Are Aboriginal objects on land potentially a defect in title?
This question was discussed by the NSW Court of Appeal in Mehmet v Carter. And the short answer is: Yes, Aboriginal objects on land may be a defect in title where they are protected from disturbance under a law.
The case concerned a contract for sale of a land and business near Byron Bay. There was rock on the land that bore a plaque stating that Harry and Clara Bray, Tribal Elders of the Bunjalung people were buried near the site in the late 1800s. The purchaser claimed that this was a defect in title and refused to complete. The contract was terminated and the vendor brought an action for damages. The Primary Judge held that there was no defect in title on the limited grounds that the Aboriginal objects belonged to the Crown and were not included in the property sold.
On appeal, the purchaser argued that the defect in title arises from the legal protection of the objects that applies under the National Parks and Wildlife Act 1974 (NPWA). Essentially, the development and use of the land containing Aboriginal objects was substantially constrained by laws designed to preserve and protect the objects including the need for a permit to disturb the objects.
The case is a little unusual, because the decision of the Court was that the particular question should not have been asked in the circumstances presented in the case, however some compelling comments were made by the Court of Appeal.
President Beazley of the Court of Appeal included a reasonably extensive discussion of the rule in Flight v Booth and subsequent cases. Chief Justice Bathurst and Justice McColl both agreed with the reasoning of Beazley P. Essentially they said there could be a defect in title and the question of rights will depend on both whether the contract excludes that risk and the actual nature of the affectation.
Based on the authorities discussed in the Judgement, it is clear that the presence of Aboriginal cultural heritage, including protected objects, may be a defect in title because the NPWA:
The Judges also found there was merit in the purchasers’ argument that the necessity to obtain a permit, if they were to develop the land, would likely significantly impact the use they could make of the land.
As the owner and/or purchaser of large tracts of land, local governments should consider the question of potential Aboriginal objects or cultural heritage in any sale or purchase of land that may contain those.
The purchaser’s rights can be excluded by clear provisions in the contract excluding any right to claim that the existence of Aboriginal objects or cultural heritage is a defect in title or otherwise creates any right of rescission or termination or entitlement to compensation.
Updated Australian Emergency Management Arrangements Handbook
A handbook that outlines the responsibilities of all three levels of government during emergencies and disasters has been updated to help authorities in their preparations for future incidents. The free Australian Emergency Management Arrangements Handbook was guided by a working group, which included the Australian Local Government Association (13 September 2019). More...
Councils’ Night Time Economy report
An update on the state of Australia’s Night Time Economy in metropolitan areas has found the sector employed more than 1.1 million people in 2017-2018 and had a turnover close to $136 billion, or nearly five percent of the total economy (13 September 2019). More...
Revised pool barriers standard
Local councils and members of the public are invited to comment on a proposed revision of a standard covering safety barriers for swimming pools. Standards Australia proposes expanding elements of AS1926.1 to give additional information to pool owners, pool users and certifiers (13 September 2019). More...
Parliament backs farmers with Criminal Code Amendment Bill set to become law
The Australian Senate passed the Criminal Code Amendment (Agricultural Protection) Bill, meaning tough new penalties for those who incite trespass, property damage or theft on agricultural land will soon become law (12 September 2019). More...
New Future Fund to fight future disasters
A new ‘Future Fund’ to help rebuild communities after major natural disasters is expected to be established this summer with a $4 billion injection from the Commonwealth. Minister for Finance, Senator Mathias Cormann said the fund would give the Government an additional source of sustainable funding to draw on in the aftermath of natural disasters (12 September 2019). More...
Councils get smarter with data
Councils around the world are grappling with the ethical issues associated with AI as part of smart city building. And they are learning that protecting privacy is only the start (09 September 2019). More...
Time to devolve local government powers: Report
The community should be able to establish bodies within the council system with powers and resources to get things done, a report by a network of local government experts recommends (09 September 2019). More...
Submissions sought for airports review
Councils that operate airports or have airports within their Local Government Areas are invited to make submissions to the National Airports Safeguarding Framework, and has developed a Terms of Reference to guide the review (06 September 2019). More...
Submission in response to the climate change authority consultation paper
In response to the scientific evidence on anthropogenic climate change, local government has for over two decades been actively engaged in programs to reduce carbon emissions from council operations and to implement emissions abatement programs in communities. Local governments recognise Australia’s exceptional vulnerability to the impacts of climate change (02 September 2019). More...
Submission on the Murray Darling Basin draft terms of reference
An independent panel of people connected to and/or living and working in the Basin has been invited to undertake an assessment of social and economic conditions in Basin communities on behalf of The Hon. David Littleproud MP, Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management (02 September 2019). More..
LGAQ: What do councils need to consider post bushfire?
The first intense rainfall post a bushfire catchments can cause a number of issues and impacts onto the drinking water quality. Actions should be considered as you enter the planning for recovery and potential impacts on water quality and supply (12 September 2019). More...
Gold Coast City Council waived rent it previously claimed a property developer owed
The Gold Coast City Council waived tens of thousands of dollars in rental fees it previously claimed was owed by a property developer, following an internal meeting involving two councillors who had previously received electoral donations from the company (10 September 2019). More...
Planning schemes to support ATSI knowledge, culture and tradition
Queensland’s planning legislation is leading Australia in its recognition of the need to value, protect and promote Aboriginal and Torres Strait Islander knowledge, culture and tradition. Minister for Planning Cameron Dick said new guidance material released will assist Queensland councils in supporting cultural awareness through their local planning schemes (12 September 2019). More...
