FREE CHAPTER from ‘A Practical Guide to Rights Over Airspace and Subsoil – Second Edition’ by Daniel Gatty

CHAPTER ONE – FREEHOLD OWNERSHIP OF AIRSPACE AND SUBSOIL

  1. Introduction

The questions of who owns the air above our heads and the earth beneath our feet affects modern life in many ways. It may impact on a basement development under an expensive house in Holland Park, fracking in Lancashire (should fracking be permitted in the future), a landlord’s wish to add a new floor on top of a block of flats or a hobbyist’s desire to fly a drone over his neighbour’s back garden. Modern statutes will be relevant to many of the issues that arise in this context but the starting point remains the common law and its treatment of the vertical extent of landownership.

Legal legend has it that the owner of land owns everything above it up to the sky and below it down to the centre of the earth or, to put it theologically, up to heaven and down to hell. The origin of that legend is a Latin maxim, cuius est solum eius est usque ad coelum et ad inferos (or some version of it), which has been attributed to Accursius, a commentator on Roman law who lived in Bologna in the 13th century. A form of the maxim is to be found in English law reports as early as the 16th century, in Bury v Pope (1586) Croke, Elizabeth 118. It was discussed by Lord Coke in ‘On Littleton’ published in 1628 and has cropped up in law reports and textbooks regularly ever since.

The maxim is an oversimplification as legal maxims tend to be, but not without force even today. In Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35 Lord Hope, with whom the rest of the Court agreed, held that, “the brocard[1] still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance”.

Its general acceptance can be seen from Lord Briggs’s judgment in the Supreme Court case of Southwark LBC v Transport for London [2018] UKSC 63, [2020] AC 914 where he observed by way of introductory background:

“A basic feature of the conveyance or transfer of freehold land by reference to an identified surface area is that, unless the context or the language of the grant otherwise requires or provides (e g by a reservation of minerals), its effect is to vest in the transferee not only the surface of the ground, but the subsoil down (at least in theory) to the centre of the earth and the air space up (at least in theory) into the heavens. Viewed in the vertical plane, the transferee acquires ownership not only of the slice on the surface but of the whole of the space above it, and the ground below it.”

  1. Subsoil

Bocardo is the leading authority on freehold ownership of subsoil. In that case Star Energy had a government issued licence to search for oil in a reservoir of petroleum and natural gas beneath land in Surrey. Star Energy’s predecessor had bored under Bocardo’s land and laid pipelines between 800 feet and 2,800 feet beneath the surface without Bocardo’s consent. The licence permitted the extraction of the gas and petroleum below the surface (which belonged to the Crown by statute) but if Bocardo owned the strata down to that depth, the licence did not authorise the laying of pipes in the strata which would therefore be a trespass. Star Energy argued that Bocardo’s ownership of the land did not extend down to the depths at which the pipelines had been installed. That argument was rejected. Lord Walker distinguished between subsoil and airspace (as to the latter see below). So far as subsoil is concerned, he held that:

“…the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of it by a conveyance, at common law or by statute to someone else… There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about.”

The pipelines, however, were “far from being so deep as to reach the point of absurdity” and hence were a trespass into Bocardo’s land.

While the Supreme Court recognised in Bocardo that there was a depth below which it could not be meaningfully said that a landowner’s ownership extends, it can be seen that this depth is so far below the surface that it is difficult to conceive of anyone laying claim to the strata below it. In practice, therefore, freeholders do own the soil below the surface “ad inferos”, i.e. as far down as could have any conceivable practical use.

To that general statement there will be exceptions where the subsoil or minerals within it belong to someone else as a result of a conveyance, statute or the common law. As far as mines and minerals go, all gold and silver in mines vests in the Crown by common law (specifically by Royal Prerogative); see Attorney-General v Morgan [1891] 1 Ch 432. Petroleum in its natural condition in strata vests in the Crown by s. 2 of the Petroleum Act 1998 (consolidating earlier legislation). Unworked coal and coal mines are vested in the Coal Authority by s. 7 of the Coal Industry Act 1994 (having previously been vested in the British Coal Corporation and before that the National Coal Board and before that the Coal Commission, the previous iterations of what is now the Coal Authority).

