse region, thus the regional plan is required to address a variety of
resource issues.
3.2.1. Overview of the Auckland Regional Council area
The Auckland Regional Council (“ARC”) boundaries include Auckland city and
surrounds. The ARC area contains a high density of the country’s population, with
more than a third of the New Zealand population residing in the council boundaries. It
is also the country’s fastest growing council area.107
3.2.2. Auckland Regional Council Policy Statement
As stated above, each region may have a regional policy, and a regional plan.
Auckland Regional Council’s policy is set out in the Auckland Regional Council
104
105
106
107
Resource Management Act 1991 (NZ) s 59.
Resource Management Act 1991 (NZ) s 63(1).
New Zealand Ministry for the Environment, ‘Not Just An Add-On’ (1993) Planning Quarterly
18, 18.
Auckland Regional Council, Population and Statistics (2006)
<http://www.arc.govt.nz/auckland/population-and-statistics/population-andstatistics_home.cfm> at 22 July 2009.
205
Policy Statement. The introduction to the policy statement describes its purpose as
follows:
it is a statement about managing the use, development and protection of the natural and
physical resources of the Region. It sets in place the policy for promoting the
sustainable management of these resources. It also clarifies the respective roles of the
agencies with responsibilities under the Resource Management Act (RM Act) in this
Region. Its aim is to achieve integrated, consistent and coordinated management of the
Region’s resources. Its aim is also to provide greater certainty over the ways that
natural and physical resources are to be managed and hence create an awareness of the
constraints and opportunities in this Region.108
Thus the aim of the regional policy statement is to achieve the purposes of the RMA
in carrying out council functions. In keeping with the theme of the RMA, there is
emphasis placed upon the notion of integrated management of natural resources.
The Auckland Regional Council Policy Statement addresses the following matters:
 Transport;
 Energy;
 Heritage;
 Coastal Environment;
 Water Quality;
 Water Conservation and Allocation;
 Air Quality;
 Natural Hazards;
 Soil Conservation;
 Minerals;
 Pests;
 Waste;
 Hazardous Substances;
 Contaminated Sites; and
108
Auckland Regional Council, Regional Policy Statement: Chapter One, Introduction (1999)
Auckland Regional Council <
http://www.arc.govt.nz/albany/fms/main/Documents/Plans/Regional%20Policy%20and%20Plan
s/ARPS/ARPS%20Policy.pdf> at 2 June 2009.
206
 Esplanade Reserves and Strips.
Thus the matters for which the regional council is responsible for are quite similar to
the matters which fall under the control of state governments in Australia.
For each of these matters listed above, a number of objectives are set out. Due to the
size of the policy statement (240 pages), it is impossible to fully canvass all these
matters within this thesis. By way of an example, in relation to the Coastal
Environment, the following objectives apply:
 Auckland’s coastal environment ranges from areas which are predominantly in
their natural state to areas which have been highly modified. This needs to be
taken into account when preserving the natural character of the coastal
environment and protecting it from inappropriate subdivision, use and
development;
 Subdivision, use and development within the coastal environment needs to be
in an appropriate location, and of an appropriate form, which meets the
purpose of the RMA; and
 Some forms of subdivision, use and development are dependent on the natural
and physical resources of the coastal environment for their operation and
provision needs to be made for these in appropriate locations.109
This is a theme that is repeated throughout the policy statement. Policy statements do
not take the form of set rules, but rather overall guiding principles for development.
These principles underpin the substantive provisions in regional plans.
3.2.3. Auckland Regional Council Plans
The following regional plans exist in Auckland:
109

Coastal;

Farm dairy discharges; and

Sediment control.
Auckland Regional Council, Regional Policy Statement: Chapter Seven, Coastal Environment
(1999) Auckland Regional Council <
http://www.arc.govt.nz/albany/fms/main/Documents/Plans/Regional%20Policy%20and%20Plan
s/ARPS/ARPS%20Policy.pdf> at 2 June 2009.
207
There is also a proposed plan relating to air, land and water. For present purposes this
plan is the most relevant, thus it will be considered.
The proposed plan gives effect to the goal of integrated environmental management,
stating that ‘a key component to promoting sustainable management is integrating the
management of natural and physical resources, hence the reason for dealing with most
of the ARC’s functions in relation to air, land and water resources in one plan’.110
The proposed plan sets out a number of policies relevant to development planning.
The following are examples of policies:
 Use and development of air, land and water within Urban Areas is appropriate
where it is consistent with the strategic directions of the Auckland Regional
Policy Statement, and adverse effects are avoided, remedied or mitigated; and
 Use and development of air, land and water within Greenfield is appropriate
where efficient use is made of available land, and Permanent rivers and
streams with significant ecological, habitat and water quality values are
maintained where practicable, and adverse effects are remedied or
mitigated.111
Policies in regional plans are therefore more prescriptive in nature than regional
policy statements. However, at the time of writing this thesis, the Air, Land and Water
regional plan was merely a proposal and had not yet been formally adopted.
3.3.
District/city plans
The third level of regulation occurs at the district level. As with regional councils,
district councils are required to prepare plans and policies relevant to their duties.
District councils fulfil a similar role to local governments in Australia, and are
110
111
Auckland Regional Council, Proposed Auckland Regional Plan: Air, Land and Water (2008)
Auckland Regional Council <
http://www.arc.govt.nz/albany/fms/main/Documents/Plans/Regional%20Policy%20and%20Plan
s/Proposed%20ARP%20Air%20Land%20and%20Water/Proposed%20ALWP%20%20Title%20and%20Contents.pdf> at 2 June 2009.
Ibid.
208
responsible for most of the substantive rules governing matters such as land use and
sub-division.112
The purpose of the preparation, implementation, and administration of district plans is
to assist territorial authorities to carry out their functions in order to achieve the
purpose of the RMA.113 A district plan is required to state:
 the objectives for the district; and
 the policies to implement the objectives; and
 the rules (if any) to implement the policies.114
Within the Auckland region, there are seven districts or cities:
 Auckland City Council;
 Franklin District Council;
 Manukau City Council;
 North Shore City Council;
 Papakura District Council;
 Rodney District Council; and
 Waitakere City Council.
Franklin District Council has been chosen as an example of a district within the
Auckland Regional Council area. Franklin was chosen as an example because of its
diversity – it is close to Auckland City, but it is largely a rural area.115
The Franklin District Plan is guided by a number of principles:

Effective management of resources – managing environmental impacts on
natural and physical resources;

Minimising unnecessary regulation – this is achieved by relying on
performance standards rather than listing allowable activities;
112
113
114
115
Interview with Paul Davies, General Counsel, Franklin District Council (Telephone interview, 7
August 2009).
Resource Management Act 1991 (NZ) s 72.
Resource Management Act 1991 (NZ) s 75(1).
Franklin District Council, Franklin District Plan, (2006) [1.1] <
http://www.franklin.govt.nz/PlansPoliciesBylaws/DistrictPlan/DistrictPlanParts/tabid/230/Defau
lt.aspx> at 9 November 2009.
209

Providing certainty – assisting the public to determine whether acts are
allowable;

Cumulative effects – the Plan will control activities which may produce an
adverse effect when combined with other activities;

Consultation;

Precautionary approach – where there is insufficient information available, the
council has adopted the precautionary approach; and

Plan review – the council stated an intention to review the Plan frequently.116
The district plan consists of numerous chapters, dealing with issues such as cultural
heritage, recreation and reserves, forest conservation, development and subdivision.
Examining all content of the district plan is outside the scope of this thesis, so the
chapter concerning development in residential areas has been chosen as an example.
This chapter establishes a hierarchy of activities, from those which are least regulated
to those which are most highly regulated.
This chapter commences by listing permitted activities. These activities are permitted
under the plan, and do not require a resource consent. These include:

A single dwelling house;

A multi-unit development (subject to restrictions);

Accessory buildings;

Swimming pools;

Schools; and

Hospitals.
The Plan then lists controlled activities, which require a resource consent, but the Plan
stipulates that a resource consent shall be granted. These activities include:

Multi-unit housing (larger than developments which are permitted activities);
and

116
Traveller’s accommodation.
Franklin District Council, Franklin District Plan, (2006) [2.7] <
http://www.franklin.govt.nz/PlansPoliciesBylaws/DistrictPlan/DistrictPlanParts/tabid/230/Defau
lt.aspx> at 9 November 2009.
210
Finally, the Plan lists Discretionary (Restricted Assessment) Activities, and
Discretionary Activities. Restricted Assessment activities require a resource consent,
which may be either granted or refused dependent on the content of the application.
The activities include:

Horticulture; and

Cemeteries.
Discretionary Activities also require a resource consent, which may be granted either
conditionally or unconditionally, or refused. These include:

Funeral service premises;

Service stations; and

Veterinary centres.
The chapter then sets out standards for all activities, including such things as road
setback, stormwater drainage, and parking spaces.
Consultation of the district policies and plans is one of the main methods of
ascertaining whether development is allowed in an area.
Another important mechanism used by all district councils are Land Information
Memorandums (“LIMs”). These are quite similar to property certificates available in
Australian jurisdictions, although they are more comprehensive in their scope. Under
the Local Government Official Information and Meetings Act 1987 (NZ), a person
may apply to a territorial authority for the issue of a LIM in relation to matters
affecting any land in the district of the authority.117 The LIM must be provided within
10 working days.118 This provision was inserted into the Act in 1992 by the Local
Government Official Information and Meetings Amendment Act (No 2) 1991 (NZ).
Under legislation, LIMs are required to contain the following information:
117
118
Local Government Official Information and Meetings Act 1987 (NZ) s 44A(1).
Local Government Official Information and Meetings Act 1987 (NZ) s 44A(1).
211

Information identifying special features or characteristics of the land,
including potential erosion, avulsion, falling debris, subsidence, slippage,
alluvion, or inundation, or likely presence of hazardous contaminants. This
applies where the feature is known to the council, and not apparent from the
district plan;

Information on private and public storm-water and sewerage drains as shown
in the territorial authority's records;

Information that has been notified to the council by a drinking-water supplier
that water will not be supplied to any further residential properties in that area;

Information on whether the land is supplied with drinking water, and any
conditions that are applicable to that supply:

Information relating to any rates owing in relation to the land;

Information concerning any consent, certificate, notice, order, or requisition
affecting the land or any building on the land previously issued by the council;

Information concerning any certificate issued by a building certifier pursuant
to the Building Act 1991 or the Building Act 2004;

Information notified to the territorial authority under section 124 of the
Weathertight Homes Resolution Services Act 2006;

Information relating to the use to which that land may be put and conditions
attached to that use:

Information which, in terms of any other Act, has been notified to the
territorial authority by any statutory organisation having the power to classify
land or buildings for any purpose; and

Any information which has been notified to the territorial authority by any
network utility operator pursuant to the Building Act 1991 or the Building Act
2004.119
A LIM may also contain ‘such other information concerning the land as the authority
considers, at its discretion, to be relevant’.120 A sample LIM is annexed to this thesis
as Appendix G, and shows that Franklin District Council has used this provision to
record information about property zoning.
119
120
Local Government Official Information and Meetings Act 1987 (NZ) s 44A(2).
Local Government Official Information and Meetings Act 1987 (NZ) s 44A(3).
212
A controversial example of the power to record ‘such other information’ occurred
recently in the Auckland Regional Council. In 2002 Auckland Regional Council
became aware that up to 5000 properties in the Auckland City and Waitakere City
areas had previously been used for horticultural use, and therefore could possibly be
contaminated. Local governments decided to place a statement on the relevant LIMs,
noting that soil testing might be required in the future, but this did not indicate that
there were definitely contaminants on the site.121 Therefore this did not fall within s
44A(2) as information about ‘the likely presence of hazardous contaminants’ as there
was insufficient information as to whether contaminants were in fact present.
There was public protest concerning these entries, as they were seen to have a
negative impact on land value. Auckland City Council removed these notations, but
Waitakere City Council retained them. A General Counsel for Waitakere City Council
made the following observation:
property purchasers in Waitakere now generally accept that statement without further
enquiry since they appreciate that the advice is purely precautionary. If however in the
future the property is subdivided, testing for contaminants is required and the presence
of contaminants requiring remediation is disclosed by those reports then there can be
no potential to challenge against the Council.122
In 2006 a Waitakere resident challenged a valuation made by a valuer retained by the
council immediately prior to the notation. The resident alleged that the valuation
should have been lower given the impending notation, thus his rates should have been
lowered. The Land Valuation Tribunal held that he had adduced insufficient
information concerning value, and therefore dismissed his appeal, but noted that ‘the
council withheld information from its valuer to the effect that it was about to
adversely note any LIM report applicable to the property. That information had the
potential of being relevant to the determination of land value’.123 However these
comments were set aside by the High Court, who noted that these conclusions were
121
122
123
Denis Sheard, Information Management (2008) NZ Society of Local Government Managers <
http://www.solgm.co.nz/NR/rdonlyres/FCC32537-9D8E-4C11-AA092B09D48FB021/60719/SOLGMInformationManagement.pdf> at 10 August 2009.
Ibid.
Lovelock v Waitakere City Council [2006] NZVLT 15 at [17].
213
beyond the jurisdiction of the Tribunal, who were charged with valuing land, and
nothing else.124
It is suggested that noting this information on a LIM is a sound approach, as the
information is therefore easily ascertainable. However the landholder should be
advised of this notation and it should also be taken into account in any property
valuation.
It is also relevant to briefly discuss the process for obtaining a LIM. Obtaining one is
in effect similar to undertaking a search of a register. The district council will search
their own internal registers or information systems, and then set the information out in
a single document for the applicant. It was noted in Parliamentary debates at the time
of introduction that councils ‘will be required to have land information
documentation, which means that anybody who is building a home or wanting to
acquire one can go to their local authority at any time to find out details relating to
that land and building’.125 This essentially means that councils are required to keep
information systems.
The internal processes for compiling a LIM were discussed in Resource Planning
Management Ltd & Marlborough Wine Centre Ltd v Marlborough District
Council.126 France J noted that:
the usual process would be for the Land Information Memorandum to go to each
department within the Council depending on what information was required. For
example, information about rates would be sought from the Finance Department.
Essentially, the exercise undertaken was one of compiling the information from that on
the Council file.127
This ensures that all relevant information held by the council is included.
124
125
126
127
Waitakere City Council v Auckland Land Valuation Tribunal & Lovelock [2007] HC AK CIV
2007-404-3483 at [6].
New Zealand, Parliamentary Debates, 1991, 5297 (Chairman of Internal Affairs and Local
Government Committee), cited in Resource Planning Management Ltd & Marlborough Wine
Centre Ltd v Marlborough District Council [2003] HC BLM CIV-2001-485-814 at [164].
[2003] HC BLM CIV-2001-485-814.
Resource Planning Management Ltd & Marlborough Wine Centre Ltd v Marlborough District
Council [2003] HC BLM CIV-2001-485-814 at [167].
214
Whilst a LIM is quite comprehensive, it is still necessary to consult the district plan,
particularly where a purchaser intends to develop the land. As shown at Appendix G,
the LIM does state that there is a district plan in place. Although it does not give any
details of the matter contained in the district plan, it does solve some informational
problems by alerting the searcher to the existence of the plan. LIMs are a very
important information source for prospective purchasers, especially since the
legislation states that a LIM is to be conclusive evidence of the information contained
within.128 This establishes a very strong basis for liability for incorrect information,
which will be discussed in detail below.
3.4.
Conclusion
Whilst natural resource management in New Zealand is split across three levels of
government, as in Australia, it appears that there is a lot more integration of these
agencies, and their roles are more clearly defined.
However, although there is integration of government agencies, as well as integrated
management of resources, it does not appear that there are any registers or databases
in place through which a landholder or prospective purchaser can accurately ascertain
all obligations and restrictions affecting land. Despite this lack of registers, the LIM
appears to be quite a powerful source for landholders and prospective purchasers to
gain information concerning land, particularly due to the provision regarding liability.
The purpose of the following part of this Chapter is to assess the New Zealand model
according to the guidelines for comparison set out in Chapter Three to assess
effectiveness.
4.
How effective is the New Zealand approach as a whole?
4.1.
Does the jurisdiction provide for integrated management of information
concerning obligations and restrictions on land title and use?
The New Zealand approach has been revolutionary in terms of condensing the number
of information sources that a prospective purchaser needs to consult to accurately
ascertain all obligations and restrictions on land title and use. As discussed above, the
128
Local Government Official Information and Meetings Act 1987 (NZ) s 44A(5).
215
RMA condensed a number of different Acts into a single Act, and allowed for most
natural resources to be managed under a single legislative regime.
The RMA does not regulate all natural resources directly, and instead provides for
regional and district councils to take responsibility for certain matters. There are
sound reasons for adopting such an approach, as obviously different areas of the
country have different resources, and consequently different problems. Furthermore
the RMA very clearly sets out the functions of each level of government. As a result,
even though responsibilities are broken down amongst three levels of government, the
approach is still integrated in nature. This contrasts with Queensland for example, as
Chapter Four showed that in some instances different agencies have overlapping
responsibilities.129
From the review of the New Zealand approach, it appears that a purchaser can get a
relatively sound picture of obligations and restrictions affecting land by obtaining a
title search and a LIM, as well as through consulting the relevant regional and district
plans. Whilst this is by no means a simple process, it does involve significantly less
information sources than in Queensland. Furthermore, the LIM does direct the reader
to the district plan, thus effectively linking the two resources.
4.2.
Is the land title register utilised for the purpose of recording obligations
and restrictions on use?
At present the land title register in New Zealand is not used to register or record
obligations and restrictions on use to the same extent as the land title register in
Queensland.
The New Zealand Law Reform Commission noted that ‘in a system of title by
registration, the register should be as inclusive, as complete and accurate as possible
to ensure maximum certainty, efficiency of conveyancing and accuracy of records.
But even if everything that could be registered was to be registered, exceptions (such
as trusts in many Torrens systems) and interests that override the register by virtue of
129
For example, the case of Wall v Doyle & Anor [2008] QPEC 23 showed that two separate
government agencies had responsibility for regulating vegetation.
216
other statutes would remain’.130 It will be interesting to see the recommendations
made by the final report of the Law Reform Commission, as the proposal may well be
to expand the scope of the land title register to include additional information
concerning obligations and restrictions on land title and use.
However, it is unlikely that the land title register will be extended in any significant
way. As stated by Warren Moyes, the Senior Adviser to the Registrar-General of
Land:
the LT register is not and has not been regarded as being appropriate as a noticeboard
for everything relevant to the land concerned. It is an ownership record that has had
superimposed over it by statute a number of notification requirements or restrictions
because the Registrar has been seen as a convenient gatekeeper.131
In terms of other rights which may affect title and use, there may be a resource
consent attached to land. In some circumstances resource consents operate in rem, but
it appears that the existence of such consents will be disclosed in a LIM. Other
resource consents appear to be treated separately to title, and are not necessarily
conveyed with property. This could be a sound rationale for recording or registering
consents which operate in rem, to ensure that the distinction is clear. It would also
ensure that prospective purchasers are informed of any resource consents attaching to
the land, in the unlikely event that this information was overlooked in a LIM.
Another instrument affecting use which may be created is a private covenant entered
into by a landholder. These may be positive or restrictive in nature, and may be noted
on the land title register. This notification is similar to the use of administrative
advices in Queensland, as the covenants do not receive the benefits of registration,
and have no greater effect than they would have otherwise had.132
As part of the review of the Land Transfer Act, the Law Reform Commission is
considering whether covenants in gross may be created and recorded against title.133
130
131
132
133
New Zealand Law Reform Commission, above n 14, 21.
Email from Warren Moyes to Justine Bell, 3 August 2009.
Property Law Act 2007 (NZ) s 307; Email from Warren Moyes to Justine Bell, 3 August 2009.
Email from Warren Moyes to Justine Bell, 3 August 2009.
217
In terms of other obligations and restrictions which may be notified on title, few are
relevant to this thesis. One relevant example arises under the Building Act 2004 (NZ).
Under this Act, an Authority must refuse to grant building consent where the land is
subject to a natural hazard, and building work is likely to accelerate, worsen, or result
in a natural hazard on that land or any other property.134 ‘Natural hazard’ is defined to
include erosion, falling debris, subsidence, inundation (including flooding etc) and
slippage.135 However, where it will not accelerate, worsen, or result in a natural
hazard, the authority must grant consent.136 If consent is granted, the authority must
notify the Registrar-General of land.137 The Registrar-General must then record on the
certificate of title details of the consent and the natural hazard concerned.
The Forests Act 1949 (NZ) has also been amended to allow landholders to enter into
carbon sequestration agreements. Under these amendments, a landholder may enter
into a forest sink covenant to allow them to access the value of carbon sequestered on
their land.138 Where a covenant is entered into, the landowner must, within 180 days
of agreement, submit that covenant to the Registrar-General of land. The RegistrarGeneral must register that covenant over land.139
Furthermore, the Resource Management Act provides for certain matters to be
recorded on title. These matters are discussed above at 3.1.4.
In summary, the land title register in New Zealand has a fairly limited role in the
recording of obligations and restrictions on use.
4.3.
How easily can landholders or prospective purchasers ascertain what
obligations and restrictions on title and use apply in relation to a parcel of
land?
A title search and LIM will give a landholder or prospective purchaser the majority of
relevant information, but will not provide a complete picture of obligations and
134
135
136
137
138
139
Building Act 2004 (NZ) s 71(1).
Building Act 2004 (NZ) s 71(3).
Building Act 2004 (NZ) s 72(1).
Building Act 2004 (NZ) s 73.
Forests Act 1949 (NZ) s 67W.
Forests Act 1949 (NZ) s 67ZD.
218
restrictions affecting a parcel of land. It is necessary for the landholder or prospective
purchaser to also consult regional and district policies and plans.
The land title register is a public register, and is therefore available for searches by
members of the public. To obtain a title search is relatively easy provided a user has
the relevant licences. Similarly, a LIM is easy to obtain. Information not recorded on
either of these documents is more difficult to ascertain, as it is necessary to consult
legislation and plans. This is to some extent alleviated by the statement in the LIM
referring the reader to the district plan. Although the LIM does not provide any details
of the content of the plan, it at least alerts the searcher to its existence.
In terms of public availability of material, there are limited statutory provisions that
enable someone to have their title information ‘hidden’, but only if they fear that such
information will be used to track them down and put them at risk. However that
usually requires some form of Court protection order as a pre-requisite and such
information is not likely to relate to land use, and therefore is not relevant to this
thesis.140
LIMs are also publically available. Obtaining a LIM is in effect similar to searching a
register or database, as the council will draw information from their own internal
registers or databases and provide it to the applicant.
One problem with this system is that whilst LIMs will alert prospective purchasers to
any restrictions on use, existing landholders will not necessarily be notified of new
obligations and restrictions placed on use, even though these may affect their rights,
as well as their land value. This was noted in Lovelock v Waitakere City Council,
where Judge Hole stated that:
there seems to be no statutory admonition requiring the territorial authority to disclose
to the registered proprietor of land in respect of which a LIM report might issue of any
detrimental fact affecting that land. Thus, as here, it is possible for a territorial authority
to remain silent on an issue, which it will reveal to a third party, which may affect the
land’s value or, indeed the health and safety of the occupants of the property.141
140
141
Email from Warren Moyes to Justine Bell, 3 August 2009.
Lovelock v Waitakere City Council [2006] NZVLT 15 at [6].
219
Therefore in some circumstances, obligations and restrictions might be placed over
properties without the landholder’s knowledge. These same obligations and
restrictions may also be disclosed to prospective purchasers through a LIM.
However in some cases, councils are advised to inform landholders of obligations and
restrictions which will be disclosed on a LIM. For example, the Ministry for the
Environment website encourages councils to advise landholders where their land is
noted as contaminated, by providing template letters to be sent. This letter sets out
that the land has been assessed as potentially contaminated, and seeks input from the
landholder.142
This perhaps represents a sound model for informing landholders where obligations
and restrictions have been placed on their use of land. This could also potentially
encourage compliance with environmental laws by ensuring that landholders are
aware of any obligations and restrictions in place. This letter is merely a
recommendation though, and perhaps a legislative mandate would be more effective.
Additionally, this would seem to only apply to obligations and restrictions imposed
over individual parcels of land, as opposed to blanket obligations and restrictions
contained in legislation and plans. Even though information may be obtained from
these sources with relative ease, it is conceivable that new obligations and restrictions
can be created without the landholder having knowledge of this fact. There could
potentially be situations where a landholder’s rights are detrimentally affected after
sale, which could impact upon the uses to which land may be put.
It is also particularly important that landholders are advised of such matters in the
case of positive obligations, which require them to take action in relation to land.
However, it is also important that landholders are apprised of restrictions to ensure
compliance.
142
New Zealand Ministry for the Environment, Contaminated Land Management Guidelines –
Sample
Notification
Letters
(2004)
Ministry
for
the
Environment
<
http://www.mfe.govt.nz/publications/hazardous/contaminated-land-mgmt-guidelinesno4/html/page9.html> at 10 August 2009.
220
Although this thesis does not enter into an assessment of whether or not obligations
and restrictions on title and use are warranted, it may be argued that these obligations
and restrictions would be more appropriately placed on a register or database where
landholders can easily ascertain what interests affect their land should they wish to
develop it.
4.4.
Who has responsibility for the accuracy of information concerning
obligations and restrictions on title and use?
Accuracy of information on the land title register is the responsibility of Landonline.
Access to the land titling system is protected, through mechanisms put in place by
Landonline to ensure security of titles. Their system involves digital certificates,
which are only issued to authorised firms.143 Furthermore, the records and the
recording system are electronic and can only be accessed by licensed users. There are
two separate licensing systems for searching the records, and for presentation of
instruments for registration. The only persons who may apply for access for
registration purposes are practising solicitors and licensed conveyancers.144 Therefore
there is extremely restricted access to titles.
The accuracy of information in the land title register is subject to the State guarantee
of title, and entitlements to compensation for loss will be discussed below at 4.5.
District Councils are responsible for the accuracy of information contained in LIMs.
This responsibility will be discussed in further detail below at 4.5.
4.5.
Is the accuracy of information concerning title and use guaranteed, and is
compensation available where information is incorrect?
4.5.1. Land Title Register
As with the Australian Torrens statutes, the New Zealand Land Transfer Act grants a
right to compensation where a person:
143
144
New Zealand Landonline, Security (2009) <http://www.landonline.govt.nz/aboutlandonline/security.asp> at 27 July 2009.
Email from Warren Moyes to Justine Bell, 3 August 2009.
221

Suffers loss or damage due to an omission, mistake, or misfeasance in the
performance of any duty, function, or power imposed or conferred on the
Registrar; or

