Revise Trespass to land for Cambridge 9084 (4.2.4)

Trespass to land is a tort defined as the unjustifiable, direct, and intentional interference with another's possession of land. It is actionable 'per se', meaning the claimant does not need to prove they have suffered any actual damage to bring a successful claim. The primary purpose of this tort is to protect a person's right to exclusive possession and to prevent intrusions onto their property. The interference must be 'direct', such as walking onto land or placing an object on it. This is distinct from indirect interference, like allowing smoke to drift, which would be addressed by the tort of nuisance. The foundational case of Entick v Carrington (1765) established the principle that any unauthorised entry onto land is a trespass.

The definition of 'land' extends beyond the mere surface. It is traditionally defined by the Latin maxim 'cuius est solum, eius est usque ad coelum et ad inferos' (he who owns the soil also owns to the heavens and to the depths). However, modern case law has placed limits on this. In Bernstein v Skyviews & General Ltd (1978), it was held that a landowner's rights in the airspace above their property are restricted to such height as is necessary for the ordinary use and enjoyment of the land. Conversely, the case of Bocardo SA v Star Energy UK Onshore Ltd (2010) confirmed that rights do extend deep into the subsoil, holding that drilling for oil hundreds of metres below the claimant's land constituted a trespass.

For a trespass to occur, the interference must be direct and the act causing it must be intentional. A direct act is one that follows immediately from the defendant's action, such as walking onto land or throwing an object onto it. The intention required is not an intention to trespass, but an intention to perform the physical act that constitutes the trespass. For example, if a person walks onto land they mistakenly believe is their own, the act of walking is voluntary and intentional, and therefore a trespass has occurred. As established in cases like Basely v Clarkson (1681), a mistake as to the boundary or ownership of the land is not a valid defence. An involuntary act, such as being pushed onto land, would not be a trespass.

Several defences are available for a claim of trespass. The most common is 'licence', which is permission to be on the land. This can be express, implied, or contractual. A person becomes a trespasser if they exceed the terms of the licence or remain after it has been revoked (Robson v Hallett). 'Justification by law' provides a defence for those with statutory authority to enter land, such as police officers under the Police and Criminal Evidence Act 1984. 'Necessity' is a limited defence, applicable only in urgent situations of danger. Remedies include damages, an injunction, and re-entry. Damages may be nominal if no loss is suffered, or they can be substantial, compensating for physical damage or for the defendant's use of the land (known as 'mesne profits'). An injunction can prevent ongoing or future trespass. The self-help remedy of re-entry allows a lawful possessor to use reasonable force to remove a trespasser.