In my article on drones and the law "Drones and the new law: Amendments to the Air Navigation Order", I said that a person who flies a drone low over another person’s property could be trespassing.  Recently, however, I received an interesting question: if someone who flies low over another person’s property could be trespassing, does that mean that person owns the airspace? More broadly, who does own the airspace in England and Wales?

Ownership of land under English law 

For these purposes, we need to start by looking at the ownership of land, as “land” under English law has a very broad definition. 

By the Law of Property Act 1925 (section 205(1)(ix)), land includes not just the physical land, but also ‘corporeal hereditaments’.  These ‘corporeal hereditaments’ include objects attached to the land, such as buildings and plants.

In this way, land has not just a two dimensional quality, as may be seen on any standard map, but also a three dimensional quality: it extends, at least to some extent, both above and below the ground itself.  Indeed, were land ownership limited to the ground itself, it would be impossible to construct any building as the building would extend beyond the land owned by the landowner.

The starting point when considering the extent of this three dimensional ownership of land is, unfortunately, expressed in Latin: ‘Cuius est solum, eius est usque ad coelum et ad inferos’.  Translated and simplified, it means that land ownership extends up to the heavens and down to the centre of the Earth.

In general terms, this maxim has remained true insofar as it relates to delving to the centre of the Earth.  In 2010, the Supreme Court relied on this maxim in Bocardo SA v Star Energy UK Onshore Ltd, in which it upheld a claim for trespass where one company had drilled below the surface onto neighbouring land to extract oil from that land. As set out in paragraph 27 of the judgment:

There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the wells that are at issue in this case, extending from about 800 feet to 2,800 feet below the surface, are far from being so deep as to reach the point of absurdity. Indeed the fact that the strata can be worked upon at those depths points to the opposite conclusion.

Looking in the opposite direction, the extent of ownership of the airspace was considered surprisingly early in the 1815 case of  Pickering v Rudd. Lord Ellenborough’s judgment is brief, but he indicates that it would not be trespass to pass over land in a hot air balloon, but that it would be trespass to fire a bullet over it.

However, the leading case on ownership of airspace in the context of flights by aircraft, drones and similar is the 1978 case of Bernstein of Leigh v Skyviews & General Ltd.  In this case – which could fill an article by itself – the Defendant (‘Skyviews’) flew over Lord Bernstein’s property, in the course of which it took photographs of his country house.  Skyviews then contacted Lord Bernstein to offer to sell him such a photograph. Lord Bernstein responded by alleging that this photography was ‘a gross invasion of privacy and demanded that they hand over or destroy all negatives or prints of his house’. 

Most unfortunately, Lord Bernstein’s letter was answered by a new joiner at Skyviews, who thanked Lord Bernstein for his letter and offered to send the negative to him for £15.  As noted in the judgment:

It was a very polite letter to write to someone wanting to buy a photograph, but it was a most inappropriate letter to write to Lord Bernstein. 

After Skyviews did not respond to a pre-action letter, Lord Bernstein commenced proceedings.

The judgment in Bernstein of Leigh v Skyviews 

For the purposes of the legal principle, the issue was whether Lord Bernstein owned the airspace through which Skyviews’ plane had flown.  In his judgment, Mr Justice Griffiths held that:

The best way to strike [a balance between allowing a landowner to use their land and the public to use the airspace] in our present society was to restrict the rights of an owner in the airspace above his land to such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it, and to declare that above that height had no greater right in the airspace than any other member of the public.

On the facts, the Judge held that there was no trespass.  The flight in question was ‘hundreds of feet above the ground and it is not suggested that by its mere presence in the airspace [the aeroplane] caused any interference with any use to which [Lord Bernstein] put or might wish to put his land’.

For the purposes of common law trespass, there have been no major developments since this case.  Therefore, while Bernstein indicates that flying hundreds of feet above a property is not sufficient to amount to trespass, it does not define the lower limit: the point at which airspace ceases to be owned by the land owner and starts to be available for general public use. Indeed, the expression used in the case suggests that there is no one definitive answer to this question.  As the balance to be struck relates to the ‘ordinary use and enjoyment of the land and the structures upon it’, it is quite plausible that land that contains a block of flats or wind turbine might have greater rights to airspace (by virtue of the height of the structure) than, say, a bungalow or meadow.

While not strictly relevant to the extent of ownership of airspace, section 76 of the Civil Aviation Act 1982 provides a defence to trespass in certain circumstances: 

‘(1) No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order […] have been duly complied with.’

Therefore, despite its age, the Bernstein case continues to indicate the limits of ownership of airspace for the purposes of aircraft: that the airspace above land is included within it so far as this is necessary for the ordinary use and enjoyment of that land.