England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Peires v Bickerton's Aerodromes Ltd [2016] EWHC 560 (Ch) (17 March 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2016/560.html
Cite as: [2016] EWHC 560 (Ch)

[New search] [Printable RTF version] [Help]

		Neutral Citation Number: [2016] EWHC 560 (Ch)
		Case No: HC2014000601

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL

17/03/2016

B e f o r e :

THE HONOURABLE MR JUSTICE PETER SMITH
____________________

Between:

	Lorna Grace Peires	Claimant
	- and -
	Bickerton's Aerodromes Ltd	Defendant

____________________

Mr Edward Denehan (instructed by DMH Stallard LLP) for the Claimant
Mr Richard Harwood QC (instructed by Clark Ricketts LLP) for the Defendant
Hearing dates: 27th-29th January & 1st, 2nd & 5th February 2016
____________________

HTML VERSION OF JUDGMENT
____________________

Peter Smith J:

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 of land and houses may be done, if conveniently done, without subjecting those who do them to an action': see Bamford v Turnley (1862) 3 B & S 66, 83, per Bramwell B" I agree with Lord Carnwath in para 179 below that reasonableness in this context is to be assessed objectively."

These themes were also taken up by Lord Carnwath at paragraphs 179-190 as follows:-

"Reasonable user

179 It is important at the outset to identify the test to be applied in determining what amounts to a nuisance In his introduction (para 5), Lord Neuberger quotes without comment a passage in Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, 299, in which Lord Goff referred to the "controlling" principle of "reasonable user – the principle of give and take…" As I explained in Barr v Biffa Waste Services Ltd [2013] QB 455, paras 60-72, Lord Goff was not seeking to lay down a general rule, and the concept is not without its problems The criterion of "reasonableness" has also been strongly criticised by some academics (See for example, Allan Beever The Law of Nuisance (2013) p 9ff: "it is presented as an explanation of the operation of the law, but it does not, cannot, explain anything") In Barr v Biffa Waste Services Ltd (para 72), I referred to Tony Weir's qualification of the reasonableness test:

"Reasonableness is a relevant consideration here, but the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive, constrain one's neighbour's freedoms), but what objectively a normal person would find it reasonable to have to put up with" (Weir An Introduction to Tort Law, 2^nd ed (2006), p 160)

The character of the locality

180 Another important question is the context in which the reasonableness test is to be applied Traditionally the acceptability of the defendant's activity is to be judged by reference to "the character of the locality", a concept which dates back at least to Sturges v Bridgman (1879) 11 Ch D 852 At that time the mix of uses in an area would have been the result largely of unrestrained market forces, and the degree of regulatory control was very limited Although the same principle has survived into the modern law, it is unrealistic to leave out of account the many factors which influence the character of an area in the modern world, including the impact of planning control In Hunter v Canary Wharf Ltd [1997] AC 655, Lord Cooke (dissenting on this part of the case) highlighted these changes:

"…the lineaments of the law of nuisance were established before the age of television and radio, motor transport and aviation, town and country planning, a 'crowded island', and a heightened public consciousness of the need to protect the environment All these are now among the factors falling to be taken into account in evolving the law…" (p 711 D-E)

Lord Hoffmann, in the majority, also commented on the significance of the introduction of modern planning control, which he saw as an argument against further extending the law of nuisance:

"In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law …" (p 710B-D)

181 Against that background, in areas where conflicts may arise, the character of any locality may not conform to a single homogeneous identity, but rather may consist of a varied pattern of uses all of which need to coexist in a modern society Due account also needs to be taken of the process by which the pattern of uses has developed The impact of general planning control since 1948, which includes development plan allocations as well as decisions on individual planning applications, will have played a major part in ensuring, as Lord Hoffmann said, an appropriate balance between developers and the public

182 However planning control is only part of the story The pattern of uses will include, not only uses approved under modern planning permissions, but also other lawful uses – lawful either because they began before 1948, or because they have become established in law since then (such as stock car racing in this case) Potentially unneighbourly uses, even if not subject to specific planning permission, are likely to have been subject to other regulatory controls to ensure their acceptability within their particular environment Other activities may have been encouraged to relocate, with or without threats of discontinuance orders, or financial incentives

183 After more than 60 years of modern planning and environmental controls, it is not unreasonable to start from the presumption that the established pattern of uses generally represents society's view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants The common law of nuisance is there to provide a residual control to ensure that new or intensified activities do not need lead to conditions which, within that pattern, go beyond what a normal person should be expected to put up with

184 This analysis seems to me consistent with that of the Lord Westbury LC in St Helens case in the different circumstances of the Victorian world In the passage quoted by Lord Neuberger (para 64), Lord Westbury spoke of the need for a person living in a town to subject himself to consequence of trade operations in his locality which are "necessary for trade and commerce… and for the benefit of the inhabitants of the town and of the public at large": 11 HL Cas 642, 650 There is no reason why, in a modern context, the same analysis should not apply to activities other than trade which contribute to the ordinary life of a modern community, and which need to be accommodated within the urban fabric

