This case was seen by the Queen’s Bench Division. It concerned the definition of land and the extent of ownership that a property right grants.
Skyviews was a commercial photography business that would fly over and take photos of residences, later offering the photos to the residence owner for purchase. They had never received a complaint about this practice before the present case. Lord Bernstein claimed the photo of his freehold – to which he held the legal title – was an invasion of his privacy and a trespass, citing the maxim of cujus est solum ejus est usque ad coelum et ad inferos.
The issue was to what extent this maxim applied. Did the landowner own all of the sky above their land, or merely to a reasonable height above their property?
Lord Griffiths distinguished between a trespass grounded on land and a momentary trespass through air. In the case of a plane or satellite, the rights of the landowner were only to extend to a height or depth as is necessary for their ordinary use and enjoyment of the land. One must partake in a balancing exercise of the rights of the landowner and the rights of the public. It is important to remember however that this balancing exercise is only in place for trespasses with no connection to the ground.
This is therefore a substantial and welcome limit on the maxim which preserves its practicality and ensures the continuation of public and commercial practises.
It should also be noted that even if the court did not decide in favour of the defendants on this issue, a defence under Section 40 Civil Aviation Act 1949 would have been available.
- Queen’s Bench  – Decision Approved
- Defining Property Rights
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Reviewed By Ross Birkbeck
Submitted By Louis Stripp
First Published 15th July 2021