Scottish Court of Session Decisions

Pursuer: Party

Defender: Webster; Morton Fraser, Solicitor

11 December 2009

Introduction
[1] In this action the pursuer complains of the effects of low flying RAF aircraft over property known as Drumjohn at Carsphairn near Castle Douglas ("the subjects"). She alleges that the low flying, insofar as it takes place at an altitude of less than 250 feet above ground level, constitutes a nuisance and an infringement of her rights under Article 8 of the European Convention on Human Rights and Article 1 of its First Protocol. The pursuer seeks declarators of the occurrence of a nuisance and infringement of Convention Rights arising from aircraft flying at less than 250 feet; she sues also for damages in the sum of £100,000. In her pleadings the pursuer avers that she purchased the subjects in November 2000 for use as stables for the breeding and rearing of horses; she also runs an animal sanctuary there. It emerged at the proof that the pursuer is not, in fact, the registered owner of the subjects; title to them was taken in the name of her partner (who does not reside at the subjects) because the mortgage had to be based on his salary. There was no dispute, however, that the pursuer has lived in the subjects since about the end of 2000 with other members of her family and has run her business there since that time.

The UK Low Flying System
[2] To set the scene for consideration of the dispute between the parties it is necessary to understand something of the system governing low flying military aircraft in the United Kingdom. Evidence on this was given by the only witness called by the defenders: Wing Commander Jonathan Taylor, a former fighter pilot now working in the Ministry of Defence in Whitehall and having responsibility (since 2004) for the policy, regulation and management of the UK Low Flying System. He was an impressive and authoritative witness and I had no hesitation in accepting his evidence as to the nature of the system. Wing Commander Taylor explained that the current system for low flying extends from ground level to 2000 feet above ground level throughout the UK; all of the UK is available for low flying except for certain designated areas around civil airports and other sensitive locations. To ensure effective management of air traffic, the UK low flying system is divided, during daylight hours, into 18 Low Flying Areas. Within these areas, low flying is permitted down to a minimum of 250 feet above ground level (referred to in this context as "MSD", standing for Minimum Separation Distance). For the purposes of the present case it is important to understand that there are, in addition, three Tactical Training Areas (referred to as LFA 7(T), LFA 14(T) and LFA 20(T)) located in Wales, Scotland and the Borders respectively. Within these areas fast-jet and transport aircraft are permitted to conduct what is known as Operational Low Flying training at heights which are considered to be representative of those likely to be experienced during combat operations. For fast-jet aircraft the minimum height permitted in a TTA is 100 feet MSD. Operational Low Flying accordingly takes place in air space which is between 100 and 250 feet above ground level. The subjects are situated within LFA 20(T).

[3] Within the eighteen LFAs, aircraft may book training freely and without restriction. Consequently, the levels of traffic reflect a number of factors, including where aircraft are based from time to time, proximity to air weapons ranges, types of terrain and prevailing weather conditions. Some LFAs are more active than others and each year a Report is presented to Parliament setting out the number of training hours conducted in each area, together with an indication of the intensity of training relative to other areas. In the case of the three TTAs, however, there is a more active degree of management due to what is acknowledged to be the greater potential for disturbance arising from OLF. Overall levels of activity within the TTAs are limited to the minimum necessary to achieve operational readiness; and the level of activity within each TTA is adjusted to account for the size of the area available for training.

[4] Wing Commander Taylor explained in some detail how Operational Low Flying (hereafter "OLF") is planned, booked, flown and subsequently recorded. As mentioned above, the amount of OLF is restricted. Each training day is divided into nineteen 30 minute training slots running from 0800 to 1730 hours. A proportion of these slots are made available for training purposes and a monthly programme of available slots is compiled for each TTA. In LFA 20(T) there are normally four 30 minute slots available for training on each week day; there is no OLF carried out at weekends. The monthly programme is published two weeks in advance to all military aircrew and is also made available to the public on the Ministry of Defence website and through local media. For military aircrew the programme assigns slots to specific squadrons in which they may conduct OLF training. Allocated slots may be cancelled if not required or they may be retained for use. It is important to note that, once published, slot times are never altered with the result that the times at which the public has been informed that OLF may take place will never be changed. The only possible alteration is that a slot may be cancelled and no activity will take place. Within each allocated slot, training may be conducted by a single aircraft or by a formation of aircraft, depending on the particular training requirement. The largest formation is four aircraft, although OLF training in formation is usually conducted as a pair of aircraft because this is representative of current operational tasking.