For a recent discussion of the effect of an early nineteenth century enclosure act which separated out mines and minerals from the surface – leaving the mines and minerals under common and waste land owned by the Lord of the Manor while allotting the surface of the common and waste land, see Wynne-Finch v Natural Resources Body for Wales [2020] EWHC 1924 (Ch).

  1. Airspace

The invention of manned flight created obvious difficulties with the application of the cuius est solum eius est usque ad coelum maxim to an indefinitely high column of airspace. Over two hundred years ago, in Pickering v Rudd (1815) 4 Campbell 219, Lord Ellenborough LCJ was to be found discussing whether the maxim would render “an aeronaut … liable to an action of trespass , at the suit of the occupier of every field over which his balloon passes in the course of his voyage”. He thought not.

Statutes such as the Air Navigation Act 1920 and the Civil Aviation Act 1982 provided protection from actions in trespass or nuisance by reason of aircraft flight over property at a reasonable height above the ground but did not attempt to refine the common law as to the vertical extent of land ownership. That has been left to the courts. In Bernstein of Leigh v Skyviews & General [1978] QB 479 Griffiths J observed that to apply the maxim literally would lead to the absurdity that it would be a trespass for a satellite to pass over a suburban garden. He held that the balance between a landowner’s right to enjoy his land and the general public’s rights to use airspace was:

“.. best struck … by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public”.

Bernstein has been cited approvingly in various subsequent cases, including in the Supreme Court in Bocardo, and must be taken to be a correct statement of the law. In Bernstein itself it was held that the defendant did not trespass on Lord Bernstein’s property by flying over it to take aerial photographs.

On the other hand, there has been held to be a trespass or nuisance where:

  • a cornice overhung a neighbour’s garden: Fay v Prentice (1845) 1 CB 828
  • an advertising sign projected over a neighbour’s property: Gifford v Dent [1926] WN 336 and Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334
  • the booms of tower cranes oversailed the claimant’s land: Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173
  • an extractor fan projected over the claimant’s yard: Laiqat v Majid [2005] EWHC 1305 (QB).

In a recent unreported case, Anglo International Upholland Ltd v Wainwright and persons unknown (2023, Unrep.) HHJ Bird sitting as a High Court Judge granted an interim injunction against the flying of drones by ‘urban explorers’ over the Claimant’s derelict seminary building. However, in MBR Acres v Free the MBR Beagles [2021] EWHC 2996 (QB) Nicklin J refused to grant an interim injunction against the flying of drones over the Claimant’s site (in order to take photographs) partly because it was uncertain whether that amounted to a trespass.

In addition to the limit on the vertical extent of ownership at common law described in Bernstein of Leigh v Skyviews, section 76(1) of the Civil Aviation Act 1982 provides that:

“No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and of any orders under section 62 above have been duly complied with”.

The term ‘aircraft’ is not defined in the 1982 Act and there have been no judicial decisions as to whether section 76 applies to drones. However, drones are referred to as ‘unmanned aircraft’ in other legislation such as the Air Traffic Management and Unmanned Aircraft Act 2021. The Air Navigation Order 2016 (as amended) makes reference to unmanned aircraft in, for example, article 94A restricting flights of unmanned aircraft near aerodromes. Schedule 4, paragraph 1 of the Air Navigation Order 2016 defines a “remotely piloted aircraft” as an unmanned aircraft. So, it is likely that section 76 of the 1982 Act would be held to apply to drones, providing drone operators with immunity from trespass and nuisance actions so long as the drone is flown at a height which is reasonable in all the circumstances and in compliance with the Air Navigation Order 2016 etc.

