Posted on March 12, 2025 by Liam Mulligan and James King 8

The dual meanings of “Land”

In a recent case, the Court of Appeal has once again considered an issue which arises in a range of different statutory contexts – what constitutes “land” or an “interest in land”?

In this case, the issue for the Court’s consideration arose under the Duties Act 1997 (Duties Act) but the Court’s approach and findings will be relevant to the variety of cases where this issue arises.

Background

In 2019, one company (Conexa) acquired all the shares in another company (Rosehill). Rosehill had constructed an underground water pipeline spanning approximately 19km across Crown and private land. Rosehill had a variety of interests in the land where the pipeline lay, including leases, easements, and licences.

The Water Industry Competition Act 2006 (WIC Act) relevantly provides for ownership of water industry infrastructure at section 64 as follows:

‘(1) Except where another Act expressly provides otherwise, water industry infrastructure is owned by the person that constructs or installs it, or on whose behalf it is constructed or installed, or any person that subsequently acquires title to it, whether or not the land in, on, under or over which it is situated is owned by that person.’

Similar provisions exist in the Local Government Act 1993, Water NSW Act 2014, Sydney Water Act 1994 and Hunter Water Act 1991 and operate to vest the ownership of works installed in or on land by certain authorities in those authorities. All of these provisions are stated to override the concept of ‘indefeasibility’ (the inability to be challenged) of registered land title and in that respect they are important provisions, as indefeasibility of title is one of the fundamental pillars of the Torrens title system.

The Duties Act charges a duty on the purchase of a landowning corporation, in an amount calculated by reference to the value of its land holdings. The question in this case was whether the pipeline was a land holding (and therefore, whether it was “land”) for the purposes of the Duties Act. If the pipleline were considered to be “land”, a significantly higher duty was payable on the purchase of Rosehill by Conexa.

A dispute as to the meaning of an ‘interest in land’

The primary judge had found that Conexa’s interest in the pipeline was not an interest in ‘land’ but was an interest in ‘goods’ for the purposes of the Duties Act. Conexa appealed against the decision on the basis that the interest in the pipeline was a non-dutiable interest – that is, it was neither an interest in goods or in land.

Conexa submitted that s 64 of the WIC did not support a conclusion that the pipeline installed was ‘land’ or an ‘interest in land’ within the meaning of the Duties Act. The Commissioner contended that ownership of the pipeline was an ‘interest in land’ under the Duties Act with reference to s 64 of the WIC Act.

Findings of the Court

The Court found that the space occupied by the pipeline and associated infrastructure constituted “land” for the purposes of the Duties Act. Therefore, Conexa had purchased a land holding company when it indirectly acquired the infrastructure by acquiring Rosehill. The appeal was therefore dismissed.

The judgment of Basten JA in particular draws together the various textual and contextual indicators in Duties Act (as well as in the Interpretation Act 1987) which tended to show that the pipeline and associated infrastructure are “land” for the purposes of the Duties Act. His Honour noted in particular the dual character of the widely-used terms “land” and “an interest in land”. In some cases – particularly planning statutes or instruments – the word “land” will refer to a physical, three-dimensional area of land and its particular characteristics.  However, in many other contexts – such as statutes dealing with real property interests, taxes or duties – “land” or “an interest in land” will instead refer to the ‘jural concept’ of land ownership. That concept calls up the intangible rights and interests in land created by our system of laws and property rights.

Ultimately, the Court found that s 64 of the WIC confers an ownership right over the specific three-dimensional part of the land where the pipeline has been laid. That interest has priority over any other interests, such as the freehold interest of the registered proprietor of the land. That is the case despite the pipeline being affixed to the land given that, under common law, fixtures become part of the land to which they are affixed.

One of the key takeaways of the case is that there are two main ways to consider land:

1. In a planning law sense which is often focused on physical and geographical spaces of land; and
2. In property law sense which focuses on the rights and interests of individuals and a ‘legal’ view of land.

Authorities should keep in mind which of the above frameworks apply prior to considering what ‘land’ might be. It is also important to be aware that a number of types of infrastructure can be placed on land which create unrecorded statutory interests in that land. Those interests can alter the ownership of parts of land despite registered title where clauses such as s 64 of the WIC Act apply.

Read the case in full here: Conexa Sydney Holdings Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCA 20. For further consideration of this topic, see our earlier blog The Meaning of ‘Land’.

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on 02 8235 9715 or James King on 8235 9722.