Is deprived of any land, or of any estate or interest in land...by the registration
of any other person as proprietor of that land, or by any error, omission, or
misdescription in any certificate of title, or in any entry in the register.145
Similarly to the Australian provisions, it is likely that this guarantee of compensation
will only extend to cover interferences with title. An obligation or restriction on the
use of land is unlikely to be sufficient to amount to a deprivation of an ‘estate or
interest in land’.
There is one important distinction between the Australian and New Zealand
approaches, in that compensation may be available with regard to interests that are not
registered on title. Compensation is available for failure to provide information
regardless of whether it is required to be registered, or merely recorded, provided that
there is an obligation to record that information.146 For example, a covenant is not a
registered interest, but failure to record one that had been lodged for notification on
the register could lead to a compensation claim for any loss or damage caused by such
an omission.147 These covenants are in essence similar to administrative advices in
Queensland, as they are placed on title without the benefits of registration. This is
therefore a very important distinction given that administrative advices are
specifically exempted from the State guarantee in Queensland.
4.5.2. Restrictions under the RMA
The RMA explicitly exempts claims for compensation on the basis of land use
controls. Under s 85 of the RMA, ‘an interest in land shall be deemed not to be taken
or injuriously affected by reason of any provision in a plan unless otherwise provided
for in this Act’.148
145
146
147
148
Land Transfer Act 1952 (NZ) s 172(1).
This is covered by Land Transfer Act 1952 (NZ) s 172(1)(a).
Email from Warren Moyes to Justine Bell, 3 August 2009.
Resource Management Act 1991 (NZ) s 85(1).
222
There is an exception to this general rule. Where a person has an interest in land, and
they consider that a provision or proposed provision of a plan would render that
interest in land incapable of reasonable use, they are permitted to challenge that
provision or proposed provision.149 ‘Reasonable use’ in relation to any land is defined
under the Act to include ‘the use or potential use of the land for any activity whose
actual or potential effects on any aspect of the environment or on any person other
than the applicant would not be significant’.150
Upon a person challenging a plan, the Environment Court is required to adjudicate on
the matter. If the Environment Court reaches a decision that a provision or proposed
provision of a plan ‘renders any land incapable of reasonable use, and places an unfair
and unreasonable burden on any person having an interest in the land’, the Court may
direct the local authority to change the plan.151
Therefore there is still no entitlement to compensation for interference with land use,
but in certain circumstances the landholder is permitted to challenge the law. The
result of a successful claim would be that the law was changed back in their favour,
thus negating the need for compensation. However due to the definition of
‘reasonable use’, any person who challenges a plan in relation to an activity which has
a significant environmental impact is unlikely to be successful; if an obligation or
restriction is deemed necessary for environmental protection, it is unlikely that a
landholder has any recourse available to them.
4.5.3. Compulsory acquisition
Additionally, as with other jurisdictions, there is compensation available where land is
compulsorily acquired. The Public Works Act 1981 (NZ) is similar in operation to
Queensland’s Acquisition of Land Act. Additionally, the RMA grants government
authorities additional powers to acquire land. Under the RMA, a regional council may
acquire by agreement any land or interest in land in its region or district, if, in
accordance with its plan, the authority considers it necessary or expedient to do so for
the purpose of terminating or preventing any non-complying or prohibited activity in
149
150
151
Resource Management Act 1991 (NZ) s 85(2).
Resource Management Act 1991 (NZ) s 85(6).
Resource Management Act 1991 (NZ) s 85(3).
223
relation to that land, or facilitating activity in relation to that land that is in accordance
with the objectives and policies of the plan.152 This grants the landholder a right to
compensation.153
4.5.4. Land Information Memorandums
One important aspect of the New Zealand approach is that liability may attach to
district councils for information in LIMs. The relevant legislation states that ‘in the
absence of proof to the contrary, a land information memorandum shall be sufficient
evidence of the correctness, as at the date of its issue, of any information included in it
pursuant [to the provisions of the Act]’.154 Furthermore, the Local Government
Official Information and Meetings Act 1987 creates a limited protection from liability,
and provides that liability will not arise in relation to certain official information
provided in good faith under the Act.155 However the parts of the Act relating to LIMs
are not included in this protection. This makes it clear that liability is intended to
attach to incorrect information given in a LIM.
There are only two judgments concerning liability for incorrect information contained
in a LIM. The first case is Resource Planning Management Ltd & Marlborough Wine
Centre Ltd v Marlborough District Council,156 and relates to information omitted
from a LIM.
In this case, the plaintiff purchased land in 1996, and was provided with six separate
LIMs relating to the property. In 1997 a Resource Management Plan and associated
Flood Hazard Overlay was notified in relation to the land. Shortly after, the plaintiff
applied for a resource consent to develop the land as a holiday and recreation park,
which was refused. The plaintiff commenced proceedings against the council alleging,
amongst other things, a failure to disclose in the LIMs.
152
153
154
155
156
Resource Management Act 1991 (NZ) s 86(1).
Resource Management Act 1991 (NZ) s 86(3).
Local Government Official Information and Meetings Act 1987 s 44A(5).
Local Government Official Information and Meetings Act 1987 s 41(1). This protection applies
with regard to information given under Parts 2, 3 and 4, which relate to access to information
held by public authorities.
[2003] HC BLM CIV-2001-485-814.
224
The LIM provided stated that the land was within an old river channel, and noted the
remote possibility of flooding in the future. It also noted that council’s plans were
subject to change at any time.157
The plaintiff led evidence that one council engineer had formed the view that the land
was not suitable for building, it was liable to flood hazard, and it was in the “most
dangerous” area of the flood plan.158 His opinions were not included in the LIM, as
the council decided that they were merely opinions and not necessary to include, as
they were not part of council policy.159 The plaintiff argued that his opinions were
‘information held by the council at the time’, thus should have been disclosed. The
plaintiffs also argued that they should have been informed that the land would be
included in the Flood Hazard Overlay.160
France J of the High Court found for the defendants, noting that s 44A does not
require the council to disclose ‘the views of one person…who is out of step with those
of everyone else involved’.161 Furthermore, France J did not find it problematic that
the Council did not mention the future Flood Overlay, as the LIM ‘does in fact
indicate the possibility of a change to the council’s policies and work programmes’.
Her Honour also noted that Councils do not owe a duty of care to forecast possible
planning changes.162
Generally speaking, her Honour discussed the duty to disclose, and stated that ‘the
disclosure is a limited one in the sense that the authority is not required to provide all
of the information on its files’. She also observed that ‘there has to be some cut-off
point’ in terms of the volume of information to be disclosed.163
157
158
159
160
161
162
163
Resource Planning Management Ltd & Marlborough Wine Centre Ltd v Marlborough District
Council [2003] HC BLM CIV-2001-485-814 [147].
Ibid [146].
Ibid [151].
Ibid [149].
Ibid [171].
Ibid [170].
Ibid [166].
225
This decision restricts somewhat the information required to be provided under a
LIM, excepting opinions of employees, and forecasts of future changes to Council
plans.
The recent case of Altimarloch Joint Venture Ltd v Moorhouse & Ors164 also
considered liability for information contained in a LIM. This case concerned a local
government’s liability for incorrect information, as opposed to omitted information
considered above. In this case, the Moorhouses owned the property Altimarloch, and
resource consents to take class A, B and C surface water. In 2000 the Moorhouses
sub-divided Altimarloch and in 2001 sold one part to a third party, as well as half the
class A, and all the class B water permits.
In 2004, the plaintiff purchased the remaining part. The plaintiff believed that it was
acquiring all the class A, B and C water permits, and the A permits were especially
important to the plaintiff. A LIM granted by the council showed all the A permits
attaching to the land. When the plaintiff became aware that the A permits did not all
attach to the land, they brought actions against a number of parties, including the
council.
Wild J of the High Court found that the council was liable in negligence. In
establishing a duty of care, His Honour considered the following matters to be
relevant:
 the plaintiff’s loss would have been avoided had the LIM accurately described
the A rights attaching to the land;
 Under the RMA, the council has a duty to keep records of all water rights
granted, and any transfers;
 Section 44A of the Local Government Official Information and Meetings Act
requires the LIM to be complete and accurate;
 It was apparent to the council that the information was sought for a serious and
legal purpose;
 This would not limit the council’s freedom, as there was a statutory duty
imposed;
164
Altimarloch Joint Venture Ltd v Moorhouse & Ors [2008] NZHC 1031.
226
 This would not unduly burden the council, as there was a statutory duty to
keep the relevant records, and the fee charged for the LIM was more than
adequate to cover costs;
 This was a statutorily sanctioned way of obtaining information. The plaintiff
was not required to go behind the LIM to check the information contained in
it;
 It would not open the floodgates of liability; and
 Imposition of a duty of care is consistent with the statutory scheme.165
Furthermore, Wild J found that the council had also breached their statutory duty.166
Also, he held that any disclaimer would be ineffective as it would cut across the
statutory duty owed.167
In reaching his decision, Wild J discussed Resource Planning Management Ltd &
Marlborough Wine Centre Ltd v Marlborough District Council, and concluded that
his decision accorded with France J’s comment that there must be a ‘cut-off point’.168
This is because the council here erroneously overlooked a transfer; it did not simply
fail to disclose all information on its files.169 Thus there may be a stronger case where
there is an error as opposed to an omission.
The importance of this decision is that councils must exercise care in providing LIMs.
If any information within their control is wrongly described, civil liability may well
arise. If information is omitted, liability could potentially arise, although this was not
the case in Resource Planning Management Ltd & Marlborough Wine Centre Ltd v
Marlborough District Council.
It is also relevant to note that the statutory provisions regarding LIMs prevent
councils from protecting themselves through the use of disclaimers.
165
166
167
168
169
Ibid [129]-[135].
Ibid [149].
Ibid [153].
Ibid [128].
Ibid.
227
5.
Conclusion
The New Zealand approach is highly regarded for its efforts in integrating
management of natural resources. Whilst is may not be feasible to recommend that
Australian states follow New Zealand’s lead and integrate all environmental
legislation, there are some features of the New Zealand approach which may assist
with reform of the Australian system. These features will be discussed in Chapter
Seven, which will compare the case studies and identify the desirable features for
effective management of obligations and restrictions on land title and use.
228
Chapter Seven
Analysis and comparison of case studies
1.
Introduction
The previous three chapters provided case studies of Queensland, Western Australia,
and New Zealand. These chapters showed three fundamentally different models for
providing information concerning obligations and restrictions on land title and use.
Whilst the Queensland approach is fragmented in nature, the Western Australian
government has introduced a system to manage information in an integrated manner,
and the New Zealand government has enacted legislation to provide for integrated
management of natural resources.
Each of the case study jurisdictions were assessed according to a uniform set of
guidelines for comparison to determine how effectively they manage information
concerning obligations and restrictions on land title and use. As the purpose of this
thesis is to examine how such information can be most effectively managed within the
context of a Torrens framework for land registration, particular emphasis was placed
upon the role of the land title register in each jurisdiction.
The purpose of applying these guidelines for comparison was not to pick one
jurisdiction as the most effective, but rather to isolate characteristics from all
jurisdictions which can contribute to effective management of obligations and
restrictions on title and use.
The purpose of this chapter is first to compare and analyse the results of this
assessment. Although none of the jurisdictions surveyed appear to be performing
entirely effectively on the basis of the guidelines for comparison, all have specific
features which can contribute to effective management of obligations and restrictions
on title and use. This chapter will compare the jurisdictions with a view to
indentifying the characteristics that are essential to an effective system for the
management of obligations and restrictions on land title and use.
229
Second, based on this comparative analysis, this chapter will make preliminary
recommendations for an effective system for the management of information
concerning obligations and restrictions on land title and use.
2.
Comparison of case studies
Chapter Three set out guidelines for comparison, which were applied to each of the
case study jurisdictions. This section will discuss each of these guidelines in turn, and
compare how effectively each jurisdiction meets these guidelines. It will also identify
which features of the case study jurisdictions contribute to effective management of
information concerning obligations and restrictions on land title and use.
2.1.
Provision for integrated management of information concerning
obligations and restrictions on land title and use
As noted in Chapter Three, this guideline involves a consideration of whether
management of information concerning obligations and restrictions on title and use is
fragmented, or whether the jurisdiction has taken steps to integrate this information.
This guideline was applied to the three case study jurisdictions.
It is clear from the analysis in Chapters Four, Five and Six that the jurisdictions
surveyed have varying degrees of integrated management of obligations and
restrictions on land title and use. There is some provision for integrated management
of information in Queensland, although this has been largely reactive, and has
occurred on a case by case basis. In some instances, legislation has been enacted to
provide for better information where a specific problem has arisen, but there has not
been widespread and coordinated reform. For example, information concerning
disused mines was not previously visible on a title search. However, following the
land subsidence in Collingwood Park, the Queensland government passed legislation
to allow the landholder to place a note on title showing that the land has been affected
by subsidence and is subject to a state guarantee.1 The purpose of this amendment was
to stabilise land values in the area, by reassuring prospective purchasers that
1
Mineral Resources Act 1989 (Qld) Part 10AA.
230
compensation will be available for any future damage.2 It appears that placing such
notifications on title was not contemplated by the government until problems arose.
This ad hoc and reactive approach to the notification of obligations and restrictions on
title has led to incomplete information. For example, although legislation was
amended to allow information concerning disused mines to be placed on title, there is
no provision for information concerning mining leases generally to be placed on title.
Similarly, the recording of administrative advices has occurred on a piecemeal basis,
and is only allowed where an Act specifically provides for recording.3 As shown in
Chapter Four, a number of Acts do provide for obligations and restrictions to be
notified as administrative advices, but the procedure is by no means uniform.
Furthermore, the process is not automated. To record an obligation or restriction as an
administrative advice, the administering department has to execute a separate form for
every single obligation or restriction, and lodge it with the Registrar of Titles.
Consequently, notification of obligations and restrictions is dependent upon the
diligence of the administering agency. Therefore an administrative advice will only be
recorded where first, legislation states that the obligation or restriction must be
notified as an administrative advice, and second, where the relevant agency manually
lodges a request with the Registrar of Titles. Although some statutes provide for set
timeframes in which agencies must notify the Registrar of Titles, it is unclear whether
there are any consequences for delays or failure to do so.
In contrast, the Western Australian government has taken a more proactive approach
to law reform, by taking steps to integrate information sources to prevent problems
from arising. In recent years the government has invested significant funds into the
development of the Shared Land Information Platform (“SLIP”), to provide
landholders and prospective purchasers with integrated information concerning
obligations and restrictions on land title and use. Although this project is not yet
complete, and not all government information is presently available, it is developing
2
3
Queensland Government, Collingwood Park inspires new legislation (2008) Department of
Mines and Energy <http://www.dme.qld.gov.au/media_centre.cfm?item=562.0> at 27 January
2009.
Land Title Act 1994 (Qld) s 29(1), which states that the Registrar may record ‘anything that the
Registrar is permitted to record by this or another Act’.
231
gradually. The project has a high level of government support, and should eventually
expand to cover all obligations and restrictions.
Another advantage of the SLIP infrastructure is that it allows for the process to be
automated. When an Interest Enquiry search is performed, the software automatically
searches all available government data. Therefore, integration is not dependent upon
the lodgement of individual documents, meaning there is possibly less scope for error.
There still remains some scope for error though, given that some government
departments will need to upgrade their data, or place it upon a new database for it to
be accessible by the SLIP enabler. Thus if government agencies are using one set of
data in their day-to-day work, and making another set available to SLIP, there is
potential for inaccuracies. If the system is adjusted so that the SLIP enabler can access
the data actually used by the government agencies, this should alleviate any potential
problems.
The Western Australian approach therefore differs from Queensland in two major
ways; all information will eventually be made available through an integrated system,
and this information will be automatically available.
Similarly to Western Australia, the New Zealand system was the product of a detailed
program of reform, and is also a good example of integrated information concerning
obligations and restrictions on title and use. The Resource Management Act 1991
(NZ) (“RMA”) simplified the legislative regimes creating obligations and restrictions
on title and use considerably, and also provides clarification as to the roles of all
levels of government. The Land Information Memorandum (“LIM”) available from
district councils also appears to provide a lot more information than its Queensland
equivalent (a local government property search).
Whilst the New Zealand method is quite sophisticated, to implement a similar
approach in any Australian state would require significant legislative reform to
amalgamate all legislation creating obligations and restrictions and land title and use.
At present, Australian states manage all natural resource components under separate
legislative regimes. For example, Chapter Four showed that Queensland has
232
approximately 30 Acts that create obligations and restrictions on title and use for
environmental purposes.4
Therefore it may not be feasible to recommend that Australian states enact legislation
which provides for integrated management of all natural resources. The application of
the comparative methodology requires the writer to take into account the legal
background of the jurisdictions being compared. It may be the case that the structure
of government in New Zealand facilitated reform of this scale, and it may not
translate effectively to Australian jurisdictions. Furthermore, the New Zealand
legislation was enacted almost twenty years ago. In this time, the number of
environmental obligations and restrictions in Australia has increased exponentially in
response to worsening environmental problems. Thus the system is even more
complicated than it was when the RMA was enacted. This context means that
suggesting integrated resource management legislation for Australian jurisdictions is
inappropriate.
For example, major legislative reform in a jurisdiction such as Queensland would be
incredibly onerous due to the breakdown of responsibilities amongst government
departments, and the large number of Acts which create obligations and restrictions.
For this reason, the Western Australian approach may be more appropriate as it can
operate within existing legislative and regulatory structures in Australian states. This
approach allows the state governments to retain their existing legislative obligations
and restrictions on title and use, and they can also remain in control of the current
administering agencies. Furthermore, legislative reform needed to implement such a
system is minimal. Although development of a platform such as SLIP does require a
significant amount of government support and funding, it is perhaps better suited to
Australian states than integrated legislation.
It is likely that the most appropriate starting point for Australian jurisdictions is to
examine how to manage obligations and restrictions through an integrated platform,
4
Other studies have shown that other jurisdictions have similarly large volumes of legislation.
See for example Rohan Bennet and Abbas Rajabifard, ‘Spatially enabling government: a
snapshot from Victoria’ (Paper presented at the Spatial Sciences Institute Biennial International
Conference, Adelaide, 28 September-2 October 2009).
233
rather than trying to integrate the source of these obligations and restrictions. This
essentially allows for natural resource management to remain fragmented, but for
information to be integrated to provide greater certainty, and assist with decisionmaking and compliance with environmental laws.
Both the New Zealand and Western Australian approaches show that successful
integrated management cannot occur on a reactive basis; it needs to be underpinned
by a specific program of reform, which takes into account management of all
obligations and restrictions on title and use. It is not sufficient to enact legislation on a
case-by-case basis to deal with individual issues as they arise.
2.2.
Use of the land title register for the purpose of recording obligations and
restrictions on use
Chapters Two and Three noted that the land title register has traditionally been used to
record only a narrow range of obligations and restrictions on title. This guideline
assessed whether the use of land title register has been expanded in the subject
jurisdictions to record obligations and restrictions on use, as well as title.
The case studies show that the land title register is used to manage obligations and
restrictions on use in all jurisdictions to some extent, although the degree to which it
is used differs considerably.
Queensland appears to make greater use of the land title register than the other
surveyed jurisdictions. Although only several Acts in Queensland provide for
obligations and restrictions to be registered on title, there are many more which
require these instruments to be recorded as administrative advices.
There are only two pieces of legislation which specifically provide for obligations and
restrictions to be formally registered on title. The Forestry Act and the Sugar Industry
Act create restrictions which are registrable in the format of profits á prendre and
easements respectively. The difficulty in making legislative obligations and
restrictions registrable is that they need to take the form of one of these categories of
234
registrable interests. This has been achieved in the case of these restrictions, mainly
because new interests such as profits á prendre were created.
It is difficult to discern why the Queensland government have elected to make these
restrictions registrable on title, whilst others are not. One possible rationale is that
these restrictions place a greater burden on land use rights than other obligations and
restrictions. This is particularly so in the case of carbon rights, which grant the right to
use the trees in a third party, thus completely removing the landholder’s right to use
the trees. Arguably this amounts to an interference with possession of land, rather
than merely with use. Alternatively, it is arguable that this degree of interference on
land use is no different to other vegetation laws which prohibit clearing. The potential
distinction though is that whilst vegetation laws prohibit clearing, they still allow the
landholder to enjoy possession of the vegetation, and do not vest rights in a third
party.
Possibly a better rationale for treating these restrictions differently is that they consist
of agreements entered into between two private parties; they are not imposed by the
state. In contrast, many other obligations and restrictions, such as general prohibitions
on clearing vegetation, are made under legislation, regulations or plans. There may be
greater justification for registering private agreements than in the case of state
imposed obligations and restrictions, as it is more difficult to gain information on
private agreements.
The remaining type of registrable instrument, statutory covenants, can be
distinguished as covenants can only be entered into with the State as covenantee.5 As
discussed in Chapter Four, covenants are used in Queensland to register agreements
obliging landholders to undertake activities such as the preservation of native
vegetation, and the protection of fauna. It is conceivable that these instruments could
be used to register a broader range of obligations and restrictions on title. At this point
in time they are only used on a case-by-case basis, where a State government
department or local authority deems it necessary to secure restrictions or obligations
relating to a specified parcel of land. There is presently no legislation which mandates
5
Land Title Act 1994 (Qld) s 97A(2).
235
the use of statutory covenants in specific situations. It may be considered too onerous
to expand the use of statutory covenants to encompass all obligations and restrictions
on land use. Regardless, they are a mechanism which can potentially be used to allow
government imposed obligations and restrictions to be registered on title.
Another feature common to all of these instruments is that they are relatively new
creations. Statutory covenants were introduced to the LTA in 1997, and their use was
expanded through amendments in 2000. Forestry profits á prendre were created in
2000, and sugar easements in 2008. This shows that the use of the land title register to
register obligations and restrictions on use is growing. As noted above, the Registrar
of Titles has indicated that he is willing to extend the scope even further and create
new registered interests where there is a compelling case to do so.6 Therefore, there is
the potential for the scope of the land title register in Queensland to extend even
further.
The other mechanism used to include information on title in Queensland is to record it
as an administrative advice. Administrative advices essentially act as flags, and will
alert the searcher that the obligation or restriction exists, but will not confer it with the
benefits of registration. These administrative advices are used more often than
registered obligations and restrictions, as Chapter Four showed that 15 Acts provide
for their use. It appears that administrative advices are generally only used in the case
of obligations and restrictions which affect individual parcels of land, as opposed to
blanket restrictions which affect all parcels of land in a given area, such as zoning.
In very general terms, the following may be said of the Queensland approach by way
of a summary:
 Obligations and restrictions imposed by private agreement, rather than by the
State, are registered on title (the exception being statutory covenants);
 Obligations and restrictions which affect individual parcels of land are often
recorded on title; and
6
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and
Resource Management (Interview, 3 August 2009).
236
 Obligations and restrictions which affect multiple parcels of land are rarely
registered or recorded on title.
However these distinctions are not applied universally, and Queensland may benefit
from the development of set guidelines that specifically address where information on
restrictions and obligations should be registered or recorded.
Administrative advices are potentially a sound alternative to registering obligations
and restrictions on title. They ensure that the existence of an obligation or restriction
is flagged on title, but without unnecessarily extending the State guarantee of title.
That said, the main problem with the Queensland approach is that it is not uniform.
Only some Acts provide for obligations and restrictions to be recorded as
administrative advices. Furthermore, many of these Acts only provide for some
obligations and restrictions created under the Act to be recorded, but not all. Although
the Queensland government have extended the scope of the land title register to
incorporate many obligations and restrictions on land use, there is definitely room for
further extension.
Alternatively, the Registrar of Titles would ideally like to see a new register created
called the Miscellaneous Interests Register, which would be accessible by all
government agencies, and in which they could record their own data. At present
though there is no government support for development of a new register, and the
current processes are likely to remain in place for some time.7
If the Queensland government are to continue registering and recording information
on title, it is essential that guidelines are developed to underpin this process, as the
current ad-hoc approach to registration and recording is ineffective.
Western Australia differs from Queensland as its land title register has largely
retained its traditional role as a record of ownership details. The Western Australian
government makes limited use of the land title register for the purpose of recording
obligations and restrictions on land title and use, preferring instead to make this
information available through an Interest Enquiry search.
7
Ibid.
237
This was not initially the case, and Chapter Five discussed legislative reform in the
1990s and early 2000s whereby the government allowed for additional information to
be recorded on title. However, since then the government has moved away from this
approach as technological advances have made the SLIP infrastructure possible.
The Western Australian approach is arguably a good model despite operating
externally to the land title register. This is because it integrates, or at least intends to
integrate, information on a uniform basis. Once all agencies make their data available,
an Interest Enquiry search, in conjunction with a title search, should give a landholder
or prospective purchaser an accurate picture of all obligations and restrictions on title
and use affecting a parcel of land. Although not all obligations and restrictions are
presently available through an Interest Enquiry search, there is strong government
support for further expansion of the platform, and this expansion is currently taking
place. In contrast, the Queensland approach is not the product of coordinated reform,
and expansion appears to occur on an ad-hoc basis.
Furthermore, an intended benefit of the SLIP platform over the land title register is
that it is easier and more efficient to record obligations and restrictions which affect
multiple parcels of land on a spatial database rather than on a register. This is because
on a parcel-based register an individual entry would have to be made for each affected
parcel. Where the relevant obligation or restriction is, for example, a zoning control
which affects thousands of blocks, it would be onerous for the government to make
individual notations on each of these several thousand titles. In contrast, a single entry
can be made on a spatial database, and this entry is represented as spanning across
multiple blocks.
Therefore, although the land title register plays a limited role in Western Australia,
this is a conscious decision, because it is no longer viewed as the most effective
repository for this type of information. Additionally, the problem of not including
information on title could be easily remedied by providing a note on title, in a similar
format to an administrative advice, alerting the searcher to the possibility of other
relevant information available via an Interest Enquiry. This would ensure that the
238
presence of all information is flagged in a title search, even if details of the
obligations and restrictions are not available in full. Another advantage of this is that
if the notation merely directs the searcher to consult SLIP, it does not need to be
updated, and the exact same notation can be placed on every single title. This
approach would be quite easy and time efficient for governments to implement, and
would to some extent ensure that the land title register acts as a mirror of all interests.
Similarly, the New Zealand government only makes scant use of the land title register
to record obligations and restrictions on land use. A possible reason for this is that the
bulk of obligations and restrictions on land use are imposed at the district level rather
than at the national level where the land title register is administered. Conversely in
Queensland, the land title register, as well as most legislative obligations and
restrictions, are administered by the same level of government.
The LIM also appears to provide detailed information concerning these obligations
