Bockenfield Aerodrome Ltd v Scott Clarehugh
| Jurisdiction | England & Wales |
| Judge | Kramer |
| Judgment Date | 07 April 2021 |
| Neutral Citation | [2021] EWHC 848 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No.: PT-2019-NCL-000030 |
| Date | 07 April 2021 |
[2021] EWHC 848 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN NEWCASTLE
PROPERTY, TRUSTS AND PROBATE LIST (Ch D)
HH Judge Kramer sitting as a judge of the High Court at the
Claim No.: PT-2019-NCL-000030
HH Judge Kramer
The claimant is the leasehold owner and operator of an airfield at Eshott in Northumberland. It is represented by Mr Latimer, of counsel. The defendants are the owners and occupiers of land adjoining the airfield from where they operate a business trading under the style of Northumbrian Woodland Burials. As the name suggests, they provide a burial service for human and animal remains and ashes within a woodland setting. They are represented by Miss Jarron, of counsel.
The claimant complains that the growing of trees on the defendants' land is interfering unlawfully with the use of their airfield. It frames its case in three ways, alleging that the presence of trees constitutes:
a. an interference with an express easement through the defendants' air space in favour of their land. The claimant claims that the easement entitles aircraft from the claimant's airfield to travel over the defendants' land at a height which is safe for the aircraft. This requires that there is 20 feet of clear space beneath the aircraft, measured from the ground. Any incursion into that space amounts to an interference. The interference is substantial because the flight requirements of aircraft taking off and landing are such that they should have the facility of travelling at such heights over the defendants' land but this has been prevented by the presence of the trees.
b. A derogation from the grant from which the title derives, namely a conveyance dated 2 February 1993 under which the airfield and easement were conveyed to the freeholder, which granted them their lease. The derogation arises from the presence of trees, the height of which, renders landing and take-off more difficult and also trees which disrupt airflow so as to have an impact on aircraft stability both when leaving and approaching the airfield runways but also when passing along the runways.
c. A breach of the measured duty of care.
The claimant seeks injunctive relief directed at the removal, and reduction in height, of certain trees and damages for loss consequent upon their presence.
The defendants' response to the claim can be summarised as follows:
a. As regards the express easement:
i. It cannot be construed as having the meaning put forward by the claimant for it would have the effect of ousting the defendants from the land, which would render it incapable of existing as an easement.
ii. If it can exist as an easement, it should be construed in such a way that it permits pilots to fly at low level while arriving or leaving the airfield, but only at a safe height above what is on the land- not at a height which would permit pilots to approach the apron of the runway at an angle of 2.5 to 3°, as claimed by the claimant.
iii. Construed, as suggested by the defendants, the trees do not substantially interfere with the claimant's use of the easement as safe landing and take-off is possible despite the presence of the trees.
iv. The defendants cannot be compelled to cut down trees to enable the claimants to use the easement as it is an essential characteristic of an easement that it does not place upon the owner of the servient tenement any obligation to act
b. As to the claim for non-derogation from grant:
i. There is no room for the operation of this principle because the parties to the 1993 conveyance set out in clear terms the grantor's obligations in relation to overflying the retained land.
ii. A claim based on derogation by interfering with the airflow so as to cause turbulence was only added by amendment at the beginning of the trial and is not well supported by evidence.
iii. There has been no substantial interference with the use of the airfield, as such, to justify a finding of derogation from grant.
c. The measured duty of care does not arise in the circumstances of this case because:
i. It is not fair, just and reasonable to impose such a duty.
ii. The duty should not be extended to dangers posed by trees on the defendants' land as these are natural things.
iii. The duty is a branch of the law of negligence. The tort of negligence requires damage to found a cause of action. There is no damage or threatened damage capable of founding a cause of action in negligence arising from the trees because the only damage to which the claimant could point would be pure economic loss due to its inability to operate the airfield, which does not qualify as damage for this purpose.
