Olivia is the Head of Legal at Lawpath, where she helps Australian businesses navigate complex legal challenges with practical, commercially minded advice. She specialises in employment matters, contract drafting, pre-litigation strategy, dispute resolution, commercial law and startup compliance, and has supported clients across technology, healthcare, professional services and retail. Olivia is passionate about making legal services accessible, personable and effective for every client.
Your land ownership rights in Australia reach a practical distance down into the soil and up into the airspace above your roof, not “to the heavens and to the depths” as the old law once claimed. You own enough below ground to use and enjoy your land, and enough air above it for the same. Past that, the minerals belong to the Crown and the high airspace belongs to everyone.
Most people never think about this until something forces them to. A mining company sends a notice. A neighbour’s crane swings over the backyard. A drone hovers at fence height with a camera pointed at the kids’ trampoline. That’s usually the moment the question lands: how far do my land ownership rights actually go?
- You own the soil below for a “considerable depth.” Enough to dig, build footings and put in a pool, but not an unlimited shaft to the earth’s core.
- The minerals underneath are not yours. Gold, silver and almost every other mineral belong to the Crown under state mining laws, and licensed miners can be granted access to private land.
- Your airspace runs only as high as your ordinary use of the land. A crane, a billboard or tree branches crossing your boundary can be trespass. A passenger jet at altitude is not.
- CASA decides where a drone can fly, not whether it can look at you. A drone over your yard can be legal under aviation rules and still be a nuisance or a privacy problem under separate state laws.
- Most real disputes happen at the fence line. Encroaching structures, overhanging branches and easements cause far more grief than mining shafts or aircraft ever will.
How far down do you own your land in Australia?
Your land ownership rights reach down into the soil for a “considerable depth,” but not to the centre of the earth. Australian courts have accepted that a landowner controls the subsoil far enough down to use the surface properly. In Napoli v New Beach Apartments, Young J put it as control “for considerable depth” below the soil. In practice that covers your foundations, your drainage, a basement, a pool and tree roots.
That old idea went much further. A common law maxim held that whoever owns the soil owns it “up to the heavens and down to the depths.” Cranes, planes, tunnels and Crown mining rights killed that off a long time ago. What survives is a right that stops where your real use of the land stops.
Bulli Coal Mining v Osborne (1899) settled this early. A miner dug across from their own land into the subsoil under Bulli’s. The court held that Bulli owned that subsoil and that the mining was a trespass. So the depth you control is real, and someone tunnelling under your house without a right to do so is trespassing on it.
How far “considerable depth” goes can depend on the terms of the original Crown grant your title traces back to. Some older grants are broader than newer ones. If you ever need the exact position for a basement, a bore or a dispute, that is a title question for a property dispute lawyer, not a number you can read off a website.
Who owns the minerals under your land?
The Crown does. If you strike gold in the backyard, it is not yours to keep. Gold and silver have belonged to the Crown as “royal metals” for centuries, and state mining laws have since gone much further, vesting ownership of nearly all minerals in the Crown with only narrow exceptions. The land is yours. What is valuable under it usually is not.
This surprises people, so here is the practical sting. The Crown can grant exploration and mining licences over private land, and a licence holder can be entitled to come onto your property to use them. The rules, the notice you must get and the compensation you are owed vary by state and by the type of tenement. Some states also protect a buffer around your home, so a miner cannot simply work up to your back door.
Where this bites is on rural and semi-rural blocks. A common mistake is to assume that owning the freehold means controlling everything under it. It doesn’t. If you get a mining or exploration notice, the time to get advice is before you respond, because your rights to object, to negotiate access terms and to claim compensation are strongest early.
How much airspace do you own above your property?
You own the airspace above your property only “to such height as is necessary for the ordinary use and enjoyment” of your land. Your land ownership rights go up as far as you can sensibly use the space, and no further. That line comes from Bernstein v Skyviews (1978), and Australian courts follow it. Low down, the air is effectively yours. High up, it belongs to the public, which is why a plane crossing at altitude is not trespassing on thousands of homes at once.
