Leslie Massey
The concept of land ownership is complex, and the depth of your ownership underground depends on various factors and regulations. In Australia, it's important to note that property ownership typically extends downwards to a usable depth, rather than down to the core. This means that you don't have unfettered access to everything beneath your land. Any valuable resources like gold, gas, petroleum, coal, or copper are considered property of the Crown, and the state can grant licences to mining companies to explore or mine these resources without your explicit approval. Additionally, factors like mineral rights and easements can further influence the extent of your ownership underground. Understanding the specific laws and regulations in your state or territory is crucial to comprehending the depths of your property ownership in Australia.
| Characteristics | Values |
|---|---|
| If the property was bought before 1891 | You own the land all the way down to the centre of the earth |
| If crown land grants were issued after 1891 | You own approximately 15.24 meters below the surface |
| If you own mineral rights | You own everything below the ground unless you stumble upon an Indian burial ground |
| Air rights | You own the air above your land located in the lower stratum, the precise boundaries for which are still up for debate |
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What You'll Learn
Mineral rights
The concept of land ownership is often assumed to be simple—you pay money and gain access to a predetermined amount of land. However, the laws governing one's rights as a landowner vary considerably depending on location, even within a given country or state.
In the US, if you own the land and all the mineral rights to a property, everything below the ground belongs to you, unless you happen to stumble upon an Indian burial ground, in which case you have to report it. Other than that, practically everything is fair game, and you can drill for oil and gas or even mine, assuming you have the relevant permits, and anything you find is yours to sell or keep.
In Australia, the concept of mineral rights is a bit different. The first Australian mining laws were enacted in 1851. Before that, ownership of minerals and petroleum passed to those who were granted title to the land by colonial governors according to common law concepts, except for the right to "Royal Mines" (the precious metals of gold and silver), which remained vested in the Crown by virtue of Royal prerogative. From 1855 onwards, colonial parliaments legislated for ownership of minerals to be retained by the Crown in future grants of freehold title. Thus, the Crown, in right of the State, owns nearly all the minerals throughout Australia.
Each of the Australian states and territories has its own legislation regulating the exploration and production of onshore minerals. The Commonwealth has no onshore mining legislation applicable in the states or territories. However, the Commonwealth has sovereignty over offshore minerals in respect of the territorial sea and sovereign rights concerning the continental shelf and the exclusive economic zone for the purpose of exploiting natural resources.
In Western Australia, a Miner's Right must be obtained by each person wishing to prospect or fossick on Crown land. This permit enables the holder to access Crown land for prospecting purposes and to take and keep samples of any ore or material up to 20 kilograms. It is important to note that a Miner's Right does not authorize the holder to carry out mining operations; a separate mining title is required for that purpose.
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Ownership of land bought before 1891
The concept of land ownership is complex and varies across different jurisdictions. In Australia, the laws regarding land ownership have evolved over time, and the historical context is important to consider.
Historically, the concept of "ad coelum" maxim governed property rights, suggesting that whoever owns the soil holds the title down to the depths of the earth. However, this concept is no longer applicable due to modern developments such as construction cranes, drones, and industrial mining.
If you or your ancestors purchased the property before 1891, it is generally believed that you own the land down to the centre of the earth. This belief is based on the historical context of land ownership laws and practices in Australia. However, it's important to note that land ownership laws vary from state to state, and there may be exceptions or nuances to this general understanding.
In modern times, the ownership of land in Australia is a complex mix of freehold, pastoral leases, crown leases, public land, native title, and land held by Aboriginal trusts. The definition of ""Indigenous tenure," for mapping purposes, includes exclusive-possession native title and freehold, which grant the right to exclude others from the land. This definition, however, does not invalidate non-exclusive native titles or Indigenous ownership in areas where native titles have been extinguished.
Additionally, the state can grant exploratory or mining licenses to companies, allowing them to access and extract resources from private land without the landowner's approval, as long as it is not within 100 meters of an inhabited house or a farm. This further complicates the concept of land ownership and the rights associated with it.
In summary, while historical land purchases before 1891 may have granted ownership down to the centre of the earth, modern laws, regulations, and considerations have created a more complex landscape of land ownership in Australia, with a focus on balancing individual rights with the needs of the community and the environment.
