- Created by: Tanny96
- Created on: 04-03-16 14:46
Trespass to land!!!
A direct and 'unjustified interference with the possession of land... whether or not the entrant knows that he is trespassing'.
Direct interference- Intereference with the land must be direct and physical.
Voluntary interference- A person must enter the land voluntarily to be liable for trespass: Stone v Smith (1647).It does not matter if you did not deliberately trespass on someones land, if you voluntarily took yourself there it will be trespass (League Against Cruel Sports v Scott (1985)- hunting dogs strayed onto property which was considered a trespass). Some trespasses can be committed accidentally especially when the trespass involves airspace. (Laiqat v Majid 2005- extractor fan hung over C's property), (Kelsen v Imperial Tobacco Co (1957) advertisement sign jutted out onto C's property). Bernstein of Leigh v Skyviews & General Ltd (1978) plane taking aerial photographs was not trespass as went beyond ordinary use of land. The D need not be aware that they are trespassing i.e. innocent trespass (Conway v George Wimpey & Co 1951).
No requirement for harm or damage as trespass to land is actionable per se. Remeber that trespass to land is a continueing tort, so fresh liability arises for as long as as the tortious conduct continues.
Manifestations of Trespass to land!
Trespass to land can be satisifed in 4 distinct ways:
- Physcial entry onto land
- Remaining on land after permission is revoked
- Exceeding the extent of permission granted
- Placing or projecting objects onto land
'Land' includes soil, property, temporary structures, plants but also with limits, the airspace above the land 'height as is necessary for the ordinary use and enjoyment of land' and the subsoil below the ground. Protected interest- The tort protects against the interference with possession of the land, rather than ownership. If there is division in ownership and possession i.e. landlord and tenant, the interest that is protected is the party who is entitled to exclusive possession. AG securities v Vaughan (1990) those with licenses such as guests, visitors and lodgers lack exclusive possession so cannot bring an action.
Trespass ab intio- An intially lawful entry becomes an actionable trespass if D abuses their permission to enter the land. This is trespass ab intio (from the beginning) as the abuse of permission negates it from the point of entry onto the land (Elias v Pasmore 1934).
Consent- a person who has permission is not a trespasser. Ensure that the D has not exceeded their permission.Contractual license- such as payment of an entry fee or purchase of tickets for a sporting event.Lawful authority- people such as Bailiffs and the police have permission to enter land under the Police and Criminal Evidence Act (1984).
Necessity- this justifies trespass in emergency situations to deal with a perceived threat. It does not matter if the threat is real provided that D believes that it is real. (Esso Petroleum v Southport Corporation (1956) where the dumping of oil polluting the shoreline was necessary to save the lives of the crew).
Remedies- Self help: a landowner may use reasonable force to repel or expel trespassers provided that the trespasser has not obtained full possession of the land i.e. force cannot be used to evict squatters. Self help can be used to remove objects placed on lan, although he must ensure that the property is returned to the possession of the owner.
Possession orders- if a trespasser has full possession of the land an order for possession must be obtained to restore the land to its rightful owner. The main remedies are damages and injunction.
Private Nuisance- 'is the unreasonable use of man of his land to the detriment of his neighbour' Miller v Jackson (1977).
Does C have exclusive possession of the land? Is a proprietary right in the land required for an action in private nuisance? Malone v Laskey (1907) yes, the claimant was the wife of the lease holder and so was not entitled to exclusive possession in her own right. Khorasandjian v Bush (1993) the daughter of the property owner was harrassed by D, her action was allowed despite her lack of proprietary interest. Hunter v Canary Wharf (1997) house of lords reinstated the need for a proprietary interest stated in Malone v Laskey.
- Always considered: the intensity of the interference- everyone has to put up with some interference (Southwark LBC v Mills (2001). However inferences become unreasonable when they occur frequently or for long periods of time (Kennaway v Thompson 1981-'intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to hear'. An action for physcial damage, even if it arose from a temporary or short-lived activity, is likely to succeed- though the court will award damages rather than injunction. Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996) damage to boat succeeded even though nuisance was short.
