Trespass to land

This element covers the law in

relation to the land-based tort,
trespass to land.
Introduction to trespass to land

In this topic, you have already studied three land-based torts, private and public
nuisance, and Rylands v Fletcher. Trespass to land is a fourth, land-based tort, that is
also concerned with the protection of property rights. It involves unlawful presence on
somebody else’s land. The interference must be intentional and direct, and an action in
trespass to land is actionable per se (ie without proof of damage).

Task: What do you think could be examples of intentional direct

interference with another’s land that could amount to trespass to land?
Trespass to land preliminary
Prior to learning about the elements that make up trespass to land, one preliminary must
be considered first:

1. Who can sue in trespass to land?

The claimant must have a legal interest in the land, namely a possessionary or
proprietary interest ie they must own the land or otherwise be in possession of it.

However, in situations where a trespasser possesses demised land, the claimant would
be the tenant or licensee in possession, rather than the landowner. The landowner would
only have a right to sue in trespass to land, where there would be damage to their
interest beyond the term of the lease/licence.

It is also important to note that unlike the other land-based torts, trespass to land is
actionable per se, meaning it does not require any actual damage. In such instances,
where there is no actual damage, the harm that will be compensated is the unjustifiable
interference with the claimant’s land by the defendant.
Elements of trespass to land

Once it is satisfied that the claimant can sue in trespass to land, there are just two
elements to consider:

Trespass 1. Direct and

to land physical 2. Intention
elements interference

We will look at each element in turn.

First element: direct and physical interference

Trespass 1. Direct and

to land physical 2. Intention
elements interference

In contrast to private nuisance which was concerned with indirect interference with the
claimant’s land, trespass to land is concerned with direct interference with the claimant’s
land. Land in this context includes anything under the land, built on the land and the
airspace above it.

In addition to the interference having to be direct, it must also be physical.

Example of direct physical interference:
If I pile a large compost heap on my neighbour’s land because I have run
out of space on my land, this would be direct physical interference and
classed as trespass. This is a direct action with a physical consequence.
Whereas if I pile a large compost heap on my own land and it starts to
smell to the extent my neighbour can smell it, this would be indirect
interference and could constitute a private nuisance if, over a period of
time, it causes damage.
Physical interference can be divided into four categories:

Category Examples
1. Entering the claimant’s land Walking across someone’s private garden without permission.

2. Remaining on the Tenant staying in rented property after the lease has expired.
claimant’s land when
permission has been revoked

3. Doing something that is not Entering an area which says ‘staff only’ when you are not staff;
permitted on the claimant’s pulling down or removing anything (ie damaging anything) which is
land attached to the land without permission.

4. Placing objects on the Fly-tipping; deliberately throwing your tree branches onto
claimant’s land without someone else’s property; parking your car on your neighbour’s
permission driveway without consent.
Second element: intention

Trespass 1. Direct and

to land physical 2. Intention
elements interference

The defendant must intend the direct action that results in the trespass but need not
intend to trespass. For example, if you voluntarily walk over a private field, you have
trespassed, even if you did so accidentally or if you voluntarily hit a cricket ball and it
accidently goes into the next door neighbour’s garden.

The intention can be implied. See the case example on the next slide.
 Key case

League Against Cruel Sports v Scott [1986] Q.B. 240

Facts: The claimant owned unfenced areas of Exmoor on which there

were wild deer sanctuaries. On seven occasions, over 1982 and 1983,
hunting dogs (hounds) strayed onto the claimant’s land. There was no
actual intention by the defendant to allow the dogs onto the claimant’s
land.

Held: there was an implied intention to trespass because the defendant

knew that there was a real risk of the dogs entering the claimant’s land.
By persistently hunting close to prohibited land (where hunting was not
allowed) in circumstances where it was impossible to prevent trespass
by the dogs, this amounted to an intention to trespass.
Defences
There are three defences to trespass to land:

1. Permission (consent): where the defendant has express or implied permission (or a
licence) to enter or remain on the land. However, to be a valid defence, the defendant
must not exceed the boundaries of their permission.

2. Legal authority: for example, under statute the police have authority to enter
premises and carry out arrests. However, if they commit a wrongful act on the
premises, then their original entry becomes a trespass (known as trespass ab initio).

