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Property I Physical Limits Of Land Notes

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This is an extract of our Property I Physical Limits Of Land document, which we sell as part of our Property Law Notes collection written by the top tier of University College London students.

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PROPERTY I

1. Physical Limits of Land
The maxim/Brocard: Basically that property rights extend all the way above and all the way below that property.
(a)The application of the brocard in relation to ownership 2 points are very clear:
(i)

an owner's rights are not limited to the surface of the land itself:

Above the land:
See e.g. Kelsen v Imperial Tobacco Co [1957] 2 QB 334: an injunction was granted forcing the tobacco company to take down a sign that encroached on the air space above Kelsen's shop.
Below the land:
See e.g. Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35, [2011] 1 AC
380: damages were awarded to Bocardo as Star Energy had drilled diagonally in order to extract oil from an area ranging from roughly 800 feet to 2,800 feet (250 m to 850m) below the surface of Bocardo's land.
(ii)

an owner does not have complete and unlimited control over the area both above and below the surface of the land:

Above the land:
See e.g. Bernstein v Skyviews [1978] QB 479: no damages were awarded to Lord
Bernstein when Skyviews flew an aircraft above his land without his permission
(there was a "fierce dispute as to the position and height of the aircraft": see
Griffiths J at 484).
Civil Aviation Act 1949, s 40(1): stipulates that flying an aircraft over someone's property, at a reasonable height is not trespassing and does not count as a nuisance.
Below the land:
Note Lord Hope in Bocardo at [15]: "The depths to which the wells in question were drilled in this case do not get anywhere near to approaching the point of absurdity. The fact that there were substances at that depth which can be reached and got by human activity is sufficient to raise the question as to who, if anybody, is the owner of the strata where they are to be found."
2 points are much less clear:
(i)

what are the limits to an owner's rights above the surface?

Griffiths J= Need to make an exception for aircrafts therefore owners' rights should only extend to ''such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it.'' As = public interest in allowing aircrafts to pass.
Anchor Brewhouse Developments Ltd v Berkley House [1987] 2 EGLR 173: It was held that a trespass was committed when the defendant's crane swung over the claimant's property. See Scott J at 175-6:
''If an adjoining owner places a structure on his land that overhangs the neighbour's land, he thereby takes into his possession air space to which his neighbour is entitled. That, in my judgment, is trespass…
The difficulties posed by overflying aircraft or balloons, bullets or missiles seem to me to be wholly separate from the problem which arises where there is invasion of air space by a structure placed or standing upon the land of a neighbour.''= distinguishes from skyview.
PUBLIC POLICY: owner's control over airspace is limited because it would be unreasonable and impractical considering 21 st century air traffic. A balance must be struck between the claims of the party with a pre-existing property right and the freedom of others.
(ii)

do the same limits apply below the surface as above the surface?

Lord Hope in Star EnergyV.Bocardo- Rejects that Lord Griffith's skyview test should apply below the land
- oil field under a property - S had drilled under B's land - issue was the extent to which the property right extended below the land - held that the limit to a right below land was the point at which the concept of ownership became absurd(point of absurdity) - owner of surface owns substrate beneath, unless transferred to another by statute/conveyance - no question of subsurface becoming public highway, like airspace.

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