[5] Within the TTA the precise routing of the aircraft is at the discretion of the aircrew; this will be informed by the particular training task to be performed and by the prevailing weather conditions. Aircrew are not required to provide details of their exact routing as part of the booking process; again this is because tactical flight will often deviate from a planned track to take advantage of terrain, to route around weather problems or to respond to other unforeseen conditions.

The evidence for the pursuer
[6] The evidence led by the pursuer, who represented herself at the proof, was limited in scope. She gave evidence that aircraft flying above the subjects at a height of more than 250 feet MSD did not cause any problems for the occupants of Drumjohn or any of the horses or other animals kept there. She has always maintained that it is only aircraft flying below that altitude which create an unacceptable level of disturbance due to the noise they generate. Hence the terms of the declarators she seeks. In particular, the horses and her two year old grandson have often been upset, she said, by the noise of low flying aircraft. The horses had sustained injuries, according to the pursuer. She referred to a series of calendars for the years from 2006 to 2009 on which she and others living at the subjects had logged incidents of what they regarded as unacceptably intrusive low flying. The system used by the pursuer for recording such incidents divided the low flying into three categories: (a) low flying (LF) - i.e. aircraft flying at altitudes between approximately 100 and 150 feet MSD; (b) very low jets (VLJ) - i.e. fast-jets flying at altitudes between approximately 75 and 100 feet MSD; and (c) "very very" low jets (VVLJ) - i.e. fast-jets flying at approximately 75 feet MSD or less. The pursuer claimed that she and others were well able to estimate the height of aircraft to a good level of accuracy by reference to the trees on the subjects; most of the trees were between 67 and 90 feet tall. She said that on one occasion she had physically measured a tree, which had been blown down in a storm, by using a tape measure. She maintained that it was possible for her to estimate the height of aircraft even in the dark because of their noise and their lights. Another point of reference mentioned by the pursuer in this connection was a telegraph pole.

[7] Apart from the pursuer herself, the only other evidence she led was from one of her employees, Diane Mitchell, and from a local social worker, Helen Jones. Miss Mitchell has worked for the pursuer (initially on a part-time basis) since around the end of February 2009. She supported the pursuer's evidence about intrusive low flying and its adverse effects. She referred, in particular, to a recent incident when she looked out of a window and saw what she described as the top of a jet. She stated that on another occasion she could see everything on the underside of a Hercules transport aircraft as it just cleared the trees. There had been other incidents when she claimed to have seen jets through the trees; in other words they were flying lower than the top of the trees. Miss Mitchell said that everyone was on edge the whole time because of the low flying. Mrs. Jones spoke highly of the pursuer's character and her skills in providing an animal sanctuary. On one occasion in about 2006 she had seen jets zooming in over the subjects and then dispersing. She had thought this to be unusual and had been shocked and unnerved by the experience.

[8] The pursuer produced a letter from her daughter, Sarah King; she explained that she was unable to attend the proof because of the effects of an injury caused by a horse which had been startled by a low-flying aircraft. Miss King's evidence was consistent with that of the pursuer and Miss Mitchell. She wrote of the tops of the trees shaking as the jets flew past; sometimes they flew beneath the tops of the trees causing the horses and other animals to be terrified.

[9] Finally, the pursuer relied upon a testimonial from Nicholas Martine of Care & Normalisation Limited, a specialist facility in Kent for disabled individuals with congenital and acquired brain damage. Mr. Martine wrote of the pursuer's exceptional skill in the care and handling of Arabian horses.