185 An example mentioned in argument was a major football stadium Significant disturbance on match days may be regarded as a necessary price for an activity regarded as socially important, provided it is subject to proper controls by the public authorities, including the police, to ensure that the disturbance is contained as far as reasonably practicable In those circumstances, if someone buys a house next to such a stadium, he should not be able to sue for nuisance, even though the noise may be highly disturbing to ordinary home life on those days This is not because he came to the nuisance, nor (necessarily) because it has continued for 20 years Rather it is because it is part of the established pattern of uses in the area, and society attaches importance to having places for professional football within urban areas He can however sue if there is something about the organisation, or lack of it, which takes the disturbance beyond what is acceptable under the reasonableness test

186 Nor is there any reason why this approach should be confined to urban areas As the present case illustrates, similar patterns of potentially conflicting uses may arise in the country as much as in the town

Relevance of the defendant's activity

187 The above analysis seems to me to provide the answer to Lord Neuberger's third issue, concerning the relevance of the actual use complained of by the claimant An existing activity can in my view clearly be taken into account if it is part of the established pattern of use That is clear from many of the reported cases which proceed on the basis that the defendant's activity contributes to the character of the locality against which the new or intensified use is to be considered

188 So in Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234 (approved by the House of Lords [1907] AC 121) the Court of Appeal specifically rejected an argument that because the defendant's activities conformed to the character of the area, there could not be a nuisance when a new more intrusive element was introduced Similarly, in Halsey v Esso Petroleum [1961] 1 WLR 683, Veale J started from the position of the "ordinary man" -

"… who may well like peace and quiet but will not complain, for instance, of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live alongside a factory" (p 692)

Thus the defendant's activities, at their previous level, were accepted as part of the established pattern of uses in the area, also reflected in the development plan zoning (p 688), and thus as the starting point for consideration of the alleged nuisance

189 In Kennaway v Thompson [1981] QB 88 it was common ground that the plaintiff could not complain of noise of motor boats at the levels accepted by her as tolerable when she built her house (p 94B) The terms of the injunction were designed to protect the defendant's activities at that level, with a limited number of days for noisier boats (p 94F-95A) Similarly in Watson v Croft Promosport Ltd [2009] 3 All ER 249 the injunction, even as modified by the Court of Appeal, did not stop the defendant's activity altogether, but sought to define the level of acceptable use, by limiting numbers of days and defining noise limits (paras 53-54)

190 In none of these cases did the court find it necessary to undertake an "iterative process" as proposed by Lord Neuberger (para 72) The judges proceeded on the basis that a change in the intensity or character of an existing activity may result in a nuisance, no less than the introduction of a new activity It was a matter for the judge, as an issue of fact and degree, to establish the limits of the acceptable, and if appropriate to make an order by reference to the limits so defined."

Accordingly I need to balance the right of the Claimant to the undisturbed enjoyment of her property but balance that against the right of the Defendant to use its property for its own lawful enjoyment.

It is also important to take in to account the Claimant and the Defendant. As regards the Claimant she is the owner of a substantial property with substantial grounds. In the grounds are to be found a tennis court a barbeque area and ground where one would ordinarily expect to be able to sit in private contemplation or have outside barbeque activities and the like.

The house is a comfortable house with the extensions providing very pleasant reception rooms and the upper bedroom all facing over the garden and thus ultimately towards the Aerodrome.

The Defendant has operated the Aerodrome since 1938 and there has been an Aerodrome there since before the First World War. However I cannot ignore the fact that what was taking off in 1907 is somewhat different to the modern aircraft. The noise of helicopters is particularly different to that of aeroplanes in my view. Nevertheless there is a significant background noise activity which cannot be ignored. There is regular activity of aircraft (mostly light aircraft) landing and taking off and before that process taxiing to a take off position. Depending on the wind they will either take off towards the Property or not. Helicopters similarly are expected to taxi alongside the runway in the same direction governed by the wind. There is a separate grass runway which operates at right angles to the main runway. This is used when the wind requires it. It is fair to say that most landing and take off is on the paved runway. As part of that exercise the aircraft and helicopters might be standing or hovering at the end of the runway for a short period. There is clearly noise of aircraft and helicopters taking off. When they take off in addition to departing on flights they do training circuits round the Aerodrome.

All of those above generate noise and the Claimant makes no complaint about that.

Equally one perceived (although Mr Peires did not accept this) a background "hum" which was identified as coming from the M25. For my part I accept what the Claimant's expert said about it namely that it was a hum and individual vehicle activities could not be discerned from the noise. To my mind it is a noise which would be noticeable initially when one moved in to the Property but then it would fade away because it is not significantly intrusive.

The Claimant and her husband also contend that the helicopter noise and the activity complained of is very different to the noise of light aircraft and helicopters when they take off and land. The Defendant disputes this. However having witnessed all of the activities together I agree with the Claimant's analysis. The take off of the light aircraft is very different from the noise of a helicopter and even the take off of the helicopters is transient. As the helicopter takes off and disappears the noise rapidly reduces. By contrast the noise of the operations is continual and at the same volume.

To my mind this difference is the vital factor as regards the training activity complained of. It is markedly different from taking off and landing and the other activities for reasons I have said.

The nuisance in this case is based on two factors. First the Claimant contends that the noise generated by the activity prevents her reasonable use of the Property. Second she contends that the activity carries on for an unreasonable length of time and because it is unpredictable (in the sense that she does not know the activity is to take place until the helicopter actually arrives) that too is an interference of her enjoyment of the Property.

