1. Land Law and Climate Change Impacts

1.1 Historical Development of Land Law: From Land to Property

The historical development of English land law reflects a profound transformation in how law constructs the relationship between people and land, and how law itself has conceptually changed from land law to property law. Central to this history is the process of dephysicalisation — a legal and conceptual shift in which land ceased to be a place imbued with social, political and physical meaning and instead became an abstract, commodifiable object within a legal relationship defined solely between people.^[1]

In the feudal period, land was not seen as a disposable asset, but as the very basis of social identity, political obligation and communal hierarchy.^[2] It could not be freely bought or sold; instead, landholding was governed by networks of reciprocal duties, often defined by political status, custom and familial ties.^[3] Legal relationships to land were layered and plural: many people could hold different, often non-exclusive, interests in the same parcel of land. These forms of tenure connected people to place in deeply embedded ways. Power flowed from land ownership, but that power was inseparable from the obligations it carried. In this system, land was not a thing to be exchanged in a land market, but a lived context that sustained communities and regulated status.

With the gradual decline of feudal structures and the rise of capitalism from the 17th century onward, this place-based model was replaced by lawmakers with a new legal regime that prioritised the right to exclude others from the land. The legal relation that people had to land became abstract and individualised. Importantly, land was reimagined as an alienable commodity, capable of being privately owned, sold and used to generate wealth.

This shift — what legal scholars call the dephysicalisation of property^[4] — entailed two fundamental changes. First, the unique physical and social characteristics of land were removed from the legal equation. No longer seen as a socially embedded ‘place’ full of context, land became a legally neutral ‘thing’ that could be owned. Second, the ‘person’ in the legal relation to land was also redefined: from a member of a community or family with longstanding and legally protected connections with the land to a solitary legal subject exercising ‘rights’ over property. Thus, property came to be understood not as a relationship involving land and people, but as a relation between legal persons governed by abstract legal rights.^[5]

This transformation was driven by both domestic reform and imperial ambition. In England, enclosure laws passed by Parliament between the 17th and 19th centuries forcibly dispossessed people from vast areas of common lands which were converted into privately owned estates.^[6] The rights of communities to access and use their common lands were systematically extinguished in the name of ‘improvement’ — a powerful moral and economic discourse^[7] that was used to justify both enclosure of common lands and the colonisation of foreign lands.

Beyond England, the British colonial project applied similar approaches to the lands of First Nations (see For the Love of Country: First Nations, Native Title and Climate Change). Colonisation was a violent physical, political and legal process of erasing existing place-based legal relations, often by declaring Indigenous lands as ‘terra nullius’ — meaning ‘land belonging to no one’ and thus available for extraterritorial acquisition.^[8] Whether through enclosure at home or colonisation abroad, the historical development of English law played an active role in reshaping land as a commodified, alienable resource.

The emergence of this new approach to land and land law required new justifications for ownership that could replace the hereditary and hierarchical claims of feudal tenure. The 17th century philosopher John Locke^[9] and 19th century philosopher John Stuart Mill^[10] published individualistic theories of property, grounding land ownership in certain kinds of labour and utility, rather than in status or community.^[11]

By the 19th century, the alienability of land had become completely normalised in law. As Mill observed, the value of land was now determined not by its productive capacity or social function, but by what someone was willing to pay for it.^[12] This opened the door to a much broader legal regime that reconceptualised and renamed land law as ‘property law’ — a framework which could encompass not just physical land, but intangible commodities such as shares, patents and copyrights. As we shall see in a later section of this chapter, new species of property interests are now being created to address climate change.

Subsequently, legal theorists such as Bentham and Hohfeld were instrumental in consolidating this abstract model of relations between people and land. Bentham famously defined ‘property’ not as a relation between a ‘person’ and a ‘thing’, but as a relationship exclusively between ‘legal persons’ — structured entirely by legal rules.^[13] However, by the 20th century, legal scholars began to question the abstract model as ‘vacant’ or emptied of intrinsic meaning,^[14] as well as its coherence and implications in environmental, political and social domains.

