MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
someone’s land could amount to trespass. The Judge also quoted from Lord Wilberforce’s speech in Commissioner for Railways -v- Valuer-General [1974] AC 328, 351 in which he noted that: “ In none of these cases is there an authoritative pronouncement that ‘land’ means the whole of the space from the centre of the earth to the heavens: so sweeping, unscientific and unpractical doctrine is unlikely to appeal to the common law mind. ” 67. Griffiths J could find no support in the case law for the contention that a landowner’s rights in the air space above his property extend to an unlimited height ( 487G-H) :
“In Wandsworth Board of Works -v- United Telephone Co. Ltd. (1884) 13 QBD 904 Bowen LJ described the maxim, usque ad coelum , as a fanciful phrase, to which I would add that if applied literally it is a fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden. The academic writers speak with one voice in rejecting the uncritical and literal application of the maxim... I accept their collective approach as correct. The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public.”
68. On the facts, there had been a “ fierce dispute ” between the parties as to the height at which the plane had flown to take the photograph, and the Judge found only that it had flown “ many hundreds of feet above the ground ” ( 488C ). He added:
“… it is not suggested that by its mere presence in the air space it caused any interference with any use to which the plaintiff put or might wish to put his land. The plaintiff’s complaint is not that the aircraft interfered with the use of his land but that a photograph was taken from it. There is, however, no law against taking a photograph, and the mere taking of a photograph cannot turn an act which is not a trespass into the plaintiff’s air space into one that is a trespass.”
69. In a passage that perhaps echoes some of Ms Bolton’s submissions in this case, Griffiths J noted, but rejected, the argument that photographs of the claimant’s property obtained from the air could be used for nefarious purposes ( 488E-F ):
“… [Counsel for the plaintiff], however, conceded that he was unable to cite any principle of law or authority that would entitle Lord Bernstein to prevent someone taking a photograph of his property for an innocent purpose, provided they did not commit some other tort such as trespass or nuisance in doing so. It is therefore interesting to reflect what a sterile remedy Lord Bernstein would obtain if he was able to establish that mere infringement of the air space over his land was a trespass. He could prevent the defendants flying over his land to take another photograph, but he could not prevent the defendants taking the virtually identical photograph from the adjoining land provided they took care not to cross his boundary, and were taking it for an innocent as opposed to a criminal purpose.”
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