The Governor-in Chief of New South Wales made a land grant in 1823 to William Hutchinson and his heirs.
This grant was made with the condition that the Governor could re-acquire the land if he thought it would benefit the public.
Cooper, the successor in title to the original grantee, argued that this condition was invalid as it did not align with the law against perpetuities. This law effectively stopped anyone who gave up their property rights from controlling the next legal owner’s use of that land.
The defendant argued that the law against perpetuities did not apply in New South Wales.
Details of judgment
The court held that New South Wales was a settled colony and thus the law of England applied.
However, the court also held that this was limited to those laws that were applicable to an infant colony. Here, the new colony was tasked with granting land, however had no way to tell which spaces would need to be used for the public’s benefit in the future. Therefore, the law against perpetuities was not applicable in 1823. Thus, the doctrine of tenures was applied, and the Crown was held to be the absolute owner of all land.
The ongoing application of the doctrine of tenures resulted in Indigenous land rights claims being consistently rejected from the moment of British settlement until the claim was modified in Mabo and Others v Queensland (No. 2)  HCA 23, (1992) 1775 CLR 1, which changed the doctrine so that tenure could co-exist with native title claims.