The following Property practice note provides comprehensive and up to date legal information covering:
Trespass is the unlawful presence of a person on land in the possession of another. The ownership of land includes the airspace above it. Therefore, an invasion of the airspace above it is a trespass.
In Baron Bernstein, a plane flying over land to take photographs was held not to be a trespass, on the basis that the landowner’s rights, in relation to the airspace, extended only to the height necessary for the ordinary use and enjoyment of the land and the structures on it. However, in Kelsen, a sign extending just eight inches into the airspace above the land was held to be a trespass. In Anchor Brewhouse, the High Court confirmed that the difficulties posed by aircraft etc. were wholly separate from an invasion of airspace by a structure erected on adjoining land, where the position is more certain. The latter is a trespass.
The adjoining landowner can claim damages and obtain an injunction. Trespass is actionable, and so an injunction and nominal damages can be obtained, without the landowner having to demonstrate damage. It is sufficient that its property rights are being interfered with. Therefore, it is no defence that the damage is trivial and the landowner’s ordinary business is not interfered with.
Oversailing issues crop up, commonly, in the case of development where a tower crane is used. The swinging of the
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