When property is taken to represent a bundle of rights at the common law, then the right to exclude others from the benefits of a property is the leading right of the property owner. [1] This is because only excludable resources can be propertised or have ‘property status’. That is, without an excludable nature, resources cannot be legally regarded as property. [2] Thus, it can be held that property ‘consists primarily in control over access’. [3] As a dynamic concept, the scope and nature of property has evolved from simply referring to a particular resource, to the legal relationship held with the resource.

Through this relationship, the owner of property generally has a right to control, access, enjoy, alienate, exclude and/or profit from their legally endorsed property. These benefits of property ownership therefore make up the ‘bundle of rights’ which is known to be property. Nevertheless, Gray argues that what makes property ‘property’ is the notion of excludability: “A resource is ‘excludable’ only if it is feasible for a legal person to exercise regulatory control over the access of strangers to the various benefits inherent in the resource. The right to exclude others or to have control over the access of strangers from the benefits of a property is hence the key in identifying what is (or is not) property, and in defining the ‘propertiness’ of property. [5]

Gray’s conception of property was adopted by the High Court in Yanner v Eaton. [6] Under s 7(1) of the Fauna Conservation Act 1974 (Qld), most fauna was regarded as the property of the Crown, enabling the exercise of their proprietary right to control access to the fauna. 7] Despite the Crown’s vested property in fauna being deemed a mere fictional expression of the Crown’s power,[8] the Crown applied their power by disallowing persons to take, keep or attempt to take or keep fauna unless they were granted the right to do so. [9] In addition, under the Native Title Act 1993 (Cth), Indigenous Australians were granted, albeit conditionally, native title rights and interests in relation to land or waters[10] in accordance with their laws and customs. However it does not confer proprietary ownership over these lands or waters.

This is because Aboriginal ownership of land refers to a ‘spiritual affair rather than a bundle of rights’[11] and possesses an inherent communal quality which is inconsistent with the common law idea of property and the related rights of a property owner, as it does not recognise the essential element of excludability. The notion of property as control over access materialises from the majority judgement in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[12] which held that the defendant had not taken any of the plaintiff’s property.

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As the property owner of the racecourse, the plaintiff had every right to exclude the defendant or any other persons from access to their property and the benefits of the property. This may include, such as in this case, erecting a higher fence. [13] Although it is evident that the defendant had taken something that might have belonged to the plaintiff, the defendant did not, at anytime diminish the plaintiff’s rights over their property.

The defendant had merely exploited the plaintiff’s competitive prospects, which cannot be regarded as property due to the non-excludable nature of profit-making opportunities. Similarly, in Georgeski v Owners Corporation,[14] the plaintiff was granted a licence to use of the Crown land, but failed to deny the second and third defendants use of this land, as proprietary rights to control the use of the land by others were held by the Crown rather than the plaintiff.

Although the plaintiff had a right to use of the land, the land was not the property of the plaintiff and hence he did not have control over access to the land. Thus, vested rights in property exist only when ‘property’ is excludable and grants the owner with the power to exclude other persons from the benefits of their property. If not, then the ‘property’ cannot be legally regarded as property.

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