Rooftop solar and airspace: who owns the air above your property?

Rooftop solar is booming. But who ‘owns’ the air just above a roof? Can a neighbour’s crane or scaffolding pass through that space? And what if sunlight is blocked? This article explains the rules and how to avoid common pitfalls.

Background: the Bernstein v Skyviews case

In 1977, a pilot photographed Lord Bernstein’s house from several hundred feet. Lord Bernstein sued the aerial photography company for trespass to his airspace.

The High Court decided that a landowner’s control of airspace is limited to the height necessary for the ordinary use and enjoyment of the land. Routine, lawful overflight above that ‘lower airspace’ is not trespass. Parliament has also given aircraft statutory immunity when flying at a reasonable height, now found in section 76 of the Civil Aviation Act 1982.

This distinction between lower and higher airspace sits behind modern practice on oversailing cranes, scaffolding and rooftop equipment.

The legal position on airspace

The courts recognise control only of the lower airspace needed for ordinary use and enjoyment of land. Routine, lawful overflight at a reasonable height is not trespass. This reflects the principle in Bernstein v Skyviews and section 76 of the Civil Aviation Act 1982.

In practical terms, low‑level intrusions into this close‑to‑roof zone, for example a crane jib passing over roof tiles, may constitute trespass. By contrast, compliant high‑altitude aircraft overflight will generally be lawful.

How solar panels fit within airspace rights

Solar panels sit within this close‑to‑roof zone and form part of the ordinary use of a roof, similar to tiles, skylights or television aerials. Three consequences typically follow:

• Oversailing and scaffolding: if a neighbour’s crane, scaffolding or mast passes over, through or immediately above your solar array without permission, this may amount to trespass. The usual solution is a short written oversailing licence, setting out limits on height, frequency and duration, together with safety measures and any fee
• Access for maintenance: owning a solar array doesn’t give you a right to enter neighbouring land. Safe access should be planned from your side wherever possible and any shared access formally documented. Leaseholders should check their lease and any rooftop rights. Where the roof is owned or controlled by the freeholder, leaseholders will require their written consent, supported by a clear agreement covering installation, planning and building regulations compliance, access, maintenance, insurance and end‑of‑life removal
• Sunlight and rights of light: installing solar panels doesn’t create a new right to restrict neighbouring development. Traditional rights of light protect daylight to rooms through windows, not electricity generation. Early dialogue about potential shading often helps secure proportionate design changes.

Planning permission, listed buildings and conservation areas

Most small roof‑mounted solar systems qualify as permitted development if they stay within size and height limits and are sensitively sited.

Listed buildings and properties in conservation areas are subject to stricter controls. Listed building consent may be needed, prior approval can apply and Article 4 Directions may remove permitted development rights altogether.

It’s sensible to seek early advice from a planning specialist or your local planning authority before finalising a design.