  1. 76 would not provide immunity from other possible causes of action, however, such as for harassment, misuse of private information or under the UK GDPR and Data Protection Act 2018 if, say, the drone is used to film individuals in their homes or gardens.

An unauthorised trespass into a neighbour’s airspace will normally be restrained by injunction. See Trenberth (John) Ltd v National Westminster Bank Ltd (1979) 39 P & CR 104. However, the question whether the court will grant an injunction or damages in lieu of an injunction is a nuanced one. Historically, the courts have applied guidance given by A.L. Smith LJ in Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 where he put forward a ‘good working rule’ that damages can be granted in lieu of an injunction:

“(1.) If the injury to the plaintiff’s legal rights is small,

(2.)  And is one which is capable of being estimated in money,

(3.)  And is one which can be adequately compensated by a small money payment,

(4.)  And the case is one in which it would be oppressive to the defendant to grant an injunction”.

In Coventry v Lawrence [2014] UKSC 13, [2014] AC 822, the Supreme Court criticised what was described as an ‘almost mechanical’ application of that guidance in past cases and emphasised the breadth of the Court’s discretion as to whether to award damages in lieu of injunction.

  1. Statutory Regulation of Manned Flight Through Airspace

As indicated above, it has long been recognised that landowners’ rights to the airspace above their land cannot be allowed to inhibit the use of that airspace, above a reasonable height, for powered flight. Aviation in the United Kingdom is regulated by the Civil Aviation Act 1982, the Airports Act 1986, the Transport Act 2000, the Civil Aviation Act 2012 and various statutory instruments including the Air Navigation Order 2016 and the Rules of the Air Regulations 2015. There is also much European Union law which affected United Kingdom air law and which became retained law following Brexit. This book is not the place for a detailed discussion of aviation law. Reference should be made to specialist texts for a full discussion of the statutory regimes affecting flight and the international agreements to which much of the legislation gives effect.

  1. Dealings with freehold interests in airspace or subsoil

As will be discussed further in subsequent chapters, there is nothing to prevent the freehold owner of land carving out a horizonal division of it to sell, be that above or below the ground. The Law of Property Act 1925, s. 205(1)(ix) provides that ‘“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) …’.

A freehold interest in an upper storey of a building is known as a “flying freehold”. According to Lord Keith in Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 at 184:

“Horizontally divided ownership of a building was extremely uncommon in England and Wales in 1957, being practically unknown… outside Lincoln’s Inn. It is a conception which gives rise to a very complicated situation as regards the mutual rights and obligations of the several owners. It is, however, a conception familiar to the law of Scotland for centuries …”.

Flying freeholds are not so uncommon now, although they are still comparatively rare.

Indeed, a flying freehold is capable of being acquired by adverse possession. See, for example, Abbahall Ltd v Smee [2003] 1 WLR 1472.

Even where the flying freehold is created by a conveyance or transfer there can be difficulties in regulating responsibility for maintenance and support. Positive covenants are not enforceable against subsequent owners; see Rhone v Stephens, [1994] 2 AC 310, a case concerning the roof of a house divided into flying freeholds. The principle of benefit and burden (a subsequent owner enjoying a benefit may be made subject to a reciprocal burden) will sometimes enable a positive covenant to be enforced by or against the owner of a flying freehold, but not always. The House of Lords decided that it did not assist the plaintiffs in Rhone who were seeking to enforce a covenant to repair the roof.

Absent any enforceable covenant, a common law duty in nuisance to take reasonable steps to prevent injury to a neighbour may require the owner of a flying freehold to contribute towards the cost of repair works; see Abbahall Ltd v Smee [2003] 1 WLR 1472.

Flying freeholds do not only exist above ground level, as the name suggests. There can also be a subterranean flying freehold where, for example, a cellar is conveyed or reserved separately to the house above it; see Grigsby v Melville [1974] 1 WLR 80 at 83. The existence of a subterranean flying freehold beneath a building may cause conveyancing difficulties for the building above if there are not clear rights of support in favour of the building and protection in respect of the subterranean layer.

