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The legal principles surrounding trespass to airspace and neighboring land access in New South Wales, Australia. It includes cases such as LJP Investments Pty Limited v Howard Chia Investments Pty Limited and Woollerton & Wilson Limited v Richard Costain Limited, which outline the test for determining whether an incursion into airspace or onto adjoining land constitutes a trespass. The document also covers legislation related to neighboring land access, such as the Access to Neighbouring Land Act 2000 (NSW), and the rights of landowners to the subsoil and minerals.
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This chapter focuses on the following areas of law: A. The owner’s rights to airspace B. The owner’s rights to minerals on or under the surface C. The boundaries with neighbouring land D. The owner’s rights to things grown on the land.
possession of land has exclusive rights upwards to the sun and downward to the centre of the earth: See generally the history of this maxim discussed by Lord Wilberforce in Commissioner for Railways v Valuer-General [1974] AC 328 at 351.
it is suggested by Professor Butt that its origins may lie in Jewish law at least 1000 years earlier: Professor Butt (at [206]). Lord Coke in his Commentary on Littleton in 1628 observed: The earth hath in law a great extent upwards, not only of water … but of ayre and all other things even up to the heaven. In practice, the cases do not literally apply this maxim. The courts do not restrain each and every encroachment of airspace, because an action in trespass is based on an interference with the possession of land. Some encroachments of airspace are not seen to interfere with the possession of the land.
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bring an action to restrain trespass to airspace where either:
encroachment of the airspace above the land than in other situations. For instance, in Kelsen v Imperial Tobacco Co Limited [1957] 2 QB 334, a permanent encroachment by a sign protruding from the building on one property into the airspace of the adjoining property was held to be a trespass. In so holding, McNair J relied on the decision of Romer J in Gifford v Dent [1926] WN 336 where the judge had taken the view that a sign which was erected on the wall above the ground floor premises and which projected some four feet, eight inches (ie 1.4 metres) from the wall constituted a trespass over the plaintiff’s airspace. McNair J at 345 held: That decision … has been recognised by the textbook writers … as stating the true law. It is not without significance that the legislature in the Air Navigation Act 1920 , s 9 (replaced by s 40(1) of the Civil Aviation Act 1949 ), found it necessary expressly to negative the action of trespass or nuisance arising from the mere fact of an aeroplane passing through the air above the land. It seems to me clearly to indicate that the legislature at least was not taking the same view of the matter as Lord Ellenborough in Pickering v Rudd (4 Camp. 219), but rather taking the view accepted in the later cases, such as the Wandsworth District case (13 QBD 904), subsequently followed by Romer J in Gifford v Dent [1926] WN 336. Accordingly, I reach the conclusion that a trespass and not a mere nuisance was created by the invasion of the plaintiff’s airspace by this sign.
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defendants were not entitled to rely on the statutory defences available under the United Kingdom equivalent of our civil aviation legislation on the grounds that it did not permit the use of airspace for the purposes of photography.
unlimited height. His Honour noted the disapproval of the views of Lord Ellenborough in Pickering v Rudd by McNair J in Kelsen v Imperial Tobacco Co [1957] 2 QB 334. While Griffiths J made it clear that he did not wish to cast any doubts on the correctness of the Kelsen decision on its own particular facts, Griffiths J held at 486–8: It may be a sound and practical rule to regard any incursion into airspace at a height which may interfere with the ordinary user of the land as a trespass rather than a nuisance. Adjoining owners then know where they stand; they have no right to erect structures overhanging or passing over their neighbours’ land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty. But wholly different considerations arise when considering the passage of aircraft at a height, which in no way affects the user of the land … I can find no support in authority for the view that a landowner’s rights in the airspace above his property extend to an unlimited height … The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science how offered in the use of airspace. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the enjoyment of his land and the structures on it, and declaring that above that height he has no greater rights in the airspace than any other member of the public … His Honour applied this test of ‘what is necessary for the ordinary use and enjoyment of the land and the structures on it?’ to the facts of the case and determined that the defendant’s aircraft did not infringe any rights in the plaintiff’s airspace and thus, no trespass was committed.
of Appeal was asked to restrain a building contractor from allowing a tower crane to encroach upon the airspace of the plaintiff’s land. When the crane was in operation, and also when it was not in use, and the wind was blowing in a certain direction, the jib of the crane encroached upon the plaintiff’s airspace at a height of 15 metres above the roof level. The building contractor admitted the trespass but pointed out that the building would be substantially delayed as it had been planned around the use of the tower crane. There was evidence that the building contractors had offered the plaintiffs a substantial sum for the right to encroach on the airspace of the plaintiffs.
in the exercise of its discretion, the court delayed the operation of the injunction for sufficient time to allow the builder to complete the building.