and restrictions, and may be a sound alternative to placing obligations and restrictions
on title. If the information was placed on title, the district councils would have to
ensure that the information was continually updated. Under the current approach, the
district councils merely have to maintain their own internal records to ensure that
information given on a LIM is correct. If this is indeed a more appropriate approach to
take, information deficiencies could be remedied through a note on title advising the
purchaser to obtain a LIM. As noted above in the context of Western Australia, such
an approach would at least notify the searcher of the existence of additional
information that they should further investigate.
In both Western Australia and New Zealand the only recent extension of the land title
register to register or record obligations or restrictions on use is in the case of carbon
covenants or agreements. These covenants and agreements are discussed in detail in
Chapter Five and Six, but it is relevant to note that in both jurisdictions these
covenants or agreements can be registered on title, and the justification for this is to
encourage and facilitate trade.
239
It is interesting that both the New Zealand and Western Australian governments have
seen fit to register carbon agreements and covenants, but no other obligations or
restrictions on land use. Arguably this distinction has arisen because carbon
agreements and covenants essentially take away a component of the land, whereas
other obligations and restrictions merely alter the manner in which components may
be used. In this sense, carbon agreements effectively alter rights to possession, rather
than merely rights to use.
Furthermore, as with most registrable restrictions in Queensland, these agreements are
between private parties rather than obligations and restrictions imposed by the State.
Both governments have explicitly recognised that registering these agreements
provides greater security to affected parties, but it is conceivable that other obligations
and restrictions on land use could also benefit from this increased security. This
however is unlikely in Western Australia, as the government has expressed the view
that SLIP is a more appropriate forum for the recording of obligations and restrictions,
and carbon rights are likely to be a limited exception. The New Zealand Law
Commission is presently examining this issue,8 and it will be interesting to see
whether they recommend that the scope of the land title register be further extended.
In summary, although there are major flaws with the Queensland approach, it may
have some merits due to the extension of the scope of land title register to record
obligations and restrictions on use. In the case of obligations and restrictions which
affect parcels of land individually, there is a very strong case for making this
information available on a title search. This is because such obligations and
restrictions are generally imposed by agreement, order, or a Ministerial decision, and
cannot be found in the text of legislation, regulations or plans. This is the fundamental
distinction between these types of obligations and restrictions, and blanket restrictions
which affect multiple parcels of land. Additionally, providing this information on a
title search would help to restore the central pillars of the Torrens system, including
completeness and accuracy.
8
See New Zealand Law Commission, Review of the Land Transfer Act 1952, Issues Paper No 10
(2008). Amongst other things, the Commission are considering whether to implement a system
of interest recording, similar to the system of administrative advices used in Queensland.
240
However, in the case of blanket obligations and restrictions, such as zoning or
planning controls, a platform such as SLIP may be a more appropriate forum for
providing information. This is because representing these obligations and restrictions
spatially is far easier and more cost effective than recording these details on every
individual title. Although this does derogate from the Torrens ideal that the register is
the sole source of information, this could be remedied by providing a short note on
title flagging the existence of this database to searchers. Although this does not
provide any information on the content of the database, it does in some respects
ensure that all information, however abridged, is available through a title search.
Furthermore, since the Torrens system was introduced in the 19th century, emphasis
on protection of private property rights has given way to environmental protection,
and it may be the case that the goals of the Torrens system need to be modified to suit
current social conditions.
2.3.
Ease with which landholders or prospective purchasers can ascertain
what obligations and restrictions on title and use apply in relation to a
parcel of land
This guideline was used to assess how easily information concerning obligations and
restrictions on land title and use may be obtained in the case study jurisdiction. This
guideline was applied because ease of obtaining information provides certainty for
landholders, as well as facilitating compliance with environmental laws. The case
studies demonstrated three very different processes for ascertaining information on
obligations and restrictions on land title and use.
The Queensland approach consists of a complicated system of registers and legislative
obligations and restrictions, and it is quite difficult for landholders or prospective
purchasers to determine what obligations and restrictions affect their title and use.
This is reflected in a growing body of case law, as well as increased media attention
on the issue. The 2008 Queensland decision of Wall v Doyle9 involved a couple who
purchased land at Ipswich, and cleared land for the purposes of building a home. A
letter from the Department of Natural Resources (as it was then called) told them that
there were no restrictions under the Vegetation Management Act, which they thought
9
[2008] QPEC 23.
241
gave them permission to clear the land. Upon clearing the land, they were fined by the
Environmental Protection Agency, as the trees were protected under the Nature
Conservation Act.10 The matter went before the Queensland Planning and
Environment Court, which made very detailed and onerous orders requiring the
Doyles to replant vegetation according to very stringent requirements.11
In his determination, Judge Robin QC made the following comment, which is worthy
of full repetition:
in fairness to the respondents the Court records information from [their solicitor] that
they are a young couple, naïve in respect of matters dealt with by the Nature
Conservation Act who purchased the property described with a view to establishing
there a home for themselves and also certain facilities to permit them to pursue an
interest in trotting.
They inquired of the Local Authority when they were interested in purchasing whether
there was on the land any protected vegetation on more than one occasion and were
informed in the negative but, as I understand it, with an intimation that they ought to
conduct further searches. [The solicitors] when brought into the matter, after his clients,
as they admit, had cleared some five hectares in about March 2007 was successful after
a couple of hours effort in discovering relevant mapping which revealed on lot 12 a
"swamp tea tree" community.12
This demonstrates the complexity of the Queensland approach, as even the solicitors
engaged by the Doyles took several hours to find the relevant restriction in place over
the land. As there is no central database or register through which obligations and
restrictions can be found, it is necessary to consult a myriad of Acts, regulations and
plans.
In contrast, the SLIP infrastructure brought into effect in Western Australia should
eventually prevent problems such as this from arising. Once all government
10
11
12
Wall v Doyle [2008] QPEC 23. This case was also the subject of media attention in 2009:
Channel Nine, ‘Treelopping Couple’, A Current Affair, 7 July 2009 <
http://video.ninemsn.com.au/video.aspx?mkt=en-AU&brand=ninemsn&vid=77628dd6-b98d4a44-9d60-209055f91de1#::77628dd6-b98d-4a44-9d60-209055f91de1> at 13 August 2009.
Wall v Doyle [2008] QPEC 23.
Wall v Doyle [2008] QPEC 23, 8.
242
departments make their information available, all obligations and restrictions on land
use will be ascertainable through an Interest Enquiry search. As a result, a single
search should alert the landholder or prospective purchaser to all relevant information
on obligations and restrictions on title and use. There is a clear benefit to the Western
Australian approach, as it makes it much easier for landholders or prospective
purchasers to discover obligations and restrictions on title and use.
The current problem with the Western Australian approach is that it is not yet
finalised, and at this point in time the Interest Enquiry search does not provide
information on all obligations and restrictions. As a result, it is necessary to undertake
a title search, an Interest Enquiry search, and then make further enquiries with regard
to obligations and restrictions not covered by these searches. To assist with this
process, the Interest Enquiry will also give searchers a list of information not covered
through Interest Enquiry, which at least provides a landholder or prospective
purchaser with some parameters in terms of enquiries to be made.
It is also easier for landholders and prospective purchasers to obtain land information
in New Zealand than in Queensland. This is due to the provision of detailed Land
Information Memorandums (“LIMs”), which appear to cover a much broader range of
obligations and restrictions than property searches in Queensland. It appears that a
landholder or prospective purchaser in New Zealand can get almost all relevant
information from a land title search and a LIM. In the case of information not
available through these searches, it is necessary to consult the relevant legislation and
plans. A sample LIM is annexed to this thesis as Appendix G, and it shows a
reference to the district plan. This effectively links these two sources together, by
directing the purchaser to make further queries.
Furthermore, having to consult primary materials is not nearly as onerous as the
process in Queensland, as there are significantly less sources to consult in New
Zealand, due to integrated legislation. Therefore although it may be necessary to go
beyond the standard searches, this process is certainly simpler than in Queensland.
243
In terms of ease of ascertaining information concerning obligations and restrictions on
title and use, Western Australia and New Zealand both provide good models. An
Interest Enquiry search and a LIM provide a similar breadth of information in a single
document, or through a single search, making it quite easy for a landholder or
prospective purchaser to find any obligations and restrictions on title and use affecting
a parcel of land. The only key difference is that in Western Australia information is
gathered from a number of different government entities, whereas in New Zealand all
the information appears to be in the control of the district council. This may be due to
fundamentally different structures of government, and is not an important distinction.
Additionally, it may also be necessary in New Zealand to consult the primary
materials to ascertain all obligations restrictions on use, but this process is much
easier than in Queensland due to the substantially smaller number of Acts and
regulations affecting land use, as well as the notation on the LIM directing the
searcher to the district plan. In Western Australia this will not be necessary once all
agencies provide their data through SLIP.
Adoption of a model based on either the Western Australian or New Zealand
approach would assist with effective management of obligations and restrictions on
title and use. Both models make it easy for landholders and prospective purchasers to
ascertain what obligations and restrictions affect title and use. The Western Australian
approach is arguably more appropriate to Australian conditions, as it was designed to
operate in a jurisdiction where obligations and restrictions derive from a number of
different Acts, and are managed by several different government entities. As this is
the case in most Australian jurisdictions, it could be adapted to suit other states. As
noted above, large scale legislative reform, as occurred in New Zealand, may not be
feasible in Australia states.
2.4.
Responsibility for the accuracy of information concerning obligations and
restrictions on title and use
Chapter Three noted that it is important that landholders and prospective purchasers
are able to rely on the information that they access. Therefore it was necessary to
244
determine which government agency has responsibility for the accuracy of the
information provided.
In all jurisdictions surveyed, responsibility for information generally lies with the
government entity responsible for administering the legislation creating the obligation
or restriction. When the Western Australian government reviewed their approach to
management of obligations and restrictions, which resulted in the development of
SLIP, they decided that this approach was preferable. They noted that agencies have
more detailed information concerning their own obligations and restrictions, and are
therefore in a better position to control the data. Attributing responsibility to the
administering agency is most likely a sound approach, and should be adopted in an
effective system for the management of obligations and restrictions on land title and
use. This section will compare the approaches used in the three jurisdictions surveyed,
to determine how this can best be achieved.
In Queensland, responsibility for accuracy of information generally rests with the
government department responsible for administering the obligation or restriction.
The Department of Environment and Resource Management (“DERM”) are
responsible for administering the land title register, and are also responsible for the
accuracy of registered interests.
In contrast, DERM are not responsible for information merely recorded on title.
Where information is recorded ‘below the line’ on title, it is there solely for
informational purposes, and is not conferred with any benefits of registration.
Therefore, its enforceability falls to be determined by the general law, and the agency
in charge is responsible for any inaccuracies. The Land Title Practice Manual makes
this point explicit, and states that ‘enquiries relating to an administrative advice
should be directed to the relevant authority or department administering the
legislation or issuing the notice. The registry will not provide any further detail other
than that disclosed on the notice’.13 As shown on the title search annexed to this thesis
as Appendix A, very little information is disclosed in an administrative advice.
Therefore, it is sensible that the Land Registry are not responsible for the data. The
13
Queensland Department of Environment and Resource Management, Land Title Practice
Manual (2009) ¶ 52-0000.
245
searcher must contact the agency directly for full information, and it is logical that the
agency bears responsibility. One observation that may be made about the Queensland
title search annexed at Appendix A is that the physical distinction between registered
and unregistered interests is not made clear. It may be useful to amend the appearance
of title searches to ensure that this distinction is clarified.
Similarly the accuracy of information on external registers is the responsibility of the
administering agency.
A similar approach has been adopted in Western Australia. Information available
through an Interest Enquiry search remains within the control of the custodian. An
Interest Enquiry search merely alerts the searcher that there is an obligation or
restriction present, and the searcher then orders a report which is compiled by the
relevant agency. Therefore, it is clearly the custodian, and not Landgate, who is
responsible for the information provided. The technological developments behind
SLIP make this possible, as the data comes directly from the agency. This is similar to
the Queensland approach, as an administrative advice will merely alert the purchaser
that an obligation or restriction exists, and they must then contact the agency directly.
Both approaches achieve a similar purpose, but through different methods.
However, there is at present potentially greater scope for liability on the part of data
custodians in Western Australia. This is because many agencies have had to change
their practices to allow data to be accessible by SLIP. If they are putting data on a
database for access by SLIP, and using different data within the agency, there is
potential for inaccuracy. It would be safer for SLIP to access data used by agencies on
a day-to-day basis. Ideally the SLIP technology will develop to a point where this is
feasible.
In New Zealand, the main mechanism for providing information on land use is via a
LIM. The responsibility for the accuracy of these documents rests with the issuing
district council. In contrast to Queensland and Western Australia, the district council
is in possession and control of all information in a LIM. Therefore, it is quite sensible
that the district council is the responsible authority.
246
There are sound reasons for making each government entity responsible for the
accuracy of their own information, even where it is collated on a central register, or
through a central search. This is primarily because the administering agency is in the
best position to know whether its own information is accurate. Additionally, both a
land title register search in Queensland and an Interest Enquiry search in Western
Australia do not provide any substantive information on the obligation or restriction,
they merely alert the searcher that the obligation or restriction exists. Thus it would be
inappropriate to impose liability on the entity administering the central register or
search, as they do not possess detailed information about the obligation or restriction,
and are merely passing on information provided by another agency.
Another reason for attributing responsibility to the administering agency rather than
the Registrar of Titles is that Registrars may be wary of placing additional
information on title, and liability may be one of the reasons for this. By ensuring that
liability rests with the administering agency, an approach which increases the range of
restrictions and obligations found on title is likely to gain greater support with
Registrars of Title.
Furthermore, attributing responsibility to the administering authority may lead to
improved data. The threat of liability may be an incentive for government
departments to ensure that the information they are providing is accurate. This threat
has been negated somewhat in Western Australia through the use of disclaimers.
These disclaimers attempt to absolve from liability both the central authority
administering Interest Enquiry searches, as well as the authorities responsible for the
data. Chapter Eight will discuss the use of disclaimers in further detail, and analyse
whether they are appropriate to use in an effective system for the management of
obligations and restrictions on land title and use. However, it is relevant to note that if
the disclaimers were not used, or if they were was overturned by a court, it is likely
that the agency responsible for the data would be the liable party.
In summary, all jurisdictions surveyed support an approach whereby responsibility for
the accuracy of information is attributed to the agency charged with administering the
247
legislation, rather than with the agency responsible for operating the central register or
database. Such an approach appears to be a necessary component for an effective
system.
The only problem with this approach exists where agencies attempt to disclaim
responsibility for information provided. This will be discussed below.
2.5.
Guarantees as to the accuracy of information concerning title, and
availability of compensation where information is incorrect
Because the Torrens system is underpinned by a number of principles, including the
insurance principle, it was necessary to examine whether the jurisdictions have any
mechanisms in place through which landholders can obtain compensation.
In all jurisdictions instruments registered on title to land are protected by the state
guarantee. Therefore carbon rights in all jurisdictions, as well as sugar easements and
environmental statutory covenants in Queensland, are guaranteed by the State. This
means that a small number of obligations and restrictions on use are guaranteed, and
compensation is available for any loss suffered. One of the major differences between
the subject jurisdictions though is their approach to liability for other information.
In Queensland and Western Australia, the general approach is for governments to
attempt to absolve themselves of any liability for other information provided. In
Queensland, the Land Title Act specifically states that administrative advices are not
subject to the state guarantee of title.14 The only instance where compensation for
incorrect information concerning obligations and restrictions on use is available arises
with regard to planning certificates in Queensland. Where information in a planning
certificate is incorrect, the local government is liable to pay compensation.15 This is
an entitlement specifically granted under statute, and most statutes creating
obligations and restrictions on use do not contain similar provisions.
In Western Australia the government relies heavily upon disclaimers to negate
liability for information provided via an Interest Enquiry. Searchers are alerted to
14
15
Land Title Act 1994 (Qld) s 189(1)(l).
Sustainable Planning Act 2009 (Qld) s 707.
248
disclaimers on both the Landgate website when they initiate an Interest Enquiry, as
well as in each report provided by government agencies. The intention is that
information given in an Interest Enquiry is merely there for informational purposes,
and is not to be relied upon.
In contrast, the New Zealand government have recognised that information provided
via a LIM is generally sought by a landholder or prospective purchaser who intends to
rely on the information therein for serious purposes. To give effect to this, the Local
Government Official Information and Meetings Act 1987 (NZ) specifically provides
that a LIM is sufficient evidence of the correctness of the information included
within.16
This is a more appropriate approach to take, as it is likely that information on land use
controls will generally be sought for serious purposes. A prospective purchaser may
seek this information when deciding whether to purchase a property, and a landholder
may seek information prior to commencing development or land clearing. As a result,
it is important that information sources are accurate, as the consequences are
potentially serious. Indeed if information is disclaimed, this seems to defeat the
purpose of making it available.
Furthermore, even though there are no express provisions for compensation in
Queensland and Western Australia, and in some cases information is even disclaimed,
liability may still arise under common law misrepresentation. This will be discussed
in detail in Chapter Eight, but it is relevant to note that the serious nature of
information may lead to liability, even where not expressly provided by statute, or
even where it is disclaimed.
An effective system for the management of obligations and restrictions on title and
use is one which can be relied upon by prospective purchasers and landholders.
Therefore, the approach adopted in New Zealand appears to be the best model, as it
ensures that district councils are liable for inaccurate information. Although
Australian governments might fear an increase in litigation if liability is statutorily
16
Local Government Official Information and Meetings Act 1987 (NZ) s 44A(5).
249
imposed, to date there have only been two reported cases in New Zealand relating to
LIMs. This is potentially because the threat of liability encourages governments to
take greater care in providing data, thus fewer errors are made. Furthermore, a
guaranteed statutory right to compensation where errors result in loss may remove the
need for lengthy and expensive litigation. For these reasons, it may be appropriate to
adopt a similar legislative provision in Australia.
3.
What features of the case study jurisdictions will contribute to effective
management of obligations and restrictions on land title and use?
The above section compared the various approaches of the case study jurisdictions,
and identified some features which are desirable in a system for effective management
of obligations and restrictions on land title and use. This section will make some
preliminary recommendations for such a system.
Although the New Zealand approach has proven very successful, it is unlikely that
this type of large-scale legislative reform is possible in Australian jurisdictions.
Therefore, it is necessary to make any recommendations on the basis that natural
resource management is likely to continue to occur on a fragmented basis, through
various Acts, regulations and plans. The intention of this thesis is therefore to
recommend reform within this framework, to provide for more effective and
integrated management of information concerning these fragmented obligations and
restrictions.
Both the Western Australian and New Zealand case studies show that development of
an effective system for the management of obligations and restrictions on title and use
is dependent upon a specific and coordinated program of reform. It is necessary to
undertake a detailed and comprehensive review of the system for the management of
obligations and restrictions to prevent problems from arising, rather than reacting to
problems on a case-by-case basis.
The Western Australian approach provides a very good model, as all information will
eventually be available via a title search and an Interest Enquiry search. Although this
information is sourced from a number of different agencies rather than collated in one
250
place, it appears that this method supports more accurate and up-to-date information.
Furthermore, although it derogates from the mirror principle, a note on title would
alert searchers to the existence of SLIP, thus solving any information deficit. A spatial
database also may be more appropriate than the land title register for natural resource
management, as the land title register was developed before environmental protection
became a pressing governmental concern. Therefore it was not designed to manage
this volume and variety of obligations and restrictions.
The Queensland approach does have its merits as the government has broadened the
scope of the land title register to incorporate a number of obligations and restrictions
on use. The problem with this approach is that it has not occurred on a uniform basis,
and has generally only allowed for registration or recording of obligations and
restrictions affecting single parcels of land, rather than blanket restrictions which
affect multiple parcels of land.
A suggested approach would be a combination of both the Western Australian and
Queensland approaches. A spatial map representing obligations and restrictions
affecting multiple lots is a good model, as it is more cost effective and easier to
update. If such a database existed in Queensland, a case like Wall v Doyle17 might not
have arisen, as they could have seen the restriction represented visually.
However, a spatial database should also be linked to the land title register, and any
obligations or restrictions which affect parcels on an individual basis should be visible
on a title search. This is because such obligations and restrictions are generally not
imposed by legislation, but rather by an agreement or a ministerial decision. Therefore
they are fundamentally different in nature to obligations and restrictions affecting a
number of parcels.
It is also relevant to note that, from the Queensland case study, it is generally positive
obligations which affect individual properties (eg. Replanting orders, heritage register
entries which require properties to be maintained), and negative restrictions which
affect multiple parcels of land (eg. Tree clearing laws, planning controls). This is
17
[2008] QPEC 23.
251
another rationale for requiring interests affecting individual parcels of land to be
registered or recorded on title. A positive obligation requires the landholder to
actively take steps to comply with the law, agreement, or order. In contrast, a
restriction may be complied with merely by doing nothing. Arguably positive
obligations therefore have more serious consequences for security of landholding, and
require a higher level of compliance. Thus they should be recorded on title.
To ensure that all relevant information is recorded, it is necessary to consider at the
outset what information should be recorded on title, and make records accordingly.
The reactive approach in Queensland could indeed lead to more confusion, as some
information is recorded on title, but not all. A detailed program of reform is needed to
ensure that a uniform method is applied.
All jurisdictions surveyed generally leave data in the control of the administering
agency. This is likely to be a good model, as individual agencies have superior
knowledge concerning their own data, and are in a better position to update any
information sources. Furthermore, the threat of liability is a good incentive for
agencies to ensure information is accurate and up to date.
In terms of liability, the New Zealand approach effectively guarantees that
information given in a LIM is correct. This is a sound approach, as it is largely
pointless to provide information on land use which cannot be relied upon by
landholders and prospective purchasers. Although it may be necessary to provide
disclaimers in Western Australia at present, as not all information is available yet, the
usefulness of the system will be undermined if all information remains disclaimed.
Furthermore, the existing system need only have a disclaimer as to its completeness,
not to its accuracy. Agencies that have already made data available should ensure that
the data provided is correct. The disclaimers should only alert searchers that not all
information affecting land is available through a search.
For a system to be effective, it may be necessary to enact legislation similar to that
used in New Zealand, stating that a search of the title register, and the spatial
database, is evidence as to the correctness of the material therein. It is unlikely this
252
will lead to increased litigation, and may indeed support greater accountability for
data.
In summary, the following preliminary recommendations are made:
 All Australian jurisdictions should embark on a detailed program of reform,
rather than taking reactive measures when problems arise. The Queensland
case study demonstrated that imposing obligations and restrictions on land title
and use on an ad hoc basis has led to a confusing and complex system. It is
unlikely that there are any significant differences amongst the Australian states
in this respect.18 A coordinated program of reform is preferable to the
continuation of ad hoc measures;
 The land title register should be expanded to provide for all obligations and
restrictions on land use which affect individual parcels of land. This is
necessary because these obligations and restrictions are usually imposed by
agreement or ministerial decision, and cannot be found through consulting
legislation, regulations, or plans;
 A spatial database should be developed to represent obligations and
restrictions which affect multiple parcels of land. This is because research
shows that these obligations and restrictions are well suited to this type of
technology as opposed to a parcel-based register. It is easier and more costeffective to make a single spatially-represented entry which covers multiple
parcels of land, as opposed to making a notation on every individual title. The
model used in WA is a good model to use;
 The system used should leave information in control of the administering
agency, and attribute liability to this agency; and
 Information obtained from a title search and a spatial database search should
be legislatively guaranteed. This will be discussed in more detail in Chapter
Eight, but it is relevant to note here that development of a new system for the
management of obligations and restrictions on title and use would be defeated
unless users are able to rely upon the data provided.
18
Brendan Edgeworth, ‘Planning law v property law: Overriding statutes and the Torrens system
after Hillpalm v Heaven's Door and Kogarah v Golden Paradise’ (2008) 25 Environmental and
Planning Law Journal 82, 83.
253
The feasibility of these recommendations will be considered, and any amendments
made, in Chapter Eight.
4.
Conclusion
This chapter compared and analysed the results of the case studies, and identified the
features of these jurisdictions which will most effectively contribute to the
management of obligations and restrictions on land title and use. On this basis,
preliminary recommendations were made. It is argued that these recommendations
could be used to provide for integrated management of information concerning
obligations and restrictions on land title and use in Australia.
The following chapter will canvass the potential legal issues associated with
implementing these recommendations, and note strategies that may be adopted to
prevent these issues from arising. The following chapter will also make
recommendations for reform, and suggest legislative amendments incorporating these
recommendations.
254
Chapter Eight
Legal issues associated with integrated management of obligations
and restrictions on land title and use
1.
Introduction
Chapter Seven identified the features of the case study jurisdictions which are likely to
contribute to effective management of information concerning obligations and restrictions on
title and use. Based upon this, Chapter Seven made preliminary recommendations for a new
system to be developed in Australian jurisdictions. These recommendations were:
 A detailed program of reform must take place in each jurisdiction, rather than a series
of reactive measures designed to fix existing problems;
 Expansion of the land title register to provide for all obligations and restrictions on
land use which affect individual parcels of land;
 Development of a spatial database to represent obligations and restrictions which
affect multiple parcels of land;
 Use of a system which leaves information in control of the administering agency, and
attributes liability to this agency; and
 A legislative guarantee of accuracy for all information obtained from a title search
and a spatial database search.
The purpose of this chapter is to discuss the potential legal problems that could arise from the
recommendations made in Chapter Seven, as well as any barriers to implementation of the
recommendations. The matters to be considered are:
 Indefeasibility and issues with placing obligations and restrictions on title;
 The state guarantee of title and compensation for loss;
 Statutory and common law liability for incorrect information; and
 The effect of in rem versus in personam obligations and restrictions.
This chapter will then devise a detailed set of final recommendations taking these issues and
barriers into account.
255
2.
Indefeasibility and issues with placing obligations and restrictions on title
Chapter Seven made a distinction between two different types of obligations and restrictions:

