Up to the sky… and down to where?

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. In addition, statute now governs the ownership of natural resources found within the land to ensure that they can be exploited by the Crown and no-one else. The recent case of ‘Bocardo SA vs 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 nine percent 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.

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.

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.