The development of airspace under Maltese law

Abstract

Airspace is considered by Maltese Courts as an immovable property by nature which has a separate existence from its underlying land. As the pressure for urban construction intensifies, developers are eyeing to make use of every space available which is suitable for development. Therefore, airspace is seen as an essential area of property to satisfy this urban sprawl. Since airspace has become a useful commodity, it can either be developed by the owner himself, or be transferred to other parties for their own private use or development thereof. However, development of airspace is often, but not always, restricted by burdening servitudes, depending on their nature. The right of use of airspace, and the right to full enjoyment of airspace are two main easements which are valued by our Courts and which may limit an owner from developing his airspace. Despite the emerging importance of airspace as property, no law exists within our Maltese statute defining such airspace. In fact, our idea of airspace originates from customary law. Furthermore, there are new conflicting ideas regarding the promulgation of Solar Rights and the protection thereof, especially upon the implementation of environmental incentives to increase the use of solar energy systems on rooftops. Many a times, these solar energy systems become overshadowed by high-rise buildings which are one the other hand needed to cater for the ever increasing population within the Maltese Islands. This dilemma is further discussed through the application of easements protecting individuals’ right to sunlight without compromising the right to full enjoyment and development of airspace. Therefore, this dissertation helps clarify the notion of airspace and analyse the conflicting property rights which emerge. This study further instigates for the promulgation of supplementary laws regarding airspace.