High Court ruling makes managing vegetation ‘virtually impossible’
A decision by the High Court this week has made vegetation management for Queensland primary producers even more confusing, exposing them to fines of up to $600,000 per breach. The High Court decision upheld the power of councils to control vegetation management on ‘Category X’ land – about 20 per cent of Queensland’s landmass – where there is a local planning scheme in place (13 September 2019). More...
High Court boosts Queensland councils' power to limit land clearing
The Queensland Court of Appeal upheld the original finding in the Planning and Environment Court in favour of the council, that affects one-fifth of the state’s landmass (12 September 2019). More...
Judge overrules council on rejected aged care high-rise in Taringa
A planning court judge has overturned Brisbane City Council’s decision to reject a three-building high-rise aged care centre in Taringa, after the applicants agreed to reduce the size of the facility. The development on a 11,830-square-metre block, submitted by TriCare in 2017, was rejected by the council on grounds including that it was oversized and “dwarfed” the low-lying suburb (12 September 2019). More...
Property Council research highlights rating practice inequity
Property Council research into Queensland local government rating practices has raised new concerns with the targeting of non-residential properties through inequitable differential and minimum rates (12 September 2019). More...
North Queensland Regional Plan released
The Property Council has welcomed the announcement that the first-ever draft Regional Plan for North Queensland has been released. The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville (12 September 2019). More...
'The up-yard': Could rooftop gardens save our cities from climate change?
Brisbane is forecast to become a difficult place to live by 2050 and while rooftop gardens could be the ticket to cooling the urban sprawl, developers say local planning laws are holding them back (06 September 2019). More...
Palm Island council moving forward with greater transparency for the community
A new system of financial reporting is being put in place at the Palm Island Aboriginal Shire Council, ensuring greater transparency for the Palm Island community. It follows the appointments of a governance advisor and a financial controller six weeks ago, which was done with the full support of the council (05 September 2019). More...
Funding to help councils plan for growth
Minister for Planning Richard Wynne announced funding for 54 town planning projects that will streamline processes and lift the quality of development around the state. Forty-one councils are set to benefit from the funding as part of the Victorian Planning Authority’s (VPA) Streamlining for Growth program (13 September 2019). More...
National airports safeguarding advisory group
The National Airports Safeguarding Advisory Group is undertaking a review of implementation of the National Airports Safeguarding Framework (NASF). The review is intended to consider implementation of NASF across jurisdictions; and seeks submissions from all levels of government, industry and community stakeholders. More information about the review, making a submission and the terms of reference can be found here. Submissions close on 22 November 2019 (12 September 2019).
National Local Roads and Transport Congress, 18-20 November 2019
This year’s theme is ‘breaking through for modern transport’. Topics to be covered include the future of transport and how local government can benefit, and an update on the state of the country’s infrastructure by Infrastructure Australia CEO, Romily Madew. More...
Review of local government rates report
The review of local government rates report, commissioned by the Property Council and undertaken by Queensland Economic Advocacy Solutions, has highlighted inconsistencies in the approach of major councils to their rating practices. The report has also graded these councils on their overall number of non-residential categories, competitiveness of their rates, and consistency with the Government’s rating guidelines. Note: The report has been released as the State Government considers regulatory amendments in response to the recommendations of the Queensland Audit Office Report: Managing local government rates and charges investigation.
North Queensland regional plan
The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville. Consultation on the draft document closes on 22 November 2019 (12 September 2019). More...
LGAQ: Migration in regional Australia - have your say
The LGAQ will be preparing a submission to the Inquiry on Migration in Regional Australia. The Inquiry will give particular consideration to how communities and settlement services can best assist migrants to gain successful employment. Members of the public can view the plans in full detail and make a submission from 30 August to 11 October.
Office of the Independent Assessor Decisions – 12-13 September 2019
Statement from the Independent Assessor Kathleen Florian – Moreton Bay Regional Councillor decision
Statement from the Independent Assessor Kathleen Florian – Redland City Councillor decision
Brisbane City Council v Amos  HCA 27
LIMITATIONS OF ACTIONS – Debts created by statute – Debts secured by charge – Where Council commenced proceeding against respondent for overdue rates and charges – Where overdue rates and charges secured by charge – Where respondent argued claim was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of Limitation of Actions Act 1974 (Qld) – Where Council argued claim was an action to recover a principal sum of money secured by a charge and subject to s 26(1) of the Act – Where proceeding falls within both ss 10(1)(d) and 26(1) – Whether s 26(1) applies to exclude operation of s 10(1)(d).
Criminal Code Amendment (Agricultural Protection) Bill 2019
House of Representatives message from Senate reported 12/09/2019
Consideration of Senate message Details: House agreed to Senate amendments 12/09/2019
Amends the Criminal Code Act 1995 to introduce two new offences in relation to the incitement of trespass or property offences on agricultural land.
National Capital Plan – Amendment 93 – City and Gateway Urban Design Provisions Technical Changes
12/09/2019 - This instrument amends the National Capital Plan (December 1990) by introducing transitional provisions to address development applications submitted to the Territory planning authority prior to the commencement of National Capital Plan – Amendment 91 – City and Gateway Urban Design Provisions, and by clarifying design provisions concerning permitted building lengths, and balconies and balustrades.
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