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The court so exercised its discretion because the building contractor had offered the plaintiffs a substantial sum of money as compensation and by reason of the fact that there was no earlier precedent to forewarn the building contractor of the possibility that it would be restrained from completing the building at a time when the work was in progress. The court was satisfied that the building contractor had not acted in flagrant disregard of the plaintiffs’ rights.
Full Court of the Supreme Court of Queensland in Graham v KD Morris & Sons Limited [1974] Qd R 1. There it was held that a builder should be restrained immediately from allowing a crane on the building site to encroach the airspace of neighbouring land. This builder acted in flagrant disregard of the plaintiff’s rights and was of course on notice of the precedent set by the earlier case of Woollerton & Wilson Limited v Richard Costain Limited.
490, Hodgson J, as he then was, held that the defendant was liable for trespass to airspace because it allowed scaffolding to encroach over the plaintiff’s land during the course of construction of a wall along the boundary between the defendant’s land and the plaintiff’s land. In this case, the defendant was the owner of a property on which a substantial commercial development was being constructed. The defendant instructed its builder to erect scaffolding, which encroached over the plaintiff’s land from a height of about 4.5 metres above ground level. The scaffolding extended about 16 metres along the boundary and protruded about 1.5 metres into the airspace above the plaintiff’s property. Senior Counsel for the defendant relied on Bernstein of Leigh (Baron) v Skyviews & General Limited. He argued that an encroachment into airspace is only a trespass if it occurs at a height and in a manner that interferes with the occupier’s use of the land.
If the defendant’s submission is to the effect that entry into airspace is a trespass only if it occurs at a height and in a manner, which actually interferes with the occupier’s actual use of land at the time, then I think it is incorrect. In my view, the rule stated in Bernstein of Leigh (Baron) v Skyviews & General Limited by Griffiths J was rather that a trespass occurred only if the incursion was at a height, which may interfere with the ordinary user of land, or is into airspace, which is necessary for the ordinary use and enjoyment of the land and structures upon it: see (at 486, 488). It was held that in that case that there was no trespass by an aeroplane flying many hundreds of feet above the land. On the other hand, in Woollerton and Wilson Limited v Richard Costain Limited and Graham v KD Morris and Sons Pty Limited , the incursions of crane jibs at heights of the order of 50 feet above the plaintiff’s roof were treated as trespasses. Hodgson J, at 495–6, went on to observe: I think the relevant test is not whether the incursion actually interferes with the occupier’s actual use of land at the time, but rather whether it is of a nature and at a height which
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that did not involve such a serious encroachment, although this would have involved greater cost for the builder. At 472, his Honour observed: The defendants have adopted techniques, which involve encroachment, although other techniques, which would not have involved such serious encroachment, but would have involved a greater cost, were available to them and still are available … The resource represented by the plaintiff’s airspace is not available like natural resources of the countryside for them to take as they find suitable, any more than they could count on using other people’s bricks or other resources. At the heart of the litigation is a very simple question of using or not using other people’s property, and this disqualifies the defendants from any real claim to consideration of hardships which they have incurred.
protective mesh screens to encroach the plaintiff’s airspace, His Honour declined to restrain the defendant’s encroachment, constituted as what is known as ‘weathervaning’. In this respect, his Honour held at 467: Another encroachment related to the crane is referred to as weathervaning. When the crane is not under load it is allowed to act as a weathervane, and it moves with the wind with the jib at an elevation of 45 degrees at which it has a radius expressed horizontally of about 23 metres. The free movement of the crane would carry it from time to time, in an uncontrolled way over the plaintiff’s building. I do not take a very grave view of the encroachment constituted by allowing the crane to weathervane. Any encroachment has, I suppose, some discernable risk but the free movement of the crane has relatively small discernable risk, particularly when compared with the use of the crane to pass loads over the plaintiff’s building. There is a good practical reason for allowing the crane to weathervane, as this minimises the stresses produced on the tower and the crane structure generally by wind.
In the cases discussed under the heading ‘Permanent encroachments’, such as Kelsen , there is a rejection of certain comments made by Lord Ellenborough in Pickering v Rudd. On the other hand, in Bernstein of Leigh (Baron) v Skyviews & General Limited , Griffiths J is critical of the views expressed by the court in Kelsen , although Griffiths J was at pains to point out that he did not disagree with the outcome of the facts of Kelsen. In each of the cases LJP Investments Pty Limited v Howard Chia Investments Pty Limited and Bendal Pty Limited v Mirvac Pty Limited , the Supreme Court of New South Wales rejected submissions that invited the court to apply the test annunciated by Griffiths J in Bernstein of Leigh (Baron) v Skyviews & General Limited to the facts of these building cases.
