REAL PROPERTY SUMMER 2005-2006

TRESPASS TO LAND AND FIXTURES

LECTURE ON 15 FEBRUARY 2006

Note:
Students should read pages 8-17 and 36-53 of Land Law by Peter
th
Butt (4 Edition) and should also find and read the sections and cases referred
to in the Subject Guide on pages 8 (Definition of Land) and 20 (Fixtures).
These notes are not a substitute for reading the text and considering the cases.

Airspace
The law governing the rights of the owners of land is very ancient. Butt [206]
refers to a contract for land in Norwich in 1285 containing the maxim cuius
est solum eius est usque ad coelum et ad inferos meaning the person who
owns land owns it from the heavens above to the centre of the earth below.
He also makes reference to the fact that the concept may have originated in
Jewish law at least 1,000 years earlier.
If airspace continues upwards ad infinitum then what can reasonably
constitute an intrusion into this airspace?
Older English cases (pre-twentieth century) generally came to a conclusion
that a temporary intrusion into airspace did not constitute a trespass unless
the object intruding into the airspace eventually came into contact with the
land. (Butt [203])
Modern authority favours the proposition that telephone wires crossing a
neighbouring property, aeroplanes overflying land, crane jibs overhanging,
bullets fired across land (without touching the surface) and advertising signs
all constitute a trespass into the airspace regardless of whether that trespass
is permanent or transitory (Butt [209]-[210]).
In this area it is necessary to look at many of the cases to determine the way
in which the law has developed and the sometimes conflicting approach taken
by Courts in making decisions.
In Kelsen v Imperial Tobacco Co [1957] 2 QB 334 the plaintiff was the lessee
of a tobacconists shop consisting of a one-storey building. The defendants
owned the building adjacent to Kelsens premises and for many years had a
sign on the wall of their building that encroached some 4 inches into the
airspace above Kelsens shop. At some point of time this sign was replaced
with a new sign that encroached some 8 inches into his airspace. After some

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differences between the plaintiff and the defendant company, the plaintiff gave
notice that the sign must be removed. The defendant company declined and
the plaintiff sought an injunction for the removal of the sign.
McNair J. gave consideration to many issues including the question of whether
the lease to Kelsen included a lease of the airspace above the shop. He
concluded that it did and on this basis also concluded that the intrusion of
the sign into the airspace constituted a trespass.
He directed that a
mandatory injunction issue for the removal of the sign.
The issue of the height at which an intrusion into airspace continued to
constitute a trespass came before the Court in Baron Bernstein of Leigh v
Skyviews & General Ltd. [1978] 1 QB 479.
In that case the defendants flew over the plaintiffs land for the purpose of
taking aerial photographs that were then offered for sale to the plaintiff. The
plaintiff claimed damages for the trespass by the defendant into his airspace
for the purpose of taking the photograph. Despite the defendants arguing that
the aeroplane had not flown over the Barons land, Griffiths J. found at some
time in photographing the house the aircraft flew over the plaintiffs farmland.
His Honour then considered the law concerning whether the intrusion into the
airspace constituted a trespass:
I can find no support in authority for the view that a landowners
rights in the air space above his property extend to an unlimited
height. In Wandsworth Board of Works v. United Telephone Col Ltd., 13
QBD. 904 Bowen L.J. described the maxim, usque ad coelum, as a
fanciful phrase, to which I would add that if applied literally it is a
fanciful notion leading to the absurdity of a trespass at common law
being committed by a satellite every time it passes over a suburban
garden.
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 now offers in the use of air space. This balance is in my
judgment best struck in our present society by restricting the rights of
an owner in the air space above his land to such height as is necessary
for the ordinary use and enjoyment of his land and the structures
upon it, and declaring that above that height he has no greater rights
in the air space than any other member of the public.
Applying this test to the facts of this case, I find that the defendants
aircraft did not infringe any rights in the plaintiffs air space, and thus
no trespass was committed. It was on any view of the evidence flying
many hundreds of feet above the ground and it is not suggested that by
its mere presence in the air space it caused any interference with any
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use to which the plaintiff put or might wish to put his land. The
plaintiffs complaint is not that the aircraft interfered with the use of
his land but that a photograph was taken from it. There is, however,
no law against taking a photograph, and the mere taking of a
photograph cannot turn an act which is not a trespass into the
plaintiffs air space into one that is a trespass
The cases of Woollerton and Wilson v Richard Costain and Graham v K D
Morris and Sons are both cases dealing with intrusions into airspace by crane
jibs.
In Woollerton and Wilson v Richard Costain [1970] 1 All ER 483 the building
contractors had installed a high crane on a site to assist with the building
work. From time to time about 50 feet of the crane jib extended over the
plaintiffs land at a height of about 50 feet above the plaintiffs land. In his
judgement, Stamp J set out the facts of the case and said:
It is in my judgement well established that it is no answer to a claim for
an injunction to restrain a trespass that the trespass does no harm to the
plaintiff. Indeed, the very fact that no harm is done is a reason for rather
than against the granting of an injunction; for if there is no damage done
the damages recovered in the action will be nominal and if the injunction is
refused the result will be no more nor less than a licence to continue the
tort of trespass in return for the nominal payment.

