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The Logos of Land: Economic and Proprietarian Conceptions of Statutory Access Rights

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The Logos of Land: Economic and Proprietarian Conceptions of Statutory Access Rights THE LOGOS OF LAND: ECONOMIC AND PROPRIETARIAN CONCEPTIONS OF STATUTORY ACCESS RIGHTS Donald Scott Grattan A thesis submitted in fulfilment of the requirements of the degree of Doctor of Philosophy Faculty of Law University of New South Wales 2006 ABSTRACT Legislation in various jurisdictions alters the common law right to control access to one’s land by allowing the imposition of rights of access in favour of one landowner over the land of another. The relevant legislation can be divided into two categories. The first-generation legislation (s 88K, Conveyancing Act 1919 (NSW) and s 180, Property Law Act 1974 (Qld)) permits the creation of easements over servient land to facilitate the development of dominant land. The second-generation legislation (the Access to Neighbouring Land Act of New South Wales, Tasmania and the United Kingdom) permits the creation of temporary rights of access over servient land to facilitate work on dominant land. This thesis examines the extent to which this change in the law can be justified by three modes of ethical discourse: right-based, duty-based, and goal-based reasoning. An examination of the first-generation legislation and the cases in which it has been applied suggests that a form of goal-based reasoning can be used to justify its enactment. The legislation is needed to facilitate the efficient use of land where the existence of a bilateral monopoly and the possibility of strategic bargaining puts at risk the conclusion of a mutually beneficial agreement regarding access. A review of the second-generation legislation and the law reform reports and parliamentary debate that preceded its enactment indicates that the legislation can be justified by a form of duty-based reasoning. The legislation is needed to bring about a proper social ordering by imposing access rights where this would be consistent with the ideal of good neighbourliness. The thesis concludes that although these goal-based and duty-based discourses make an arguable case for the enactment of both generations of the legislation, neither of them, in an unadulterated form, provides a conclusive justification. Rather, an eclectic approach that draws on both discourses is required. It proposes that the legislation’s compensation provisions be amended to reflect the commingling of the ideas of efficiency, a properly ordered society and intensive land use, and to allow the servient owner to share in the benefits generated by the imposition of access. 2 ORIGINALITY STATEMENT I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged. Signed .............................................................................. Date .............................................................................. COPYRIGHT STATEMENT I hereby grant the University of New South Wales or its agents the right to archive andtomakeavailablemythesisordissertationinwholeorpartintheUniversity libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation. Signed .............................................................................. Date .............................................................................. AUTHENTICITY STATEMENT I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format. Signed .............................................................................. Date .............................................................................. 3 ACKNOWLEDGEMENTS This issues explored in this thesis are manifestations of the physical fact that parcels of land are never completely self-sufficient. My completion of this thesis is an indication that the same can be said about people. I am incredibly indebted to many individuals who have assisted me in various ways in relation to this project. First and foremost, I owe much to my supervisor, Associate Professor Brendan Edgeworth. Brendan first introduced me to the wonders of property law and theory as an undergraduate at Macquarie University more years ago than he and I probably care to remember. I express my sincere gratitude for his wise guidance and his patient encouragement throughout my doctoral candidature. I will always appreciate Brendan’s unfailing generosity and kindness during the easy times and the difficult. Professor Bruce Ziff, of the Faculty of Law at the University of Alberta has significantly influenced my thinking about property law issues generally. As a Visiting Professor in the Faculty of Law at the University of Wollongong in 1991 - 1992, Bruce designed the property law subjects that I was to teach on my appointment there in 1993. Bruce’s stimulating writing about property, and my discussions with him, have been sources of inspiration to me. Many of my colleagues at the University of Wollongong have provided me with continuous encouragement and advice. To Margaret Bond, Andrew Kelly, Luke McNamara and Tom Musgrave in particular, my thanks for your steadfast friendship. Finally, much of the day-to-day burden of me completing this thesis has fallen on two people: my wife, Louise, and my daughter, Georgia. Their accommodation of my demands—both reasonable and unreasonable—throughout this undertaking has benefited me immensely. For the years of their love and support, saying thank you hardly seems enough. But I thank them, my parents and all of my family nevertheless. 4 DETAILS OF PRIOR PUBLICATIONS Parts of this thesis are based upon material that has been published. The details of this are as follows: Chapter 1 – Scott Grattan, "Judicial Reasoning and the Adjudication of Airspace Trespass" (1996) 4 Australian Property Law Journal 128 - 145. Chapter 2 – Scott Grattan, "The Name(s) of the Rose: Personality, Preferences and Court-Imposed Easements" (2004) 10 Canterbury Law Review 329-345. Chapters3and4–ScottGrattan,"CourtingCouncils and Counselling Courts: Subjectivity and Objectivity in Section 88K Applications" (2005) 12 Australian Property Law Journal 126-156. Chapter 5 – Scott Grattan, "Proprietarian Conceptions of Statutory Access Rights" in Elizabeth Cooke, Modern Studies in Property Law, vol 2 (2003) 353-374. 5 TABLE OF CONTENTS Abstract.....................................................................................................................i Certificate of Originality, Copyright Statement and Authenticity Statement..........ii Acknowledgements.................................................................................................iii Details of Prior Publications...................................................................................iv Introduction - Terminus a Quo ............................................................................ 1 I Background .......................................................................................................... 1 II Significance of Thesis ........................................................................................ 8 III Methodology.................................................................................................... 10 IV Structure .......................................................................................................... 12 V Terminology...................................................................................................... 14 Chapter 1 - The Castle and The Cathedral: The Origin of Statutory Access Rights .............................................................. 17 I Outline................................................................................................................ 17 II The Castle Image of Land................................................................................. 18 A The Legal Expression of the Castle Model.................................................. 21 B Dworkin’s Taxonomy .................................................................................. 23 1 Right-Based Justifications........................................................................ 24 2 Duty-Based Justifications........................................................................
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