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‘The media have considerable power in contemporary society. That power is enhanced by the capacity for intrusion afforded by contemporary technology. That power can be wielded for good or ill. To establish, for the first time, a wide ranging right to Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
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    3
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    1677

Trespass to Land

Trespass to land is a tort committed to someone’s property. It may be the gaining of an unlawful access into ones property, staying inside it unauthorized or even introducing things against his will. It also includes the interference of land which has to be direct. Trespass to land is an actionable per se tort, meaning that damage does not have to be proved. The act has to be voluntary for it to amount to trespass to land. In this case, land refers to the earth’s soil, all the space on top and below the soil of the earth to a reasonable extent. It also includes all the buildings and fixtures attached to it. Action by the plaintiff has to be taken within a reasonable time so as for the courts to follow up with a remedy either by issuing an injunction or by awarding damages (Neyers 154). This paper refers to relevant case law and discusses how the concept of an implied license is used to balance interests regarding the use of an enjoyment of land. In doing this, the paper will seek to determine among other aims, whether the outcome of the TCN Channel Nine Pty Ltd v Anning by the court was the right decision.

Definition of Implied License

Implied license is the authority that one gains from the conduct of the licenser. It is unwritten and usually not stated to the licensee. It is centered within the consent of the owner which is found from his conduct. The plaintiff has to be able to give consent, and if he is incapable, then no consent would be considered meaning implied authority would be lost. Most of them are as a result of contractual agreements as in the case of tradesmen who have an implied authority to enter premises and deliver goods; people who have cinema tickets are entitled with the right to attend them in cinemas. Tenants may also have an implied authority to enter into the landlord’s premises in order to carryout repairs that the landlord was to do but failed to have it done. As much as there is an implied license, any deviation from it would amount to trespass to land and thus leaving the accused accountable or revocation of the license would also render him guilty (Stewart 234).

Implied license is mainly used as a defense to trespass to land. It serves to promote, a balance between the owner of the land and the offender who is entitled to the implied license. It brings about a just relationship between the two by protecting both of their interest. It is used to evaluate the interests regarding the use and enjoyment of property in different ways, such as creating an equitable use and enjoyment of land. This may be relevant in the case of Metropolitan Property v Wilson1 in which the tenant was not held accountable for trespass in repairing the house, since the landlord had failed to do so; it was within the interest of the tenant to have it fixed. The interest of the tenant was protected by the implied license he had over the landlord’s property as he had to have the repairs made for better living. It also stops the plaintiff from claiming unacceptable damages for trespass in instances that both parties were in the same assumption that the wrongdoer is allowed access to the land. This is depicted in the case of Valentine v Allen2 (Luntz 249).

In terms of repeated acts of trespass that are usually known to by the owner of the land, they would give the trespasser an implied license to the usage of the land. In this case, the trespasser would have the same duty of care as that of an invited guest as stated under the occupiers liability act since he would be made a legitimate visitor. The duty of care owed to him by the owner of the property would be greater than that owed to trespassers (Harpwood 130). As much as the intruder is protected, protecting the integrity of enjoyment and utilization of property by the possessor is the most vibrant and focal point of this tort of trespass to land. Thus, delaying in taking actions for an act of trespass does not necessarily provide an implied license to the intruder to commit the act of trespass nor is the respondent stopped or barred from launching up an application. It will depend on the act that constitutes the action of trespass and the time involved. In the case of Jones and another v Stones3, the High Court ruled that, the delay in reporting minor acts of trespass did not create estoppels stopping the owner from launching on claims of trespass. In this case, the accused would have to show that the appellant was knowledgeable, and did nothing making him continue these acts as a result of that conduct (Neyers 78).