- A factor that is sometimes considered, dependent on the type of claim- the reasonableness of land use can depend on, alongside other considerations, the character or nature of the area it is in- its 'locality'. Following St Helen's Smelting, the 'locality' principle applies only in cases where the claimant has suffered lost amenity. It is not a relevant consideration where the claim is about material physical damage which in law can never arise from a reasonable use of land. The granting of planning permission can mean that sometimes an action may not be available, where the nature of the locality has changed (Gillingham BC v Medway Dock Co ltd (1993), however this is a question of fact to be decided and so Gillingham can be compared with Wheeler v JJ Saunders Ltd (1996) where the nature of the locality was not changed by the planning permission and so C succeeded.
- Other factors that are sometimes considered,if relevant to claim-The sensitivity of the claimant-the D's use of the land must be potentially unreasonable to ANYONE. Therefore someone affected by their own sensitivities ( where an ordinary person would not be so affected) will be unable to claim (Robinson v Kilvert 1889, where D's hot air damaged, C's specialist paper, but did not damage ordinary paper). However in Mckinnon Industries Ltd v Walker (1951) the damage to C's orchids was an actionable nusiance even though the D contended that growing orchids was a sensitive activity. Network Rail Infrastructure Ltd v Morris (2004) the correct test is whether it was foreseeable that specific damage would be caused to a specific claimant!
Nuisance continued 2
Malice - Christie v Davey 1893- it is not a legitimate use of D's house to use it for the purpose of vexing and annoying his neighbour. Hollywood Silver Fox Farm v Emmett 1936- claim would have failed if it had not been due to malice, as the claimant was abnormally sensitive.
Damage - C must suffer damage (Hunter v Canary Wharf 1997) types of damage - encroachment onto neighbours land, physical injury to land, interference with enjoyment of land.
Public nuisance ' materially affects the reasonable comfort and convenience of life of a class of her majesty's people (A-G v PYA Quarries Ltd (1957).
These amount to a class of people:
Local communities (Ruffell 1991), groups of individuals with a common interest (Ong 2001), uses of public highway ( Castle v st Augustine's link 1922), Small groups of People with common characteristics (Johnson 1997), indirect impact on the community (Lowrie 2005). R v rimmington (2006) public nuisance should not be used as a means to deal with conduct that was directed at several individuals, it should be used for the community.
Special damage - can only be brought if an individual or individuals suffers damage over and above the general inconvenience caused to the class. Following types of damage count: personal injury, discomfort, inconvenience, damage to property and economic loss.
Defences - effective- prescription (Sturges v Bridgman 1879- if nuisance has been going on more than 20 years and C knew then no liability. Statutory authority- if D's conduct was authorised by statute then they will not be liable- e.g if they have planning permission, unless the nuisance was undertaken in an unreasonable manner (Wheeler v Jj Saunders ltd (1996). Injunction likely to be given (Kennaway v Thompson) unless damages are more appropriate.
The rule in Rylands v Fletcher!!!!
Collecting and keeping on land- something must be brought onto the land by D. The thing that is collected can escape or it can cause something else to escape. Miles v Forest Rock Granite Co ltd (1918) explosives collected but it was the rocks that were dislodged by the explosives that escaped. LMS International v Styrene Packaging and Insulation Ltd (2005) collected polystyrene but it was the fire caused by the hot wire that escaped.
Non natural use of land - Rickards v Lothian (1913) some special use bringing with it increased danger to others is not ordinary use of land- water escaping from over flow pipe was natural use of land. Read v J Lyons & Co Ltd 1947what may be regarded as dangerous or unnatural will vary according to the circumstances. Transco Plc v Stockport MBC (2004) the risk presented by any particular activity had to be considered by contemporary standards.
Likely to do mischief if it escapes- the thing need not be dangerous in itself provided that it is likely to cause harm if it escapes. Jones v Festiniog Railway 1867 a passenger train emitted Sparks which set fire to C's haystack.
Escapes and causes harm- damage to property must be caused
Foreseeability- foreseeability of the risk is a prerequisite for damages. D is only liable if he foresaw the relevant type of damage. (The wagon mound).
Act of God
Acts of a stranger -if third party takes action which leads to escape then D will avoid liability. (Rickards v Lothian 1913).