Whether a particular parcel of land, or horizontal division of a parcel of land, is included in a conveyance is a mixed question of fact and law. In Pennock v Hodgson [2010] EWCA Civ 873 Mummery L.J. summarised the approach that the court takes to identifying boundaries as follows:

“(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the Defendant being first in time.

(2)   An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.

(3)   Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.

(4)   In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.”

Normally, the plan to a conveyance will only show the outline of the land being sold at ground level, rendering it of little use if a question arises as to whether the parcel conveyed includes a subterranean level or a particular area above ground. The words of the parcels clause (the clause describing what is being conveyed) may make the position clear but, if not, the Court’s starting position is likely to be as follows:

  1. A conveyance of land ordinarily carries with it all that is beneath the surface (Grigsby v Melville [1974] 1 WLR 80 at 85 and 88, where a cellar was conveyed with the property above it even though the most convenient access was from a neighbouring property).
  2. Since ownership of land normally carries with it the airspace above the land to such height as is necessary for the ordinary use and enjoyment of the land, a conveyance of land normally carries with it the whole of any building standing on it. In Laybourn v Gridley [1892] 2 Ch 53, for example, where part of a loft projected into the neighbouring property, it was held that the projecting part of the loft was conveyed as part of the neighbouring property.
  3. Where the footings or eaves of a building extend beyond the boundary shown on a plan to a transfer separating the two parcels, the usual inference will be that they were intended to be included. Hence the transferee may acquire the footings and eaves but not the column of air between them. See Truckell v Stock [1957] 1 WLR 161.

A question that does not appear to have featured in many cases is whether a flying freehold comprising part of a building carries with it the airspace above or subsoil below the building. Consider a 3 storey building owned by A. A sells the freehold of the top floor including the roof to B, or of the ground floor to C, in either case retaining the other two floors. Does B acquire the airspace above the building or C the subsoil beneath it? Or do they remain with A who retains two-thirds of the building? Or are they somehow shared? The question would have to be approached by construing the conveyance to B or C. What, objectively speaking, were the intentions of the parties as to the vertical extent of the interest conveyed? Hence the question is essentially one of the boundary of the flying freehold sold, rendering it unlikely that A and B or C, as the case may be, would be held to share ownership of the subsoil or airspace unless the transfer expressly provides for joint ownership. If the terms of the transfer considered with the physical features of the land do not throw any light on the parties’ intentions, the cuius est solum eius est usque ad coelum et ad inferos maxim may raise an inference that the subsoil was to go with freehold ownership of the bottom floor or airspace with freehold ownership of the top floor.

That is by no means the only possible inference, though. In Corbett v Hill (1869-70) LR 9 Eq 671 Sir William James V-C considered exactly this issue. C owned two adjoining houses and sold one of them to H. During redevelopment works by H it became apparent that a first-floor room retained by C projected into the house sold to H and was supported by it. Both parties claimed the air space above that room. The Vice-Chancellor held that H owned the air space. C retained the room (as a flying freehold) but owned nothing above or below it. The room was a diminution of H’s ownership of the land and house that H had purchased, which otherwise extended upwards on the cuius est solum eius est usque ad coelum principle. Unfortunately, the judgment does not provide much explanation for why the Judge reached his conclusion. Nevertheless, in Laybourn v Gridley [1892] 2 Ch 53 (discussed in Chapter 3) North J said that he would have applied the decision in Corbett regarding the airspace above part of a loft alleged to comprise a flying freehold had he found the loft to be a flying freehold rather than within the ownership of the building beneath the loft.

In relation to subsoil, the fact that the whole building’s foundations will be within the subsoil may point away from an inference that the subsoil goes with a flying freehold of the ground floor, as it has been held to do in the case of a lease of the ground floor (dealt with in the following chapter).