In Bernstein, an aerial photography company flew over a property, took photos and tried to sell them to the owner. He sued for trespass. The court said no. A single flight high above the land, causing no damage and no interference, was outside the airspace he owned. The reasoning is simple once you see it: a one-off flight far overhead takes nothing away from how you use your land.
The limit protects ordinary life above your roof. Decades earlier in Saunders v Smith, a judge pointed out that if airspace rights were unlimited, a hot air balloon drifting over your garden would be a trespass every time. Clearly it isn’t. The law draws the line at the height your actual use reaches.
Can a neighbour’s building, crane or tree cross your boundary?
Yes, and at low level that crossing is usually a trespass. This is the airspace that matters for most people. It is not about jets. It is about the metre or two directly above your fence.
Take Kelsen v Imperial Tobacco (1957). A sign that overhung a shop by about 20 centimetres was held to be a trespass into the airspace of the land. Twenty centimetres. The point is that the intrusion does not need to be large or harmful. If a structure crosses your boundary in the air, it crosses into space the law treats as yours.
That same logic catches a construction crane that swings its jib over your roof. Australian courts have ordered developers to stop cranes oversailing a neighbour’s home and called it an actual trespass. If a building site next door is swinging a load over your yard, you are not being precious. You have a real right there, and an oversailing licence (paid, usually) is how considerate builders handle it.
Trees are the everyday version. Branches reaching over the fence intrude on your space, and so do roots under it. In most states you can trim what crosses the boundary back to the fence line, as long as you return the cuttings and only do what is needed. New South Wales is the exception, where overhanging trees run through a dedicated tribunal process rather than self-help. Before you reach for the chainsaw, check your state’s rule.
Even a stray object can count. In Davies v Bennison (1927), a man shot a cat sitting on a shed on neighbouring land. The court found the bullet itself trespassed by passing through the airspace above the surface. Cat owners, look away. The principle stands: things crossing into your airspace, deliberately or not, can be an intrusion on your land.
Do you own the airspace a drone flies through?
Sometimes, but the aviation rules and your land rights are two different questions, and people constantly confuse them. Whether a drone is allowed to be in the sky is decided by the Civil Aviation Safety Authority. Whether it has intruded on you is decided by trespass, nuisance and privacy law. A flight can clear one and fail the other.
Under CASA’s rules for recreational and basic flyers, a drone must stay at or below 120 metres above the ground, keep at least 30 metres away from other people, stay within the operator’s line of sight, fly one at a time in daylight, and keep clear of people and crowds. It must not fly within 5.5 kilometres of a controlled airport or over emergencies. You can read the current set on the CASA drone rules page.
Here is the part that catches people out. CASA governs safety, not your privacy. A drone can tick every CASA box and still cause you a legal problem. If it hovers low over your yard and interferes with your ordinary use and enjoyment, that can be a nuisance or a trespass into the airspace you control, the same airspace Bernstein and Kelsen drew the lines around. Recording you or your family can also breach state surveillance device laws, which sit entirely outside aviation rules.
So what do you actually do about a nuisance drone? Note the dates, times and what it was doing. A device flown recklessly or too close can be reported to CASA. Repeated low flights or filming over your home can be a matter for police or a lawyer under privacy and nuisance law. The drone sitting at 100 metres taking a wide photo, though, is almost certainly beyond your reach, the modern version of the plane in Bernstein.
What land-rights problems actually cause disputes?
Not mines or aircraft. Most land ownership rights disputes that fill a property lawyer’s inbox happen within a metre of the boundary, between people who have to keep living next to each other. The case law above is the interesting part. These are the parts that cost real money and real weekends.
Encroachment. A fence, a garage, a retaining wall or a carport built over the line is one of the most common fights there is. The land under the encroachment is still legally yours, but sorting it out can mean a survey, a boundary adjustment or a court application. It usually plays out slowly: the structure sits for years, then surfaces the moment someone tries to sell. A current survey before you build near a boundary saves most of it.
