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On this page: Notice to neighbour | Notice to Council
Notice of Proposed Works — Invitation to Raise Objection
Notice Reference: JH-NN-[YYYY-MM-DD]
Date: [DATE]
To: The Parcel Holder/s of [NEIGHBOURING PROPERTY ADDRESS / LOT NUMBER]
Take notice that John Henry, of the family Doe (“John Henry”), being seised in fee simple of the land described as follows (“the Parcel”) by virtue of a Crown grant issued under the authority of the Crown of [Colony/State], hereby gives notice of his intention to proceed with the following works on or within the Parcel (“the Works”):
Current title reference: [LOT NUMBER / ADDRESS / CERTIFICATE OF TITLE VOLUME AND FOLIO — e.g., “Lot 42 on Deposited Plan 12345, Certificate of Title Volume 1234 Folio 567”]
Originating Crown grant / chain of title (include whichever applies):
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Where an original Crown grant is held or identified: “Being the whole [or portion] of the land comprised in Crown Grant Volume [XX] Folio [XX], issued by the Crown of [Colony/State] on or about [DATE], under which the fee simple estate was first vested in private hands”; or
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Where the parcel derives from a portion of a Crown grant: “Being portion [XX] / Lot [XX] of the land originally comprised in Crown Grant Volume [XX] Folio [XX], subsequently dealt with by [brief chain — e.g., transfer, subdivision] and now identified as Certificate of Title Volume [XX] Folio [XX]”; or
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Where the Crown grant details are not yet to hand: “Being land in which the fee simple estate is ultimately derived from a Crown grant issued under the authority of the Crown of [Colony/State], the precise volume and folio reference of the originating grant being the subject of further inquiry and to be provided upon request.”
Description of proposed Works:
[DESCRIBE WORKS — e.g., “Construction of a swimming pool in the rear yard of the Parcel”; “Erection of a colorbond fence along the [northern/southern/eastern/western] boundary of the Parcel”; “Construction of a private garage/carport structure”; “Modification and extension of the existing dwelling, comprising [brief description]”]
Purpose of this notice
John Henry has considered the nature, extent, and situation of the proposed Works carefully and in good faith, and has formed the considered view that:
(a) the Works are confined wholly within the Parcel;
(b) no aspect of the Works will encroach upon, overhang, or physically affect any neighbouring parcel or any other property;
(c) no harm, loss, or injury to any neighbouring parcel, its owner, occupier, or any other person is reasonably foreseeable as a consequence of the proposed Works; and
(d) the proposed Works constitute an exercise of the rights of ownership vested in the fee simple estate of the Parcel by the originating Crown grant — being rights that have passed with the land through each subsequent dealing to John Henry as the present holder, and that are recognised and confirmed by the High Court of Australia in Commonwealth v New South Wales (1923) 33 CLR 1, among other authorities.
The foundational principle governing the use of one’s own land is sic utere tuo ut alienum non laedas — use your own property so as not to harm another’s. John Henry has applied that principle honestly and carefully in forming the view that the proposed Works cause no harm, loss, or injury to any neighbouring parcel or person.
This notice is issued as a genuine courtesy and entirely in good faith. It is not a legal formality designed to foreclose your rights. It is an honest invitation to raise any concern before works commence, so that any matter John Henry may not have considered can be brought to his attention.
What harm, loss, or injury means in this context
In the event that you hold an objection, John Henry asks that it be directed at actual or reasonably foreseeable harm, loss, or injury to your parcel or to you personally — that is, a real and identifiable consequence of the Works, not a general preference about how neighbouring land should be used or appear.
The common law has always distinguished between a neighbour’s right not to be harmed by another’s use of their land, which is a real and enforceable right, and a neighbour’s preference that adjoining land be used or developed in a particular way, which is not a right recognised at law. John Henry respects the former entirely. He respectfully notes that the latter does not give rise to a legal basis for objection.
Examples of harm, loss, or injury that would be relevant include physical encroachment, drainage affecting your parcel, structural risk to your parcel, or loss of a legally recognised easement or right. Examples that would not constitute harm, loss, or injury in the relevant sense include general aesthetic preferences, views of the Works from your parcel, or a preference that John Henry seek council approval.
Response invited
If you hold any objection to the proposed Works, or if you are aware of any manner in which the Works may cause harm, loss, or injury to your parcel or to you personally, you are invited to communicate that objection or concern in writing to John Henry at the address below, within fourteen (14) days of the date of this notice.
Any objection should be:
(a) specific in its description of the harm, loss, or injury asserted;
(b) accompanied by any supporting evidence; and
(c) delivered in writing to the address below within the response period.
