Access to the Western Treatment Plant

To: birdingaus mailing list <>
Subject: Access to the Western Treatment Plant
From: Chris Gregory <>
Date: Wed, 7 Dec 2011 00:08:02 +1100
Trespass is interesting and comes under Common Law Tort ie: a civil action
not criminal. I am no lawyer but there have been a couple of issues
regarding trespass recently including the Mt Molloy BBBQ.
FYI here is Wiki on the subject - make of it what you will!

*Trespass to land* is a common law <>
tort <> that is committed when an
individual or the object of an individual intentionally (or in
Australia<>negligently) enters
the land of another without a lawful
excuse <>. Trespass to land is *actionable
per se*. Thus, the party whose land is entered upon may sue even if no
actual harm is done.[*citation
*] In some jurisdictions, this rule may also apply to entry upon public
land having restricted access. A court may order payment of
damages<>or an
injunction <> to remedy the tort.

By law, Trespass for mesne profits is a suit against someone who has been
ejected from property that did not belong to them. The suit is for recovery
of damages the trespasser caused to the property and for any profits he or
she may have made while in possession of that property.

For a trespass to be actionable, the
tortfeasor<>must voluntarily go
to a specific location, but need not be aware that he
entered the property of a particular person. If A forces B against his or
her will onto C's land, C will not have action in trespass against B,
because B's actions were involuntary. C may instead claim against A.
Furthermore, if B is deceived by A as to the ownership or boundaries of C's
land, A may be jointly liable with B for B's trespass.

In most jurisdictions, if a person were to accidentally enter onto private
property, there would be no trespass, because the person did not intend any
violation. However, in Australia,
negligence<>may substitute the
requirement for intent. Thus in that country, if a
person trips and rolls upon the land of another, for want of due care, he
or she would likely be found to have committed trespass.

If a trespass is actionable and no action is taken within reasonable or
prescribed time limits, the land owner may forever lose the right to seek a
remedy, and may even forfeit certain property rights. *See Adverse
possession <>* and
Easement<>by prescription.

Trespass may also arise upon the
easement<>of one person upon the
land of another. For example, if A grants B a right
to pass freely across A's land, then A would trespass upon B's easement by
erecting a locked gate or otherwise blocking B's rightful access.

The maxim "cuius est solum, eius est usque ad coelum et ad infernos"
(whoever owns the land owns it all the way to the heavens and to hell) is
said to apply, however that has been limited by practical considerations.
For example, aerial trespass is limited to airspace which might be used
(therefore aeroplanes cannot be sued). Landowners may not put up structures
to prevent 
courts have been more lenient with underground trespass. The Kentucky
Court of Appeal in Edwards v
24 SW 2d 619 seems to affirm the maxim without qualification,
whereas the New South Wales Supreme Court in Australia seemed more
reluctant to do so in Di Napoli v New Beach Apartments (2004) Aust Torts
Reports 81-728. There is therefore an asymmetry between aerial and
underground trespass, which may be resolved by the fact the ground is
almost always used (to support buildings and other structures) whereas
airspace loses its practical use above the height of skyscrapers.

There may be regulations <> that
hold a trespasser to a higher duty of
such as strict liability
<>for timber
trees beyond a permitted boundary), which is a type of trespass
to chattels <> as a result
of a trespass to land.

Some cases also provide remedies for trespass not amounting to personal
presence, as where an object is intentionally deposited, or farm animals
are permitted to wander upon the land of another. Furthermore, if a new use
of nearby land interferes with a land owner's quiet
enjoyment<>of his rights,
there may be an action for
nuisance <>, as where a disagreeable
aroma or noise from A drifts across the land of B.

As with other intentional torts, the defences of
consent <> are available for trespass
to the person.[2]<>

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