a. Identify the specific act b. Damage need not be shown Dumont v Miller

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1 Trespass to Land 1. Positive and voluntary act a. Identify the specific act b. Damage need not be shown Dumont v Miller 2. Fault c. Intention relates to intention to do the act, not intention to trespass d. They must be present at the time and taken part, or has authorized or instigated others to commit the trespass e. May be intentional OR negligent (League against Cruel Sports v Scott) 3. Interference with P s exclusive possession of land f. What is land? i. As per Lord Blackstone; Land is not only the surface of the land, but fixtures, anything growing on the surface of the land, the ground beneath the land, and the airspace above the land. ii. Includes the airspace above your head to such heights as is necessary for ordinary use and enjoyment of your land and the structures on it. (Bernstein v Skyviews and General Ltd.) iii. Relevant test is not whether the incursion actually did interfere it is that it may interfere with the ordinary user of land (LJP v Howard Chia Investments) iv. NOTE: Courts tend to take a liberal view of what constitutes normal use. (e.g. crane 62 ft above P s house was found to be a trespass, as per Graham v KD Morris) v. Wrongs Act 1958 s30: No action shall lie in respect of trespass or nuisance by reason only of the flight of an aircraft over any property at a height above the ground which having regard to the wind, the weather, and all circumstances is reasonable, or the ordinary incidents of such flight, as long as the Air Navigation Regulations are duly complied with. D doesn t have to show negligence if something falls out of the sky. Strict liability. g. Does P have exclusive possession? (Standing to sue) i. In order to sue, the plaintiff must; (Newington v Windeyer) Be entitled to exclusive possession of the land AND Be in actual or constructive possession of the land ii. NOTE: A mere license to be on land will not give someone the right to sue in trespass, because a mere license to be on land does not confer on a person the right to exclusive possession of that land. (Vaughan v Shire of Benalla) h. What actions will constitute an interference? i. An act will be considered a trespass if the act involves the slightest physical crossing of the boundary of the land in question (Lavender v Betts)

2 If they do not cross the boundary, it is not trespass Perrera v Vander ii. Any intrusion above land is a breach of the duty not to interfere with the owner s use of his land, and is in principle a trespass. It doesn t matter how transient it is (Davies v Bennison) iii. There will be no trespass if there is no physical crossing (Perera v Vandiyar) iv. A continuing trespass will arise in circumstance where having committed the initial trespass, the person or object giving rise to the trespass continues to remain on the land. (Konskier v B Goodman Ltd.) v. Directly placing or leaving an object on land or causing it to make contact with land even though D doesn t touch land is trespass Eg. Pushing earth onto land with a bulldozer Watson v Cowen 4. Directness i. Directness will be made out where the interference follows so immediately upon the act of the defendant that it may be termed part of that act. (Hutchins v Maughan) j. Not direct if the invasion is merely consequential upon the act of the defendant k. Directness will not be made out where there is an intervening factor. (Southport Corporation v Esso) 5. Defences 1. The same defences apply to trespass to land as those that apply to trespass to person a. Consent i. Express? ii. Implied? Can be implied by law, or by conduct/circumstances Generally there is an implied license for members of the public to walk up a driveway for a purpose as long as it does not interfere with the owner s possession of the land. (Halliday v Nevill) a. Scope of implied consent? i. Territorial limitation? ii. Purpose limitation? o An implied license only allows someone to enter for the purpose of making themselves known only for some genuine and legitimate purpose, not to wander about at will. (Lincoln Hunt v Willesse)