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Certainly, the diverse reasoning by the judges in these cases is difficult to reconcile. On the other hand, it is suggested that they are reconcilable if one applies different principles to the balloon, bullet and aircraft cases, on the one hand, to those that have been applied in other situations. On balance, it would appear that this is an area of law where judicial guidance at the appellate level is required to clarify the law in relation to trespass to airspace.
interest is affected) can:
is subject to the following legislation:
by statute—Section 88 K of the Conveyancing Act ’.
(1) A person who, for the purpose of carrying out work on land owned by the person, requires access to adjoining or adjacent land may apply to a Local Court for a neighbouring land access order.
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A Local Court may make a neighbouring land access order if it is satisfied that, for the purpose of carrying out work on land, access to adjoining or adjacent land is required and it is satisfied that it is appropriate to make the order in the circumstances of the case.
neighbouring land access order unless it is satisfied:
s 12 of the Access Act. This section provides: (1) A neighbouring land access order may be made for one or more of the following purposes in connection with the land on which the work is to be carried out: (a) Carrying out work of construction, repair, maintenance, improvement, decoration, alteration, adjustment, renewal or demolition of buildings and other structures, (b) Carrying out inspections for the purpose of ascertaining whether any such work is required, (c) Making plans in connection with such work, (d) Ascertaining the course of drains, sewers, pipes or cables and renewing, repairing or clearing them, (e) Ascertaining whether any hedge, tree or shrub is dangerous, dead, diseased, damaged or insecurely rooted, (f) Replacing any hedge, tree or shrub, (g) Removing, felling, cutting back or treating any hedge, tree or shrub, (h) Clearing or filling in ditches, (i) Carrying out any work that is necessary for, or incidental to, anything referred to in paragraphs (a)-(h). (2) This section does not limit the kinds of work with respect to land for which a neighbouring land access order may be made. Section 14 of the Access Act has similar provisions in relation to the various types of work for which utility service access order may be made.
it is satisfied that access to land is required for the purpose of carrying out work on or in connection with a utility service situated on the land and it is satisfied that it is appropriate to make the order in the circumstances of the case. On the other hand, s 13 of the Access Act provides that the court must not make a utility service access order unless it is satisfied that:
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the Access Act to consider the following matters:
when making an access order, while s 17 of the Access Act sets out the form of access orders. The general effect of neighbouring land access orders is dealt with in s 18 and the general effect of utility service access orders are dealt with in s 19. Section 20 of the Access Act empowers the Local Court to give authority to carry out ancillary activities.
the land and indemnify the owner of the land for any damage arising from access being given by the Local Court. This section provides that the applicant must:
(a) restore the land concerned to the same condition it was in before the access, so far as is reasonably practicable, on or before the date specified in the order for that purpose, and (b) indemnify the owner of the land to which access is granted against damage to the land or personal property arising from the access.
with the order and this Act: s 22 of the Access Act. A person who is not a party to the proceedings for an access order, or expressly bound by the order, is not bound by the access order: s 23(1) of the Access Act. A successor in title to an owner of land to which access is granted is bound by that order in the same way as that owner: s 23(2) of the Access Act. An access order does not confer on any party to the order any interest in the land to which access is granted sufficient to enable any such person to place a caveat on the title to the land under the Real Property Act 1900 : s 23(3) of the Access Act.
or by any other person affected by the order: s 24 of the Access Act.
in force.
(1) A Local Court may order that a person to whom an access order is granted pay compensation to the owner of the land to which access is granted for loss, damage or injury, including damage to personal property, financial loss and personal injury arising from the access. (2) Compensation is not payable under this section for loss of privacy or inconvenience suffered by the owner solely as a result of access authorised by the access order or solely because of the making of the order. (3) An order for compensation may be made at any time and may be made whether or not the access order is in force.
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The Act gives the court jurisdiction to make orders in respect of ‘encroachments’ by ‘substantial buildings’ of a ‘permanent character’. The definition of ‘building’ is dealt with by s 2.
structures such as a swimming pool’s pump house and filter: Cuthbert v Hardie (1989) 17 NSWLR 321, or courtyard paving: Cantamessa v Sanderson (1993) 6 BPR 13,127.
51722 (1996) 93 LGERA 120: Boed Pty Limited v Seymour (1989) 15 NSWLR 715. Either the adjacent owner or the encroaching owner may apply to the court for relief pursuant to s 3(1) of the Encroachment of Buildings Act 1922 (NSW).
respect to:
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Act 2002 ), or to any registered real estate valuer (within the meaning of the Valuers Registration Act 1975 ), any question involved in proceedings on the application: s 3(4) of the Act.
transfer, lease, or grant to the encroaching owner shall, if the encroaching owner satisfies the court that the encroachment was not intentional and did not arise from negligence, be the land value of the subject land, and in any other case three times such land value: s 4 of the Act. The court in determining whether the compensation shall exceed this minimum, and if so by what amount, shall have regard to:
encumbrances, the court is empowered by s 6 of the Act to determine:
encumbrances, the court is empowered by s 7 of the Act to determine:
the encroachment stands to be transferred. This occurred in McGeever v Kritsotakis (1992) NSW ConvR 55–635 at 59–663 and also in a number of South Australian decisions: Carlin v Mladenovic (2000) 77 SASR 302; Gladwell v Steen (2000) 77 SASR 310; Bunney v South Australia (2000) 77 SASR 319.
