TRESPASS TO LAND

According to Street (author), what is the definition of ‘trespass to land’ AND therefore, what are the 3 elements?

Intentionally OR negligently entering, remaining on, OR directly causing physical matter to come into contact with land in another’s possession.

1. Land in possession of the P

2. Direct interference (entering, remaining on, causing physical matter to contact)

3. Intentional OR negligent as to the act constituting the trespass (NOT to trespass)

What does Entick v Carrington AND BEMA v Body Corporate establish about the actionability of ‘trespass to land’?

No matter how minute (Entick), trespass is actionable per se (no need to prove actual damages) (BEMA).

E1: What are the 2 elements P must show to prove possession of land?

1. INTENTION TO POSSESS THE LAND

2. EXERCISE OF CONTROL OVER IT TO THE EXCLUSION OF OTHERS

E1: According to Shattock v Devlin, Cousins v Wilson, Seddon v Ryan Carriers AND Wu/BEMA v Body Corporate, which 4 types of people can prove possession of land?

1. Occupier in possession, even if not legal owner (Shattock: farm)

2. Vendor in possession, NOT purchasers with mere equitable right (Cousins: mature trees)

3. De facto possession arising from long-term occupation & physical control of land, even if not legal owner (Seddon: maintaining garden for generations)

4. Co-owner who’s excluded from possession by other owner (Body Corporate cases: changing electronic lock & refusing to issue access card)

E2: What must P show to prove the requisite nature of interference?

That D directly caused the interference (indirect interference = nuisance NOT trespass). 

E2; What are 5 general examples of requisite interference?

1. Person entering land

2. Firing bullets

3. Placing ladder

4. Removing doors

5. Encouraging/negligent in letting dog enter

E2: According to Southport v Esso, Matheson v Northcote College, Leakey v National Trust AND French v Auckland, what are 4 examples of INDIRECT interference (therefore NOT trespass)?

1. Southport: Oil leaked onto P’s land by tide.

2. Northcote College: Individual trespassing students grouped together

3. Leakey: Lumps breaking off D’s dirt mount due to natural weather

4. French: D’s omission to prevent weeds from spreading by wind & birds 

E3: According to Kristin School Trust, is ‘honest mistake’ a defence?

NO—Where D is given permission to enter land by someone that has no authority to do so, OR where D genuinely thinks that have a right to do so, D will still be liable for trespass.

According to Waugh v AG, Bernstein v Skyviews & Civil Aviation Act 2023, how does ‘trespass to land’ apply to land/subsoil & airspace?

1. Unless there’s evidence to the contrary, the owner of anything attached to the soil & capable of being separately possessed is presumed to also be the owner of that which is underground. SO, caving or driving foundations into the soil counts as trespass (Waugh).

2. The portion of airspace required for the ordinary use of the land & structures upon it may be the subject matter of trespass (Skyviews: Commercial plane height insufficient; Civil Aviation Act 2023: Aircraft on reasonable path creating noise/vibration insufficient). 

What are the 5 common forms of trespass? Give a case for each.

1. Entering without authority (Ellis v Loftus: Slightest crossing of boundary)

2. Causing a thing/person to enter (League v Scott: Deliberately/negligently letting dogs into P’s animal sanctuary)

3. Allowing something to remain after right ceases (Konskier v Goodman: Allowing rubbish to remain on P’s land beyond reasonable time after work completed)

4. Substantially interfering with a profit à prendre (Nicholls v Ely Beet Sugar Factory: Minor impact on P’s fishery by the time D’s factory liquids reached it).

5. Excluding the owner (Body Corporate cases)

What are the 7 defences against a ‘trespass to land’ action?

1. Claim of right

2. Licence

3. Entry to retake goods

4. Distress for rent (abolished)

5. Execution of process

6. Statutory authority

7. Others

D1: According to Knight v National Mortgage, what is a “claim of right”?

