article
Up to the sky...and down to where
2 July 2009
Kirsty Black, property litigation lawyer at Browne Jacobson,
reports on a recent case in the Court of Appeal covering a 13th
century maxim and the issue of a trespass beneath the land
For hundreds of years the maxim “cuius est solum eius esse usque
ad coelum at ad infernos’” has been used in English law to signify
that the owner of the surface of land owns everything extending up
to the sky and down to the centre of the earth.
However, in reality this maxim has always had its limitations.
Common law has previously determined the issue in relation to the
ownership of airspace to the extent that cranes may well trespass
but aeroplanes will not (for obvious reasons). In addition, statute
now governs the ownership of natural resources found within the
land (such as coal, gas and gold) to ensure that they can be
exploited by the Crown and no-one else.
The recent case of Bocardo SA v Star Energy UK Onshore Ltd,
however, centred not on ownership, in this case of petroleum, but
the problems that can arise getting to it.
The facts
- Star extracted oil from land in Surrey under a licence from the
Crown.
- Bocardo, a company owned by Mohamed Al Fayed, owned land in the
vicinity.
- Pipelines laid to drill for the oil crossed Bocardo’s land,
although the minimum depth was 800m below the surface.
- Bocardo pursued an action for trespass over its land.
- At the High Court, Bocardo was successful and the court awarded
it 9% of the value of the oil extracted through the pipelines,
which amounted to £750,000.
- On appeal, however, the court ruled that only a ‘technical’
trespass had occurred and reduced damages to £1,000.
Trespass
Star had argued that the ownership of land should only extend so
far as is reasonable to enjoy the surface and that, as the
pipelines were so deep, there was no trespass. The Court of Appeal
did not agree. It upheld that the landowner did own the strata and
therefore had no other choice but to then hold that there had been
a trespass (although, interestingly, there was doubt as to whether
ownership would actually continue down to the centre of the
earth).
Damages
The first instance decision was inevitably of concern to
on-shore drilling companies and the Court of Appeal judgement was
no doubt a welcome relief. But how did the court decide the issue
of damages?
The first differentiating factor was that this case involved a
past trespass and therefore it would not be appropriate for an
injunction to be granted to prevent the trespass. Therefore damages
would not be awarded on the basis that they would be in lieu of an
injunction, which would inevitably be a higher amount. The general
principle for the assessment of such damages would therefore be
compensatory.
The measure of damages would be based on what Bocardo could have
obtained under section 8(2) of the Mines (Working Facilities and
Support) Act 1966. This section governs compensation for the grant
of ancillary rights.
The Court of Appeal held that the Act should be construed in a
manner which is consistent with the compulsory acquisition of land.
In this case it viewed that Bocardo had lost nothing by the grant
of the right of access across its land and it therefore assessed
the compensation at a figure of £82.50. However, as Star already
had the pipelines in place when the hypothetical negotiations would
have taken place in this case, it multiplied this figure to award
damages in the sum of £1,000.
The law of trespass : what now ?
It is important to remember that the case was decided on its
facts and two key components were the fact that the trespass was
occurring so far below the surface and the statutory regime which
was held to be similar to compulsory purchase powers. Therefore, it
will not impact on the raft of case law dealing with damages for
trespass occurring on the surface. It also does not give those
drilling on shore carte blanche to trespass. Such companies still
have to negotiate rights of access across land but if they are
unsuccessful can now use the statutory regime in the knowledge that
it will be assessed on the basis of this case. One final word of
warning though, Mr Al Fayed has allegedly threatened to take this
case to the House of Lords who may, of course, overrule this
decision.
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