The NSW Supreme Court recently held that the sky, is indeed, the limit, for a self-represented sheep farmer (plaintiff) who tried to sue the Commonwealth of Australia for allowing Royal Australian Air Force (RAAF) aircraft to fly aircraft over her 40 hectare Bulahdelah property.
In an exercise of blue-sky thinking, the plaintiff argued the border of their property “extends to the centre of the earth, and to the expanse of the universe”. She sought cessation of RAAF flights over her land and payment of her self-determined sum of $15,365,160.00 for continuing the alleged trespass. The plaintiff asserted the word ‘quiet’ in the tortious right to ‘quiet enjoyment’ of land should be construed on its ordinary meaning, and extended to aircraft noise.
The Court found otherwise.
Facts
The plaintiff purchased her 40 hectare New South Wales property in March 2013. She alleged that from this date until June 2020, there were around five aircraft flying over her land a week; but from June 2020 onward the number increased to about 500 flights per week.
Upset by the increase, the plaintiff issued the RAAF three “cease and desist” notices regarding the aircraft traversing the sky above her property, claiming the RAAF was trespassing in flying over her land.1 The plaintiff further asserted that she was entitled to a fee of $167,000 for each single crossing of the property by an RAAF aircraft.
The RAAF explained their statutory authorisation to fly across the plaintiff’s property at a minimum 3,000 foot altitude, directing the plaintiff to make complaints to the Aircraft Noise Ombudsman.
Unsatisfied, the plaintiff began invoicing the RAAF for their ‘breaches’, and commenced proceedings on 13 October 2020 when the RAAF failed to pay these invoices – the amount owing per their terms and conditions totalling more than $15 million. The plaintiff claimed her right to quiet enjoyment was being interfered with, and this use of the airspace above their land was causing injury to her business of sheep farming.
The plaintiff then applied to the Court for orders striking out the Commonwealth’s defence or an interlocutory injunction to halt the RAAF’s flights.
The Decision
Justice Davies labelled the maxim the plaintiff relied on that “he who owns the surface owns up to the sky” was a fanciful one, that had largely been invoked in cases to establish ‘no wider proposition than that the air above the surface is subject to dominion in so far as the use of space is necessary for the proper enjoyment of the surface’.
His Honour held that at common law, a landowner does not have any right stemming from ownership, to prevent aircraft flying over their property, as long as it was of a height permitting the ordinary use of land and structures upon it.
Further, the Court held that ‘quiet’ did not refer to noise, but rather trespass or nuisance in regards to property, and both arguments were negated by statute, which permitted the RAAF flight path. Justice Davies opined that the tort protecting ‘quiet enjoyment of land’, was not particularly relevant to matters of trespass and nuisance on the land, but instead governed landlord and tenant relationships.
The Court also rejected the plaintiff’s argument that the Commonwealth lacked the constitutional power to regulate aircraft movement.
As the plaintiff had failed to make out a prima facie case for an interlocutory injunction, the Court summarily dismissed the proceedings. The plaintiff was ordered to pay the Commonwealth’s costs.
Commentary
While the plaintiff’s assertion, that the border of a property ‘extends to the centre of the earth and to the expanse of the universe’ is poetic, it remains a romantic notion, not a legal one.
Airlines and general aviation operators can remain confident that, unless their operations directly interfere with land and buildings, they are unlikely to be exposed to trespass or negligence claims by disgruntled landowners.
This article was written by Matthew Brooks, Partner, James McIntyre, Special Counsel and Erin Godwin, Law Graduate.
1 Plenty v Dillon (1991) 171 CLR 635