Where D argues he had a right to possession of the land OR that he was acting under the authority of someone who did, BUT he cannot argue a 3rd party had a better title to the land than P.

D2: According to Robson v Hallet, what is the “licence” defence AND how can it expire / be terminated?

Where D argues he has an express OR implied right to enter/remain on land pursuant to a licence for a specified purpose (D mustn’t exceed the terms of the licence). A license can expire OR be terminated by the licensor giving reasonable time for D to leave.

D2: According to Inner City Properties v Mercury Energy, where may an equitable licence arise?

In circumstances where P is forced to accept someone can touch their property.

D2: According to DPP v Jones AND Police v Beggs, how may the public have an implied license to use of public land?

The public have an implied license to use public land for peaceful assembly & commonplace activities SO LONG AS it doesn’t interfere with ordinary use of the place (DPP) AND up until all licensees are notified that a person with the requisite power has revoked the licence (Beggs).

D2: According to Sky City v Wu, how can casino operators exclude someone from the premises?

UNLESS a statute overrides it, casino operators must articulate a good reason for excluding someone from the premises, as the CL recognises casinos hold a monopoly.

D3: According to Police v Krupinsky, what limit applies to ‘entry to retake goods’?

No more force than is reasonably necessary can be used to remove goods that have been taken unlawfully.

D4: According to s 265 of the PLA, can landlords enter rental property & remove furniture if rent isn’t paid?

NO.

D5: Under S 44 of the Policing Act AND Baigent’s Case, when is “execution of process” a defence?
A: Police have limited immunity (s 44 Policing Act, Baigent’s Case).

Officials (police, prison managers, court officers) have immunity for entering land to execute court processes that later turn out invalid ONLY WHERE they act within the scope of their authority AND in good faith.

D6: According to Coco v The Queen, what is required for ‘statutory authority’ to engage in conduct that would otherwise constitute trespass to land?

Must be expressed in unmistakable language.

D7: What are the 3 ‘other’ defences? Give a case for each

1. CONSENT = Express OR implied arising from conduct OR agreement, but can be revoked (Lakes Edge v Kawarau Village).

2. NECESSITY = D’s entry was necessary & proportionate to prevent serious harm OR protect life/property, BUT not out of moral necessity (AG v Leason).

3. ILLEGALITY = D’s entry was justified to prevent/respond to P’s illegal act (Brown v Dunsmuir).

What are the 4 remedies for ‘trespass to land’?

1. CRIMINAL

2. EXPULSION

3. DAMAGES

4. INJUNCTION

R1: What statute AND case governs criminal trespass?

Trespass Act 1980, SS 3–4: Refusing to leave after a warning to leave OR to stay off.

Issuing a warning must be reasonable & proportionate given the circumstances AND balanced against D’s rights & freedoms (Peters v Speaker of the House).

R2: Under Hemmings v Stoke Pages Golf Club, what is the civil ‘expulsion’ remedy?

A person in possession of the land may remove a trespasser with no more force than necessary.

R3: What are the 3 types of damages are available AND what is the limit? Give a case for each.

1. NOMINAL = Where there’s no danger OR loss (Evans v Gardner)

2. AGGRAVATED = Where P suffers concern & distress (Ramsay v Cooke)

3. EXEMPLARY = Where D’s conduct is an outrageous disregard of P’s rights (Mayfair v Pairs).

D may escape liability if the resulting damage is unforeseeable OR indirect (intervening event occurred) (Mayfair v Pairs). 

R4: According to Patel v WH Smith AND Shelfer v City of London Electric Lightning, when will injunctions be granted OR replaced by damages?

Injunction will be granted where necessary to remove the trespasser OR prevent continuation/repetition, regardless of whether P suffered harm (Patel).

Damages may be given instead of an injunction ONLY IF the injury to P’s rights is small AND capable of being estimated & compensated by money, OR it’d be oppressive to grant an injunction.