  1. Highways

As Lord Briggs explained in Southwark LBC v Transport for London [2018] UKSC 63, [2020] AC 914, the word highway ‘has no single meaning in the law but, in non-technical language, it is a way over which the public have rights of passage, whether on foot, on horseback or in (or on) vehicles’.

Highways may be adopted or unadopted. An adopted highway is one for which the relevant highway authority is responsible for maintenance. So, the majority of, but not all, made up roads will be adopted highways and some footpaths and bridleways will be adopted highways but many others will be unadopted.

The fact that a stretch of land qualifies as a highway does not affect ownership of airspace above or soil below the surface, but if the highway is an adopted one, then ownership of airspace and subsoil is affected.

A succession of nineteenth century highways acts – the Highways Act 1835, the Public Health Act 1848, the Metropolis Management Act 1855, the Public Health Act 1875 – all provided for a form of automatic vesting of a property interest in the land over which the adopted highway ran in favour of the body responsible for its maintenance and repair.

That property interest was restricted to that vertical slice of the plane containing the land over which the adopted highway runs which was necessary for its ordinary use and repair and maintenance; see Tunbridge Wells Corpn v Baird [1896] AC 434. The extent of that vertical slice includes the surface of the road over which the public had highway rights, the subsoil immediately beneath it to a depth sufficient to provide for its support and drainage (sometimes referred to as “the top two spits”), and a slice of the airspace above it sufficient to enable the public to use and enjoy the highway, and the responsible authority to maintain and repair it, and to supervise its safe operation. As Lord Briggs observed in the Southwark LBC case, the rule that the slice of property owned by the local authority is that required for ordinary use…

“ … is a flexible concept, the application of which may lead to different depths of subsoil and heights of airspace being vested in a highway authority, both as between different highways and even, over time, as affects a particular highway, according to differences or changes in the nature and intensity of its public use. A simple footpath or bridleway might only require shallow foundations, and airspace of up to about ten feet, to accommodate someone riding a horse. By contrast a busy London street might require deep foundations to support intensive use, and airspace sufficient to accommodate double-decker buses, and even the overhead electric power cables needed, in the past, by trolley buses and, now, by urban trams.”

Nowadays, that governing statutory provision is section 263 of the Highways Act 1980 which reads:

“(1) Subject to the provisions of this section, every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway.

“(2) Subsection (1) above does not apply— (a) to a highway with respect to the vesting of which, on its becoming or ceasing to be a trunk road, provision is made by section 265 below …”

  1. 263 is subject to and reflects the principle described above that what vests in the highway authority is the vertical slice of land required for the highway’s use and maintenance; see the Southwark LBC case at [12].

A consequence is that the subsoil beneath the highway will continue to vest in the owner of the land up to the level required by the highway authority for the support, drainage and maintenance of the surface. So, at common law the owner of the land containing the highway could tunnel under it and extract minerals provided that he does not remove support for the highway or interfere with apparatus laid under it by statutory undertakers (pipes, sewers, etc.); see e.g. Cunliffe v Whalley (1851) 13 Beav 411.

Similarly, the owner of the land containing the highway owns the air above it and could erect, for example, wire above it so long as they do not interfere with the right of passage over the highway; see Finchley Electric Light Co v Finchley UDC [1903] 1 Ch 437.

That said, ss. 176 to 179 of the Highways Act 1980 prevent the owner of the subsoil from creating cellars and vaults under an adopted highway or erecting bridges, buildings, rails and beams over it without the consent of the highway authority.

It should also be noted that, while the usual position is as described above, highway authorities can acquire ownership of the whole land on which a highway sits, for example, by compulsory purchase for the purpose of building a road. In that case, of course, they will own the same amount of airspace and subsoil as any other owner of freehold land.

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[1]  A term meaning Latin legal maxim