Those which affect individual parcels of land on a case-by-case basis; and

Those which affect multiple parcels of land through imposition of a blanket
restriction.
In recognition of this distinction, Chapter Seven suggested that any obligations or restrictions
that affect individual parcels of land should be noted on a title search. This is because these
obligations and restrictions are often the result of agreements or ministerial decisions, and
cannot be found in primary legal materials. It also suggested that obligations and restrictions
that affect multiple parcels of land should be represented on a spatial database. This
recommendation was based upon the Western Australian experience, which suggests that it is
less costly and more efficient to record these obligations and restrictions in this manner.
Chapter Seven also noted that many agreements and ministerial decisions create positive
obligations rather than negative restrictions. It is important that these are notified to a
landholder or prospective purchaser, as active steps are needed to ensure compliance. This is
another possible rationale for notifying these instruments on title.
There are several different methods by which information may be made available on a title
search:

Registering obligations and restrictions on title, similarly to the covenants and profits
á prendre used in Queensland; or

Recording obligations and restrictions on title without the benefits of registration.
Within this second category, information may be recorded on title for one of three purposes:

Purely for informational purposes;

To grant priority; or

Recording as a precondition to effect.
The alternative approach to recording or registering information on title is notification on a
completely separate register or database. Although this may derogate from the mirror
256
principle, measures may be taken to ensure that this database operates in conjunction with the
land title register, thus lessening the problem.
This section will discuss each of these approaches in turn, specifically addressing the positive
and negative features of each.
2.1.
Registration on title
If obligations and restrictions on land use are registered on title, they will receive the benefits
of registration. The main benefit of registration is indefeasibility. The principle of
indefeasibility was discussed in Chapter Two, where it was noted that indefeasibility is the
key feature of the Torrens system. Indefeasibility essentially means that an interest can only
be affected by subsequent registered interests, and deprivation of an interest may allow the
landholder to obtain compensation (compensation will be discussed below at 3). The
principle of indefeasibility is given effect in all Australian jurisdictions through their various
versions of the paramountcy provision.1
There are a number of benefits associated with registering obligations and restrictions on use
over land title. These benefits are demonstrated by the Queensland case study, which allows
for several obligations and restrictions on land use to be registered over title to land. One
example is profits á prendre that are registrable under the Forestry Act 1959 (Qld).2 The
explanatory notes to the amending Act outline the government’s rationale for registering
these instruments, which is:
to ensure that the contractual rights are recognised and capable of being ascertained by any
potential buyer, the contract may be registered as a profit á prendre. Registration will allow the
principles of indefeasibility under the Land Title Act 1994 to apply.
There is of course no obligation to register the contract as a profit á prendre under the Land
Title Act 1994. In fact, a contract may be entered into by the parties outside of these
provision[s], however, the contract would not have the benefit of the government backed
indefeasibility of title obtained by registration under that Act.3
1
2
3
Land Title Act 1994 (Qld) s 184; Real Property Act 1900 (NSW) s 42; Transfer of Land Act 1958 (Vic) s
42; Real Property Act 1886 (SA) s 69; Transfer of Land Act 1893 (WA) s 68; Land Titles Act 1980 (Tas)
s 40; Land Title Act 2000 (NT) s 188.
Forestry Act 1959 (Qld) s 61J.
Explanatory notes, Forestry Act and Land Title Amendment Bill 2001 (Qld) 3-4.
257
Thus the purpose of registration is this instance is twofold – first, to alert potential purchasers
to the existence of an agreement, and second, to confer upon the contract the benefits of
registration.
Furthermore, it has been recognised in Queensland that the registration of obligations and
restrictions on use may offer environmental benefits. In Queensland, covenants may be
registered on title in a number of circumstances (discussed fully in Chapter 2), and it is noted
that covenants are ‘binding on subsequent landholders, ensuring that land and other important
natural resources are not diminished in the future’.4 Thus registration may provide the added
benefit of providing information to prospective purchasers to ensure that environmental
values are retained through compliance.
The Western Australian government also recognised that extending the scope of the land title
register can indirectly provide environmental benefits. In the second reading speech to the
Bill creating carbon covenants, it was noted that establishing such a system for trading carbon
rights could provide significant environmental benefits. However, the success of such a
system was dependent upon reduction of commercial and legal risks associated with these
covenants.5 To achieve this, the government decided to introduce registrable covenants, and
stated that the Bill would ‘provide security for the owner of the carbon right in land by
enabling a carbon right to be registered on the land title’.6
Therefore, there are both direct and indirect benefits associated with registering obligations
and restrictions on land use on the land title register.
There is scope for the land title register to be expanded further to include additional and new
obligations and restrictions. The Queensland Registrar of Titles has expressed the view that
he is willing to consider the creation of new registrable instruments if a government agency
makes a compelling case for the creation of such an instrument.7
4
5
6
7
Queensland Government, ‘Facts: Statutory Covenants’ (2007) Department of Natural Resources and
Water < http://www.nrw.qld.gov.au/factsheets/pdf/land/l98.pdf> at 30 July 2009.
Western Australia, Parliamentary Debates, Legislative Assembly, 22 May 2002, 10960 (Francis Logan).
Ibid 10961.
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and Resource
Management (Interview, 3 August 2009).
258
These benefits though are to be balanced against the negative issues associated with
registration of these interests on title. First, there is the risk that the State guarantee of title
will be extended too far. This was discussed in the Standing Committee report undertaken in
WA, where it was noted that placing obligations and restrictions on title was not desirable, as
‘it would not be feasible to extend this guarantee to all items and this may have the effect of
eroding the integrity and indefeasibility of the certificate of title’.8
Additionally, government departments may not want the guarantee to extend to cover these
obligations and restrictions, and may instead want them recorded to merely create a ‘flag’ for
persons searching the register. In such cases recording instruments as administrative advices
or notifications may be more appropriate than registering them.9
It may also be the case that the land title register is neither the most appropriate, nor the most
effective place to record information concerning obligations and restrictions on land use. As
discussed above in Chapter Five, the Western Australian Registrar of Titles prefers for
information on land use to be managed through SLIP rather than the title register, for two
reasons – first, the technology is better equipped to demonstrate obligations and restrictions
which affect multiple blocks of land, and second, it also prevents the register from becoming
‘cluttered’.10
With regard to the first point raised by the Western Australian Registrar of Titles, it is unclear
to what extent a spatial database is more effective than a register at recording blanket
restrictions due to the early stage of the SLIP project. At present in Queensland the land title
register is only used in the case of agreements which affect single parcels of land, thus the
Queensland approach offers little guidance as to whether the register can be effectively used
for the recording of blanket restrictions which affect a number of parcels of land. As the
Western Australian approach is still in its infancy, more information may be needed based
upon the continued operation of SLIP.
8
9
10
Western Australian Government, Response to the Report on the impact of State Government actions and
processes on the use and enjoyment of freehold and leasehold land in Western Australia (2004) pp 2930.
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and Resource
Management (Interview, 3 August 2009).
Interview with Bruce Roberts, Registrar of Titles, Western Australia (Perth, 7 May 2009).
259
SLIP also aims to prevent the register from becoming ‘cluttered’. This problem of ‘cluttering’
the register was addressed by the New South Wales Law Reform Commission, which
considered whether statutory interests should be noted on title, and concluded that:
the Commission is of the view that these interests should not, in general, be required to be
recorded on the Register, because many of them are neither legal nor equitable interests in land,
and they would clutter and confuse the Register.11
This built upon the stance taken in the earlier Issues Paper, which considered whether
‘interests and proposals of government departments and authorities which, whilst not
amounting to proprietary interests in land, may affect the value, use or enjoyment of land’
should be recorded and subject to the state guarantee. The Issues Paper concluded that:
some commentators argue that these interests should be recorded in the register and
compensation paid if loss occurs because they exist but are not recorded. However, the more
usual view is that interests of this type are not appropriate for recording since they amount to
neither legal nor equitable interests and would clutter the register. It is accepted conveyancing
practice that buyers and sellers of land should make numerous enquiries (apart from title) to
ascertain the existence of statutory interests affecting the subject property. Aside from the
argument of ‘completeness of the register’, there is little reason why this practice should change
and the State be made liable if this information is not recorded on title but available from other
sources.12
Thus whilst the Law Reform Commission noted that the existence of these overriding statutes
derogated from the ‘completeness’ aspect of the register, they did not see fit to record such
statutory interests on the title to land. To some extent the Commission relied on the fact that
standard conveyancing practice dictated that a number of additional inquiries must be made
upon the purchase of property. Their issue with recording was that the State would be liable
where information was omitted from the register. However, as the Queensland case study
shows, there are steps that could be taken to exempt the State from liability, and place it upon
the agency responsible for administration of the obligation or restriction.
Also, it is relevant to note that these comments were made 20 years ago, and perhaps a
different conclusion would be reached now given the exponential increase in statutory
11
12
New South Wales Law Reform Commission, Torrens Title: Compensation for Loss, Report No 76
(1996) [4.21].
New South Wales Law Reform Commission, Torrens Title: Compensation for Loss, Discussion Paper
No 19 (1989) [45].
260
obligations and restrictions since then. This increase in obligations and restrictions has
rendered present conveyancing practice inadequate. As the Queensland case study shows,
only a small number of possible obligations and restrictions are searched for in a standard
conveyance.
The Queensland Registrar of Titles has also noted this problem of ‘cluttering’ the register, but
views it mainly as an issue in terms of currency of material, as agencies may place material
on the register, and then fail to update it. Thus his concern is not so much having extra
information on the register, but having inaccurate information on it.13 This could perhaps be
addressed by a statutory obligation to update material.
In summary, the benefits of registering obligations and restrictions on title are certainty, the
applicability of the state guarantee, as well as improved environmental management. In
contrast, the potential problems are extending the state guarantee too far, and cluttering the
register. Alternative options to registering obligations and restrictions on title include
recording them on title, or on a spatial database. It is relevant to consider whether either of
these alternatives would alleviate these potential problems.
2.2.
Recording on title
Another option to ensure that landholders and prospective purchasers are advised of
obligations and restrictions on land title and use is to record, rather than register, information
on title. This essentially means that information is placed on title, and is therefore visible
through a title search, but does not attract the benefits of registration.
There are several different approaches to recording information on title, each with different
legal consequences. These approaches are:

Recording purely for informational purposes;

Recording to grant priority; and

Recording as a precondition to effect.
Each of these approaches will be discussed in turn.
13
Interview with Max Locke, Registrar of Titles, Queensland Department of Environment and Resource
Management (Interview, 3 August 2009).
261
2.2.1. Information recorded on title for informational purposes
Information may be recorded on title purely to alert the searcher to the existence of an
obligation or restriction.
This approach is used in Queensland, through the recording of administrative advices on title.
Administrative advices essentially act as a flag alerting the searcher to consult the relevant
administering agency. According to the Land Title Practice Manual, the purpose of
administrative advices is to ‘advise interested parties that a matter authorised under the
relevant Act exists. These notices are entered as administrative advices on the relevant title
for the lot the subject of the notice’.14 Where an administrative advice is recorded, there will
merely be a very brief notation made on title to alert the searcher of the existence of the
obligation or restriction. The Land Title Practice Manual also states that ‘enquiries relating to
an administrative advice should be directed to the relevant authority or department
administering the legislation or issuing the notice. The registry will not provide any further
detail other than that disclosed on the notice’.15 Annexed to this chapter at Appendix H is an
excerpt from the Land Title Practice Manual which provides a list of codes used to record
administrative advices. This demonstrates that very little information about these obligations
and restrictions is recorded on title.
As noted in Chapter Four, the Queensland Registrar of Titles describes registered interests as
being ‘above the line’ on a title search, in contrast to administrative advices which are
recorded ‘below the line’, thus not attracting the benefits of registration.16 This division is
reflected physically on a title search, which differentiates between the two types of entries. A
title search is annexed to this thesis as Appendix A, and shows the two separate headings
labelled ‘easements, encumbrances and interests’ and ‘administrative advices’. It is arguable
that the distinction between these two types of instruments is not made sufficiently clear. The
‘line’ referred to by the Registrar of Titles does not physically appear on title, and it is
possible that searchers may not appreciate the legal consequences relating to each type of
instrument. In contrast, the Western Australian title search (annexed as Appendix F) has a
14
15
16
Queensland Department of Environment and Resource Management, Land Title Practice Manual (2009)
¶ 52-0000.
Ibid.
Interview with Max Locke, Registrar of Titles, Queensland Department of Natural Resources (Interview,
30 July 2008).
262
line following the registered interests, accompanied by the statement ‘end of certificate of
title’. Following this is a heading ‘statements’, and a disclaimer noting that the information
should not be relied upon as a substitute for inspection of the land and relevant documents.
Where information is recorded on title purely for informational purposes, it is suggested that
an approach similar to the Western Australian approach be used, as it clearly states that there
are differences in effect between the two varieties of instruments.
Chapter Four also showed that administrative advices in Queensland are generally only used
in the case of obligations and restrictions which affect parcels of land on an individual basis.
There are no examples of administrative advices being used in instances where legislation
creates obligations or restrictions affecting a large area of land, encompassing multiple
parcels of land. As there are no examples of this, it is difficult to comment upon whether the
register is the appropriate forum for registration of these interests.
In summary, it does appear that recording obligations and restrictions affecting individual
parcels on title as administrative advices is a sound method. It solves information deficits by
ensuring that the existence of the instrument is flagged on a title search, but it does not extend
the scope of indefeasibility unnecessarily.
For these notifications to succeed though, it is necessary that they are used on a uniform basis
to ensure completeness. Bell and Christensen have suggested that this current approach of
only recording selected administrative advices on title ‘could arguably exacerbate the
problem by leading owners to believe that their title contains a complete and accurate picture
of restrictions affecting their land’.17 Thus to ensure security of landholding, and facilitate
compliance with environmental laws, a uniform approach must be adopted.
One possible barrier to extending the scope of instruments registrable as administrative
advices is that the Queensland Registrar of Titles can only record them where legislation
specifically provides for it.18 As a result, legislative reform may be necessary to ensure that
17
18
Justine Bell and Sharon Christensen, ‘Use of property rights registers for sustainability – A Queensland
case study’ (2009) 17(1) Australian Property Law Journal 86, 100.
Land Title Act 1994 (Qld) s 29(1); Interview with Max Locke, Registrar of Titles, Queensland
Department of Environment and Resource Management (Interview, 3 August 2009).
263
all relevant obligations and restrictions on use are obliged by law to be notified to the
Registrar of Titles.
Another possible barrier is the lack of consequences for non-compliance. Although most of
the statutes surveyed in Chapter Four specify a timeframe within which the administering
agency must notify the Registrar of Titles, they are silent as to whether there are implications
for failure to do so. This lack of consequences for administering agencies may lead to delays
or omissions in notifying information. If a person suffers loss as a result of an omission, one
possible solution would be to commence an action for breach of statutory duty. However this
would be a costly, time-consuming and uncertain process, and is not desirable. A better
solution would be to amend legislation incorporating consequences for non-compliance. One
suggested way to do this would be to state that the obligation or restriction is not effective
until recorded. This is done to some extent in other jurisdictions, and will be discussed below
at 2.2.3.
If these barriers are addressed, the Queensland approach could prove quite useful for
management of information concerning obligations and restrictions on land title and use.
Of the jurisdictions surveyed in this thesis, it is Queensland that makes the most extensive use
of recording obligations and restrictions on title. This practice of recording obligations and
restrictions on title was used in Western Australia prior to the development of SLIP, but has
been largely overtaken by the SLIP technology.19 There are other jurisdictions which record
information on title, but attach different legal consequences to the records. These methods
will be discussed in turn.
2.2.2. Recording for priority
Whilst information is recorded on title in Queensland purely for informational purposes,
other jurisdictions allow information to be recorded to confer priority.
In New Zealand, the Law Commission are currently in the process of examining whether
additional information can be recorded on title.20 The Commission noted that overriding
19
20
See Chapter Five for a full explanation.
New Zealand Law Commission, Review of the Land Transfer Act 1952, Issues Paper No 10 (2008).
264
legislation impacts upon indefeasibility of title,21 and are presently considering options for
reform. Options suggested in the Issues Paper include amending the Torrens legislation to
signal that statutory interests may affect title,22 and referring Bills affecting land to the
Legislation Advisory Committee. The latter approach would include amending the
Committee’s guidelines to ensure that registration or recording of interests is encouraged.23
Additionally, the Committee are considering whether to adopt an interest recording system,
which would include unregistered interests. Such a system would alert the searcher of the
existence of the interest, and confer priority, but would not confer ownership.24
Recording obligations and restrictions on title with priority is also used in other jurisdictions
which have not been examined as case studies in this thesis. This is quite common in the case
of restrictive covenants. As noted in Chapter Two, several jurisdictions allow for restrictive
covenants to be registered in title. For example, in New South Wales restrictive covenants
may be recorded on title.25 The relevant legislation states that such a record does not give the
instrument any greater effect than the dealing creating it.26 This makes it clear that such a
recording is not granted the status of a registered interest. However, it does state that a
recording is deemed to be an ‘interest’ for the purposes of the Real Property Act 1900 (NSW)
s 42. This is the paramountcy provision in New South Wales, and essentially grants the
interest priority. Similar provisions exist in Victoria to allow covenants to gain priority.27
Interest recording is also used in the United Kingdom. Although the United Kingdom does
not use a Torrens system as such, the systems are considered to be comparable, and English
innovations may be very useful to Torrens jurisdictions.28 The United Kingdom approach
focuses upon the rights of any third parties having interests in the land, and the enactment of
the Land Registration Act 2002 (UK) c 9 (“LRA”) clarified the position in the United
Kingdom considerably.
21
22
23
24
25
26
27
28
Ibid [9.1].
Ibid [9.44].
Ibid [9.45]-[9.48].
Ibid [6.53].
Conveyancing Act 1919 (NSW) s 88.
Conveyancing Act 1919 (NSW) s 88(3)(b).
Transfer of Land Act 1958 (Vic) s 88.
Pamela O’Connor, ‘Registration of Title in England and Australia: A Theoretical and Comparative
Analysis’ in Elizabeth Cooke (ed) Modern Studies in Property Law: Volume Two (Hart Publishing,
Oxford, 2003) 81, 82-3.
265
Third party rights in the United Kingdom may be protected via a registrable interest termed a
notice, whereby third parties can register rights over land. Prior to the enactment of the LRA,
the English Law Commission considered the rationale for having these types of rights, and
noted that ‘it is an essential feature of an effective land registration system that it should
provide not only for security of title for landowners but also for the proper protection of third
party rights over that land by means of registration’.29
A notice is defined under the LRA as ‘an entry in the register in respect of the burden of an
interest affecting a registered estate or charge’.30 Notices are generally used to record
information on third party rights, including easements, restrictive covenants, and options to
purchase.31 The LRA specifically states that ‘the fact that an interest is the subject of a notice
does not necessarily mean that the interest is valid, but does mean that the priority of the
interest, if valid, is protected’.32 As a result, registration will not cure any defects in a notice,
but where a notice is validly registered its priority is protected under the LRA.33
2.2.3. Recording as a precondition to effect
Some jurisdictions allow for information to be recorded on title, and provide that the
restriction or obligation does not operate until recording occurs.
In Victoria, the Law Reform Commission suggested that all administrative controls affecting
the use of the land should be accessible through a database called ‘Landata’, which would be
integrated with the land registration system.34
Although the completely integrated system contemplated by the Law Reform Commission
has not been realised, there have been a number of instances where information on land use
has been made available through the land title register. This information may be recorded on
title by virtue of the Transfer of Land Act 1958. Section 88(2) of this Act provides that ‘a
charge on land or any other right in the nature of a charge or an easement or any other right
over or affecting land’ acquired under a Victorian or Commonwealth Act may be notified to
29
30
31
32
33
34
Law Commission, Land Registration for the Twenty-First Century: A Consultative Document, Report No
254 (1998) [6.1].
Land Registration Act 2002 (UK) c 9, s 32(1).
Martin Dixon, Modern Land Law (Routledge-Cavendish, London, 6th ed, 2009) 83.
Land Registration Act 2002 (UK) c 9, s 32(3).
Land Registration Act 2002 (UK) c 9, s 32(3).
Law Reform Commission of Victoria, The Torrens Register Book, Report No. 12 (1987) at [19].
266
the Registrar, and recorded on title. The legislation makes it clear that recording does not cure
invalidities,35 but recording does ensure that the right binds successors in title.36
An example of an Act which uses this provision is the Conservation, Forests and Lands Act
1987 (Vic). Under this Act, the Secretary may enter into an agreement with a land owner
relating to the management, use, development, preservation or conservation of their land, or
otherwise to give effect to the objects or purposes of a relevant law, in relation to their land. 37
The Conservation, Forests and Lands Act states that such agreements are binding on a land
owner, but are only binding on a successor in title where specifically stated.38 If an agreement
is expressed to be binding on successors in title, the Secretary must as soon as practicable
after entering into the agreement apply in writing to the Registrar of Titles to have a
recording of the agreement made in the Register and on receiving that application, the
Registrar of Titles must make that recording in the Register.39 Once recorded, the land
owner's successors in title are deemed to have notice of the agreement, all rights and
liabilities under that agreement are binding on and enforceable by or against the land owner's
successors in title and run with the land.40 Therefore these agreements are not effective
against subsequent registered proprietors unless they are notified on title.
Although provisions such as this are not used on a uniform basis, this provision is potentially
a good model as it states that an agreement will not be binding on a successor in title unless
noted on title. This would address the potential problem with the Queensland approach,
which is lack of consequences for failure to record information. If legislation specifically
states that an instrument is ineffective, or fails to bind successors in title unless recorded, this
will provide an incentive for agencies to notify the Registrar in a timely manner.
35
36
37
38
39
40
Transfer of Land Act 1958 (Vic) s 88(3).
Under Transfer of Land Act 1958 (Vic) s 42 a landholder holds their land subject to encumbrances
recorded on the relevant folio of the register.
Conservation, Forests and Lands Act 1987 (Vic) s 69(1).
Conservation, Forests and Lands Act 1987 (Vic) s 71.
Conservation, Forests and Lands Act 1987 (Vic) s 72(1).
Conservation, Forests and Lands Act 1987 (Vic) s 72(2).
267
Furthermore, Victoria has a vendor mandatory disclosure regime in place, which to some
extent negates the need for all information to be available through a register or database.41 A
vendor under a contract for the sale of land is legislatively obliged to give to the purchaser
before he signs the contract a statement containing a number of matters.42 These matters are:

particulars of any mortgage;

particulars of any charge;

a description of any easement, covenant or other similar restriction affecting the land;

where a planning instrument applies - information about the planning instrument;

amount of any rates, taxes, charges or other similar outgoings affecting the land;

