Loading presentation...

Present Remotely

Send the link below via email or IM

Copy

Present to your audience

Start remote presentation

  • Invited audience members will follow you as you navigate and present
  • People invited to a presentation do not need a Prezi account
  • This link expires 10 minutes after you close the presentation
  • A maximum of 30 users can follow your presentation
  • Learn more about this feature in our knowledge base article

Do you really want to delete this prezi?

Neither you, nor the coeditors you shared it with will be able to recover it again.

DeleteCancel

Make your likes visible on Facebook?

Connect your Facebook account to Prezi and let your likes appear on your timeline.
You can change this under Settings & Account at any time.

No, thanks

Actions Involving Land

No description
by

Olivia Wallace

on 24 October 2014

Comments (0)

Please log in to add your comment.

Report abuse

Transcript of Actions Involving Land

ISSUES
WHAT IS LAND?
Actions Involving Land
Thank you!
- Trespass & Nuisance
Alex
is a psychologist who runs a private therapy practice out of the front room of her home - patients thrash out concerns out on instruments
Alex
Bert
is an artist who runs weekend art and meditation workshops in his beautiful rear garden
Chris
has three young kids who love to play on their trampoline. However their ball they play with constantly goes into Bert's property
Chris
Class Quiz
Trespass &
Nuisance Questions

1. What are the four elements of trespass to land?
2. When will a revoked licence take effect?
3. Name one remedy to trespass.
4. What are the elements of nuisance?
5. Give an example of a public nuisance and give an example of a private.
6. Name a remedy for nuisance?

Trespass
Elements
Nuisance
1. Voluntary
2. Intentional (negligent)
3. Direct physical interference
4. Plaintiff exclusive possession to land

1. An unreasonable interference by the defendant
2. With the plaintiff’s use or enjoyment of real property
3. Possession of land
Bert
TITLE TO SUE?
Newington v Windeyer
states "any person who have exclusive possession to land... is entitled to maintain an action in trespass"
The facts state that each party is a landowner and therefore, is entitled to sue
Parties
Basic Issues:
Issue 2:
Noise caused by Alex's Session Disrupting Bert's Sessions
Issue 1:
Constant noise of Chris's children on the Trampoline
ELEMENTS
: Sedleight Denfield v O’Callaghan
being:

1. Possession of land (title to sue)
Bert has possession
2. Defendants conduct, must have
Alex's conduct of thrashing on guitars, keyboards and drums is the cause
3. Caused serious and unreasonable interference
4. With the plaintiffs use or enjoyment of their land
Issue 5:
Bert's constant threat of flying balls from Chris's Children
Issue:
Trespass or Nuisance?

Elements for trespass:
Issue 3:

Chris's Children knocking easel and ruining the oil painting
Elements of trespass:

1. Actions must be voluntary and not involuntary:
Gibbs J in Public Transport Commission of NSW v Perry
(1977).

2. Actions must be intentional (negligent):
Public Transport Commission of NSW v Perry
(1977)
.
"One of their favourite games involves kicking and throwing a ball around while they jump”

3. Directness:
Southport Corp v Esso Petroleum Co Ltd
[1954]
“The children’s ball comes over the fence and knocks down Bert’s easel (ruining the oil painting he was in the middle of”

4. With plaintiff’s exclusive possession of land:
Newington v Windeyer
(1985)
“Alex, Bert and Chris are neighbouring landowners”
Issue 6:

Bert stabbing ball and Bert shouting at Chris's kids
ASSAULT?
Issue 4:

Chris's children's ball going over fence after told not to go into Bert's property and Elvis retrieving it
Issue 7:

Bert shouting at Chris's children and nearly catching them
For a cause of action in trespass Bert must prove:
1. Actions were voluntary and not involuntary
2. Actions must be intentional (negligent)
3. Directness
4. With plaintiff’s exclusive possession of land

On the facts these elements are sufficiently made out.

Issue 8:
Bert stacking building materials and causing channel from storm water across Alex's property
Any direct threat by a person which intentionally creates in another an apprehension of imminent, harmful or offence contact

Objective test
– would a
reasonable
person in the plaintiff’s position have been apprehensive of imminent contact?
ELEMENTS:
1. Direct threat (by words or actions)
2. Which intentionally (or negligently) creates in the P
3. a reasonable apprehension of imminent harmful/offensive contact
4. Without lawful justification

Conditional threats: Need to look at the whole of the circumstances of the defendant’s conduct Rozsa v Samuels
And as held in Zanker v Vartzokas: the threat can be one of future imminence as the children knew that if their toys, or they, go over the fence again they would be destroyed
Bert has a knife and stabs the ball whilst making the conditional threat, this may be enough to constitute an assault.

