Definition of trespass to land (from Bocardo)
Unjustified interference with the possession of land belonging to (or in the possession of) another.
- Unjustified
- Interference
- Possession
- Land
- What is ‘land’ for the purposes of trespass?
s205 LPA - Land includes land of any tenure including any strata in or under any land.
Do they own everything above and below their land?
- ‘Land’ above your property - Bernstein v Skyviews test
Bernstein v Skyviews: Test - you have the right to space above your land only as necessary for the ordinary use and enjoyment of your land and the structures upon it.
Would be ridiculous to find trespass every time a satellite or plane goes above your house.
- Land - Below the surface - Star Energy v Bocardo
Prima facie, crown has rights to oil beneath ground.
Star Energy got license to drill for oil, and oil was located beneath Bocardo’s land. They set up camp outside his land and drilled diagonally beneath it - was this trespass.
Held: Owner of the surface is owner of strata beneath it until the point of absurdity is reached (unless they have sold this right).
- Possession - JA Pye v Graham
Two elements:
- factual control/possession - (the physical element) (eg having the key))
Dependent on the type of land it is - eg a house would be different to a farm.
In Pye, having the key to the gate was sufficient. - Requisite intention to possess and exclude others (mental element)
- Possession - How can licensees make a claim against the other contractor or third parties?
- Through the contract they have with the other contractor.
- Through their factual control, giving them a weak property right to bring trespass claims
- Possession - can a licensee not in control bring a claim against third parties? Manchester Airport v Dutton
C airport given license to enter forest to fell trees to open up a new runway, but environmental protestors began to occupy trees.
C sought order for possession on basis of licence.
Held: Licensee in possession of land can claim against third party on basis of their license, if necessary to vindicate and give effect to his rights by contract.
- Possession - Interference with possession of land - Bocardo again - applying the facts
Star Energy v Bocardo - Was Bocardo’s possession of land interfered with, even though it was much below?
Held: Yes
- Interference - extent? What types of interference exist? Ellis, Lavender, Eaton, Bocardo, Kelsen, Anchor Brewhouse, Manchester Airport
Some sort of boundary crossing (even very slight ones) - Ellis v Loftus
Types:
Removing or adding to land: Lavender v Betts - landlord removed doors and windows - that was a trespass
Eaton - adding an AC unit is an interference
Airspace or below:
Bocardo - pipes below
Kelsen - advertising sign above
Anchor Brewhouse - jib of a crane entering an airspace was an interference
Entering and remaining on land:
Manchester Airport v Dutton
- Unjustified
Without justification
Can be justified by:
- Licence/Permission/Right
- Necessity
Is damage needed for trespass? Anchor Brewhouse. How often can a trespass arise?
No - trespass is actionable per se (Anchor Brewhouse)
Every continuance of a trespass is a fresh trespass arising from day to day as long as it continues
Remedies for trespass?
- Injunctions
- Declaration of rights (declaration that rights infringed, but not giving you anything as no damage occurred)
- Damages
Injunctions - what are they and when are they awarded?
- Primary remedy for continuous trespass (as you want them to stop)
- Can be prohibitory or mandatory.
- Injunctions are discretionary - damages may be awarded in lieu
Shelfer - 4 criteria for damages in lieu
HOWEVER: Coventry v Lawrence - discretion should not be fettered
Damages as a remedy - nominal vs substantial + compensatory/negotiating
May be nominal if no actual damage occurred
May alternatively be substantial.
Different ways to quantify
Compensatory – ‘put the claimant in the same position she would have been in had she not sustained the wrong’
Negotiating/Licence Fee damages – pay a reasonable sum for the fact they committed the tort
Bocardo
What is private nuisance?
Where the defendant has interfered with a particular proprietary right the claimant possessed, eg an easement
Williams:
- Actionable interference
- Title to the easement (substance, content, formalities)
- Do not need damage (Williams)
- Same remedies as in trespass available
What is an actionable interference? (B&Q)
B&Q v Liverpool and Lancashire Properties:
Substantial interference with the reasonable enjoyment of the easement
And it is reasonable for the easement holder to insist on the exercise of the entire easement
This is a generous test
Actionable interference examples - Saint v Jenner, Kingsgate, Dawes
Saint - Speed bumps placed on a road was not an actionable interference, but letting them fall into disrepair so that there were potholes everywhere, is.
Kingsgate - Right of way, and servient owner installed a number of gates.
Gate 1 - needed to push button, no actionable interference.
Gate 3 - gate marked the end of the farmland and beginning of the house, not an actionable interference.
Gate 2 - Was the third gate in 100m, this was an actionable interference, being annoying and unnecessary
Dawes v Adela - Installing lock on front door was not an actionable interference IF you provide everyone with the right to use an easement with a key.
However, postman could no longer get in, that was an actionable interference.
