Professor John Sheehan is an Adjunct Professor at UTS, an Acting Commissioner of the Land and Environment Court and Director of Sarasan Consulting. He has a background in property, planning, and law and is a recognised leader in the field of property rights. A past president of the Australian Property Institute, John Chairs the API Government Liaison Committee. His remit as an Adjunct Professor is to actively participate in research collaboration and publication outputs, be a key UTS / industry / government interface, and serve as a roving ambassador for the Asia-Pacific Centre for Complex Real Property Rights.
© 2019 Pacific Rim Real Estate Society. Australian property law has steadily evolved to facilitate the recognition of new or previously unrecognised property rights. Concurrently, modern property rights have become increasingly complex. This evolution of property rights has had fundamental implications when addressing compensation for the impairment or acquisition of land (Indigenous or non-Indigenous) by government. Indeed as understanding of property rights advances, the ambit of compensation is catapulted into uncharted waters. This paper highlights the difficulty of containing property rights to a particular set of descriptors and the effect this has on compensation claims. Further, the current methodology for processing compensation claims exposes a disconnect between the public and the New South Wales (NSW) government. Finally, through an exploration of specific examples of compensation for private property rights, this paper concludes that there is need for a workable consensus on good, bad and fair compensation.
McCarthy, S, Viavattene, C, Sheehan, J & Green, C 2018, 'Compensatory approaches and engagement techniques to gain flood storage in England and Wales', Journal of Flood Risk Management, vol. 11, no. 1, pp. 85-94.View/Download from: Publisher's site
Flood storage involves creating sacrificial land for water to purposefully inundate to protect land downstream. Obtaining the right or co‐operation to flood on private property remains a challenge. This paper is based on empirical qualitative research with 14 key stakeholders involved in the practice of gaining land to flood in England and Wales and the different forms of financial and economic approaches that might be used to facilitate this right. Expropriation of land, one off‐payment, annual single payment, and flood event losses compensation were explored. Availability of funding as compensation is the main driver for landowner adoption of flood storage schemes. Three funding approaches were revealed; flowage easement, full land purchase, and agricultural schemes funding diffuse storage. Rather than attempting to gain partnerships between spatially dislocated stakeholders in upper storage and lower impacted catchments success resides on the storage land and persuading landowner co‐operation. A clear enforced legal framework of ownership of land and funding mechanisms is also viewed as essential.
Australian property rights exist within a sophisticated body of compensation case
law and practice. To facilitate infrastructure, jurisdictions such as New South Wales
must compulsorily acquire significant tracts of private land. The key factor for
investigation in this paper is the prior reservation (or zoning) of such land where
designated for a public purpose, which ultimately prohibits private usage. Enabling
legislation for all compulsory acquisitions requires the assessment of compensation
for the private land holder. Key judgements in various Australian Courts make clear
that the question of an underlying zoning is a “jurisdictional fact” that triggers the
agency to assess reasonable compensation
Obeng-Odoom, F & Sheehan, J 2014, 'Climate Impacted Littoral Phenomena and customary property rights', Geography Research Forum, vol. 34, no. December, pp. 74-91.
This article looks at the relationship between different structures of property rights
and climate change in littoral areas. It presents a critical historical political economy
perspective on the Hohfeldian analysis of property as a legal and jurisprudential
concept, primarily by contextualising it as embedded in broader social,
economic and environmental relations. Through consideration of contemporary
developments in environmental practices in Ghana and Australia, it argues that
dramatic changes in customary property rights since their incorporation in the
capitalist mode of production have greatly enhanced anthropogenic activities
which, in turn, have placed such rights at great risk: of submergence, of losing
economic and cultural value, and of disrupting extant economic and biophysical
practices. The policy implications arising from such concerns are considered
Sheehan, JB 2010, 'Carbon taxation versus emissions trading schemes?', Deakin Law Review, vol. 15, no. 1, pp. 99-105.
Given that Ausfralia is now intemationally j obliged to reduce national Greenhouse Gas (GHG) emissions,' the matmer of decarbonisation of the atmosphere is of cmcial importance. One way of reducing GHG emissions is to introduee a carbon tax whereby a tax of $x per tonne of earbon is imposed on industries emitting carbon dioxide. Anotheir approach is to introduce a scheme known as an Emissions Trading Scheme (ETSs) which allows trading of permits to emit GHGs.
