Property Law and Mitigation

This chapter discusses the methods by which third parties, particularly future owners of land used for sequestration activities, might be bound to the obligations that underpin sequestration schemes, particularly permanence. For sequestration schemes that use recognised property rights, and in systems that use the Torrens system of title by registration, the critical step will be registration or notation of an interest on the title to the relevant land. However, this principle is subject to several exceptions including ‘fraud’ and claims in personam , which might make a difference in particular cases. In contrast, in sequestration schemes that are not clearly linked to the land law system, or which use only personal rights, the only way in which a later owner of land could be bound to a permanence obligation would be via a principle of statutory interpretation that allows Torrens system statutes to be overridden by other acts of Parliament in very limited circumstances. This chapter highlights that without carefully considering property law from the beginning, there is substantial risk that rights and obligations created by sequestration schemes will not be enforceable against owners of later property interests in land, undermining the credibility of the schemes, the units that are generated from them, and the overall achievement of mitigation objectives.