Trespass cases

Baron Bernstein of Leigh v Skyviews & General Ltd [1978] QB

D flew an aircraft over C's country estate and took an aerial photograph of it, which D then tried to sell to C. C sued in trespass, arguing ownership of land extended infinitely upwards.

Held: no trespass. A landowner's rights in airspace extend only to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it. Beyond that height, anyone is free to fly without trespassing.

Why it matters for PQs: Establishes the "ordinary use and enjoyment" test for the upper limit of airspace rights. The key question is always whether the intrusion was at a height that interfered with the claimant's actual or intended use of the land and its structures. High altitude overflight = no trespass. Low-level intrusion interfering with use = potentially trespass (see Anchor Brewhouse, Kelsen, Eaton Mansions).

Kelsen v Imperial Tobacco [1957] QB

D's advertising sign projected about eight inches into the airspace above C's shop. C sued in trespass.

Held: trespass established. The sign physically occupied part of the airspace above C's land at a height directly relevant to the use and enjoyment of the property — it was at the level of the building itself. This was within the zone of airspace that belongs to the landowner under the Bernstein principle (though Bernstein came later, the reasoning is consistent). Even a minor encroachment into protected airspace is trespass.

Note that no damage was caused — the eight-inch projection did not physically harm the building. But trespass is actionable per se, so the physical occupation of C's airspace was itself the wrong.

Why it matters for PQs: Illustrates that even minor airspace encroachment at building level is trespass — there is no de minimis exception. Contrast with Bernstein (high altitude, no interference) and Anchor Brewhouse (crane swinging over land). The height and the relationship to the use of the structure are what matter.

Anchor Brewhouse Developments v Berkley House Ltd [1987]

D was developing a site adjacent to C's property. D's tower crane jib swung over C's land during the works, passing through the airspace above C's buildings.

Held: trespass established; injunction granted. The crane jib passing through the airspace directly above C's buildings was within the zone of airspace that belongs to the landowner — it was at the level of and above the structures on the land, directly interfering with C's rights. The fact that it only swung over temporarily during operations did not make it less of a trespass. Trespass is actionable per se and even temporary intrusion at the relevant height is actionable.

The court rejected the argument that the trespass was too trivial to warrant an injunction — C was entitled to control what happened in their airspace at that level.

Why it matters for PQs: The classic crane jib case. Any PQ involving construction cranes swinging over neighbouring land = trespass. Also important for the point that temporary, recurring trespasses are still actionable — the defendant cannot argue "we were only there briefly." Also confirms injunctive relief is available even for airspace trespass with no physical damage.

Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] CA

D attached air conditioning units and pipes to the exterior of C's building, encroaching into C's airspace at building level.

Held: trespass established. Physical attachment of equipment to the exterior of a building and occupation of the airspace immediately adjacent to it at building level is trespass. The CA confirmed the Bernstein/Kelsen principle — the landowner's airspace rights at the level of the building and its immediate vicinity are strong and actionable.

Also relevant: damages were assessed not merely as nominal but on the basis of what a reasonable person would have paid for a licence to occupy that airspace — the "negotiating damages" approach. This means even where there is no physical damage, substantial damages can be awarded based on what the claimant could reasonably have charged for the use.

Why it matters for PQs: Two points. First, reinforces that building-level airspace encroachments — even relatively minor physical attachments — are trespass. Second, and importantly for remedies: introduces the concept of negotiating damages (sometimes called Wrotham Park damages) in trespass — damages measured by what the parties would have negotiated for a licence, not just the claimant's actual loss. This can produce significant awards even where no physical harm occurred.

Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC

D had a licence from the government to drill for oil. D's oil pipelines passed diagonally underground through strata beneath C's land at depths of between 800 and 2800 feet below the surface — far below any depth C could ever conceivably use.

Held: trespass established. The cuius est solum principle applies below the surface as well as above it (with the airspace qualification from Bernstein). A landowner's rights extend downward through the strata beneath the surface. Unlike airspace, there is no equivalent "ordinary use" limitation for subterranean trespass — the rights extend downward through all strata that are part of the land, subject only to statutory exceptions (such as oil, gas and coal vesting in the Crown).

D's pipelines passing through C's subsurface strata without permission was therefore trespass even at depths C could never use or access.

On damages: the UKSC awarded small but non-nominal damages — C had suffered no financial loss but was entitled to something more than nominal damages given the deliberate and sustained nature of the trespass. The court assessed what C could reasonably have negotiated for a licence to use that stratum.

Why it matters for PQs: Establishes that subterranean trespass has no depth limit equivalent to the airspace height limit in Bernstein. Anything passing through subsurface strata belonging to the landowner without permission is trespass, however deep. Contrast with airspace — below ground, depth is irrelevant. Also reinforces negotiating damages for technical trespass with no actual loss.

