Property Law- Control over Access

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.[4] 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