It is well established that intermittent and relatively slight disturbance is something that parties accept the need to put up with (Southwark LBC v Mills [2001] 1 AC 1 at page 16 per Lord Millett).

The important matter to identify is whether the activity complained of is sufficiently continued thus and intolerable as to be actionable. A further factor that cannot be ignored is whether or not the Defendant can take reasonable steps to abate or minimise the noise created by the activity. This seems to me to be the counterpart to the position of the Claimant. She cannot complain about what the activity is bearing in mind the need for give and take between the two parties' rights to use their respective properties unless it is excessive. Equally as part of this give and take it seems to me clear that if the matter can be controlled or regulated in some way by the Defendant it ought to take steps to minimise the noise.

In fact as appears later in this judgment I am of the view that for the reasons set out below the activity as presently carried on is an actionable nuisance. I am also of the view for the reasons that I set out below that the Defendant has had opportunities to minimise the impact on the Claimant's use and enjoyment of the Property but for reasons which I cannot understand has over 40 years of complaints steadfastly without justification refused to take any steps to ameliorate the position.

THE CLAIMANT'S EVIDENCE – NON EXPERT

The main evidence on behalf of the Claimant was given by her husband. The Claimant provided a supportive witness statement. In addition the Claimant called Melanie Stenson her resident housekeeper. I found her evidence particularly important.

Mr Peires' evidence was not seriously challenged as to the extent and intrusive nature of the noise both in the grounds and in the house. He clearly failed in his evidence to deal with the background noise emanating from the motorway. I put that down to the fact that the background noise was a low hum and one forgets about it after a period of time. I do not regard the motorway background noise as being significant to this case nor Mr Peires' failure to deal with it. The more significant background noise of course is that of the other unchallenged uses of the Aerodrome. A rather unimpressive attempt was made to suggest that Mr Peires lied about his knowledge of the motorway noise but I do not accept that he did.

He was cross examined about the extent of the complaints he made but I found his answer on that (T2 9/13) quite credible. When the Claimant and her husband moved in to the area they clearly became friends with the Pauls who operated the Aerodrome. For example Mrs Peires signed up to train as a pilot. I can well understand their frustration when calling the Duty Officer when one looks at the rather feeble attempts of the Defendant to deal with complaints. When a call is made to the complaint line there is a pre-recorded message inviting the caller to leave a message and they will get back to them. Despite Ms Paul's evidence that there was a rapid response it showed that sometimes it took days or even weeks to deal with a complaint. It seemed to me of the customer service line of the type callers find frustrating. Equally I accept that the relevant duty officer has more important things to do than deal with complaints and I suspect Mr Peires did lose his temper on occasions but I suspect that was due to frustration over matters not being addressed.

Mr Peires has a conviction 30 years ago in the United States for which he received a sentence of 7 years imprisonment. Apparently he operated a fraudulent investment scheme. This was put to him and was repeated in the closing submissions of the Defendant. I suppose it has some weight but it is difficult to see what weight it has in assessing the credibility or otherwise of his evidence before me as to the impact of the helicopter operations on his use and enjoyment of the Property. It seemed to me that it was put in merely for prejudice and carries no weight whatsoever.

Mr Peires struck me as a strong willed person who would vigorously protect what he thought was his position. As such I have little doubt he overstepped the mark but I can understand the frustration when this activity has gone on for so many years. In that context I refer to the lately disclosed correspondence between the Defendant and the previous owner Mr Ashworth which showed a pattern of complaints made by him over some 30 years. Some of those complaints were clearly extreme and excessive but it is quite clear that during that 30 year period he raised the same issue of helicopter noise close to the boundary carrying out an operation identical to the one the subject matter of this case. Although Mrs Paul in the correspondence promised to look in to it and try and find an alternative solution she never did. The activities carried on in the same way in the same place for the entirety of that period. I will address alternative methods of carrying out the activity further in this judgment because I am firmly of the view that the Defendant could have ameliorated the noise but has not taken any steps so to do. Mrs Paul sat in court throughout the whole hearing but did not give evidence. So I do not have any evidence from her dealing with the Ashworth period.

There was a lot of cross examination about the amount of money which the Claimant had spent on improving the Property and even more cross examination about her attempts to sell the Property at what price and why people were not interested. None of this in my view has any relevance to the issue before me as to the nuisance. The question of damages simply does not arise because it is plain in my view that if the nuisance is established and there is no statutory defence the matter can be resolved by a defined period of operation.

The Defendant's case is that they carry out these operations on average for no more than 1.5 sessions of 10 minutes each namely 15 minutes per week. The Claimant contends that the user is far more extensive.

However I asked Mr Peires what his attitude would be if there were (for example) 2 set periods for 20 minutes per week on say Friday morning and Saturday morning. I asked him if he would accept that. His answer was (T2 89) "we would be happy and we would celebrate". That would be nearly 3 times the amount which the Defendant contends it uses on average. The Defendant was not prepared to reciprocate (see below).

On the main point Mr Peries' evidence was firm and he was not seriously challenged in my view.

The Claimant gave similar evidence.

She was cross examined about the tenants but she confirmed her husband's primary evidence as to the impact of the noise.

