Summary - lecture - Tresspass to Airspace & Encroachment PDF

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Summary

Tresspass to Airspace & Encroachment...

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Trespass to Airspace Intro o

The issue here concerns trespass through airspace with the law governing the rights of the owners of land and the issues of interference using the property law principle of cujus est solem which states that property holders have rights not only to the plot of land itself, but also to the air above and the ground below.

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Older English cases generally came to a conclusion that a temporary intrusion into airspace did not constitute a trespass unless the object intruding into the airspace eventually came into contact with the land, however modern authority favours the proposition that objects crossing onto a neighbouring property without touching the surface constitute a trespass into the airspace regardless of whether that trespass is permanent or temporary.

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The issue of the height at which an intrusion into airspace constituted a trespass is discussed in Baron Bernstein of Leigh v Skyviews & General Ltd where is was held that an owner only had the rights to the air space above his land to such height as is necessary for the ‘ordinary use and enjoyment’ of the land and the structures upon it meaning that above that height, he has no greater rights in the air space than any other member of the public. The rights of an owner to enjoy the use of his land must therefore be balanced against the rights of the general public.

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Elements of Trespass to Land: Baron Bernstein of Leigh v Skyviews o o o o

Permanent or temporary intrusion? Height of the intrusion? Interference with the ‘ordinary use and enjoyment’ of the property? Any harm or damage to the neighbouring property?

Plane

o Since then there has been legislation excusing planes from trespass (Civil Aviation Act 1949 s 40(1)). o No trespass or nuisance for the ordinary flight above a property: Damage By Aircraft Act 1952 (NSW) s (2)(1).

o Anything that falls off the aircraft may be trespass where there is damage: Damage By Aircraft Act 1952 (NSW) Hot Air Balloon/Aircraf o

The hot air balloon joyflights passing over the owner’s property would therefore constitute a trespass to land as they interfere with the owner’s ‘ordinary use and enjoyment’ of the land despite being a relatively temporary trespass and never actually touching the surface of the land.

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This is due to the fact that they would be travelling at a low speed and at a relatively low height due to having only taken off on the neighbouring vacant property, which would mean that the owner is constantly impacted by the loud noise that they emit. The owner could therefore request an injunction to prevent the balloons from disturbing his possession.

Crane o o

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The intrusion into airspace by the jib of a crane was dealt with in both Woollerton and Wilson v Richard Costain and Graham v K D Morris and Sons In Woollerton and Wilson v Richard Costain the building contractors had installed temporary high crane on a site to assist with the building work, which from time to time extended about 50 feet over the plaintiff’s land. It was decided that there is no claim for trespass to airspace if the trespass causes no harm or damage to the plaintiff or their property and granted an injunction but postponed its operation until the completion of the building work. However in Graham v K D Morris and Sons where the facts were nearly identical to those in the Woolerton case, Stamp J. held that the absence of any damage caused by the trespass was no reason to not issue an injunction as there was a clear breach of the plaintiff’s proprietary rights due to the unlawful trespass. He refused to suspend the injunction for any length of time as the defendants should have seeked permission for the impending trespass prior to the commencement of the work.

Scaffolding o

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In terms of scaffolding encroaching onto the neighbouring property, this would constitute a trespass to airspace due to the interference with the ‘ordinary use and enjoyment’ of the neighbouring property. This was dealt with in LJP Investments v Howard Chia where a mandatory injunction was sought for the removal of scaffolding extending 1.5 metres into the airspace of the plaintiff. Hodgson J. granted an injunction as he disagreed with the rule in Bernstein of Leigh v Skyviews that a trespass only occurred if the encroachment was at a height which may interfere with the ordinary user of land, or structures upon it. He said that the relevant test for a trespass was whether it is at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake. The second case of LJP Investments v Howard Chia dealt with the issue of compensation for the damage suffered by the plaintiff. Before the injunction was granted in the first case, it became apparent that the building could be constructed without the need to trespass on LJP’s land. This was contrary to the evidence given in the first case. Exemplary damages were then awarded however it was made clear that developers cannot expect to commit an unlawful trespass and then paying the price demanded by an adjoining owner. The position was reinforced in Bendal Pty Ltd v Mirvac Project which involved the construction of a multi story building using screens to protect the work and prevent building material falling from the building. The screens as well as a crane encroached into the airspace of the plaintiff’s building. The defendants argued that they would face undue hardship if they had to stop work while a new method of construction was implemented however this was rejected.

Advertising Sign

In terms of an advertising sign encroaching onto a neighbouring property, due to the fact that this would interfere with the ‘ordinary use and enjoyment’ of the neighbour, it would constitute a permanent trespass despite never actually touching the ground of the neighbouring property. o McNair J. concluded in Kelsen v Imperial Tobacco Co that an advertising sign encroaching into the airspace a neighbouring property constituted a trespass based on the judgment in Gifford v Dent and a mandatory injunction could be issued for the removal of the sign.

