Introduction
This essay presents a dissenting judgment in the case of Bernstein v Skyviews & General Ltd [1978] QB 479, imagining myself as a judge at the time of the ruling. The original judgment by Griffith J concluded that the landowner, Lord Bernstein, did not possess rights to the airspace above his property to an unlimited height, thereby dismissing his claim of trespass against Skyviews for aerial photography taken from an aircraft. My dissenting opinion will argue that the traditional principle of land ownership, encapsulated in the Latin maxim cuius est solum, eius est usque ad coelum et ad inferos (whose is the soil, his is also that which is above it to the heavens and below it to the depths), retains relevance and should afford the landowner some control over the airspace immediately above their property. This dissent will explore the historical legal principles, the practical implications of aerial incursions, and the need for a balanced approach to modern technological advancements.
Historical Legal Principles and Land Ownership
The foundational principle of land ownership in English law historically includes rights to the airspace above one’s property. As Blackstone (1766) articulated, land ownership extends upwards to the heavens, providing a clear basis for control over what occurs above one’s estate. Although Griffith J in the original judgment argued that this maxim is outdated in the face of modern aviation, I contend that dismissing it entirely undermines a core tenet of property law. While it is impractical to claim ownership of all airspace to an infinite height, a reasonable limit—perhaps defined by the height at which ordinary use and enjoyment of the land are affected—should be recognised. The incursion by Skyviews, flying at a height of approximately 1500 feet, may not pose a direct physical threat, but it interferes with the landowner’s right to privacy and exclusive enjoyment of their property, principles deeply embedded in English law.
Practical Implications of Aerial Incursions
Furthermore, the activities of Skyviews raise significant concerns about privacy, an issue not sufficiently addressed in the majority judgment. Lord Bernstein’s estate was photographed without consent, arguably constituting an invasion of his personal domain. While aviation law, including the Civil Aviation Act 1949, grants certain rights to overflight, it does not explicitly permit commercial exploitation of private property through aerial photography. Without legal recourse, landowners are left vulnerable to intrusions enabled by technological advancements. A dissenting view must therefore weigh the public interest in aviation against individual rights to privacy and property. Indeed, I propose that a reasonable height limit or specific consent requirement could offer a fair compromise, protecting landowners while accommodating modern necessities.
Balancing Modern Technology and Property Rights
Admittedly, modern technology and aviation require a pragmatic approach to airspace regulation. However, completely negating a landowner’s rights, as Griffith J’s judgment does, tips the balance too far in favour of commercial interests. I suggest that statutory or judicial clarification is necessary to define a zone of control—perhaps up to a height of 500 feet—within which a landowner retains some authority to prevent intrusions unrelated to public navigation. This approach would align with the principle of balanced rights, ensuring neither party is unreasonably disadvantaged. The rapid development of aerial technologies, such as drones in later years, only reinforces the need for such foresight, though I must base my dissent on the context of 1977.
Conclusion
In conclusion, this dissenting judgment argues that Griffith J’s ruling in Bernstein v Skyviews & General Ltd fails to adequately protect the traditional rights of landowners to the airspace above their property. By revisiting the historical principle of cuius est solum, acknowledging privacy concerns, and advocating for a balanced approach to modern aviation needs, I propose a limited but meaningful recognition of airspace rights for landowners. The implications of this dissent extend beyond the immediate case, highlighting the necessity for legal frameworks to evolve with technology while safeguarding fundamental property rights. A compromise, through defined height limits or consent mechanisms, offers a fairer resolution, ensuring that neither individual privacy nor public convenience is unduly compromised.
References
- Blackstone, W. (1766) Commentaries on the Laws of England. Oxford: Clarendon Press.
- Bernstein v Skyviews & General Ltd [1978] QB 479.
- Civil Aviation Act 1949. London: HMSO.
