Lorna Grace Peires v Bickerton's Aerodromes Ltd
| Jurisdiction | England & Wales |
| Judge | Peter Smith J |
| Judgment Date | 17 March 2016 |
| Neutral Citation | [2016] EWHC 560 (Ch) |
| Docket Number | Case No: HC2014-000601 |
| Court | Chancery Division |
| Date | 17 March 2016 |
[2016] EWHC 560 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Honourable Mr Justice Peter Smith
Case No: HC2014-000601
Mr Edward Denehan (instructed by DMH Stallard LLP) for the Claimant
Mr Richard Harwood QC (instructed by Clark Ricketts LLP) for the Defendant
INTRODUCTION
This judgment arises out of the trial of this action. It is in my view a most unfortunate action. It involves a dispute between the Claimant who owns a property adjoining the Defendant's Aerodrome ("the Aerodrome") and one of the activities carried on at that Aerodrome.
I say unfortunate because I was firmly of the view when I read the papers before the trial that this was really a matter which ought to have been resolved. I became more convinced of that when I carried out a site inspection and further as the evidence developed during the trial. Nevertheless the parties were unable to reach an agreement as to a modus vivendi between them. That has led to this judgment.
In addition to the visit which I found to be extremely helpful I was provided with videos of periods of activity on the Aerodrome in relation to the activities complained of.
The activity complained of is helicopters carrying out training operations at a spot close to the Aerodrome boundary which is 58 meters (at the closest point) from the Claimant's property. They are not directly adjoining; the land between them is a field. There are low hedges at the end of the Aerodrome and low hedges abounding the Claimant's property. This operation involves the helicopters carrying out take off and landing operations on a sloped piece of ground. This is a necessary exercise that helicopter pilots are required to do successfully as part of their initial qualification and continued qualification.
It is important to appreciate that the Claimant makes no complaint about other activities carried on at the Aerodrome namely the landing and taking off of light aircraft and helicopters and noise from hangers when helicopters and/or aircraft are tested or repaired. The only issue is over this particular operation.
This is an important factor when assessing the claim. The claim is one of nuisance by noise. There is therefore an accepted level of noise emanating from the Aerodrome which forms a background. The Claimant's case is that the noise of the helicopters carrying out the above operations is excessive and unreasonable.
THE PARTIES
The Claimant is the freehold owner of land registered at the Land Registry under title no. BM313698 being Mulberry House Mirrie Lane Denham Uxbridge Buckinghamshire UB9 5DS. That is the description of the Property ("the Property") in the title but it is always known as Shepherd's Holt. The Claimant was registered proprietor on 24th July 2006 having acquired the Property on 13th June 2006 for a price of £1.275m.
The Property is a substantial detached dwelling with 4 bedrooms and 6 living rooms set in substantial grounds with adjoining staff accommodation. After the Claimant acquired the Property extensive works of renovation and improvement were carried out being completed in 2008. During the first 18 months or so of these works the Claimant and her husband Mr Peires lived in the staff accommodation.
Between 27th August 2013 and January 2015 the Claimant let the Property to a Mr and Mrs George on a two year tenancy. They too were disturbed by the helicopter noise and made complaints but nothing came of that. They were initially interested in acquiring the Property but vacated it in January 2015. The Claimant and Mr Peires moved back in to the Property shortly thereafter and have remained there ever since.
The Claimant's immediate predecessor in title was Mr Michael Ashworth. He acquired the Property in 1970 from the estate of the late Lord Sholto Douglas of Kirtlesied a former Marshal of the Royal Air Force.
The Defendant is the freehold owner of Denham Aerodrome Tilehouse Lane Denham Uxbridge UB9 5DF. The Aerodrome has been in the Defendant's ownership since the 1930s and is unregistered land. The Defendant was incorporated on 14th November 1938. Before the Defendant was incorporated the Aerodrome was owned by the Bickerton family members of which own and control the Defendant today.
THE AERODROME
The Aerodrome is an operational aerodrome. It benefits from a CAA license dated 24th June 1988 and on 20th November 2000 was granted permission by the CAA to levy airport charges. It was first licensed apparently back in 1938. There has been an aerodrome at the site since around 1907.
THE ISSUE
As set out above the issue is over a particular training operation. The land of the Aerodrome slopes towards the hedge boundary where the field is between the Aerodrome and the Property. The training is landing and taking off on a sloping piece of land. The Defendant's case is that the area where the operations are currently carried out is uniquely useful for that operation and it is the only place where it can be carried out on the entirety of the Aerodrome. The precise area where the operation is carried out on is a matter of dispute. Reference was made in the trial to an area called "the Slope" but nobody could agree where the Slope was and various witnesses during the course of the trial pointed to different places on the site plan. During the course of the viewing it was impossible to see the precise area. The only marker is a post put in the hedge. It is clear however from the video evidence that the helicopters carry the training exercise out on a large area adjoining the boundary hedge where the land falls away. It was further clear that during the course of the operation of landing and taking off the helicopters regularly disappear from view. This is because of the slope of the land towards the hedge.
THE COMPLAINT
The complaint basically is the noise emanating from these training operations. The Claimant's case is that the noise is a nuisance and seriously affects her enjoyment of the Property both in respect of the garden and the major parts of the house. The most important living and bedrooms face towards the Aerodrome. As I have said above the Claimant has always accepted that there will be noise from the other operations of the Aerodrome, but her case is that the noise from the helicopters is very different being extremely loud and continuing for such periods as make it unacceptable.
There is a major dispute between the parties as to the frequency of this operation. The Defendant contends that the activity takes place on average 1.5 times a week for 15 minutes or so per session. If this is the evidence the Claimant accepts that would not be an actionable nuisance.
The Claimant's case however is that the activity is far more expansive than that. This requires an examination of the evidence below.
The complaint therefore is over an unreasonable use of the Aerodrome which causes unreasonable nuisance to the Claimant.
LAW ON NUISANCE
The Claimant contends that the activities of the Defendant in relation to this training is an undue interference with her comfortable and convenient enjoyment of her land (category 3 of Clerk & Lindsell on Torts (21st Edition) paragraph 20–26).
The latest analysis of nuisance in this area is to be found in the decision of Lawrence & Anr v Fen Tigers & Anr [2014] AC 822. In that decision Lord Neuburger said this about this type of nuisance:-
"2 As Lord Goff of Chieveley explained in Hunter v Canary Wharf Ltd [1997] AC 655, 688 , "[t]he term 'nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land", quoting from Newark, The Boundaries of Nuisance (1949) 65 LQR 480 See also per Lord Hoffmann at pp 705–707, where he explained that this principle may serve to limit the extent to which a nuisance claim could be based on activities which offended the senses of occupiers of property as opposed to physically detrimental to the property "
3 A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimant's reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant's enjoyment of his land As Lord Wright said in Sedleigh-Denfield v O'Callaghan [1940] AC 880, 903 , "a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society"
4 In Sturges v Bridgman (1879) 11 Ch D 852, 865 , Thesiger LJ, giving the judgment of the Court of Appeal, famously observed that whether something is a nuisance "is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances", and "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey" Accordingly, whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity concerned is carried out
5 As Lord Goff said in Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, 299 , liability for nuisance is "kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which 'those acts necessary for the common and ordinary use and occupation...
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