Trespass

Question 1

Definition

Answer 1

Trespass to land is a tort that can be defined as the unjustifiable interference with land which is in the immediate and exclusive possession of another

Question 2

Direct interference (3)

Answer 2

Physical entry, throwing something onto the land, or (if given the right to enter), remaining after the right has been withdrawn

Question 3

Direct interference (Southport Corporation v Esso)

Answer 3

Facts: Oil was deliberately discharged from a tanker in order to free the tanker. The oil drifted onto C’s land and C brought an action for nuisance, negligence and trespass

Held: CoA decided by 2:1 that D’s were liable for negligence

Question 4

The interference must be voluntary (Stone v Smith)

Answer 4

It can only be trespass if they have voluntarily entered the land.
Facts/Held: A person who was forcibly carried onto land by other persons was not trespassing

Question 5

No need for D to be aware that they’re trespassing (Conway v Wimpy & Co)

Answer 5

An innocent trespass is still a trespass- mistake is no defence.
Facts: D’s lorry drivers gave a lift to C, this was expressly prohibited by the company rules. C stated he was injured due to the negligence of the driver

Held: CoA held that C was a trespasser while on the lorry–> D’s under no DOC

Question 6

Does C need to experience harm or loss?

Answer 6

No, trespass to land is actionable per se (in itself)

Question 7

Trespass above or below land (Bernstein v Skyviews)

Answer 7

Facts: D had flown over C’s land to take a photo of his property (to try and sell it to C)

Held: High court stated that there was no trespass bc C didn’t have an unlimited right to all the airspace above his land; only the space for ordinary use.

Question 8

Why is the Infrastructure Act 2015 controversial?

Answer 8

Land that is 300m below the surface can be exploited for “the purposes of exploiting petroleum or deep geothermal energy” without liability for trespassing

Question 9

Trespass Ab initio

Answer 9

“from the beginning”- a form of trespass that occurs when a person enters land with authority given by law rather than the person possessing the land- abuse of that authority e.g. police exceeding their warrant

Question 10

Defences- Legal authority (4)

Answer 10

1. Countryside and Rights of Way Act 2000- gives public certain rights of access to land (with restrictions)
2. PACE 1894- gives constables certain rights to enter the land
3. Right of way- recorded on ‘definite maps’ prepared by a local authority
4. Common land- Certain people have rights of access through custom for a particular purpose e.g. graze livestock

Question 11

Defences- Consent

Answer 11

‘licence to enter land’- express, implied or contractural

Question 12

The licence can be revoked (Wood v Leadbitter)

Answer 12

Facts: A man was ejected from a horse racecourse despite having bought a ticket
Held: His contractual licence had been revoked making him a trespasser

Question 13

Defences- Necessity (4)

Answer 13

Public- Involves an act to protect the public from wider harm
Private- Involves an act to protect your own property against the threat of harm

Must be an actual danger for both, D’s act must be reasonable

Question 14

Rigby v Chief Constable of Northamptonshire

Answer 14

Facts: Police fired a CS gas canister into a shop to force a dangerous psychopath out, the shop caught fire. The police hadn’t arranged for fire-fighting equipment to be available- the shop was burned out

Held: High court held that the police were liable for negligence for failing to provide adequate fire-fighting however not liable for trespass

Question 15

Remedies- Damages/injuntions

Answer 15

Usual remedies for trespass to land

Question 16

Remedies- Orders for possession (2)

Answer 16

Court order issued following a successful ‘possession claim against trespassers’- covered by Civil Procedures Rule part 55. D’s must leave the land by a certain date

Question 17

Remedies- Self-help (or abatement) (2)

Answer 17

Involves the common law right of a landowner to remove the trespasser themselves using “reasonable force”. Not available if on residential property.

Question 18

Negative evaluation

Answer 18

Harsh on D who can still be liable even if they’re unaware they’re trespassing
Some areas of trespass have been largely “phased-out” due to developments in statute law e.g. Trespass ab initio