What is the impact of land tenure on the sustainability of retirement village communities in Australia?

In 2005, 17.3% of Australians were aged 60 years and older according to the Australian Bureau of statistics (ABS). According to aBS this situation mirrors the poulation profile of other developed countries such as Canada, New Zealand, the United States of America and to some extent the United Kingdom (ABS). Self contained independent living units in retirement Villages are now contributing to the dwellings available for those aged 55 years and over in Australia and the retirement village sector has become a significant sector within the residential property market. However, the method of operaton of many retirement villages, and the lack of freehold tenure, impacts on the desireability of retirement village life to potential residents. This paper focuses on sustainability from the perspective of the ongoing viability of retirement village operations in light of the impact of land tenure and operational issues on the perceptions of potential residents.

Dealing with unique interests in Crown Land : a Queensland perspective

Security of tenure is the cornerstone of the land management system in Australia. Freehold title is protected throug indefeasibility of title entrenched in legislation and protection of registrable interests in land is offered through the Statutory Assurance Fund. For those with interests pertaining to Crown Land no such protection is offered, although this position is not uniform across Australia. Notably those with Crown leasehold interests or a profit a prendre on Crown Land in Queensland are not protected through registration on the freehold land register and do not have the benefit of indefeasibility of title. The issue of management of interests pertaining to Crown Land has become increasingly relevant due to the complexities associated with balancing public interests including native title with more commercial interests in land generated through carbon sequestration, forestry and mining. This paper considers the framework for the management of Crown Land in Queensland and the adequacy of this framework for commercial interests that pertain to Crown Land.

The impact of tenure type on the desire for retirement village living

In 2005 17.3% of Australians were aged 60 years and older (Australian Bureau of Statistics). A consequence of this aging population is the increased use of self-contained independent living units (SCILU) in Retirement Villages by older Australians. The retirement village sector has thus become a significant sector within the residential property market. In seeking to determine the impact of tenure type on the desirability of RV living this paper first profiles a typical SCILU in Australia, before explaining and examining the various tenure types offered by the market. This paper concludes that the multiplicity of offerings of the SCILU product with respect to tenure type, when combined with deferred management fees and participation in capital gains/losses, may be contributing to a lack of clarity in what the SCILU product entails and the security of investment it offers. This perception is supported by litigated disputes and may be damaging the reputation, ongoing viability and desirability of SCILUs.

The compatibility of leasehold and freehold tenure arrangements with environmental offset and trading initiatives

Environmental offsets and environmental trading initiatives are being rapidly introduced into environmental regulatory regimes. These relatively new legal mechanisms are attempting to fill in the gaps left by command and control regulation. The introduction of environmental offset and trading policy in Queensland will need to be compatible with existing land tenure regulation. Who owns and who uses natural resources are controlled by a range of legislative reservations and restrictions. Reservations give the State ownership of certain natural resources such as minerals, quarry material and, in some circumstances, forest products. Where there is a reservation in operation, the land holders rights are weakened. Restrictions in relation to uses prevent land holders from carrying out certain activities on the land. An example of a restriction of use is the operation of the Vegetation Management Act 1999(Qld), which prescribes the manner in which vegetation is to be dealt with. This article explores the nature of freehold and leasehold land tenure in Queensland and examines the effect of reservations and restrictions upon the operation of environmental offset and trading initiatives. Presently Queensland legislation does not directly address the relationship between land tenure and environmental offset and trading initiatives. The stability of tenure required for the creation of environmental offsets can be at odds with the flexibility allowed for under leasehold arrangements. This flexibility may act to undermine the permanency requirement of environmental offset creation (i.e. the guarantee that the offset is created for the long term).