TCN Channel Nine Pty Ltd v Anning

With regards to the matter of TCN Channel Nine v Anning4, the judges were right in there judgment. The decision by the District court New South Wales clearly outlines that there was trespass to land by the appellants employees. This is because; they had no implied consent or license to enter the respondent’s property since none of the activities that they claimed they were going to do was related with what the respondent was carrying out in his property. In order to establish that the appellant’s employees had no implied license, the judge referred to the case of Halliday v Neville5. In this case, the accused was arrested by police officers on his drive way, for driving a vehicle without official documentation. At the magistrate’s court, he was acquitted of his charges as a result of trespass to land on the part of the police rendering all charges against him illegal. The case was then appealed to the High Court that reviewed the earlier decision, but on appeal to the Supreme Court, Halliday was acquitted. Looking at this case, implied license is shown only arises when one enters ones land with the purpose of committing something related with what the owner of the land does, for instance, entering his property to ask a question. The Halliday case shows that people, who are given permission to conduct certain acts by law or statute, are not allowed to break the law by committing an offence in order to have those acts done. This includes the police officers who are also bound by this regulation and may not trespass when discharging their duties, unless the law creates an implied license. License is given by the owner also revoked by him, and in the Anning case, there was no license given to appellant’s company by the respondent. As much as the appellant had the duty to report issues, they had no right or license whatsoever to trespass into the respondents land and do a story about him or what he does with his property. Protection of personal property is the main issue here, therefore; no one would be allowed to interfere with one’s enjoyment of property even if it is searching for a true story as in the Anning case. To determine what damages and to what extent the respondent was to be awarded damages, the judge referred to the case of Plenty v Dillon6 in which damages to trespass to land were awarded without there being actual harm or damage to the land (Luntz 49).

In terms of the appeal, the decision by the court of appeal was also accepted, since invasion had been committed thus there was no need to have it appealed but the amount awarded to damages needed to be reviewed as, it was too much. As a result of this, many tests or criteria were used to determine the damages to be awarded and by how much. For example, reasonable foresee ability was not used to determine recoverable damages as, In the case of Mayfair Ltd v Pears7, in which a trespasser was not charged for damages caused by a fire that arose from him parking his car in a wrong place. Since no harm or damage on the land had been committed, it was essential to come up with other ways of finding out how the respondent suffered damages, and what was the best award he could get. The court of appeal was appropriate to use the criterion of natural and probable consequences in determine whether personal injury could be rewarded as a result of trespass to land. As a result of this, psychological trauma was struck out, since the actions of the appellant could not have amount to this type of damage. This in turn, led to the review of the cost of damages awarded which meant that the amount was reduced to only cover general damages, aggravated damages and exemplary damages (Stuhmcke 151).

In summary as for the Anning case, the decisions that were made by the courts were correct. This is because all relevant aspects of trespass to land were considered including the various tests used in determining the types of damages awarded and to what extent. The courts also were right by trying to regulate the powers given to different personnel’s, so as to avoid abuse of the same powers, such as the powers conferred to the media. As a result of these, no action either authorized shall be carried out through an unauthorized means.

Works Cited

Neyers, Jason. Emerging issues in tort law. Sydney: Hart pub 2007. Print.

Luntz, Harold. Tort; cases and commentary. Haddington: Abautterworths 2001. Print.

Stuhmcke, Anita. Essential tort law. Harford: Routledge, 2001. Print.

Stewart, Parm. Australian Principles of Tort Law. Warburn: Taylor and Francis, 2005. Print.

Harpwood, Vivienne. Modern Tort Law. The Cottage: Taylor & Francis, 2008. Print.

1
[2002] EWCA 1853

2
[2003] EWCA Civ 915

3
(1991) WLR 739

4
(2002) 54 NSWLR 333 viewed 4 April 2011, <http://www.federationpress.com.au/PDFs/Swanton3/TCN%20Channel%20Nine%20Pty%20Ltd%20v%20Anning.pdf >.

5
(1984) 155 CLR 1

6
(1991) 171 CLR 635 F.C. 91/004

7
[1987] 1 NZLR 459