Legislative Assembly for the ACT: 2008 Week 04 Hansard (Tuesday, 8 April 2008) . . Page.. 1084 ..
MR MULCAHY (Molonglo) (12.14): I will speak briefly on and will be supporting the Unit Titles Amendment Bill 2007, which makes sensible changes to the provisions for the registration of unit titles in the ACT.
The bill allows a new unit plan to be registered even though it includes minor encroachments, such as eaves and awnings, over an adjoining road or public place. I understand from the explanatory statement on this bill that it has been the government’s previous practice to allow such encroachments when there is no significant loss of public amenity. In 2000, the Government Solicitor’s Office found that this practice was inconsistent with ACT law. The change will correct ACT law on this issue to allow the government to adopt its former practice of allowing minor encroachments to public land.
This is an interesting bill and it invites us to turn our attention to the notion of land ownership and the prerogatives of that ownership. I am reminded of the amusing legal principle which existed in Roman law and which was later passed on to the common law and the civil law for a period regarding the scope of ownership of land. The principle was encapsulated in a Latin maxim, which I will not attempt to repeat because Mrs Dunne will correct me on this and I have not had time to consult Father Webb, which translates roughly to the English phrase “to whoever owns the land shall belong the earth to its centre and up to the heavens”. This principle meant that an owner of land was regarded as owning a conic section which went up infinitely into the heavens. As such, encroachments, no matter how high up, were regarded as trespassers to land.
This principle has now been discarded by the common law, which recognises that encroachments over property do not always affect the enjoyment of that property by the owner. In this case, we do not need to concern ourselves with a difficult analysis of land law, since the land encroached upon is public land, and the government is certainly able to allow encroachments to its own land if it feels that this is sensible. I am satisfied from my analysis of this bill and the unit titles system that there are indeed instances where it is sensible to allow minor encroachments onto public land.
The bill provides criteria in section 20 (1) (d) to deal with applications to approve encroachments. This section requires the government to consider whether new encroachments that have not previously been approved would endanger public safety or unreasonably interfere with public amenity and whether it is in the public interest to refuse to approve the application. I am satisfied that these criteria are sensible, though as with any set of subjective criteria their reasonableness will largely depend on how they are interpreted and applied by the government considering applications for the registration of unit plans. It is certainly sensible to refuse to allow such encroachments in cases where they present a danger to the public and, in my view, it is also sensible to refuse to allow such encroachments in cases where they unreasonably interfere with public amenity. I think these cases are probably sufficient to cover the relevant criteria without the more general public interest test, but I do not see any harm in such a test if it is applied sensibly.
I also understand from previous debate on this bill that the current process to deal with encroachments is to grant a stratum lease, which involves a separate payment of fees