TRESPASS

UNIT COORDINATOR & LECTURER:

DR ANNA BUNN
Objectives of lecture

 Overview different types of

trespass
 Focus on trespass to land
Background &
Development of torts
 Firstrecords of tort actions in
early 13th Century
 Mostly protected property and
person
 Features of Trespass
 direct interference with a
person or property
 intentional
 actionable per se
Types of Trespass
 Land
 Goods/chattels
 Person
 Assault
 Battery
 False imprisonment
 http
://au.news.yahoo.com/thewest/a/-/breaking/
13287718/pair-suing-police-over-taser-use
/
Trespass to goods

 Typesof
trespass to
goods
Trespass to
chattels
Conversion
Detinue…
http://au.news.yahoo.com/thewest/a/
-/wa/17339169/six-cars-torched-in-
perths-north/
Trespass to Goods

 Detinue
Bunnings Australia Ltd v CHEP
Australia Limited [2011]
NSWCA 342
Trespass to Land

 In general terms– nature of trespass

is a
 DIRECT INTERFERENCE
 With another person’s land
 Without their consent

 An action for trespass to land is a tort

which gives the person whose land
has been interfered with a remedy.
Trespass to Land

 “By the laws of England, every invasion of

private property, be it ever so minute, is a
trespass. No man can set his foot upon
my ground without my licence, but he is
liable to an action, though the damage be
nothing….If he admits the fact, he is
bound to shew by way of justification, that
some positive law has empowered or
excused him……”
Lord Camden LCJ in Entick v Carrington
Entick v Carrington (1765) 19 St Tn 1029
ELEMENTS

Direct interference with

Exclusive possession of

Land

Which is intentional/reckless; and

Without lawful justification

ELEMENTS OF TRESPASS
1. CONDUCT
 Causing physical contact or a direct
interference with P’s exclusive possession
of land
2. FAULT
 Intentional (voluntary) interference – or
reckless/negligent
 No lawful justification of conduct
1. CONDUCT
TRESPASS TO LAND
Conduct

Conduct must cause physical

interference with land or with
P’s exclusive possession of land
 What is land?
 When is P in exclusive possession?
 What kind of interferences will
constitute direct interference for
purposes of trespass?
Conduct

Conduct must cause physical

interference with land or with
P’s exclusive possession of land
 What is land?
 When is P in exclusive possession?
 What kind of interferences will
constitute trespass?
Trespass to Land

What is land?
 Does it include a house and garden?
 What about plants in a garden?
 Soil below the garden?
 Gas seams running far below the
soil?
 Airspace above a property?
FIXTURES

 Land for purposes of trespass

includes fixtures
 Plants in soil
 Houses and buildings on the land

 Possessionof land will generally

extend to a reasonable height
above the land and a reasonable
depth below it.
 BERNSTEIN v SKYVIEWS & GENERAL
LTD
[1978] QB 479
HELD
• Not trespass

CASE • ‘The problem in this case was to balance the rights of

a landowner to enjoy the use of his land against the
rights of the general public to take advantage of all
that science now offered in the use of airspace. The
best way to strike that balance in our present society
was to restrict the rights of an owner in the airspace
above his land to such height as was necessary for
the ordinary use and enjoyment of his land and the
structures upon it, and to declare that above that
height he had no greater rights in the airspace than
any other member of the public. ‘
 LIP Investments Pty Ltd v
Howard Chia Investments Pty Ltd
(1988) 24 NSWLR 490

CAS
E
 LJP Investments Pty Ltd v
Howard Chia Investments Pty Ltd
(1989) 24 NSWLR 490.
HELD
• Intrusion of scaffolding amounted to trespass
• Scaffolding was capable of affecting use and
enjoyment of the land.
CASE • “I think the relevant test is not whether the
incursion actually interferes with the
occupier’s actual use of land at the time, but
rather whether it is of a nature and at a
height which may interfere with any ordinary
uses of the land which the occupier may see
fit to undertake.” (495, Hodgson J)
 LJP Investments Pty Ltd v
Howard Chia Investments Pty Ltd
(1989) 24 NSWLR 490.
OUTCOME
• Injunction & damages

CASE PRINCIPLE
Test is whether incursion is of a nature and height
that may interfere with ordinary uses of land.
BELOW THE LAND
 Similar
principle will apply to the soil below
the land – to depth that is reasonably
necessary.
 Minerals and gas are owned by government
 Extracting or exploring for gas means a
licence is required from the government
 Extent
to which companies can extract
minerals/gas depends on terms of the licence
 Licensing system is quite controversial
 http://
theconversation.edu.au/not-quite-the-castle-w
hy-miners-have-a-right-to-whats-under-your-la
ttp://www.abc.net.au/news/2017-02-1
3/thieves-stole-gold-during-barbecue-
near-coolgardie-court-told/8265828
Conduct