If no written objection is received within fourteen (14) days of the date of this notice, John Henry will proceed with the Works on or after [DATE 14 DAYS FROM DATE OF NOTICE].
The absence of objection within the response period will be recorded as evidence that no neighbouring parcel holder has identified any harm, loss, or injury arising from the proposed Works.
The importance of raising any genuine objection within the response period
John Henry acknowledges that a neighbouring parcel holder who suffers actual harm, loss, or injury caused by the Works retains the right to bring a cause of action on those grounds in a court of competent jurisdiction, and John Henry will engage with any such proceeding on its merits.
However, the opportunity to raise an objection provided by this notice is a genuine and time-limited one, and a decision not to respond carries potential legal consequences that every recipient of this notice should consider carefully.
By receiving this notice, you are put on formal notice of the proposed Works in sufficient detail to identify any harm, loss, or injury that the Works may cause to your parcel or to you personally. You are given fourteen days to consider that matter and to raise any concern.
If you can identify, at the time of receiving this notice or within the response period, any manner in which the proposed Works may cause harm, loss, or injury to your parcel or to you personally, and you elect not to raise that concern within the response period, your silence may have the following legal consequences:
(a) Estoppel by acquiescence. A person who stands by with knowledge of facts that would give rise to a right or claim, watches another act in reliance on the assumption that no such claim exists, and fails to assert the claim when given a clear and express opportunity to do so, may thereafter be estopped from asserting that claim: Ramsden v Dyson (1866) LR 1 HL 129. John Henry will proceed with the Works in direct reliance on the absence of objection within the response period. A neighbour who identifies a foreseeable harm and chooses not to raise it may find that reliance operates against them in any subsequent proceeding.
(b) Contribution to loss. Where a person who could reasonably foresee a harm arising from another’s conduct, and was given an express opportunity to prevent it, elects not to do so, their failure to act may be treated as a contribution to any loss they subsequently suffer. The failure to raise a foreseeable concern when expressly invited to do so is not a neutral act.
(c) Laches. Equity does not assist a person who, with full knowledge of the relevant facts, delays unreasonably in asserting their rights to the prejudice of another. A neighbouring parcel holder who receives this notice, does not object within the response period, watches the Works proceed, and then brings a claim, faces a significant laches argument in any court of equity.
(d) The forensic record. This notice, together with any record of its delivery and the absence of response, constitutes a contemporaneous evidentiary record. In any subsequent proceeding, that record will be available to demonstrate that the neighbouring parcel holder was given full and timely opportunity to raise any concern and elected not to do so.
This notice is issued in genuine good faith. Its purpose is not to create legal traps. It is to ensure that any foreseeable harm is identified and addressed before works commence, so that both John Henry and his neighbours are protected. The strongest protection available to a neighbouring parcel holder who foresees a harm is to raise it now, within the response period, in writing, with particulars. That is the course John Henry invites.
A genuine objection, raised honestly and with particulars within the response period, will be considered by John Henry with equal good faith. Works will not proceed if a genuine harm can be demonstrated.
All correspondence to:
John Henry, of the family Doe [Address for correspondence] [Contact details if applicable]
By: ________________________
John Henry, of the family Doe
Authorised Representative
All Rights Reserved. Without Waiver of Rights Under the Crown of the United Kingdom, within the Commonwealth as Proclaimed and Gazetted, and at Common Law
Sic utere tuo ut alienum non laedas — Use your own property so as not to harm another’s.
Notice to Council
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Notice of Proposed Works and Reservation of Rights
Courtesy Notice to Statutory Entity
Notice Reference: [REFERENCE]-CN-[YYYY-MM-DD]
Date: [DATE]
To: The Chief Executive Officer [COUNCIL NAME] (ABN: [COUNCIL ABN]) [COUNCIL ADDRESS]
Take notice that John Henry, of the family Doe (“the Holder”), being seised in fee simple of the land described as follows (“the Parcel”) by virtue of a Crown grant issued under the authority of the Crown of [Colony/State], hereby gives courtesy notice of his intention to proceed with the following works on or within the Parcel (“the Works”):
Current title reference: [LOT NUMBER / ADDRESS / CERTIFICATE OF TITLE VOLUME AND FOLIO — e.g., “Lot 42 on Deposited Plan 12345, Certificate of Title Volume 1234 Folio 567”]
Originating Crown grant / chain of title (include whichever applies):
-
Where an original Crown grant is held or identified: “Being the whole [or portion] of the land comprised in Crown Grant Volume [XX] Folio [XX], issued by the Crown of [Colony/State] on or about [DATE], under which the fee simple estate was first vested in private hands”; or
-
Where the parcel derives from a portion of a Crown grant: “Being portion [XX] / Lot [XX] of the land originally comprised in Crown Grant Volume [XX] Folio [XX], subsequently dealt with by [brief chain — e.g., transfer, subdivision] and now identified as Certificate of Title Volume [XX] Folio [XX]”; or
-
Where the Crown grant details are not yet to hand: “Being land in which the fee simple estate is ultimately derived from a Crown grant issued under the authority of the Crown of [Colony/State], the precise volume and folio reference of the originating grant being the subject of further inquiry and to be provided upon request.”