Mrs Stenson gave evidence about the noise saying (paragraph 4):-

"I find most of the noise from the Aerodrome pretty awful but the worst is the noise from the helicopters hovering on the north-west border of the Aerodrome as shown on the plan attached to Norman's statement". She supplemented this in paragraph 5 "In my experience, the noise is worse on Saturday mornings, but takes place regularly throughout the week. In my experience, the manoeuvres last for about 30 minutes each time. There are often 2 or 3 helicopters hovering at the boundary at any time. From the garden, I am able to see the tops of the helicopters bobbing up and down on the boundary as they carry out their manoeuvres. I can clearly recall one occasion when I saw 3 helicopters, one black, one green and one white all hovering at the same time. When I am in the garden the helicopters are hovering on the slope the noise is incredible. When we are in the part of the garden closest to the Aerodrome my husband and I have to shout at each other to make ourselves heard above the noise; you can barely hear yourself talk. Whilst the noise gets better closer to the house it is still bad and is always disturbing. It is virtually impossible to enjoy the garden whilst the helicopters are hovering, it is too distracting to read a book and is embarrassing to have guests around as conversation is impossible.

I can hear the noise from inside our accommodation both through the windows open and shut. You can see from the floorplan attached to Norman's statement that the window to our sitting room has a window facing eastwards towards the Aerodrome. We can't have that window open if we want to watch television or listen to music and even with the window closed, we need to turn the volume up significantly whilst the manoeuvres are being carried out. I can't speak on the telephone in the sitting room whilst the helicopters are hovering and have to move into the kitchen.

Whilst there is no night time disturbance, the helicopters can carry out their manoeuvres on the Slope at any time until it gets dark, which is quite late in the evening in the summer time.

The nuisance cased by the noise of the helicopters is a shame, because it is a lovely peaceful garden and the noise of the helicopters disturbs everybody."

None of this evidence was seriously challenged in cross examination. The only point on which she was not accurate was when she said in response to a question from Mr Harwood QC Counsel for the Defendant that you cannot see the helicopters all the time because the slope is in the way (T2 109/122).

I do not accept that is the overall position of her evidence and in my view she was confused in that answer. Both the videos and the site inspection shows the land sloping towards the hedge and the helicopters when they are carrying out their exercise on the sloping land drop out of sight when they move towards the hedge as I have already said.

She said that she found all of the noise complained of awful including the fixed wing but of course it is the helicopters that make the noise and its frequency which she found particularly disturbing.

This in my view is credible evidence strongly supportive of the Claimant's case.

THE VIDEOS

I was provided with videos set up which recorded operations of helicopters. I was also provided with notes accompanying the videos but it seemed to me (although the times on the videos did not appear to match those on the Claimant's notes) the videos showed the regular usage for periods significantly in excess of the average figures contended for by the Defendant. Accordingly the videos in my view supported the Claimant's case as regards the extent of the user. It also confirmed the unpredictability of the user as it recorded different times at different days. In addition it showed on occasions more than one helicopter and at some stages almost a rank of helicopters. They showed the helicopters doing the operation on occasions shortly before take off.

SITE INSPECTION

The site inspection also in my view strongly supported the Claimant's case about noise. I found the noise excruciating in the garden and clearly noticeable to a significant degree within the rooms. It was simply impossible to have any kind of conversation or do any kind of activity in the gardens when the helicopters were there. Further although the Defendant's case is that the helicopters come there to do the exercise and take off by taxiing alongside the runway I observed 3 helicopters that appeared to be hovering at the end of the runway in this area which then took off with out taxiing down the runway almost straight up. This to my mind created even more noise because the helicopters clearly had to use more power to obtain such a lift as opposed to what would have happened had had they got speed by taxiing alongside the runway. The Defendant was unable to explain why this happened as it appeared to be contrary to its case.

The other point that was of significance in my view was that when the helicopters moved along the hedge boundary away from the Claimant's property the noise of the operation dropped significantly. The Defendant contended that they were unable to move the operation there because it was too close either the grass runway or the part of the parked aircraft. I was not convinced about this and I felt that such a move was a possibility. It was significant in my view that it had not been explored (cf Mrs Paul's initial response to Mr Ashworth as long ago as 1970). Equally when one moved around the other side towards the boundary of the golf course it seemed to me that it was feasible for that area to be used as a possibility. It was also possible in my view to move even further along. In that instance Ms Paul's objection was that the windsock was in the way but she was unable to explain why the windsock could not be moved.

The only other objection that was put forward was that the area where the activity was carried out was the only area within the Aerodrome which was sloped and the test has to be done on sloping ground. Whilst that might be true I found Ms Paul's view that it would be impossible to replicate it by landscaping any other convenient point completely unconvincing. There was nothing significant about the slope in my view which could not have been recreated by any competent operator of agriculture equipment under direction. Once again this showed in my view that the Defendant was unwilling to do anything other than carry out what was already being carried out. Thus it seems to me that the unwillingness of the Defendant to consider alternatives is a factor I can take in to account. As I have said above in nuisance cases like this there must be give and take and if it can be shown that the Defendant can ameliorate the problem by moving the activity elsewhere but fails to do so that will count against it in the overall assessment of the case.

