Land LawQuestion 1The Queensland Water Act (2000) was amended to replace the previous Water Resources Act 1989 to avoid the ambiguity that was experienced with the previous one. However Queensland water resources legal and planning was by far the most elaborate as compared to other states. The main objective of the Water was to separate water bodies from the surrounding land entitlements with the aim of implementing a water trading framework. It is therefore important that anybody who owns land near a water body be conversant with the Water Act regime especially pertaining to issues such as mining, irrigation, energy and other industrial projects.
The Water Act 2000 clearly states that the Act has the mandate to ensure the sustainable management of water and resources and the establishment and operation of water authorities and for other purposes. The Act binds all people including the state as provided for by the legislative power, the commonwealth and other states. However under sub-section 1 of the Act it does not apply to the operation of State Developments and Public Works Organization Act 1971 or the powers of the coordinator general under the State Development and Public Works Organization Act 1971.The land owner of a property with a non-tidal river does not own the water from the river although it passes through his property.
According to the sub-section 1 of the Act, the state promotes sustainable development by allowing the sustainable use of water resources by the residents of Queensland for their economical, physical and social well being and by protecting biological biodiversity and the health of natural systems. With the aim of achieving the sustainable management, the Water Act gives the state the power to own all water bodies and their surrounding banks regardless of whether they pass through private property.
As a result all rights to use, flow and control water in Queensland rests with the state. The provision is clearly stated in section 24(1) that, “beds and banks of all water courses and lakes forming all or part of the boundary of land are and always have been the property of the state. ”The major provision in the Water Act is section 20(6) which allows a person to take or interfere with the flow of water for domestic or stock purposes unless the state has issued a notice regarding sustainable management which restricts such actions.
The act is generally limited in terms or restrictions. However the most important thing to note is that the resource planning regime requires that one obtains a permit before taking water from a river or a spring. There are also limitations as to the maximum volume of water that can be drawn per year. Therefore the best thing that the land owner would have done to avoid prosecution was to obtain a permit before beginning to use the water for domestic and for stock purposes.
However, the Act does not impose the limitations by itself but the limitations are provided for by the water resource plans that vary from state. Question 2Traditionally land systems have always provided for that in the event that a land owner wants to sell his land the history of the land must be properly analyzed to ensure that the seller transfers a good and authentic title deed to the purchaser.
Therefore whenever a property is sold, the title deed should be filed and recorded with the lands office. The basic components to be updated include: both names of the seller and the buyer, the owner relationships of both the sellers and the buyers in case there are more than one buyer or more than one seller and a legal account of the property being sold. The information from each title deed is subsequently summarized in an abstract of title. In a situation where a vendor unintentionally signs two formal contracts of sale for a land parcel the case falls under the Torrens system.
The Torrens system of land registration is applicable in all the states of Australia and other countries such as Canada and New Zealand. The Torrens system ensures that there is an assurance by the state concerning registered parcels; furthermore the Torrens ensures that there is a guarantee fund for legitimate land owners who loose court cases as a result of mistakes concerning registration made at the land Titles Offices.
The most fundamental provision of the Torrens system is that the register at the lands office provides the ultimate proof. The law continues to elaborate that apart from instances where there has been fraud on the person dealing with the registered owner, the registered owner upon registration of the title taken from the registered owner, has an unlimited and indefeasible title. The major assumption in the law is that no registration can take place without the authority of the state, therefore any piece of land that can be registered in the absence of fraud, automatically obtains indefeasible title upon registration.
There is always a general procedure required for the verification of the authenticity of title deeds. Any interested purchaser of land is required to perform a search going several years backwards for instance 30 years in Victoria to ensure that all previous transactions were legal and well documented. For certainty purposes every deed from the time the land first transferred ownership need to be verified. The verification should be done by an experienced lawyer or lands officer who will examine every transactions relating to the land.
The essence of the Torrens system of land is to make the process of land registration much easier and more dependable. Usually the process involves the land registration office, an examiner and the registrar. For instance when someone wants to register a piece of land all they have to do is to file a petition with the registrar to have the land registered. Afterwards the examiner will determine whether the title of the land is good by looking at the history of the land.
If the title is good the office of the registrar issues certificate of ownership that cannot be revoked by any court of law unless the examiner did a mistake during the process of examining the land.