Peires v Bickerton's Aerodromes Ltd

This is an application by the Appellant in these proceedings for a stay of the order which Peter Smith J made at the conclusion of the trial of the Claimant's action for an injunction and damages in respect of nuisance caused to her by helicopter operations on the Defendant's aerodrome.

The Defendant company is the owner and operator of the airfield. Part of its business consists of providing training courses for helicopter pilots which are organised and carried out by two training companies under licence to the Defendant. Those training companies, as I understand it, pay licence fees for the use of the aerodrome for training purposes and also landing fees in respect of the particular operations of the aircraft that are involved.

The Claimant and her husband live at a property known as Shepherd's Holt, which is adjacent, although not immediately, I think, adjacent, to the airfield and in particular to part of the airfield where there is a slope that is used for training purposes to enable pilots to practice taking off and landing on sloping ground. She does not make complaint as part of these proceedings about the more general operation of the aerodrome, including its use for helicopter flights. What she says constitutes a nuisance and what the judge found constituted a nuisance were the particular manoeuvres by helicopters involved in taking off and landing and intermediately hovering above the sloping ground that I have referred to.

The Defendant's case before the judge was that the sloping area near the Claimant's property was the only place on the airfield where training pilots could practice landing and taking off on sloping ground and that the operations involved, like those of the airport more generally, were exempt from and immune from suit in respect of any nuisance as a result of the provisions of ss.76(1) and 77(2) of the Civil Aviation Act.

The Defendant also challenged the allegations that the helicopter operations I have described amounted to a private nuisance, but the judge found that they did. Although some of the grounds of appeal seek to challenge his findings, Floyd LJ has refused permission on those grounds.

Floyd LJ did, however, give permission to appeal in respect of two matters. The first was whether the judge was right in his rejection of what are called the statutory defences under the Civil Aviation Act and secondly, on whether the order in its final form was both unclear and excessive having regard to what the judge had found constituted an actionable nuisance.

It is not, of course, for me on an application of this kind to attempt to make any authoritive determination of the likelihood of success on these two issues for which permission has been given. Nor, I think, would it be possible for me to do so. But the second of those two issues, that is to say the scope of the injunction, is, I think, something which does bear directly on the issue I do have to decide. I will come to that in more detail in a moment.

So far as the statutory defence is concerned, the issue is whether or not the manoeuvres of the helicopters as part of the training operations that I mentioned constitute the flight of an aircraft within the meaning of section 76(1). Flight is defined, I think, in section 105 of the Act as meaning a journey beginning at take off and ending when the aircraft lands.

It is accepted, I think, by the Claimant that the movement of the helicopter from the hangar to the area of the slope prior to the practice manoeuvre of taking off and landing, would undoubtedly constitute a flight for those purposes. No relief was sought in respect of that. But the Claimant says that section 76(1) does not cover the take off and landing manoeuvres and the judge accepted that. He said in paragraph 94:

"I do not accept that the training exercise on the slope is "flight" or any part of it. The section is plainly designed to cover journeys with aircraft passing over other property and the associated take off and landing."

Mr Denehan, I think, does not seek to support the judge's reference to the need for the journey within the statutory definition to be one passing over other property. He accepts, as indeed is implicit in his concession that the movement of the aircraft from the hangar is a journey, that it can be limited to the area of the airfield. But he says that merely taking off and landing and performing the associated manoeuvres is not a journey within the meaning of the definition. The judge was, therefore, right to reject that part of the statutory defence.

The other section that is referred to, that is to say 77(2), provides that:

"No action shall lie in respect of nuisance by reason only of the noise and vibration caused by aircraft on an aerodrome to which this subsection applies by virtue of an Air Navigation Order, as long as the provisions of [and I interpolate here the Air Navigation Order] are duly complied with."

The Air Navigation Order provisions that the judge thought were relevant concern prohibitions on low flying, that is to say beneath 500 feet. But those prohibitions are subject to statutory exceptions under regulation 6, as one would expect, in the case of landing and taking off. An aircraft is exempt from the low flight prohibitions according to regulation 601:

"Insofar as it is flying in accordance with normal aviation practice for the purpose of taking off from, landing at or practising approaches to landing at a licenced aerodrome."

The judge rejected that defence also on the grounds that the particular manoeuvres in question were not exempt from the low flying rule because, as he put in paragraph 100 of his judgment:

"I do not accept that the operations on the slope involve flying… The procedures are not part of any normal incident of flying or taking off."

Floyd LJ thought that there was a real prospect of success on that issue so as to justify giving permission to appeal in relation to the statutory defences. I must proceed to deal with this application on that basis.

The other ground of appeal, however, is one in respect of which there is already a concession by the Claimant. The judge's original order made on 22 March 2016 prohibited the Defendants or their licensees from carrying on training operations as defined in the order on/or above any part of the slope. The slope is defined in the first part of the order as that part of the Defendant's land described in paragraph 58 of the judgment. Training operations are defined:

"as the taking off, landing, hovering, hover taxiing and any other manoeuvring of helicopters as part of helicopter pilot training and/or as part of helicopter pilot continuation training but excluding the movement of helicopters at a height of 750 feet or more."

Subsequently, the judge went to visit the aerodrome and it would seem of his own volition extended the injunction in relation to training operations so as to include not merely the slope as defined in the original order, but...