LAWS1113 Lecture 4

Trespass to Land

General Notes

  • Land has been protected strongly by torts/writs since ancient England
  • No Australian law exists regarding right to privacy – have to use torts like trespass to land/nuisance to achieve it.

Trespass to Land

  • Trespass to land protects interests in possession of land
  • Use and enjoyment of land are covered in nuisance, a separate tort
  • “Direct Intentional Action that interferes with another’s possession of land. Actionable per se”

Lawful Possession

  • To bring an action under nuisance, you must be able to establish a propriety right, and that you are in actual use/possession of the land (eg. Exerting the right in some way)
  • Owner/resident obviously has both, but so does a farmer regarding a fallow field he hasn’t entered in years but owns, has used, and intends to use again
  • Must be lawful and binding. Orgal tenancies not binding (as per statute)
  • Tenants with a valid lease to property have this. Licensee’s do not, but a contractual licensee will within the limits of the contract (eg. If a friend lets you use his property, you do not – if you pay him for the use of it, you do)
  • Co-owners – can both have exclusive proprietary right. If one grants you permission to use the land, you cannot be charged under trespass to land
  • NB: Exerting possession of land does not actually require you to be present, just that you are actually using it in some way. Can sue under trespass to land that occurred while you were absent.

Positive, Direct, Intentional Act

  • Unintentional (eg. A seizure) automatism is not intentional
  • Immobility when asked to leave *is* intentional if you are capable of complying – its an omission to act when a duty to act is present.
  • Must have a direct effect on the land (eg. Throwing a rock on someones land)

Interference must relate to land

  • The land, structures on it, the earth under it, the air above it (to a reasonable height), wildlife growing on it, etc.
  • Intrusion to airspace not permitted up to the height required for “proper use and enjoyment of land” – obviously exact height comes down to reasonableness
  • Property Law Act – Court can force permission giving lawful authority for a trespass to take place, if the trespass is “reasonably necessary for the effective use of neighbouring land”. Onus is on the developer applicant to prove this, and to show that the owner unreasonably refused their compensation offers. Owner will still be adequately compensated if this is enforced

There must be fault – intentional/reckless/negligent

  • As per battery – deliberately and/or reckless = intentional
  • Negligent – “have reasonable grounds to believe”

Relevant Cases

Kelsen v Imperial Tobacco – any intrusion, however minor, is trespass once permission is revoked – advertising board intruding 8 inches onto Kelsen’s land that he initially granted permission to have set up and later requested removed was held to be trespassing.

Graham v Morris & Sons – even irregular/intermittent/transient trespass is still trespass. A crane jib that would swing 50 feet over Graham’s property when the wind was blowing in the right direction was held to be trespass, and an injunction was granted as to simply award damages would be to grant the right for the continued trespass

Bernstein v Skyviews – an aircraft flying over the property at a great height is not trespassing. The use and enjoyment of land are not impacted by high flying aircraft.

Lang Parade Pty Ltd v Peluso – Only nominal/minor damages will be awarded where the trespass doesn’t actually affect the resident. The amount saved as a result of the trespass is not relevant. Peluso attempted to commercially exploit the fact that Lang Parade Pty Ltd was trespassing after an extended delay – was ultimately awarded minor ($20k) compensation even though it would have cost $215k to avoid trespassing.

Delaney v Smith – Must be in lawful exclusive possession of land – as the oral contract wasn’t lawful, no case in trespass to land could be bought against the owner.

Newington v Windeyer – Don’t have to be the owner if you’ve been in possession of the land for long enough – 50 years spent using the land (paying rates, cutting down trees, etc.) granted them sufficient proprietary interest to bring a case in trespass to land.
Esso Petroleum Co Ltd v Southport Corporation – Must be direct. Oil carried by the tide is consequential, and a case could not be upheld in trespass to land.

Public Transport Commission of New South Wales v Perry – Must be an intentional act. Automatism (eg. A seizure) does not constitute trespass to land

League Against Cruel Sports v Scott – If an owner is reckless with regard to the conduct of his animals, he can be found liable in trespass to land. Hounds persistently trespassing into territory owned and used as an animal shelter by the League Against Cruel Sports were found to be due to the reckless disregard of the Master of the Hunt.