Trespass to Land - Lecture notes 2 PDF

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Notes on trespass to land...

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Torts Law Trespass to land Trespass to land is a direct interference with land in the exclusive possession of another, either intentionally or negligently, without lawful justification or the occupier's consent. If it is a direct interference (E.G. loud music/bad smells) then it is an action on the case, not an action in trespass, and is referred to as a nuisance E.G. Entry onto land, including a building, without consent  Causing an object to come into contact with land Elements of trespass to land: 1. Title to sue a. Exclusive possession of the land (Newington v Windeyer) i. Not based on ownership (Newington v Windeyer 1985 3 NSWLR 555, 563-4) where tenants made use of a grove near their house, and even though they were not the registered owner of the land, the court found that they had exclusive possession and hence had grounds to sue for trespass to land ii. Possession of the plaintiff need not be lawful iii. Tenant has actual exclusive possession (can sue landlord) iv. Licensee does not have title to sue (share house member who isn't on the lease) 2. Direct and unauthorised interference with land (Halliday v Nevill) a. If it is an immediate result of the defendants act b. This includes causing an object to come into physical contact with the land c. If you give express consent for a particular purpose, and they do not fulfil that purpose or do not leave after that purpose is done, then the entry is unauthorised can be trespass) d. Implied license equals consent until it is revoked (*Halliday v Nevill) so you can go onto their land as a member of the public if there is an open/unlocked gate. That being said they have to be accessing the property for a legitimate purpose (*TCN Channel Nine Pty Ltd v Anning) where channel nine went through an unlocked gate but it was found that they did not intend to ask for permission and it was not for a usual public access purpose i. Implied licenses can be revoked by a sign/notice, a locked gate, or prior communication informing the defendant that they are not authorised to access your property b. Revocation of consenti. Revocation must be communicated and understood (Wilson v NSW 2010 278 ALR 74, [51]) b. Authorisation by law i. Statutory authority to enter the premises for various reasons is accepted, such as Energex workers who need to access the property to do their job 3. Fault of the defendant (public transport commission v Perry) a. Intentional, or careless/wreck less b. Motive or mistake is irrelevant There is no grounds for trespass to land if the defendant leaves in a reasonable time after being asked to leave. Trespass by Relation Arises where a plaintiff has a right to immediate possession but only enters land after the right has accrued (like 2 weeks later or whenever they move in) o May bring an action in trespass for interferences between the time of when the right of possession was established, and actually taking possession

Limitations to ownership Rights to subsoil are limited by minerals and things that benefit the public and can be transferred or owned by the crown  Airspace is owned to such a height as necessary for the reasonable use and enjoyment of the land (Bernstein v Skyviews & general Ltd [1978] 1 QB 479, 488) Continuing Trespass  If the defendant remains upon, leaves something upon, land o There are separate trespass actions each day o There is a new time limitation period which commences each day (Konskier v B Goodman Ltd)  Trespass ab initio o Defendant enters land with lawful authority o Commits a wrongful act out of their authority o This makes the trespass unauthorised from the original time of entry Defences to Trespass  Consent o Expressed or implied o Can be from the terms of a contract (Balmain New Ferry v Robertson) o Participation in sport (*McNamara v Duncan 1971 26 ALR 584) o Implied license to enter property for legitimate purposes (see above elements)  Self-Defence o From Criminal Code s 271 o Defendant's interference is justified by the need to avert a threat of harm to them o Defendant must prove that there is a threat of imminent harm and that the force used was reasonable and proportionate to the threat circumstances.  Defence of Another o From Criminal Code s 273 o Defendants interference is justified if they use reasonable force to defend another o Must prove that there was reasonable grounds to believe assault about to take place, and that reasonable force was used  Provocation o Not a defence under common law, just reduces the amount of exemplorary damages. However in QLD the criminal law is used, from Criminal Code s 269, meaning that it can be a full defence o Must prove that there is provocation from plaintiff (White v Connolly 1927 St R Qd 75) o Must prove that it is heat of the moment o Must prove that force used not disproportionate to the provocation (Fontin v Katapodis) o Must prove that force used was not intended to or likely to cause death or grievous bodily harm  Necessity o Immunity from liability for a defendant who intentionally interferes with another's person property or goods (Proudman v Allen 1954 SASR 336) o Defendant must prove that there is an imminent threat of grave harm o Must prove that there is a reasonable apparent necessity for doing the action o The imminent harm must not have been the fault of the defendant  Limitation of Actions

Remedies Trespass is actionable per se, so you don’t need to have suffered in damages in order to bring an action in trespass

Injunction A type of remedy  Court orders o Prohibitory- orders a defendant to stop doing something o Mandatory- orders a defendant to do something o Interlocutory- Ordered to maintain the status quo before a full trial  Discretionary- Are damages an inadequate remedy? Advising on Trespass Remedies  Note that it is actionable per se  Is there a loss? o No - nominal damages o Yes - compensatory damages o Possibility of aggravated or exemplary damages o Possibility of an injuction Time limits-...