Climate Change and Land Law

Vanessa Johnston, Kate Galloway,
Sarah Wright, and Nicole Graham

Australian land law governs the legal relationships between people and land. It establishes and regulates rights in defined parcels of land and provides mechanisms for enforcing these rights against competing claims. These rights, often referred to as real property rights, are broadly categorised into estates and lesser non-possessory interests. Estates — either freehold or leasehold — confer a right to possession, along with associated rights of use, enjoyment and alienation. In contrast, lesser or non-possessory interests — such as servitudes (including easements, covenants and profits) and security interests (such as mortgages and charges) — do not grant possession but allow limited rights over another’s land or secure the performance of an obligation.

Although rights in land are abstract legal constructs, the common law has traditionally treated land — the object of these rights — as permanent and immovable. These characteristics underpin legal remedies that permit the removal of individuals from land or the recovery of land itself. While land retains an element of permanence in legal doctrine, it is nonetheless subject to significant change. As part of Earth’s broader ecosystem, land is affected by its interactions with dynamic systems such as weather and climate. As discussed in Legal Education in a Changing Climate, natural forces — particularly wind, heat, precipitation and waves — are being intensified by climate change, resulting in physical transformations of land. Human activities, including construction, excavation and environmental degradation, are also altering land. Together, these natural and anthropogenic forces are reshaping the physical characteristics of land and the ways in which people engage with it. These changes are ongoing and will unfold in foreseeable and unforeseeable ways.

This chapter examines the legal implications of climate induced changes to land — both in terms of how such changes affect property rights and the potential for land law to support climate change mitigation and adaptation objectives. Part 2 outlines some foundational principles of land law and, departing from the traditional scope of most real property law textbooks, explicitly links land law to environmental and planning laws. This integrated approach recognises that land law operates within a broader regulatory framework that shapes the exercise of land rights in the context of climate change. Part 2 explores how land law is already evolving in response to climate change, including the emergence of new forms of property rights — such as solar access and rolling easements — and the growing influence of climate considerations in land use planning decisions. Part 3 turns to future-facing developments, focusing on the legal treatment of climate related risk in mortgage lending, the disclosure of climate risk in property transactions and the role of land law in facilitating managed retreat. Together, these sections demonstrate how land law is both shaped by and shaping society’s response to a changing climate.