Property refers to your rights to own something. There are two types:

  • real property: your land and anything attached to it; and
  • personal property: anything else that isn’t fixed to the land, including intellectual property.

An old common law maxim says: ‘whose is the soil, his it is even to the skies and to the depths below’. This used to be the case, but with cranes, planes, balloons and Crown rights to minerals, land rights aren’t so simple anymore.

Rights Below the Surface

According to Young J, in Napoli v New Beach Apartments, a person has ‘control over land underneath his or her soil for considerable depth‘.

Bulli Coal Mining v Osborne (1899)

Osborne mined from their land to Bulli’s. The Court held that BCM had rights to their own subsoil and held that Osborne had trespassed. You’re presumed to own any minerals underneath your land, except for Royal metals. The Crown has rights to precious metals such as gold, silver, though most States have rights to other non-precious minerals as well. This can differ depending on the grant covering your land so contact a property lawyer for advice.

Rights Above the Surface

Your land rights reach everything on or attached to your land (such as buildings, trees and fences), anything growing on the surface and above ground that interferes with your ordinary use of the land. This includes any unauthorised interferences or intrusions onto your land.

TCN Channel Nine v Ilvariy & Cox (2008)

An investigation by A Current Affair involved them pretending to be interested in building a home so they could gain access to a location and confront Cox. The Court ordered ACA to pay damages of $125,000 for trespass for not leaving when asked to by Cox.

*To any cat owners: you may want to skip this next case*

Davies v Bennison (1927)

Bennison, convinced his neighbour’s cat was going to harm his wildlife, shot and killed the cat. The Court decided that the bullet intruded onto the land through the airspace above the surface.

Rights in the Airspace Above

Kelsen v Imperial Tobacco (1957)

Imperial Tobacco put up two billboards, both of which intruded on Kelsen’s property by 20cm. The Court held that the lease of the land includes the airspace above the land.

But your rights don’t reach unlimited heights. Otherwise – as Shadwell VC said in Saunders v Smith – sailing through the air over a person’s property in a hot air balloon would count as trespass.

Bernstein v Skyviews (1978)

Skyviews took overhead photos of Bernstein’s property and tried to sell them to him. Bernstein sued them for trespassing above his property, asking for them to hand over negatives or destroy them. Griffiths J stated that a person has limited rights ‘in the air space above [their] land to such height as is necessary for the ordinary use and enjoyment of [their] land’. As long as no damage or nuisance is being caused, your rights don’t extend to the airspace above your land.

Conclusion

At common law, your property rights comprise the land’s surface, the soil beneath (unless changed by the terms of a grant), the airspace above (as necessary for ‘ordinary use and enjoyment’ of the land), all things growing on or attached to your land and all minerals except gold, silver and others excepted by the terms of a Crown grant.

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Shaheen Hoosen

Shaheen is a Legal Tech Intern at LawPath as part of the Content Team. He is in his final year of a Bachelor of Laws with the degree of Bachelor of Information Technology (Major in Information Systems and Business Analysis) at Macquarie University. He is interested in Information Technology Law and Access to Justice.