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
-- Download LPJ Investments Pty Ltd v Howard Chia Investments [1989] 24 NSWLR 490 as PDF --