Equally Ms Paul was completely unresponsive to the suggestion that there should be fixed times (even when it was extended to 3 sessions of 20 minutes). Once again I found her answers unconvincing. She suggested that it would not be possible to do it on a fixed rota but I could not see why. The Claimant was willing to accommodate this by allowing a change from the set three periods on being given reasonable notice. Ms Paul was not satisfied with that either and wished to claim complete flexibility.

In my view Ms Paul wanted to claim this flexibility because in reality the Defendant was carrying out far more operations than she was letting on and their case suggested.

I found the Claimant's evidence on the nature of the noise and the frequency compelling.

THE DEFENDANT'S EVIDENCE – NON EXPERT

The Defendant called Ms Paul the current Director of the Defendant and the Manager of the Aerodrome. She had succeeded to this post from her mother who whilst featuring in particular in the Ashworth era as I have said was present throughout the trial but gave no evidence. In addition the Defendant called Quentin Smith the Managing Director of HQ Aviation Ltd ("HQ Aviation") which is a helicopter engineering and management company and pilot training school based at the Aerodrome. Finally the Defendant called Mr Kirkbride the Senior Duty Officer of the Defendant.

MS PAUL

I found her evidence unsatisfactory. She frequently avoided answering questions and attempted to argue points which were not a response to the questions put. I felt I could not place any reliance on her evidence especially where it conflicted with that of the Claimant in respect of extent of user.

I found Quentin Smith to be straightforward and helpful but I did not think that he advanced the Defendant's case. I found his suggestion of a one minute operation unlikely unless the pilot was extremely experienced. Nevertheless he accepted that it would not be possible to identify a specific area which the pilots would then land on. That accorded with the videos and my own sight. It also explained when the various witnesses were asked to identify "the slope" on a site plan why various different locations were given. The reality and I so find is that there was no defined area where the helicopters carry out the operations save that they carry out the operations on the whole of this part of the area of the Aerodrome where there was a slope. I reject specifically Ms Paul's location which was clearly designed to put the operations at the maximum distance from the Claimant's Property and also suggest that their camera was in the wrong place when it clearly was not.

Mr Smith said HQ used the slope on average 10 times per month which equates approximately 120 times a year. HQ according to the evidence was 70% of the helicopter training business. The other Heli-Air was 30% and did not give evidence. No explanation was given for this and absent an explanation I conclude that Heli-Air was not called because it could conceivably have taken the use of the slope up to 170 times a year which would be more than double the weekly figure of 1.5 times advanced by the Defendant. In addition it is to be remembered that the two companies are not the sole users of the slope other pilots come and use it when they are either at that Aerodrome or actually come specifically to do their training or their refresher training.

Mr Smith's evidence therefore when looked at from that point of view is supportive of the Claimant's rather than the Defendant's case as to the extent of user.

MR KIRKBRIDE

As I said Mr Kirkbride is the Senior Duty Officer and he produced a log which he said recorded all the helicopter movements on the slope. However it was not entirely scientific. He is not for example an air traffic controller and control is not his function. His function is to provide information. He accepted that the log was not 100% accurate (T3/64 & T4/29). He denied that helicopters take it in turn to use the slope in the sense that one would follow the other. This however was inconsistent with the Claimant's evidence, Mr Peires' evidence, Mrs Stenson's evidence and that of the Claimant's expert Mr Johnson (see below). It was also inconsistent with the videos which on occasion showed more than one helicopter on the slope.

Further there were other difficulties about Mr Kirkbride's log. For example the slope logs do not reflect any of the helicopter movements noted by Mr Johnson although it is fair to say that the Defendant's case is that Mr Johnson is not recording slope activity but actually activity beyond the slope. I do not accept that as I shall set out below. In addition the video shows slope activity on 15th and 20th June 2015 yet there is no record of that activity on the logs.

Finally it transpired in the evidence that the log was not entirely Mr Kirkbride's creation. It was created by the 8 Duty Officers and he was the senior one.

When I draw all this together I find the Defendant's evidence on frequency unconvincing and I conclude that the Claimant's case on frequency is on the balance of probabilities the more likely scenario.

This is supported by the extensive Ashworth correspondence. I need not refer to it in detail; it is set out fully in the Claimant's closing and this too shows a regular pattern of complaints about noise nuisance starting from October 1970 and carrying on for decades thereafter (closing paragraph 4.17). It is important when one deals with the possible prescription defence.

The Claimant's case is also supported (although in no particularly detailed way) by the complaints of their tenants Mr and Mrs George. For example one can see support for the Claimant in the email dated 3rd December 2013 sent by Mr and Mrs George's agent. However they did not give evidence and in that light I do not attach too much weight to what is said in untested emails.

NOISE EXPERTS

There was a surprising level of agreement with the noise experts ultimately. The experts agreed that the immediate vicinity of the Property was not significantly affected by local noise sources other than the Aerodrome – very little noise was heard from the adjoining golf course apart from periodic mowing or light traffic from immediate surrounding access roads. It was agreed that noise from the agricultural activity was likely to be relatively infrequent. Aircraft movements which were not related to the Aerodrome are frequently evident comprising higher altitude movements of larger aircraft and finally it was observed that the M25 was less then a kilometre away to the west and formed part of the underlying baseline background the level of which varied considerably depending on meteorological conditions. These variations are sufficient to be clearly noticeable and to influence the relative intrusion of the helicopter noise (agreed statement paragraph 14).

