WJEC Eduqas A Level Law Book 2 sample

28 Law of Tort Trespass in airspace In Bernstein v Skyviews and General Ltd (1977) the defendants had flown over the claimant’s land to take an aerial photograph of his property which they then offered to sell to him. The High Court stated that there was no trespass because the claimant did not have an unlimited right to all the airspace above his land but only the right to that airspace as was necessary for the ordinary use and enjoyment of his land and buildings. Griffiths J said: ‘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.’ Trespass below the surface of land In Star Energy Weald Basin Limited v Bocardo SA (2010) , the Supreme Court held that the defendant had trespassed when, from adjacent land, it had vertically drilled oil wells that were 244 to 853 metres below the surface of the claimant’s land. However, since s43 Infrastructure Act 2015 , land that is 300 metres or more below the surface (‘deep-level land’) can be exploited for ‘the purposes of exploiting petroleum or deep geothermal energy’ without liability for trespassing. Trespass ab initio Ab initio is Latin for ‘from the beginning’. This is a form of trespass that occurs when a person who has entered land with the authority given by law, rather than with the permission of the person possessing the land, subsequently commits an act which is an abuse of that authority. The authority is cancelled retrospectively and the entry is deemed to have been a trespass from the beginning. This type of trespass action was often used in cases against the police when they had exceeded the authority given to them with a search warrant while seizing stolen goods during a search of premises. Such an action often meant damages were assessed on the tortious nature of the police’s whole conduct, rather than just the abuse of authority. However, precedent and statute law have increased the power of the police when searching premises so such actions are rarely successful today and, therefore, some textbooks regard trespass ab initio as having little relevance to English and Welsh law today. Actions for trespass ab initio are more common in other common law jurisdictions such as the USA. Research the Infrastructure Act 2015 . Why is s43 controversial? STRETCH AND CHALLENGE One of the reasons why fracking is controversial is because the Infrastructure Act 2015 allows companies to drill into land without liability for trespass, even if they do not have the landowner’s permission