Background
Robert Campbell privately prosecuted neighbours Ronald Winch and Matthew Bauer under s 4(1) of the Inclosed Lands Protection Act 1901 (NSW). He alleged that they entered or remained without permission on a concrete driveway forming part of his property at 188 Ellesmere Road, Gymea Bay. The driveway also provided access to the defendants’ properties under a registered right of way.
The Local Court acquitted both defendants. It found that the driveway was not “inclosed lands” because its boundaries were not sufficiently delineated by fences, walls, erections, or qualifying natural features. Campbell appealed under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), which limited his appeal to questions of law alone.
The Court’s Holding
Emmett J dismissed the appeal. The Court held that the words following “including” in the statutory definition of “inclosed lands” do not create an independent category covering any land used in connection with a building or structure. Except for prescribed premises, the alleged space must still be inclosed or surrounded by a fence, wall, or other erection, or partly by such an erection and partly by a canal or natural feature, so that its entire boundary can be known or recognised.
The Local Court correctly focused on the land’s physical features. A painted yellow line was not an “erection,” and the features relied upon did not identify the whole boundary of Campbell’s land. Campbell also could not recast his case on appeal as involving a larger inclosed area extending onto the defendants’ properties. Any error concerning the easement was immaterial, and the Local Court had not treated the private driveway as a statutory “road.”
Emmett J added that, even had legal error been established, the Court would have dismissed the appeal under its discretion in s 59. Continuing criminal proceedings arising from events in early 2024 would have been disproportionate to the maximum fines, particularly given defects and ambiguities in the charges and the availability of civil remedies. Campbell was ordered to pay the defendants’ costs on the ordinary basis.
Key Takeaways
- Land associated with a building is not automatically “inclosed lands”; the statutory forms of physical inclosure must still make the entire boundary knowable or recognisable.
- An inclosing feature need not prevent physical passage, but markings such as paint do not qualify as an “erection,” and features identifying only part of a boundary are insufficient.
- The Act is poorly suited to resolving disputes among neighbours who own or occupy different parts of one allegedly inclosed space; civil trespass proceedings may provide the appropriate remedy.
Why It Matters
The decision gives detailed guidance on the meaning of “inclosed lands” under New South Wales law. It confirms that the statutory offence depends on an objectively identifiable, physically inclosed space—not merely ownership boundaries, survey information, or a connection between land and nearby buildings.
It also underscores the constraints on prosecutor appeals from Local Court acquittals and the Court’s willingness to refuse relief where renewed criminal proceedings would be disproportionate and private-law remedies remain available.