Sheehan, JB 2010, 'New 'Old' Property: Compensation for Indigenous Cultural Heritage', Australian and New Zealand Property Journal, vol. 2, no. 6, pp. 375-381.
This is an edited version of paper presented to 4th Conference of teh International Academic Association for Planning, Law and Property Rights, Dortmund, February 10, 2010.
This commentary offers a background to the carbon challenge, carbon offsets, and emissions trading from an Australian perspective. It sets the scene for a more detailed discussion about carbon sequestration rights, which are defined explicitly by some Australian states and territories but not by others. We highlight that the term carbon sequestration right is poorly defined and relies, inappropriately we suggest, on the borrowed term profit à prendre. This terminology is at odds with the notion of a carbon property right, which has yet to be conceptualized fully by the marketplace and the existing legal framework, given the need to fully engage the sociological and ecological dimensions of carbon and climate change. We find that current policy intent, together with evolving public will and corporate responsibility, is ahead of the science and the legal framework for managing property rights in carbon (used broadly to represent the six greenhouse gasses). The Australian Property Institute has taken the lead in its 2007 policy paper Conceiving Property Rights in Carbon and more recently in Sheehan and Kanas's investigation of "Property Rights in Soil." This article takes the discussion to the next stage by offering a framework for property rights in carbon and asking whether such rights should be vested in the state or the nation, rather than merely creating a commodity that can be efficiently allocated and thus speculated upon.
Sheehan, JB 2005, 'The Commodification of the Asian Commons: Water as a Property Right', Asia Pacific Journal of Environmental Law, vol. 9, no. 1, pp. 87-103.
Sheehan, JB 2010, 'Australia' in Alterman, R (ed), Takings International: A comparative perspective on land use regulations and compensation rights, American Bar Association, United States, pp. 107-118.
Everywhere in the world, land use law and regulation affect real property values--either increasing or decreasing them. Regulatory takings is the potential raw nerve of land use regulation, yet policymakers and civic groups have tackled the issue without the perspective that a cross-national exchange of ideologies, laws, and practices can provide. Takings International is the first large-scale effort devoted to this controversial issue, providing a vast platform of comparative knowledge on direct, indirect, categorical, and partial takings. Written for legal professionals, academics, urban and regional planners, real estate developers, and civil-society groups, the book analyzes thirteen advanced economy countries representing a variety of legal regimes, institutional structures, cultures, geographic sizes, and population densities. The comparative prism yields some surprising and counterintuitive observations. In a climate of intensifying controversies about property and the role of public agencies, the book enables informed debate and provides all sides with a sense of scale by which to evaluate current state practices and propose alternatives.
Boydell, S & Sheehan, JB 2012, 'Legal Precedents and Evolution of Rights, Trading and Frameworks - Water and Carbon', CHOVA 2012: Commonwealth Heads of Valuation Agencies Conference, L'Aqua Conference Centre, Cockle Bay Wharf, Sussex Street, Sydney.
Invited speaker at international gathering of Commonwealth Heads of Valuation Agencies. Legal Precedents and Evolution of Rights, Trading and Frameworks - Water and Carbon In this two part presentation, we start by introducing the Murray-Darling Basin, a river catchment covering an area of 1.06 million km2, which equates to 14 per cent of land area in Australia. The Basin spans four states (Queensland, New South Wales, Victoria and South Australia) and one territory (Australian Capital Territory). Whilst utilisation of the Basinâs resources has benefited Australiaâs development, this vast river system has been the basis of ongoing tensions between competing socio-cultural, economic and ecological dimensions. We navigate the complexity and dimensions of water allocations, water trading, custom and native title, tenure, politics, power and legal pluralism in a search to provide equitable, transparent, transportable and workable property rights institutions for the Murray-Darling Basin. In a time of climate change, cities are challenged by the twin demands of reduced carbon emissions and the provision of a potable water supply. Meanwhile our governance and legal frameworks are inadequately prepared for the emergent trade in carbon property rights and water property rights. In the second part of our presentation we explore the inappropriate reliance on legal precedent to explain emergent rights (which sees them wrongly described in a climate changed world) and the evolution of a coherent model of the constellation of carbon property relations and interests.
