An Englishman’s home is his castle. But in this brave new age of plastic invaders with wings and whirring eyes, it seems the drawbridge no longer protects the sky above.
The High Court’s decision in MBR Acres Ltd v Curtin [2025] EWHC 331 (KB) offers more than a judgment on protest and property—it maps the boundaries of modern land law itself, in a world where observation no longer requires entry.
The Facts: Of Beagles, Protest, and Drones
The First and Third Claimants—MBR Acres Ltd and B&K Universal Ltd—are UK subsidiaries of the US-based Marshall Farm Group Ltd, trading as Marshall Bioresources. They breed animals for medical and clinical research at sites in Cambridgeshire and Hull.
From 2021 to 2023, the site became a focal point for animal rights protests. The defendant, Mr Curtin, was a frequent protestor. The claimants alleged that Mr Curtin trespassed on the land, obstructed vehicles, and used drones to film the premises.
Claimant sought injunctions against Curtin and “persons unknown” restraining trespass, obstruction, and drone overflights below 100 metres. The claim was pleaded in trespass, nuisance, and under Section 1(1A) of the Protection from Harassment Act 1997
The Common Law Altitude Limit
The common law once declared, with enviable certainty: cuius est solum, eius est usque ad coelum et ad inferos—he who owns the soil owns it to the heavens and to the depths. But that elegant phrase has long since been clipped.
Since Bernstein v Skyviews & General Ltd [1978] QB 479, landowners are said to control only so much airspace as is necessary for the ordinary use and enjoyment of their land and the structures upon it. Above that lies no man’s land—now populated by cameras, not clouds.
The Honourable. Mr Justice Nicklin reaffirmed this principle:
“An owner’s rights in the airspace above his/her land were restricted to such height as was necessary for the ordinary use and enjoyment of the land and structures upon it, and above that height [the owner] has no greater rights than any other member of the public.”
One of Curtin’s drones was alleged to have flown at around 50 metres. The court found no evidence that it interfered with land use:
“I am not satisfied that flights of drones above the claimants’ land, at heights of 50 metres or more, and for brief durations, do interfere with the claimants’ use and enjoyment of their land.
The claimants sought a blanket prohibition of drone flights under 100 metres. But Nicklin J dismissed this as legally and evidentially unworkable:
“The Claimants have been forced to choose a height (albeit without supporting evidence)… There is a palpable disconnect between the tort relied upon and the wrong that the Claimants are seeking to address.”
Minor Trespass, Momentary Obstruction
The court did find that Mr Curtin had briefly entered the claimants’ access road and obstructed vehicles entering or exiting. This constituted trespass and interference with the common law right of access to the highway.
“The protest ritual… temporarily delayed vehicles on a number of occasions… The conduct amounted to an interference with the first claimant’s private right of access.”
However, these incidents were “ritualistic,” lasted minutes, and caused only minor disruption. Nicklin J granted a limited injunction restraining further trespass and obstruction—but refused to extend it to drone overflights
The Harassment Claim: Protest or Oppression?
The harassment claim under section 1(1A) of the 1997 Act was aimed solely at Mr Curtin. It failed for want of distress and targeting.
“The repetition meant that those in the vehicles should quickly have become used to it. The ritual was predictable and would have been understood as an expression of protest.”
There was no evidence that Curtin aimed to intimidate, nor that he intended to dissuade staff or suppliers from their lawful activities. His conduct—while provocative—was neither oppressive nor targeted.
Nicklin J expressly integrated Articles 10 and 11 ECHR into the analysis:
“It would be a serious interference with [freedom of expression and assembly] if those wishing to protest and express strongly held views could be silenced by actual or threatened proceedings for harassment based on subjective claims… that they were caused distress or alarm.”
The claimants’ legal footing was further weakened by a lack of particularised evidence. The judge noted that while protestors chanted slogans like “puppy killer,” there was no proof of personal abuse or threatening conduct from Curtin himself.
The Wrong Remedy for the Real Grievance
The claimants’ deeper concern was not the height of drones—but their presence and purpose: filming, observing, and broadcasting protest footage.
Yet as the court observed:
“The civil law might provide remedies for these kinds of concerns, including through claims for misuse of private information or potential breaches of data protection legislation and harassment. However, the claimants had not advanced their claim on any of these bases.”
By framing their grievance as trespass, the claimants sought to prohibit surveillance through a doctrine never designed for it. They did not plead privacy or data protection, and led no expert evidence on drone height or footage.
This misalignment cost them their claim—and clarified the doctrinal limits of trespass in the drone age.
Practical Consequences for Landowners
So what recourse remains for the modern castle?
- Gather evidence: Log incidents, secure footage, and obtain expert data on drone altitude and capabilities
- Plead the correct tort: Where drones film or surveil, consider claims in privacy, data protection, nuisance, or harassment—not just trespass.
- Involve regulators: The Civil Aviation Authority and police can act under drone safety rules, especially for reckless or low-altitude flights.
- Limit injunctions: Orders must be specific, targeted, and justified. The courts will not grant broad bans without compelling evidence.
The Legislative Outlook: Still Grounded
There is no current legislation before Parliament that addresses drone intrusion into private airspace for civil enforcement purposes. The Air Traffic Management and Unmanned Aircraft Act 2021 gives the police powers to issue fines, stop and search, and seize drones—but it does not create a new private right to exclude them.
The CAA’s drone code warns operators against flying near homes or gardens, but enforcement is light-touch. Persistent drone surveillance may breach data protection laws—but again, this requires proper evidence and targeted legal claims.
As Nicklin J implied, the civil law may one day evolve to provide landowners with a clearer remedy. For now, drones that stay high and quiet—and avoid capturing identifiable individuals—will often remain beyond the reach of common law.
Conclusion: When the Sky Is No Longer Yours
The High Court has spoken: your land ends where your use of it does. What hovers above you—so long as it does not interfere—may lawfully pass.
That may be doctrinally sound, but it is practically unsettling. MBR Acres reaffirms that trespass is not a proxy for privacy. Surveillance, observation, and silent watching are now possible without setting foot—or even wing—on your land.
Until Parliament or appellate courts redraw the lines, landowners must look not to the heavens, but to the nuances of privacy, data, and targeted pleadings.
Contact our Residential Property team
To contact Charlie Davidson, Senior Associate, or any member of Bishop & Sewell’s Residential Property Team call 020 7631 4141, use our quick enquiry form or email us at mail@bishopandsewell.co.uk.
You can contact Charlie by email cdavidson@bishopandsewell.co.uk or follow Charlie; Hound of Holborn on LinkedIn.
The above is accurate as at 7 May 2025. The information above may be subject to change.
The content of this note should not be considered legal advice, and each matter should be considered on a case-by-case basis.