It was also agreed that there was nothing unusual or extreme about the helicopter hovering noise per se. The helicopters in question were not especially noisy or irritating types of helicopter. It was agreed however that specific slope landing and take off exercises closest approach to the Property has a slightly different character than other hovering activities which could be more intrusive.

It was also agreed that except when immediately adjacent to the boundary hedge it is difficult to describe precisely what helicopters are doing from the vantage point of the Property.

That agreed statement acknowledges that the helicopter activity at the closest proximate point to the Property is intrusive. That to my mind is an understatement. Having experienced it as I have said it was impossible to use the gardens with the helicopters performing their manoeuvres on the other side of the boundary hedge. This is a contrast to the activity of taking off whether by fixed wing aircraft or helicopter. A large loud noise is generated when those activities take place but the point of the Claimant (and her expert Mr Johnson paragraph 5.2 of his report) is that the noise is transient lasting no more than 30-45 seconds. Furthermore it is not for a constant period as the noise either builds up to a crescendo if the aircraft in question are taking off towards the Property and then fades away as the relevant height is gained or it starts with a crescendo and fades rapidly as the aircraft move down the runway for take off in the opposite direction.

Ultimately Mr Clarke the Defendant's expert acknowledged that the noise generated by the helicopters on the slope was one of the noisier things that happen at the Aerodrome (T4/84) and that they last longer than a transient movement or a take off.

There is obviously a background noise which is higher than in a normal domestic situation. Mr Johnson took measurements from the Property on 7 separate occasions. On each occasion he measured the existing background noise, the existing ambient noise and the noise in the garden when the helicopters were hovering. His results show background noise levels of around 42 dB. Some of his materials were lost due to a computer failure but the ensuing measurements showed noise levels from the operations all exceeding the background noise as measured by him. It is fair to say that some of the measurements were as low as 49 and 48.

These measurements show periods of activities if Mr Johnson recorded them correctly far in excess of those claimed by the Defendant. He was pressed on this in cross examination and remained firmly of the opinion that he was only recording helicopters that were carrying out the training exercises. The difficulty about that is the low level of some of his measurements. It was pointed out that two thirds of his measurements were below 60dB and it was put to him (T4/19) that his measurements in the 40s and 50s were far too low. I should point out that Mr Clarke measured background noises when he took readings as between 38 and 50dB depending on the wind direction. He measured the ambient noise (excluding Aerodrome) between 40-55 (again dependent on wind direction) he estimated the helicopters taking off and landing on the slope at 70dB. In the respective helicopter circuits his measurements were between 50 -65.

In addition as the cross examination of Mr Johnson showed (T4/33-34) the helicopters drop out of sight when they come closer to the boundary hedge. Although Mr Johnson referred to this as a bund there was no area that could be called a bund; his evidence was clearly meant to cover helicopters falling out of view when they became closer to the hedge. It is quite possible that at that position the noise level would be reduced because of the screen effect of the hedge. Nevertheless he was quite clear in his own mind as I have said that all of his recordings were for activities carried on in that area and not elsewhere on the Aerodrome.

He was also adamant that at all the times he was there you could not hear the M25. He was also of the view the traffic noise would sound like a low hum and is bland and indistinguishable. That accorded with my assessment of the M25 noise.

There was a fair criticism of Mr Clarke's evidence as it was to use the word of the Claimant's Counsel stage-managed by Ms Paul in the sense that she picked the location of the ground for the activity (see T4/93). Mr Clarke also agreed that the activity measured by Mr Johnson was much more intrusive if they all measured 70dB (which of course they did not (T4/94)). Mr Clarke was unwilling to express a view as to how the frequency of the operations would need to be before they became unreasonable. He did accept that unpredictability was also a factor which could affect the Claimant's use of the Property (T4/102).

It was for that reason that it was put to Mr Johnson that his lower measurements cannot have been recording helicopter landing and take off on the slope. He was resolute that the summary of his observations were correct i.e. all were monitored helicopters on training operations on the slope. With respect to Mr Johnson that cannot be correct. It seems to me that some of his measurements are either helicopters that are carrying out other unchallenged operations i.e. taxiing beside the runway or hovering elsewhere. It is not possible however to exclude that these lower measurements record helicopters coming to the slope to start operations when the noise increases.

Even taking in to account these criticisms of Mr Johnson's report he still has recordings from a number points of view in excess of the supposed limited operations the Defendant contends are carried out.

Mr Clarke did not seriously disagree with this (see paragraph 10.3 of his report). His assessment of the intrusion of the noise however was based on the information set out in the log (10.6). His final conclusion (paragraph 11.2) is:-

"I have established that helicopter circuits cannot be readily distinguished, in noise impact terms, from all other general aviation activity at the Aerodrome, but the helicopters landing on and taking off from the sloping ground very close to the Claimant's dwelling are noticeably noisier and more intrusive".