Conduct must cause physical

interference with land or with P’s
exclusive possession of land
 What is land?
 When is P in exclusive possession?
 What kind of interferences will
constitute trespass?
Trespass to Land

 Trespass
protects people in exclusive
possession of land

 Onlythose in exclusive possession of land

can sue for trespass to land

 Difference between ownership and

possession

 Right to possession v actual possession

Exclusive Possession
 Exclusivepossession (EP) = the right to hold the land to
the exclusion of others.
 Are you in EP if you are a joint owner of the land with your
partner and move out?
 Are you in EP of the property if you are living in your
parents’ house?
 Are you in EP of the property if you are living in a rented
house with your girlfriend/boyfriend and it is their name
on the lease (though you pay some of the rent?)
 Are you in EP of an empty block of land next to your
house which your family has used exclusively as their own
for a number of years?
 Are you in EP if you own and live in your house but go on
holiday?
 Are you in EP if you own a house but rent it out to others?
Exclusive Possession
 Exclusivepossession (EP) = the right to
hold the land to the exclusion of others.

 Are you in EP if you are a joint owner of the

land with your partner and move out?

(Baker v Police [1997] 2 NZLR 467 – see

Australian Torts Law p58 - 59)
Exclusive Possession
 Exclusivepossession (EP) = the right to
hold the land to the exclusion of others.
 Are you in EP of the property if you are
living in your parents’ house?
 Are you in EP of the property if you are
living in a rented house with your
girlfriend/boyfriend and it is their name on
the lease (though you pay some of the
rent?)
Exclusive Possession
 Exclusivepossession (EP) = the right to
hold the land to the exclusion of others.
 Are you in EP of an empty block of land
next to your house which your family has
used exclusively as their own for a number
of years?
 Newington v Windeyer (1985)
3 NSWLR 555

CAS
E
 Newington v Windeyer
(1985) 3 NSWLR 555
HELD

CAS
E
 Newington v Windeyer
(1985) 3 NSWLR 555
PRINCIPLE

• Trespass arises when there is

interference with the exclusive
CAS possession of another’s land
E
• Ownership is not required

• Exclusive possession is a question of

FACT and possession does not even need
to be lawful (can be adverse possession).
Exclusive Possession
 Exclusivepossession (EP) = the right to
hold the land to the exclusion of others.
 Areyou in EP if you own and live in your
house but go on holiday?

 Are you in EP if you own a house but rent it

out to others?
 Stereff v Rycen & Anor [2010]
QDC 117

FACTS & ISSUE

A neighbour removed three bushes from the Plaintiff’s land without
P’s consent.
Was this a trespass?
CASE
HELD
Exclusive possession

 Exclusive possession is a legal

construct
 Is NOT the same as ownership
 Is a question of fact
A person can be in exclusive
possession even if they have no title
to the land (eg a squatter)
A tenant has exclusive possession
during the term of their lease
Other examples of people NOT
being in exclusive possession
Other examples of people NOT
being in exclusive possession
Effect

 Conduct must cause physical

interference with land or with P’s
exclusive possession of land
 What is land?
 When is P in exclusive possession?
 What kind of interferences will
constitute trespass?
 Examples of Trespass –
Nature of trespass
king photographs on premises when there is a ‘No photography’ sign?
otographing land or people in houses from an adjoining property?
oil spill that pollutes the beaches belonging to a holiday resort on a
arby island?
ings falling from an aircraft
nasty smell entering your house from a neighbour’s property?
oise from aircraft flying low over your property?
u neighbours’ subcontractors parking on the verge and obstructing
ur driveway?
rvesting genetically modified crops in such a way that they blow onto
e neighbour’s organic farm?
ocking on someone’s front door to ask for a donation to charity?
Interference
Interference has to be DIRECT.
Examples:
 Entering without permission or
justification
 Refusing to leave when permission
withdrawn
 Doesn’t have to involve entry of a
person – can be a thing.
 Changing the locks on someone’s
house
 Examples of Trespass –
Nature of trespass
Takingphotographs on premises when there is a ‘No
photography’ sign?
 Photographing land or people in houses from an adjoining property?
 Anoil spill that pollutes the beaches belonging to a holiday resort on a
nearby island?
 Things falling from an aircraft
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
 You
neighbours’ subcontractors parking on the verge and obstructing
your driveway?
 Harvestinggenetically modified crops in such a way that they blow onto
the neighbour’s organic farm?
 Knocking on someone’s front door to ask for a donation to charity?
Photographing or Filming