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Rights to airspace
The concept of land ownership is often assumed to be simple—you pay money and gain access to a predetermined amount of land. However, the question of how much of that land you truly own is more complex. While there is no legislation governing how much airspace a property owner owns, Australian court cases have indicated that a property owner has exclusive rights to use the airspace above their land. This is supported by the Latin maxim, "Cuius est solum, eius est usque ad coelum et ad inferos", which translates to "the person who owns the land owns it from the heavens above to the centre of the earth below".
In Australia, property owners own the airspace "to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it". However, the interpretation of "ordinary use" is open to legal interpretation. For example, planes are allowed to fly over your home, but what about drones? There has been much debate about drones flying over property, and at what point it is considered a nuisance.
In recent years, there has been a resurgence of interest in airspace rights, particularly in built-up urban locations. Property developers have started paying large sums to buy access to the airspace above their neighbours' properties, especially in Sydney's CBD. This can be done by acquiring easements for overhang, which are exceptions to the rule that a person's property rights are absolute.
It is important to note that the laws governing landowners' rights to airspace can vary from state to state and even within a given country. Therefore, it is always advisable to seek legal advice when dealing with issues related to property and airspace rights.
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Rights to subsoil
The concept of land ownership is complex and varies depending on location, even within a given country or state. In Australia, the rights to subsoil are particularly nuanced.
If you own land in Australia, you typically have rights to the subsoil, but there are some important exceptions and limitations. For example, any gold, gas, petroleum, coal, copper, or other minerals found on or in your land are the property of the Crown. While you still own the land itself, the state can grant licences to mining companies, allowing them to explore or mine without your direct approval, unless the work is within 100 metres of an inhabited house or a farm. In such cases, access must be negotiated with the landowner's consent.
The depth of your subsoil ownership also depends on when the land was purchased. According to Dr Cait Storr, a lecturer in property and legal theory at Melbourne Law School, if you or your ancestors bought the property before 1891, you often own all the way down to the centre of the Earth. However, crown land grants issued after 1891 may be limited to approximately 15.24 meters below the surface.
Additionally, your rights to subsoil can be affected by neighbouring properties. If there is a valuable resource, such as a pool of oil or a vein of gold, that extends beneath multiple properties, each landowner will have an equal claim to the portion on their side of the property line. This can lead to complex legal situations, as determining exact boundaries underground is challenging and costly.
It is worth noting that airspace rights are also related to subsoil rights. While you cannot prevent commercial planes from flying over your property, as the sky is considered a public highway, there have been cases where trespassers have been fined for airspace violations. The exact extent of your airspace ownership depends on various factors, including mineral rights and the concept of "ordinary use," which is open to legal interpretation.
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Intrusions and interferences
The concept of land ownership is complex and varies across different countries and states. In Australia, there have been interesting cases involving air trespass that are reshaping property rights. For instance, a developer was ordered by the Supreme Court to remove a crane that was hanging over a neighbouring family's home in Melbourne. This was ruled as "an actual trespass" by Justice Riordan.
While planes are permitted to fly over private properties as the sky is considered a public highway, drones can be a legal grey area. Although drones are not prohibited from flying over someone's property, their use may be considered a nuisance if they invade privacy or cause disturbance.
In terms of underground ownership, the situation is equally intricate. In the US, if an individual owns the land and the mineral rights, they typically own everything underneath their property. However, there are exceptions, such as discovering an archaeological site or if the resources extend to a neighbour's property. In such cases, both parties have an equal claim to the resources.
In Australia, the situation is different. While landowners own the land, the states can grant exploratory or mining licenses to companies, allowing them to access and extract resources without the landowner's explicit approval, as long as it is not within a certain distance of an inhabited structure. The Crown has first dibs on valuable resources found on public or private property, including gold, gas, petroleum, coal, and copper.
The concept of "ordinary use" of airspace above one's property is also subject to interpretation and can vary based on jurisdiction.
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Frequently asked questions
If you bought your property before 1891, you may own as far down as the centre of the earth.
Crown land grants issued after 1891 are typically limited to approximately 15.24 metres below the surface.
You typically own the minerals in the ground on your property. However, there have been cases of development companies selling the mineral rights to energy companies and then selling the homes with contracts stating the energy company owns the mineral rights.
You have the right to enjoy your property, which means you own the airspace above your property to a height of at least 83 feet. The upper limit is 500 feet, which is the Federal Aviation Administration's definition of navigable airspace.
There is debate about drones flying over private property. While people can legally look over your fence, it is difficult to take legal action against a drone flying over your property.