Findings
[10] I am unable to accept as reliable the evidence led by the pursuer as to the incidence of OLF over the subjects; it will be recalled that this refers to flying below 250 feet OSD and not at any higher altitude. I come to this conclusion on the basis of the evidence given on this central issue by Wing Commander Taylor. He referred to an analysis carried out by his staff of the entries on the calendars relied upon by the pursuer; he was satisfied that the analysis was accurate; indeed its accuracy was not seriously questioned by the pursuer, who cross-examined Wing Commander Taylor at some length. The analysis consisted of a comparison between the calendar entries and the OLF logs maintained by the RAF. It showed conclusively that on many of the dates identified on the calendars as incidents of flying below 150 feet MSD, there had in fact been no OLF authorised or flown by the RAF. For example, on seven out of the eight dates in 2009 referred to by the pursuer in evidence as instances of OLF over the subjects below 150 feet MSD, the analysis proved that no authorised OLF had actually taken place in LFA 20(T). Wing Commander Taylor made it abundantly clear in his evidence that there was, in practice, almost no possibility of OLF taking place on dates when it had not been authorised. It was highly unlikely, he said, that any pilot would indulge in OLF when it had not been authorised. In-flight data and systems would immediately tell a pilot whether he was flying below his or her authorised altitude and any transgressions of the rules would be identified by supervising officers during debriefing and treated seriously - in some cases by disciplinary action. The witness was not aware of any occasion on which a breach of MSD rules had been established during his time in post. Whilst a transitory transgression could not be completely ruled out, he considered that such an occurrence would be very rare indeed. On all these issues, I again accepted the evidence given by Wing Commander Taylor; his explanations seemed to me to be cogent and compelling.

[11] The analysis of the calendar entries prepared by the RAF indicates that there were some dates identified by the pursuer as incidents of OLF (below 150 feet MSD) over the subjects on which OLF had been authorised and flown in LFA 20(T). It does not, however, follow from this that OLF had actually taken place over the subjects as opposed to elsewhere in LFA 20(T). Wing Commander Taylor's view was that OLF over the subjects would be unusual for a number of reasons which he explained in evidence. The first of these reasons was that the subjects are situated in the north-west sector of LFA 20(T) close to Loch Doon. They lie alongside the A713 within a valley running south-east to north-west at a height of 239 metres. The valley is essentially V shaped, being bounded 1100 metres to the east by Lamford Hill at a height of 399 metres above sea level and 1500 metres to the west by Cullendoch Hill at a height of 340 metres. Wing Commander Taylor explained that OLF over the subjects from west to east (or the reverse) would be extremely unlikely due to the topography, which rises rapidly from Loch Doon to Cullendoch Hill, then descends rapidly into the A713 valley before rising rapidly again to Lamford Hill. This flight path would be one that pilots would be unlikely to follow due to aircraft performance limitations; it would also be tactically unsound because the aircraft would be unable to carry out what is, I understand, known as contour flying - i.e. maintaining a constant height in relation to the terrain. Consequently, for any east to west flight (or the reverse) the aircraft track would almost certainly circumvent the two hills and pass either to the north or south of the subjects.

[12] Wing Commander Taylor went on to say that it was possible that there could be OLF over the subjects in the case of an aircraft which tracked the direction of the valley from south-east to north-west or the reverse. He considered, however, that such a flight path was not one that would often be chosen for three main reasons. Firstly, there are two large wind-farm developments to the east and west of the subjects making routing difficult. Secondly, just to the north of the subjects lies controlled airspace for Prestwick airport. Whilst military aircraft are permitted to fly below such controlled airspace, this is only an option in favourable weather conditions. Finally, the weather in this sector of LFA 20(T) is often poor, especially because of the predominant south-westerly airflow. All this meant, according to Wing Commander Taylor, that the north-west sector of LFA 20(T) would be used less frequently than other parts of the Tactical Training Area.

[13] In an attempt to provide a more accurate picture of OLF over the subjects, the RAF examined detailed statistics for LFA 20(T) for the months of April to July 2009. Over this period a total of 263 half-hour slots were allocated for training use in LFA 20(T). 43 per cent of these were cancelled and 57 per cent were retained for use. Within this period the busiest month was July when Tornado squadrons were carrying out essential pre-deployment training for operations in Afghanistan. Between 28 and 30 July 2009 a total of 5.25 hours of OLF training was conducted within LFA 20(T), but a survey carried out by the RAF Community Relations Officer (Scotland) showed that there was no activity in the vicinity of the subjects and there were no flights over the subjects by any military aircraft. Wing Commander Taylor accepted that this was only a shapshot of activity, but he considered that it lent support to the view that the north-west sector of LFA 20(T) was used less frequently than other parts of the TTA. In his opinion, it certainly indicated that there was no specific concentration of activity in the Drumjohn area.

