England and Wales High Court (Queen's Bench Division) Decisions

Queen's Bench Division

		9 February 1977

1. Giving judgment, GRIFFITHS J said Skyviews were a company who took aerial photographs of properties. For this purpose they sent photographers on survey flights. During these flights a number of properties would be photographed and later the photographs would be offered for sale to the owners. Lord Bernstein complained when he was offered an aerial photograph of his country home, Coppings Farm, in Kent. He said it was taken without his consent and was a gross invasion of his privacy. He demanded that the prints and negative should be handed over to him or destroyed. Mr Arthur Ashley, managing director of Skyviews, said if he had known of this request he would have undertaken to destroy the photograph and negative and not to take another similar photograph in the future. However, Lord Bernstein's letter was answered by an 18-year-old secretary, who offered to sell him the negative for £ 15. After further letters Lord Bernstein started proceedings claiming that Skyviews wrongfully entered the airspace above his premises in order to take the photograph of his house. He claimed they trespassed and committed an actionable invasion of his right to privacy. Skyviews, who admitted taking the photograph, denied entering the airspace to do so. They claimed it was taken while the aircraft was flying over adjoining land. Skyviews, who instructed their pilots to photograph buildings, the owners of which might prove likely customers, claimed that their photograph was taken at a height of some 630 ft and 30metres outside the boundary of Coppings Farm. Lord Bernstein, who had sent an aerial photographer up in a helicopter to try to recreate the Skyviews photograph, claimed that it would have been taken at around 1,000 ft from 30 ft inside the boundary. The pilot of the plane from which the Skyviews photograph was taken in 1974 was not available to give evidence. However, on any view of the evidence the plane would have flown close to the border of Coppings Farm at the time the photograph was taken and the probabilities were that at some time it had flown over the land. He (his Lordship) found that the land had been overflown for the purpose of photography without Lord Bernstein's consent.
2. Relying on the old Latin maxim Cujus est solum ejus est usque ad coelum et ad inferos (whose is the soil his is also that which is above and below it), Lord Bernstein claimed the right to exclude any entry into airspace above his property. The maxim, first coined in the 13th century in Bologna, had been used by English judges in a number cases concerned with structures attached to adjoining land - overhanging buildings, signs, telegraph poles and the like.
3. It was well established by authority that an owner had certain rights in the airspace above his land. The Court of Appeal did not doubt the right of a landowner to cut a wire placed over his property in Wandsworth Board of Works v United Telephone Co (1884) 13 QBD 904. In Gifford v Dent (1926) 71 SJ 83 it was held by Romer J that it was a trespass to erect a sign projecting 4 ft 8 in over the plaintiff's forecourt. In Kelsen v Imperial Tobacco Co [1957] 2 QB 334 McNair J granted a mandatory injunction ordering the defendants to remove a sign which projected only 8 ft over the plaintiff's property. Strong reliance was placed on the last case by Lord Bernstein. But his Lordship doubted if McNair J's intention was to hold that the plaintiff's rights in airspace continued to an unlimited height. He had been considering whether the sign, which was at a very low level, was a trespass or nuisance. This had been indicated by the judge's reference to Winfield on Tort (6th ed p 380) in which the author held that trespass was limited to the height at which it was contemplated that an owner might be expected to make use of the airspace as a natural incident of the user of his land.
4. Lord Ellenborough in Pickering c Rudd (1815) 4 Camp 216 said it would not be a trespass to pass over a man's land in a balloon. Lord Wilberforce in Commissioner for Railways v Valuer-General [1974] AC 328, at 351 said that it was unlikely that such a sweeping, unscientific and unpractical doctrine as that 'land' meant the whole of the space from the centre of the earth to the heavens would appeal to the common law mind. If the latin maxim were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden. The problem in this case was to balance the rights of a landowner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offered in the use of airspace. The best way to strike that balance 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 he had no greater rights in the airspace than any other member of the public.
5. Applying this test to the facts of this case, his Lordship found that, even though Skyviews' aircraft had flown over Lord Bernstein's property, it did not infringe any of Lord Bernstein's rights to airspace, and thus no trespass was committed. Lord Bernstein had complained, not that the aircraft had interfered with his use of his land, but that a photograph was taken. There was no law against taking a photograph, however, and the taking of a photograph could not turn an act which was not trespass into trespass. Even if Lord Bernstein had succeeded in establishing that the infringement of the airspace above his land constituted a trespass he would only have achieved a sterile remedy. For there would still be nothing he could do to prevent Skyviews taking a virtually identical photograph of his property from adjoining land, provided they took care not to cross his boundary and were taking it for an innocent purpose.
6. A further defence had been raised under the Civil Aviation Act 1949. He (his Lordship) read section 40 (1) as giving protection from actions of trespass or nuisance to all flights which were at a reasonable height and complied with the statutory requirements.
7. At the same time, however, the present judgment should not be understood as deciding that in no circumstances could a successful action be brought against an aerial photographer to restrain his activities. The judgment was far from saying that if a plaintiff was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity, the courts would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief.
8. The action failed and there would be judgment for the defendants.

The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.