Bernstein of Leigh (Baron) v Skyviews & General Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
[QUEEN'S BENCH DIVISION] BERNSTEIN OF LEIGH (BARON) v. SKYVIEWS & GENERAL LTD. [1975 B. No. 6333] 1977 Feb. 2, 3, 4; 10 Griffiths J.

Trespass - Air space - Aerial photography - Landowner's rights in airspace above property - Whether flight over properly for purpose of photography trespass and/or invasion of privacy - Application of statutory protection - Civil Aviation Act 1949 (12 & 13 Geo. 6, c. 67), s. 40 (1)F1

The defendants flew over the plaintiff's land for the purpose of taking an aerial photograph of the plaintiff's country house which they then offered to sell to him. The plaintiff claimed damages, alleging that by entering the airspace above his property in order to take aerial photographs the defendants were guilty of trespass, and/or were guilty of an actionable invasion of the plaintiff's right to privacy by taking the photograph without his consent or authorisation: —

Held, giving judgment for the defendants, that an owner's rights in the airspace above his land were restricted to such height as was necessary for the ordinary use and enjoyment of the land and structures upon it, and above that height he had no greater rights than any other member of the public; that, accordingly, the defendants' aircraft did not infringe any rights in the plaintiff's airspace and thus did not commit any trespass by flying over land for the purpose of taking a photograph (post, p. 141F–H).

Per curiam. The protection given by section 40 (1) of the Civil Aviation Act 1949 extends to all flights which are at a reasonable height and comply with the statutory requirements (post, p. 142H).

The following cases are referred to in the judgment:

Commissioner for Railways v. Valuer-General [1974] A.C. 328; [1973] 2 W.L.R. 1021; [1973] 3 All E.R. 268, P.C.

Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P. 10.

Gifford v. Dent [1926] W.N. 336; 71 S.J. 83.

Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334; [1957] 2 W.L.R. 1007; [1957] 2 All E.R. 343.

Lemmon v. Webb [1894] 3 Ch. 1, C.A.

Pickering v. Rudd (1815) 4 Camp. 219.

Saunders v. Smith (1838) 2 Jur. 491.

Sovmots Investments Ltd. v. Secretary of State for the Environment [1977] Q.B. 411; [1976] 3 W.L.R. 597; [1976] 3 All E.R. 720, C.A.

Wandsworth Board of Works v. United Telephones Co. Ltd. (1884) 13 Q.B.D. 904, C.A.

The following additional cases were cited in argument:

Hickman v. Maisey [1900] 1 Q.B. 752, C.A.

Kenyon v. Hart (1865) 6 B. & S. 249.

Roedean School Ltd. v. Cornwall Aviation, The Times, July 3, 1926.

Woollerton and Wilson Ltd. v. Richard Costain Ltd. [1970] 1 W.L.R. 411; [1970] 1 All E.R. 483.


By a writ dated June 26, 1975, the plaintiff, Sidney Lewis, Baron Bernstein of Leigh, alleged that the defendants, Skyviews & General Ltd., aerial photographers, were guilty of trespass in that on a date late in 1974 they, their servants or agents, wrongfully entered the airspace above the plaintiff's premises, Coppings Farm, Leigh, Kent, in order to take aerial photographs of the plaintiff's residence; further or alternatively the plaintiff alleged that the taking of the aerial photographs of the plaintiff's home without his consent or authorisation constituted an actionable invasion of the plaintiff's right to privacy. The plaintiff claimed damages for trespass and/or invasion of the plaintiff's right to privacy; an injunction to restrain the defendants from entering the plaintiff's premises or the airspace above them; an injunction to restrain the defendants from invading the plaintiff's right to privacy by taking unauthorised aerial photographs of his home or otherwise; an order for the immediate delivery up, alternatively the destruction, of all negatives and prints of the photographs.

By their defence the defendants admitted that they took aerial photographs of the plaintiff's premises but denied entering the airspace above the premises to do so; alternatively, they claimed that if they did enter the airspace above the plaintiff's premises such entry was by the leave of the plaintiff; further and in the alternative, they claimed the protection of section 40 (1) of the Civil Aviation Act 1949.

The facts are stated in the judgment.

Charles Gray for the plaintiff.

L. D. Lawton Q.C. and Gerald Lumley for the defendants.

Cur. adv. vult.

February 10. GRIFFITHS J. read the following judgment. On August 3, 1974, the defendants took a single aerial photograph of Lord Bernstein's country house in Kent. It was one of many thousands of such photographs that the defendants have taken over the course of the last 17 years for their business is to take aerial photographs of properties of all types and then to offer them for sale to the owners. They offered to sell Lord Bernstein the photograph that they had taken of his house, but Lord Bernstein took strong exception to their behaviour. He wrote to complain that photographing his house without his permission was a gross invasion of privacy and demanded that they hand over or destroy all negatives and prints of his house. Unfortunately Lord Bernstein's letter was not seen by Mr. Ashby, the managing director of the defendants, who are a small family company. If he had seen it he tells me that he would have immediately undertaken to destroy the negative and promised never to take another photograph of Lord Bernstein's property. The last thing Mr. Ashby wishes is to give offence and he says that apart from one complaint of low flying this is the first time that an owner has complained about his property being photographed. If only Mr. Ashby had seen the letter I have no doubt he would have done as he said and that would have been the end of the matter. But he did not see the letter, and it was in fact answered by a young lady of 18 who had only recently joined the defendants. She wrote thanking Lord Bernstein for his letter and offering to sell him the negative for £15. It was a very polite letter to write to someone wanting to buy a photograph, but it was a most inappropriate letter to write to Lord Bernstein. It naturally gave offence and Lord Bernstein went to his solicitors. They wrote to the defendants on March 12, 1975, complaining of the effrontery to offer to sell the negative and alleging that the defendants had trespassed into Lord Bernstein's air space and thus invaded his privacy. They called upon the defendants to deliver up the negatives and prints, to undertake not to infringe Lord Bernstein's rights again and to apologise. Here was another chance...

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    ...flight has made it impossible to apply the brocard usque ad coelum literally. In Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 Baron Bernstein failed in his claim that the defendants, who had flown over his land to take an aerial photograph of his property which they th......
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