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The Implications of Property Diversity John Douglas Earle Page BA, LLB (Hons.), LLM, Grad

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The Implications of Property Diversity John Douglas Earle Page BA, LLB (Hons.), LLM, Grad The Implications of Property Diversity John Douglas Earle Page BA, LLB (Hons.), LLM, Grad. Cert. Higher Ed. A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2014. T C Beirne School of Law Abstract Property in land is a dependable institution, often dull, sometimes arcane. Without giving it much thought, we tend to respond to property in conventional, unreflective ways. We assume with property that ’what we see is what we get’.1 However this unimaginative way of looking at property in land may be but a half-truth of the dialectic. Perhaps, property is a lot more diverse than the orthodoxy we suppose? This question forms the core of this thesis, the elaboration of an alternative description of property in land termed ‘property diversity’. The thesis argues that the descriptive truth of property, its grounded reality, is far more heterogeneous than we are conditioned to recognize. What we have got with property in land is what ‘we have talked ourselves into seeing’2, a liberal, post-enclosure paradigm that is universalizing in its effect. Contrary to the descriptively inadequate private model, human landscapes are ‘intensely propertied places’3 where a plethora of rights, uses and claims overlap, compete and co-exist amidst inter-connective ‘mosaics’ of private, public and common interests in land. These ‘interests’ are themselves equally diverse; ancient as well as novel, common law and statutory, shared and exclusive. And to complete the mosaic, our ‘ownerships’ are likewise pluralistic, ranging from strictly enforceable right through to vague concepts of belonging, illusory at law, yet routinely acted upon. In articulating a reconceptualized property right in land, the thesis adopts the following broad structure. First, it seeks to explain why the private ownership model prevails, such that ‘property’ and ‘private property’ are mostly synonymous. Both dominant and domineering, this narrow view stresses the primacy of individualism, the power of exclusion, and the values of commodity. Second, it argues that this perspective is an incomplete description of property in land, canvassing the richness of the public and common estates, and the under-regarded social and communitarian nuances of private property.4 Third, it describes a theory of property diversity in land, more like Hanoch Dagan’s ‘full (sometimes cacophonous) symphony’ than any ‘singular melody line’5. 1 Carol Rose, ‘Seeing Property’ in Property and Persuasion Essays on the History, Theory and Rhetoric of Ownership (1994), 297. 2 Ibid. 3 Nicholas Blomley, Unsettling the City Urban Land and the Politics of Property (2004) xvi. 4 For example, Gregory Alexander, ‘Property’s Ends The Publicness of Private Law Values’ (2014) 99 Iowa Law Review 1257. 5 Hanoch Dagan, Property Values and Institutions (2011). 2 Fourth, it considers the implications of property diversity for two ‘blind spots’ in modern property discourse, the proprietorial place of community, described by Joseph Sax as the ‘missing blank in American law’6 and the generation of obligation as an incident of land ownership, again in Sax’s words, the law’s ‘awkward little secret’7. The thesis canvasses the literature of the private, public and common estates, property and community scholarship, and stewardship discourse. It also reaches beyond legal property with a brief foray into legal geography and sustainable urban design. Its novelty lies in not only collating this literature into one body of work, but in viewing it through the prism of landed property diversity. This reconceptualization has consequences; it shifts the focus from the private right to a wider perspective, contextualizes the res as a critical element of propertied relations, and provides a theoretical construct for an alternative ‘seeing’ of property right in land, one where a ‘swarm of possibilities’8 offers new imaginings for property in land. 6 Joseph Sax, ‘The Rights of Communities: A Blank Space in American Law’, July 11, 1984, Natural Resources Law Center, University of Colorado, School of Law. 7 Joseph Sax, Playing Darts with a Rembrandt Public and Private Rights in Cultural Treasures (1999) 59. 