Nick Dowse Trespass to Land

Trespass to Land
Trespass to Land Generally
Definition: Any direct interference with land in the exclusive possession of another, either intentional
or negligent, without lawful justification or the occupiers consent.
Elements: 1) Title to sue. 2) Direct and unauthorised interference. 3) Interference with land. 4) Fault
of the D.
Title to Sue
Exclusive possession of the land, not based on ownership (Newington v Windeyer)
Tenant has actual exclusive possession (Kelsen v Imperial Tobacco)
Licensee does not have title to sue (Malone v Laskey)
Implied Licence
Implied licence to members of the public to enter for legitimate purposes (Halliday v Neville)
Implied licence may be withdrawn or end (Cowell v Rosehill & TCN v Anning)
Entry may be authorised by law (Plenty v Dillon)
Land what it includes
Includes the subsoil below and the airspace above
Airspace limited by necessary reasonable use and enjoyment of the land (Bernstein v
Skyviews)
Subsoil limited by minerals in the subsoil, original grant by Crown.
Actionable interferences
Entry onto land without consent (Rinsale v ABC)
Remaining on land after permission has been withdrawn (Colwell v Rosehill)
Placing or throwing an object upon the land (Westripp v Baldock)
Transient interferences eg bullet through air (Davies v Bennison)
Leaving an object upon land (continuing trespass) (Konskier v B Goodman)
Legal Fictions
Trespass ab initio if enters with authoritycommits unlawful act = initial entry becomes TP
Trespass by relation - may bring an action in trespass for interferences between time right of
possession arose and actual taking of possession.
Defences
Consent, necessity, re-entry onto land, entry to re-take goods, lawful authority and abatement
of nuisance (not favoured) mistake not a defence.
Remedies
Primary remedies are damages and injunctions. Continuing trespasses give rise to new
trespass each day they are on the land.
Injunctions
Discretion of the court
Elements: 1) serious question to be tried. 2) balance of convenience supports award (eg, are
damages an adequate remedy?)
Graham v KD Morris continuing trespass, total disregard for Ps rights.
Damages
Actionable per se, no actual damage required.
Nominal no actual damage
Compensatory (Hansen v Gloucester)
Aggravated circumstances and manner of wrongdoing
Exemplary to punish and deter (TCN v Anning)
Onus and Time Limitations
For action in trespass to land, time limitation is 6 years (s 10(1) (a) Limitations of Actions Act 1974
(Qld)). Onus on P in highway, onus on D in non-highway.

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