Trespass to Land
Trespass to Land Table of Contents What is Trespass? In Queensland, trespass refers to the interference with another person’s possession
This refers to an act of the defendant (i.e. the defendant’s interference) causing material damage to the plaintiff’s property which then affects the plaintiff’s use and enjoyment of the property (e.g. one neighbour causing flooding, fire, ground vibrations or encroachment of some sort on another neighbour’s land).2
In order to establish a claim for private nuisance, the plaintiff will typically have to establish the following elements:
For a cause of action in nuisance to be enforceable, the ostensible interference with the enjoyment of land must be substantial and unreasonable.
The following are examples of interferences that may be actionable depending on the severity of the interference:
The above list is not exhaustive.
“Where husband and wife reside in the same house and it is the wife who is the owner, the husband is legally speaking only a licensee and cannot sue in Nuisance in the absence of some particular circumstances which alter his status. Circumstances such as the payment of money due by the owner on the house and the payment of rates (as in this case) …would be insufficient to alter the status.”As a result, only the wife was awarded damages.
If you have been accused of private of public nuisance, there are several defences that may be available to you depending on the circumstances of the claim against you. Some examples of defences to nuisance claims include:
It is a defence to show that the defendant was reasonable in his or her action or behaviour. However, the onus is on the defendant to show that the act causing the interference was reasonable.19
It is a defence to show that the act engaged in that caused the interference was engaged in with the plaintiff’s consent. Consent can either be express or implied.20
The above list is not exhaustive, and other defences may be available depending on the circumstances of each individual matter. Accordingly, if you have been accused of nuisance, you should seek immediate legal advice to explore your legal options in order to limit any liability you might have.
If you have been the victim of nuisance, there are several remedies that may be available to you depending on the circumstances of your claim:
The primary remedy for nuisance are damages. A plaintiff will usually seek damages where the interference caused physical harm or where there has been an interference with lateral support (i.e. where land has been adversely affected, such as the underground structure being weakened). Damages are also awarded for non-material interferences. Damages can be awarded for actual loss suffered up to the date of judgement, but not for prospective loss.
An injunction is a Court order preventing a party from doing something. Injunctions are discretionary remedies, which means that they may or may not be granted depending on a variety of factors, including whether damages would be an adequate remedy.
A person may be entitled to enter the land of another or take other self-help measures, upon giving of due notice, to abate a nuisance which substantially interferes with the enjoyment of one’s land (e.g. a person may lawfully retake goods which have been wrongfully taken out of the person’s possession).
If your property rights are being interfered with in any way, or you have been accused of interfering with another person’s interest that has caused them to bring a nuisance claim against you, our solicitors are here to help.
Contact Gibbs Wright Litigation Lawyers today about a nuisance matter for a free and confidential consultation regarding your legal rights and options.
[1] Gartner v Kidman (1962) 108 CLR 12 at 22; Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Ltd [2017] QSC 26.
[2] Corbett v Pallas [1995] Aust Torts Reports 81-329.
[3] Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170.
[4] Haddon v Lynch [1911] VLR 231; McKenzie v Powley [1916] SALR 1; Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291.
[5] Bank of New Zealand v Greenwood [1984] 1 NZLR 525.
[6] Kidman v Page [1959] Qd R 53; Aldridge v JO Clough & Son Pty Ltd (unreported).
[7] Field v Soccer Association (SA) [1953] SASR 224.
[8] Evans v Finn (1904) 4 SR (NSW) 297.
[9] Travis v Vanderloos (1984) 54 LGRA 268; Corbett v Pallas (1995) 86 LGERA 312.
[10] Young v Wheeler [1987] Aust Tort Report 80-126 (NSWCR); Barton v Chhibber [1988] Aust Torts Reports (VSC).
[11] West v Nicholas (1915) 17 WALR 49 (FC).
[12] Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482.
[13] Alamdo Holdings Pty Ltd v Bankstown City Council [2003] NSWSC 1074; Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Ltd [2017] QSC 026.
[14] AG v PYA Quarries Ltd [1957] 2 QB 169.
[15] AG v PYA Quarries Ltd [1957] 2 QB 169.
[16] Benjamin v Storr (1874) LR 9 CP 400.
[17] Walsh v Ervin [1952] VLR 361.
[18] Foxlee v Proserpine Shire River Improvement Trust [1990] 1 Qd R 111.
[19] Corbett v Pallas [1995] ATR 81-329.
[20] Pwllbach Colliery Co Ltd v Woodman [1915] AC 63; Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476.
Trespass to Land Table of Contents What is Trespass? In Queensland, trespass refers to the interference with another person’s possession
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