PRIVATE landowners attempting to claim public land as their own through encroachment could face increased scrutiny as a Mornington Peninsula Shire councillor calls for a crackdown on the behaviour.
Cr David Gill, at the time of publishing, was to move a motion at the council’s 8 April meeting in which he would implore the shire to investigate and report on illegal land encroachments on council-owned and managed property, warning that if “it’s tolerated it just gets worse and worse”. He said the shire had informed him last year that it had identified and inspected 34 structure encroachments on council-owned property, which were “currently being investigated with a view for enforcement action”. There were also 11 encroachments on council land that were identified as opportunities for disposal with a “formal process for disposal of the land,” having begun, Gill said.
In Victoria, a private landowner can claim ownership of land under adverse possession (sometimes known as squatters rights) if they have possessed for 15 years without the permission of the legal owner, provided they meet specific requirements. This includes whether they can prove they have had uninterrupted and exclusive possession such as fencing or building on it. However, adverse possession claims exclude council or Crown Land and land owned by water authorities or public transport corporations as per the Limitation of Actions Act.
Speaking to The News before the council meeting, Gill believed “there could be hundreds if not thousands of encroachments” across the shire that “might often seem to be small, but they can become big”, which he labelled a “real issue”.
Gill, who has been raising the issue for at least the past eight years, said the state government “does nothing to stop this from happening – in fact, their laws enhance it” under statutory and common law “where people feel entitled to take public land”. “I think the local government and state government are sitting on their hands. I think that they find it difficult, or they’re just not interested,” he said. “We should be protecting public property and the only way we should protect it is to ensure people don’t take it.”
In 2022, The News reported a case in which a 152 square metre section of unconstructed road between Kilburn Gr and Glenisla Dr in Mt Martha was acquired by a Kilburn Rd property owner under adverse possession laws, prompting concern that other residents could lose access to the lane should another property owner decide to do the same (Shire tries to fill gaps in land laws, The News 07/11/22). In another case reported in 2023, a Mt Martha Airbnb owner had allegedly encroached on 277 square metres of Crown Land, including a road reserve reportedly worth more than $500,000, leaving residents fuming.
According to a shire report, it said “there have been ongoing issues related to encroachment related to public land on the Mornington Peninsula,” and “as much as possible the public should be fully informed about any loss of public land”. “There are a number of legal avenues to acquire public land with very few checks and balances to protect the public from loss of their land including ‘backdating’ dates of intention,” it said.
Victoria Agahi, a special counsel who specialises in property and commercial law with Melbourne-based Aitken Partners, said while “councils will forever maintain the right” to claim their land, it wasn’t uncommon for private landowners to apply to councils “to have that land sold to them” such as a laneway. “It’s just the question of whether council wishes to enforce its rights over the land or how they wish to regulate the use of that land,” she told The News.
“It’s a little bit more tricky occasionally when you have issues where the council may have – pre 1997 when changes to adverse possession laws were made – told people, ‘Oh, don’t worry, you won’t need to do anything about it for years.’ So there’s kind of ethical and policy questions for council who then renege on that. “The only way that you can really give private individuals a right to use council land or to normalise its use if there’s been unauthorised use of it, is by council granting that individual a lease or license over council’s land.”
Agahi said another option was whether councils were looking at selling a portion of land to a private individual or corporation, but in these situations, she said “there’s generally a policy that it has to be offered to all immediate neighbours of that land because otherwise it tends to be considered unfair if you’ve just offered it to one person”.
Asked how land encroachment or structures being built illegally could be monitored, Agahi said subscriptions to periodic aerial photography would allow councils to identify any changes “and usually they act on that pretty fast”. However, Agahi said there was also a cost factor to consider and if it was “worth council spending thousands of dollars forcing someone to move a structure when council’s ownership and rights over that land may still be preserved”.
According to the Department of Energy, Environment and Climate Action (DEECA), when encroachments are reported on Crown Land, the delegated Crown Land manager such as a council “is the responsible authority and has provisions under the Planning and Environment Act to issue penalties”.
“Where there is no land manager, DEECA will contact the freehold landowner requesting the encroachments are removed,” it said. “In instances where requests are disregarded, the Office of Conservation Regulator is notified. Any encroachments involving council freehold is a matter for council and DEECA does not get involved.”
First published in the Mornington News – 8 April 2025
