Alterations to airport — Aircraft noise affecting value of houses — Whether compensation recoverable — Section 9(6)(b) of Compensation Act 1973 — Meaning of “greater number of aircraft” — Lands Tribunal rejecting claim — Appeal dismissed
The appellants brought claims for compensation against the respondent airport operator under section 9 of the Compensation Act 1973. They contended that the value of their houses had been diminished by the increased noise from aircraft movements arising from substantial alterations to the airport that had been made between 1993 and 1995. Section 9(3) excluded compensation for “alterations to an aerodrome” unless they were “runway or apron alterations”, as defined in section 9(6). The appellants relied upon section 9(6)(b), which covered a “substantial addition to, or alteration of, a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft”.
The Lands Tribunal determined a preliminary issue as to whether the works came within section 9(6)(b) in circumstances where the alterations had not been intended to have, and had not had, the effect of increasing the aggregate number of aircraft movements at the airport, but had instead been intended to facilitate a substantial increase in movements of larger aircraft at the expense of smaller aircraft movements. The tribunal considered that the correct approach to section 9(6)(b) was to compare the number of aircraft for which facilities had existed before the alterations and the number for which facilities would exist after the works. If the post-alterations facilities provided for a greater number of aircraft, the tribunal should consider asking whether providing facilities for that greater number was the purpose or the main purpose of the alterations, considering the airport as a whole. It concluded that the appellants were unable to satisfy the requirements of section 9(6)(b).
On appeal, the appellants submitted that section 9(6)(b) did not require proof that the alterations had led to an increase in aircraft using the airport, but that it instead gave rise to a question as to the intended purpose of the person making the alterations. They contended that section 9(6)(b) would be satisfied where the alterations were intended to achieve either an increase in the total number of aircraft using the airport over a year (an increase in aircraft throughput) or an increase in the total number of types of aircraft that could use it.
Held (Ward LJ dissenting): The appeal was dismissed.
It was common ground that “a greater number of aircraft” meant an increase in aircraft throughput. It would be unnatural to give the term an additional, and somewhat different, meaning, namely an increase in aircraft types. Although it was not impossible for the same expression to cover two such different concepts, it would not involve a normal use of language. Although a provision such as section 9(6)(b) was inevitably something of a blunt instrument, which would, in certain circumstances, produce results that might seem unfair or inconsistent, such results could not be fairly characterised as anomalies in the context and scheme of section 9(3) and (6) when read as a whole. Nor did the possibility of unfairness or inconsistency in some circumstances render the provision contrary to the European Convention on Human Rights.
The word “purpose”, in the context of section 9(6)(b), should normally be read as meaning the objective anticipated consequence of the subjective intention of the relevant person, who would almost always be the operator of the aerodrome. It was unlikely that the legislature would have intended that the question of whether affected householders could claim compensation should depend purely upon the subjective wishes or intentions of the particular operator: R (on the application of Plymouth City Airport) v Secretary of State for the Environment, Transport, and the Regions [2001] EWCA Civ 144; (2001) 82 P&CR 20 considered. The tribunal’s conclusion had been that, whether one looked at the subjective expectation of the respondent when carrying out the works or their likely, objectively judged consequences, there would be a smaller, rather than a greater, number of aircraft using the airport’s facilities. Accordingly, the appeal should be dismissed.
Timothy Fancourt QC (instructed by Dutton Gregory, of Winchester) appeared for the appellants; Andrew Tait QC (instructed by the solicitor to BAA plc, the parent company of the respondent) appeared for the respondent.
Sally Dobson, barrister