Property Law

LPJ Investments Pty Ltd v Howard Chia Investments [1989] 24 NSWLR 490

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Facts
  • Photographs are taken from above a man’s house at a great height
  • He alleges trespass
Issue
  • Does flying over the airspace of a property constitute trespass? Especially when privacy is breached?
Held
  • Rights for invasion of airspace are usually founded in nuisance not trespass
  • The precedent in Kelsen was not intended to reach “to the heavens”
  • Winfield on tort stated it was only trespass if it interfered with common use of the land
  • The maximum of “to the heavens” is fanciful (Windsworth)
  • Must balance the rights of the home owner and rights of the general public
  • Photograph is irrelevant
  • The Civil Aviation Act applies to planes doing all kind of things, not just passenger planes
  • CAA does not give permission for other damaging acts, e.g. admitting smoke

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