3 However, an implied license will not exist where the plaintiff has clearly indicated in advance that permission is refused. (Rinsale v ABC) In ABC v Lenah Games Meat Pty Ltd: a. Gummow and Hane; you cannot obtain an injunction against someone unless you have a good cause of action against them. If they did not commit the torts to land, you have no cause of action against them and therefore cannot obtain an injunction. b. Kirby; where information has been obtained through the commission of a tort, the victim of the tort should be able to gain an injunction to stop the release of that information, even against parties that did not commit the tort. Otherwise the law would be encouraging the publishing of information obtained through tortuous means. iii. Revocation of consent A license to enter upon land may be revoked by the owner at any time. To be effective; (Cowell v Rosehill Racecourse co.) a. The revocation must be brought to the defendant s attention b. The defendant must be allowed a reasonable amount of time to leave the plaintiff s land. Exception: a. Cannot revoked when D has a propriety interest that is granted by a licence. Reasonable force can be used to eject trespasser Cowell v Rosehill Racecourse co b. Self-defence c. Necessity i. Must be imminent danger and actions was to preserve life Suffolk d. Lawful Authority i. D must comply exactly with any legislation e. Inevitable Accident f. Self-help (Abate of a nuisance) i. Where a trespass to land occurs in order to abate a nuisance, abatement may act as a defence. ii. The onus is on the person self-helping to justify any trespass undertaken whilst abating the nuisance. iii. Should be exercised with enormous caution as the plaintiff cannot then go to court and institute proceedings for damages

4 6. Remedies 1. Self-help? a. Revocation of consent (Cowell v Rosehill Racecourse co.) b. Action of ejectment The owner of land may use reasonable force to eject trespassers, even though they only have a right to immediate possession (whereas ordinarily a plaintiff must have exclusive and actual/constructive possession to be able to sue) 2. Damages a. Generally full restitution for any loss incurred b. Depreciation of selling value will be an adequate measure c. Cost of restoration will not be awarded with unreasonable but perhaps if it is unique d. Consequential damages may also be awarded e. Exemplary and aggravated are also available 3. Injunction a. When damages would be insufficient b. An injunction will not be available against a non-trespasser even if they benefit. (ABC v Lenah Game Meats.) c. 3 pre-conditions to have an injunction granted to prohibit publication of material Linkin Hunt Australia v Willisee There has to be circumstances that make the publication unconscionable Irreparable harm will be caused if there isn t an injunction Balance of convenience (public interest vs plaintiff s interest)

5 Nuisance Definition: Private nuisance is an unreasonable interference with the plaintiff s use and enjoyment of land. Elements of Private Nuisance 1. Interference a. Can take two forms i. Physical Damage St. Helen s Smelting, Halsey v Esso ii. Interference with the comfort or sensibilities of the occupants of the land iii. What is NOT protected by private nuisance? Right to privacy: however there have been cases since Victoria Park Racing which would suggest that the right to privacy is protected TV reception caused by the mere presence of another building (Hunter v Canary Wharf) 2. Is the interference unreasonable? a. If the interference takes the form of physical damage... i. As long as physical damage is not trivial, then the interference with the P s use and enjoyment will be unreasonable. (As per St Helens Smelting Co. V Tipping, Halsey v Esso) b. If the interference takes the form of sensibilities/amenities... i. Consider the following factors and then apply test from Walter v Selfe Locality a. The less appropriate the act is in that locality, the more likely the nuisance will be deemed unreasonable. (Sturges v Brigman, Pittar v Alvarez) Intensity a. The more intense the interference, the more likely the nuisance will be deemed unreasonable. (Feiner v Domachuk, Polsue Alfieri v Rushmer) Time/Duration/Frequency a. The more peculiar the time/greater the duration/greater the frequency, the more likely the nuisance will be deemed unreasonable. (Seidler v Luna Park) Practicality of avoiding interference a. The more practical it is for the defendant to avoid the interference, the more likely the interference will be deemed to be unreasonable. (Clarey v Principal & Council of Women s College)

