INTRODUCTION
2.1 In the absence of the permission of the owner, the civil and criminal law in New South Wales both prohibit a general right of entry by a person onto neighbouring property, regardless of the purpose of the entry.1 However, in modern crowded cities and suburban areas encroachment or entry onto a neighbour’s land is sometimes necessary and difficult to avoid. Unless a specific right to enter the adjoining land exists at law or has been created, for instance by easement or licence, entry will constitute trespass. A further result where entry is refused may be the deterioration of the property with consequential financial loss for the owner. It could also be argued that such deterioration is contrary to the public interest of having residential and commercial premises properly maintained.2
TRESPASS
Civil
2.2 A trespass will occur whenever there is interference with another’s exclusive possession of property, regardless of whether any damage has been done. As Fleming observes,3 trespass originated as a remedy for forcible breach of the King’s peace, aimed against acts of intentional aggression. The proprietary aspect of this tort became more dominant when it was later used for the purpose of settling boundary disputes, and preventing the acquisition of easements by prescriptive use. Consequently civil trespass came to be associated with preserving the rights and privileges of private property owners.4
2.3 The principles associated with trespass have been recently reaffirmed by the High Court in Australia in Plenty v Dillon.5 The High Court has held that without the consent of the person in possession, or entitled to possession of land, and without any implied leave or licence, the common law does not entitle anyone to go onto another person’s land.
2.4 Remedies are available when a trespass occurs. These remedies include injunctions to prevent actual or threatened encroachment on the property, and damages. Damages will be awarded in vindication of a landowner’s right to exclude a trespasser from the property, regardless of whether any loss has been suffered by the owner (or occupier).6 Compensation will also be awarded where the trespass has caused actual damage to the land itself and/or buildings on the land.
Criminal
2.5 Where there was no evidence that a person accused of trespass had any felonious intent, the criminal law was not traditionally concerned with trespass to land. The eviction of trespassers was generally left to civil remedies, civil trespass being actionable without the need for the plaintiff to establish actual damage.7 Now however, all Australian jurisdictions have laws creating a number of trespass offences.
2.6 Previously in New South Wales, the Summary Offences Act 1970 contained a basic trespass offence, punishable by a fine of up to $200, or three months imprisonment.8 After the repeal of the Summary Offences Act 1970 in 1979, this basic trespass offence was essentially incorporated into the Inclosed Lands Protection Act 1901. “Inclosed land” is defined by s 3 as:
any lands, either public or private, inclosed or surrounded with any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure.
2.7 Section 4 of the Act contains the offence provision and provides as follows:
(1) Any person who, without lawful excuse, enters into the inclosed lands of any other person, without the consent of the owner or occupier thereof, or the person apparently in charge of the same or remains upon the inclosed lands of another person after being requested by the owner or occupier or person apparently in charge of those lands to leave those lands, shall be liable to a penalty not exceeding $100, and the proof of such lawful excuse shall be upon the defendant in any such case.
2.8 An important difference between this legislation and the Summary Offences Act 1970, is that the Inclosed Lands Protection Act requires a defence of “lawful excuse”, whereas previously a defence of “reasonable cause” was the test.9 The Inclosed Lands Protection Act 1901 seeks to provide a fairly comprehensive statement of the criminal law of trespass.
2.9 To avoid the problems associated with civil or criminal trespass, various methods of legitimising access exist. Often an informal means of access will arise through cooperation between neighbours. However, such cooperation is not always forthcoming and permission is only personal, not attaching to the land or binding successive purchasers of the property.
EASEMENTS AND LICENCES
Express rights
2.10 A landowner may grant an adjacent landowner an express right of entry onto his or her property in the form of an easement. Such an easement would “run with the land” and bind successors in title of both parties. If there is a valid easement allowing access, the law not only recognises that right, but the ancillary rights that are necessarily implied in such an easement. In Jones v Pritchard Parker J said:
The grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Thus the grantee of an easement for a watercourse through his neighbour’s land may, when reasonably necessary, enter his neighbour’s land for the purpose of repairing, and may repair, such watercourse.10
This principle has been recently upheld by the New South Wales Court of Appeal in Hemmes Hermitage Pty Ltd v Abdurahman,11 where it was held that at common law, rights of deviation or repair of an easement including a right of footway were implied in order to make the grant of easement effective.