Manchester Airport plc v Dutton [2000] CA

Facts: The airport needed to fell trees on land owned by the National Trust to build a second runway. The National Trust granted the airport a licence to enter the land and carry out this work. Protesters (D) moved onto the land and obstructed the works. The airport sought a possession order against the protesters despite being only a licensee, not the legal owner. Had not yet exercised the licence

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Held: The airport was entitled to the possession order. A licensee not in occupation may claim possession against a trespassor if it is a necessary remedy to vindicate and give effect to a right of occupation as a licensor should enjoy.

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Reasoning: The principle is that possession (or the right to possession) is sufficient to found trespass — you do not need to be the legal owner. The protesters had no right to be on the land whatsoever — they were mere trespassers — and the airport's licence gave it a sufficient possessory interest to evict them. Part of consideration was relativity of title

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Why it matters for problem questions: Confirms that the claimant in trespass need not be the legal owner. Possession or the right to possession is sufficient. A licensee with the right to exclusive possession can bring trespass against a stranger. This reflects the possessory foundation of trespass law — it protects possession, not just ownership.

Vehicle Control Services v Revenue and Customs [2006] UKHL

Parking enforcement company (C) operated a private car park. Motorists parked without paying (D). C sought to recover unpaid parking charges in trespass — arguing that parking without authority was trespass to land.

Held: trespass claim failed — not because parking cannot be trespass, but because the Unfair Contract Terms Act and the contractual structure of the parking arrangement meant the charges were not recoverable in the way C sought. The HL found the parking charges were effectively a contractual penalty rather than a remedy for trespass.

The more important principle for property law purposes: parking on privately owned land without permission is capable of constituting trespass to land. Leaving a vehicle on someone's land is a continuing physical occupation without consent — the same principle as any other surface trespass.

Why it matters for PQs: Confirms that unauthorised parking = trespass. The case is often cited in trespass PQs for this principle even though C ultimately lost on the contractual/UCTA point. Also useful context for the Batchelor/Moncrieff parking easement cases — the reason parking matters legally is precisely because unauthorised parking is trespass.

Lavender v Betts [1942]

Landlord removed doors and windows from a house to force a tenant to leave after failing to obtain possession through proper legal channels.

Held: trespass established. Physically interfering with a building on land in the possession of another — including removing fixtures — is trespass. The landlord had no right to take self-help measures of this kind. The tenant's possession of the property entitled them to sue in trespass for the interference.

Why it matters for PQs: Important for the self-help prohibition — a landlord cannot take physical steps to recover possession or make the property uninhabitable without going through legal process. Any physical interference with the property in the tenant's possession is trespass. Also relevant to the Protection from Eviction Act 1977 (s.5 on your statute list) which makes unlawful eviction a criminal offence — Lavender provides the common law trespass foundation for the same principle.

JA Pye (Oxford) Ltd v Graham [2002] UKHL

Pye owned agricultural land. The Grahams were neighbouring farmers who had grazed animals on the land under a grazing agreement. When the agreement expired, Pye refused to renew it. The Grahams continued farming the land for over 12 years without permission or payment. Pye sought possession. The Grahams claimed adverse possession.

Held: Grahams had acquired title by adverse possession. The requirements for adverse possession under the Limitation Act 1980. New LRA 2002 Regime is:

New regime (LRA 2002), Sch 6:

• 10 years' adverse possession → squatter applies to be registered

• Paper owner is notified and has 2 years to recover possession

• If paper owner does nothing → squatter is registered

Under LRA 2002 Schedule 6, the squatter must have been in adverse possession for 10 years before they can apply to be registered. To establish that 10 year period, you still need to show:

• Factual possession — exclusive physical control of the land for the full period

• Animus possidendi — intention to possess throughout that period

No permission: The possession must be without the paper owner's consent. Once the grazing agreement expired and Pye refused to renew it, the Grahams' continued occupation became adverse. —> If the squatter has the paper owner's consent to be on the land, their possession is not adverse — it is permissive. You cannot run the 10 year clock under LRA 2002 if the occupation is licensed or consented to. This is fundamental — it is not a procedural point, it goes to the nature of the possession itself.

Lord Browne-Wilkinson criticised the law as producing an unjust result — Pye lost valuable land worth millions simply because they had not taken steps to recover it in time. This contributed to the reform under LRA 2002, which requires the adverse possessor to apply to be registered and gives the paper owner notice and an opportunity to recover the land.

Why it matters for PQs: The foundational case on adverse possession. Two elements: factual possession (exclusive physical control) + animus possidendi (intention to possess). Know both and be able to apply them to facts. Also know the difference between the old limitation-period regime (Pye facts) and the LRA 2002 notification regime for registered land.