Sheehan, JB 2010, 'Indigenous Carbon Property Rights', 16th Annual Pacific Rim Real Estate Society (PRRES) Conference: Proceedings, PRRES, Wellington, New Zealand, pp. 1-6.
Sheehan, JB, Hepburn, S & Leshinsky, R 2011, 'In the shadow of native title: Compensation for indigenous cultural heritage', PLPR Dortmund Conference: Book of abstracts, Fourth International Conference on Planning and Property Rights, International Academic Association on Planning, Law and Property Rights (PLPR), Dortmund, pp. 31-31.
Boydell, S, Sheehan, JB, Prior, JH & Hendy, S 2009, 'Beyond the bundle: expanding our understanding of contemporary property rights', Pacific Rim Real Estate Society 15th Annual Conference, Pacific Rim Real Estate Conference, PRRES, Sydney, Australia, pp. 1-19.
Boydell, S, Sheehan, JB, Prior, JH & Hendy, S 2009, 'Carbon property rights, cities and climate change', Fifth Urban Research Symposium: Papers and Presentations Website, Urban Research Symposium, Urban Research Symposium, World Bank, Marseille, France, pp. 1-16.
In a time of climate change, cities are challenged by the twin demands of reduced carbon emissions and the provision of a potable water supply. Meanwhile our governance and legal frameworks are inadequately prepared for the emergent trade in carbon property rights and water property rights. Such instances are compounded when legal frameworks from developed economies are applied to developing nations, particularly those with a reliance on customary structures. The key contribution to the body of literature is our highlighting of inappropriate reliance on legal precedent to explain emergent rights (which sees them wrongly described in a climate changed world) and the evolution of a coherent model of the constellation of carbon property relations and interests.
Boydell, S, Sheehan, JB & Prior, JH 2008, 'Neoliberal Nature - the carbon property rights conundrum', Institute of Australian Geographers Conference 2008 Abstracts, Institute of Australian Geographers Conference 2008, Institute of Australian Geographers / University of Tasmania, University of Tasmania, Hobart, pp. 1-187.
Sheehan, JB & Kanas, O 2008, 'Carbon Property Rights in Soil', PRRES Website Conference Papers, Pacific Rim Real Estate Conference, PRRES, Kuala Lumpar, Malaysia, pp. 1-20.
The commodification of soil to permit carbon sequestration and hence trading in the resultant carbon rights is examined as an emerging facet of climate change management. As the developed world moves towards carbon offsets and decarbonisation, the Australian continent provides a capacity to be a land based repository of carbon in either select species of vegetation grown specifically for this purpose, or where soil is conserved to sequestrate carbon. A presumption exists that carbon is sequestrated differentially in various soil landscapes, which typically comprise a mixture of different soil types. Diffuse boundaries between soil landscapes and significant differences assigned to same soil landscapes, albeit in different areas, significantly impacts sequestration of carbon.
The fiction of terra nullius1 is addressed in Mabo & Ors v The State of Queensland (No 2)(Mabo) (1992) 175 CLR 1, however the increasing commodification of water has raised the issue of whether a new form of indigenous dispossession is now subtly occurring. When the Crown abrogates its beneficial title in favour of private parties through Crown grants, it is now a legal maxim that any underlying Indigenous property rights are extinguished or at least diminished to the extent of the grant. Since 2000, the granting of exclusive rights of access to water in the various States water legislation, has arguably also extinguished or at least diminished surviving Indigenous water property rights. Scant research into this impact suggests that the uncrystallised quantum of compensation that may be attributable as a result of the granting of such private access rights has been deftly underestimated by policy makers.
Sheehan, JB & Small, GR 2005, 'Selling Your Family: Why Customary Title Is Incomparable To Western Conceptions Of Property Value', Proceedings from the PPRES Conference - 2005, Pacific Rim Real Estate Conference, Pacific Rim Real Estate Society (PPRES), Melbourne University, Australia, pp. 1-13.
