Scottish Court of Session Decisions

Pursuer: Party

Defender: Mr Webster, Morton Fraser, Solicitors

5 December 2008

Introduction

[1] This case involves alleged damage caused by low-flying military aircraft. The pursuer breeds and rears horses, in particular black Arab stallions. In late 2000, she purchased a property in south-west Scotland with a view to establishing stables there. It was a suitable location as it is surrounded by forest in the Doon Valley and there are forest tracks for hacking and riding lessons. In March 2001, the pursuer became aware of aircraft flying at low altitudes over the subjects. She has since discovered that the stables are located in an area where operational low flying is allowed. There are three such tactical training areas in the United Kingdom.

[2] Miss King estimates that there are now about thirty incidents each month. Often, low flying pairs of jet aircraft pass directly over her subjects three or four times each day. In this action, she seeks compensation for the damage which she alleges has been caused to her, her horses and to her property by the low-flying aircraft. The pursuer's claim against the defender is based upon two causes of action: (a) nuisance; and (b) infringement of Article 8 and Protocol 1 of the European Convention on Human Rights. The defender denies the claim in fact and law and stresses that low level aircraft training is important in the defence of the realm.

[3] The case came before me at debate. Mr Webster, who appeared for the defender, did not make a root and branch attack on the pursuer's pleadings. Rather, he made a number of criticisms of her written case, mainly directed at lack of specification. In developing his crisp submissions, he followed the line contained in the defender's second Note of Arguments. He also helpfully produced a document indicating the precise averments that he sought to exclude from probation.

[4] The first conclusion seeks a declarator of nuisance. The second conclusion seeks a declarator that the pursuer's Convention rights have been infringed. Both refer to aircraft flying "in the airspace over the pursuer's property ... at an altitude of less than 250 feet". Mr Webster's short point in this connection was that the pursuer does not offer to prove facts in support of those conclusions. Condescendence 3 refers to "flying over the subjects at low altitude". However, it does not state that the flights over her property were conducted at less than 250 feet. The only other reference to altitude is the averment that "The surrounding trees are approximately 100 feet high and the aircraft generally pass just above the tree line". Mr Webster said that these references were simply assertions. The pursuer did not offer to prove the altitude of the flights was below 250 feet. Accordingly, the conclusions for declarator could not be granted and the action should therefore be dismissed.

[5] In my view, this argument is not well founded. Pleadings must be read as a whole and can create their own lexicon. Condescendence 5 states that "the noise and vibration created by the aircraft operated by the defenders in flying at low altitude (i.e below 250 feet) over the subjects constitute a nuisance". In my opinion, the reference to "low altitude" in Condescendence 3 should be construed in the same way. Accordingly, the defender has fair notice that the pursuer is offering to establish that aircraft fly over her subjects below the height of 250 feet and in some instances at a height of only just above 100 feet.

[6] The pursuer relies upon certain reports to support her case, all of which she purports to incorporate into the pleadings. They are as follows: (a) "Low Flying Military Noise and Vibration Assessment: Drumjohn Farm, Carsphairn" prepared by Bryce Drummond Associates dated 17 September 2004; (b) physiotherapy reports dated 9 December 2003 and 13 September; (c) a medical report prepared by the pursuer's GP dated 9 September 2005; and (d) a five year business plan for the years 2002 to 2006 inclusive, together with appendices, prepared by the pursuer's accountants. Mr Webster challenged the wholesale incorporation of these reports. He focussed his submissions on reports (a) and (d). He said that they included irrelevant material and that it was inappropriate and inconsistent with normal practice to incorporate them in that way. If the pursuer was right in her approach, it would be necessary for the defender to respond to the reports line by line in the Answers. It followed that the averments relating to the reports were irrelevant and should not be remitted to probation.