Description of proposed Works:
[DESCRIBE WORKS — e.g., “Construction of a swimming pool in the rear yard of the Parcel”; “Erection of a colorbond fence along the [northern/southern/eastern/western] boundary of the Parcel”; “Construction of a private garage/carport structure”; “Modification and extension of the existing dwelling, comprising [brief description]”]
This notice is issued as a courtesy only. It does not constitute an application for approval, a request for permission, or any acknowledgment that such approval or permission is constitutionally or lawfully required.
Basis of right to proceed
The Holder proceeds on the following established grounds.
First — seisin in fee simple derived from Crown grant. The Holder is seised in fee simple of the Parcel by virtue of a Crown grant issued under the authority of the Crown of [Colony/State] as identified in the title particulars above. Seisin — the actual, present, possessory right in the land coupled with the right to possess — vested in the Holder’s chain of title by the Crown’s own act at the moment of the original grant. That grant was an act of prerogative authority superior to any subsequent State legislation. The incidents of the fee simple estate — including every act of ownership over, upon, and in respect of the land — were vested by the Crown at the moment of grant and have passed with the land through each subsequent dealing to the present Holder.
The High Court of Australia confirmed in Commonwealth v New South Wales (1923) 33 CLR 1 that a fee simple estate “confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination.” Isaacs J further confirmed in that case that where title derives from a superior originating authority, nothing in State registration or tenure systems can define, limit, or condition the incidents of the estate so granted. The Torrens system and any Certificate of Title issued under it records dealings in the estate — it does not redefine or diminish the estate itself, which continues to carry all the incidents of the original Crown grant.
Seisin in fee simple carries with it, independently of any statute, the common law right of action in trespass against every person who invades or interferes with the Parcel without lawful authority: Entick v Carrington (1765) 19 Howell’s State Trials 1029; confirmed and applied in Plenty v Dillon (1991) 171 CLR 635. Those remedies belong to the Holder as the person seised, and are expressly reserved.
The construction and modification of structures on the Parcel is an act of ownership squarely and unambiguously within the fee simple estate as seised. No subsequent State legislation can require prior approval for the exercise of that right without clear, express authority to extinguish or suspend it — authority which the Holder puts the Council to proof of establishing.
Second — principle of legality. Rights vested in a Crown grant are not abrogated by subsequent legislation without clear, express, and unmistakable statutory language: Potter v Minahan (1908) 7 CLR 277; confirmed in numerous subsequent High Court decisions. Any construction placed upon State planning legislation that purports to require prior approval before the exercise of a right already vested in the fee simple estate as seised must be read narrowly, consistent with this principle. The principle of legality places the burden squarely upon the party asserting abrogation of a vested right — that is, upon the Council — to identify the clear and express statutory language that achieves it.
Third — no harm to any other parcel or person. The Holder has considered the nature, extent, and location of the proposed Works and has formed the considered view that:
(a) the Works are confined wholly within the Parcel;
(b) no aspect of the Works will encroach upon, overhang, or physically affect any neighbouring parcel or any other property;
(c) no harm, loss, or injury to any neighbouring parcel, its owner, occupier, or any other person is reasonably foreseeable as a consequence of the proposed Works.
The foundational justification at common law for regulatory interference with private property rights is the principle sic utere tuo ut alienum non laedas — use your own property so as not to harm another’s. Where no harm to any other parcel or person can be demonstrated, that foundational justification is absent, and with it the basis for any lawful requirement of prior approval.
Fourth — notice to neighbours. On or about [DATE], the Holder issued a written notice to all holders of parcels neighbouring the Parcel, inviting them to raise any objection to the proposed Works within fourteen (14) days. [If applicable: No objection was received within the response period.] That process constitutes an evidentiary record that no neighbouring parcel holder has identified any harm, loss, or injury arising from the proposed Works.