His Honour then considered the exercise of his discretion and granted an
injunction but postponed its operation.
I am conscious that by so doing I am giving with one hand and taking
away with the other. But by so doing I give effect to the process by which I
have come to my conclusion that in principle there ought to be an
injunction but on the particular facts of this case not until the defendants
have had a proper opportunity of finishing the job. If for any reason the job
would not be finished in November 1970, application could be made, with
what result I know not, to extend the suspension of the order.

In Graham v K D Morris and Sons [1974] Qr R 1 the plaintiff sought an

injunction in a case with almost identical facts to Woollerton. W.B.Campbell J
referred to Woollerton and said:
The facts in that case correspond very closely to the facts before me.
Stamp J. held that neither the absence of any damage caused by the
trespass, either present or apprehended, (n)or the principle known as the
balance of convenience was an answer to the claim for an injunction.

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In all the circumstances I consider that I cannot allow the defendant to

continue to commit this unlawful trespass. If I did not grant the injunction
I would be condoning a clear breach by the defendant of the plaintiffs
proprietary rights. I consider it should be stopped now and that no special
factors exist which would justify my refusing to grant an injunction or to
suspend it for any length of time. The time to seek permission and for
negotiation was prior to the commencement of the work.

In LJP Investments Pty Ltd v Howard Chia Investments (No 2) (1989) 24

NSWLR 490 a mandatory injunction was sought for the removal of scaffolding
extending 1.5 metres into the airspace of the plaintiff. After considering the
arguments Hodgson J. granted an injunction. His Honour said in part:
If the defendants 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 occupiers 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 Ltd 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: see (at 486,488). It was
held 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 v Richard Costain and Graham v K D Morris and Sons, the
incursions of crane jibs at heights of the order of 50 feet above the
plaintiffs roof were treated as trespasses.
I think the relevant test is not whether the incursion actually interferes
with the occupiers actual use of land at the time, but rather whether it is
of a nature and at a height which may interfere with any ordinary uses of
the land which the occupier may see fit to undertake.
The second case of LJP Investments Pty Ltd v Howard Chia Investments
(No 3) (1989) 24 NSWLR 499 dealt with the issue of compensation for the
damage suffered by the plaintiff. Before the terms of the injunction ordered in
the previous proceedings it became apparent that the building could be
constructed without the need to trespass on LJPs land. This was contrary to
the evidence given in the case.
His Honour awarded exemplary damages of such an amount as to bring the
total damages to the figure requested by the plaintiff before any trespass
occurred. His Honour said:
.I think it should be made clear to developers that they cannot expect
to do better by an unlawful trespass than by paying the price demanded by