In this context, 21st century legal responses to climate change have prompted renewed scrutiny of the model of dephysicalised property. As land becomes increasingly vulnerable to climate induced change — through sea level rise, drought, fire and erosion — abstract models of property struggle to account for the relational and ecological dimensions of land. Some scholars argue that the erasure of land from property law has contributed to unsustainable land use practices, reinforced the commodification of land and its resources, and inhibited more adaptive, place-sensitive legal frameworks.^[15]

The history of English land law illustrates how law can reshape the natural and social worlds. It reminds us that the laws of land use and ownership are not timeless truths, but products of historical, intellectual and economic changes. And it raises important questions about how the law might once again reimagine the relationship between people, land and the communities that bind them.

1.2 Land

When lawyers refer to rights in land, they are generally referring to a defined, bounded area on the surface of the Earth. The horizontal (or lateral) boundaries of land are determined by the State, typically through an initial cadastral survey or a subsequent subdivision of land. These boundaries are then recorded in a centralised land administration system, which defines and registers the parcel — commonly referred to as a lot — for the purposes of legal recognition and regulation.

While most land parcels (or lots) are defined by notional boundaries identified through geospatial coordinates, some are bounded by natural features such as rivers, lakes or the coastline. Both common law and statute recognise that water boundaries may shift over time, and accommodate such changes where they are gradual, imperceptible,^[16] and caused by natural processes under the doctrines of accretion and erosion. In contrast, sudden or substantial alterations to water boundaries — such as those resulting from floods or storm surges — will generally fall outside this accommodation under common law. As climate change contributes to more frequent and extreme weather events, including sea level rise and coastal inundation, such changes challenge conventional legal conceptions of land boundaries. Over time, rising water levels may cause land to become permanently submerged. Since ownership of land below navigable waters and the seabed is typically vested in the State, these longer-term shifts in water boundaries may lead to the reallocation or loss of private property rights in land.

However, the lateral boundaries of land only tell part of the story. At common law, the vertical boundaries of land ownership were traditionally described as extending ‘up to heaven and down to hell’^[17] meaning upwards into the sky and downwards beneath the surface of the land. Over time, this expansive notion has been curtailed in various ways — for example, in strata title (see Climate Change and Housing: Strata and Community Title) and common law principles that recognise a height to which land can be reasonably used and enjoyed.^[18] Similarly, depth limitations exist beneath the surface of the land established by reservations in the original Crown grant. These reservations mean that landowners do not possess ownership of subsurface minerals, groundwater or geothermal resources, which remain vested in the State. Such depth restrictions are particularly significant in the context of climate change, as they grant the State control over subterranean spaces that can be utilised for carbon capture and storage and other climate mitigation technologies.

Lastly, the elements that constitute ‘land’ can change over time. Items that were once classified as personal property may become fixtures — objects that are attached to the land in a sufficiently permanent manner to be regarded as part of the land itself.^[19] While buildings such as houses, sheds and other structures are commonly recognised as fixtures, vegetation and trees growing on the land may also qualify as fixtures. These natural fixtures are not only subject to the physical impacts of climate change but also serve an important function as carbon sinks, which can be utilised to offset greenhouse gas (‘GHG’) emissions.

Accordingly, the legal concept of ‘land’ as the object of property rights encompasses both less than — and in some respects more than — the physical landscape as commonly understood. This includes exclusions such as certain subsurface resources, and inclusions such as fixtures that become part of the land through attachment. Climate change has the potential to alter the characteristics of land in relation to all these aspects, thereby challenging conventional land law doctrines and the ways in which lawyers conceptualise and engage with land.

1.3 Land Administration Systems

Land law concerns the State’s recognition of land ownership, encompassing the nature of property rights and the way these rights are created, transferred and enforced in relation to the rights of others. In Australia, land titles are created and regulated primarily by state and territory legislation, with the notable exception of native title, which is governed by Commonwealth law. Figure 2 illustrates the broad classification of different types of land title and the statutory frameworks that create or regulate them. Although mining interests, water rights, and environmental and planning regulation do not constitute real property, they significantly affect interests in land held by private individuals (freehold), the State and Indigenous communities. Moreover, these regulatory mechanisms operate alongside land law to address the complex challenges posed by climate change.

Just as land law recognises that land consists of various components — such as soil, minerals, water, vegetation and fixtures — ownership of land can also be divided or ‘fragmented’ into different types of property rights. The term ‘ownership’ of land generally refers to ownership of a freehold estate, which represents the most extensive interest in land that the State can grant to a private individual. The most common form of freehold estate is the estate in fee simple, which predominates in urban areas throughout Australia. Other forms of freehold tenure include Crown or State land, as well as Aboriginal freehold land, which is typically found in regional and remote parts of the country.