The issue between Mr Clarke and Mr Johnson in effect was frequency. I have come to the conclusion that I prefer Mr Johnson's overall evidence on frequency and that evidence supports the other evidence of the Claimant identified above. It is far more than the Defendant contends. Once that minimal threshold is passed the noise in my view becomes intrusive by reason of its frequency. Neither expert disagrees with the proposition that the noise is loud and I could see that from my own observations. Whether the actual measurement is slightly below 70dB or not does not in my view really matter as accuracy to that degree cannot be obtained because of wind changes and the like that might occur. What I am quite clear on in my own mind is that when a helicopter carries out the operation the noise generated is unacceptable. If the activity is carried out with the frequency set out by the Claimant (which is the evidence I prefer) it is an unreasonable use of the Aerodrome and affects the reasonable enjoyment of the Claimant and her husband in the Property and is therefore prima facie a private nuisance.

I reject therefore the Defendant's case that the helicopter noise is neither unreasonable nor excessive.

PRESCRIBING A NUISANCE

It is now established that a right to make a noise nuisance can in certain circumstances be established by (usually) prescription. The Claimant accepts that referring to Gale on Easements 19th Edition paragraphs 4-150-151 and Fen Tigers at paragraphs 29, 32-34 and 41.

However that is the high watermark as a matter of principle. The Fen Tigers case itself shows in the judgment of Lord Neuberger in paragraph 36 that there are a number of possible problems with the acquisition of a right to make a noise by prescription. First it must be established that the 20 years user can only begin when the noise amounts to a nuisance. Second there are obviously difficulties identifying the extent of the easement obtained by the prescription even if the level of noise can be shown to amount to a nuisance of more than 20 years and third there could also be a connected problem of deciding how much if any more noise could be emitted pursuant to the claimed right than had been emitted during those 20 years.

Those issues have been used as justification for suggesting a noise easement cannot be established. Lord Neuberger (paragraph 37) rejected that and suggested that these were matters of evidence.

However they present great evidential difficulty potentially.

The Defendant claims that the helicopter activity commenced in the early 1960s. It is fair to say that the type of helicopters operating in the early 1960s are somewhat different from the present helicopters. I have had no evidence adduced as to the extent of noise created by the activities over the years beyond the limited observations which occurred in the last 2 years. It seems to me that the Defendant has not produced any clear evidence identifying what would be the defined level of noise that falls within any claimed easement. At best it could presumably be the 1.5 units it (incorrectly in my view) asserted was its user. It would not need to establish an easement however at that level because the experts agreed that that level does not unreasonably interfere with the Claimant's use and enjoyment of the Property because of its low frequency.

There is a fundamental objection however to the establishment of an easement by prescription and that relates to the fact that if objections are made and the activity carries on the easement cannot be established because it is being established by force see Dennis v Ministry of Defence [2003] 2 EGLR 121 at paragraph 51 and Fen Tigers (No.1) paragraph 31. This is why the Ashworth documentation was so valuable as it showed protests from 1970. After those protests which carry on virtually uninterrupted right down to the commencement of the action (the cudgels having been taken up by the Claimant and her husband) there is no 20 year user in any event.

Accordingly a claim to establish that the Defendant has established a right in the nature of an easement to carry on the interference by noise fails.

LIABILITY FOR THE ACTIVITIES FOR THE LICENSE HOLDERS

It is in my view impossible for the Defendant to disavow the activities carried on by its licensees. They have licensed that specific activity and are being paid for it. The position was fully reviewed in Fen Tigers (No 2) [2014] 3 WLR 555. In the present case the Defendant has plainly licensed the complained of activity. That operation is an essential part of the training activities of both licensees and the Defendant knows it. Further of course not all of the activities of the helicopters are carried on by students of the two colleges as the evidence showed. When other helicopters arrived and carried out the activities it is the Defendant directly which is sanctioning it.

It follows that I conclude that the Defendant is liable for all activities carried out by the helicopters on the slope.

STATUTORY DEFENCES

Even if the nuisance is established (which I have determined it is) the Defendant contends it has a number of statutory protections which make the nuisance non-actionable.

The first is section 76 (1) of the Civil Aviation Act 1982 which provides:-

"76 Liability of aircraft in respect of trespass, nuisance and surface damage

(1) No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground in which, having regard to wind, weather and all circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and of any orders under section 62 above have been duly complied with……."

The statutory protection extends to all flights not just those passing from A to B see Bernstein v Skyviews [1978] QB 479 at 489 (on the predecessor act CAA 1949). The protection extends to any consequence which may flow from the flight of an aircraft or the ordinary incidents of such flight. Flight is defined as a journey by air beginning at take off and ending when the aircraft lands. It will extend to movement on the ground but in any event covers the whole take off and landing process.

I do not see this provides the Defendant with any assistance, whilst it might have been a flight at Kittyhawk in 1903. 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.

This Defence therefore fails in my view.

The next statutory defence is section 77 (2) which provides:-

"(2) 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 any such Order are duly complied with."

By the air navigation order 2009 Article 60 the Secretary of State may make Rules of the Air by regulation. The present Rules of Air Regulations 2015 replaced those of 2007. The latter provided that:-

"Low flying prohibitions

5.—(1) Subject to paragraph (2), an aircraft shall comply with the low flying prohibitions in paragraph (3) unless exempted by rule 6.

(2) If an aircraft is flying in circumstances such that more than one of the low flying prohibitions apply, it shall fly at the greatest height required by any of the applicable prohibitions.

(3) The low flying prohibitions are as follows—

(a) Failure of power unit An aircraft shall not be flown below such height as would enable it to make an emergency landing without causing danger to persons or property on the surface in the event of a power unit failure.