2.11 In New South Wales an easement may be expressly granted or reserved pursuant to s 46-47 of the Real Property Act 1900 (NSW) (hereafter referred to as the RPA) and s 88 of the Conveyancing Act 1919 (NSW). In some cases, although there may have been a failure to record the easement on the Certificate of Title, the courts have held that such an omission will not necessarily extinguish the easement,12 on the basis that it constitutes an exception under s 42(b) of the RPA.13
2.12 An express right of access to neighbouring land may also arise by way of licence or contract. A recent example of such a licence is found in Meriton Apartments Pty Ltd v Baulderstone Hornibrook Pty Ltd,14 where the plaintiff landowner allowed the defendant landowner to encroach onto its property for the purpose of constructing a building. The authority was revoked when the relationship between the parties deteriorated, causing problems for the defendant landowner who claimed that the construction of the building could only be completed (without incurring unreasonable additional expense) by entering on the plaintiff landowner’s property.
2.13 This case illustrates the nature of the differences between a licence and an easement. A licence is merely a right to occupy land, conferring no interest in that land to the occupier, generally arising in a “one-off situation” and not “running with the land” or binding successors in title.15 Further, whereas an easement has to be formally created,16 a licence can be created without legal formalities (for instance, by way of letter). There is no doubt that the granting of a licence to a landowner to enter upon land will facilitate entry; however, the licensee landowner should be aware of the limitations of such permission, and seek to obtain a more binding arrangement in appropriate cases.
Implied rights
2.14 Easements can also arise by implication. For example, an easement of necessity, is an implied reservation in favour of the land retained by the grantor over the land conveyed, where such easements that are “necessary” for the use of the land are retained.17 One instance is when land becomes “landlocked” following the sale of surrounding property. If an easement of access over the surrounding properties did not exist, the land could not be used at all.
STATUTORY RIGHTS OF ACCESS
2.15 DP 22 only considered the problems surrounding access to neighbouring land from the perspective of a private individual. The Crown, and statutory authorities such as the Electricity Commission and the Water Board are authorised pursuant to their respective Acts to enter any land for the purpose of carrying out their functions.18 In some cases this entry may be without notice and by force.19
A CHANGE OF DIRECTION
2.16 Recent court decisions in New South Wales have expressed dissatisfaction with the existing law relating to access to an adjoining property. Such decisions, whilst careful to avoid giving permission to use the land of another simply because it does not cause any significant damage, have suggested that temporary encroachment subject to the payment of compensation may provide a solution to the problem in certain circumstances.20 Hodgson J in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd21 has even stated that where an offer of a sum of money is made by the landowner seeking to build, which sum bears a relationship to the saving the landowner will make by using the adjoining land, and the adjoining landowner refuses that offer, there may be circumstances in which a court might find that the conduct of the adjoining landowner is unreasonable and refuse to grant an injunction preventing further access.
2.17 This change in judicial attitude to conflicting private property rights has also occurred in the United Kingdom. The following comments by Scott J22 reveal a frustration with the constraints of the existing common law, and the acknowledgment of benefits in giving the court power to allow, in certain circumstances, use to be made by developers of the land of neighbours.
It would in many respects be convenient if the court had power, in order to enable property developments to be expeditiously and economically completed, to allow, on proper commercial terms, some use to be made by the developers of the land of neighbours... There is a sense in which the grant of an injunction against trespass enables a landowner to behave like a dog in a manger... It would be possible for the law to be that the court should not grant an injunction to restrain a trifling trespass if it were shown to be reasonable and sensible that the trespass be allowed to continue for a limited period upon payment of substantial and proper damages.
2.18 This decision and others,23 recognise that there is merit in allowing temporary access to a neighbouring property without attracting penalties for trespass. A scheme of compulsory licences allowing encroachment at a proper fee is a further suggestion recently proposed in New South Wales to minimise the problems that are occurring.24
2.19 By favouring and protecting the right of a landowner to deny entry, even in the most unreasonable circumstances, the law would seem to operate against the public interest, where those who wish to develop sites in city25 and suburban areas are prevented from doing so. Where landowners cannot arrive at some arrangement between themselves, the law should be able to provide a remedy for the landowner seeking access, but at the same time balancing this with the interests and rights of the landowner over whose land access is sought. The judicial attitudes referred to here reflect a growing trend away from maintaining the inflexible rights previously associated with land ownership, a trend that the Commission believes should be supported by legislation.