http://www.pregnancyforum.co.uk/lou
nge/85766-no-pictures-swimming-po
ol-rule.html
Examples of Trespass –
Nature of trespass
 Taking photographs on premises when there is a ‘No photography’ sign?
Photographing land or people in houses from
an adjoining property?
Bathurst CC v Saban (1985) 2 NSWLR
704
 Anoil spill that pollutes the beaches belonging to a holiday resort on a
nearby island?
 Things falling from an aircraft
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
 Youneighbours’ subcontractors parking on the verge and obstructing
your driveway?
 Harvestinggenetically modified crops in such a way that they blow onto
the neighbour’s organic farm?
 Knocking on someone’s front door to ask for a donation to charity?
 Examples of Trespass –
Nature of trespass
 Taking photographs on premises when there is a ‘No photography’ sign?
 Photographing land or people in houses from an adjoining property?
An oil spill that pollutes the beaches belonging to a
holiday resort on a nearby island?
 Things falling from an aircraft
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
 Youneighbours’ subcontractors parking on the verge and obstructing your
driveway?
 Harvestinggenetically modified crops in such a way that they blow onto the
neighbour’s organic farm?
 Knocking on someone’s front door to ask for a donation to charity?
Examples of Trespass –
Nature of trespass

Southport Corporation v Esso

Petroleum Co Ltd [1954] 2 QB 182
and, on appeal, [1956] AC 218
Examples of Trespass –
Nature of trespass
 Taking photographs on premises when there is a ‘No photography’
sign?
 Photographing land or people in houses from an adjoining property?
 Anoil spill that pollutes the beaches belonging to a holiday resort on a
nearby island?
Things falling from an aircraft
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
 Youneighbours’ subcontractors parking on the verge and obstructing
your driveway?
 Harvestinggenetically modified crops in such a way that they blow
onto the neighbour’s organic farm?
 Knocking on someone’s front door to ask for a donation to charity?
 Things falling from an aircraft…

 http://
www.darwinawards.com/legends/l
egends1999-02.html
 Examples of Trespass –
Nature of trespass
 Taking photographs on premises when there is a ‘No photography’
sign?
 Photographing land or people in houses from an adjoining property?
 Anoil spill that pollutes the beaches belonging to a holiday resort on
a nearby island?
 Things falling from an aircraft
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
 Youneighbours’ subcontractors parking on the verge and
obstructing your driveway?
 Harvestinggenetically modified crops in such a way that they blow
onto the neighbour’s organic farm?
 Knocking on someone’s front door to ask for a donation to charity?
Examples of Trespass –
Nature of trespass
 Taking photographs on premises when there is a ‘No photography’
sign?
 Photographing land or people in houses from an adjoining property?
 Anoil spill that pollutes the beaches belonging to a holiday resort
on a nearby island?
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
You neighbours’ subcontractors parking on the
verge and obstructing your driveway?
 Harvestinggenetically modified crops in such a way that they blow
onto the neighbour’s organic farm?
 Knocking on someone’s front door to ask for a donation to charity?
Examples of Trespass –
Nature of trespass
 Taking photographs on premises when there is a ‘No photography’ sign?
 Photographing land or people in houses from an adjoining property?
 An oil spill that pollutes the beaches belonging to a holiday resort on a nearby
island?
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
 Youneighbours’ subcontractors parking on the verge and obstructing your
driveway?
Harvesting genetically modified crops in such a way
that they blow onto the neighbour’s organic farm?
 Knocking on someone’s front door to ask for a donation to charity?
GM Crops

 https://search-informit-com-au.db
gw.lis.curtin.edu.au/media;dn=TS
M201509030235;res=TVNEWS;ty
pe=mp4

 http://
www.abc.net.au/news/2014-05-28/
landmark-gm-decision-wa-suprem
e-court/5482864
Examples of Trespass –
Nature of trespass
 Photographing land or people in houses from an adjoining property?
 Anoil spill that pollutes the beaches belonging to a holiday resort on a
nearby island?
A nasty smell entering your house from a neighbour’s property?
 Noise from aircraft flying low over your property?
 Youneighbours’ subcontractors parking on the verge and obstructing your
driveway?
 Harvestinggenetically modified crops in such a way that they blow onto the
neighbour’s organic farm?
Knocking on someone’s front door to ask for a
donation to charity?
2. FAULT
TRESPASS TO LAND
ELEMENTS
FAULT
 Intentional(voluntary) interference – or
reckless/negligent

 No lawful justification of conduct

ELEMENTS
FAULT
 Intentional(voluntary) interference – or
reckless/negligent

Public Transport Commission of NSW v Perry

(1977) 137 CLR 107
 Public Transport Commission
(NSW) v Perry (1977) 137
FACTS
CLR 107
• Perry suffered a seizure while waiting for
train.
• Fell onto the tracks.
CAS • Driver of oncoming train failed to
E observe the nature of the obstruction
until it was too late to stop in time….
ISSUE
• Nature of the duty of care and whether
that was affected by the fact that Perry
was a trespasser.
• Was Perry a trespasser…?
HELD
ELEMENTS
FAULT

 Intentional(voluntary) interference – or
reckless/negligent

 No lawful justification of conduct

Invitees/Licensees

 Entry onto land sometimes occurs

with permission - sometimes
express but more often implied.