Trees and branches. Overhanging branches and invasive roots are airspace and subsoil intrusions in everyday clothing. The trimming rules differ by state, so the same action can be fine in one place and a problem in another. When a tree causes damage, it stops being a gardening question and becomes a liability one.
Dividing fences. Who pays for the fence between two properties is governed by dividing fences laws in each state, which set out notice and cost-sharing. Most of the heat comes from skipping the notice step and simply building, then arguing about the bill afterwards.
Easements. An easement is a right for someone else to use part of your land for a set purpose, like a shared driveway or a council drain, and it usually sits registered on your title. It quietly limits what you can build and where. Buyers miss them all the time. A title search before you sign is the fix, and our guide to what an easement is walks through how they work.
There is also the flip side of all this: your right to peace and quiet from what happens next door. Noise, smells, lights and water running onto your land can be a nuisance even when nothing physically crosses the boundary. We cover that in a companion guide on your right to peace and quiet.
Across all of these, the cheapest move is the early one. A letter that sets out your rights and asks for the problem to stop resolves a surprising share of boundary disputes before anyone pays for a hearing. A cease and desist letter is often the first practical step, and it costs a fraction of litigation.
Frequently asked questions
How deep do you own your land in Australia?
You own the soil for a “considerable depth,” enough to build, excavate and run services, but not to the centre of the earth. The exact depth can turn on the terms of the Crown grant behind your title. Minerals below are a separate matter and belong to the Crown.
Do you own the minerals under your house?
No. Gold, silver and almost all other minerals belong to the Crown under state mining laws. Owning the freehold does not give you the minerals beneath it, and the Crown can grant mining or exploration licences over private land.
How high up do you own the airspace above your property?
Only as high as you need for the ordinary use and enjoyment of your land. Low airspace near your buildings and trees is yours; the high airspace that aircraft use is not. That boundary comes from Bernstein v Skyviews and still applies today.
Is it trespass if a crane swings over my property?
Usually, yes. A crane jib oversailing your land at low level intrudes on airspace you control, and courts have ordered developers to stop. Considerate builders arrange a paid oversailing licence first. If one hasn’t, raise it before the build gets further along.
Can my neighbour fly a drone over my backyard?
They may be within CASA’s safety rules and still be breaking other laws. A drone hovering low enough to interfere with your use of the yard can be a nuisance or trespass, and filming your family can breach state surveillance laws. CASA covers flight safety, not your privacy.
Can I cut my neighbour’s tree branches hanging over my fence?
In most states you can trim branches back to the boundary line, return the cuttings and do only what is needed. New South Wales runs overhanging trees through a tribunal process instead. Check your state’s rule before cutting, especially if the tree is protected.
What is an easement and how does it affect my land rights?
An easement gives someone else the right to use part of your land for a set purpose, such as a shared driveway or a drain, and it is usually registered on your title. It limits what you can build over that strip. Always do a title search before buying.
What should I do if a neighbour encroaches on my land?
Start with a survey to confirm the boundary, then raise it in writing. A cease and desist letter resolves many cases without court. If the structure stays, options include a negotiated boundary adjustment or a court application, so get property law advice early.
Know your land rights, and use them early
If this feels like a lot, it is normal to not have known most of it. Almost nobody reads their Crown grant or thinks about airspace until a crane, a drone or a fence forces the question. You are not behind for asking now. You are ahead of the version of you that finds out during a sale or a dispute.
One thing is worth doing here: when something crosses your boundary, above or below ground, deal with it early while your position is strongest. A quick conversation with a property lawyer can tell you whether you have a real right and what the first move is, long before it turns into a court matter. You can get fixed-fee quotes and ongoing advice through Lawpath’s Legal Advice Plan, so you are not facing the neighbour, the builder or the mining notice on your own.