a list of services connected to the land; and

particulars of any current land use restriction notice given in relation to the land under
the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 due to
contamination.43
The vendor is also required to attach to the statement a copy certificate of title, and copies of
any planning permits and subdivision plans.44 Although this model does provide the
purchaser with some relevant information, it has been argued that it does so at an increased
cost to the seller.45 In contrast, recording of information on title places the cost burden on the
purchaser, who pays to search the system. Arguably this is sound, and is one benefit of
interest recording over mandatory disclosure. Furthermore, interest recording involves
information being provided by government agencies rather than by the seller. One major
problem with mandatory disclosure regimes is that sellers are reliant upon the local
authorities providing them with correct information.46 If a seller provides incorrect
information they may be liable, even if the error was made by the government agency. In
41
42
43
44
45
46
Similar regimes are in place in New South Wales (Conveyancing Act 1919 (NSW) s 52A(2)); South
Australia (Land and Business (Sale and Conveyancing) Act 1994 (SA) s 7); ACT (Civil Law (Sale of
Residential Property) Act 2003 (ACT)); Tasmania (Property Agents and Land Transactions Act 2005
(Tas) s 185(1).
Sale of Land Act 1962 (Vic) s 32(1).
Sale of Land Act 1962 (Vic) s 32(2).
Sale of Land Act 1962 (Vic) s 32(3).
Sharon Christensen, W D Duncan, Amanda Stickley, ‘Evaluating information disclosure to buyers of real
estate – useful or merely adding to the confusion and expense?’ (2007) 7 Queensland University of
Technology Law and Justice Journal 148, 171.
Ibid 173.
268
contrast, any liability under an interest recording system will attach to the government
agency.47
2.2.4. Conclusion
In summary, recording information on title is used in a number of jurisdictions, and there are
benefits to using this approach. It ensures that information is flagged on title without
guaranteeing its accuracy, and any responsibility for inaccuracy rests with the administering
agency. Recording of administrative advices however should apply to all relevant obligations
and restrictions on land use to be an effective method. The current ad-hoc approach to
recording information used in Queensland is not the most appropriate model.
Furthermore, the lack of consequences for failure to record information in Queensland may
lead to inaccurate and out-of-date material. A suggested solution is to amend legislation
creating obligations and restrictions to state that these instruments are ineffective until
recorded on title.
2.3.
Separate register or spatial database
The alternative option to registering or recording information on title is to record it on either
on a separate register, or on a spatial database. The preliminary recommendations in Chapter
Seven suggested that such an approach may be appropriate to demonstrate obligations and
restrictions which affect multiple parcels of land.
The problem with this approach is that recording information on a separate register or
database derogates from the mirror principle. To remedy this and to ensure that the existence
of this information is at least flagged on a title search, there would have to be some
mechanism effectively linking this separate register or database to title. This could be
achieved simply by placing a note on the bottom of title, referring the searcher to the external
register or database to obtain any additional information. This is similar to the approach used
in New Zealand, whereby LIMs contain a note directing the searcher to the relevant district
plan.48 Although the LIM does not disclose any details of this plan, it does solve the
information deficiency to an extent by at least alerting the searcher to the existence of other
sources which should be consulted.
47
48
Potential liability of government agencies will be addressed later in this chapter.
See Appendix G.
269
Separate registers are used in Queensland, with examples including the heritage register, and
the contaminated land register. In some cases these registers are effectively linked to the land
title register. This is done by including a provision in the relevant Act requiring the person
responsible for administering the Act to notify the Registrar of Titles of any notation on the
separate register. The Registrar of Titles is then obliged to record an administrative advice,
which will alert a searcher to the existence of this notation.
In some respects this approach is sound, as it does ensure that the existence of the obligation
or restriction is flagged in a title search. The search will not show any details of the
instrument, and the landholder will need to conduct a separate search with the relevant
agency to get this information. This is no different to other information recorded as an
administrative advice. In the case of administrative advices, the searcher needs to make
enquiries with the relevant government agency. The only distinction is that some government
agencies may maintain separate registers which can be searched, where other departments do
not have a formal process for obtaining information.
This approach is supported by the argument that agencies are better equipped to manage their
own data, thus leaving the information in their control is preferable.
This method of leaving data in control of agencies is of course used in Western Australia, and
is considered to be more effective than placing information in the control of the authority in
charge of SLIP. Western Australia essentially uses a separate register, as obligations and
restrictions are represented spatially on a cadastral map of land which operates externally to
the land title register. As discussed above, the Western Australian Registrar of Titles prefers
this approach as the technology allows for more detailed representations of obligations and
restrictions, particularly in the case of those which cover more than one parcel of land. Given
that the Western Australian model is very new, it is difficult to objectively assess exactly how
effective it is in contrast to a traditional register method.
It may well be the case though that representing blanket obligations and restrictions spatially
is more cost effective than registering or recording information on title. It is also likely to be a
more time efficient method, as a single entry covering multiple parcels may be entered, rather
270
than individual notations on every title. It was noted in the Western Australian Standing
Committee report that recording information on titles would be ‘administratively difficult and
cost prohibitive’.49 Presumably this is because information would have to be entered on each
and every title individually. In contrast, information can be entered on a spatial database in a
more timely manner, as only one entry needs to be made, although it may span over multiple
parcels of land.
Although the new technologies being utilised by SLIP have obvious benefits, there are also
some potential problems with making information available in this manner. The main
problem with this approach is that agencies may need to modify data so that it is in a form
accessible by SLIP enabler. This could potentially lead to inaccuracies, particularly if the
modified data is used purely for the purposes of SLIP, and the agencies use different sources
of data in everyday work. For a platform such as SLIP to work effectively, it is imperative
that it is designed to utilise the agency’s existing data. This will ensure that the platform is
accessing the most up-to-date and accurate data available.
In summary, there are advantages associated with having some information held externally to
the land title register, as it allows the administering agency to retain accountability for the
data. Additionally, it appears that a spatial database may also be a cost-effective alternative to
traditional titling systems, particularly in the case of obligations and restrictions which affect
multiple blocks of land.
However where any external information source is used, it is important that it is linked back
to the land title register to ensure completeness and certainty. This can be achieved by a
simple note on title directing the searcher to the external database.
2.4.
Conclusion
This section has canvassed three possible approaches to providing information on obligations
and restrictions on title and use; registration on title, recording on title, and recording on a
separate register or spatial database. Furthermore, it noted that information can be noted on
title for a variety of purposes.
49
Western Australian Government, above n 8, 526.
271
At present, none of these approaches are used in the case study jurisdictions in isolation.
There are sound reasons for this, as it is unlikely that a title register or a spatial database
alone can effectively cover all obligations and restrictions on title and use. Therefore it is
necessary to consider what combination of approaches is most effective.
Recent research has suggested that with the continuing development of spatial databases,
agencies will need to determine whether obligations and restrictions are better suited to the
Torrens register, or to a separate database.50 The authors considered several possible criteria
for determining whether information should be recorded on title. One possible approach was
recording instruments which granted property rights to a third party, whilst not recording
obligations and restrictions on user which do not have a correlative right conferred on another
person.51 This is essentially the approach currently used in Western Australia and New
Zealand, where carbon rights, which confer an interest in land on a third party, are one of the
few instruments registrable on title. However, O’Connor et al dismissed this classification, as
it excludes some obligations that run with the land, and provides no clear guidance to
searchers as to what information they can expect to find on the register.52 Instead, the authors
suggest a ‘functional approach’ whereby ‘the method should be selected which is better
suited to providing accurate, complete and current information to inquirers as cheaply as
possible’.53
If a functional approach is to be adopted, several observations may be made. In the case of
obligations and restrictions which affect multiple parcels of land, research has shown that it is
cheaper, easier, and more time efficient to represent such information spatially, rather than
making notations on every individual title.54 Therefore the functional approach would dictate
that such obligations and restrictions be represented on a spatial database rather than on title.
This would extend to obligations and restrictions such as planning controls, which affect
entire regions.
50
51
52
53
54
Pamela O’Connor, Sharon Christensen and Bill Duncan, ‘Legislating for sustainability: a framework for
managing statutory rights, obligations and restrictions affecting private land’ (2009) 34(2) Monash Law
Review (forthcoming).
Ibid.
Ibid.
Ibid.
See 2.3.
272
In contrast, where an obligation or restriction affects an individual parcel of land, there is
unlikely to be any significant difference in cost between putting information on title, or on a
spatial database. The preferred approach would then be to place information on title, as it
provides greater certainty. This is especially important where the obligation or restriction is
imposed by order, or by private agreement, rather than by a publicly available statute,
regulation or plan.
This thesis supports the functional approach, but with the caveat that obligations and
restrictions which affect a single parcel of land should be notified on title.
From the case studies undertaken in this thesis and the analysis of the different approaches,
the following recommendations are made:
 All obligations and restrictions which affect individual parcels of land should be
recorded on title to ensure that landholders and prospective purchasers are notified of
their existence. This is particularly important in the case of obligations and
restrictions which are parcel-specific, as they are generally imposed by agreement or
decision, and cannot be found by consulting legislation, regulations or plans;
 Legislation which creates, or allows for the creation of obligations and restrictions on
title or use which affect individual parcels of land as opposed to regions, and which
are intended to run with the land, should be amended to include a provision requiring
the agency to notify the State’s Registrar of Titles;
 There should also be a provision in the legislation stating that the obligation or
restriction does not take effect until it is recorded. This will ensure searchers do not
suffer loss as a result of any delays on the part of administering agencies;
 These obligations and restrictions should be recorded on title, as opposed to
registered, and should not attract the benefits of registration. The intention is merely
to notify searchers of the existence of the obligation or restriction, therefore this
method is sufficient, and will not extend the guarantee unnecessarily;
 The State’s Torrens legislation should be amended to provide for these records, and to
specifically state that indefeasibility and other benefits of registration do not apply to
these interests (if it does not already do so);
273
 A spatial database should be used to demonstrate blanket obligations and restrictions
which affect multiple parcels of land, such as planning controls, or generic restrictions
on vegetation clearing;
 This database should be established under statute; and
 Land title register searches should also include a note at the foot advising searchers to
consult this database. This effectively ensures that the register and database are
linked.
The following section will discuss whether these reforms would have any impact on the state
guarantee of title, and how this can be avoided.
3.
The state guarantee of title and compensation for loss
Presently all Australian jurisdictions allow for compensation to be paid to persons for certain
interferences with their title. However there are limitations placed on recovery, and
compensation is only available in a fairly narrow range of circumstances.
The State guarantee of title is an important aspect of the Torrens system. As discussed in
Chapter Two, Ruoff identified three key principles underpinning the Torrens system – the
mirror, curtain and insurance principles.55 For present purposes, the insurance principle is the
most relevant. This principle essentially provides that although the register is intended to act
as a ‘mirror’ of title, occasionally defects will occur, and it is therefore necessary to
compensate the landholder.56 All Australian states have implemented the insurance principle
in their Torrens legislation, by ensuring that compensation is available in specified
circumstances.57 Additionally, entitlements to compensation are available through other Acts,
mainly those relating to compulsory acquisition of land. The purpose of this section is to
survey present entitlements to compensation to determine whether the recommendations of
this thesis could lead to increased claims.
Although this thesis does not promote an increase in obligations and restrictions on land title
and use, it does suggest that more of these instruments be recorded on and linked to land title.
55
56
57
Theodore B F Ruoff, An Englishman looks at the Torrens System (Lawbook Co, Sydney, 1957) 8.
Ibid 13.
Real Property Act 1900 (NSW) ss 126-135; Transfer of Land Act 1958 (Vic) ss 109-111; Real Property
Act 1886 (SA) ss 201, 203-219; Transfer of Land Act 1893 (WA) ss 195-213; Land Titles Act 1980 (Tas)
ss 150-159; Land Titles Act 1925 (ACT) ss 143-158; Land Title Act 2000 (NT) ss 192-196
274
As a result, it is possible that there will be a greater perception that obligations and
restrictions have affected a landholder’s title. Therefore, an examination of the present
arrangements for compensation is warranted to determine whether the recommendations of
this thesis could lead to increased liability for compensation.
The reason for this analysis is that it is not feasible to extend entitlements to compensation to
cover all interferences with use. Every parcel of land in Australia is affected by some
obligation or restriction on use, thus making it impractical to provide compensation for all
interferences with rights of use. Despite this impracticality, there have been some arguments
that obligations and restrictions on use should be compensated. Professor Gray has
considered this issue in great detail, posing the question as follows:
the vital question relates, instead, to the allocation of the economic cost of environmental
protection. It remains a contingent fact of life that environmental welfare comes at a price
which must be paid either by the general community or by some subset of it. The critical
resource is almost always land. Should the individual landowner be left alone to bear the cost of
a regulatory intervention which enures to the wider benefit of the whole community? Is
uncompensated regulation a form of environmental fascism, dumping on isolated landowners
the economic burden of certain cherished public goods? In what circumstances (if any) should
landowners receive reimbursement from public funds for their uncovenanted contribution to the
general weal?58
The main point from Professor Gray’s analysis is that there must be a determination as to
whether the state or individuals should bear the monetary cost of environmental protection.
Professor Gray discusses several legislative presumptions, and notes the presumption that
where property is taken, compensation will be paid. In contrast, it is presumed that where
property rights are merely affected by regulation, compensation will not be paid.59 So the
presumption favours landholders bearing the cost of environmental protection in the case of
obligations and restrictions which only affect land use.
This thesis does not attempt to discuss the soundness of this presumption, and accepts that the
cost should be absorbed to an extent by landholders. Indeed given the vast number of
obligations and restrictions on land use, providing entitlements to compensation would open
58
59
Kevin Gray, ‘Can environmental regulation constitute a taking of property at common law?’ (2007) 24(3)
Environmental and Planning Law Journal 161, 162.
Ibid 165-6.
275
the floodgates to essentially all landholders in Australia. Thus it is important to ensure that
the recommendations for reform proposed by this thesis do not extend the scope of
entitlements to compensation unnecessarily.
This section will survey the entitlements to compensation in Queensland, and compare them
to the entitlements available in Western Australia. The purpose of this survey will be to
determine whether current legislation is sufficient to prevent claims for interference with use
rights.
It is not feasible to survey the compensation entitlements in all Australian jurisdictions within
the scope of this thesis, so Queensland and Western Australia have been chosen to examine in
depth because their systems have already been examined in detail in the case studies.
This section will also consider the entitlement to compensation under the Commonwealth
Constitution and associated case law.
3.1.
Queensland
In Queensland there is limited scope for compensation to be made available to landholders. In
most cases, compensation is only available where there is an interference with a landholder’s
title, not with their use rights. That is, where there right to possession of land is taken away,
or otherwise interfered with. This seems to accord with the approach to compensation
espoused by Professor Gray.
One of the main mechanisms for obtaining compensation for loss is under the Land Title Act
1994 (Qld) (“LTA”). Under the LTA, a landholder may only recover compensation if they
are deprived of a lot, or an interest in a lot, and only in a limited range of circumstances.60
It is unlikely that this provision would extend to cover interferences with land use for several
reasons. First, in the author’s view, it is doubtful that this provision would be activated in the
case of obligations and restrictions on land use, as they do not deprive a landholder of an
interest in a lot, but merely impact upon the way in which land may be used. Second, the
circumstances in which compensation may be awarded are limited, and include fraud,
60
Land Title Act 1994 (Qld) s 188. These circumstances are set out in detail in Chapter Two.
276
incorrect registration, tampering with the register, and mistake or omission of the Registrar.
Thus compensation is not available where loss is caused merely by the existence of an
instrument. Recording of an obligation or restriction on land use once again would not fall
within the scope of these provisions.
Section 188A of the LTA is slightly broader in scope, and provides that a landholder is also
entitled to compensation if they suffer loss or damage due to:
 the incorrect creation of an indefeasible title in the name of another person; or
 incorrect registration; or
 an error in an indefeasible title or in the freehold land register; or
 reliance on the incorrect state of the freehold land register; or
 loss, destruction or improper use of a document deposited or lodged at the land
registry or held by the land registry for safe custody; or
 omission, mistake, breach of duty, negligence or misfeasance of or by the Registrar or
a member of the staff of the land registry; or
 the exercise by the Registrar of a power in relation to an application or dealing of
which the person had no connection.61
This provision is broader in scope than s 188 as the landholder need only suffer loss or
damage; it is not necessary that they be totally deprived of an interest. However, once again
the range of circumstances in which compensation is available is limited, and it is unlikely
that landholders could claim compensation where legislation merely affects the use of their
land.
Therefore, recording of additional notifications on title will not expose the state to increased
claims for compensation, as the provisions of the LTA appear unable to extend that far. There
is consequently no fear of increased liability in this respect.
Another mechanism of obtaining compensation is provided by the Acquisition of Land Act
1967 (Qld). Under this Act, public authorities are permitted to take land, or an easement over
land, for a number of prescribed purposes.62 Once the resumption notice has been published,
61
62
Land Title Act 1994 (Qld) s 188A.
Acquisition of Land Act 1967 (Qld) s 5. The ‘prescribed purposes’ are set out in the schedule to the Act.
277
the land is vested in the Crown, and the estate and interest of persons entitled to the whole or
any part of the land is converted into a right to claim compensation.63 If only an easement is
taken, any person whose interest is injuriously affected has a right to claim compensation.64 It
is necessary to determine whether recording obligations and restrictions on title could activate
these provisions. The wording of the legislation focuses upon whether the person has an
‘estate or interest’ which is taken.
The term ‘interest’ was considered by the Queensland Court of Appeal in Sorrento Medical
Service Pty Ltd v Chief Executive, Department of Main Roads (“Sorrento”).65 In this case, the
applicant for compensation was not the owner of land, but held a licence to use the land for
car parking. The resumption did not affect the premises where the applicants carried on their
business, but it did reduce their off-street carparks from ten to five. The Court had to
determine whether this was sufficient to constitute an ‘interest’ in land.
McMurdo P considered this issue, looking at definitions in the Act, which proved unhelpful,
as well as the definition of ‘interest’ in the Acts Interpretation Act 1954 (Qld). The latter
defines ‘interest’ as a ‘legal or equitable estate in the land’, or ‘a right, power or privilege
over, or in relation to, the land or other property’.66 On this basis, McMurdo P concluded that
the car-parking right did equate to an ‘interest’, making the following comment:
this was an apparently valuable contractual right in relation to the resumed land, not only from
an obvious commercial perspective but also because the local government approval for the
conduct of the appellant’s medical practice turned on provision of sufficient off-street car
parking spaces and access to them. Giving the words in the italicised phrase in s 12(5) their
ordinary meaning, using the definition of “interest” in relation to land in s 36 Acts
Interpretation Act and construing those statutes so that ambiguities do not limit or qualify a
right to claim compensation, I am satisfied that the appellant’s apparently valuable contractual
right to use the resumed land for car parking made it “entitled to the whole or part of the
resumed land” within s 12(5).67
63
64
65
66
67
Acquisition of Land Act 1967 (Qld) s 12.
Acquisition of Land Act 1967 (Qld) s 12(5).
[2007] QCA 73.
Acts Interpretation Act 1954 (Qld) s 36.
Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] QCA 73 at [14].
278
Chesterman J agreed with McMurdo J’s finding, but noted that s 36 could potentially give
rise to claims which should not come within the definition of interest. Specifically,
Chesterman J stated:
it may be that to apply the full width of the definition of “interest” found in the Acts
Interpretation Act might, in some cases, produce claims for compensation that might properly
attract the epithet “absurd”, but the present is not of that kind. One has here a right of property
clearly identified, the limits of which are specified and which had a value. The proprietor is
identified and the existence of the licence was proved in a document available for public search.
In my opinion it is a matter of plain justice, not absurdity, that the proprietor should be
compensated when his property is destroyed, for the good of the wider public.68
It should be noted that Holmes J dissented in this case, stating that the right was not sufficient
to amount to a proprietary interest in land.69
The effect of the decision in Sorrento is that ‘interest’ has been granted a wide interpretation,
thus potentially expanding the scope of claims for compensation. The applicant in this case
did not have title to the relevant land, so the interference was arguably with their right to use
the land. This could potentially have application to other circumstances where a person’s use
rights, if not their title, is affected. However, it most likely will only apply where the right is
completely extinguished, and not merely altered or restricted. Additionally, it may be argued
that although the applicant did not have title to the land, the interference was one with
possession. As noted in Chapter One, the key distinction between interferences with title and
use appears to be whether the interference impacts on the right to possess land. Given that the
interference here extinguished the applicant’s right to possess the carparks, arguably it was an
interference with title.
Furthermore, Chesterman J specifically noted that an excessively wide interpretation of this
provision could lead to ‘absurd’ results, thus purporting to restrict its operation.
This examination shows that it is unlikely an affected landholder can claim under the Land
Title Act or the Acquisition of Land Act where there is an interference with their right to use
68
69
Ibid [63].
Ibid [25].
279
land. A right to compensation for interference with rights to use land will therefore only be
available where specifically granted by statute.
An example of this arises under the Nature Conservation Act 1992 (Qld). The Act sets out a
voluntary mechanism for designating a nature refuge over private land, but if agreement
cannot be reached, the Minister may compulsorily declare a nature refuge, if satisfied that the
area is of major interest, or is a critical habitat.70 If such a declaration is made, and the
landholder’s interest in land is injuriously affected, the landholder is entitled to be paid
reasonable compensation.71 A representative of the Department of Environment and Resource
Management noted that the Department has not yet even compulsorily declared any nature
refuges.72 As a result, there has been no litigation thus far concerning this provision, so it is
unclear to what extent compensation will be available.
Furthermore, the Nature Conservation Act is one of the few legislative regimes which allows
for positive obligations to be imposed on landholders without them having first breached a
law.73 For example, the Vegetation Management Act allows for positive obligations in the
form of replanting orders to be imposed upon landholders, although these obligations are
imposed only where a landholder has unlawfully cleared vegetation. Arguably the Nature
Conservation Act therefore allows for a higher degree of interference with landholding, thus
necessitating an entitlement to compensation.
Regardless, the Nature Conservation Act does appear to be the exception rather than the rule,
as no other statutes were identified which award compensation to landholders affected by
obligations and restrictions on use.
3.2.
Western Australia
The Western Australian Torrens legislation contains a similar provision to the Queensland
statute. The Transfer of Land Act states that any person deprived of land or of any estate or
interest in land may bring an action for damages, if it was caused by one of the following:
70
71
72
73
Nature Conservation Act 1992 (Qld) s 49(1).
Nature Conservation Act 1992 (Qld) s 67(2).
Email from Tony Baker to Justine Bell, 19 August 2009.
A nature refuge may be imposed where the Minister deems the land to be an area of major interest or a
critical habitat: Nature Conservation Act 1992 (Qld) s 49(1). The declaration may impose obligations on
the landholder to take activities to conserve or rehabilitate land.
280
 Fraud;
 Through the bringing of such land under the operation of this Act;
 By the registration of any other person as proprietor of such land estate or interest; or
 In consequence of any error or misdescription in any certificate of title or in any entry
or memorandum in the Register.74
Similarly to the Queensland legislation, it is unlikely that this provision would extend to
provide compensation for obligations and restrictions imposed on land use.
There is also provision made for compensation under the Land Administration Act 1997
(WA), which deals with compulsory acquisition of land. Part 9 of the Act outlines the
procedure for compulsory acquisition, and part 10 sets out entitlements to compensation.
Under the Land Administration Act, every person having any interest in land, which is taken,
is entitled to compensation for the interest from the acquiring authority.75 ‘Taken’ is defined
to mean that the interest in land is totally extinguished,76 and ‘interest in land’ is defined to
mean any legal or equitable interest.77 It is doubtful that this provision would apply to a
person whose rights to use land have been affected, because the interest has to be completely
extinguished – mere curtailment will probably not suffice. Additionally, the definition of
‘interest’ appears to be even narrower than the definition in the Queensland Acquisition of
Land Act.
However, the Planning and Development Act 2005 (WA) does extend compensation to any
person whose land is injuriously affected by the making or amendment of a planning scheme
from the responsible authority.78 This largely mirrors the entitlement to compensation under
the predecessor Town Planning and Development Act 1928 (WA).
The term ‘injurious affection’ applies in relation to the following actions:
(a) Where land is reserved (whether before or after the coming into operation of this
section) under the planning scheme for a public purpose;
74
75
76
77
78
Transfer of Land Act 1893 (WA) s 201.
Land Administration Act 1997 (WA) s 202(1).
Land Administration Act 1997 (WA) s 151(2).
Land Administration Act 1997 (WA) s 151(1).
Planning and Development Act 2005 (WA) s 173(1).
281
(b) where the scheme permits development on that land for no purpose other than a
public purpose; or
(c) where the scheme prohibits wholly or partially the continuance of any nonconforming use of that land, or the erection, alteration or extension of a building,
where it otherwise would have been lawful.79
Although this appears to be quite broad in scope, the effect of this provision is in effect quite
narrow. The Law Reform Commission of Western Australia has expressed the view that this
provision requires paragraph (a), and either paragraph (b) or (c) to be met before an
entitlement arises.80 As a result, a prohibition or control on development will not give a right
to compensation unless the land has also been reserved. Additionally, the legislation makes it
clear that conditions placed upon development are not taken to have the effect of prohibiting
the ‘erection, alteration or extension’ of a building.81
There has thus far been little litigation concerning these new provisions. The effect of these
provisions were considered in the case of City of Canning v Avon Capital Estates (Australia)
Ltd.82 Avon Estates owned 19 lots in an estate, which were all reserved for public purposes,
because the Water Corporation’s trunk main passed through the lots. Despite the reservation,
development approval was granted, but subject to a number of conditions. Avon considered
that the conditions were unacceptable, and consequently lodged a claim for compensation.83
The judge concluded that because the land was reserved for a public purpose, it automatically
followed that it was injuriously affected.84 The Law Reform Commission also noted that this
was potentially at odds with their interpretation of the meaning of s 174(1).85
Another case concerning these provisions is Canal Rocks Pty Ltd v Shire of Busselton.86 In
this case, the appellant owned a 40ha parcel of land. 30ha of this land was zoned tourist, and
the remaining 10ha was reserved for recreation under the relevant planning scheme. The
appellant lodged an application to build a single house on the 10ha reservation, which was
79
80
81
82
83
84
85
86
Planning and Development Act 2005 (WA) s 174(1).
Law Reform Commission of Western Australia, Compensation for Injurious Affection, Report No 98
(2008) p 38.
Planning and Development Act 2005 (WA) s 174(2).
[2008] WASAT 46.
City of Canning v Avon Capital Estates (Australia) Ltd [2008] WASAT 46 at [6]-[7].
Ibid [33].
Law Reform Commission of Western Australia, above n 80, 38.
[2009] WASCA 35.
282
deemed to be refused.87 The court upheld the refusal as it was consistent with the planning
scheme, but did not deal with the issue of injurious affection.
Because the courts have not yet had much opportunity to consider these provisions, it is
unclear to what extent these provisions could extend.
The Law Reform Commission of Western Australia released their final report on
compensation for injurious affection in 2008. The terms of reference for this inquiry were
that the Commission consider the following:
(a) the provisions of s 241(7) of the Land Administration Act 1997 (WA), including
particularly the rights affected thereby of persons whose land is, or is proposed to be,
acquired by compulsory process by the state or by an instrumentality of the state or
by any other instrumentality otherwise authorised or directed by statute to acquire
interests in land compulsorily, and the extent to which the adjacent land of such
persons is affected by such acts and resulting works;
(b) the law and practices in relation to compensation payable or other accommodations
capable of being extended to owners and other persons with interests in alienated
land where such land is to be regarded as injuriously affected under the terms of
those statutes set out in Schedule 1 regulating land for public purposes or the
implementation of works of a public character;
(c) the continued use and application of the expression ‘injurious affection’; and
(d) any related matter.88
The Planning and Development Act 2005 (WA) is one of the Acts listed in Schedule 1 of the
terms of reference, and thus was part of the review. The Law Reform Commission disagreed
with the Court’s interpretation of s 174(1) in Avon, and stated that s 174(1) should not be read
as an exhaustive definition of ‘injurious affection’. It is also necessary to consider whether
the action actually affected the value of the property, and at what point in time the action
occurred.89 The Commission recommended that the Act be amended to make it clear that it
87
88
89
Canal Rocks Pty Ltd v Shire of Busselton [2009] WASCA 35 [4]-[5].
Law Reform Commission of Western Australia, above n 80, 85.
Ibid 38-39.
283
does not exhaustively define ‘land is injuriously affected by reason of the making or
amendment of a planning scheme’.90
The Law Reform Commission appears to espouse an interpretation of the legislation that is at
odds with judicial interpretation. However, should the recommendations of the Law Reform
Commission be followed, it is likely that an entitlement to compensation will only arise
where there has been a reservation of land. Thus there will be no entitlement to compensation
where obligations and restrictions on land use, falling short of reservation, are placed on
privately-owned land.
