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New Ideas – Question Paper – Real Property and Human Rights Are we really Right?

Does the rise of Human Rights legislation, in particular the Charter of Human Rights and Responsibilities (Vic) 2006 (‘Charter’), open up a potential challenge to the principles of indefeasibility of title, possibly undermining the supremacy of the registered proprietor on title. A Human Rights Challenge in respect of Real Property occurred in Europe in 2007. The English case of J.A. Pye (Oxford) v The United Kingdom (‘Pye’)[1], appealed to the Grand Chamber of the European Court of Human Rights, and posed the question is ‘adverse possession’[2] inconsistent with European Convention for the Protection of Human Rights and Fundamental Freedoms (‘The Convention’)[3]? The Grand Chamber Judges held, by a ratio of 10 to 7 that there had been no violation of The Convention. Despite finding that no violation of Human Rights had occurred, the case provokes contemplation of the potential of interaction between Human Rights legislation and real property rights. In the ‘Pye Case’ Mr Graham, had grazed a 23 hectare property uninterrupted from the mid 1980s until 1997 when he lodged an adverse possession application with the UK Land Registry. The registered proprietor lost a legal battle at the United Kingdom High Court to prevent the registration. On appeal to the Grand Chamber, it also lost a claim alleging violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The 2007 Victorian Case of Abbatangelo v Whittlesea City Council[4] saw Council seek to use S20 of the Victorian Charter; ‘A person must not be deprived of his or her property other than in accordance with law’. In this case, Mrs Abbatangelo claimed title to a small parcel of land by adverse possession against Whittlesea City Council. The disputed land was given to Council in 1908 as a gift for the construction of a Shire Hall. The Shire Hall was never built and ultimately became used for over 15 years by Mrs Abbatengelo. Pagone J rejected an argument that adverse possession is: ‘a rationale which actively encourages people deliberately to enter into possession of another’s land knowing that they would be rewarded with an unassailable title as a result of their wrong’[5] His Honour, relying on the long accepted history and law of adverse possession, preferred a view that it is: “more important that an established and peaceable possession should be protected “than to assist” the agitation of old claims.”[6] As in the ‘Pye case’ the challenge to adverse possession was unsuccessful. In exploring this idea, statutory exceptions to indefeasibility, came to mind as possibly worthy of consideration in the Human Rights context. One such exception is the ‘vesting’ powers provided to Local Governments for ‘land used, or to be used, for roads’ under the Local Government Act 1989 (Vic) (‘LGA’). [7] A road generally vests in the local Council, unless located on Crown land, a freeway or arterial or in other agreed or limited circumstances (Road Management Act Sch 5, 1(4)-(6)). Other statutory exemptions to indefeasibility principles can include registers of mining leases and licences, certain unregistered statutory obligations regarding land and unregistered easements in favour of a drainage authority. Intriguing questions also arise from indefeasibility case law concerning refund of ATSIC grants given to purchase Aboriginal land upon its sale (Commonwealth v South East Queensland Aboriginal Corp for Legal Services [2006] 1 QD R 12) and a retirement village bond as an unregistered charge on land (Brown & Austrust Ltd v CBA (1993) 173 LSJS 145).   These exemptions, involving not only small maybe unnoticed parcels of land but also quite sizeable land, can transfer ownership of interests in land, without registration, away from the registered proprietor of that interest. This area of law is very difficult and complex, with each case requiring very careful legal review, based upon its individual facts. However development of Human Rights law internationally and domestically poses questions about recourse and responsibilities in respect of such grave interference with land. Questions worthy of research, consideration and testing are: – Could such statutory vesting powers be challenged under Victorian Human Rights legislation? Thus, could a person deprived of his or her property in this way successfully challenge that, particularly if the deprivation arose from a statute enacted after 1 January 2007 when the Charter became operational? – Should public authorities, including Councils, be more careful in registering vested interests or other rights in land, considering their obligations under Section 38 which states: (1) Subject to this section, it is unlawful for a public authority to act in away that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.   – Following from the previous point, and at minimum, does S38 alter or create an obligation on a public authority to notify the now defeasible title to the registered proprietor of the interest (and to registered proprietor of the land owner if another person). Does it impose a similar obligation to notify prior to vesting where possible? – If vesting is challenged, might it be subject to a declaration of inconsistent interpretation under S36 of the Charter? S36 permits the Supreme Court, where a statutory provision cannot be interpreted consistently with Human Rights, to make a declaration to that effect. The declaration must be then given to the Attorney-General, who in turn must pass it onto the relevant Minister. Written by Hubert Algie. This blog entry is simply an exploration into the potential of Human Rights law and is framed more as a question than answer, in the process of triggering new ideas. Please do note this intention in respect of information provided and questions posed.

(c) Kellehers Australia 2013. Not to be use or re-purposed with out specific written consent from Kellehers Australia


[1] J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v The United Kingdom [2007] 44302/02
[2] In accordance with United Kingdom Legislation at the time of adverse possession (Limitations Act 1980 UK and Land Registration Act 1925)
[3] Article 1 of Protocol 1 – ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however in any way impair the right of a state to enforce laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
[4] [2007] VSC 529 (13 December 2007)
[5] Ibid 4
[6] Megarry & Wade, The Law of Property (6th ed, 2000) 1303, citing Marquis Cholmondeley v Lord Clinto [1820] EngR 550; (1820) 2 Jac & W 1, 140; [1820] EngR 550; 37 ER 527; Manby v Berwicke [1857] EngR 435; (1857) 3 K & J 342, 352; See also Bradbrook, MacCallum and Moore, Australian Real Property Law (4th ed, 2007) 675-676.
[7] Schedule 5, Road Management Act 2004, Section 207B of Local Government Act 1989

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