Title

A sustainable property paradigm

Document Type

Presentation

Publication details

Page, J 2010, 'A sustainable property paradigm', paper presented to the 10th Australasian Property Law Teachers Conference, University of Western Australia, Crawley, WA, 24-26 September.

Abstract

The future of property will be shaped by its capacity to adapt to the unfolding imperative of the 21st century, the challenge of landscape sustainability. As a constantly evolving institution, property has adapted to meet the needs of pre-industrial, and industrial society, and again must conform to an unfolding era when society must re-learn the need to ‘live from the yield, but not from the substance’[1] to ensure long-term prosperity.

Property in landscapes is inter-connected and inclusive, and not as private property defines it, fragmented and exclusive. Property needs to be ‘seen’[2] in its many diverse forms, where the sharp dichotomies of private and public are blurred, and the consequence of ‘viewing land through the lens of [an economy of nature is to] reduce the significance of property lines.’[3] That such a view of property may enhance the potential for landscape sustainability is the proposition of this paper. The paper suggests an alternative articulation of property that:

1. Emphasises use rights with simultaneous multiple ‘owners’, rather than traditional doctrines of estates or interests in land, unitary ownership, and associated notions of exclusivity of possession;

2. Enables obligations, as a logical and necessary concomitant of rights;

3. Promotes a diversity of shared, multiple uses, rather than single use;

4. Blends the traditional distinctions between private, public and common property;

5. Encapsulates the desirable norms of private, public, and common property models, while mitigating their less desirable characteristics, and;

6. Results in a diverse, pluralistic, inter-connected network, or ‘mosaic’[4] of property rights, claims and uses.

Our understanding of property has fundamental consequences for it’s relationship with external things, including landscapes and landscape resources, and how they are used and exploited. Articulating a sustainable paradigm for the institution of property is critical in an age of environmental consequence[5].

[1] Klaus Bosselmann, The Principle of Sustainability (2008) 22

[2] Carol M. Rose, Property and Persuasion (1994)

[3] Joseph L. Sax, ‘Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council’ 45 Stan. L. Rev. 1433 (1992-1993) 1446.

[4] Sally K Fairfax, Lauren Gwin, Mary Ann King, Leigh Raymond and Laura A Watt, Buying Nature The Limits of Land Acquisition as a Conservation Strategy, 1780-2004 (2005).

[5] Courtney White,‘Conservation in the Age of Consequences’ 48 (2008) Nat. Resources J. 1

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