FOOTNOTES
1. Some cases such as Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 and R v Bacon [1977] 2 NSWLR 507, discuss the possibility that in certain circumstances necessity may be a lawful excuse to trespass.
2. An illustration of the concerns of the Commission is found in John Trenberth Ltd v National Westminster Bank Ltd, (1979) 39 P & CR at 104.
3. J G. Fleming The Law of Torts (8th ed, The Law Book Company Ltd, Sydney, 1992) at 39.
4. An example of the nature of this tort is found in the judgement of Lord Camden L.C.J in Entick v Carrington (1765) 95 ER 807 at 817.
5. (1991) 171 CLR 635.
6. Plenty v Dillon (1991) 171 CLR 635.
7. D Brown, D Farrier, D Neal and D Weisbrot Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (The Federation Press, Sydney, 1990) at 1049.
8. Summary Offences Act 1970 (NSW) s 50(1).
9. Summary Offences Act 1970 (NSW) s 50. For a discussion of “lawful excuse” see Darcey v Pre-Term Foundation, and for “reasonable excuse” see Petersen v Ford [1975] 1 NSWLR 455.
10. (1908) 1 Ch 630 at 638.
11. (1991) 22 NSWLR 343 at 355-356 per Priestley J.
12. Auerbach v Beck (1985) 6 NSWLR 424 at 446; Margil Pty Ltd v Stegul Pastoral Pty Ltd (1984) 2 NSWLR 1 at 11.
13. Until recently, the meaning of “omission” was “something which was not there because something that should have been done, was not done”. See Auerbach v Beck (1985) 6 NSWLR 424 at 446 and Margil Pty Ltd v Stegul Pastoral Pty Ltd (1984) 2 NSWLR 1 at 11. The Court of Appeal decision in Dobbie v Davidson (1991) 23 NSWLR 625, has chosen not to follow this definition and has held that “omission” for the purposes of s 42(b) of the RPA simply means “something not there”.
14. (unreported) Supreme Court, NSW, 9 March 1992, Young J, ED 4940/91.
15. In a variety of circumstances a licence may, by the application of equitable principles, become irrevocable either indefinitely or for some specific period, and may even, for some purposes at least, give rise to an interest in land: see Plimmer v Mayor, Councillors, and Citizens of the City of Wellington (1884) LR 9 AC 609.
16. See paragraph 2.14.
17. P Butt Land Law (2nd ed, The Law Book Company Ltd, Sydney, 1988) para 1628.
18. See s 30-40 of the Sydney Electricity Act 1990 (NSW) and s 15-16 of the Water Board Act 1987 (NSW).
19. Water Board Act 1987 (NSW) s 16(4). The Commission is unaware of any reason why the Crown and its agents, where they are not specifically given a statutory right of entry, or where they are the owners or in possession of the land over which access is sought, should not also be bound by the legislation.
20. See Dupen & Anor v K W Semken Pty Limited & Ors (unreported) Supreme Court, NSW, 21 May 1986, Bryson J, ED 5126/86; LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd, (1991) 24 NSWLR 490; Bendal Pty Ltd v Mirvac Projects Pty Ltd (1991) 23 NSWLR 464; and Meriton Apartments Pty Ltd v Baulderstone Hornibrook Pty Ltd (unreported) Supreme Court, NSW, 9 March 1992, Young J, ED 4940/91.
21. (1991) 24 NSWLR 497.
22. Anchor Brewhouse Developments Limited & Ors v Berkley House (Docklands Developments) Limited (1987) 38 BLR at 87.
23. For example, see LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (unreported) Supreme Court, NSW, 18 July 1989, Hodgson J, ED 0003/89 at 15-16.
24. Meriton Apartments Pty Ltd v Baulderstone Hornibrook Pty Ltd, transcript at 13.
25. Meriton Apartments Pty Ltd v Baulderstone Hornibrook Pty Ltd (unreported) Supreme Court, NSW, 9 March 1992, Young J, ED 4940/91, transcript at 13.
