The common law protection of real property

8.1          This chapter is about the common law protection of vested property rights in land (real property). The chapter builds on the discussion in Chapter 7 and discusses how vested property rights in land are protected from statutory encroachment; laws that interfere with rights in land; and how such laws might be justified. As noted in Chapter 7, the common law has long regarded a person’s property rights as fundamental, and ‘property rights’ was one of the four areas identified of concern in the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission in 2014.[1]

8.2          In Chapter 7, reference was made to the case of Entick v Carrington which concerned trespass in order to undertake a search—an interference with real property in the possession of another. Rights such as those protected by the tort of trespass to land have long been exercisable even against the Crown or government officers acting outside their lawful authority. In Plenty v Dillon, Mason CJ, Brennan and Toohey JJ said that the principle in Entick v Carrington ‘applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons’.[2]

8.3          Similarly, in Halliday v Nevill, Brennan J said:

The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.[3]

8.4          Implicit in this statement of the law is the recognition that the law—common law or statute—may authorise entry onto private property. Examples of such statutes are discussed in Chapter 17, which deals with laws authorising what would otherwise be a tort.

8.5          The protection of the landowner was so strong that protection of uninvited entrants from intentional or negligent physical injury by occupiers was slow to develop. It was only in 1828, in Bird v Holbrook, that the courts declared unlawful the deliberate maiming of a trespasser, albeit only if it was without prior warning.[4]

[1]           Australian Human Rights Commission, Rights and Responsibilities (Consultation Report, 2015) 8.

[2]           Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ). Their honours then quoted Lord Denning adopting a quotation from the Earl of Chatham. ‘“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law’: Southam v Smout (Unreported, [1964] 1 QB) 308, 320.

[3]           Halliday v Neville (1984) 155 CLR 1, 10 (Brennan J). Brennan J was quoted in Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ). In Plenty v Dillon, Gaudron and McHugh JJ said ‘If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official’: Ibid 655.

[4]           Bird v Holbrook (1828) 4 Bing 628; Southern Portland Cement v Cooper [1974] AC 623 (PC); Hackshaw v Shaw (1984) 155 CLR 614. For negligent injury, trespassers were at first owed no duty of care; then, after Southern Portland Cement v Cooper, only a duty of common humanity. The High Court of Australia in Hackshaw v Shaw recognised a limited duty of reasonable care when there was a real risk that a trespasser might be present and injured: Southern Portland Cement v Cooper [1974] AC 623 (PC); Hackshaw v Shaw (1984) 155 CLR 614.