3015LAW Study Guide - Final Guide: Coalbed Methane, U-Bolt, Barlin
1. BOUNDARIES
Airspace
‘owner of land owns everything up to sky’
- Trespass and nuisance available
- Ordinary use and enjoyment of land
(1) Bernstein v Skyviews & General
Photograph taken above the house to try to sell to owner.
HELD ‘I find that the defendants' aircraft did not infringe any rights in the plaintiff's air space, and thus
no trespass was committed. It was … flying many hundreds of feet above the ground and it is not
suggested that … it caused any interference with any use to which the plaintiff put or might wish to put
his land’.
(2) LJP Investments v Howard Chia Investments
Howard Chia asked for something to overhang in their airspace, asked for money for the use of their
airspace. Unconscionable. Ignored the request for money and continued with using their airspace.
Scaffolding hanging over. LJP had it removed. Howard offered money but refused. Requested removal.
TEST whether incursion is of a nature and at a height which may interfere with any ordinary uses and
enjoyment of the land which the occupier may see fit to undertake.
- as a general rule a person should not be permitted to use the land of another for considerable
commercial gain for himself simply because his use of the other person’s land causes no significant
change to that person’s land.
Minerals
‘owner of land owns subsoil to centre of earth’
- owner’s rights extended downwards to extent necessary for that owner to extra minerals and to
preclude others interfering with their minerals and geothermal resources BUT gold and siler = crown
Mineral Resources Act
1989 (Qld) – wide
range of minerals
reserved for the
Crown; allows for
various mining
tenements for third
parties to extract
minerals.
Petroleum Act 1923
(Qld) & Petroleum and
Gas (Production and
Safety) Act 2004 (Qld) –
regulate petroleum
leases; in some cases
highly controversial (eg
coal seam gas
extraction).
Water Act 2000 (Qld)
– State claim to water
resources in s 19, with
allocations/grant of
licenses for water use;
still recognises some
common law, riparian
rights to use.
Common law – entitled to
water resource found on
their own land – riparian
rights to use but are now
subordinate to Water Act
Now might need water
licence
Free-hold land registers
Water licence attached to
land can be sold on to
another owner
oCase of Mines
Horizontal/Lateral
- Survey plans
- Fences
- Rivers, creeks and banks
- Tidal waves
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Natural boundary shift = doctrine of erosion or accretion, legal boundary will change if
1) Change was gradual and imperceptible
2) Change was result of natural phenomenon (immediate)
Hazlett v Presnell
Encroachment
Building partly encroaching on another’s land
Property Law Act (Qld)
SECTION DETAILS
S 184 Adjacent owner or encroaching owner may apply to court for relief in respect of
encroachment
S 185 Court may make order with respect to:
(a) Payment of compensation to adjacent owner
(b) Conveyance, transfer or lease of subject land to encroaching owner, or grant
encroaching owner of any estate or interest in land or of any easement,
right, or privilege in relation to land; and
(c) Removal of encroachment
S 185(2) Variety of elements
Fixtures
‘Everything substantially and permanently affixed to soil is in law a fixture. Principle of law is what is
attached to land, becomes part of land.’
Minshall v Lloyd
Two key factors – Holland v Hodgson
1) Degree of annexation
a. PRESUMPTIONS
a.i. If chattel attached to land other than by its own weight then prima facie = fixture.
a.ii. If chattel only attached by own weight, then = not fixture (even if become embedded in soil)
2) Object of annexation
a. If intention of annexation is the better use and enjoyment of the land, the item is more likely to
be a fixture.
b. if the intention was the better use and enjoyment of the item itself, the item is more likely to be
a chattel.
Was item for permanent or substantial improvement of property OR mere for temporary purpose for
more complete enjoyment of item?
CASE DETAILS
Hobson v Gorringe steam engine bolted to concrete floor held to be a fixture due to
intention of installation to be permanent – all payments needed to
be made – higher purchase arrangement with competing claims.
Chattel vs fixture = fixture
Leigh v Taylor entitled to life estate, life tenant had tapestry on wall. Executor
claimed them, tapestry held not to be a fixture due to intention of
enjoyment by resident not to improve value of land. = chattels
Reid v Smith houses resting on stumps held to be fixtures, erected dwelling by
leasor, dwellings just standing there
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Australian Provincial Assurance Co v
Coroneo
- movie theater – most fixed but some things not that weren’t
necessarily for movie theater
- leased – contract for only land
- lease extended to include all fixtures and chattels
- If an item is fixed to the ground then the item is presumed to
be a fixture and the onus is on those who object to prove
otherwise.
- If an item is not fixed to the ground, then the object is
presumed to not be a fixture and the onus is on those who
object to prove otherwise.
- In considering whether or not an item is a fixture, consideration
should be given to:
owhether or not it was intended as permanent; and
owhether or not there was an intention to improve the
land.
- Presumption = fixture with burden on other party to prove
chattel
North Shore Gas Co Ltd v
Commissioner for Stamp Duties (NSW)
pipes chattels then exempt stamp duty, pipes embedded in the
ground held to be fixtures. But consider vvvvv
Commissioner of Main Roads v North
Shore Gas Co Ltd
gas pipes embedded in the ground were chattels despite the level
of annexation because the Gas Company had a mere license with
respect to the use of the land – compensation claim, if fixture then
claim but chattels then no.
Belgrave Nominees Pty Ltd v Barlin-
Scott Air Conditioning Pty Ltd
builder supplied subcontractor to do air con, got a new
subcontractor and they took the work already done away – but this
was already part of it air conditioning units considered fixtures due
to connection to power and water supply.
Palumberi v Palumberi - Two brothers who fought – held property tenants in common
- One brother agreed to sell to other brother his half but
argument as to what was included in the sale
- venetian blinds – chattels, as merely for brother’s enjoyment
during occupancy.
- large linen cabinet – chattel, as not built in.
- TV antenna – chattel, since installed using U bolt and could be
easily removed and for brother’s mere enjoyment whilst in
occupancy.
- carpet – fixture, as intention was to replace existing carpet.
stove – fixture, as intention was to replace existing stove.
Hawkins v Farley dishwasher a fixture because it would create significant
disfigurement to the house if it was removed; shed bolted to
concrete base held to be a fixture as it could not be easily
removed.
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Document Summary
Owner of land owns everything up to sky". Trespass and nuisance available (1) bernstein v skyviews & general. Photograph taken above the house to try to sell to owner. Held i find that the defendants" aircraft did not infringe any rights in the plaintiff"s air space, and thus no trespass was committed. Howard chia asked for something to overhang in their airspace, asked for money for the use of their airspace. Ignored the request for money and continued with using their airspace. Owner of land owns subsoil to centre of earth" owner"s rights extended downwards to extent necessary for that owner to extra minerals and to preclude others interfering with their minerals and geothermal resources but gold and siler = crown. 1989 (qld) wide range of minerals reserved for the. Crown; allows for various mining tenements for third parties to extract minerals.