Australia and Forest Carbon Partnerships : Indigenous Land Rights

One of the ways in which indigenous communities seek justice is through the formal recognition of their sovereign rights to land. Such recognition allows indigenous groups to maintain a physical and spiritual connection with their land and continue customary management of their land. Indigenous groups world over face significant hurdles in getting their customary rights to land recognized by legal systems. One of the main difficulties for indigenous groups in claiming customary land rights is the existence of a range of conflicting legal entitlements attaching to the land in question. In Australia, similar to New Zealand and Canada legal recognition to customary land is recognized through a grant of native title rights or through the establishment of land use agreement. In other jurisdictions such as Indonesia and Papua New Guinea a form of customary land title has been preserved and is recognized by the legal system. The implementation of REDD+ and other forms of forest carbon investment activities compounds the already complex arrangements surrounding legal recognition of customary land rights. Free, prior and informed consent of indigenous groups is essential for forest carbon investment on customary land. The attainment of such consent in practice remains challenging due to the number of conflicting interests often associated with forested land. This paper examines Australia’s experience in recongising indigenous land rights under its International Forest Carbon Initiative and under its domestic Carbon Credits (Carbon Farming Initiative) Act (Australia) 2011. Australia’s International Forest Carbon initiative has a budget of $273 million dollars. In 2008 the governments of Australia and Indonesia signed the Indonesia-Australia Forest Carbon Partnership Agreement. This paper will examine the indigenous land tenure and justice lessons learned from the implementation of the Kalimantan Forest and Climate Partnership (KFCP). The KFCP is $30 million dollar project taking place over 120,000 hectares of degraded and forested peatland in Central Kalimantan, Indonesia. The KFCP project site contains seven villages of the Dayak Ngdu indigenous people. In 2011 Australia established a domestic Forest Carbon Initiative, which seeks to provide new economic opportunities for farmers, forest growers and indigenous landholders while helping the environmental by reducing carbon pollution. This paper will explore the manner in which indigenous people are able to participate within these scheme noting the limits and opportunities in deriving co-benefits for indigenous people in Australia under this scheme.

International regulation of large-scale land acquisition involving foreign entities

Outlines some of the potential risks or actual harms that result from large-scale land leases or acquisitions and the relevant human rights and environmental law principles.

The function of property in creating an effective legal regime for trade in environmental offsets

Market-based environmental regulation is becoming increasingly common within international and national frameworks. Environmental offset and trading regimes are part of the market-based instrument revolution. This paper proposes that environmental market mechanisms could be used to introduce an ethic of land holder responsibility. In order for market based regimes to attract sufficient levels of stakeholder engagement, participants within such scheme require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is often associated with property based interests. This paper explores the property related issues connected with environmental offset and trading scheme initiatives. Relevant property-related considerations include land tenure considerations, public versus private management of land choices, characteristics and powers associated with property interests, theories defining property and the recognition of legal proprietal interests. The Biodiversity Banking Scheme in New South Wales is then examined as a case study followed by a critique on the role of environmental markets.

State of Origin : Queensland Crown Leasehold - lessons from New South Wales

Throughout Australia freehold land interests are protected by statutory schemes which grant indefeasibility of title to registered interests. Queensland freehold land interests are protected by Torrens system established by the Land Title Act 1994. However, no such protection exists for Crown land interests. The extent of Queensland occupied under some form of Crown tenure, in excess of 70%, means that Queensland Crown land users are disadvantaged when compared to freehold land users. This article examines the role indefeasibility of title has in protecting interests in Crown land. A comparative analysis is undertaken between Queensland and New South Wales land management frameworks to determine whether interests in crown land are adequately protected in Queensland.

Real estate issues associated with the implementation of a carbon trading framework : a rural landholders perspective

The issue of carbon sequestration rights has become topical following the United Nations Convention on Climate Change and the subsequent Kyoto Protocol which identified emissions trading as one of the mechanisms to reduce greenhouse gas emissions. The Australian Government has responded by initiating the Garnaut Climate Change Review which in its final report, proposed that an emissions trading scheme be introduced and set out some of the desirable features of such a trading scheme. This proposal has been the subject of much debate and at this stage there still seems to be little clarity surrounding the topic of emissions trading in Australia. The treatment of rights to carbon sequestered in vegetation is also an issue when reconciled with the system of land tenure and ownership in many jurisdictions. These carbon property rights are treated differently in different Australian and international jurisdictions ranging from recognition of their new and unique nature to fitting them within a more established common law framework, e.g.a profit a prendre. This paper identifies the treatment of these sequestered carbon rights within the wider property rights framework in Australia and considers issues that this treatment may inflict on land holders when there is a fracturing of ownership between the rights of the carbon in vegetation and the ownership of the land.

Threshold concepts in property education : a case study

First year Property Economics students enrolled in the Bachelor of Urban Development at QUT are required to undertake a number of compulsory subjects, alongside students undertaking studies in other disciplines. One such common unit is ‘Stewardship of Land’, an interdisciplinary unit that introduces students to the characteristics of land and land tenure with a focus on land use and property rights. It covers a range of issues including: native title, land contamination, heritage values, alternative uses, the property development process, impact of environmental and social factors, and the management of land, both urban and regional. Teaching such a diverse content to a diverse audience has in previous years proved difficult, from the perspectives of relevance, engagement and content overload. In 2011 a project was undertake to redevelop this unit to reflect ‘threshold concepts’, concepts that are “transformative, probably irreversible, integrative, often troublesome and probably bounded” (Meyer & Land, 2003) . This project involved the development of a new set of underlying concepts students should draw from the unit, application of these to the unit curriculum, and a survey of the student response to these changes. This paper reports on the threshold concepts developed for this unit, the changes this made to the unit curriculum, and a preliminary report on survey responses. Recommendations for other educators seeking to incorporate threshold concepts into their curricula are provided.

