Trespass to land

1. Vagueness

Bernstein v Skyviews, s43 Infrastructure Act 205, star energy v bocardo

• Lack of clarity over what counts as land. There has been increased certainty since the 2015 Act but airspace is yet to be properly protected. Also impacts of underground works are potentially not fully appreciated

2. Appropriateness

Bernstein v Skyviews general, Southcorp cooperation v esso petroleum

• Given that there is no need for D to cause C any damage or loss, is it necessary for claims to be brought if no harm if being done. Waste of time and money. Understandable when damage occurs

3. Impact of defences

PACE 1984, Damages Act 1996, Rigby v CC of North Hampshire

• Defences help to alleviate the harshness of some of the elements (e.g. not needing to know when you are trespassing). Prevents people being help liable when they are blameless

4. Unfair

Conway v George Wimpey and Co

• The lack of defence of mistake seems unfair for D’s who are unaware they are trespassing and then who come to harm

5. Targeted remedies

Star energy v bocardo, southport cooperation v esso petroleum

• The remedies can be used in a targeted way to ensure that C is put back into a situation before the trespass. Injunctions are particularly useful if the trespass is an ongoing issue, but damages can work for one of incidents that have caused harm