It is noteworthy that the report does not make any recommendations to extend the present
scope of compensation in Western Australia. As a result, it is unlikely that compensation for
obligations and restrictions on use will be available in the near future.
3.3.
Constitutional considerations
Although this thesis has not dealt with Commonwealth laws affecting private land use, there
is some useful jurisprudence in this area which warrants consideration.
The Commonwealth Constitution grants Parliament the power to make laws with respect to
‘the acquisition of property on just terms from any State or person for any purpose in respect
of which the Parliament has power to make laws’.91
The High Court of Australia has considered the term ‘acquisition’ on several occasions. In
the Tasmanian Dams case92 the High Court had to determine whether Commonwealth laws
which effectively prevented the Tasmanian State government from constructing a hydroelectric dam amounted to an ‘acquisition’ of property. A majority of the Court found that
there was no ‘acquisition’.93
Mason J placed emphasis on proprietary rights, and in particular the fact that the
Commonwealth were not obtaining any proprietary rights in the land by restricting use. He
90
91
92
93
Ibid 39.
Commonwealth of Australia Constitution Act (Cth) s 51(xxxi).
Commonwealth v The State of Tasmania (1983) 158 CLR 1.
Gibbs CJ, Wilson and Dawson JJ not deciding on this issue.
284
stated that ‘it is not enough that legislation adversely affects or terminates a pre-existing right
that an owner enjoys in relation to his property; there must be an acquisition whereby the
Commonwealth or another acquires an interest in property, however slight or insubstantial it
may be’.94 Murphy J took a similar approach, stating that ‘unless the Commonwealth gains
some property from the State or person, there is no acquisition within the paragraph’.95
Brennan J also adopted this analysis.96 Deane J took his analysis further, noting that:
laws which merely prohibit or control a particular use of, or particular acts upon, property
plainly do not constitute an "acquisition" of property for purposes of the Commonwealth.
Commonly, such laws are of general application and apply to property by reason of its being
property of a particular description or by reference to the nature of the use or act prohibited or
controlled. While a law which restricts or controls the use or enjoyment of property by means
of specific identification of the property effected comes closer to the area of acquisition of
property, it is, as a matter of ordinary language, impossible to say that there has been any
acquisition of property if all that is involved is restriction of what can be done upon it.97
This thesis has drawn a distinction between laws which impact on property generally (termed
‘blanket restrictions’) and laws which affect individual parcels of land. Deane J’s judgment
seems to indicate that in the latter case, there is a stronger argument that an ‘acquisition’ has
occurred. Ultimately he concludes that a mere restriction on use will not amount to an
acquisition regardless. Regardless, it may be prudent to amend acquisition legislation to
clarify that such restrictions do not attract the protection of the Act.
This issue was revisited by the High Court in Newcrest Mining (WA) Ltd v Commonwealth
(“Newcres”).98 This case concerned mining leases which were affected the National Parks
and Wildlife Conservation Act 1975 (Cth) which made the leased areas part of Kakadu
National Park. This effectively extinguished Newcrest’s right, and it was alleged that this
constituted an ‘acquisition’. The Court drew a distinction between this case and Tasmanian
Dams – in this instance there was a proprietary interest as ‘the Commonwealth and the
Director acquired identifiable and measurable advantages. In the case of the Director, those
advantages were the acquisition of the land freed from the rights of Newcrest to occupy and
94
95
96
97
98
Commonwealth v The State of Tasmania (1983) 158 CLR 1, 145.
Commonwealth v The State of Tasmania (1983) 158 CLR 1, 181.
Commonwealth v The State of Tasmania (1983) 158 CLR 1, 247.
Commonwealth v The State of Tasmania (1983) 158 CLR 1, 283.
(1997) 190 CLR 513.
285
conduct mining operations thereon and, in the case of the Commonwealth, the minerals freed
from the rights of Newcrest to mine them’.99 Furthermore ‘vesting in the Commonwealth of
the minerals to that depth and the vesting of the surface and balance of the relevant segments
of the subterranean land in the Director had the effect, as a legal and practical matter, of
denying to Newcrest the exercise of its rights under the mining tenements’.100
Thus the distinction is whether property is vested in the Commonwealth. In the Newcrest
case, this was clearly satisfied.
More recently, this issue was considered in ICM Agriculture v Commonwealth.101 The main
issue in this case was whether water could constitute ‘property’ for the purposes of s
51(xxxi), but the court also considered whether there was an ‘acquisition’. The Court
followed Tasmanian Dams and Newcrest and concluded that there was no acquisition as there
was no ‘identifiable or measurable advantage’ flowing from the restriction.102
The overall conclusion which may be drawn from this analysis is that it is unlikely that
statutory restrictions and obligations affecting land use constitute an ‘acquisition’.
Regardless, it is suggested that this matter be conclusively dealt with by amending the
relevant land acquisition legislation to exempt restrictions and obligations from the definition
of ‘acquisition’.
3.4.
Conclusion
From the above analysis, it appears that the proposals made in this thesis will not increase
government liability for compensation on the basis that rights to use land have been interfered
with. However even where the range of matters subject to compensation are exhaustively
defined, it is prudent for governments to insert an additional provision in their Torrens
legislation specifically exempting notifications on title from the state guarantee. This will
provide an additional safeguard to ensure that no claims arise.
99
100
101
102
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 634.
Ibid 635.
(2009) 170 LGERA 373. This case has not yet been reported in the Commonwealth Law Reports
(“CLR”).
Ibid 415.
286
Additionally, it is unlikely that obligations and restrictions on use will be compensable under
the relevant land acquisition statutes, although the recent case of Sorrento demonstrates that
the definition of ‘interest’ in Queensland can be extended beyond merely relating to fee
simple title. As a result, it is perhaps also appropriate to amend land acquisition statutes to
include a provision clarifying the definition of ‘interests’, and once again specifically
exempting obligations and restrictions on use from compensation.
Statute-specific entitlements to compensation such as the Nature Conservation Act should
remain in their present state. It is quite clear that these entitlements are only available in
limited circumstances, and are not applicable to all obligations and restrictions on use.
The present regime for compensation is appropriate, and unless there is a specific legislative
entitlement to compensation, landholders whose interest is subject to obligations and
restrictions on use may not claim compensation. However, these additional legislative
safeguards will ensure that there is not an increase in claims for compensation.
4.
Statutory liability for incorrect or omitted information
The above section noted that compensation is only available for interferences with title (as
opposed to use), and only in limited circumstances. Where a landholder’s rights to use land
are affected, and they are given correct information, there appears to be no entitlement to
compensation.
One means by which a landholder can obtain compensation for obligations and restrictions on
their land use is where they have been given incorrect information as to what their use rights
in fact are. An example would be where the existence of an obligation or restriction was not
disclosed, which subsequently resulted in loss. One of the potential issues with making
information available to landholders and prospective purchasers is liability for incorrect or
omitted information.
Chapter Six discussed the New Zealand model, and noted that the primary mechanism for
providing information on land use obligations and restrictions is the LIM. District councils
may be held liable for information omitted from or contained in a LIM, which states that ‘in
the absence of proof to the contrary, a land information memorandum shall be sufficient
287
evidence of the correctness, as at the date of its issue, of any information included in it
pursuant [to the provisions of the Act]’.103
Although placing such a provision in legislation could be seen as opening the floodgates to an
unascertainable number of claims, to date there have only been two cases concerning this
provision. The likely effect of this provision is that local governments have exercised care in
providing information, thus preventing claims for incorrect information.
There is a similar provision in place in Queensland, with respect to property certificates. The
Sustainable Planning Act 2009 (Qld) states that ‘if a person suffers financial loss because of
an error or omission in a planning and development certificate, the person is entitled to be
paid reasonable compensation by the local government’.104 To date, there have been no
reported cases whereby compensation has been awarded under this legislative provision.
Also, this is a limited entitlement which only arises in the case of planning and development
certificates. In other cases, liability is specifically exempted. For example, where information
is recorded as an administrative advice in accordance with the provisions of the LTA, the
information is explicitly exempted from the State guarantee in most circumstances. Section
189(1)(l) of the LTA states that no compensation is available where information is recorded
as an administrative advice, and:
 the information or thing, as recorded or kept, is incorrect; and
 the information or thing was given to the Registrar for recording or keeping by
another entity; and
 the incorrectness was not because of an error of the Registrar in the recording or
keeping.
Consequently the Registrar will not be liable for inaccurate information recorded as an
administrative advice, provided that the inaccuracy is attributable to the administering
agency. In such a case, any relevant action would be against the administering agency.
103
104
Local Government Official Information and Meetings Act 1987 s 44A(5).
Sustainable Planning Act 2009 (Qld) s 707.
288
This thesis recommends expanding the number of obligations and restrictions notified on
title, as well as creation of a separate, but linked spatial database. These measures could
perhaps be supported by a legislative provision similar to the New Zealand provision, and
Queensland provision in relation to property certificates. The purpose of these
recommendations is to create a system which can be relied upon, and this purpose will be
entirely frustrated if governments are not motivated to provide accurate and up-to-date
information. A legislative provision attributing liability to administering agencies is perhaps a
desirable addition to an effective system for the management of obligations and restrictions
on title and use.
The following section will discuss the applicability of common law principles to determining
liability. In the absence of a statutory guarantee, this is an alternative mechanism for
obtaining compensation for incorrect information. However, a statutory entitlement to
compensation provides greater security to potential buyers of property, and will potentially
encourage accountability on the part of government agencies providing data.
5.
Common law liability for incorrect and omitted information
The above section discussed limited statutory rights to compensation available where
incorrect information is provided, or information is omitted. Even where a statutory right is
not available, liability may still arise at common law. There have been a number of cases
where landholders have successfully sued government agencies for providing incorrect
information. If information on obligations and restrictions is made more readily available,
this could perhaps increase the instances where liability may arise.
This section will review the law relating to liability for negligent misrepresentation in the
case of government agencies. It will discuss the potential liability for misrepresentation
where a register is used, and ways in which liability may be reduced.
5.1.
Negligent misrepresentation – L Shaddock & Associates Pty Ltd v Council of the
City of Parramatta
There have been a number of major cases in Australia dealing with negligent
misrepresentation in the case of government information.
289
One of the leading cases in this area is L Shaddock & Associates Pty Ltd v Council of the City
of Parramatta (“Shaddock”).105 A company proposed to enter into a contract for the purchase
of land to be used for development. They engaged a solicitor, who made the following
queries:
 Telephoned an unidentified officer of the municipal council, in whose district the land
was, and asked whether there were any road widening proposals affecting the land.
He was told that there were not any proposals; and
 Made an application in writing, by prescribed form, for a certificate under s 342AS of
the Local Government Act 1919 (NSW). The form asked whether the property was
affected by any road widening proposals. It was the council’s practice when it
received a request for a s 342AS certificate and for information about road widening
proposals to refer to the proposal, if there was one, at the foot of the certificate. The
solicitor received a certificate which did not mention any proposals.
Following these enquiries, the purchase was completed. The purchasers later discovered that
there were proposals affecting the land, and claimed that they would not have completed the
purchase had they known of the proposals. They subsequently brought an action against the
council in the Supreme Court of New South Wales alleging negligent misrepresentation.106
The case went on appeal to the New South Wales Court of Appeal, and then to the High
Court of Australia. Both the Supreme Court and Court of Appeal held that no duty of care
was owed. On appeal, the High Court unanimously allowed the appeal, holding that a duty of
care was owed.
Gibbs CJ held that a duty of care should be owed, noting that it was the practice of the
council to give such information, therefore its failure to supply this information could
reasonably have been understood as meaning that no proposal existed.107 Furthermore, he
stated that:
the Council ought to have known that the road widening, if carried out, would adversely affect
the use of the land for most conceivable purposes. The Council was so placed that others could
reasonably rely upon its ability to give accurate information as to any local road widening
105
106
107
(1981) 150 CLR 225.
L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1981) 150 CLR 225, 229.
Ibid 230.
290
proposals and it followed the practice, in the course of exercising its functions, of making some
information available.108
However, he made a distinction between the advice given over the telephone, and the advice
given in the property certificate. In regard to the telephone query, he held that it would not
have been reasonable for the appellants to rely on an unconfirmed answer given by an
unidentified person in response to an inquiry made over the telephone.109 In contrast, as the
certificate request was made by a solicitor, on the relevant form, for conveyancing purposes,
the gravity of the inquiry was made known to the council. As a result, the failure to mention
the local road widening proposals amounted to a statement that none existed.110
Stephens J agreed that a duty of care should be owed, essentially based upon the notion of
control. He noted that the council was an information centre, and it alone had sole possession
of information that was extremely valuable to those who owned, or contemplated owning
property in the district.111 With regard to the importance of the information, he made the
following observation:
the information in question was of a kind which was known by all to be of great importance to
those seeking it and it was largely inaccessible through other channels. Moreover, much of the
information sought would concern the Council’s own actions. But it would be worse than
valueless, it would be positively harmful in its effect should it prove to be incorrect.112
He noted that in establishing this duty of care, there was no requirement that the speaker
possess a special skill. Because the council had exclusive possession of essential information,
and were set up as a centre from which information was distributed to those who required it,
there was no requirement for holding out of special skill or competence in order to lead to the
inference that care will be taken in furnishing that information.113
108
109
110
111
112
113
Ibid 236.
Ibid.
Ibid
Ibid 242.
Ibid 242.
Ibid 243.
291
Stephens J expressly dealt with the matter of disclaimers, and noted that ‘were a council to
expressly qualify its answers, stating that they might be subject to errors for which it accepted
no responsibility, the present practice would be rendered largely worthless’.114
Mason J also found that a duty of care was owed, and like Gibbs CJ, drew a distinction
between the telephone query and the written query. He said that because the oral inquiry was
informal, spoken, and the solicitor did not identify the officer to whom he spoke, there was
some doubt that the officer would have realized that the solicitor would rely on the
information. In contrast, the written enquiry was formal in nature.115 In finding a duty of care,
Mason J made the following comment which is worthy of full repetition:
the specialized nature of the information, the importance which it has to an owner or intending
purchaser and the fact that it concerns what the authority proposes to do in the exercise of its
public functions and powers, form a solid base for saying that when information (or advice) is
sought on a serious matter, in such circumstances that the authority realizes, or ought to realize,
that the inquirer intends to act upon it, a duty of care arises in relation to the provision of the
information and advice.116
Mason J addressed the argument that imposition of liability may impinge upon essential
council functions, and stated that ‘the suggestion that the imposition of a duty of care and
consequential liability would unduly hamper statutory and local authorities in the discharge
of their public functions is an unsupported assertion’.117 He noted that finding a duty of care
would not stop the practice of providing property information, as there is a practical
obligation to do so, and the information is of vital importance to an owner or prospective
purchaser of land.118
Murphy and Aicken JJ agreed with the aforementioned judgments.
Shaddock is the leading case in the area of government liability for incorrect information, and
has been considered and applied in a number of subsequent decisions. The next section will
114
115
116
117
118
Ibid 242.
Ibid 253.
Ibid 252-253.
Ibid 252.
Ibid.
292
review these decisions to provide a detailed analysis of the principles relating to negligent
misrepresentation in the case of government information.
5.2.
Negligent misrepresentation post-Shaddock
There have been a number of cases since Shaddock further defining and limiting the extent of
negligent misrepresentation for government information.
It has been held that a duty of care is not strictly limited to cases involving written
representations, and Shaddock should not be interpreted as such. Bivone v City of Salisbury
(“Bivone”)119 is a decision of the Supreme Court of South Australia, in which the plaintiff
sought building approval for plans for the building of a house on a specified lot. The relevant
local authority had received a letter from the Commissioner of Highways stating that
construction could not be carried out without the Commissioner’s consent, and would be
affected by road widening on both sides. The plaintiff sent their agent to make an application
to build a dwelling house, and a representative of the council verbally informed the agent that
there was no road-widening proposal in place which would affect the land.
Matheson J held that although in Shaddock the courts held that there was no
misrepresentation on the facts with regard to the oral telephone inquiry, ‘they emphatically
did not say that for an action such as was there pleaded to succeed there must be a written
misrepresentation’.120 Matheson J distinguished this case on the basis that there was more
than an anonymous telephone query. In this case, the purchaser was known to the building
inspectors, and ‘was making a serious and highly relevant inquiry of a man whom he knew,
and whom he knew to be a building inspector, whether the plaintiff’s application to build a
dwelling on land in the defendant’s own area was affected by any road widening plan’.121 As
a result, Matheson J held that a duty of care was owed to the plaintiff.
A similar conclusion was reached in the case of Kyriacou v Kogarah Municipal Council
(“Kyriacou”).122 In this case, the plaintiff phoned the council to enquire about the existing use
119
120
121
122
(1981) 50 LGRA 94,
Bivone v City of Salisbury (1981) 50 LGRA 94, 110.
Ibid.
(1995) 88 LGERA 110.
293
rights relating to a property she was considering purchasing. In this case Dunford J held that a
duty of care did exist for the following reasons:
when Mrs Kyriacou telephoned the Council she asked to be connected to the town planning
department, and when put through asked to speak to someone who knew about the specific
property. She then identified herself by name and gave the purpose of her inquiry explaining
the future intentions of her husband and herself with the subject property, and also took care to
identify by name the person to whom she was speaking.123
Wollongong City Council v Fregnan (“Wollongong CC”)124 is especially relevant for present
purposes as it concerned information contained on a register. In this case, which originated in
the Supreme Court of New South Wales, and went on appeal to the New South Wales Court
of Appeal, the respondents entered into a contract to purchase a vacant lot, with the intention
of building upon it. Prior to completion, the respondent spoke to a council officer, and asked
whether anything was wrong with the land, to which the officer responded ‘not that he knew
of’. After completion, the respondents applied for building approval, and were directed to
relocate the cottage further from the street, which they did. Subsequently there was heavy
rain, and land slippage occurred which damaged the cottage. The respondents brought an
action against the council in negligence, and it was shown that the council kept a land
slippage register, and the respondent’s land was listed as being affected. This register was not
available for public inspection.125
Hutley JA held that for the purpose of establishing negligence, it is the verbal inquiry only
which is relevant, and that this inquiry was informal in nature, and the council did not
negligently give any information to an applicant. The only information given to the applicant
was by an officer who denied any personal knowledge of the matter.126
With regard to the register, Hutley JA stated that the council is entitled to decide whether or
not it will advise intending purchasers of the land as to the status of the slippage register. If
they decline to advise prospective purchasers, there is no breach of duty. However they may
be liable if they elect to undertake the supply of information, and do so negligently.127
123
124
125
126
127
Kyriacou v Kogarah Municipal Council (1995) 88 LGERA 110, 121.
(1982) 46 LGRA 391.
Wollongong City Council v Fregnan (1982) 46 LGRA 391, 391.
Ibid 393-4.
Ibid 394.
294
In this case, Hutley JA held that the council did elect to undertake the supply of information.
The council were aware or ought to have been aware that the land was in an area prone to
slippage, and should have warned the applicant of this.128 Furthermore, the original position
of the cottage proposed by the applicant was in fact safer, thus the council caused the cottage
to be placed in an area prone to land slippage. The council was obliged to consider the
likelihood of slippage, and this land was in the slippage register. As a result, the council had a
duty of care, and failed to take proper care in the performance of this duty.129
Glass J agreed that a duty of care was owed, because the causal relationship was established –
the plaintiff would not have built the cottage in that location had they been told of the danger
of slippage.130 Mahoney JA agreed with this reasoning. This case is particularly relevant to
this thesis, as it concerned information on a register, although one not available for public
inspection. The ramification of this decision is that where information is not available to the
public, the onus is on the council to check the accuracy of the information. Had this register
been available to the public, then perhaps the onus would have been on the purchaser to
check for any entries.
The next important development in the law of negligent misrepresentation was the case of
San Sebastian Pty Ltd v Minister Administering the Environmental Planning Act (“San
Sebastian”),131 which stands for the proposition that a duty of care cannot be owed in relation
to government policy. In this case, Sydney City Council prepared a development plan in 1969
for Woolloomooloo, which had no statutory force, and was merely a guide to the public
interest which the council was required to consider. The plan provided for high-density
development of the area, and proceeded on the basis that developers would be encouraged to
purchase land in the area and undertake high-density development. The appellants inspected
the plan, and obtained copies. They subsequently purchased land in the area for the purpose
of developing it in the manner contemplated by the plans. In 1972 the plans were abandoned,
and the developers sued the council in negligence.
128
129
130
131
Ibid.
Ibid 395.
Ibid 399.
(1986) 162 CLR 340.
295
The matter went on appeal to the High Court of Australia, where a majority held that a duty
of care did not arise. Gibbs CJ, and Mason, Wilson and Dawson JJ delivered a joint
judgment, holding that the council had not made a representation, as publication of plans or
proposals should not be held to impose an obligation on a council to take care in making
statements in those plans or proposals.132 Policies are often altered, and the Court will not
readily infer that a plan contains an assurance of future action.133
Regardless, they did note that in an appropriate case, a statement made to a group at large,
and statements volunteered rather than requested, could give rise to a negligent
misrepresentation.134
Brennan J agreed that the appeal should be dismissed, but delivered a separate judgment.
Another relevant case to consider is that of Burke v Forbes Shire Council (“Burke”).135 In the
shire in question, non-urban areas permitted development for agriculture, but this definition
was later amended in 1975 to exclude piggeries. The plaintiffs carried on business as farmers,
and operated piggeries. The plaintiffs purchased several properties in this shire for this
purpose, with details as follows:
 In 1982 the Burkes purchased ‘Bindi’ which was used as a piggery at that time. They
applied for a planning certificate, which stated that agricultural use was permitted.
The certificate had not been amended to exclude piggeries;
 The plaintiffs refinanced loans over Bindi in 1984, and again in 1986, and both times
the same mistake appeared;
 In 1984 the Burkes purchased ‘Kaloola’, and the certificate also contained the same
error, but it was dated 1983 and provided by the vendor;
 Three more properties were purchased by the plaintiffs, and all certificates contained
the same error. But it was conceded that the Burkes relied not on the certificates, but
on the fact that piggeries were permitted on their other properties.
132
133
134
135
San Sebastian Pty Ltd v Minister administering the Environmental Planning Act (1986) 162 CLR 340,
359.
Ibid 359-60.
Ibid 357-8.
(1987) 63 LGRA 1.
296
The Burkes commenced proceedings against the Council in the Supreme Court of New South
Wales alleging negligence.
Allen J held that the obligation to provide information was to be characterised as statutory
rather than contractual, thus there was no claim for breach of contract.136 As a result, the main
focus of the judgment was liability for negligent misrepresentation.
On the issue of negligent misrepresentation, Allen J held that the certificates in question were
as important as those in Shaddock. Allen J made the following comment on this point which
is worthy of full repetition:
the certificates were as important as the certificate in Shaddock – ‘it is the official statutory
certificate, the only form of certificate provided by that planning legislation, not only as to what
buildings and works can be constructed on the land but even as to what use the land can be put
to. It affects the market value of the land. It affects what economic return can be derived from
activities carried on the land. It is of fundamental importance in selling, buying, lending
borrowing and guaranteeing.137
As a result, the council had a duty of care in relation to the three certificates issued for Bindi,
because the value of the property and its use were affected. Furthermore, it was not necessary
that the council knew the precise use to which information would be put; it was sufficient that
the council ought to have known that the Burkes had requested the certificates for a serious
purpose.138
In Tilly v Toowoomba City Council (“Tilly”)139 the Supreme Court of Queensland found a
duty of care on the basis of a planning certificate provided by a council to a purchaser of
land. The planning certificate asked ‘whether there are any outstanding requisitions, of, or
from your council in connection with the subject property’, and the response from the council
was ‘nil’. There were in fact terms and conditions attached to a planning consent in relation
to the current use of the land, and these had not been complied with. This was not drawn to
the appellant’s attention until almost 12 months after taking possession, at which time failure
136
137
138
139
Burke v Forbes Shire Council (1987) 63 LGRA 1, 10.
Ibid 15.
Ibid16.
(1989) 69 LGRA 399.
297
to comply with conditions could expose the appellant to prosecution for unlawful use of the
land, and proceedings to prevent the unlawful use of the land.140
Connolly J held that the procedure for obtaining planning certificates invited the public to
seek information from the council, and the council clearly must have realised that the
recipient of the information intended to act and rely on it.141 Thus a duty of care was owed.
Thomas and Ambrose JJ concurred with this reasoning.
Pisano v Fairfield City Council (“Pisano”)142 was a decision of the New South Wales Court
of Appeal concerning a certificate given by council. Under s 317A Local Government Act
1919 (NSW), a person could apply for a certificate to the effect that a building complied with
the Act and ordinances, and any plans and specifications. This process involved a physical
inspection of the building, and a written certificate of the findings.
In Pisano a certificate was given to the vendor by council stating that a building complied in
all respects with relevant legislation, and the purchase proceeded on this basis. In fact, there
were defects with the building which were not detected by council on inspection, nor notified
to the purchaser. Shortly after purchase, land subsidence occurred, damaging the building.
The purchasers commenced proceedings against the council, but the council denied liability
on the basis that the certificate was provided to the vendor, rather than the purchaser. This
argument was rejected as the purchasers were clearly within the limits of a class to which a
duty should be owed.143 President Kirby held that a duty of care was owed, and breached, as
the council failed to adequately inspect the property, and thereby made a misrepresentation in
the certificate.144
The case of Sved v Woollahra Municipal Council (“Sved”)145 differs slightly from the other
cases concerning certifications, as the certificate had not been provided at the time of
completion. Similarly to Pisano, this case also concerned a certificate under s 317 A of the
Local Government Act 1919 (NSW). In this case, the plaintiff applied for a certificate and the
140
141
142
143
144
145
Tilly v Toowoomba City Council (1989) 69 LGRA 399, 400-01.
Ibid 402.
(1991) 73 LGRA 184.
Pisano v Fairfield City Council (1991) 73 LGRA 184, 193.
Ibid 194.
(1995) 86 LGERA 222.
298
inspection was undertaken, and before completion, the plaintiff called council and stated ‘I
need to know that the certificate is being issued, otherwise I’m not going to settle’. The
council officer replied ‘everything has been done. The paperwork is in the pipeline and you
will get it any day’. Eight days after completion the certificate was issued. It was clear,
except from a note at the bottom saying that the certificate was ‘not an unequivocal
affirmation of proper building standards’. Subsequently defects in the building became
apparent.146
The plaintiffs brought an action against the defendant council in the Supreme Court of New
South Wales. Giles J held that the council ought to have known of the importance of the
certificate, and owed to the Sveds a duty to take care in issuing the certificate, and in
informing them over the telephone that a certificate would be issued.147
5.3.
The effect of disclaimers
As stated above, Stephens J dealt with disclaimers in Shaddock and was sceptical as to their
role, noting that the practice of providing information would be rendered ‘largely worthless’
if its accuracy were disclaimed.148
There are a number of other negligent misrepresentation cases which have expressly dealt
with the issue of disclaimers. MLC v Evatt149 is a leading case in the area of negligent
misrepresentation as it set out the ‘special relationship’ test. It is also relevant in the context
of disclaimers, even though it was not a case involving government information.
In MLC v Evatt, the plaintiff alleged negligent misrepresentation on the basis that the
defendant company had given incorrect advice regarding the financial soundness of a
subsidiary company. The plaintiff invested in the subsidiary on the basis of this advice, and
the company subsequently went into liquidation.
Although there was no disclaimer given in MLC v Evatt, the High Court took the opportunity
to discuss the possible effect of disclaimers, and noted that a disclaimer would not necessarily
146
147
148
149
Sved v Woollahra Municipal Council (1995) 86 LGERA 222, 223-4.
Ibid.
L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (1981) 150 CLR 225, 242.
(1968) 122 CLR 556.
299
prevent a duty from arising; rather, it was just one of a number of factors to be considered.
On this point, Barwick CJ made the following comment, which is worthy of full repetition:
I doubt whether the speaker may always except himself from the performance of the duty by
some express reservation at the time of his utterance. But the fact of such a reservation,
particularly if acknowledged by the recipient, will in many instances be one of the
circumstances to be taken into consideration in deciding whether or no a duty of care has arisen
and it may be sufficiently potent in some cases to prevent the creation of the necessary
relationship. Whether it is so or not must, in my opinion, depend upon all the circumstances of
and surrounding the giving of the information or advice.150
This set out the first tentative rules regarding disclaimers in Australian law – namely, the
existence of a disclaimer is a factor to be considered in determining whether a duty of care
exists, having regard to all the circumstances, and it will be relevant to determine whether the
recipient acknowledged it.
The case of Mid-Density Developments v Rockdale Municipal Council151 involved a
disclaimer in the context of government information. This case concerned certificates given
under the Environmental Planning and Assessment Act 1979 (NSW) to a prospective
purchaser of land. The certificates incorrectly stated that the council had no information
regarding flooding on the parcel of land. In fact, there was a flood policy in place which
obliged the council to note on all certificates relating to that street that the land is subject to
the council’s Flood Management Policy. Compliance with the policy made the development
unprofitable for the appellant, so they commenced proceedings against the Council in
negligent misrepresentation.
Relevant in this case was a legislative disclaimer in the Environmental Planning and
Assessment Act stating that ‘a council shall not incur liability in respect of any advice
provided in good faith pursuant to subsection (5)’. The information in question was given
under subsection (5).152 Additionally, there was a disclaimer under the Local Government