6 b. The court will also take into account whether it is practical for the plaintiff to avoid the interference. Malice a. If the interference is attend by malice, it will be more likely to be deemed unreasonable. (Hollywood Silver Fox Farm) Social Utility a. An interference will be deemed less unreasonable where it benefits society as a whole. i. However, this argument is not particularly persuasive for several reasons. o The mere fact that the creator of the nuisance benefits the public does not mean that one individual should bear the burden of the nuisance. o It is inappropriate for only a few to wear the costs for the community. (Munro v Southern Dairies) Hypersensitivity a. An abnormally sensitive plaintiff is not entitled to relief simply because he is especially sensitive. (This same principle applies where the plaintiff undertakes a hypersensitive activity on his land. (Robinson v Kilvert) b. HOWEVER, an exception exists where the nuisance is attended by malice if this is the case, unreasonableness will be made out (Hollywood Silver Fox Farm) ii. TEST (from Walter v Selfe): Unreasonableness will be determined according to plain...sober...simple notions, not fanciful, delicate, fastidious or dainty. 3. The defendant s act a. A person can be sued in nuisance if they bear some degree of personal responsibility. That responsibility may arise from D being: i. Creator of the nuisance May emanate from someone else s land (Fennel v Robson Excavations) Need not emanate from a private property ii. Adopter or continuer of the nuisance Where the defendant KNEW or OUGHT TO KNOW of the nuisance AND Failed to take reasonable steps to bring the nuisance to an end. (Sedleigh Denfield v O Callaghan, Hargrave v Goldman)

7 iii. NOTE: If D authorised the nuisance but did not creat it, they will still be liable (Fennel v Robson Excavations) 4. P s standing to sue a. Right to exclusive possession i. Owner ii. Lessee Note: Right to exclusive possession flows from fact of actual possession b. Licensees (Hunter v Canary Wharf Ltd, Oldham v Lawson) i. A mere licensee cannot sue in nuisance the interference must affect the plaintiff s use/enjoyment of the land, and the plaintiff must have possession of the land. Residing with the freeholder or tenant will not be sufficient to bring an action in nuisance, even where the injury complained of is suffered by all household members. (Hunter v Canary Wharf, Oldham v Lawson) c. Reversionary interest i. Where interference/nuisance is harming the owner s reversionary interest, the owner will have standing to sue. (i.e. where there is damage to the land as a result of the nuisance, the owner may sue) d. Unlawful occupiers i. Unlawful occupiers will have the right to sue in nuisance if they have exclusive possession (Newington v Windeyer) Defences 1. Coming to the nuisance (not an actual defence) a. Coming to the nuisance is not a defence in itself, but may impact upon the remedy that the plaintiff receives. (Miller v Jackson) b. NOTE: When nuisance is available, more accessible remedies are often available through the local council 2. Statutory Authorisation a. Applies where; i. Legislation has imposed a duty on the D to do a particular act ii. Nuisance is an inevitable consequence of doing the act AND the act was not performed negligently. Where the act was performed negligently, statutory authorisation will not be a defence. (Geddis v Proprietors of Bann Reservoir) Onus on the D to establish the absence of negligence b. If parliament gives a body permissive authority to perform an act, the body will be liable for nuisances that arise as a result of that action. (This is because permission to do something is not a duty to do something) (Lester-Travers v City of Frankston)

8 Remedies 1. Self-help (Abatement of the nuisance) a. NOTE: Self-help may act as a defence to trespass to land 2. Damages a. Interference must be a reasonably foreseeable consequence of the defendant s act (Cambridge Water v Eastern Counties Leather) b. NOTE: damages is the most common remedy for nuisance 3. Injunction a. Quia Timet ( because he fears ) i. A quia timet injunction will be awarded to prevent an interference before it occurs ii. Onus on the plaintiff to show that it the interference is imminent/probable. b. Interlocutory i. When an injunction is first granted it will be an interlocutory injunction. At the end of proceedings, this will either be ended or a permanent injunction will be granted. c. NOTE: The award of an injunction is discretionary (Miller v Jackson, Kennaway v Thompson) d. NOTE: An injunction will not be awarded to a plaintiff that came to the nuisance