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an adjoining owner, at least unless the price demanded is clearly

unreasonable.
The position was reinforced by the judgement of Bryson J in Bendal Pty Ltd v
Mirvac Project Pty Ltd (1991) 23 NSWLR 464. This case involved the
construction of a multi story building using screens to protect the work and
prevent building material falling from the building. The screens moved upward
as the building was constructed but encroached into the airspace of the
plaintiffs building. A second encroachment concerned a crane and
weathervaning.
Bryson considered Bernstein, Graham, LJP, and Woollerton (amongst others)
and concluded that an injunction was warranted notwithstanding that the
need for the screen would be completed some five weeks after the hearing of
the case. The defendants argued that it would be an undue hardship to have to
stop work while a new method of construction was worked out and put in
place. His Honour was unmoved:
I do not see it as a hardship at all. It is all the defendants own doing and
the result of their using a construction method which would cause
encroachment and obviously involved them in the need to get permission,
yet they did not obtain permission. Their own evidence shows that by
adopting the construction method which they have used they made a
saving now quantified at $239,000.00
The cases of Rodrigues v Ufton, Pickering v Rudd, and Clifton v Viscount
Bury should be looked at for general principles. The references are in the
Guide at page 8.
The Tasmanian case of Davies v Bennison (1927) 4 TLR 8 concerned a cat
shot and killed by a neighbouring owner while the cat was sitting (minding its
own business) on the roof of an adjoining shed. A jury found for the defendant
although directed by the judge to find for the plaintiff.
The plaintiff applied for a new trial and in this hearing Nicholls C J, after
considering a dictum from Lord Ellenborough in Pickering v Rudd and
quoting from Lord Blackburn in Kenyon v Hart said:
It seems an absurdity to say that if I fire at anothers animal on his land,
hit it, kill it, and so leave the bullet in it, I have committed no trespass, and
yet, if I miss the animal and so let the bullet fall into the ground, have
committed a trespass. Such distinctions have no place in the science of the
Common Law.
If the hovering aeroplane is perfected the logical outcome of Lord
Ellenboroughs dictum would be that a man might hover as long as he

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pleased at a yard, or foot, or an inch, above his neighbours soil, and not
be a trespasser, yet if he should touch it for one second he would be.
See the Damage by Aircraft Act 1952 which precludes actions for trespass but
imposes strict liability for damage caused by overflying aircraft. Section 2.
Below ground level: mineral rights
The same general principles apply as espoused in Bernstein.
The rights of the owner of the surface extend downwards sufficiently to enable
the owner to enjoy the surface and prevent it being undermined.
Early grants of land from the Crown reserved mineral rights and rights to mine
for coal and other minerals. The extent of the rights reserved needs to be
considered by reference to individual titles and the date of the original grant
from the Crown. On pages 14-15 of the 4 th edition of Land Law, Butt sets out
the dates for the different reservations.
Some land grants were limited as to depth. No trespass can occur below that
depth.
There are no English or Australian cases that appear to explore the issues.
Encroachment of Buildings
The general rule is that anything constructed on the land of someone else
becomes the property of that other person. Such a building is regarded as
amounting to a gift to the owner of the land.
Equity tempers this right by applying the following principles as set out in
Ramsden v Dyson (1866) LR 1 HL 129

If a stranger builds on someone elses land in the mistaken belief

that it is that persons land, and the true owner is aware of the mistake
but does nothing to prevent construction then equity will prevent the true
owner from asserting title to the land.

If a stranger builds on someone elses land knowing the true

position as to ownership then equity will not assist the stranger.
The second proposition is now tempered where the stranger has carried out
the work in reliance upon some assertion by the true owner that an interest in
the land will be acquired.

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If in the circumstances it would be unconscionable for the owner to assert the

