The Death of Rural Freehold Rights

Article excerpt

FARMER Jim is thinking of felling one of the 20,000 trees on his property for fenceposts. He has used up his 30 tree (0.15 per cent) exemption. He looks at one of the 19,970 remaining trees. He has to consider: what slope it is on; whether it is a rare species; whether it has any hollows or is on the way to having hollows; what native animals or birds are feeding off it or are likely to do so; what effect it has on the forest canopy; whether it is near a stream; whether it is of aboriginal significance; etc., etc. Then he will be in a position to make a lengthy submission to government seeking permission to fell. Welcome to the world of tree-by-- tree approvals.

Over many years, governments have taken actions that have diluted the rights to freehold title. They have done so for a variety of reasons, including to provide for essential public services, to control harmful activities and, more recently, to prevent ugly development. This has resulted in extremely interventionist regimes. Such regimes are necessary, particularly in crowded urban areas. But they are not costless.

Nevertheless, the planning regimes have generally not destroyed the economic value of a whole class of property and deprived landholders of the incentive to care for it.

State Governments are in the process of doing just this. They are establishing native vegetation legislation that will quarantine large areas of Australia, effectively eliminating freehold tenure in those areas. In opting for coercion rather than cooperation, for preservation rather than management, they will also ensure that their environmental objectives will not be attained.


At the national level, the legislation is intended to prevent widespread additional clearing of private native forest and woodland. At the local level, this will be done by depriving landholders of historical legal rights and existing economic value. The rights are the counterweight for the responsibility of care. The new legislation does not provide for the expropriator (the government) to take up the responsibility of care. Indeed, it seeks to impose additional responsibilities on the landholder as it removes the property rights.

The method of expropriation is through the familiar requirement for official permission that will be hard to obtain and seldom granted. Permits will generally be required from government before native vegetation can be disturbed. Native vegetation is widely, if vaguely, defined but can be taken to encompass most native forest and woodland. The legislation is duplicated, extended and reinforced in many respects by existing and new rules covering water and native fauna. The legislation will be administered through regional plans containing detailed regulation.

Some exemption has been granted so that landholders can remove or take a number of trees per annum. The exemptions bear no relation to existing rights. In one NSW regional plan, it is 30 trees per property. On a property with 100 hectares of trees (not uncommon) there could be up to 40,000 trees. The exemption is, therefore, nominal and negligible. It cannot be described as maintenance of landholders' rights nor does it provide the basis for sensible forest management.

The avenues for landholders to apply for permission to undertake native forest activities will be hedged with the usual interminable processes of analysis, submission, impact statement, comment, etc. Only big businesses will have the time, expertise or money to take on the crushing weight of the State bureaucracies and the inevitable third-party intervention that the centralizing of decisions fosters and favours. Farmers already have a day job. Expensive and complex submissions to government are far more onerous for them than for full-time bureaucracies or (government-financed) Green organizations.

In this case, regulation of rights is effectively elimination of rights.

In effect, the policy locks up the private forest at no immediate cost to the government and eliminates the freehold property right. …