Property rights and boundaries
In recent weeks I have been reading a book that highlights the evils of excessive use of the powers of property ownership while also ploughing through a trove of papers that defined a man’s commitment to securing those rights. The book is The Winter Road by Kate Holden (2021, Black Inc, Melbourne). Denis Saunders ex CSIRO ecologist, and a former member of the Wentworth Group, kindly sent me a collection of papers of his late father, Eric Saunders. These papers tell the personal story of Eric’s battles with his local council and state agencies on his development aspirations for land he owned at Batemans Bay, NSW.
Back in 2016 in two of my earlier blogs (Nos. 51 and 52), I commented on a paper by Robert Thompson in Coastal Management 2007 (35,211-237). This paper still resonates with me in so many ways in his analysis of “shoreline social conflict”. One of the seven cultural models he identifies is “sovereignty” whereby a landowner exercises “individual control, boundaries, exclusion and privacy”. Words like castle, security, invasion, trespass, permanent and exclusive use rights, are invoked in the way a tract of land is occupied and legally defended. Quite clearly such belief triggers behaviour that can provoke conflict in civil society.
Holden’s book tragically outlines how exercise of sovereignty over one’s land has the worst of consequences, namely the murder of a government official seeking to ensure compliance with certain regulations by the landowner. This horrific event took place in July 2014 near Moree in northwest NSW. The book is more than an account of what went on before, during and after the shooting of Glen Turner, who worked for the then Office of Environment and Heritage (OEH), by Ian Turnbull, a farmer determined to clear native vegetation on his land so he could expand his farming area. She places the event in the broader context of the concept of property: “The wealth of the Moree plains links, unexpectedly, to the musings of white-wigged political philosophers hundreds of years earlier, and their considerations on property ownership and the land” (p.18). Those philosophers include John Locke, Thomas Paine, and Jean-Jacques Rousseau.
Locke was writing in the 1690s, but his thinking on moral rights of landowners in England empowered them to start destroying the commons with enclosures and in Scotland with the horrors of the clearances. In the 19th century this thinking underpinned the Land acts of parliaments in North America and Australia that aided the dispossession of native peoples. In contrast, Paine saw property ownership as theft while Rousseau thought a civil society could both protect property rights while finding ways to support shared commons. Holden cites his words: that an individual’s right “is always subordinate to the right which the community has over all” (p.17). From this perspective emerges the view that unfettered seizure of opportunities to use land for personal gain without consideration of impacts on others, including lands and waters in state ownership, creates costs to society. In her book, the tragedy at Moree in 2014 represented a clash of values flowing from a Lockean perspective on the one hand to that where the state was seeking to implement regulations to protect biodiversity.
It is apparent that a similar conflict of values emerges from the behaviour of Eric Saunders as a foreshore landowner on the north side of Batemans Bay. In the Bay Post, 15th February 1995, under the headline FIGHT FOR THE RIGHT, he is quoted as saying “I’m trying to do what should be my right—protect my land--and I’m being prevented by every possible means”. He went on to say: “I just can’t believe that I’m expected to sit back and do nothing”. And act he did; over the course of several years he made attempts to reclaim what he considered to be his land that had been subjected to erosion. As a result he found himself and his company (Leaghur Holdings P/L) in court. Both the EPA and Fisheries took Mr Saunders steps to stop him and as a consequence prevent him from realising a dream to benefit from a “valuable development site”. This article also mentions how another dissatisfied landowner in this area, Gary Cockburn, was also served with an injunction in his attempt to use building materials as an anti-erosion measure.
Judicial decisions arising from this saga at Batemans Bay has been included in the legal literature in NSW on the rights of landowners to protect their property from the sea. Karen Coleman in 2010 argued that governments and legislatures cannot ignore the “fundamental right” of property owners to protect their land. This “right” was disputed by John Corkill in his paper entitled “Claimed property right does not hold water” (Australian Law Journal, 2013, 87). The issue was further discussed in another paper by Corkill on Justice Bannon’s decision in EPA v Saunders 1994 related to the question of tidal boundaries (3 PLR 67, 2013). In all this Eric Saunders found himself facing the force of litigation that tied up any opportunities for him, and later others who took possession of this property, to secure its development potential behind protective works.
More recently, NSW Government has continued to adopt legislation that restrains property owners from unrestrained use of materials to prevent loss of land to the sea. Coastal Protection Act 2016 (section 27) offers owners an opportunity to obtain development consent provided the consent authority is satisfied that certain conditions are met. These conditions have recently been tested in the Land and Environment Court in a set of cases at Byron Bay (see Sack et al.,2020, EPLJ, 37, 128-135). It is now much clearer that the law preserves public rights of access and use of the beach (consistent with what I see as the principles of the Public Trust Doctrine); and offers insights into how adverse impacts of unapproved coastal structures can be assessed. This reaches into the heart of how civil society can constrain the behaviour of those who believe they have a Lockean-style property right to exercise individual control over use of their land where there are consequences on the “commons”.
Words by Prof Bruce Thom. Please respect the author’s thoughts and reference appropriately: (c) ACS, 2021. For correspondence about this blog post please email firstname.lastname@example.org