This article provides a brief look at the offence of trespass to land within the Commonwealth of Australia. It is intended only as a starting point for further investigation and discussion, and is not in any way an authoritative treatise on the topic.
Trespass
Trespass is an offence under tort law / common law. Various forms of trespass exist, according to Halsbury's Laws of Australia these include:
- Trespass to the person
- Trespass to goods
- Trespass to land
In the case of the latter, this may also include trespass to land and subsoil, or to airspace. In reference to land Halsbury's Laws of Australia states:
Trespass may be committed not only by a direct intrusion on to the surface of land or into a building, but also by a direct interference with rights relating to land which permit the plaintiff to exclude others, such as the right to cut timber or the right of fishing. It is also trespass to intrude into the subsoil of the plaintiff's property, whether by excavation or tunnelling. The occupier of the surface of the land has substantial control over the subterranean space beneath the surface to a considerable depth. [410-495]
The publication also states:
Every unjustified entry directly by a person on land in the possession of another, which is carried out either intentionally or negligently, is an actionable trespass, even though no damage is done thereby. For example, a trespass occurs where a person wrongfully sets foot on or causes soil to fall on another's property, places a ladder against or drives nails into another's wall, breaks a fence on the property or removes a door. [415-480]
Hence, no damage is required for one to take action against trespassers. In relation to classification it also states:
The various torts derived from the action for trespass protect three distinct interests:
- bodily integrity;
- possession of goods;
- rights in the possession of land.
Protection of bodily integrity is provided by teh separate torts of battery, assault and wrongful false inprisonment. The possession of goods finds protection in the tort of trespass to goods. The right to possession of land is protected by the action for trespass to land. [415-320]
Defences to Trespass to Land
Halsbury's Laws of Australia states the following, and only the following, as lawful defences to trespass to land.
1. Consent
If you provide consent for somone to enter a property then it is not an act of trespass [415-525]. One needs to be aware that such consent may be provided or implied in a contract (written or otherwise).
2. Necessity
Only two claims of necessity are provided by the publication [415-530]:
- Preservation or protection of life, and
- Preservation of the property of the defendant or possibly of others.
3. Ejection and re-entry to land
- To prevent the commission of murder (any person), and
- To prevent a breach of the peace (only a police officer).
- Halsbury's Laws of Australia, Tort, Paragraph 415-320 to 415-550 (update from July 2011).