8 Paul Carter, Dark Writing Geography, Performance, Design (2009) 1. 3 Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the General Award Rules of The University of Queensland, immediately made available for research and study in accordance with the Copyright Act 1968. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis. 4 Publications during candidature John Page, ‘Towards an Understanding of Public Property’ in Nicholas Hopkins ed, Modern Studies in Property Law (Hart Publishing, 7th ed., 2013) 195. Publications included in this thesis No publications included. Contributions by others to the thesis No contributions by others. Statement of parts of the thesis submitted to qualify for the award of another degree None 5 Acknowledgements With sincere thanks to Professor Ross Grantham for his advice, guidance, and friendship over the course of this thesis. Keywords Property law; property theory; land law; diversity; private, public, and common property; stewardship; property and community. Australian and New Zealand Standard Research Classifications (ANZSRC) ANZSRC code: 180124 Property Law (excl. Intellectual Property Law), 100% Fields of Research (FoR) Classification FoR code: 1801, Law 100% 6 Table of Contents List of Figures and Tables 10 Introduction 12 Chapter 1 Private Property and the Domineering Right to Exclude 1.1 Introduction 20 1.2 Blackstone, Locke and historical origins 22 1.3 The expansion of private property in settler societies 26 1.4 The evolving bundle of rights and the right to exclude 29 1.5 The dynamism of private property 36 1.6 The public/private divide 38 1.7 The plausible narrative of private property 43 1.8 Attributes and propensities of private property in land 45 1.9 Modern justifications of the right to exclude 49 1.10 Conclusion 54 Chapter 2 Towards an Understanding of Public Property 2.1 Introduction 56 2.2 Defining public property 57 2.3 The spectrum of type 58 2.3.1 Corporeal public property 59 2.3.2 Incorporeal public property 62 2.3.3 Customary public property 66 2.3.4 Illusory public property 68 2.3.5 Type and property diversity 69 2.4 The conundrum of ownership 71 2.4.1 Entity or no entity? 73 2.4.2 In trust for the public? 75 2.4.3 Ownership or management rights? 79 2.4.4 Ownership and diffusion 80 2.5 The right to include 82 2.5.1 Inclusion and access 83 2.5.2 Inclusion and use and enjoyment 89 2.5.3 Inclusion and propriety 92 2.6 Conclusion 96 Chapter 3 The Obviousness and the Obliviousness of Common Property 3.1 Introduction 97 3.2 Traditional common property 98 3.3 Modern limited common property 104 3.4 Common property – the natural resource perspective 107 3.5 The strengths of common property 114 7 3.5.1 Sociability 114 3.5.2 Use rights 116 3.5.3 Environmental values of proportionality and moderation of use 120 3.6 The weaknesses of common property: profile and reputation 122 3.7 Conclusion 124 Chapter 4 Seeing the diverse property mosaic 4.1 Introduction: The imaginings of property 126 4.2 Guiding principles of a doctrine of property diversity in land 127 4.2.1 Diverse property in land is visible 128 4.2.2 Diverse property sees land as an inter-connected whole 130 4.2.3 Diverse property rights are use rights 131 4.2.4 Diverse property in land is contextual 134 4.2.5 Neither exclusion nor inclusion is paramount 135 4.2.6 Diverse property in land is multivalent 136 4.2.7 Diverse property is eclectic 138 4.2.8 Conclusion 141 4.3 What comprises the mosaic? Property types and values + 141 Property interests + diverse’ownerships’ of property 4.3.1 A confluence of property type; physical and normative 142 4.3.2 An array of real property interests 145 4.3.2.1 Corporeal estates 146 4.3.2.2 Incorporeal/less than fee interests 148 4.3.2.3 Public/private/community partnerships 149 4.3 Diversity of property ownerships 150 4.4 The property mosaic in sustainable communities literature 153 4.4.1 Property diversity as a literal picture 156 4.4.2 Property diversity as narrative: building social capital 159 4.4.3 Property diversity as a metaphor of values 163 4.5 Mapping the property mosaic to place: cast studies 165 4.5.1 The Central Otago Rail Trail, New
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