[14] The conclusion which, to my mind, must be drawn from the evidence as a whole is that the amount of OLF over the subjects, if indeed there is any, is substantially less than the pursuer claimed. The RAF analysis conclusively shows this to be the case and the evidence of Wing Commander Taylor points very clearly towards the view that there is unlikely to be a significant amount of OLF over the subjects. I am willing to accept that military aircraft do fly over the subjects from time to time, but I am unable to conclude that the pursuer has proved that there is a significant amount of OLF (i.e. flying below 250 feet) as opposed to flights at a higher level. Her records of OLF rely on mere visual estimation from ground level and are, in my opinion, of highly questionable accuracy for this reason alone. In cross-examination the pursuer accepted that her approach was no more than what she characterised as a well-educated guess. There was a telling example of the unreliability of such visual estimation in the evidence when the pursuer asked Wing Commander Taylor to look at a video taken in November 2003 showing inter alia a Hercules aircraft flying over some trees at the subjects. According to the pursuer, this aircraft was flying below 250 feet above ground level. Wing Commander Taylor emphatically disagreed; he was in no doubt that it was flying at an altitude of between 400 and 600 feet above ground level. For what it is worth, my own impression was that the aircraft was flying at a height substantially above the tops of the trees. I consider that the Wing Commander's estimate is very much more likely to be accurate than that made by the pursuer. When pressed in cross-examination as to whether it was even possible that she might be mistaken about the height of the alleged OLF flights and that the explanation might be that these were actually flights at a higher altitude, the pursuer vehemently insisted that she could not be wrong and that she was telling the truth. I do not consider that the pursuer was deliberately being untruthful on this issue, but I have to say that I did not find her evidence on the point to be convincing in the sense that it would be safe for me to rely upon it. Overall, I formed the clear impression that the pursuer has, for whatever reason, convinced herself that there is a substantial amount of OLF over the subjects. She sincerely believes this to be the case, but the facts as established in the evidence do not bear this out.

[15] On the basis of the evidence put before me, I am not persuaded that the pursuer has established that a significant amount of OLF does in fact take place over the subjects. That would be sufficient to dispose of the action in favour of the defenders, but I should explain also that the pursuer did not lead any evidence of noise levels at the subjects, although there was reference in her pleadings to an expert noise assessment and report prepared in September 2004. The essence of the pursuer's case, according to her pleadings, is that aircraft noise and vibration from OLF constitute an intolerable nuisance and that they are of higher levels than an occupier of property ought reasonably to expect. But there was insufficient evidence from which I would be entitled to make any finding as to the level of OLF noise experienced at the subjects or as to its tolerability. Not only was there no expert evidence led on noise levels, the pursuer also failed to lead any medical evidence to support her allegations of personal injury. She led no veterinary evidence to prove her averments of injury to her horses. Overall, there was insufficient evidence led, in my opinion, to allow me to make a finding that any OLF over the subjects amounted to a nuisance in the sense described in the leading case of Lord Advocate v The Reo Stakis Organisation Ltd 1981 SC 104. The pursuer has not come anywhere close to proving, as it seems to me, that in all the circumstances any OLF which may occur over the subjects constitutes serious disturbance or substantial inconvenience to her in the use or enjoyment of the subjects. On that basis her case insofar as it proceeds on a complaint of nuisance fails.

[16] As to the Human Rights dimension, the pursuer's complaints must, I consider, also be rejected on the basis that she has not proved that there is any significant amount of OLF conducted over the subjects. I do not consider that either of the Articles of the Convention relied upon by the pursuer can be said to have been infringed in the circumstances of the present case. The pursuer has led insufficient evidence to allow me to find that her private and family life and home have been detrimentally affected by low flying aircraft or that the peaceful enjoyment of her possessions has been impaired.

Conclusion
[17] In the result, the pursuer's action fails for want of proof. In these circumstances, it is not necessary (and would, I think, be undesirable in the absence of full legal argument on both sides) for me to express any view on a number of issues of law touched on by counsel for the defenders in his closing address; these included the relevance, if any, in the Scots Law of nuisance of a defence of "public utility" and whether the approach taken by Buckley J in Dennis v Ministry of Defence [2003] Env. L.R. 34 towards the interaction of the common law of nuisance with Human Rights considerations should be followed in Scotland.

[18] For the reasons set out, I have sustained the defender's second plea-in-law and pronounced decree of absolivitor.