Intentional torts Rights in land (trespass to land and nuisance)

Trespass to land Unjustifiable interference with possession of land Direct and immediate interference with land Take reasonable Steps Trespass Definition of land airspace and area below land (Risk v Northern Territory) Limits to airspace (Pickering v Reid hot air balloon) Reasonable height - Schleter v Brazakka no trespass Aircraft above 600ft Lower levels successful; Cranes Levels enjoyed by ordinary land owner - Brendal v Mirvac Project Pty Ltd construction equipment

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o Limited situations: This right [to prevent trespass to airspace] extends to a limited number of situations...Permanent or semi permanent structures impinging on airspace in an unreasonable manner ... constitute a nuisance or trespass - Malcolm McDougall v Council of Warringah pigeons o Bullet: A bullet passing over land caused a momentary action of trespass. See Davies v Bennison Below land - Di Napoli v new beach apartments; Rock anchors intruding into land. o Possibility of substantial control over land underneath his/her soil for considerable depth. Graham v KD Morris & Sons; Stoneman v Lyon o Burton v Spragg [2007] Foundations of home dug under, injunction granted

Trespass to Land 2 Examination of the elements in Port Stephens council v Tellamist. 3 About infringements to possession as opposed to enjoyment (nuisance; ie protects against unreasonable interference of enjoyment and use which is something that occurs outside plaintiffs land) o Slightest voluntary incursion: ie must be voluntary - Public Transport Commission (epileptic fit) o Trespass is actionable per se (citing Plenty v Dillon); whilst Nuisance is an Action on the case. About exclusive possession (of place of residence); ownership irrelevant action can be taken if only renting (NSW v Ibbett) Cattle: Causing something to cross the boundary is trespass. Lade & Co Pty Ltd & Ors v Black [2007] QSC 385. 4 Consent: Can justify with proof of consent of lawful authority Intention: must be 4 o actual intention, o recklessness or o negligence o Liability, even if dont know of presence of boundary, or if merely negligent or careless.

o Negligence in land trespass; Liable for hounds that cross boundary intentionally careless; see League against cruel sports v Scott o Innocent trespass Mowing patch of grass (Basely v Clarkson) o Intention is to do the act not harm; ie. The intention to take the next step is all that is required. - Stanley v Powell o So: no foreseeability or remoteness standards. Consent: 5 o trespass is committed whenever there is interference with possession of land without lawful authority or, relevantly, the license or consent of the person in possession - TCN Channel Nine Pty Ltd v Anning. ( current affairs reporter didnt have implied consent to film a raid) o If no implied consent incursion into private land is a wrongful act. Consent may be implied if it is for a lawful purpose - Plenty v Dillon; Halliday v Nevill Occupier of dwelling: gives implied licence to any member of public coming on lawful business to come through gate...and knock on the door. - Robson v Hallett; Limited to particular Purpose: Consent limited to the purpose its given - Barker v the Queen (1983) Neighbour was given location of spare key in case of emergency.. broke in, stole items. Trespassed. Se also: TCN v Anning (reporter went beyond implied license) License given by tenant in common: 5 Right given is subject to reasonable use and enjoyment by other co-owners. Ie. License can be revoked by other tenants. - See NSW v Koumdjiev, Police and co owners /where consent to police refused and someone in another flat buzz them in. Consent by one, but revoked by another (Koumdjiev). NOTE: o Not necessary to prove damage occurred. Merely the right of exclusive occupation has been breached See Anning

Damages 6/7 o Damages can be recovered for harm that is the natural and probable consequence of the tortuous act. Anning Hence NO award for Pschological injury flowing from trespass Port Stephens SC v Tellamist (in circumstances of Anning) o Injunction preferred remedy Harrow LBC v Donohue 7/8 o exemplary (punitive ie as punishment) damages (Gazzard v Huchesson) (Plenty v Dillon). See also (State of NSW v Ibbett) o cf. Anning CA refused Exemplary damages, mitigating factors: - Report was in public interest, reporter left when asked.

Must have possession; Trespass protects right of possession, not just ownership. 7 licensee (not in exclusive possession) cant take action in trespass. Georgeski v Owners Corporation SP Cf Bropho v State of WA, trespass claim failed since didnt have full possessory right over land. o Landlord: will not be able to take action in trespass while tenant in possession (Rodriques v Ufton) BUT can take Action on the case if there is permanent damage to long term interest in land. Tree Branches: Branches overhanging nuisance not trespass because not direct and immediate (Lemmon v Webb)

Private nuisance 8/9

Interference with use/enjoyment of land, or some right over or connection with it. o Prolonged Shouting interference with enjoyment; Church of Jesus Christ of Latter Day Saints v Price Physical damage or disturbance to comfort of occupier (Young v Wheeler) o There may be damages for personal injuries; - Pelmothe v Phillips (1899) Prolonged Shouting and offensive comments. Outside church while meetings underway, Held to be interference with enjoyment Church of Jesus Christ of Latter Day Saints v Price action on the case available where damage indirect Current approach: Plaintiff must be in possession of land, ie The right to take an action is restricted to persons with property rights eg. Freehold, leasehold (Oldham v Lawson) o BUT person with possessory right can take action if true owner not involved (Ruhan v Water Conservation and Irrigation Commission SR(NSW)) o Cases against Contractors: Whilst P must be in possession of land to take action, the D need not be. (Pantalone v Alaouie) 9 See also Fennell v Robson Excavations Pty Ltd Water flow, from repair of guttering by contractor. Proprietors of strata plan No 13391 v Abate See also Bonnici & Anor v Ku-ring-gai MC 10

o SO A Nuisance can be created by someone who is on land, other than as owner - Fennell v Robson Excavations, Pantalone v Alaouie such as surveyor or engineer Water case: Use of land must be reasonable (Corbett v Pallas) Golf Balls Campbelltown Golf Club v Winton & Anor [1998]

