Tresspass

What do intentional torts (esp. trespass) do in public law?

They set the limits of acceptable conduct between citizen–citizen and citizen–police.

Classic definition of trespass from Entick v Carrington (1765)?

Every invasion of private property, however slight, is a trespass; anyone setting foot on your land without licence is liable even if no damage.

Modern NZ definition from BEMA Property Investments v Body Corporate 366611 (2018)?

Trespass is an unjustified direct interference with land in another’s possession. It protects possession (not ownership), is actionable without proof of damage, and an honest mistake is no defence.

Street (8th ed) formulation?

Intentionally or negligently entering/remaining on, or directly causing physical matter to contact, land in another’s possession.

Who has standing to sue in trespass?

The person in actual possession at the time (intention to possess + control to the exclusion of others).

Key principle from Shattock v Devlin (1990)?

An occupier (not just owner) can sue. A chattel that becomes a fixture is part of the land; unauthorised entry to remove it is trespass (even by police without lawful authority).

Key principle from Cousins v Wilson (1994)?

Only the person in possession when the trespass occurred can sue. Purchasers with equitable interest only lack standing; vendors in possession may get nominal and (for egregious conduct) exemplary damages.

What did Seddon v Ryans Carriers Ltd (1995) say about de facto occupation?

Long, continuous physical control (gardening/maintaining for ~60 years) gives de facto possession—good against all but the true owner—sufficient to sue in trespass.

Can a body corporate’s actions amount to trespass by excluding an owner from their unit?

Yes. Wu v Body Corporate 366611 (2015) (remote lock change) and BEMA (2018) (refusal to issue access card) = loss of possession, immediate and complete → trespass.

Must the defendant’s act be direct?

Yes—directness is the essence of trespass. Consequential intrusions are nuisance (not trespass).

Examples of direct trespass?

Entering land; throwing a person onto land; firing a bullet into soil; driving nails/leaning a ladder on a wall; encouraging a dog onto land; removing doors/windows; sending an innocent agent onto land.

Examples of consequential intrusions (no trespass)?

Hounds wandering in without encouragement; soil moving due to weathering; oil discharged in an estuary carried by tide onto land (Southport v Esso per Denning).

Minority view hinting wind/tide could still be direct?

Southport (Morris LJ): using wind/water as a force may be trespass.

Why was nuisance used in Matheson v Northcote College (1975)?

Because identifying individual trespassers (students) was impractical; control rested with the school.

Weathering/omission examples?

Leakey v National Trust (natural mound slips); French v Auckland CC (spread of pest plants via omission) → typically nuisance, not trespass.

Is intention to trespass required?

No. Only a conscious entry/act is needed; honest belief in authority is no defence (Conway v Wimpey; Kristin School Charitable Trust v Norcross [2013]).

Can things attached to soil be subject to trespass?

Yes—grass/crops; profits à prendre (e.g., fishery).

Subsoil trespass?

Yes—owner presumed to own beneath surface; tunneling/mining/footings can trespass (e.g., Waugh v AG (No 2)—expired tunnel licence → trespass + payment).

Airspace rule?

Trespass to the portion reasonably required for ordinary use/enjoyment of land and structures.

Airspace cases to know?

Davies v Bennison (bullet through airspace → trespass); Kelsen v Imperial Tobacco (sign projecting into airspace → trespass); Bernstein v Skyviews (no trespass at ordinary flight height).

Statutory overlay for aircraft?

Civil Aviation Act 2023 s 44: no trespass/nuisance merely by reasonable flight complying with the rules.

Statutory entry to neighbour’s land for works?

Property Law Act 2007 ss 319–320 (District Court can authorise limited entry).

Minimal entry rule?

Ellis v Loftus Iron Co—a toe over the boundary suffices.

Causing a thing/person to enter?

Trespass even if you don’t personally enter (e.g., Mayfair v Pears—illegally parked car; Abel Bins v Mulligan—dumped rubbish; Matheson—objects thrown).

Animals onto land?

Masters liable where they intend or negligently fail to control entry (League Against Cruel Sports v Scott).

Continuing trespass?

Failure to remove an object after the right to be there has ended (Konskier v Goodman).

Interference with profit à prendre?

Trespass requires substantial interference (Nicholls v Ely Beet Sugar—pollution insufficiently substantial on facts).

Excluding an owner (unit titles)?

Wu (lock access disabled) & BEMA (no card issued) → trespass by denying possession.

Claim of right?

: D may assert right to possession or authority under someone with that right—but cannot rely on a third party’s “better title” to defeat P (Knight & McLennan v National Mortgage). Avoids self-help chaos.

Licence (implied/express) basics?

Entry justified while licence subsists; can be withdrawn with reasonable time to leave—Robson v Hallett (implied licence to approach a dwelling).

Equitable licence/estoppel example?

Inner City Properties v Mercury Energy (1998): emergency cabling → equitable licence barred trespass declaration.

Public land / protest?

Police v Beggs (1999): Speaker can withdraw licence but must act reasonably; BoRA rights relevant.
A: DPP v Jones (HL 1999): highways may be used for peaceful assembly if no obstruction/nuisance. Affirmed in Abbott v Police (2008

Monopoly businesses (casinos) and exclusion?

Sky City v Wu (2002): operators’ right to exclude may be qualified where monopoly affects public interest—unless statute says otherwise (Casino Control Act s 67 did).

Recaption of chattels?

Owner may enter to retake unlawfully taken goods using no more force than reasonably necessary.

Execution of process (warrants) & limits?

Statutory immunities (Crimes Act s 26(2), Policing Act s 44, Crown Proceedings Act s 6(5))—but no immunity for unreasonable, bad-faith, or ultra vires entries; see Baigent’s Case; interpret consistently with NZBORA s 6.

Statutory authority principle?

Trespass can be authorised only by clear words (Coco v The Queen). Choudry v AG (1998): SIS interception warrant didn’t imply entry power—plain words required.

Other possible defences?

Consent (Lakes Edge v Kawarau Village), necessity/justification (R v Fraser; AG v Leason), illegality (Brown v Dunsmuir).

s 3—Trespass after warning to leave?

Offence to remain after occupier’s warning; objective defence if necessary for protection/emergency.

s 4—Warning to stay off?

Occupier may warn during or shortly after trespass.

Who can warn?

The occupier—statute focuses on occupancy (mirrors tort focus on possession).

Illustrative cases?

Duffield v Police (ticket didn’t justify sitting in middle of golf tournament); Beggs (knowledge to leave is factual); Bayer v Police (necessity defence objective test); Wilcox v Police (unborn child not “some other person” s 3(2)); Rongonui v Police & Peters v Speaker (Parliament warnings must be reasonable).

Self-help expulsion?

You may remove a trespasser with no more force than necessary (Hemmings v Stoke Poges). Crimes Act ss 55–58 give limited force/entry powers.

Are damages available without proof of loss?

Yes—nominal damages as of course (e.g., Evans v Gardner; Ogle v Aitken—$1,000 nominal; no exemplary where no conscious wrongdoing).

When are aggravated/exemplary damages available?

For outrageous/highly aggravated conduct (Ramsay v Cooke; Cousins v Wilson).

Is an intentional trespasser liable for all consequences?

No absolute rule—damage must be foreseeable/direct (Mayfair v Pears).

Injunctions?

Available to restrain, prevent repetition, or remove objects even without harm (Patel v WH Smith).

When might damages be awarded instead of an injunction?

Shelfer criteria: small injury, easily money-valued, adequately compensable by small sum, and injunction would be oppressive.