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Dead Cat on Roof/Bullet The Tasmanian case of Davies v Bennison concerned a cat shot and killed by a neighbouring owner while the cat was sitting on the roof of an adjoining shed. o It was found that the shooting of the cat can be viewed as a trespass to goods – if the person in the case owns the cat but also to land as the boundary was crossed, despite the bullet being imbedded in the cat and not touching the ground. o Pickering v Rudd: This case held that a bullet flying over a parcel of land will not be trespass. This was also authority for the assumption that no “aerial” encroachment will be trespass. o

Underground Subway 

Property holders generally have a right to the space immediately below the ground but do not have rights to control far below their property in circumstances such as subway construction.

Power Lines 

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Easements for overhead power lines cannot prevent buildings being erected beneath the lines although commonly these easements provide for the consent of the supply authority to be required before buildings can be erected. Some restrictions are also placed on trees within power line easements. An easement for electricity purposes prevents an owner from exercising any rights over the area where the poles are standing. The area might not be large, but it does amount to an exclusive use of that small area. A wire swinging over neighbour’s land was trespass: Wandsworth District Board of Works v United Telephone Co Limited

Underground Mineral rights The same principle of cujus est solem applies when there is a trespass below ground as the rights of the owner of the surface extend downwards sufficiently to enable the owner to enjoy the surface and prevent it being undermined. o An exception to this is that early grants of land from the Crown reserved mineral rights and rights to mine for coal and other minerals. o In deciding whether a trespass below ground constituted a trespass, the depth at which the trespass occurs must be taken into consideration as to whether this impacted on the owners of the property. o The crown owns all that is “most excellent”, including Gold, Silver, Copper laced with gold: Woolley v Attorney General of Victoria; R v Wilson

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o Mining Act 1906 (NSW) defines minerals. Coal: This act states that the crown no longer reserves coal, by proclamation, in NSW. However, to mine it requires a license. o Petroleum: All petroleum belongs to the commonwealth right in states, regardless of reservation: Petroleum Act 1955 (NSW) o Commonwealth controls minerals on its land: Commonwealth v New South Wales.The commonwealth controls minerals used in atomic energy: Atomic Energy Act 1953 (Cth)  Commonwealth controls, for defense, “prescribed substances” (e.g. uranium) o

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It may also acquire land on just terms for mining

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Commonwealth has title for minerals vested in the Constitution s85

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State controls petroleum and helium, unless Commonwealth resumes the land

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Gold and silver are reserved by the crown

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Other minerals may be reserved, dependent on grant o

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If not reserved, minerals are owned by surface owner

Natural things are part of the land, though they may be excluded or granted separately: Eastern Construction Co Limited v National Trust Co Limited & Schmidt.

Enforcement Trespasses may be corrected with:  Self-help (e.g. eviction): Traian v Ware.

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Damages (both normal, and, in cases where the defendant should be punished, restitutionary damages): LJP Investments v Howard Chia Investments.

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Seeking an injunction: Woollerton & Wilson Limited v Richard Costain Limited; Bendal Pty Limited v Mirvac Pty Limited.

Remedies  Payment of compensation o

Land value if not on purpose or negligent

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3 times land value in any other case

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The removal of the encroachment

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The required purchase/lease of land that encroaches

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A grant of an easement: Re Marsh

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An easement for the life of the encroachment: Cantamessa v Sanderson

The court decides which remedy based on land value, the extent of the encroachment, the loss for both parties, etc.

Encroachment o

The general rule at common law is that any part of a building that encroaches onto neighbouring land becomes the property of the owner of the land allowing the owner to occupy the encroachment and prevent the owner of the remainder of the building from occupying it.

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If an owner of an encroaching building fails to remove the encroachment after a request to do so, then it is necessary to approach the court for a mandatory injunction to have the encroachment removed.

Building on someone else’s land: o In Ramsden v Dyson it was shown that if a stranger builds on someone else’s land in the mistaken belief that they own the land, and the true owner is aware of the mistake but does nothing to prevent construction, then equity will prevent the true owner from asserting title to the land. o

However if a stranger builds on someone else’s land knowing that they don’t have ownership of the land, then equity will not assist the stranger.

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Amatek Limited v Googoorewon contained an encroachment where a whole building was constructed on the wrong land. In this situation, the court may either order compensation or that the encroachment be removed.

Doing work on building as owner said they would get interest in it: o

There is also the issue of a stranger carrying out work in reliance upon a belief induced by the true owner that an interest in the land will be acquired.

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In this case, the Court may award an irrevocable licence, a long term lease, a licence to occupy the land for a period of time, possession until the amount expended has been repaid, or may order that the building be removed within a reasonable time.

Branches & Roots o Branches and roots growing onto your property may be removed if they encroached, subject to relevant legislation: Lemmon v Webb...