(b) The 500 feet rule

Except with the written permission of the CAA, an aircraft shall not be flown closer than 500 feet to any person, vessel, vehicle or structure……..

Exemptions from the low flying prohibitions

6. The exemptions from the low flying prohibitions are as follows—

(a) Landing and taking off

(i) Any aircraft shall be exempt from the low flying prohibitions in so far as it is flying

in accordance with normal aviation practice for the purpose of—

(aa) taking off from, landing at or practising approaches to landing at; or

(bb) checking navigational aids or procedures at, a Government or licensed Aerodrome.

(ii) Any aircraft shall be exempt from the 500 feet rule when landing and taking-off in accordance with normal aviation practice or air-taxiing…….

(i) Manoeuvring helicopters

(i) Subject to paragraph (ii), a helicopter shall be exempt from the 500 feet rule if it is

conducting manoeuvres, in accordance with normal aviation practice, within the boundaries of a licensed or Government Aerodrome or, with the written permission of the CAA, at other sites.

(ii) When flying in accordance with this exemption the helicopter must not be operated closer than 60 metres to any persons, vessels, vehicles or structures located outside the Aerodrome or site.

Those regulations were replaced with the 2015 rules but none of those provisions were repeated in those rules. The new regulations came in to force on 14th April 2015. The distance rules are however apparently set out in the Civil Aviation Authority Official Record Series no 1124 dated 13th August 2015.

The closest point between the Property and the Aerodrome is 58 metres.

I do not accept that the 2007 regulations (and their replacement as above) by the CAAOR series no 112 apply to the operations on the slope. The heading is "Low Flying Rule" and the relevant provisions and exemptions are low flying prohibitions. There are additional exemptions in relation to landing and taking off and carrying out navigational aids or procedures. I do not accept that the operations on the slope involve flying. The helicopters at best are hovering for a defined period. Nor do the operations fall in my view with any of the exceptions. It will be observed that some helicopters perform the operation and then took off. However they are not by the operation on the slope carrying out any operation involving take off. Helicopters do not need to do the exercise to take off; it is merely that it was convenient presumably for the pilots to do the training and then take off. It follows that the procedures are not part of any normal incident of flying or taking off.

It follows from that that the protection of section 77 (2) will not apply because the activities are not within the permissive activities prescribed by the relevant Air Navigation Order.

Section 76, even if I am wrong on the application of the section above will not save them either. I was referred by Mr Denehan (Counsel for the Claimant) to an extract from the Bernstein case as follows:-

"As I read the section its protection extends to all flights provided they are at a reasonable height and comply with the statutory requirements. And I adopt this construction the more readily because subsection (2) imposes upon the owner of the aircraft a strict liability to pay damages for any material loss or damage that may be caused by his aircraft.

It is however, to be observed that the protection given is limited by the words "by reason only of the flight" so although an owner can found no action trespass or nuisance if he relies solely upon the flight of the aircraft above his property as founding his cause of action, the section will not preclude him from bringing an action if he can point to some activity carried on by or from the aircraft that can properly be considered a trespass or nuisance, or some other tort. For example, the section would give no protection against the deliberate emission of vast quantities of smoke that polluted the atmosphere and seriously interfered with the plaintiff's use and enjoyment of his property; such behaviour remains an actionable nuisance. Nor would I wish this judgment to be understood as deciding that in no circumstances could a successful action be brought against an aerial photographer to restrain his activities. The present action is not founded in nuisance for no court would regard the taking of a single photograph as an actionable nuisance. But if the circumstances were such that a plaintiff was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity, I am far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief. However, that question does not fall for decision in this case and will be decided if and when it arises."

I agree with the observations of Griffiths J (as he then was). There is not a blanket protection by section 76; the activities must be reasonable. It seems to me that section if it applied (which I do not think so for the reasons I have already said) would not give the Defendant carte blanche to carry out the operation as often as it wished. The introduction of the word reasonable in section 76 shows that the activity is only permissive if it is carried out in a reasonable way. In my view for the reasons I have set out in this judgment the activities being carried out by the Defendant are not reasonable. It follows therefore that if I am wrong in my construction of section 76 and it does apply to this activity it does not sanction the activity to the extent carried on by the Defendant. It must be reasonable.

What is reasonable in the circumstances? Neither expert was willing to chance his arm and offer an opinion on that. It seems to me that the starting point is more than on average 1.5 times per week but less than the activities identified by the Claimant. That does not provide a scientific method of calculating it. It seems to me within the present context I would determine that 2 fixed day operations of 15 minutes each would be reasonable and not actionable.

In addition Mr Harwood QC referred me to Regulation 11 of the Air Navigation (General) Regulations 2006 which deals with noise and vibration which might be caused by aircraft on licensed Aerodromes. That regulation (the relevant part) provides as follows:-

"Part 4 Noise and Vibration, Maintenance and Aerodrome Facilities

11 Noise and vibration caused by aircraft on aerodromes

For the purposes of article 131(1), the conditions under which noise and vibration may be caused by aircraft (including military aircraft) on Government aerodromes, licensed aerodromes or on aerodromes at which the manufacture, repair or maintenance of aircraft is carried out by persons carrying on business as manufacturers or repairers of aircraft, shall be as follows—