The notion of property is fundamentally different between modern culture and customary people. In practice modernity posits property as a set of material rights that are notionally comparable to other material values. Customary people perceive property only partially in these terms and place greater emphasis on origins and obligations of property within an understanding of community that is alien to modern culture. If property is recognised to both consist of material and non-material values, then it cannot be adequately valued in commercial terms alone. The Australian experience in assessing compensation for the extinguishment of customary title has less than satisfactory with few resolutions and many of those negotiated in secret. Conclusions from this experience provide insights into the nature of the dilemma of rendering customary interests in land into modern commercial terms. The recognition of the metaphysical foundation of the respective systems of property goes some distance towards understanding the difficulties involved in the valuation of customary interests. The solution probably lies outside the attempt to transfer ownership when the more defensible need is use.
Boydell, S, Holzknecht, HA, Paterson, DE, Small, GR & Sheehan, JB accessUTS 2007, Review of Customary Property Rights and Formal and Informal Institutions for Economic Development and Conflict Minimisation, pp. 1-151, Sydney.
Prepared by accessUTS Consultants: Professor Spike Boydell, Dr Hartmut Holzknecht, Emeritus Professor Don Paterson, Dr Garrick Small and Commissioner John Sheehan With regional contributions from: Stanley Waleanisia (Solomon Islands), Ratu Timoci Vesikula (Fiji), John Satekala (Solomon Islands), Genesis Kofana (Solomon Islands), Antonie Eggink (New Zealand), Josefa Dulakiverata (Fiji), Krishn Shah (Fiji), Leota Laki Sio (Samoa), Rebecca Wendt (Samoa), Patea Malo Setefano (Samoa), AHI Holdings Ltd (PNG), Lui Seru (Samoa), Dr Tanira Kingi (NZ), Radhika Murti (Fiji), Kaluwin Potuan (PNG), Chief Willie Tapisei (Vanuatu), Chief Jimmy Meameadola (Valuatu) and Wycliffe Antonio (PNG). This is one of ten reports commissioned by the Pacific Islands Forum Secretariat that comprise of a review of national, regional and international literature, and country case studies including the review of national policies and systems on key thematic areas: a.Subproject 1: Role of land in conflict escalation in recent conflict situations b.Subproject 2: A review of sources and causes of land related conflict c.Subproject 3: Current land management and conflict minimisation d.Subproject 4: Conflict management process accessUTS Consultants prepared two components, subproject 2.3 (Review of Customary Property Rights and Formal and Informal Institutions for Economic Development and Conflict Minimisation) and subproject 3.1 (Review of Financial Management of Customary and other Land in the Pacific), which were carried out in conjunction with each other. This paper is based on a review of the relevant literature and in-country discussions with regional practitioners and experts. The views expressed by the lead consultants and regional contributors are their own, and are not necessarily the views of any particular organization or the organizations that they represent.
Prepared by accessUTS Consultants: Professor Spike Boydell, Dr Garrick Small and Commissioner John Sheehan With regional contributions from: Dr Hartmut Holzknecht, Professor Don Paterson, Stanley Waleanisia (Solomon Islands), Ratu Timoci Vesikula (Fiji), John Satekala (Solomon Islands), Genesis Kofana (Solomon Islands), Antonie Eggink (New Zealand), Josefa Dulakiverata (Fiji), Krishn Shah (Fiji), Leota Laki Sio (Samoa), Rebecca Wendt (Samoa), Patea Malo Setefano (Samoa), AHI Holdings Ltd (PNG), Dr Tanira Kingi (NZ), Radhika Murti (Fiji), Kaluwin Potuan (PNG) and Wycliffe Antonio (PNG). This is one of ten reports commissioned by the Pacific Islands Forum Secretariat that comprise of a review of national, regional and international literature, and country case studies including the review of national policies and systems on key thematic areas: a.Subproject 1: Role of land in conflict escalation in recent conflict situations b.Subproject 2: A review of sources and causes of land related conflict c.Subproject 3: Current land management and conflict minimisation d.Subproject 4: Conflict management process accessUTS Consultants prepared two components, subproject 2.3 (Review of Customary Property Rights and Formal and Informal Institutions for Economic Development and Conflict Minimisation) and subproject 3.1 (Review of Financial Management of Customary and other Land in the Pacific), which were carried out in conjunction with each other. This paper is based on a review of the relevant literature and in-country discussions with regional practitioners and experts. The views expressed by the lead consultants and regional contributors are their own, and are not necessarily the views of any particular organisation or the organisations that they represent.