(Flood Liable Land) Amendment Act 1985 (NSW) drafted in similar terms.153
150
151
152
153
MLC v Evatt (1968) 122 CLR 556, 570.
(1993) 44 FCR 290.
Mid-Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290, 294.
Ibid 295.
300
The Court found for the appellant on two bases – first, that the council did not meet the
requirement of good faith in the disclaimer, and second on the applicability of the disclaimer
itself.
With regard to the good faith aspect, the Court held that a party cannot be acting in good faith
where ‘no real attempt has been made to have recourse to the vital documentary information
available to the council, and the council has no proper system to deal with requests for
information of the type in question’. Additionally, they held that the concept of ‘good faith’
requires ‘a real attempt by the authority to answer the request for information at least by
recourse to the materials available’. In this case, the Court held that the council had neglected
to do this, thus failing to meet the test of good faith. 154
Furthermore, the Court made the following comment with regard to the enforceability of the
disclaimer:
the circumstance that the relevant information provider is in a better position than anyone else
to know of the accuracy of the information provided may, as the evidence indicates, be
significant in considering the question of reasonable reliance.155
Thus one of the relevant circumstances will be control of the information, and it is possible
that in any case concerning government information, the government authority will be in a
better position to know of the accuracy of the information given.
Another relevant case concerning disclaimers, although not in the context of government
information, is BT Australia Lt v Raine & Horne Pty Ltd.156 This case involved a negligent
valuation which resulted in loss. The valuation was accompanied by the following disclaimer:
in accordance with company policy we state that this report is for the use only of the party to
whom it is addressed and for no other purpose, and no responsibility is accepted to any third
party for the whole or part of the contents of this report.157
In the context of this disclaimer, the Court held that it was effective to protect against liability
to third parties, noting that:
154
155
156
157
Ibid 300.
Ibid 301.
[1983] 3 NSWLR 221.
BT Australia Lt v Raine & Horne Pty Ltd [1983] 3 NSWLR 221, 224.
301
it is natural that there should be a general policy in a company giving valuations that, while
prepared to stand behind the valuation in its use by the client who paid for it, it was not
prepared to accept responsibility to anyone into whose hands the valuation might come and
who might choose to act on it. In my view it gives a reasonable effect to the disclaimer to treat
it as directed to the latter situation.158
However this was a fairly specific situation involving a third party, thus it is difficult to
determine its applicability to other situations. It appears that on the basis of the Court’s
comments, there would have been liability to the client had a problem arisen. Furthermore, it
was in the context of commercial information, as opposed to government information, which
could be a determining factor is deciding the enforceability of a disclaimer.
It is evident from the limited case law available that the enforceability of a disclaimer will
largely depend upon the circumstances of the case, and there are no set rules to determine
whether liability will arise. The case law does seem to indicate that in the case of
government information, the fact that the government effectively has a monopoly over the
information may be a relevant factor towards negating any disclaimer.
A recent article considered the effect of disclaimers for government information, specifically
in the context of online disclaimers in searches, and proposed the following factors which a
court may take into account in determining whether to uphold a disclaimer:
 Does the website hold itself out as providing official information? If so, a court may be
reluctant to uphold the disclaimer where there are no other avenues for verifying the
information;
 Is there also an alternative and more official way of gaining the information? If so, the
court may view the search as being an informal inquiry, similar to the phone call in
Shaddock;
 Is the government agency responsible for the accuracy of the information?; and
 Is the disclaimer effective? This will turn upon such matters as whether it is
sufficiently narrow, whether the recipient has accepted it, and whether the disclaimer
points the recipient to more authoritative sources.159
158
159
Ibid 237.
Sharon Christensen, Bill Duncan and Amanda Stickley, ‘Shifting Paradigms of Government Liability for
Inaccurate Information’ (2008) 15(2) Murdoch University Electronic Journal of Law 185, 205-7.
302
The authors also reached the conclusion that it will be difficult for governments to effectively
disclaim information, because they are viewed as authoritative and have control over the
material.160
This discussion of disclaimers has particular relevance to this thesis, as the recommendations
of this thesis promote development of an integrated system for the management of data
concerning obligations and restrictions on land title and use. If the Western Australian
example is indicative, government departments may wish to protect themselves through the
use of disclaimers. It is important to consider these rules and principles concerning the
enforceability of disclaimers to determine whether any attempt to disclaim liability would be
effective. On the basis of this analysis, it seems likely that disclaimers may be ineffective
where information is omitted or incorrect, and loss is suffered as a result. Furthermore, the
best approach may very well be to ensure government agencies take extra care to check the
validity of information, thus preventing any problems from arising at the outset.
5.4.
Summary of negligent misrepresentation principles
From the above analysis of the cases involving negligent misrepresentations made by
government bodies, a number of observations may be made.
First, it is not necessary that an enquiry be made either in writing or verbally. Instead,
liability will turn upon the circumstances, and whether the information was requested in
circumstances that were ‘serious’. In all cases, requests for information relevant to the
purchase of land were considered to be made in sufficiently ‘serious’ circumstances, mainly
because they related to purchases of property, which is clearly of a serious nature. Thus
potentially searches of any register made during the conveyancing process may also fall with
this category of seriousness. In the context of registers providing aggregated data (ie. Data
compiled from other agencies), Christensen et al note that:
while it would not be possible for the government agency to know the precise use to which the
information might be put in any particular instance, it would reasonably be able to ascertain the
probable use to which the information could be put and the fact that the probable use may
reveal a serious purpose.161
160
161
Ibid 207.
Ibid 205.
303
A search of a register is more likely than not made for the purpose of ascertaining
information for a property purchase, or development, thus a government agency could infer
that the probable use of the information is serious in nature.
Second, San Sebastian makes it clear that liability will not arise in relation to government
policy, only advice. However, any information contained on a register will be more than mere
policy, thus this exclusion is probably not of importance for present purposes.
Finally, in Tilly reference was made to the fact that the council essentially invited members of
the public to seek information, which led to an inference that a duty of care was owed. If
information is contained on a register, it is obviously there for members of the public to view.
As a result, incorrect information contained on a register could very well lead to a finding of
negligent misrepresentation.
Additionally, as discussed above, disclaimers will not necessarily negate liability, particularly
in the case of government information which departments effectively have a monopoly over.
Thus disclaimers such as those used in Western Australia may be ineffective in preventing
liability from arising.
5.5.
Conclusion
If all information concerning obligations and restrictions on land title and use is to be brought
into an integrated system, there is a definite possibility that claims will arise for negligent
misrepresentations. There is potential for the number of claims indeed to increase, as an
integrated register would purport to provide all information regarding these instruments,
therefore any omissions or errors may give rise to liability. On the other hand, the above
analysis demonstrates the number and variety of claims arising from the present system,
showing that present methods of providing information are definitely not immune from
attack.
The purpose of providing information in the manner recommended in this thesis is to allow
prospective purchasers to make informed decisions about property purchases, and also to
assist with compliance with environmental laws. If information is incomplete or lacking on a
304
register, these purposes are going to be impaired. Thus imposing liability perhaps has its
merits, as it would be antithetical to the objects of having an integrated system if government
departments are not providing accurate information. As discussed earlier, this could even be
achieved through a statutory entitlement to compensation for incorrect information or
omissions.
However, while such a system is in development there may be sound reasons for limiting
government liability. This is because it will take some time to ensure that all information is
entered on the register, and that all information is accurate. The Western Australian model
provides some useful guidance in this respect, as their system is being developed gradually,
and does not yet provide a complete picture of obligations and restrictions.
In Western Australia liability is limited largely through the use of disclaimers, stating that
information is provided for informational purposes only, although the above analysis
demonstrated that such disclaimers may not provide an adequate defence against claims for
negligent misrepresentation. On the basis of the case law, Courts seem reluctant to uphold
disclaimers in similar circumstances. Furthermore, using such a disclaimer undermines the
purpose of providing such information. Regardless, it may be an effective and necessary
interim defence against a multitude of claims whilst a system is still being established.
The purpose of integrating government data is to provide a system that can be relied upon by
the public, thus the preferred approach is for government departments to use their best
endeavours to ensure information is correct. Such an approach is preferable to allowing
government departments to take a relaxed approach to the provision of such information, with
reliance upon disclaimers to protect themselves.
6.
The effect of in rem versus in personam restrictions
When determining the appropriate forum for recording information concerning obligations
and restrictions, it is necessary to determine whether they are intended to operate in rem or in
personam. In rem interests are those which run with the land, whilst in personam interests are
mere personal obligations.
305
This distinction was discussed by the High Court in the Hillpalm case (discussed in Chapter
Two). In this case, the Court was required to consider first whether there was a local council
consent condition over a parcel of land, and second whether that condition was enforceable
against a successor in title.
The High Court made the following comment:
if the Council’s consent to the subdivision operated to create a right in rem that may be relied
on by any later transferee of any lot in the subdivision, that would present a fundamental
question about how the creation of such a right would be consistent with the effective operation
of a system of Torrens Title. In particular, the existence of such a right would be inconsistent
with s 42(1) of the Real Property Act [NSW’s paramountcy provision].162
Furthermore, they stated that:
if the consent to the subdivision did create a right in rem, that would be a right or interest in the
land not shown on the Computer Folio Certificate. There would then be a real and lively
question about how the two statutory schemes (the scheme under the EPAA and the Torrens
system for which the Real Property Act provides) were to be reconciled, and questions of
implied repeal or amendment might arise.163
Therefore, the High Court have specifically acknowledged that where statutory obligations
and restrictions operate in rem, there is a degree of uncertainty as to how these statutory
schemes are to interact with the land title register. This is particularly relevant in Queensland,
where a number of statutes creating obligations and restrictions provide that they are to bind
successors in title.164 Although many of these statutes do require these instruments to be
noted as an administrative advice, Bell and Christensen note that this creates an
inconsistency, and perhaps a better approach would be to register these obligations and
restrictions, as ‘all “interests” in the land would be registered thereby ensuring that the land
title register meets the original goal of accurately mirroring all interests in the land’.165
Some jurisdictions in Australia have attempted to resolve this difficulty through legislation.
In Victoria, the Torrens legislation imposes more stringent obligations on the Registrar than
162
163
164
165
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 211 ALR 588, 600.
Ibid 600-01.
See for example Coastal Protection and Management Act 1995 (Qld) and Nature Conservation Act 1992
(Qld). These statutes are discussed in detail in Chapter Four, at 3.2.
Bell and Christensen, above n 17, 99.
306
in Queensland. The Victorian legislation states that the register ‘must contain the recordings
that are required or authorised to be made in the register by or under this Act or any other Act
and that affect the land for which the folio is created’.166
Additionally, many Victorian statutes have made recording a precondition to effect. An
example is the Conservation, Forests and Lands Act 1987 (Vic), which was discussed earlier
in this Chapter. As noted above, this Act allows the Secretary to enter into an agreement with
a landowner relating to the management, use, development, preservation or conservation of
their land, or otherwise to give effect to the objects or purposes of a relevant law, in relation
to their land.167An agreement may contain terms restricting the manner in which the
landowner may use their land. 168
The legislation states that such agreements are binding on a landowner, but will only bind a
successor in title where specifically stated.169 If an agreement is expressed to be binding on
successors in title, the Secretary must as soon as practicable after entering into the agreement
apply in writing to the Registrar of Titles to have a recording of the agreement made in the
Register and on receiving that application, the Registrar of Titles must make that recording in
the Register.170 Once the agreement has been recorded on title, the land owner's successors in
title are deemed to have notice of the agreement, and all rights and liabilities under that
agreement are binding on and enforceable by or against the land owner's successors in title
and run with the land.171
This is a good approach, as it ensures that any agreement expressed to operate in rem will be
recorded on title, and therefore visible in a title search.
It is suggested that where governments create obligations and restrictions on land use, they
specifically address whether they are designed to operate in rem or in personam. In the
instance of obligations and restrictions designed to operate in rem, it is imperative that the
existence of these instruments is easily ascertainable by a prospective purchaser. This can be
166
167
168
169
170
171
Transfer of Land Act 1958 (Vic) s 27(6)(a).
Conservation, Forests and Lands Act 1987 (Vic) s 69(1).
Conservation, Forests and Lands Act 1987 (Vic) s 70.
Conservation, Forests and Lands Act 1987 (Vic) s 71.
Conservation, Forests and Lands Act 1987 (Vic) s 72(1).
Conservation, Forests and Lands Act 1987 (Vic) s 72(2).
307
achieved through the methods discussed above – namely, by recording obligations and
restrictions on title without the benefits of registration, or by representation on a spatial map.
It is further suggested that governments review existing legislation which creates obligations
and restrictions on use, and amend such legislation to include a provision stating whether the
obligations and restrictions are intended to operate in rem or in personam. Where they are
intended to operate in rem, these statutes should also have provisions requiring the
administering agency to notify the Registrar of Titles, preferably within a prescribed time
limit. The Torrens legislation should also be amended to oblige the Registrar to record this
information against title.
It is also advisable that legislation contain a provision stating that obligations and restrictions
are not enforceable against a successor in title until recorded on title. This ensures that
landholders or prospective purchasers will not be prejudiced where departments delay
notifying information to the Registrar of Titles.
These steps will ensure that obligations and restrictions designed to operate in rem will be
easily ascertainable by a prospective purchaser.
7.
Recommendations for reform
Chapter Seven made a number of preliminary recommendations for reform applicable to
those Australian jurisdictions currently managing obligations and restrictions on land title and
use in a fragmented manner. These recommendations were based upon the findings of the
case studies, and the features identified which could assist with effective management of
obligations and restrictions on title and use. This chapter has considered any potential
problems with these recommendations, and revised them accordingly.
In summary, this thesis makes the following final recommendations:
A new system should be developed incorporating the land title register and a spatial database
 The scope of the land title register must be expanded beyond its traditional role of
recording only details affecting ownership;
308
 All obligations and restrictions which affect individual parcels of land should be
recorded on title;
 All legislation creating obligations and restrictions which affect individual parcels of
land should be amended to include a provision obliging the agency to notify the
Registrar of Titles within a certain period of time, and obliging the Registrar to record
the restriction;
 This legislation should also contain a provision stating that the instrument does not
bind successors in title until it is recorded;
 These obligations and restrictions should be recorded on title, as opposed to
registered, and should not attract the benefits of indefeasibility;
 The State’s Torrens legislation should be amended to specifically address the
existence and operation of these records, and to make it explicit that indefeasibility
and other benefits of registration do not apply to these interests;
 Title searches should be amended so that the distinction between registered and
recorded interests and the legal ramifications is made clear;
 A spatial database should be used to demonstrate blanket obligations and restrictions
which affect multiple parcels of land, such as zoning. This is because spatial
databases are likely to be more appropriate to these restrictions, and also more cost
effective;
 This spatial database should be established under statute;
 Each State’s Torrens legislation should be amended to ensure that land title register
searches include a note at the foot advising searchers to consult the spatial database.
This effectively ensures that the register and database are linked; and
 The land title register and the spatial database together should contain all information
on obligations and restrictions affecting land title and use.
Compensation and liability
 Torrens legislation should be amended to specifically exempt these records on title
from the state guarantee of title, and to provide that compensation is not available
where obligations and restrictions affecting use are recorded on title;
 Land acquisition legislation should also be amended to make it clear that obligations
and restrictions on land use do not constitute a ‘taking’ of property;
309
 The provision of incorrect information could lead to liability for incorrect
information, thus government departments should take steps to ensure that
information is accurate;
 Disclaimers can be used while the system is being established, but their use should be
minimised once the system is operational, as the entire purpose of providing this
information is for searchers to rely on it, and to avoid the need for numerous queries;
 It may be appropriate to draft legislation specifically making compensation available
where incorrect information is provided, either on the land title register or on the
spatial database. It is unlikely this would increase liability, and may in fact encourage
governments to take greater care providing information;
 The Memorandums of Understanding used in Western Australia could be adopted in
other jurisdictions where agencies are providing information to the Registrar to be
recorded on title. These documents could be used to oblige the agency to use their
best endeavours in supplying the information, which can also ensure their accuracy;
and
 Such a document could also clarify where liability will lie if information is incorrect,
with the most appropriate entity being the agency responsible for the data.
Obligations and restrictions designed to operate in rem
 All legislation creating obligations and restrictions on land title and use should be
amended to specifically state whether these instruments are intended to operate in
personam or in rem;
 All legislation creating obligations and restrictions on land title and use should also
contain a provision requiring the agency to notify the Registrar of the instrument. This
requirement should be mandatory, and a time period should be specified;
 Torrens legislation should be amended to require the Registrar to record this
information. This requirement should be mandatory, and a time period should be
specified; and
 Where obligations and restrictions are intended to operate in rem, recording should be
a pre-condition to effect. The statute creating or enabling creation of the instrument
should state that it is not enforceable against a successor unless it is recorded on title.
Alternatively, the Torrens legislation could be amended to state that obligations and
310
restrictions are not enforceable against a successor unless recorded on title, or on a
spatial database.
To give effect to these recommendations, the following legislative amendments are proposed.
Legislation to be
Proposed amendment
amended
All legislation creating Obligation to notify Registrar of titles
obligations
or (1) This section applies where [an agreement is entered
restrictions which affect
into/restriction is imposed] under this [part/section]
land use
(amend according to the layout of the Act);
(2) Where [an agreement is entered into/restriction or
obligation is imposed], the [Chief Executive/Person
responsible for administering the Act] must notify the
Registrar of Titles within [7 days] by lodging the
relevant form;
(3) The Registrar of Titles must, as soon as practicable,
record the existence of this [agreement/restriction or
obligation] on title, so that a search of the register will
disclose its existence;
(4) This [agreement/restriction or obligation] does not
bind the landholder and the landholder’s successors in
title until such records are made.
Effect of [agreement/restriction or obligation]
(1) This [agreement/restriction or obligation] [does/does
not] bind the landholder, and the landholder’s
successors in title.
Land Titles Legislation
Definitions
‘Register’ or ‘registered’ refers to information on title
which attracts the benefits of registration
‘Record’ or ‘recorded’ refers to information on title which
is for information only, and does not attract the benefits of
311
registration
To establish records
(1) The Registrar of Titles may record additional
information on title where authorised by another Act;
(2) This information must be recorded in such a way that
it is clearly distinct from information relating to title.
To exempt guarantee
(1) The State guarantee of title in [insert relevant section]
does not apply to information recorded under [insert
section of the above amendment]; and
(2) Compensation is not available where restrictions or
obligations on land use are recorded on title.
To reference spatial database
(1) The Registrar of Titles must, as soon as practicable,
make a note on all indefeasible titles so that a search
of the land title register will disclose the existence of
a database containing additional obligations and
restrictions on land use.
New
legislation Purpose
establishing
a
database
spatial
(1) The object of this legislation is to establish a database
whereby
governments
can
spatially
record
obligations and restrictions affecting land
Obligation
(1) Government agencies must, as soon as practicable,
provide
information
on
all
obligations
and
restrictions to the administering authority;
(2) The administering authority must take steps to ensure
that these obligations and restrictions are visible on a
search of the database.
Land
legislation
Acquisition No right to compensation for obligations and
restrictions on land use
(1) compensation is available where a person’s interest in
land is taken;
312
(2) an interest in land is deemed to not be taken where
legislation places obligations and restrictions on land
use.
Land Titles legislation Entitlement to compensation for incorrect information
and
New
establishing
legislation
a
(1) where information [recorded on title/recorded on the
spatial
database
spatial database] is incorrect, and a person suffers
loss as a result of this, the person may claim
compensation from the government department who
is responsible for the information.
These suggested legislative amendments are very general in nature, and it is necessary to
examine the jurisdiction’s particular legislative structure in depth to determine whether these
amendments are the most appropriate legislative mechanisms to use. These amendments will
then need to be refined to suit the relevant jurisdiction.
However these recommendations generally should assist all Australian jurisdictions to
develop a system which effectively manages all obligations and restrictions on land title and
use
within
the
context
of
a
Torrens
framework
of
land
registration.
313
Chapter Nine
Conclusion
1.
Research findings
This thesis commenced with the hypothesis that in most Australian states, information
concerning obligations and restrictions on land title and use is not managed in a coordinated
and consistent way. Chapter Four profiled the approach in Queensland, which is indicative of
the approach used in other Australian states.1 This case study showed that obligations and
restrictions on land use derive from a fragmented collection of Acts, regulations, and plans,
and are administered by several different government agencies. This has led to several
problems:
 The Torrens system is no longer meeting its goal of providing a complete and
accurate picture of title; and
 This uncoordinated approach to the management of land titles, and obligations and
restrictions on land use has created a barrier compliance with environmental laws.
Chapters Five and Six profiled Western Australia and New Zealand, as both of these
jurisdictions have undertaken detailed programs of reform to more efficiently manage
information concerning obligations and restrictions on land title and use.
Chapter Seven compared the findings of these three case studies, and identified the features
of the jurisdictions that are likely to contribute to effective management of information
concerning obligations and restrictions on land title and use. Based upon these features,
Chapter Seven made preliminary recommendations for reform. These recommendations were
as follows:
 A detailed program of reform must take place in each jurisdiction, rather than a series
of reactive measures designed to fix existing problems;
 Expansion of the land title register to provide for all obligations and restrictions on
land use which affect individual parcels of land;
 Development of a spatial database to represent obligations and restrictions which
affect multiple parcels of land;
1
With the exception of Western Australia, and potentially Victoria.
314
 Use of a system which leaves information in control of the administering agency, and
attributes liability to this agency; and
 A legislative guarantee of accuracy for all information obtained from a title search
and a spatial database search.
Chapter Eight built upon this analysis, and anticipated a number of potential issues with the
proposed recommendations, as well as barriers to their implementation. Chapter Eight
considered the following matters:
 Indefeasibility and issues with placing obligations and restrictions on title;
 The state guarantee of title and compensation for loss;
 Statutory and common law liability for omissions and incorrect information; and
 The effect of in rem versus in personam obligations and restrictions.
Taking these issues into account, Chapter Eight devised a final set of recommendations for
reform.
2.
Recommendations for reform
It is recommended that Australian states currently managing obligations and restrictions on
land title and use in a fragmented manner should embark on a detailed program of reform.
This thesis advocates development of new systems for management of obligations and
restrictions on title and use, incorporating the land title register and a spatial database. To this
end, Chapter Eight made the following recommendations:
 The scope of the land title register must be expanded beyond its traditional role of
recording only details affecting ownership;
 All obligations and restrictions which affect individual parcels of land should be
recorded on title;
 All legislation creating obligations and restrictions which affect individual parcels of
land should be amended to include a provision obliging the agency to notify the
Registrar of Titles within a certain period of time, and obliging the Registrar to record
the instrument;
 These obligations and restrictions should be recorded on title, as opposed to
registered, and should not attract the benefits of indefeasibility. As stated above, it is
not desirable that these instruments receive the benefits of indefeasibility;
315
 Each State’s Torrens legislation should be amended to specifically address the
existence and operation of these records, and to make it explicit that indefeasibility
and other benefits of registration do not apply to these interests;
 Title searches should be amended so that the distinction between registered and
recorded interests and the legal ramifications is made clear;
 A spatial database should be used to demonstrate blanket obligations and restrictions
which affect multiple parcels of land, such as zoning. This is because spatial
databases can represent these obligations and restrictions more accurately, and they
are also a more cost effective solution;
 This spatial database should be established under statute;
 Each State’s Torrens legislation should be amended to ensure that land title register
searches include a note at the foot advising searchers to consult the spatial database.
This effectively ensures that the register and database are linked; and
 The land title register and the spatial database together should contain all information
on obligations and restrictions affecting land title and use.
This thesis has attempted to justify why these recommendations are the most appropriate
course to follow in a jurisdiction using a Torrens framework for land registration. The
comparative methodology requires regard to be had to the jurisdiction’s legal background,
therefore the role of the land title register is very important to consider.
It was noted that these recommendations could lead to increased claims for compensation,
either on the basis that land use rights were affected by obligations and restrictions, or on the
basis that incorrect information was provided. To combat these problems, the following
recommendations were made:
 Torrens legislation should be amended to specifically exempt these records on title
from the state guarantee of title, and to provide that compensation is not available
where obligations and restrictions affecting use are recorded on title;
 Land acquisition legislation should also be amended to make it clear that obligations
and restrictions on land use do not constitute a ‘taking’ of property. This is relevant
because the definition of ‘interest’ in Queensland has recently been expanded;
 The provision of incorrect information could lead to liability, thus government
departments should take steps to ensure that information is accurate;
316
 Disclaimers can be used while the system is being established, but their use should be
minimised once the system is operational. This is because the purpose of providing
this information is for searchers to rely on it, and to avoid the need for numerous
queries;
 It may be appropriate to draft legislation specifically making compensation available
where incorrect information is provided, either on the land title register or on the
spatial database. It is unlikely this would increase liability, and may in fact encourage
governments to take greater care providing information;
 The Memorandums of Understanding used in WA could be adopted in other
jurisdictions where agencies are providing information to the Registrar to be recorded
on title. These documents could be used to oblige the agency to use their best
endeavours in supplying the information, which will encourage accuracy; and
 Such a document could also clarify where liability will lie where information is
incorrect, with the most appropriate entity being the agency responsible for the data.
These recommendations should ensure that claims do not arise where landholder’s rights to
use land are affected by legislation. Compensation for interferences with title should be
retained.
It is suggested that liability should attach to government agencies where incorrect information
is given. It would be antithetical to the purpose of this thesis to provide for a system where
information is available, but cannot be relied upon. Therefore a specific legislative provision
imposing liability and making compensation available may well be appropriate to adopt.
Furthermore, this thesis recommended that governments specifically address whether
obligations and restrictions are intended to bind successors in title. The following specific
recommendations were made:
 All legislation creating obligations and restrictions on land title and use should be
amended to state whether these instruments are intended to operate in personam or in
rem;
 All legislation creating obligations and restrictions on land title and use intended to
operate in rem should also contain a provision requiring the agency to notify the
317
Registrar of the instrument. This requirement should be mandatory, and a time period
should be specified;
 Torrens legislation should be amended to require the Registrar to record this
information. This requirement should be mandatory, and a time period should be
specified; and
 Where obligations and restrictions are intended to operate in rem, recording should be
a pre-condition to effect. The statute establishing the obligation or restriction should
state that it is not enforceable against a successor unless it is recorded on title.
Alternatively, the Torrens legislation could be amended to state that obligations and
restrictions are not enforceable against a successor unless recorded on title, or on a
spatial database.
Chapter Eight also proposed some draft legislative provisions to give effect to these
recommendations. These provisions are very general in nature, and would need to be adapted
to each jurisdiction’s existing legal framework.
3.
Importance of this research
As noted above, it is essential when applying the comparative methodology to have regard to
the jurisdiction’s legal background. The purpose of this thesis is to make recommendations
for law reform in Australia, and an important part of the legal background in Australia is the
existence of the Torrens system of land registration.
Although there has been some research in Australia addressing management of obligations
and restrictions on title and use, very little of this research has considered the role of the
Torrens system in depth, and any legal implications associated with extending its role.
Therefore this research is important, and fills a gap in the existing academic literature.
4.
Areas for further research
This thesis has provided a starting point for future research. This thesis has made a number of
recommendations for reform, which are intended to be of use to Australian jurisdictions
