You own land, and a state government or its authority, often a council, without any useful warning or good faith negotiation, adversely rezones, or by other legislative means impairs, your use of your land, causing a loss in value and amenity.
Has this happened to you? Couldn't believe that it was possible in Australia to have property rights removed without compensation? Negotiations getting nowhere? Feel like nobody else understands?
Governments around Australia have, without ever having sought a specific electoral mandate, progressively legislated to impair the property title rights, in many different ways, of random landowners, without compensation.
At the same time, the legal profession, as a whole, has failed to speak up for, or to pro-actively defend, affected landowners - who have been left to face off alone against massive state bureaucracies imbued with a culture of impunity - surprised, shocked, disappointed, isolated and let down.
This site reveals the how and why of some of the government wrongs, and proposes potential legal strategies to remedy these issues.
NEW! in Version 1.7
".....a jurisprudential void, as if like a celestial black hole, has sucked common sense and justice, and human rights, beyond the event horizon into an abyss of unfathomable oblivion."
For some real stories as published, click on the links in the next section, marked "A".
There are many, many more stories, unpublished and endured by the victims alone.
The famous HOLLYWOOD sign in Los Angeles was endangered by development! How did the State of California preserve the sign without adverse rezoning and consequent owner impoverishment and breach of human rights?
Ian Callinan AC, a former Justice of the High Court, seems to indicate that the High Court would have more than an inkling of sympathy for owners affected by adverse rezonings - but it has to hear a good legal argument. He's a must read.
Logically, a Crown grant of freehold, as an alienation of property ownership by the Crown in perpetuity, inherently carries with it a right to compensation by the freehold property owner for adverse rezonings or any other impairment to the grant. Is it not also the law? Read the extensive Australian common law not found in modern textbooks.
Usually associated with despotisms, the risk that a Government might fail to pay its foreign creditors, or confiscate or destroy property rights, is known as "sovereign risk". Uncompensated adverse rezonings are a form of sovereign risk. Foreign investors (unlike Australians) in countries party to an Australian free trade agreement are protected from such risk by the Commonwealth. How so?
S. 51(xxxi) of the Constitution ensures "acquisition on just terms": it's a dud provision for property owners adversely affected by state decisions.
Read below for Mr Spencer's experience.
However, it can be within the Commonwealth's power to legislate so that the states could not arbitrarily deprive people of property. How?
These stories are in no particular order. As previously published stories, they reveal only a small fraction of adversely affected property owners, most instances being unpublished. For example not one story relates to the 22,000 landowners who lodged unsuccessful objections many years ago under the County of Cumberland scheme (NSW). The list is extensive, but does not purport to be comprehensive.
Kemps Creek locals devastated after properties made worthless. Channel 7 News Sydney - 5 Feb 2021
'..really shocking...ultimate betrayal'.... Sky News - 7 Feb 2021
"...no one's accountable....no one from the state government attended landowners' meeting.." Channel 7 News Sydney 20 Feb 2021
"This Government has devalued so much land in this State without offering the land owners a penny for it.......
How can this Government justify treating people this way?"
NSW Government unjustly removes property rights without compensation,"sterilising" the land.
Channel 9 A Current Affair reports on some personal stories where properties have become "virtually worthless" after the NSW Government rezoned them. 28 April 2021.
The US Constitution's Fifth Amendment Takings Clause - “private property [shall not] be taken for public use, without just compensation” - seems to be taken seriously in the USA.
The HOLLYWOOD sign story below demonstrates a proper way to do things - California did not rezone the land to arbitrarily deprive the owners of property rights. (Footnote: Hefner was just part of the solution.)
The Hon. Ian Callinan AC, a former Justice of the High Court of Australia, wrote an opinion piece which, in the view of Adverse Rezoning, is as evenly balanced and currently relevant as when it was published in 2008.
This extra-judicial commentary is consistent in sentiment with Callinan's quite eloquent observations as a Justice of the High Court: Chang v Laidley Shire Council [2007] HCA 37. A reader might be able to infer from his comments the possibility of some sympathy from the High Court for those affected by adverse rezoning.
The High Court cannot initiate cases on topics that it would be interested to hear and decide, nor will it rule on cases out of mere sympathy - it has to find its decisions on the basis of sound legal argument - but as yet, it seems that no sound legal argument has been put to the Court. Time for that to change!
The Hon. Ian Callinan AC points out what has always been the view of the High Court, that with regard to the deprivation of property rights, the states' "obligation to pay compensation is not constitutionally entrenched".
Notwithstanding the breach of human rights, and sovereign risk, implicit in such deprivations, the states, since the second half of the twentieth century, have generally shown absolutely no interest in rectifying these injustices themselves.
A Crown grant of freehold, as an alienation of property ownership by the Crown in perpetuity, inherently carries with it a right to compensation or rectification by the freehold property owner for after-the-fact impairments to the grant, which should include adverse rezonings. Why is it not thus the law? Well, maybe it is? There is extensive and consistent common law on the point.
S. 51(xxxi) of the Australian Constitution is substantially irrelevant where, as in "deprivation" cases, there is no "acquisition".
Nonetheless, the Commonwealth, can readily have another power to eliminate the property-related sovereign risk in the states.
Arguments for Property Rights in Australia, attached below, examines these issues and the relevant law in detail and proposes solutions.
Submissions made to government inquiries, consistent with Arguments for Property Rights in Australia.
Not an affected property owner? You are welcome to join us!
Opinions of article contributors are their own. This site is not offering legal advice. In making any legal decision, the advice of your legal practitioner should be obtained. Contributions and suggestions are welcome
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