owners strict legal rights then equity will intervene and the court will try to
work out what is the best order or orders to be made in the particular case.
The Court may award an irrevocable licence, a long term lease, a licence to
occupy the land for a period of time, possession until the amount expended
has been repaid, or may order that the building be removed within a
reasonable time.
Encroaching buildings
At common law any part of a building which encroaches onto neighbouring
land is the property of the owner of that land. It follows that the owner can
occupy the encroachment and prevent the owner of the remainder of the
building from occupying it.
If an owner of an encroaching building fails to remove the encroachment after
a request to do so, then it is necessary to approach the court for a mandatory
injunction to have the encroachment removed.
In many cases it is possible to deal with the matter under the Encroachment of
Buildings Act 1922. This act gives the Land & Environment Court power to
hear and determine disputes concerning encroachments by permanent
buildings of a substantial nature.
Retaining walls, concrete driveways, protruding floor beams, weld mesh fence
set in concrete footings have all been held to be "substantial" or "permanent".
Paving in a courtyard has not, nor has a pump house for a swimming pool.
The Court cannot make orders relating to buildings totally on the wrong land.
In Amatek Limited v Googoorewon Pty Limited (1993) 176 CLR 471 the
High Court was asked to consider whether the Act applied to a building
constructed totally on the wrong land. In its written judgement the Court said:
The encroachment by a building of which the Act is speaking is a
horizontal encroachment beyond the boundary between the land of the
encroaching owner and the land of the adjoining owner. The definition of
encroaching owner makes it clear that the encroaching building extends
beyond the boundary of the encroaching owners land.Thus an
encroachment under the Act is an encroachment by a building that
traverses the boundary between the contiguous parcels of land.
The court may order compensation or that the encroachment be removed.
Who may apply and the way compensation is calculated is set out in sections 3
and 4.
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FIXTURES
General
When a chattel is brought onto land it may retain its character as a chattel or
change its character and become a fixture. This becomes relevant in at least 5
situations:
-

when realty is sold, fixtures pass with the realty without the need for any
express mention to be made of them. Chattels do not pass without mention
in the contract. The standard form of contract for the sale of land has a list
on the front page which is designed to be completed and specifically
includes a box for exclusions.

a mortgagee is entitled to fixtures in the event of a default, but is not

entitled to chattels.

chattels installed or upon a property which belong to a tenant may become

fixtures (subject to any right the tenant might have to remove those
chattels)

fixtures installed in or on property by a life tenant become part of the

reversion

on death, fixtures pass to the beneficiaries entitled to the realty, they are
not part of the personal estate of the deceased

The general principle can be stated as quicquid plantatur solo, solo cedit
whatever is attached to the land belongs to the land.
Annexation v Intention
The old common rule relied almost exclusively on the degree of annexation in
determining whether a chattel retained its character as a chattel or became a
fixture. This reliance on annexation has declined and the determination is now
primarily based on the intention of the person placing the item.
If the item is placed with the intention of better enjoying the land then it is
likely to be a fixture.
If the item is placed with the intention of better enjoying the item then it is
likely to remain a chattel.
There are two presumptions:

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Where the item is fixed to land to any extent (other than simply by
its own weight) it is presumed to be a fixture and the burden of
proving otherwise is with the owner of the chattel.

Where the item is simply resting on the land by its own weight it is
presumed not to be a fixture and the burden of proving otherwise is
with the landowner.

As these are presumptions they may be rebutted by evidence to the contrary.

At paragraph [306] Butt sets out many examples of the relevance of intention
when determining the status of items that were chattels when brought onto
the land. He gives examples of:

a New Zealand bush tramway, securely fixed to the ground but only
in place for a temporary purpose until logs removed

ancestral paintings fixed in purpose designed wall niches (placed

there for the enjoyment of the paintings, but not part of the grand
architectural design)

not being considered fixtures.

heavy metal grates resting on the ground by their own weight

(because they replaced other existing fixed grates)

sculptured marble vases

marble lions, marble slab garden seats

carved wooden figures

portrait and tapestry because they were part of an Elizabethan

room

being fixtures although some items rested only by their own weight.
Where there is the possibility of chattels forming part of what might be called a
grand architectural design it is necessary to consider whether such a scheme
can be said to exist. The case of DEyncourt v Gregory (1866) LR 3 Eq 382
deals with this topic. It is referred t in Butt at [306] and [309].
Nature of Intention
The nature of the intention of the person placing the chattel must be
determined objectively it must be patent for all to see

