Estate owners complaining of aircraft noise — Owners of neighbouring airbase claiming prescriptive right to commit nuisance — Whether public interest outweighing commercial and private interests — Articles 1 and 8 of European Convention on Human Rights — Claim allowed
The defendant operated an RAF airbase adjoining Walcot Hall estate. This was owned by the claimants, who planned to operate the estate as a centre for corporate entertainment. However, the scheme was rendered impracticable owing to the noise from Harrier jets that flew overhead to land at the airbase. The claimants brought proceedings against the defendant for damages on the basis that the noise constituted a nuisance and infringed their rights under Articles 1 and 8 of the European Convention on Human Rights.
It was common ground that the decibel rating of the Harriers exceeded the guidelines set out by the World Health Organisation and that the value of the land was blighted thereby. The defendant argued, inter alia, that: (i) the Harriers had been flying from the airbase since 1969 and the MoD had consequently acquired a prescriptive right to commit the nuisance; (ii) its actions were undertaken in the public interest, which amounted to a defence against a claim in nuisance; (iii) the training of pilots was one of the “ordinary usages of mankind” (Sedleigh-Denfield v O’Callaghan [1940] AC 880) and could not amount to nuisance; (iv) the defence of the realm constituted a public interest of a different and greater order than that of commerce and other interests hitherto considered in the authorities and should therefore be afforded special consideration; and (v) the airbase was an established feature in the neighbourhood, and the claimants had purchased the property in the full knowledge of the characteristics of the area: see Sturges v Bridgman [1879] 11 ChD 852.
Held: The claim was allowed.
Although there was no objection in principle to a prescriptive right to commit a nuisance, the alleged right would have to amount to an easement and be capable of forming the subject matter of a grant: the user had to have been as of right. In the instant case, such an easement could not have been drafted with certainty. Moreover, the user had not been of right because the claimants had not consented to, or acquiesced in, the nuisance; in fact, they had made a number of complaints over the years.
The facts of the case were extreme and were not analogous to existing authority. Although the noise clearly amounted to a nuisance, public interest demanded that the defendant should continue to deploy the Harriers, and, on the evidence, it was not practicable for the defendant to alter the manner in which this was done. However, military activities could not be regarded as an ordinary use of the land within the legal meaning of the phrase. Taken to its logical extreme, this would amount to permission to carry out activities such as detonations. Activities that generated extreme amounts of noise or pollution had to be deemed to constitute extraordinary uses of the land. The area was essentially rural and the presence of the airbase had not altered its nature. In any event, it could not be a defence for a potential tortfeasor to argue that its activities had so altered the character of the neighbourhood as to create a nuisance with impunity.
The noise constituted an interference with the claimants’ human rights under Articles 1 and 8. Although the public interest was of greater import than the claimants’ private interests, it would not have been proportionate to pursue or to give effect to the public interest without compensating the claimants. Common fairness demanded that where the interests of a minority, let alone an individual, were seriously interfered with because of an overriding public interest, that minority should be compensated.
Damages were awarded on the basis of the difference in value of the property in a “blighted” and “unblighted” state for resale purposes, for loss of amenity, and for loss of use as a business venture.
Derek Wood CBE, QC and David Hart (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the claimants; David Elvin QC and William Hoskins (instructed by the Treasury Solicitor) appeared for the defendant.
Vivienne Lane, barrister