Fifth — constitutional constraints on the entity’s power. The entity addressed by this notice (“the Council”) is a statutory creation of the State Parliament of [STATE], holding ABN [COUNCIL ABN]. It derives all its powers from State legislation. It cannot exercise power in excess of that which the State Parliament itself constitutionally possesses. The principle delegatus non potest delegare operates symmetrically: a delegate exercises no greater power than that of the principal from whom the delegation flows, and where the root power is constitutionally deficient, the delegated exercise of it is equally deficient.
The requirement to obtain approval before constructing a structure, or to pay fees as a condition of that approval, may constitute a charge bearing a close relation to the production or manufacture of goods — namely, the structure to be built — and may therefore fall within the exclusive Commonwealth power to impose duties of excise under section 90 of the Constitution, as that power was authoritatively defined by the High Court in Vanderstock v Victoria [2023] HCA 30. The Holder expressly reserves all rights arising from that constitutional question.
Further, the rule of law, which Dixon J confirmed in Australian Communist Party v Commonwealth (1951) 83 CLR 1 forms an assumption of the Constitution, requires that government power be traceable to legitimate constitutional authority and exercised for a legitimate purpose. A requirement to obtain approval or pay fees before exercising a vested right held by seisin in fee simple, in the absence of demonstrated harm to any other, is not a legitimate exercise of regulatory power on any principled constitutional account.
Sixth — judicial process as the only competent forum for any harm-based challenge. Should the Council, at any future time, form the view that the proposed Works cause or will cause harm, loss, or injury to any other parcel or person, the Council is invited to bring a cause of action on those grounds in a court of competent jurisdiction. The Holder will engage with any such proceeding on its merits.
An administrative process — whether a compliance notice, infringement notice, show cause notice, enforcement order, or delegated officer determination — is not a court of competent jurisdiction. It does not constitute judicial determination of any right or liability. The determination of whether harm, loss, or injury has occurred, and whether any consequence flows from it, is a judicial function exercisable only by a court exercising Chapter III judicial power: R v Kirby; Ex parte Boilermakers’ Society (1956) 94 CLR 254. An administrative body cannot by its own act determine the rights of a person seised in fee simple of land held under a Crown grant.
Any administrative notice, order, or process purporting to require the Holder to cease works, modify or demolish structures, or pay penalties, in the absence of a prior judicial determination of harm, loss, or injury established by evidence in a court of competent jurisdiction, will be treated by the Holder as a trespass upon his rights and an unlawful interference with his seisin: Entick v Carrington (1765) 19 Howell’s State Trials 1029; Plenty v Dillon (1991) 171 CLR 635. All rights and remedies arising from any such act are expressly reserved.
Nothing in this paragraph limits the Holder’s right to seek judicial review of any administrative act under section 75(v) of the Constitution: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Further, the Council is put on notice that its silence within the fourteen-day response period is not a neutral act. The Holder will proceed with the Works in direct reliance on the absence of a substantive response. A council that receives this notice, declines to respond within the response period, and thereafter issues compliance notices, enforcement orders, or other administrative process against works undertaken in reliance on that silence, may find that reliance operates against it by way of estoppel by acquiescence: Ramsden v Dyson (1866) LR 1 HL 129. A public authority that had the opportunity to assert its position through the invited channel and chose not to do so cannot, without more, rely upon enforcement action as a substitute for the substantive response it declined to provide. Any such belated enforcement action will additionally be examined for consistency with the requirements of procedural fairness and the prohibition on unreasonable exercise of discretionary public power, and the Holder reserves the right to seek judicial review of any such action under section 75(v) of the Constitution and the applicable State judicial review legislation.
Seventh — the Local Government Act and planning legislation do not and cannot extinguish the incidents of seisin in fee simple.
The Holder anticipates that the Council may assert that the applicable Local Government Act or planning legislation of [STATE] requires development approval as a condition of the proposed Works, and that this statutory requirement overrides the rights set out above. That assertion is addressed as follows.
There is a distinction, recognised in principle, between two categories of legislative intervention in the exercise of fee simple rights.
The first category comprises standards of construction directed at preventing demonstrable physical harm to identifiable other persons or parcels — for example, standards governing structural integrity where collapse would affect a neighbouring parcel, or fire separation standards where spread would endanger adjoining structures. Even within this category, the appropriate mechanism of enforcement is subsequent liability where harm results, not prior restraint on the exercise of a vested right. And even where prior standards are imposed, any fee charged as a condition of approval raises separate constitutional questions following Vanderstock v Victoria [2023] HCA 30. The Holder does not concede that even this category of regulation is straightforwardly within legislative competence in all its applications; he notes only that its harm-prevention purpose is at least articulable.