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Modern decisions such as N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1980)
ANZ Conv R 300 look at actual intention. In this case a PABX telephone
system had been installed in leased premises by the tenant. The system
remained the property of the lessor of the equipment (Dunn) which could
remove the equipment at the end of the equipment lease. The tenant, Pettit &
Sevitt, moved out of the premises before the end of the property lease and
Dunn sought to remove the PABX equipment as it was entitled to do under its
lease of the equipment. The lessor of the premises, Ericsson, claimed that the
PABX had become a fixture and could not be removed.
In his judgement, Mahoney J.A. said:
It is , in my opinion, now accepted that a chattel may become part of
realty notwithstanding that it is not, in any formal sense, annexed to it but
rests on it merely by its own weight:. Even if a chattel is physically
annexed to the realty, it may yet remain, at all times, personalty
Whether the question of whether chattels have become part of the realty is
a question of fact (see supra) or a conclusion of law, various matters have
been seen as of assistance in the final determination of it. The period of
time for which the chattel was to be in position, the degree of its
annexation to the land, what was to be done with it, and the function to be
served by its annexation, are all matters which have been seen to be
relevant for this purpose.
In the same case, Glass J.A. said in his judgement:
The statements of principle found in the many decided cases are not
easily susceptible of reconciliation. But on certain propositions they are
agreed.
1.
The ultimate question is whether a chattel has become part of
the realty to which it is attached. It is a question of fact which in a
divided tribunal is decided by a jury
2.
The question is to be determined having regard to all relevant
circumstances which include the purpose of annexation and the
mode of annexation.
3.
Although both of these factors are relevant neither is
conclusive. For example a chattel which has been securely fixed to
the premises may nevertheless not be a fixture
Contrariwise a chattel may become a fixture notwithstanding that
the party annexing it may have no such actual intention.

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It can be seen from examining the cases referred to in Dunn and other cases
that each case must be determined on its own facts. Many of the cases are
conflicting.
The status of the person bringing the chattel onto the land is also relevant. An
owner is much more likely to be seen to be bringing chattels capable of
annexation to the land onto the land with the intention that they become
fixtures. Those with a limited interest, such as lessees and life tenants, are
more likely to be intending that chattels do not become fixtures.
In Reid v Smith (1905) 3 CLR 656, the High Court held that a house erected
by the lessee but resting on piers only by its own weight was no longer a
chattel but had become a fixture.
In Standard Portland Cement Co Pty Ltd v Good (1982) 47 ALR 107 the
Privy Council determined that a cement mill weighing 100 tons was a chattel
and could be removed by the vendor. The contract for sale of the vendors land
contained a clause allowing the vendor to remove the mill provided such
removal took place within 12 months of the date of the contract. For various
reasons the mill had not been removed within that time.
The Supreme Court of New South Wales found that the mill had become a
fixture when the vendor had failed to remove it within the time allowed. The
Privy Council allowed an appeal because:

on its proper construction the contract excluded the mill from the
sale
failure by the vendor to remove the mill within 12 months would not
mean that ownership passed to the purchaser, but would sound in
damages or allow the purchaser to seek an injunction ordering the
vendor to remove the mill.

A very instructive case is that of Webb v Frank Bevis, Ltd [1940] 1 All ER
247. In Webb a tenant had constructed a large shed of corrugated iron
supported by timber posts resting on a concrete slab. The posts were
supported by iron straps embedded in the slab but bolted to the posts. The
roof and sides were capable of removal in sections.
The owner asserted that the slab and superstructure were one unit and must
remain. The tenant asserted that the slab must stay as a fixture but that the
rest of the superstructure was not a fixture and could be removed. Scott L.J. in
delivering the judgement of the Court said:
That the concrete floor was so affixed to the ground as to become part of
the soil is obvious. It was completely and permanently attached to the
ground, and, secondly, it could not be detached except by being broken up
and ceasing to exist as a concrete floor or as the cement and rubble out of
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which it had been made. Does that fact of itself prevent the superstructure
from being a tenants fixture? I do not think so.
The judge held, and I think rightly held, that the superstructure was to a
very large extent a temporary building, by which I understand him to
mean that the object and purpose for which the company erected it were
its use for such time as they might need it.
The more recent case of Palumberi v Palumberi (1986) NSW ConvR 55-287
deals with a dispute between brothers where an arrangement was entered into
for the sale to one brother by the other of an interest in property as tenant in
common. The property comprised 2 self contained flats. There was an
exchange of letters evidencing the arrangement but nothing in the letters
concerning fixtures or chattels.
The stove and carpet were held to be fixtures but the other items claimed to be
fixtures by the purchaser were found to be chattels.
In his judgement Kearney J. quoted from many cases and formed the following
view:
It would seem from perusal of these and other authorities in the field that
there has been a perceptible decline in the comparative importance of the
degree or mode of annexation, with a tendency to greater emphasis being
placed upon the purpose or object of annexation, or, putting it another
way, the intention with which the item is placed upon land. The shift has
involved a greater reliance upon the individual surrounding circumstances
of the case in question as distinct from any attempt to seek to apply some
simple rule or automatic solutionno standard solution is to be
derived from such cases which, upon ultimate analysis, are found to turn
upon their individual facts.