managing obligations and restrictions on title and use in a fragmented manner.
318
As noted earlier, the implementation of these recommendations needs to be part of a detailed
program of reform, as opposed to the current ad-hoc approach adopted in response to specific
issues. This thesis analysed the Queensland approach in depth, and the recommendations are
tailored to the legislative and regulatory structure in Queensland. Further research could
examine the legislative structures other Australian states, as these recommendations may
need to be adapted to their legislative background. Additionally, the proposed legislative
amendments in Chapter Eight need to be tailored to suit each individual jurisdiction.
Further, by necessity this research program was quite narrow in nature, and did not question
the current legislative and regulatory structures in Australia; it merely devised
recommendations for an information management system to operate within this structure.
Further research could examine whether integrated legislation, such as is used in New
Zealand, could be used in Australia.
Additionally, this thesis did not question whether regulation is in fact the best method to
achieve environmental outcomes. Further research could examine the merits of other
methods, such as market-based instruments, and the role of the land title register in providing
information concerning these instruments.
319
Appendix A
Sample Queensland Title Search
320
321
322
Appendix B
Sample Queensland Statutory Covenant
323
710139982 Vi REGISTERED Recorded Date 29/11/200611 :00 Page 1 of 3
COVENANT
QUEENSlAND LAND REGISTRY
Form 31 V..-sion 2
Land TiU. AclI994 and Land Act 1994
Page 1 of 3__
710139982
$111.30
29/11/20!~
11 :00
CS 616
1.
3.
Lodger
Code
754
MacDonnells
Cnr Shields & Grafton Streets
CAIRNS OLD 4870
PH: (07) 4030 0600 Rat. MRS:65520
I
Covenantor
Body Corporate for Argentea Beach CTS
2.
Lodger (Name, addr.ss & phone number)
36~"1
Description of Covenant I Lot on Plan
County
Parish
Covenant B in Common Property of Argentea
Beach CT~n SP 184855
.. '~
~
Nares
Smithfield
Title Reference
213SS"o2.7
Covenantee
CAIRNS CITY COUNCIL
4.
Description of Covenant (lndude re~nce 10 relevant section of legislation)
) c::;c
Preservation ~
(i
C~"G9f'/a\ie" 8f\a !!'IaiA\eREm~El'of Native Vegetation pursuant to Section 97A(3)(b)/land Title Act 1004.
5.
Execution
The Covenantor being the registered owner of the lot described in item 2 covenants with the Covenantee in respect of the
covenant described in item 4 and:- 'the attached schedule; 'IRe altasReG sG~eG~I. aRe ses"meAI AG ............................... ;
ses"",.",!
Aa. ....... .................. ..... ........ .....
('delete inapproprlale words)
Witnessing officer must be aware of his/her obligations under section 162 of the Land Title Act 1994
ng Officer
.....
Execution Date
. .................................................. signature
{, I
....J;&.4 . .1n.M"I1!.Q.if.I.....~11 name
111"biOb
Covenantor's Signature
Executed by the Body Corporate of Argentea Beach
CTS 36;:0'1 by Palm Cove Developm'!£l.t-~I
Nominees Ply Lld (ACN 110 613 342) as_"OWner
by its duly authortsed
y Leslie Anthony
Davies under Power 0
No. 709660519
~
...... .$.~.I!:c./fo~ ............................... ,qualification
(W"rtnesslng officer must be In accordance with Schejul& 1 of Land TItle Act 1994 eg Legal Practitioner, JP, C Dec)
Witness! ng Officer
. . . . . . . . . . . . . . .i.'y. . . . . .
'J.
-'
~Ji.'.
Signature'-'
execution Date
~/l\ /0)0
)./'
............ :,:........;>. '.y.................................. fun ne.me
Mayor
........::.~;:.: ............................................. qualification
",",,0 c:llIilfv. tht!OI
{Witnessing officer must be In accordance with Sroedul& 1 of Land Title Act 1994 eg Lega! Practitioner•. ~>:£~~;p~
C The State of Queensland (Environment and Resource Management) 2009
324
SCHEDULE
QUEENSLAND LAND REGISTRY
land Tltie Act 1994. Land Act 1994 and Water Act 2000
Form 20 Version 2
Page 2 of 3
Title Reference
This is the Schedule referred to in Covenant dated
1.
.2006.
Interpretation
Unless tl'1e context otherwise requires 0( the contrary intention appears, the following terms shall have the
meanings respectively assigned to them "Council" means Cairns City Council together with Its successors and includes its members, officers, employees,
contractors and other persons authorised by the Council.
"Covenant Area" means the area or areas referred to In item 2 of the Form 31 entered into between the
Landowner and the Council and "Covenant Areas" has a similar meaning.
"Landowner" means the registered proprietor(s) from time to time of the Covenant Area and all successors in title,
lessees, trustees, occupiers and mortgagees of the registered proprietor's interest in the Lot. The term includes the
Covenantor.
"Lot" means the Lot or Lots described in Item 2 of the Form 31.
2.
Description of Covenant
This Covenant is for preservation of all native plants within the Covenant Area.
3.
4.
Responsibility of Landowner
(a)
The Landowner must preserve all native vegetation in the Covenant Area in its natural slate with the
exception of overgrown grass and dangerous, diseased, dying or dead plants and branches.
(b)
The Landowner must not allow the introduction of any non-endemic plant species into the Covenant Area.
(c)
The Landowner must not usa the Lot or undertake operational works in any way which interferes with or
destroys any native vegetation, including undergrowth and regrowth in the Covenant Area.
(d)
The Landowner must not dispose of or store garden waste or any other waste within the Covenant Area.
(e)
The Landowner must not carry out any landscaping within the Covenant Area.
(f)
The Landowner must not cause damage to (either above or below ground) or destroy any vegetation within
the Covenant Area protected by this Covenant without the prior written consent of the Council;
(g)
The Landowner must not construct any structures within Ihe Covenant Area except where previously
approved or required by the Council;
(h)
The Landowner must not do anything to Impede or alter Or allow anything that impedes or alters the
overland flow of water on the Covenant Area.
Council's Right of Access and RectWlcation
The Landowner hereby expressly authorises the Council at any reasonable time and upon giving reasonable notice
set oul in Clause 7 to enter, re-enter, traverse and leave Ihe Covenant Area with all necessary tools and equipment
for the following purposes:to ·,nspect, test and monitor the Covenant Area and vegetation on the Covenant Area
10 make good any breach of the obligations of the Landowner under this Covenant at the cost and expense
of the Landowner.
5.
RectWlcation Costs
325
QUEENSLAND LAND REGISTRY
SCHEDULE
Land TItle AcI1994, Land Act 1994 and Water Act 2000
Form 20 Version 2
Page 3 of 3
Title Reference
In the event of the Council undertaking any rectification works pursuant to Clause 4, the cost of such rectifrcalion
works as certified by an authorised representative or officer of the Council shall become a debt due and payable to
the Council on demand.
The costs of rectification works may indude labour costs of the Council andlor wildlife preservation services, and
the costs of trees and/or plants, plant and equipment, administration costs, reasonable legal costs, interest and
overheads. If the rectification works are carried out by an independent contractor, the costs of rectification will
include the amount paid to such contractor.
6.
Costs of Covenant
The Landowner shall pay the Council's costs properly incurred in the preparation, stamping and registration of this
Covenan!.
7.
Service
Any certificate demand or notice by or from the Council to or upon the Landowner shall be suffiCiently made, given
or served if forwarded by registered mail in an envelope addressed to the landowner's last known address. Such
certificate demand or notice shall be deemed 10 have been served at the time when in due course of post it would
be delivered at the address 10 which it is sent.
8.
WaIver
Any alleged waiver of any breach of this Covenant by the Landowner is effectiVe only if it is given in writing by the
Council. A waiver by the Council of a bnsach of this Covenant does not operate as a waiver of any other breach of
this Covenant.
9.
Severance
If any part of this Covenant is held to be invalid, illegal or unenforceable by a Court having the jurisdiction 10 do so,
that part is considered to have been severed from the rest of this Covenant which remains in force unaffected by
the holding by the Court or by the severance of that part.
326
Appendix C
Sample Queensland Property Search
327
SEARCH
HATE
['-', No: 9 Ll746.S
Date: 02-Feb-2009
Application Received: 27·.7"n-2009
Your Ref:
Location
7/136 Bryants Road. SHAILERPARK. QLD 4128
Dcscnpliun
Lot 7 BUP 6268
CUITent O\VneI
ChelTle Beverley Abbott
Area
930M2
Cnllllpmved Capital Value
Rateable Value
Nul Applicable
S51,667
31 DecOF
i\rrears as at
Cross Current Levy
Balance al
01·Jan·09- 31-:\1ar-09
02··Feb·2009
liO.OO
S492,]S
510,00
A water consumplion charge of $55.33 for the billing period 05,·08·0g to 29·10·08 is mcluded in the above Cross
CUlTent levy.
Discuunt of $20.07 (excluding Fire Levy and Water Consumptiun) has been allowed, For adjustment purposes, it 1S
necessary to deduct thIS amount from the ab()ve Gross CUlTent Levy,
(Please see
,evc~'se
for important infonnationl)
ry ADMINISTRATION CENTRE
J VVEMBLEY ROAD
'GAN CENTRAL OLD 4114
i80X 3226 LOGAN CITY DC OLD 4114
COUNCIL ENQUIRIES;
Ph
(07)34123412
Fax: (07) 3412 3444
LOGAN;
FOR FAMILIES, LIFESTYLE &c BUSINESS
www.logan.qld.gov.au
Email: cQuncil@logan.qld.gov.au
ABN 21 627 796 435
328
9113746.8
,
LOGAN ENTERPRISES
METERED WATER:
PLE ASE NOTE: In accordance with the Body Corporate & lOmmUnlty Management ACL water consumption
will be bli led by way of lot entlliemenl
Assessment No: 9113746.8
Meter Number: R0400 7594
28-Jan-2009
29-0cl-2008
Most recent reading:
PrevIOus reading:
885
kl
515
kl
Water consumption charge for 10.00% share 0[370 kls
$1.82 per kl
37 kls ~ $67.34
Thls fom1s pan of the water consumption charge to be raised in the next billing quarter and is additional to
the above rale levy, issued on the 141h of January 2009.
DEVELOPMENT HEALTH & ENVIRONMENT
Development 011 this property is subject to the provisions of Council's Plan ning Scheme, which
includes Development Control Plans and Local AI'ea Plans and may be subject to particular
requirements of a development permit includ ing, but not limited to, such matters and building
envelopes, bu il d ing on steep lots, outstanding headwork's charges etc. Shou ld you wish to obtain more
detailed info rm ation r egard ing the above you arc advised to contact Council's Development
Assessment Branch on (07) 3412 5269.
DEVELOPMENT ASSESSMENT
Resi dential 1000 Zone
Development COllstraints
OLl - ACID SULF ATE SorLS AREA
CITY STANDARDS
BU1LDING ApPLlCATION INFORI\1ATlON:
The following building works appiication/s hasihave been received:
APPLICATION DATE
PERi\1lT NUMBER
CLASS & DESCRIPTION
BW!l75211990
Domestic - Multlple Dwelling
WATER AND SEWERAGE I NFORMATION:
The following plumbing & drainage application/s has/have been recelved:
APrLlCATION DATE
No t Available
PERMIT NU MBER
PDI3 16152/200 1
If fU rlher mfOlTnallOn regarding the status of the above buildmg/water & sewerage applicallons, inspections
or requlsltions is req uired, details may be obtained from Counci l's City Standmds Branch by lodging the
329
9113746.8
appilcatlOn for
signed contract and application fce.
Report' form, together wllh a copy of the
& Drainage
If an I11spectlon IS required to dctennme the status of CX1Stl11g bUlldll1g/structures. plu11lbll1g & d'·31'ldlZC \\urk
(ll1clud1l1g SW1J1lJ1lll1g pool and fence compl13nce) on sIte a 'Building/Plumbillg & Drainage inspection
Report' is available to cunenl property owners. If a purchaser requires this mf0Il113[]OIl. a teiler of authorny
10 Inspec, the property fi'olll the currc,lt owneriS
rCCJlllred. rhen Cll1 appllCall()n ,nus'. be ·ll(:"eci \\ I'll
Council's City Standards Branch.
Should you \vish to derenmne whether there are any requislllOns or mamtenance defects 111 respect of any of
the SerV1GeS for the property, Councll recommends that you contact COllncJ!"s CIty Standards Brancl1 to
3n3nge an inspcctlOn by Council's Water and Sewerage Control Inspectors. As constructed plans of any
water and sewerage serVIces for the property arc also available lrom this branch upon payment of a
prescribed fee.
For fl.l,ther illformation OH building/water & sewerage matters refer
Branch on (07) 3412 5318.
Ccmlldl's City St3mJanls
The property is located in a declared sewer area. The building over, or interference with, Council's
Sewerage System is an Offence under the Water Act :WOO (as amended). Council's recommends that you
obtain or view the as-constTllctcd sewer mam details for the property prior to scttlement To obtain 8 copy of
this 111follnation please submlt a "Residential Property InformatlOl1 Form - Category C A.pplica(lOn" to
Council with the prescribed fee. To view this infoll11utlOn at Council, please contacl the City Standards
Brancll on (07) 3412 5318.
ThiS properly scarch does not make any representations as to the eXblence Of othCTWISC 01 lill" Cllllciillon of
any waler plumbmg, sanitary plumbmg, s8111tary dramage, or stormwatcr Il1s1allatlon ("waler and sewerage
servIces') for the subject properly.
None blown to CounciL
If 11
inspectlOn fer Breaches of By· Laws ete is required such a request should be made in writing
dnd accompal11cd by the current inspectlOn J:i:e.
LOCAL LAWS:
Please be adV1sed that dogs over
(8) kilograms are not pennitted to be kept 011 this property.
Further be advised that dogs eight (8) kllograms or less may only be kept on th15 property if authorised
by cl permiT. The dog must be desexed and kept in accordance with the conditions of the permit. Details
of the conchtions and an applicatlOl1 form may be obtumed by contactll1g the Animal & Pest Services
Branch on (07) 34125318. A non-refundable appilcation fee applies.
ThiS search does not contair; any mf0ll1131ion regardlllg Contammaled Land Please address any enqulI"lcs
relating to the Envllonmental Management RegIster or Conlamlll3red Land Reglstcr to the l:.llv:onrncnldl
ProtectIOn Agency, Land COl1tamlllallon Umt. PO Box 155. AL13ERT STREET, BRISB.ANE QLD 4002
CITY
WORl{~
Infoll1:atioll relating to COU11C1l' s sewerage system, water supply system, or stormwater dramage is avai lable
froJ1l Councll's City Works Technical Services Branch upon payment ofa prescribed fee.
330
9113'746,8
FLOOD LcVELS~
Please note that in accordance with Council's Planning Scheme Policy No, 6 (Flood Plain 'Vlanagernent Area)
2006, l~le Flood Plam ;'v13nagemenl Overlay map COL rvIap 2) does not afficct this property
}"TB: For propcrtles outside this 8re~L care lYlUS[ be rakcl1 in relation to possible local f1ooci:nf, or r,~lllJ:'Jl
overiand floyv fndividuc,J asseSSlnenl should ~e ll1ade in each case. There is no waJTcmty ~lven as lo Lne
aCCU,.-3CY of the infoll'"'Jlatiun ShO\V!l and Counc] can1lot sr'.d ShDli not be held rcspunslbie for ar;y ciarnc;g.e
WhlC:"h 111:JY occur as a result of i'ulurc tloodjng
PROPOSED R~SllI\1PTJONS OR RE»,ALIGMvlENTS: None known (0 CounciL
Finance Manager
(QllJ?~lalf QLCb.TjsJ~~_~}lierJixe~JJtive
QfficcLl
331
Appendix D
Screen captures demonstrating the operation of Interest
Enquiry
332
Once logged into Interest Enquiry, a map of Western Australia is displayed. The user
then types in the relevant street address.
333
The property is then represesnted on a spatial map.
334
The user then selects the ‘Interests’ tab to search for obligations and restrictions.
335
The user selects the interests that they wish to search
336
If the user wishes to search for all interests, they leave this field blank. Interest Enquiry
then simultaneously searches all available data
337
The user is then provided with a printable summary of all restrictions and obligations
338
339
Appendix E
Sample Interest Enquiry Report
340
Interest Report
Acid Sulfate Soil Risk
Interest Type
Acid Sulfate Soil Risk
Product Custodian
Department of Environment and Conservation (DEC)
Local Government
Authority
Shire Of Gingin
Area Of Interest
Land Parcel Address:
L 100 BOONANARRING 6503;
Parcel Id:
Lot 100 On Plan 47963
31°15'34"S 115°50'00"E
Note: Image supplied is for reference only. It is scale dependant and therefore may not show the Interest in relation to
properties displayed herein. Always review the content of this report to determine the outcome for your property.
Request
80017210
Thu Jun 04, 2009 10:28:55 WST
Page 1 of 5
341
Interest
Report
Acid Sulfate Soil Risk
About This Interest Report
This Interest Report will provide you with information on whether or not your area of interest is in an area known by DEC
to be at risk of being affected by acid sulfate soils (ASS).
What is the purpose of the report?
This report is provided to assist land developers, environmental scientists, urban planners and infrastructure service
providers to determine whether land use proposals will be affected by ASS.
What are acid sulfate soils?
ASS are naturally occurring soils, sediments and peats that contain sulfides, most commonly pyrite.
In an undisturbed, waterlogged state these soils are relatively harmless, but when disturbed and exposed to oxygen
through water table drawdown, drainage or excavation, these soils produce sulfuric acid in large quantitites.
Other toxic elements such as arsenic, aluminium and heavy metals can be mobilised when acid sulfate soil materials
are exposed to air.
Typical ASS landscape characteristics
ASS in WA frequently occur in low-lying wetlands, estuaries, salt marshes and tidal flats but are not limited to coastal
regions.
Dominant vegetation in high ASS risk areas - tea tree, paperbark, salt sheoak, flooded gums, samphire, mangroves,
saltcouch and swamp tolerant reeds and rushes.
Indicators of ASS disturbance in soil - stunted or dead vegetation, acid scalds, iron monosulfides and jarosite.
Indicators of ASS in water - crystal clear water, yellow-brown water, iron flocs, blue-green water and milky white water.
WARNING - these activities may generate acid in certain areas
- major earthworks - large scale excavations for urban developments and canal estates
- infrastructure earthworks - digging for roads, railways, sewerage pipes, underground cables and drains
- maintenance dredging - boating channels and canal estates
- drainage - digging channels to manage waterlogging in agricultural areas
Request Number:
80017210
Thu Jun 04, 2009 10:28:55 WST
Page 2 of 5
342
Interest Report
Acid Sulfate Soil
Risk
Legislation governing the Interest
Acid Sulfate Soil Risk
Information supports broad-scale planning and environmental management (not site-specific) in accordance with
the
Planning and Development Act 2005.
Agency Response
The area of interest is categorised into the following class or classes of ASS risk.
Acid Sulfate Soil Areas
Risk Class
2
Note: Where more than one risk level exists at any one location within a site, the high risk level will apply.
Areas of land are categorised into two risk classes according to the probability and depth of ASS occurrence
and the subsequent risk of disturbing ASS:
Risk Class 1 (Red) - ASS occurs within 3m of natural soil surface
Risk Class 2 (Orange) - ASS occurs at depths greater than 3m of natural soil surface
If your land falls within:
Risk Class 1 (high to moderate) - ASS materials are known to exist at depths less than 3m below the natural soil
surface. An ASS Self Assessment Form and the preparation of an ASS management plan is automatically
required by the WAPC as a condition of approval for planning proposals in high to moderate risk areas.
Risk Class 2 (moderate to low) - ASS materials are known to exist at depths greater than 3m below the natural
soil surface. If you intend to dewater or drain your site, you will need to carry out further investigations as
specified in DEC's ASS guidelines. These are available at www.dec.wa.gov.au/ass along with other information
to help in the identification and investigation of ASS in WA.
Request Number:
80017210
Thu Jun 04, 2009 10:28:56 WST
Page 3 of 5
343
Interest
Report
Acid Sulfate Soil Risk
Relevant Guidelines
DEC has published guidelines to help with the assessment, management and remediation of acid sulfate soil landscapes
in Western Australia.
- Treatment and management of soils and water in acid sulfate soil landscapes, January 2009 (draft)
- Identification and investigation of acid sulfate soils and acidic landscapes, May 2009
These guidelines and a series of fact sheets are available at www.dec.wa.gov.au/ass
Investigating further
Investigating ASS sites is often a complex process requiring the assistance of a suitably qualified environmental
professional. Advice on how to engage a qualified consultant can be found at www.dec.wa.gov.au/contaminatedsites
ASS Hotline - 1300 762 982
www.dec.wa.gov.au/ass
Disclaimer
This Interest Report has been prepared by Department of Environment and Conservation (DEC). While DEC makes
every effort to ensure the accuracy, currency and reliability of this information at the time it was prepared, circumstances
may have changed since the information was originally provided. Users must exercise their own skill and care when
interpreting the information contained within this Interest Report and, where applicable, obtain independent professional
advice appropriate to their circumstances. In no event will DEC, its agents or employees be held responsible for any loss
or damage arising from any use of or reliance on this information. Additionally, this Interest Report must not be
reproduced or supplied to third parties except in full and unabridged form.
Request Number:
80017210
Thu Jun 04, 2009 10:28:56 WST
Page 4 of 5
344
Acknowledgement
Interest Enquiry delivers information compiled from a range of government agency sources using SLIP
Enabler – A revolutionary way to use and share Government spatial information in Western Australia.
Only information approved by the relevant data Custodian is included in an Interest Report.
If your enquiry is about the system, please call Landgate's customer service team on (08) 9273 7333.
If your enquiry is about an Interest, please refer to the Custodian's contact details included in this
Interest Report. For details about SLIP Enabler go to www.walis.wa.gov.au/SLIP or email
SLIPEnabler@landgate.wa.gov.au
DISCLAIMER
The information contained in this document ("Information") may be derived from several sources.
While this Information is provided in good faith, this does not mean that it is accurate, complete or
suitable for your purpose. Information from third parties is provided for convenience only, without any
endorsement by Landgate.
If you use the Information you must verify it with your own professional advisers or the relevant
Government agency sources.
Landgate disclaims liability for any use of or reliance on the Information, to the extent permitted by law.
345
Appendix F
Sample Western Australian Title Search
346
REGISTER NUMBER
53IP2374
DUPLICATE
EDITION
WESTERN
AUSTRALIA
1
RECORD OF CERTIFICATE OF TITLE
VOLUME
1338
FOLIO
383
UNDER THE TRANSFER OF LAND ACT 1893
The person described in the first schedule is the registered proprietor of an estate in fee simple in the land described below subject to the
reservations, conditions and depth limit contained in the original grant (if a grant issued) and to the limitations, interests, encumbrances and
notifications shown in the second schedule.
REGISTRAR OF TITLES
LAND DESCRIPTION:
LOT 53 ON PLAN 2374
REGISTERED PROPRIETOR:
(FIRST SCHEDULE)
PETER PATRICK VERNON HAMISH ORMOND
CHRISTINE ANN ORMOND
BOTH OF 48 WAVERLEY STREET, SHENTON PARK
AS JOINT TENANTS
(T 1388004) REGISTERED 19 FEBRUARY 2003
LIMITATIONS, INTERESTS, ENCUMBRANCES AND NOTIFICATIONS:
(SECOND SCHEDULE)
1.
1388005
MORTGAGE TO QANTAS STAFF CREDIT UNION LTD REGISTERED 19.2.2003.
Warning: A current search of the sketch of the land should be obtained where detail of position, dimensions or area of the lot is required.
* Any entries prcceded by an asterisk may not appear on the current edition of the duplicate certificate of title.
Lot as described in the land description may be a lot or location.
---------------------------------------------------END OF CERTIFICATE OF TITLE-------------------------------------------------STATEMENTS:
The statements set out below are not intended to be nor should they be relied on as substitutes for inspection of the land
and the relevant documents or for local government, legal, surveying or other professional advice.
SKETCH OF LAND:
PREVIOUS TITLE:
PROPERTY STREET ADDRESS:
LOCAL GOVERNMENT AREA:
1338-383 (53/P2374).
831-29.
48 WAVERLEY ST, SHENTON PARK.
CITY OF SUBIACO.
NDGATE COpy OF ORIGINAL NOT TO SCALE Fri May 8 10: 16:55 2009 JOB 32178737
347
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e
Appendix G
Sample Land Information Memorandum
349
Franklin
DISTRICT
COUNCIL
Name
Address
Address
Address
land
information
memorandum
LlM (\jUr0Eli::R100730
FRANKLlN DISTRICT COUNCIL· 82 MANUKAU ROAD, PUKEKOHE, 2340· PRIVATE BAG 5, PUKEKOHE· DX EP77018
TELEPHONE: 09 237 1300 • FAX: 09 237 1301 • E-MAIL: fdc_lnfo@franklin.govt.nz. WEBSITE: wwwJranklin.govt.nz
350
19 August 2009
Thank you for your application for a Land Infonnation Memorandum for the following property.
Property Address
Legal Description
Area
14.4227 ha
Valuation Number
This Land Infonnation Memorandum (LlM) has been prepared for the applicant in accordance with section 44A of the
Local Government Officiallnfonnation and Meeting Act 1987 (Act), the LlM includes information:
• Which must be included pursuant to section 44A of the Act;
• Not required by the Act but which Council considers to be relevant;
• Which is considered accurate and reliable.
This LlM does not include other information:
• Held by Council that is not required to be included;
• Relating to the land which is unknown to the council.
The property has not been inspected by the Council for the purpose of preparation of this LlM. The information furnished
is based on information contained in existing records relating to the property. No council inspection of the property has
been undertaken in preparing this LlM.
Council records may not show illegal or unauthorized building or works on the land. We recommend that applicants
make arrangements to view any plans that are available.
The applicant is solely responsible for:
• Personally inspecting the property; and
• Ensuring that the land or any building(s) on the land is suitable for a particular purpose; and
• Obtaining a certificate of title, this may also contain obligations relating to the land; and
• Obtaining other information relating to the land. The applicant is advised to contact the appropriate regional council
to obtain any information it may hold.
This Land Infonnation Memorandum is valid as at the date of issue only.
This Land Infonnation Memorandum is issued by:
Franklin District Council,
82 Manukau Road,
Private Bag 5,
Pukekohe.
Phone (09) 2371300.
Signed for and on behalf of Council:
Name:
tfJW;JJt
Position:
Date of Issue:
Date Fee
Paid
17 Aug 2009
Receipt No
2010
Receipt
Amount
$550.00
351
Special Site Features
Council has identified in its records that the land is subject to or has the potential for:
Inundation
Refer attached File Note dated 12103/2002
I Hazardous Contaminants I None Known
I Erosion
I None Known
I Alluvion
I None Known
I Avulsion
I
I None Known
I Falling Debris
I None Known
I Subsidence
I None Known
I Slippage
I None Known
I Certified Fill
I None Known
Uncertified Fill
I Other
Further Reports Available
through Council Records
I
Refer attached Landuse Consent Application dated 16/0112008
I None Known
Yes
D
No
Reference:
Any hazard noted on the land has been done so in accordance with the requirements of section 44(a) of the Local
Government Official Information and Meetings Act 1987. The notation refers to the actual existence, or the potential for, a
particular hazard that may, in some cases, be limited to a localised area on the land. Please review all supporting
documentation carefully. For further clarification, please contact the writer of the supporting infonmation supplied with the
Land Information Memorandum or a suitably qualified independent consultant.
Please note:
Your Regional Council holds infonmation regarding land use activities which appear on the Hazardous Activities and
Industries List (HAIL) compiled by the Ministry for the Environment. The activities and industries identified on the list are
those that are more likely to use or store hazardous substances and therefore there is a greater probability of site
contamination occurring where these activities have been carried out. Please contact your Regional Council to confirm
whether any information regarding HAIL activities is held for this property.
352
Rates/District Water/ District Sewer
The information provided on rateslfinancial details in this report may not reflect the current details of the legal
description/valuation on your application form. This may be due to the property being under subdivision or that the
information has not yet been provided or updated for the current valuation and improvements for this financial year. You
are also advised to check with the Regional Council below for rating infomnation for this property
..
.
'
..•.
."
Please Note: Rates, Rateable Valuation Details and Water Rates relate to a valuation number. This
may be linked to other properties, or a parent property. For this Land Information Memorandum, the
valuation number is linked
Valuation Number
.
Rates
.
.
".
..
.... .....
'
....
Regional Counci.1
.
......
Rateable Valuation
Details
. .
..
'
.
Water Rates
.
I Water Supplier
District Sewer
Owing
$657.52
Land Value
$600,000
Value Improvements
$360,000
Capital Value
$960,000
Infonnalion applies to Franklin District Council systems only.
Water rates may be outstanding on this property as meter readings are completed every six months .
••
I
I
'.
>' .•.
'
$1,972.57
Waikato Regional Council
....
..
Current Annual District Rates
....
Metered Water
NO
Connected
NO
Available
NO
Owing
$
I Not known
Connected
NO
Available
NO
353
Building
permits/Consenfs,.C()deCoq1pliai1c~>~~hiH~~t~~······
Type
L,i> ..•
Description
Status
Add to Dwelling
Issued
03/10/1955
Permit 830
Add to Dwelling
Issued
20/12/1962
Permit 106841
Haybarn
Issued
16/01/1964
Permit 1252
I
Certifier
Date Issued
Council records for building permitslconsents may not reflect the situation on site as Council records will not show nonconsented building work.
Please note that if there are buildings on this land that were erected prior to 1953, the Council records may not indicate if
they had a building permit or not. Furthermore, a final inspection was not required where building permits were issued
before 1 January 1993.
I WeatherTighfHomes .'.
I
None Known
IOther'
None Known
Premises Re
Type
Licence Status
None Known
Li uorLicences
Type
Premises
Status
Licence No
Date
Issued
None Known
Enforcement
E.nforcement, Abatement.·Notices;:·R~(···~.i.siti9n§,XQl"de..sl·NQtic:es;tl)~Re~tifY;i
Property ID
Notice Type
Comments
Date Issued
None Known
354
Resource Management
Plann ing Consents/Resource C6nsentsnC(jmpll~nc~eertifi~ates . •., . . . . . . . ', . . . . . . . . /.
Reference No.
Consent Type
Status
Additional Notes
Date Issued
S02174
Subdivision
224(c) Completed
Boundary Relocation
25/10/2006
L08028
Landuse
Application Received
Earthworks & Construct & Operate 4 Broiler
Sheds
07/03/2008
Copy of Consent Attached
I
Yes
0
No
D
•
Historical planning consents may have lapsed. Applicants are advised to verify the currency of planning consents
with Council staff.
•
If Resource Consent has been granted on this property it does not infer that the conditions of the consent have been
met Applicants are advised to verify the status of a planning consent with Council staff.
District Plan Status
Council has an operative District Plan.
Subject to Plan Change I Structure Plan Area IGrowth Areas
Subject to the provisions of Plan Change No. 14 to the Operative Franklin District Plan. Portions of the Plan Change may be
subject to appeal. If you require further information regarding the above, please contact the Council or visit our website to
obtain copies of the relevant document
District Plan
This property is zoned
I Rural
Designations
There are no further restrictions applicable other than those bulk and location requirements for the zone applying to the land.
Other District Plan Provisions
None Known
Other Classifications By Statutory Organisations
None Known
Information Concerning Caveat, Bond, Encumbrance, Consent Notice,Covenant
None Known
355
Services
.pursuant
Information.
Relati~g~()th.!l'
. ~.• 2004"":,,
i"~p'e...r.t•. Y. •.;.•;. •.N. . • (). ."':'"''''
•·.. ~ i..f. •i. •e.;.d
•. •. . . • .•b. •.•.y.•.>
. •·. •. .• •a.·.••...••
.•;. •.~.• .• .Y
.:.:;
•. ~...••.•.
e.• .• .•t.•w
.•:"
.•·.• .•o.•:..•..•.·.f.•.•k.)::
. .• . •. .• ll
. . .• •. •t.......
.•.;.i. .I•:.......:
.i. t. :. .Y
•. •.:.~.O
.• . i;.•·.p.........
•·. •l. .•e
..• ·.• .f.·.•••.a
.•!. .•.•t.•. i•r. . •.·.i.•.•.•.•.•)~~f?;;
.
to. the
BUlldm'g Act
5.. •••••• i;" .
?.•
j .•.•.•.•.•.•. .••.••
Yes
No
0'
Franklin District Council sewer
o
o
Franklin District Council storm water
D
Franklin District Council water
Franklin District Council road access
Vector Gas Pipeline
State Highway access
Electricity
Special drainage District - Aka AkaJOtaua
o
o
o
0'
0'
o
0'
0'
o
0'
o
o
Passing through lover Property
Private Drainage
D
NZ Steel Slurry Pipeline
o
o
o
Watercare Services Water Pipeline
D
Council Sewer
Council Stormwater
Transpower High Voltage Transmission Line
Vector High Pressure Gas Pipeline
o
o
I Other
356
Property Plans
A copy of Legal is attached.
Plan Attachments
.
The information shown on the attached site plan highlights the property and may include stormwaler,
sewerage and water reticulation and gas.
Plans attached are of property described on your
D
No
I Yes
application form
0'
I Additional Notes
357
Appendix H
Administrative Advice Codes
358
Administrative Advice Types
[52-2000]
A list of the administrative advices which at present are entered in the Automated Titles
System is set out below. The list is referenced under the entry which appears on a printed title
search:
•
101B NOTICE (Water Allocation Notice under the Water Act 2000), see ¶[52-0060] –
WAN
•
ACCESS RIGHT (Access Right under the Sugar Industry Acts), see ¶[52-0160] –
SAR
•
APPT ADMIN (Appointment of Administrator Notification under the Guardianship
and Administration Act 2000), see ¶[52-0070] – APA
•
CAPB NOTICE (Change of Capabilities Notice under the Land Act 1994), see ¶[520260] – CCN
•
COAST PROT (Notice under the Coastal Protection and Management Act 1995), see
¶[52-0180 to 52-0200] – CPN
•
COMPLIANCE (Compliance Notice under the Vegetation Management Act 1999), see
¶[52-0215] – COM
•
CONF PROFITS (Order under the Criminal Proceeds Confiscation Act
2002/Pecuniary Penalty Order), see ¶[52-0030] – CPR
•
CONTAM LAND (Notice of contaminated land under the Environmental Protection
Act 1994), see ¶[52-0130] – CLN
•
HERITAGE SITE (Site registered under the Queensland Heritage Act 1992), see
¶[52-0150] – HRS
•
LAND & WATER (Land and Water Management Plan under the Water Act 2000), see
¶[52-0225] – WMP
•
NAT CONS ORD (Agreement under the Nature Conservation Act 1992), see ¶[520140] – NCO
•
NOTC INT RES (Notice of Intention to Resume under the Acquisition of Land Act
1967), see ¶[52-0100] – NIR
•
NOTICE (Caveatee’s Notice under the Land Title Act 1994),
see ¶[52-0020] – NOT
Updated: 6 April 2009
52–12
359
Part 52–Administrative Advices
(Queensland)
Department of Environment and
Resource Management
Land Title Practice Manual
•
NTCE OF ACTN (Lodgement of Notice of Action under Land Title Act 1994), see
¶[52-0010] – NOA
•
OWNER BUILDR (Owner Builder Permit under the Queensland Building Services
Authority Act 1991), see ¶[52-0120] – OBN
•
REM ACT NOT (Remedial Action Notice under the Land Act 1994), see ¶[52-0250] –
RAN
•
RESTR ORDER (Restraining Order under the Drugs Misuse Act 1986), see ¶[520040] – RSO
•
RIV IMP NOT (Notice under the River Improvement Trust Act 1940), see ¶[52-0110]
– RIT
•
RT NOTING (Registrar of Titles Noting under the Land Title Act 1994), see ¶[520050] and ¶[52-0055] – Registrar of Titles Noting under the Land Title Act 1994 and
Offence under the Foreign Ownership of Land Register Act 1988 – RTN
•
SETTLMNT NTC (Settlement Notice under the Land Title Act 1994), see ¶[52-0080]
– STN
•
TRAM EASE (Access Right under the Sugar Industry Acts), see
¶[52-0160] – STE
•
VEG NOTICE (Vegetation Management Notice the Vegetation Management Act
1999), see ¶[52-0210] – VMN
•
VOL ENV AGR (Voluntary Environmental Agreement under the State
Development and Public Works Act 1971), see ¶[52-0270] – VEA
•
WATER ADVICE (Water Act Advice under the Water Act 2000), see ¶[52-0220],
¶[52-0225], ¶[52-0230], ¶[52-0240] – Notice of Referrable Dam, Notice
of Land and Water Management Plan, Notice of Private Water Supply
Agreement, Notice of Distribution Operations Licence – WAA
•
WATER NOTICE (Water Licence Notice under the Water Act 2000), see ¶[52-0235]
– WLN
•
WET TROPICS (Notice under the Wet Tropics World Heritage Protection and
Management Act 1993), see ¶[52-0170] – WTN
Note – Enquiries relating to an administrative advice should be directed to the
relevant authority or department administering the legislation or issuing the
notice.
The registry will not provide any further detail other than that disclosed on the notice.
360
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