Freehold land in Australia is created and regulated predominantly by the Torrens system of land ownership. Under this system, the State grants land in fee simple estates, and the grant is recorded on the Torrens register of interests. Registration of an interest in the register confers an indefeasible title to the registered proprietor. This means that the registered interest cannot be defeated by an unregistered interest, except in limited circumstances expressly provided for by statute or recognised by courts — commonly referred to as exceptions to indefeasibility. Information about registered estates and interests in Torrens system land can be found on a central register, which can be searched by people dealing with land and by the public.

The register forms part of a broader system of land data, recording the plan of survey, the registered proprietor and any other lesser interests in the land. While the existence of a registered interest does not prevent creation of other, unregistered interests, a registered interest generally prevails over an unregistered interest and is subject only to prior registered interests. In such cases, the holder of an unregistered interest generally cannot assert a claim to possession of the land itself. Notably, it is possible to buy, sell and create interests in land without physically inspecting the land, as rights in land today exist independently of the physical object of those rights.

Unregistered interests in land continue to be recognised at common law and in equity. Although such interests are not protected by the principle of indefeasibility, they may nonetheless be enforceable by the courts in certain circumstances. In some Australian jurisdictions, unregistered interests in land may be recorded or noted on the certificate of title contained in the register. Common examples include restrictive covenants and profits à prendre (which can be included on certificates of title to land by various means in jurisdictions such as Tasmania, Victoria and Western Australia, and to a limited extent in Queensland, Northern Territory and Australian Capital Territory), as well as equitable security interests such as charges and liens, and planning agreements. In several jurisdictions, the register is also being used to record emerging legal interests connected to climate change mitigation projects (see Part 3), and it holds increasing significance in highlighting parcels of land that are vulnerable to climate related risks (see Part 4).

1.4 Regulating Land Use: Environmental and Planning Law

Environmental and planning laws regulate land use by imposing limits on what a landholder can do with their land. While these laws are becoming increasingly important as tools for governments to manage land in the context of climate change, they remain separate and distinct from land law. This distinction is often overlooked in discussions about how land should be regulated in response to climate related challenges. Land law and environmental and planning laws also function differently. For example, decisions under environmental and planning laws are typically made by government ministers or public authorities (see Climate Change and Administrative Law). While this can make environmental and planning law more flexible and responsive than land law in addressing climate change, it can also create uncertainty or result in outcomes that undermine long-term climate mitigation and adaptation objectives.

State and territory governments may also regulate land use by imposing conditions through environmental and planning laws, using systems of approvals, permits or licences. For example, land may be zoned for specific uses (such as residential or commercial purposes) or recognised for its features — environmental significance, built or cultural heritage, or vulnerability to erosion, flooding or bushfire. Depending on these characteristics, certain activities on land may be permitted without restriction, require formal approval or be prohibited entirely. In some cases, zoning decisions, planning approvals or environmental licences may even enable GHG-emitting activities, such as the construction of coalmines. It is important to recognise that the laws governing both land use and ownership have, through their combination, contributed to the conditions underlying the current climate crisis.

In the 1980s, governments moved beyond initial approaches to regulation known as ‘command and control’ methods towards those influenced by free market ideology and neoliberal philosophy. The regulatory landscape became characterised by market-based instruments to address certain problems, including environmental problems. This was rationalised as providing more flexible, cost-effective and incentive-based approaches to achieving environmental goals.

The increasing use of environmental markets as regulatory tools presented challenges for property law. These markets rely on the creation, allocation and trade of rights over environmental goods and services — such as biodiversity credits, emission allowances and fishing permits. In doing so, they have raised fundamental legal questions about the nature and limits of property, as well as deeper normative concerns about commodifying elements of the natural world. Natural capital accounting seeks to quantify the economic value of ecosystem services — such as carbon sequestration and biodiversity.

Unlike traditional property rights in land or physical things, environmental credits or permits typically represent a ‘right’ to pollute, conserve, access or refrain from using certain environmental resources. These rights are often intangible and statutory in origin. These newer property rights often function as part of larger environmental and/or climate change policy frameworks. There are interesting and important questions about the doctrinal significance of environmental markets, and there are also ethical and ecological questions to consider.