While generally once an item becomes a fixture it cannot be removed from the
land by anyone other than the owner of the land, the law recognises that there
are some circumstances where that might occur. The cases of Leigh v Taylor
and Spyer v Phillipson deal with a life tenant and tenant respectively.
In Leigh v Taylor (1902) AC 157 at 162 a life tenant of a mansion affixed
valuable tapestries to the walls of the drawing room. They were fastened to
canvas stretched over strips of wood and nailed to the strips which were nailed
to the walls. The tapestries could be removed without any structural injury.
The life tenant died and her executors and the remaindermen both claimed the
tapestries. The House of Lords decided that the tapestries retained their
character as chattels as they could only be enjoyed as ornamental tapestries by

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fixing them in this way. There was no intention to dedicate these tapestries to
the house.
The tapestries put up with that purpose and attached in that manner, did not
pass with the freehold to the remainderman, but formed part of the personal
estate of the tenant for life, and were removable by her executor.
In Spyer v Phillipson [1931] 2 Ch 183 a lessee of a flat for 21 years installed
antique panelling, ornamental chimney pieces, and fireplaces. No structural
changes were made for the panelling but slight alterations were necessary for
the chimney pieces and fireplaces. When the lessee died, his executors claimed
the right to remove the panelling, chimney pieces and fireplaces as tenant's
fixtures.
The lessor claimed that they were part of the structure and that their removal
would cause damage. The Court of Appeal held that:
in determining whether a particular chattel was a tenants or a landlords
fixture the Court had to consider what were the object and purpose of
annexation, and what would happen if the annexed chattel were removed.
So long as the chattel could be removed without doing irreparable damage
to the demised premises, neither the method of attachment nor the degree
of annexation, nor the quantum of damage that would be done either to
the chattel itself or to the demised premises by the removal, had any
bearing on the right of the tenant to remove it, except in so far as it threw
light upon the question of the intention with which the tenant affixed the
chattel to the demised premises.

The most likely case is where a tenant fixes items to the property for the
purpose of enabling the tenant to use the premises the subject of the lease.
The common law allowed tenants to remove trade, ornamental or domestic
fixtures from the property. While the lease was in force and the fixture
attached to the land, the lessor was said to be the owner of the fixture subject
to the tenants right of removal. Bain v Brand (1876) 1 App Cas 762.
In New Zealand Government Property Corp v H M & S Ltd [1982] QB 1145 a
tenant occupied premises under a lease. Although this case involved a dispute
about a market rent where rent was determined on the basis that the lease had
ended, the tenant had vacated and removed any tenant's fixtures, it was held on
appeal that at common law a tenant had a right to remove tenant's fixtures from
demised premises so long as he was in possession as a tenant.
Dunn L.J. summarised the matter:
If a tenant surrenders his lease and vacates the premises without
removing the tenants fixtures, then he is held to have abandoned them.
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But if he surrenders his lease, either expressly or by operation of law, and

remains in possession under a new lease, it is a question of construction of
the instrument of surrender whether or not he has also given up his right
to remove his fixtures. If nothing is said, then the common law rule
applies, and he retains his right to remove the fixtures so long as he is in
possession as a tenant.

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