Retirement villages : time for a change?

In retirement, many Australians relocate to a less onerous form of home occupation. Some downsize their house, or move to a strata title complex. Others, attracted by lifestyle perceptions, move into a retirement village. However, research shows Retirement Village documentation is complex and more analogous to commercial leasing than home ownership. The most recent government review by New South Wales, confirms the need for change. This paper identifies the current retirement village tenure models generally available in Australia. By comparing the various State/Territory systems the authors draw conclusions regarding the adoption of standardised documentation and uniform Australian Retirement Village legislation.

Legal issues in the design and implementation of environmental offset and environmental trading frameworks

The Queensland Government released its new Environmental Offset Policy in July 2008. This policy creates a set of overarching principles which are to be incorporated into existing environmental offset policy. This article is the final article in a set of three interrelated articles discussing the operation and implementation of environmental offsets in Queensland. The first article discusses the Environmental Offsets Discussion Paper and the existing environmental offset requirements. No significant changes have been made to these existing offset requirements under the new Environmental Offset Policy. This article also touches briefly on the legal issues associated with design and implementation of environmental offset and trading frameworks. The second article considered the compatibility of different land tenure arrangements in Queensland against the requirements for the creation and trade of environmental offsets. The third article being the present article, discusses the application of the new Environmental Offset Policy while also analysing the legal issues associated with environmental offsets in further detail.

Inventory procedures for smallholder and community woodlots in the Philippines : methods, initial findings and insights

This paper details the processes and challenges involved in collecting inventory data from smallholder and community woodlots on Leyte Island, Philippines. Over the period from 2005 through to 2012, 253 woodlots at 170 sites were sampled as part of a large multidisciplinary project, resulting in a substantial timber inventory database. The inventory was undertaken to provide information for three separate but interrelated studies, namely (1) tree growth, performance and timber availability from private smallholder woodlots on Leyte Island; (2) tree growth and performance of mixed-species plantings of native species; and (3) the assessment of reforestation outcomes from various forms of reforestation. A common procedure for establishing plots within each site was developed and applied in each study, although the basis of site selection varied. A two-stage probability proportion to size sampling framework was developed to select smallholder woodlots for inclusion in the inventory. In contrast, community-based forestry woodlots were selected using stratified random sampling. Challenges encountered in undertaking the inventory were mostly associated with the need to consult widely before the commencement of the inventory and problems in identifying woodlots for inclusion. Most smallholder woodlots were only capable of producing merchantable volumes of less than 44 % of the site potential due to a lack of appropriate silviculture. There was a clear bimodal distribution of proportion that the woodlots comprised of the total smallholding area. This bimodality reflects two major motivations for smallholders to establish woodlots, namely timber production and to secure land tenure.

The effect of incentive reforms upon productivity : evidence from the Vietnamese rice industry

In this study we use region-level panel data on rice production in Vietnam to investigate total factor productivity (TFP) growth in the period since reunification in 1975. Two significant reforms were introduced during this period, one in 1981 allowing farmers to keep part of their produce, and another in 1987 providing improved land tenure. We measure TFP growth using two modified forms of the standard Malmquist data envelopment analysis (DEA) method, which we have named the Three-year-window (TYW) and the Full Cumulative (FC) methods. We have developed these methods to deal with degrees of freedom limitations. Our empirical results indicate strong average TFP growth of between 3.3 and 3.5 per cent per annum, with the fastest growth observed in the period following the first reform. Our results support the assertion that incentive related issues have played a large role in the decline and subsequent resurgence of Vietnamese agriculture.

The influence of human rights on land rights and spatial information

This paper reviews the growing influence of human rights issues on land rights, administration, management and tenure. In the last few decades, attention focussed on integrating economic and environmental considerations to achieve sustainable land use. The World Trade Organisation began in 1995. As a condition of membership, nations undertook legislative programmes aimed at reducing price distortions and barriers to international trade. Reducing trade barriers has direct effects on agricultural production as a major land use. Similarly, as signatories to the 1992 Rio Declaration, nations undertook caring for and reporting on the state of the environment. However, quality of life is also an issue in deciding what is sustainable development. The Universal Declaration of Human Rights, proclaimed in 1948, provided a framework for a series of international human rights conventions. These conventions now influence national legislative programmes. The purpose of this paper is to review some of the implications of human rights on rights in land and the production and use of spatial information.