Tree Roots 10/11 o Council liable although not occupiers but damage foreseeable, and had knowledge of problem- Strata Plan v Woollahra Municipal Council (Mixed decisions by Judges) Duty to take steps Where land owner aware of threat to neighbours land, has a duty to take such steps as are reasonable in all circumstances to prevent or minimise the risk of injury or damage. - Yared v Glenhurst Gardens NSWSC 11 Limits on types of interference: No right to privacy (Victoria Park Racing v Taylor) No right to view form land (Bathurst City Council v Saban) No right to light (Hunter v Canary Wharf) 11 o unless easement arrangement (right to someone elses land for specific purpose) (coles Myer v Dymocks Book Arcade) o ie, can get a Restrictive Covenant (although not common) No right to TV reception (Hunter v Canary Wharf) Noise (Baxter v Camden London Borough Council) 12 Reasonable/ordinary use of residential premises without more is not nuisance. Liability of landlords for defects in premises in some cases; Northern Sandblasting Pty Ltd v Harris followed in Jones v Bartlett HCA Liability of council / occupier of land Lippiatt v South Gloucestershire Council [1993] 3WLR137. Camping on council land damaging P land. To the knowledge of the D NUISANCE AND TREES 13 Legislation: Trees (Disputes Between Neighbours) Act 2006 (NSW) o Abolishes action for nuisance as a result of damage caused by a tree to which this Act applies. o See possible limitations, bottom of page 13 Defence to Nuisance: Must be shown that they took reasonable steps

Foreseeability and Nuisance: o Not Liable if nuisance not foreseeable - Malliate v Sharpe Liable if let it continue after you know about it Cartwright v McLaine o So Cannot take action if dont know about it Omission can constitute Nuisance Wild Dogs entering land (Stockwell v State of Vic) See also Spencer v Aust Capital Territory [2007]

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Limits to foreseeability (Holbeck Hall Hotel v Scarbook) not reasonable to require council to have geological investigation. o Possible Exception: Landlord liable for damage because failure to repair liable in some cases even when not aware of defect (Wringe v Cohen) unclear as to applicability in Australia, seems inconsistent but not overruled yet, since need Foreseeability of harm. 17 Measured duty of care- what is a reasonable response by land owner, given financial resources - (Stockwell) 17 Poor people NOT exempt - Abbahall v Smee; only income was social security payments BUT was owner; could have mortgaged to repair ie. Her overall resources considered, not just day-to-day income. Rocks from Cliff: Owners SP 4085 v Mallone, Measured duty of care applied, units built close to cliff face. o Held to be responsible for nuisance, knew about but did nothing about it o If Some damage foreseeable and causes more, liable for full extent of damage (McColl v Dionisatos) 17 Reasonableness and Nuisance 18 Liability imposed only when interference of use and enjoyment of land is unreasonable. annoyance or discomfort [is] substantial and unreasonable Malliate v Sharpe. o Tree Roots cases are an exception. ie. in most cases actions for nuisance based on actual damage caused by tree roots will succeed. Circumstances (such as: locality, time of day, nature of activities) 19 taken into account, when determining Reasonableness of claim. - Seidler v Luna Park Trust Reserve Public Interest - Jet Fighters / Noise: Prima Facie Nuisance but refused on public interest grounds. Damages still awarded Motive may be relevant Hollywood Silver Fox Farm Ltd v Emmett

Defences of Statutory Authority 19 For Trespass - (Plenty v Dillon) and (Coco v the Queen) even police need legal authority to override landowner common law rights. o Summons No right to serve if excluded by owner. (Plenty) o Tap Phones Warrant to tap phones gave no right to Trespass. (Coco) o Public authorities need common law right or statutory right to override trespass rights, No defence to say in public interests o Must make proper announcement R v Merritt o although some common law exceptions such as in hot pursuit o More on Lawful Authority and revoking it. NSW v Kuru [2007] NSWCA. Expanding the exceptions in Plenty.

Police had authority to remain and complete investigation, had deemed permission, per Crimes Act 1900 s357H(1). 20 For Nuisance - Must prove that specific statutory provision or damage to land was within the exercise of powers - Kempsey Council v Lawrence work done by council not within statutory provision (didnt cover floods). Flooding caused by council: No defence because flood not inevitable (Bonnici v Kuring-Gai Municipal Council) immunity needs to be specifically provided (cases above) 21 Council Exemption from injunction against future action: o Bankstown City Council v Alamdo Holdings Where s733, Local Government Act 1993 applies, (ie. council does not incur a liability in relation to flooding) council also exempt from injunction against future action. NB: A claim against public body based on exercise of statutory powers there will be no liability in nuisance unless negligence can also be shown.

o High Standard of behaviour for council exemption: 22 with all reasonable regard and care for the interests of other persons Melaleuca Estate Pty Ltd v Port Stephens Shire Council [2006] Here, Council relied on s733. Held there was no good faith since Council created initial problem and omitted to remedy. General Defence Symons Nominees Pty Ltd v RTA NSW 23 No other reasonable way of doing work Other Legislation, surveyors etc - To protect when going onto land to perform duty. - Must give notice, s19 Surveying Act 2002 - Doesnt prevent action for damage, only protects from action in trespass. 23

Access Orders- For Short term interest in land, for example to take measurements of land. o Access to Neighbouring Land Act 2000 23 Provides authority for access in some circumstances. Can get access order (s3) to go onto neighbours land to do work, inspection or plans to do with your property. (s16) conditions to minimise loss privacy. For Longer Term Access o Compulsory Easement is required. Eg. Erect scaffolding over air-space of neighbour. s88K of Conveyancing Act 1919.