3. Necessity: where the trespass was necessary to protect either a public or private
interest.

For example, in Dewey v White [1827] 2 WLUK 115 the necessity defence was
successful where firemen destroyed the claimant’s chimney in order to prevent the
spread of fire to further properties (protecting the public interest). In Esso Petroleum Co
Ltd v Southport Corp [1956] A.C. 218 the ship’s captain discharged oil into the sea,
polluting the shoreline. The defence of necessity was successful as he did this to prevent
the ship sinking and to save the lives of the crew.
Remedies
4. Recovery
1. Damages 2. Injunction 3. Re-entry 5. Mesne profits
of land

Damages and/or injunctions are the primary remedies in trespass to land. Damages
cover the costs of harm already suffered by the direct interference. Injunctions may be
awarded where there is a continuing trespass or where a trespasser threatens to repeat
the trespass, but for the latter, the trespass must be serious in nature.

The self-help remedy of re-entry might be available where the owner/occupier has been
excluded from the land. Only reasonable force can be used to re-enter. Alternatively, the
owner/occupier can seek a court order for the defendant to be removed (an action for the
recovery of land).

The claimant might bring an action for mesne profits to claim money from a defendant
who wrongfully occupied the land and made a profit or saved expenditure in doing so, eg
where a tenant fails to leave at the end of their tenancy and stops paying rent.

A claim in trespass to land must be brought within six years from the date on which the
cause of action accrued (s2 Limitation Act 1980).
Examples of trespass to land
Squatting is probably the most obvious example of trespass to land, but there are plenty
of other examples, like the straying dogs in League Against Cruel Sports. Here are some
further examples:
Case Facts and outcome
Kelsen v Imperial Tobacco Co The claimant rented a shop, and sought an injunction requiring the
[1957] 2 Q.B. 334 defendant to remove an advertisement sign that projected eight
inches into the airspace above his shop.
Held: the invasion of the airspace above the claimant’s shop by
the advertisement sign amounted to trespass to land as it was
over the boundary line of the properties.
Laiqat v Majid [2005] EWHC The defendant installed an extractor fan on their property that
1305 (QB) projected into the claimant’s garden by 750mm, at a height of
4.5m. The projection did not interfere with the claimant’s use of her
garden. Held: the fan was a permanent intrusion into the
claimant’s airspace and constituted a trespass. It did not matter
that it did not interfere with any normal activity conducted on the
claimant’s garden. The law was clear that interference with
airspace above another person’s land was trespass.
However, do note that under s76 Civil Aviation Act 1982, flying an aircraft at a reasonable height
above someone’s property, does not constitute a trespass. In Lord Bernstein v Skyviews and
General Ltd [1978] QB 479, a claimant’s claim in trespass to land was rejected whereby the
defendant used a light aircraft to take aerial photographs of the claimant’s property. The activity
took place above the height as is necessary for the ordinary use and enjoyment of the claimant’s
land and the structures upon it.

The case examples provided so far deal with interference to the claimant’s airspace. However,
what about interference to the ground under the claimant’s land? The key case on the next slide
dealt with this question.
 Key case
Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35

Facts: part of an oilfield lay under the claimant’s land. The defendant
had a licence from the Crown to obtain petrol from the oilfield on
neighbouring land. Without acquiring a licence from the claimant, the
defendant drilled wells under the claimant’s land at depths of between
800ft to 2,900ft. The claimant suffered no physical harm to their land nor
any interference with their use or enjoyment of the land. The court
considered how much of the substrata (land beneath the ground) was
owned by the freeholder.

Held: the wells constituted a trespass. There had to be some stopping

point, where one reached the point at which physical features such as
pressure and temperature rendered the concept of the strata belonging
to anybody absurd. But the wells in this case were far from being so
deep as to reach the point of absurdity; the fact that the strata could be
worked upon at the depths in question pointed to the opposite
conclusion. The claimant was awarded £1,000 in damages.
However, do note that following this case, the Infrastructure Act 2015 has been passed. This allows
oil, gas and geothermal companies an automatic right of access to land 300m or lower for the
purposes of exploiting petroleum or deep geothermal energy and the surface landowners are
unable to object. The companies still have to obtain other permissions, such as planning and
environmental permits.
Trespass to land
Summary

• To bring a claim in trespass to land, the claimant must own the land or otherwise
be in possession of it. Where a trespasser possesses demised land, the tenant or
licensee in possession will be the claimant.
• Trespass to land is actionable per se.
• Interference with the claimant’s land must be direct and physical.
• The defendant must intend the direct action that results in the trespass but need
not intend to trespass. The intention can be implied.
• The defences available in trespass to land are (1) permission; (2) legal authority;
and (3) necessity.
• The remedies available in trespass to land are (1) damages (2) injunctions (3) re-
entry (4) recovery of land and (5) mesne profits.
• Examples of trespass to land include intrusion to the airspace above the
claimant’s land and intrusion to the claimant’s land beneath the ground.