 If you have permission to enter

and remain on the land then there
is no trespass.
Invitees/Licensees

 Domestic/private context

Halliday v Nevill (1984) 155 CLR 1;

57 ALR 331

 Business context
 Lincoln Hunt Australia Pty Ltd v
Willessee (1986) 4 NSWLR 457

HELD

Only bona fide visitors (ie for

CAS purposes related to the business)
E have implied licence to enter.

TV crew was not there for bona fide

business purposes – they were
trespassers.
 Rinsale Pty Ltd v Australian
Broadcasting Corporation
(1993)ATR
Shepherdson J held that trespass to land
had clearly occurred from the moment that
the reporter and crew entered the P’s
CASE premises. Also held their actions amounted
to a flagrant and wilful intrusion into
private property and a rude and
unauthorised interruption of the plaintiff’s
director in his office.
Authorisation to enter
land
 Some people have authority (by statute)
to enter land.
 Meter readers
 Police or others who possess a court
order (warrant) allowing them to enter
land for a specific purpose.
 Civilians
or police officers involved in
chasing an offender or preventing a
murder.
 Police powers…more complex
 Kuru v NSW [2008] HCA 26

CAS
E
 Kuru v NSW [2008] HCA 26
HELD
Police were trespassing. Damages
awarded.
CAS PRINCIPLES OF LAW
E 1. Entry onto land must be justified by
showing that there was consent of the
occupier OR lawful authority to enter.
2. Police officers have no special right to
enter land (except in certain cases
provided for by common law or under
statute).
3. Authority to enter land can be
revoked..in which case the entrant must
REMEDIES
TRESPASS TO LAND
Trespass to Land
 Remedies
 Self – help remedies: include using reasonable force
Remedy can be used to eject a trespasser
Reasonable opportunity to cease the trespass should
be given first
Force must not be excessive
http://
www.smh.com.au/nsw/murder-and-selfdefence-how-f
ar-can-you-go-to-protect-yourself-in-a-home-invasion-
20160328-gnsq7q.html
 Damages
 Injunction
 Ejectment
Injunctions

 Injunction
can be given to prevent a
trespass continuing.
 More difficult question is whether an
injunction can be ordered to prevent the
showing of film or images captured as
result of trespass…
 Contrast:
 RinsalePty Ltd v ABC (1993) Aust Torts
Reports 81-231
 ABC v  Lenah Game Meats  Pty Ltd [2001]
HCA 63
 Rinsale Pty Ltd v ABC (1993)
Aust Torts Reports 81-231
FACTS
• Reporter and camera crew requested an
interview with a company director
CAS • Interview refused
E • Entered business premises and filmed
anyway.
ISSUE
• Could an injunction be granted to
prevent the ABC showing the film?
HELD
• Injunction was appropriate
• Film obtained in ‘apparent blatant
disregard’ of Rinsale’s property rights
 ABC v  Lenah Game Meats  Pty
Ltd [2001] HCA 63

CAS
E
 ABC v Lenah Game Meats Pty Ltd
[2001] HCA 63

FACTS

Supreme Court had ordered an injunction

CAS against ABC:
E “from distributing, publishing, copying or
broadcasting a video tape or video tapes
filmed by a trespasser or trespassers
showing [Lenah's] brush tail possum
processing facility ….in Tasmania".

ABC appealed to HCA to have the

injunction discharged.
 ABC v Lenah Game Meats Pty Ltd
[2001] HCA 63

HELD
• Appeal successful - injunction discharged
• Relevant fact was that ABC were not the
CAS trespasser
E Could the actual trespasser have been
prevented from showing the film?

More difficult…
Animal activists

 http://
mobile.abc.net.au/news/2014-05-
25/pork-industry-tougher-penaltie
s-animal-activists-illegal-filming/5
474958?google_editors_picks=tru
e&pfm=sm
Follow up

 Australian Torts law: Chapter 4

 Supplementary materials & self-

study tasks

 Tutorial question
THE END
TRESPASS TO LAND