Elements:

1. D must intentionally or negligently
-
National Coal Board v Evans [1951]
2. Directly interfere with
- e.g. Hutchins v Maughan
3. P’s possession of the goods
*Possession: actual or constructive
4. Without lawful justification
Possible defense of Bert protecting own property (must be reasonable)

Conversion: Where defendant intentionally, and without lawful justification, deals with goods in a manner repugnant to the rights of the owner or other person entitled to possession

Must be positive act by the D
Prima facie, it seems as though Bert has trespassed to the goods.
*
Actionable per se

SUB-ISSUE: TRESPASS TO GOODS Bert stabbing the children's balls

1. Direct threat (by words or actions)

2. Which intentionally (or negligently) creates in the P

3. A reasonable apprehension of imminent harmful/offensive contact

4. Without lawful justification
- possible defense of defence of own property at CL.


Bernstein of Leigh (Baron) v Skyviews
- "
The rights of the person in possession of land extend only as far up into the air or as far down into the subsoil as is reasonably necessary for the use and enjoyment of the land."
There are no issues of what constitutes land in this problem question

Give and Take - Reasonableness?
Conclusion: stronger case for actions being held reasonable
from the rule in
Bamford v Turnley
notions of "give and take"
Hargrave v Goldman:


“an unlawful interference with a person’s use or enjoyment of land, or some right over it in connexion with it”.
ELEMENTS
: Sedleight Denfield v O’Callaghan
being:

1. Possession of land (title to sue)
Bert has possession
2. Defendants conduct, must have
Children screaming and being noisy
3. Caused serious and unreasonable interference
4. With the plaintiffs use or enjoyment of their land
(Bamford v Turnley)


Nature of the physical interference
Trespass may be committed without the defendant physically entering the land of the plaintiff so long as the defendant directly causes some object to come into contact with the property →
Watson v Cowan
[1959]

The children therefore did not have to physically enter the land themselves, the throwing of the ball was enough.
Issue:
As there is no revocation effectively communicated to the children BEFORE they throw the ball over and knock the easel down does this make them not liable for the damage?
“The implied license was limited to a particular purpose … It was wholly outside any implied licence."
TCN v Channel Nine Pty Ltd v Anning
(2002)

The elements of trespass have been made out and therefore Chris's children are liable.



Trespass by a license
Issue: Has Bert effectively revoked Elvis’s license to enter his land and retrieve the ball?

“The licensee must first have notice that the license is revoked by the authorised person… requires a communication to the licensee ... which would be understood as a revocation by the reasonable person …”
as per
Wilson v NSW
(2010).





On the facts the reasonable person in that situation would understand Bert’s communication as a revocation and the children therefore have sufficient notice that they are not to be on Bert’s land.
Does this constitute a trespass or nuisance?
Issue of directness - does this lead to trespass or nuisance?
Cases:
Southport Corp v Esso Petroleum
and
Gregory v Piper

Private or Public Nuisance?
Elements fulfilled ?
Possible remedies?
Quiz Answers

LAW: The case Hargrave v Goldman states “private nuisance is an unlawful interference with a person’s use or enjoyment of land, or some right over it in connexion with it”.
The elements of private nuisance are derive from Sedleight Denfield v O’Callaghan which are:
1. Possession of land – or title to sue
2. Defendants conduct, must have
3. Caused serious and unreasonable interference
4. With the plaintiffs use or enjoyment of their land
Issue: Does this constitute nuisance?
Trespass
1. Voluntary
2. Intentional (negligent)
3. Direct physical interference
4. Plaintiff exclusive possession to land
Nuisance
1. An unreasonable interference by the defendant
2. With the plaintiff’s use or enjoyment of real property
3. Possession of land
1.
4.
2.
A revoked licence will take effect when “The licensee must first have notice that the licence is revoked by the authorised person… requires a communication to the licensee ... which would be understood as a revocation by the reasonable person …” as per → Wilson v NSW (2010).
3.
Remedy to trespass is damages
5.
6.
A remedy for nuisance is an injunction
Public: Typical examples of public nuisances are interference with a public space, such as obstruction of a highway (Walsh v Ervin) or obstructing a waterway (York Bros (Trading) Pty Ltd v Commissioner of Main Roads)
Private: Annoyance, inconvenience, discomfort or interference with property rights → Lemmon v Webb
Full transcript