The defendants' case as to the relief claimed is that they accept that if the grounds for an injunction are made out, this is not a case for ordering damages in lieu. Nevertheless, any injunction should be limited to the trees closest to the aprons of the northbound and eastbound runways.
Site Background
The history of the site is that both parties' properties consisted of farmland, known as Bockenfield Farm. Between 1942 and 1944 runways were laid out on the farm for RAF Spitfire training. The relevant runways for present purposes are runway 08/26, which is the west/east runway, and 01/19, which is the north/south runway. At that time, the runways were much longer than those at Eshott airfield, running beyond the boundaries of the farm. In 1944 the whole of the land was returned to agricultural use.
The Bell family purchased Bockenfield Farm on 28 December 1984. They used it for sheep grazing and arable farming. In 1985 Mr P Bell, one of the owners, obtained temporary planning permission for part of the disused airfield to be used by single piston engined light aircraft. The permission was renewed in 1987 for a further period of 10 years and expressed to include ‘microlight aircraft’ within the expression ‘light aircraft’. There is unchallenged evidence that the airfield now operates under a full planning permission for aircraft up to a weight of 5700 kg and it is not suggested that it is still limited to piston engined aircraft. The Bell family reopened the airfield for the use of amateur pilots, their friends and families. I have been shown logbook entries evidencing numerous flights by Jim Shepard in a PA 28 aircraft between 1983 and 1985.
On 2 February 1993 the Bells sold the runways and some land adjacent to the north-south runway to Eshott Airfield Limited. They retained much of the remainder of Bockenfield Farm, including the land now occupied by the defendants. Paragraph 3 of Schedule 3 to the conveyance contains the following grant to the purchaser: “the unrestricted right to use at a safe height the airspace above the retained land for the passage of aircraft in circuit arriving or leaving the property.” The right is registered on the purchasers' title, number ND80828. At the time of the sale the airfield was surrounded by open fields used in agriculture and some farm buildings. The land owned by the defendants was entirely open.
By a lease dated 20 June 2016, Eshott Airfield Limited leased the airfield to Bockenfield Aerodrome Limited for a period of 20 years. Clause 2.2 to the lease provides that the grant of the lease is made together with ancillary rights, including those intended to benefit the land subject to the lease and referred to in the register of title ND 80828. The right also appears on the register of the leasehold title, no. ND 188034. In addition to the right concerning over-flight, the lease included the benefit of an informal agreement with a neighbouring farmer, Mr Muir of Blackbrook Farm, to use an extension of the east-west runway at an annual fee. This was part of the old RAF runway which extended beyond the eastern boundary of Bockenfield Farm. The claimant's subsequent loss of use of this extension has featured in the evidence.
The defendants' land was acquired from the Bells by Stephen and Susan Clarehugh, the first defendant's parents, on 2 November 1994. Its boundaries resemble the outline of a cone, the bottom of which bends to the east. They follow the eastern edge of the A1, its embankment and a layby, and to its east, runway 01/19 until it reaches 08/26, the westerly part of which runs across the end of 01 into the north-east edge of the top of the cone.
On 23 July 2001 Stephen Clarehugh obtained planning permission to use the land as a woodland burial ground. The permission was subject to conditions. No development was to start until a 10 metre hedge, which ran along the eastern boundary, i.e. adjacent to 01/19, had reached 2 metres and all other tree planting shown on a drawing attached to the permission had been completed. The trees are shown on the drawing as oak and ash. They are described in the planning officer's report to the planning committee as a “40m belt of trees to the north and 50m belt of trees to the west, as a screen to the A1” The first defendant says that his father planted 16,000 trees on the site following the grant of planning permission. He and the second defendant have jointly owned and managed the site since 2015. The title is registered under number ND88406. He says that the number of trees have reduced to 12,000 due to woodland management. There is no dispute as to the number of trees originally planted or as currently in situ.
Site Layout
There are two plans attached to the judgment to assist with orientation. Plan A shows the parties' respective...
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