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the Damage by Aircraft Act (NSW). Section 9(4) of the Commonwealth Act provides that this Act applies in relation to Commonwealth aircraft; aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of para 51(xx) of the Constitution ); or aircraft (including foreign aircraft) engaged in:
land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:
Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury,
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loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants.
At common law, the surface owner’s rights extend downwards sufficiently to permit the extraction of minerals.
law is entitled to the subsoil, ‘cuius est solum, eius est usque ad coelum et ad infernos’, and to the minerals therein: Wade v NSW Rutile Mining Co Pty Limited (1969) 121 CLR 177. It is however possible for a person other than the owner of the land to own minerals on or under the land.
is not specifically reserved: Borys v Canadian Pacific Railways [1953] AC 217.
in the Crown at common law. The royal minerals do not pass from the Crown unless specifically stated: Woolley v Attorney General of Victoria (1877) 2 App Cas 163; Attorney-General v Great Cobar Copper Mining Co (1900) 21 NSWR 351. The rights of the Crown to gold were expressly reserved by the Statutes 16 Vict, No 43, 20 Vict, No 29, s 31, and 30 Vict, No 8, s 26: see R v Wilson (1874) 12 SCR 258.
silver, copper, tin, iron, antimony, cinnabar, galena, nickel, cobalt, platinum, bismuth, manganese, marble, kaolin, mineral pigments, mercury, lead, wolfram, coal, shale, scheelite, chromite, opal, turquoise, diamond, ruby, sapphire, emerald, zircon, apatite and other phosphates, serpentine, molybdenite, alunite and alum, barytes, asbestos, gypsum, monazite, and any other substance which may from time to time be declared a ‘mineral’ within the meaning of this Act by proclamation of the Governor published in the Gazette.
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plutonium, neptunium, or any of their respective compounds and any other substance specified in regulations as one which is, or may be, used for or in connection with production of, or research into atomic energy’.
Professor Woodman at 30, as follows:
boundaries, the theoretical starting point is that land usually extends down to the centre of the earth and up to the sun. Land, can be limited in height or depth. For instance:
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shown. The contrary can be shown by showing that the title has a different boundary. If a Crown grant or a transfer describes land as adjoining tidal water, the natural inference is that the title boundary was the actual high water mark at the time of the Crown Grant: see Moore, ‘Land by the water’ (1968) 41 ALJ 532.
between the spring and neap, ascertained by taking the average medium tides during the year: Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Limited [1915] AC 599; Humphrey v Burrell [1951] NZLR 262; Verrall v Nott (1939) 39 SR (NSW) 89; Government of the State of Penang v Beng Hong Oon [1972] AC 425.
the additional land accrues to the landward title. As Moore stated at 534: Land described as being bounded by the sea is not excluded from the benefit of accretion because measurements are also given. A boundary may be defined by measurement or by reference to the mean high water mark. Where tidal water constitutes a boundary, the mean high water mark is taken, in the absence of any contrary indication in the Crown grant, to be the correct line of demarcation. Any land below that line is vested in the Crown: Hill v Lyne (1893) 14 NSWLR 449.
land above high water mark; typically 30.48 metres (ie 100 feet). In this situation, the line is determined by reference to the mean high water mark at the date of the grant: McGrath v Williams (1912) 12 SR (NSW) 477. Contrast Attorney-General v Merewether (1905) 5 SR (NSW) 157, where it was held that the lagoon in question was not an ‘inlet of the sea’ within the meaning of the Crown grant and so the reservation of 100 feet did not apply.
reference to the mark, and the mark shifts by accretion or erosion, the boundary shifts. The above rules apply in relation to land under the Real Property Act , notwithstanding the issue of a certificate of title showing the boundary in a plan: Verrall v Nott (1939) 39 SR (NSW) 89. The existence of a certificate of title to land with a water frontage, even if there is also a certificate of title to the foreshore and sea bed, does not exclude the doctrine of accretion provided the true boundary is ambulatory: Verrall v Nott (1939) 39 SR (NSW) 89, 99; Butcher v Lachlan Elder Realty Pty Limited [2002] NSWCA 237. Where there is an accretion as a result of artificial works, the boundary does not change: Attorney General, Ex Relatione Hutt River Board, and Hutt River Board v Leighton [1955] NZLR 750. The boundary does however change where the accretion is intentionally assisted by artificial means: Verrall v Nott (1939) 39 SR (NSW) 89.