The second and far broader category comprises legislation that imposes prior restraint on the exercise of fee simple rights, conditions those rights on administrative discretion, encompasses requirements that go beyond genuine harm prevention — including aesthetic controls, neighbourhood character assessments, setback rules, height limits, heritage overlays, and similar impositions that serve no demonstrable harm-prevention purpose as between parcels — and charges fees as a condition of approval. This category cannot be justified by reference to the sic utere principle, cannot be characterised as mere regulation of the manner of exercising a right, and represents an interference with the incidents of seisin in fee simple that requires clear, express, and unmistakable legislative authority to achieve.
The proposed Works fall into neither category. They cause no demonstrable harm to any other parcel or person. No standard directed at protecting any neighbouring parcel or person is engaged. The Council’s approval regime, to the extent it purports to apply to such works, falls within the second category — prior restraint on a vested right without demonstrable harm justification — and cannot be sustained on the basis of legislative competence alone.
No planning statute in any Australian State expresses, in clear and unmistakable terms, an intention to extinguish the right of a person seised in fee simple of land held under a Crown grant to build or modify structures on that land, and to substitute in place of that right a privilege granted or refused at the discretion of an administrative officer. If any planning statute were to be read as having that effect, it would constitute an acquisition or extinguishment of a proprietary right vested by Crown grant, engaging the just terms requirement and the broader constitutional constraints on legislative taking of vested rights: Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.
The principle of legality requires planning legislation to be read narrowly so as not to abrogate fundamental common law rights, unless that intention is expressed in clear, specific, and unmistakable terms: Potter v Minahan (1908) 7 CLR 277; Coco v The Queen (1994) 179 CLR 427, in which the High Court confirmed that “the courts should not impute to the legislature an intention to interfere with fundamental rights” and that such intention “must be clearly manifested by unmistakable and unambiguous language.”
Where planning legislation can be read as applying to works that engage the sic utere principle by causing harm to others, and can equally be read as not applying to works that cause no such harm, the principle of legality requires the latter reading. The proposed Works cause no harm to any other parcel or person, as established above. On the reading required by the principle of legality, the planning legislation has no application to them.
Further, the Local Government Act is a statute of general application enacted by the State Parliament. It is subject to the Constitution and to the common law principles that constrain all legislation. It does not and cannot, by its general terms, grant to a council the power to interfere with rights vested by Crown grant that the State Parliament itself does not constitutionally possess. The Council’s power being entirely derivative of the State’s power, and the State’s power being itself constitutionally constrained, the Council’s reliance on the Local Government Act as authority for its demands must be assessed against those constraints — not assumed from the face of the statute alone.
The Holder therefore puts the Council to strict proof that the applicable planning legislation, properly construed in accordance with the principle of legality and the constitutional constraints set out in this notice, requires approval for works of the kind proposed, where no harm to any other parcel or person has been or can be demonstrated.
What is required of the Council
The Holder does not seek the Council’s permission to exercise rights already vested by seisin in fee simple of the Parcel.
However, the Holder invites the Council, if it asserts that any approval, licence, or authorisation is constitutionally and lawfully required as a condition of the Works, to provide, in writing and within fourteen (14) days of the date of this notice:
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The precise section and subsection of the applicable State legislation relied upon;
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The constitutional head of power under the Constitution of the Commonwealth of Australia 1901 under which that State legislation was enacted;
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Evidence of the specific harm, loss, or injury to any other parcel or person that the requirement is directed at preventing, in relation to the proposed Works;
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An explanation of why prior administrative restraint, rather than subsequent liability, is the constitutionally appropriate mechanism for enforcing any such standard; and
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A response to the constitutional question raised under Vanderstock v Victoria [2023] HCA 30 as set out above.
If no such response is received within fourteen (14) days of the date of this notice, the Holder will proceed with the Works on or after [DATE 14 DAYS FROM DATE OF NOTICE], reserving all rights.
Nothing in this notice constitutes a waiver of any right, and no conduct of the Holder in relation to any Council process shall be construed as an admission that such process is constitutionally or lawfully required.
All correspondence to:
John Henry, of the family Doe [Address for correspondence] [Contact details if applicable]
By: ________________________
John Henry, of the family Doe
Authorised Representative
All Rights Reserved. Without Waiver of Rights Under the Crown of the United Kingdom, within the Commonwealth as Proclaimed and Gazetted, and at Common Law
Last Updated 6 months ago
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