Melbourne Water has given me notice of what they regard as a serious breach of access arrangements and asked me to remind birders of those arrangements and that the Western Treatment Plant is a hazardous site.
Following the recent & extremely unfortunate death of a worker at the Eastern Treatment Plant, Melbourne Water has been reviewing its procedures. During this process, when Head Office personnel were making a tour of the Western Treatment Plant, they discovered two birders on foot (because they did not have a key they simply walked in), who did not have a birdwatching permit (but knew permits were required), and had not been inducted. Their excuse was they had been brought into the Plant before by other birders who had a permit and thought it would be okay. It is selfish actions like this that could spoil access for all other birders. Given the tremendous effort by both BOCA and Birds Australia to maintain access for birders some years ago, no-one wants this issue to be reopened.
Could I please implore everyone who visits the site to take the trouble to get a permit, do the simple one hour induction (which gives you access to areas east of Little River and is therefore of benefit to your birding) and always act in a way which is responsible and reflects well on birders. Surely it is not much to ask to ensure we can continue to enjoy the best birding site in Victoria.
John Barkla
===============================
To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) to: birding-aus-request@vicnet.net.au
http://birding-aus.org ===============================
Trespass is interesting and comes under Common Law Tort ie: a civil action not criminal. I am no lawyer but there have been a couple of issues regarding trespass recently including the Mt Molloy BBBQ. FYI here is Wiki on the subject – make of it what you will!
*Trespass to land* is a common law http://en.wikipedia.org/wiki/Common_law tort http://en.wikipedia.org/wiki/Tort that is committed when an individual or the object of an individual intentionally (or in Australia< http://en.wikipedia.org/wiki/Australia>negligently) enters the land of another without a lawful excuse http://en.wikipedia.org/wiki/Excuse. Trespass to land is *actionable per se*. Thus, the party whose land is entered upon may sue even if no actual harm is done.[*citation needed< http://en.wikipedia.org/wiki/Wikipedia:Citation_needed> *] In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages< http://en.wikipedia.org/wiki/Damages>or an injunction http://en.wikipedia.org/wiki/Injunction to remedy the tort.
By law, Trespass for mesne profits is a suit against someone who has been ejected from property that did not belong to them. The suit is for recovery of damages the trespasser caused to the property and for any profits he or she may have made while in possession of that property.
For a trespass to be actionable, the tortfeasor< http://en.wikipedia.org/wiki/Tortfeasor>must voluntarily go to a specific location, but need not be aware that he entered the property of a particular person. If A forces B against his or her will onto C’s land, C will not have action in trespass against B, because B’s actions were involuntary. C may instead claim against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C’s land, A may be jointly liable with B for B’s trespass.
In most jurisdictions, if a person were to accidentally enter onto private property, there would be no trespass, because the person did not intend any violation. However, in Australia, negligence< http://en.wikipedia.org/wiki/Negligence>may substitute the requirement for intent. Thus in that country, if a person trips and rolls upon the land of another, for want of due care, he or she would likely be found to have committed trespass.
If a trespass is actionable and no action is taken within reasonable or prescribed time limits, the land owner may forever lose the right to seek a remedy, and may even forfeit certain property rights. *See Adverse possession http://en.wikipedia.org/wiki/Adverse_possession* and Easement< http://en.wikipedia.org/wiki/Easement>by prescription.
Trespass may also arise upon the easement< http://en.wikipedia.org/wiki/Easement>of one person upon the land of another. For example, if A grants B a right to pass freely across A’s land, then A would trespass upon B’s easement by erecting a locked gate or otherwise blocking B’s rightful access.
The maxim “cuius est solum, eius est usque ad coelum et ad infernos” (whoever owns the land owns it all the way to the heavens and to hell) is said to apply, however that has been limited by practical considerations. For example, aerial trespass is limited to airspace which might be used (therefore aeroplanes cannot be sued). Landowners may not put up structures to prevent this.[1]< http://en.wikipedia.org/wiki/Trespass_to_land#cite_note-0>The courts have been more lenient with underground trespass. The Kentucky Court of Appeal in Edwards v Sims< http://en.wikipedia.org/w/index.php?title=Edwards_v_Sims&action=edit&redlink=1>(1929) 24 SW 2d 619 seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court in Australia seemed more reluctant to do so in Di Napoli v New Beach Apartments (2004) Aust Torts Reports 81-728. There is therefore an asymmetry between aerial and underground trespass, which may be resolved by the fact the ground is almost always used (to support buildings and other structures) whereas airspace loses its practical use above the height of skyscrapers.
There may be regulations http://en.wikipedia.org/wiki/Regulation that hold a trespasser to a higher duty of care< http://en.wikipedia.org/wiki/Duty_of_care>, such as strict liability http://en.wikipedia.org/wiki/Strict_liabilityfor timber trespass< http://en.wikipedia.org/w/index.php?title=Timber_trespass&action=edit&redlink=1>(removing trees beyond a permitted boundary), which is a type of trespass to chattels http://en.wikipedia.org/wiki/Trespass_to_chattels as a result of a trespass to land.
Some cases also provide remedies for trespass not amounting to personal presence, as where an object is intentionally deposited, or farm animals are permitted to wander upon the land of another. Furthermore, if a new use of nearby land interferes with a land owner’s quiet enjoyment< http://en.wikipedia.org/wiki/Quiet_enjoyment>of his rights, there may be an action for nuisance http://en.wikipedia.org/wiki/Nuisance, as where a disagreeable aroma or noise from A drifts across the land of B.
As with other intentional torts, the defences of necessity< http://en.wikipedia.org/wiki/Necessity>and consent http://en.wikipedia.org/wiki/Consent are available for trespass to the person.[2]< http://en.wikipedia.org/wiki/Trespass_to_land#cite_note-1> ===============================
To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line)
http://birding-aus.org ===============================
I guess we are not to be told who the offenders at WTP were, such selfish actions can only spoil things for everybody else. But it would be reassuring, as Ed has suggested below, for the rest of us to know that some severe action has been taken to prevent those trespassers from ever doing similar things at WTP or elsewhere again. AS Ed has suggested, being banned from membership of BOCA, Birds Aust , birding-aus, etc., seems most appropriate ( no matter who the offenders are or how well regarded they may be) . Personally I think they should be prosecuted for trespass. Tony
John, et al.
At the risk of stirring up a (litigious) hornets’ nest here, sometimes I think it would be fantastic to “name and shame” individuals that put everyone else’s access to fantastic birding sites at risk.
If people are caught trespassing such as in this incident I would like think there were repercussions – banned permanently from the WTP, thrown off the Birding-Aus list, and suspended/expelled from BOCA, BA, etc.
For the WTP all you need to do to get access is a quick induction and pay $20 for a two year access. It’s hardly the biggest hassle in the world – and at the end of the day it’s private property that we should be very thankful that we have such fantastic access to.
Cheers all – and have a good evening,
Ed
Ed Williams Kingsville VIC
===============================
To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line)
http://birding-aus.org ===============================