Is there a distinction between permanent structures which interfere with air space and transient invasions by aircraft?

Griffiths, J. makes a valid distinction between permanent structures which interfere with air space and transient invasions by aircraft to demonstrate that differing considerations apply. At the same time, his remarks convey approval of the decision reached by McNair, J. in Kelsen. In my view the approach he pursues is both reasonable and practical. Lord Wilberforce took the opportunity to trace the latin maxim’s origin and to attack its literal application in Commissioner for Railways et al v. Valuer-General [1974] A.C. 328 (1973) 3 All E.R. 268. The maxim found its way into a dispute regarding the valuation of land for rating purposes. At page 351 (A.C.) Lord Wilberforce described the maxim as: “… so sweeping, unscientific and unpractical a doctrine is unlikely to appeal to the common law mind. At most the maxim is used as a statement, imprecise enough, of the extent of the rights, prima facie, of owners of land …”

The criticism levelled at the latin maxim by Lord Wilberforce and others no doubt influenced the reasoning of Griffiths, J. in Bernstein v. Skyviews. Recognizing that the maxim must be given limited application, Griffiths, J. conceived the idea of striking a “balance”.