The Law Handbook 2024

Chapter 6.4: Neighbour disputes 581 Fire People who light fires on their properties that spread and damage, destroy or endanger someone else’s property may be committing an offence against the Summary Offences Act 1966 (Vic) (‘ SO Act ’) (s 11). The same applies to people who leave fires on their properties before the fires are completely extinguished. People are allowed to light fires that might be dangerous if they only burn straw, stubble, grass, weeds or other inflammable material of a limited size, and if they let their neighbours know beforehand. Before using your incinerator, check with your local council to see if there are any council regulations relating to the lighting of fires and incinerators. No one is allowed to light a fire while an official fire ban applies. This will usually be during the summer months, and enquiries should be made of local fire authorities before lighting any fires during possible times of increased risk. Entry onto land Trespassing If you deliberately or carelessly do something that directly interferes with someone else’s land, you are trespassing. It is not usually a crime, but is a civil wrong, and you can be sued for doing it even if you did not cause any damage by trespassing. The most common example of trespassing is when you go onto someone’s land without their permission. It is also trespassing to dump rubbish on someone else’s land. Land includes everything above and below the ground, so you might be trespassing if you burrow under someone else’s land. To bring an action against someone for trespass, you have to show that you have a right to exclusive possession (rather than ownership) of the land on which the trespass occurred. Signs that have the words ‘Trespassers will be prosecuted’ written on them are not strictly accurate. Technically you can only be prosecuted if you commit a crime. The SO Act (s 9) deals with trespassing. A person can be guilty of trespassing if they: • trespass in a ‘public place’ and neglect or refuse to leave after being warned; • enter a ‘private place’ or ‘scheduled public place’ without express authority unless for a legitimate purpose; or • neglect or refuse to leave a ‘private place’ or a ‘scheduled public place’ after being given a warning and do not have a lawful excuse. The terms ‘public place’ and ‘scheduled public place’ are defined in section 3 of the SO Act. What you can do about trespassing You are allowed to eject a person who comes onto your land without your permission. You must not use any more force than is reasonably necessary to do this. Obviously, you should first ask the person to leave before you consider any more drastic action. If you use too much force, you may be guilty of assault and could be committing a crime or be sued for damages for any injuries the ‘trespasser’ suffers as a result of your actions. What a court can do about trespassing If you can convince a court that someone has trespassed on your property, the court can order the trespasser: 1 to stop trespassing now, and to never trespass again (this is called an injunction); and/or 2 to pay you compensation. If a trespasser claims to be entitled to stay on your land, you can ask the court to decide if this claim is valid and, if it is not, to give you a ‘writ’ for possession. When you can trespass If someone sues you for trespass, you may have a defence if any of the following has occurred: 1 you were on the land with the permission of the person who is suing you; 2 you have been authorised by some law to go onto the land (see ‘Officials on your land’, below); 3 you have gone onto the land to stop a nuisance (see ‘Nuisance’, above); or 4 you have gone onto the land to get back goods that belong to you. This only applies if the goods have been put there by or with the help of the person on the land or someone who has stolen the goods. Officials on your land The law allows some officials to come onto your land without your permission, in certain circumstances for specific purposes. These officials include police