#7160 - Rights And Duties Associated With Land - Torts A

Land includes

• The surface of the land

• Fixtures (anything attached to or growing on the surface of the land)

• The ground beneath the land

• The airspace above the land

  • Sending something over land that does not touch the ground or fixtures is still trespass (Davies v Bennison)

  • The rights of the owner in the airspace above his/her land will extend to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it (Bernstein v Skyviews), including to the height necessary for any ordinary use of the land that the plaintiff may see fit to undertake in future (LJP Investments v Howard Chia)

  • Courts take a liberal view of what constitutes ordinary use (Graham v KD Morris: crane 62-ft above house found to interfere with normal use)

  • Flying a plane over a property in compliance with Air Navigation Regulations will not ground a claim in trespass: Wrongs Act 1958 (Vic) s 30

To be able to sue, P must

• Be entitled to exclusive possession of the land

  • Eg owner, tenant

  • A mere licence to be one land does not give someone a right to sue in trespass, because a licence does not confer a right to exclusive possession of the land unless stated in the terms of the licence(Vaughan v Shire of Benalla).

  • A person may have exclusive possession of the land if he/she has had actual possession of the land for an extended length of time and has done ‘acts of ownership’ can be found to have exclusive possession of the land and thus a right to sue in trespass to land against all except those with better title (Newington v Windeyer).

• Be in actual (or constructive) possession of the land

  • Actual possession

    • P will have actual possession of the land if he/she has physical control over the land and intends to exercise control over it (Wilson v Lombank).

  • Constructive possession

    • P will have constructive possession if

      • he/she had physical control of the good but no longer has physical control, but has not evinced an intention to give up possession of the land & no-one else had assumed possession of the land (eg out of the house or on holiday)

Persons with no standing to sue at the commencement of a trespass may still sue upon obtaining that standing it the trespass is continuing at that time (Konskier v Goodman).

Crossing land

• The slightest physical crossing of the boundary of the land in question will be a trespassory act (Lavender v Betts)

  • There will be no trespass to land without interference with a part of the land by some kind of entry onto it (Perera v Vandiyar)

• Things thrown across land or onto it will be trespassory acts (Davies v Bennison)

Continuing trespass

• A continuing trespass will arise in circumstances where, having committed the initial trespass, the person or object giving rise to the trespass continues to remain on the land (Konskier v Goodman).

Private nuisance is an unreasonable interference with the plaintiff’s use and enjoyment of land.

• Cf public nuisance.

P will have standing to sue if

• He/she has an exclusive right to possession of the land the nuisance is interfering with the enjoyment of (Hunter v Canary Wharf; Oldham v Lawson)

  • Persons licensed to occupy a property where exclusive possession is held by another may not sue in nuisance unless there are particular circumstances altering the status as licensee (eg acts of ownership?) (Oldham v Lawson). The payment of money due on the house and rates are not sufficient to alter this status (Oldham).

• He/she has a reversionary interest in the land and the nuisance causes damage that affects the reversion (Hunter v Canary Wharf).

Damages for nuisance will not be increased because more people are in possession of the property; the damages will instead have to be divided between them (Hunter v Canary Wharf).

Interests protected

Interests not protected

• Freedom from view: a landholder whose use and enjoyment of land is interfered with by a person looking at that land will not be able to bring an action in private nuisance against that person (Victoria Park Racing and Recreation Grounds Co Ltd v Taylor).

• Freedom from interference due to physical buildings: a landholder whose enjoyment of land is interfered with (eg prevention of something reaching the land/blocking of view) as a result of the actual physical presence of a nearby building will not have a claim in nuisance against those responsible for the building (Hunter v Canary Wharf: TV signals not reaching land).

  • However, if the interference is caused by something other than a building on the land of another, a court may hold there has been interference which is protected by law (Nor-Video Services v Ontario Hydro: Canadian case re TV signals)

Interference with P’s use and enjoyment of the land must be substantial and unreasonable. This may result from:

Physical damage to land. As long as physical damage is not trivial, the interference will be unreasonable (St Helens Smelting Co).

Discomfort or damage to sensibilities. The test for whether interference with amenity constitutes a nuisance was enunciated by in Walter v Selfe.

Is the inconvenience ‘more than fanciful, more than one of mere delicacy or fastidiousness, … an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?’ [applicable also to Australia despite this reference to English people]

In cases of damage to amenity, courts will be guided by the general principle that there should be a certain level of ‘give and take’; they will be less likely to grant wide remedies where parties have made no serious efforts to work out differences and respect each other’s rights (Jeffrey v Honig). [discuss]

However, the courts will consider a number of different indicia to decide whether the interference is unreasonable:

• Locality: the less appropriate an act is, given the locality, the more likely it is that the interference will be unreasonable (Sturges v Brigman)

  • However, even in localities where some level of discomfort is ordinary, there are limits to the kind of intensity of discomfort that a person is expected to endure (Polsue Alfieri [industrial area: ‘steam hammer’ quote]; Feiner v Domachuk [farming area: smell of mushroom compost])

• Intensity of discomfort: the greater the intensity of discomfort suffered by P, the more likely it is that the interference will be unreasonable (Feiner v Domachuk; Polsue Alfieri)

• Time/duration/frequency: where the interference is at inappropriate times of day, and/or of significant duration or frequency, it is more likely to be unreasonable (Seidler v Luna Park Reserve Trust).

• Practicality of avoiding interference: the less practicable it is for D not to do the interfering act, the less likely it is that the interference will be unreasonable (Clarey v Principal and Council of Women’s College).

• Malice: if the interfering act is attended by malice, it is more likely that the interference will be unreasonable; this may be so even if the act alone would not be considered unreasonable (Hollywood Silver Fox Farm v Emmett).

• Social utility/benefit: D may argue that the nuisance is being caused by acts that have a social benefit. However, P can correctly argue that the mere fact that there is benefit to the public is insufficient to justify what would otherwise be a nuisance (Munro v Southern Dairies Ltd).

  • D may counter that in Munro Sholl J indicated that it may be that the operations of a trade in a locality where the operation is essential will not be private nuisance.

• Abnormal sensitivity: D may argue that P’s use of the land was abnormally sensitive; if the alleged nuisance would not have interfered with the normal use of the land, D’s interference would not be considered unreasonable (Robinson v Kilvert).

  • Note that if P can show...