[7] No authority was cited to me. I therefore approach the matter by asking whether in respect of each report, such incorporation is a satisfactory way of giving specification. That depends on the nature of the case and the nature of the incorporated material (The Royal Bank of Scotland plc v Holmes 1999 SLT 563, 570F per Lord Macfadyen). In my view, the pursuer was entitled to incorporate reports (a) to (c) inclusive. In respect of the noise report, the pursuer's primary averment is that "Noise levels have been recorded at in excess of 110 dB." In my view the reference to the report gives notice to the defender of where that averment derives. With regard to the medical reports, the pursuer is simply offering to prove that as part of her loss, she required medical treatment as outlined in the reports. They are not substitutes for proper written pleadings and I do not see that the defender is prejudiced by reason of any lack of specification.

[8] So far as the Business Plan is concerned, however, the position is different. In the closed record, projected figures are given for net profits for the pursuer's business without any specification of the actual loss she contends she has made. In my view, the bald incorporation of the Business Plan with five appendices does not give adequate specification of the alleged loss. The defender does not have fair notice of the figures sought under this head or how they are made up. Accordingly, I exclude these averments from probation.

[9] In Tactical Training Areas, the Ministry of Defence guidelines require aircraft to fly at a minimum separation distance ('MSD') of 100 feet. The MSD is "the distance between the aircraft and the ground or buildings/trees" (Condescendence 4). The pursuer offers to prove that this guideline was broken. The precise averment is as follows: "In flying at an altitude which is just above the treeline around the subjects, and therefore below the MSD, the aircraft passing over the subjects are operating in breach of these guidelines". Mr Webster made three criticisms of this averment. First, it contradicts the pursuer's averment that the trees are approximately 100 feet high. Secondly, it does not distinguish aircraft passing above the tree line around the subjects, from those passing over the subjects themselves. Thirdly, the pursuer fails to identify the incidents when the guidelines were breached.

[10] In reply, Miss King said that the trees are about 100 feet from the house. Jets fly at about 250 feet to 500 feet over Loch Doon. As they approach her property at Drumjohn itself, they sometimes descend to such low levels that they manoeuvre between the trees and there is a sonic boom. It is at that level that they cause the horses to bolt. Above 250 feet, the horses are not troubled at all. She maintains a calendar in which she only records the 'problematic' incidents, where the jets have flown under the 100 feet barrier.

[11] In my view the defender's challenge is well founded. I can only proceed on the basis of the pleadings (which were amended by the pursuer at the outset of the debate). For the reasons given Mr Webster, Condescendence 4 is irrelevant and I shall exclude it from probation.

[12] Mr Webster went on to challenge the specification of a number of heads of loss:

[13] The pursuer seeks damages for fright and distress for herself and her partner and children. During the course of the hearing, she accepted that she can only claim in respect of her own interests. Accordingly, I shall exclude from probation the averment in Condescendence 6 which states: "and her family (she lives at the subjects with her partner and two children)".

[14] The pursuer seeks compensation for the "shaking of the windows of the subjects and structural damage thereto". As Mr Webster noted, there is no indication of when this occurred, nor the cost of repairs. In the course of debate, Miss King said that she relied solely upon the occasion when two jets went directly overhead and a crack went straight down the four inch breeze blocks. In my view, there is insufficient specification to support this head of loss. I shall therefore exclude from probation the following averments in Condescendence 3 "The noise causes windows in the subjects to vibrate. The vibration caused by the sound waves has caused structural damage to the subjects. Masonry has fallen from the roof of the house several times. A crack has appeared in the stable wall from window to floor."

[15] In respect of the veterinary bills, I am satisfied that the pursuer has averred enough to give fair notice to the defender of the injuries to her horses. In my view, there is sufficient on record to justify the claim that the value of the horses has diminished and that the injuries to them is confirmed by the veterinary bills.

[16] As I have already deleted the reference to the Business Plan, there is in my view plainly no sufficiently specific case to go to proof on this head. I will therefore delete the associated averments relating to this head of loss.

[17] In my view, the pursuer has just enough on record to allow the averments about diminution in value of the subjects to go to proof.

[18] For the reasons outlined, I sustain certain of the defender's arguments. I shall put the cause out By Order for further procedure.